Ben Gurr for The Times
A retired senior judge has warned the prime minister that a proposed relationship between the UK and the EU’s top court “obliterates the red line that must not be crossed” concerning post-Brexit legal powers.
Sir Richard Aikens, who until 2015 was a Court of Appeal judge, sent a strongly worded letter to Theresa May saying that he had been “alarmed to see and read stories” reporting on a rumoured compromise deal.
Sir Richard quoted newspaper reports suggesting that the government was moving towards a deal with the EU that meant British courts would have to make “preliminary references for rulings by the Court of Justice of the EU on certain issues, but in particular on questions to do with EU citizens’ rights in relation to entry into and residence in the UK”.
The former judge has rejoined Brick Court Chambers as a door tenant and is also president of Lawyers for Britain, a group that campaigned in favour of the UK leaving the EU.
In his letter to the prime minister, Sir Richard said that if such a compromise deal were agreed, “it would put the UK in the humiliating position of being a self-governing, sovereign state which had voluntarily agreed to cede the jurisdiction to deal with the rights of foreign citizens within its territory to a foreign court in which it [the UK] does not have any representation”.
Sir Richard maintained that the arrangement would be “worse than the ‘unequal treaties’ between the western powers (including the UK) and China during the 19th century. At least in that case the western powers imposed the treaties on a powerless China. If the UK agreed to [this] proposal it would be an abject voluntary surrender of sovereignty”.
The letter also included the inflammatory suggestion that striking a deal over EU court jurisdiction would present a security risk to the UK.
“Some commentators have said that the ECJ has transformed EU treaty provisions on the ‘free movement of persons’ into a charter for the ‘free movement of criminals’,” Sir Richard told the prime minister.
“If the CJEU were given the exclusive right to interpret the proposed UK-EU treaty in relation to EU citizens’ rights to enter and stay in the UK, the right of the UK to ‘control’ UK borders and the rights of all citizens who lived in the UK would be lost for ever. That would be tantamount to reversing the result of the 2016 referendum.”