Former Court of Appeal judge warns May over proposed UK-ECJ relationship

A former Court of Appeal judge has written to the Prime Minister to warn her that a proposed relationship between the UK and the European Court of Justice “obliterates the red line that must not be crossed” in respect of legal powers after Brexit.

Sir Richard Aikens told Theresa May that he was “alarmed to see and read stories” about a deal that would see British courts 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”.

Sir Richard, who was a judge until 2015, rejoined Brick Court Chambers as a door tenant and is president of Lawyers for Britain, which campaigned for Leave during the EU referendum.

He said in his letter that a compromise with the European Court 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 does not have any representation”.

He added that it 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 proposal it would be an abject voluntary surrender of sovereignty”.

He went as far as to suggest that such an arrangement would run contrary to the outcome of the referendum.

He wrote: “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’.

“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.”