The Prime Minister has vowed to return lawmaking powers from Brussels to Westminster and to cease the right of EU judges in Luxembourg to interpret British legislation on the UK’s exit from the bloc.
But Express.co.uk has learned of a legal loophole which, if it isn’t closed, could allow judges sitting in the European Court of Justice (ECJ) to rule on UK laws for years after Brexit.
There are fears judges in the Luxembourg-based Court could be entitled to argue they hold the power to continue meddling with British legislation even after the UK’s departure, if they are presented with cases referring to events that occurred prior to Brexit.
According to a top barrister, there is no specific provision included in Article 50 of the Lisbon Treaty – the mechanism for departure – to immediately end the power of the ECJ once a member state quits the EU.
Martin Howe QC described how, if Britain was to withdraw from the jurisdiction of the separate Strasbourg-based European Court of Human Rights, it wouldn’t be released immediately from the Court’s rulings as its judges would be allowed to rule on historic cases.
He explained Britain could be left in a similar situation with regards to the ECJ, if Mrs May doesn’t negotiate a specific provision during Article 50 talks – leaving open the possibility of the ECJ ruling on British cases for “many years” after Brexit.
Mr Howe told Express.co.uk: “At the moment it is unclear whether the ECJ would continue to have power after we leave the EU to rule on events which take place before we leave the EU.
“In the European Convention on Human Rights there is an Article which says that if a State withdraws from the Convention then the Strasbourg-based European Court of Human Rights still has power to rule on cases which relate to events which took place before the date of the State’s withdrawal.
“There is no corresponding provision in Article 50 or elsewhere in the EU Treaties. Therefore it could become a point of interpretation and argument whether the ECJ retains such a power.
“If it does retain such a power, it could continue to rule on historical cases for many years after the UK actually exits the EU.”
At the Conservative Party conference earlier this month, Mrs May promised to trigger Article 50 no later than March next year, setting Britain’s EU exit date for early 2019.
The Prime Minister also outlined her plans for a Great Repeal Bill to end the supremacy of EU law over Britain on exit day, while incorporating those Brussels rules Parliament wishes to keep into British legislation.
Mr Howe stressed the planned Great Repeal Bill must also make a specific provision for the power of the ECJ over Britain to end immediately.
He said: “Therefore it is highly desirable that the Repeal Bill should deal with this issue and make it clear that UK courts should not recognise any continuing jurisdiction of the ECJ after the effective date when we leave the EU, even in relation to past events.
“That would clarify the position in front of our domestic courts.”
Tory MP and leading Brexit campaigner Jacob Rees-Mogg repeated Mr Howe’s call for the ECJ’s influence over the UK to be ceased on exit day.
He said: “The Great Repeal Bill must remove all the European Court of Justice”s ability to issue binding rulings to the UK.
“It”s removal is one of the main benefits of leaving the EU and taking back control.”
Although Mrs May has vowed to end the ECJ’s power over Britain as part of Brexit, a Conservative manifesto commitment to introduce a British Bill of Rights to break the formal link between UK courts and the European Court of Human Rights appears to have been placed on the backburner.
Mr Howe had previously consulted David Cameron’s government on the creation of a new British Bill of Rights.