Allowing the European Court of Justice any role in our future negotiations with the European Union will be detrimental to the UK, argues Sean Walsh. 

Shakoor Rama was a Pakistani cricket umpire who was a prime mover in England’s tour of Pakistan in 1987. It’s fair to say, I think, (and this is the received cricketing wisdom) that in terms of neutrality he didn’t cover himself in glory. For Rana, the laws (cricket has laws, and not rules) around the interpretation of what counted as “LBW” were more than contingently connected to which of the two teams were batting. And when challenged by the England captain, Mike Gatting, Rana was given to very public and cardiac-concerning paroxysms of self-justification.

Rana was not a neutral umpire in that series. He was a player.  He was, de facto, Pakistan’s 12th man. And it was his behaviour which led to the restructuring of cricket such that “home” umpires were replaced in favour of international counterparts.

For some reason, the case of the late Mr. Rana came to mind when I was reading through the EU’s statement of its negotiating position. It seems that Barnier and the nomenklaturawhich back him has not quite realised that, legally at least, we have already left the EU and that the insistence that the ECJ must have primacy in the adjudication of future disputes is now otiose. Barnier, and those who furnish his remit, seem to have no conception of a viable world outside of their destructive “project”. The ECJ is one of those institutions which they have mandated to secure the foundations of the protection racket.

The ECJ is the EU version of Shakoor Rana, bedecked in the appropriate attire but always defaulted in the direction of the home team. Mr. Rana always let the trivial decisions go through with the appearance of objectivity, but when it came to the big ones, he favoured the home side. This is exactly what will happen if the UK negotiators concede a primary role to the ECJ in the adjudication of the detail of our future relationship.

What is going to happen in the next few months is this: a replay of the “crash-out-no-deal” histrionics which held up the will of the people for three years. We will hear about “level playing fields” (even though we have announced we don’t want to play on that pitch- whatever its curvature); and with the active connivance of our not-yet-properly-purged-but-a-good-start civil service the transition negotiations will be dragged once again onto the important, but nevertheless secondary, issue of the economics of the future relationship.

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And if it just so happens that a mystery flu should sweep the world, it will be urged that we cannot -on grounds of safety- exit systems of partnership with the EU which were always to be retained anyway. Wait for this argument to become prominent in the next few weeks.

This is maximum danger time. The Political Declaration sets out a laudable end-state; the Withdrawal Agreement contains clauses of sabotage when it comes to reaching it. I’ve argued before on Comment Central that that these were always potential mechanisms of effective retained membership.

One way in which this might happen is by the gradual accretion of sovereignty in service of some ideal of effective trade. But this is the wrong way around. It should be that sovereignty determines appropriate trade and not that trade determines what is left of sovereignty. The PD/WA reverse the natural order of things and make economics prior to sovereignty which is a form of vandalism against the 2016 decision.

We decided to leave the EU not to make ourselves richer or poorer but to make ourselves ourselves: free to make good and bad decisions in terms of future trading relationships and ultimately not reducible to the mores and presuppositions of the institutions we have decided to leave.

Including, most of all, the European Court of Justice. The ECJ expresses a version of the law that is counter-cultural to the UK experience. Unlike the common law of the UK it is not interested in the mediation of disputes but in the imposition of itself. And that jurisprudential difference probably is another way of saying that the assumptions of the European project are inconsistent with the sense of identity that is essential to a decent form of national affection.

To allow the ECJ any role in our future settlement would be like conceding a Shakoor Rama when we are more used to a Dickie Bird. Bird was an irascible and difficult ambassador of the laws of cricket. Which is precisely why he was trusted by all sides.

EU: please take note; we all agree that a future trading relationship will require a disputes procedure. But don’t think it’s up to you to supply the umpire.

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