The Guardian view on European agencies: lost to a myth | Editorial | Opinion


The process of divesting London of some of the key European institutions that have been based here for years is quickening. Bids from countries seeking to be the new home of the European Medicines Agency and European Banking Authority when they relocate have to be in by midnight tonight. The Dutch, who have recently discovered the joy of viral videos after the success of their spoof welcome to President Trump, have made a helpful little film about how Amsterdam is really very like London (glamorous royals, fish and chips). But at least six other countries would also like the chance of hosting the EMA, the body that regulates all human and animal medicines across the EU, advises the European commission on licensing, and monitors safety. Losing it is not a catastrophe; but it is another link out of the chain that connects British and continental Europe’s science and medicine. Nor is it an automatic consequence of leaving the EU. But membership of the EMA, like membership of other agencies including Euratom, which regulates aspects of nuclear safety, means recognising the European court of justice. And for reasons that many lawyers, academics and ordinary voters struggle to understand, leaving the jurisdiction of the ECJ has become one of the defining purposes of leaving the EU.

No one was aware of Theresa May’s antipathy to the court until it emerged unexpectedly in her speech to the Conservative party conference last October: “Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end,” she declared. Those three sentences frame the whole negotiation process that is now under way.

Yet there has been almost no public conversation about what was perceived to be wrong with the ECJ; nor has there been any consideration of the process of accommodation that is being negotiated with it by other countries which – like Germany – have a constitutional court that is as fiercely protective of the basic law that underpins their constitution as parliament and the supreme court are of the authority of Magna Carta and the bill of rights in Britain; nor how, without it, any future trading relationship between the UK and the EU27 will be adjudicated.

The ECJ is not perfect. It has a recognised tendency to expand its jurisdiction – “competence creep”. In particular, since the 2009 implementation of the charter of fundamental rights, which seeks to standardise individual rights across the EU, there has been a debate about where its jurisdiction ends. The UK and Poland both claimed they had an opt-out preventing the extension of EU law into national courts that subsequently appeared not to stand up in court. It is only in the UK, however, that the response has been not to try to restrict the extent of jurisdiction but to use it as a reason to abandon the EU altogether.

Mrs May appears to have been influenced by the public law QC Marina Wheeler, who in February last year wrote that the ECJ had become overmighty and was set to become more powerful still. Other lawyers were sceptical of her case, but – perhaps because she is married to Boris Johnson – her article appears to have had a decisive influence. As a result, which may have been foreseen, it is impossible for the UK to retain membership of the single market or the customs union, or to host EU agencies. It has become the dictator of the nature of the Brexit deal.

But if the UK will not countenance any role for the ECJ, even to allow continued membership of useful EU agencies, then the question becomes what might substitute for it as the arbiter of the conduct of the deep and close relationship Mrs May wants. Officials will have to design a court that is acceptable to the ECJ – notoriously jealous of its jurisdiction – and also to the EU member states. The Belgian regional assembly of Wallonia initially rejected the Canadian trade deal Ceta partly because it disliked the idea of investor-state tribunals sitting perhaps in opposition to the ECJ. Any new system of adjudication would raise other tricky questions too – who would have rights of audience, what status its rulings would have, and how consistency could be ensured.

Mrs May should find an exit from the corner into which she has painted herself. The ECJ operates in a political environment. Its views sometimes evolve, as they did recently on the right to benefits of a Romanian citizen in Germany. If Britain’s views evolved too, it could be transformative.

Source