Former Whitehall legal chief criticises May's 'foolish Brexit red line' on ECJ

Sir Paul Jenkins says Brexit strategy would involve jurisdiction of European court in "all but name"

Paul Jenkins headed the Government Legal Department for eight years. Credit: Photoshot

By Tamsin Rutter

21 Aug 2017

The former head of the Government Legal Department has claimed that a post-Brexit Britain with no hard borders would have to remain under the jurisdiction of the European Court of Justice (ECJ) “in all but name”.

Paul Jenkins, the most senior legal official in Whitehall between 2006 and 2014, is the latest legal expert to cast doubt on the government’s plans for frictionless trade following the UK’s exit from the European Union.

Jenkins said that despite “Theresa May’s foolish red line” on leaving the ECJ, the UK would need to introduce trade rules that are identical to EU internal rules and “a parallel policing system”, if it is to retain close links to the customs union and single market – a stated aim of the government’s recent Brexit policy paper.


He told the Observer: “If the UK is to be part of something close enough to a customs union or the single market to remove the need for hard borders, it will only work if the rules are identical to the EU’s own internal rules.”

He also said there must be consistent policing of those rules – and if the UK is to escape ECJ jurisdiction, the Brexit treaty will have to provide a parallel system for enforcing thi.

“That may be a new court but, in reality, any new court will have to follow what the ECJ says about the EU’s own rules, otherwise the new system won’t work,” he added. “So, never mind Theresa May’s foolish red line; we will have the ECJ in all but name.”

Meanwhile, Carl Baudenbacher, the president of the court of the European Free Trade Association (EFTA), said today that the UK could retain full access to the single market without accepting ECJ jurisdiction.

Baudenbacher said the EFTA court, which currently oversees the relationship between Norway, Iceland and Lichtenstein and the 27 EU member states, could also oversee a future arrangement between the UK and the EU.

Jenkins, now an associate member of barristers Matrix Chambers, headed up the Government Legal Department and was permanent secretary to the attorney general for eight years to 2014.

He has previously championed the ability of Whitehall to deliver Brexit, while calling for a focus on the resilience and wellbeing of civil servants during the “very long, tough haul” of negotiations.

Speaking to Civil Service World in May, he said ministers needed to set out a better sense of direction for the civil service, and share more detail on the government’s negotiating position.

The government has released several other Brexit policy papers this week, including on how to resolve legal disputes between the UK and the EU following the UK’s break from the ECJ.

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