The UK could still follow rulings from European judges after Brexit as part of an interim deal, it has been suggested.
The latest document from the Government shows the UK is prepared to work with the EU to create a legal framework to solve disputes after March 2019.
It is understood officials at the Department for Exiting the EU are open to the idea of allowing the European Court of Justice (ECJ) to continue to overrule UK law during this “interim period.”
Prime Minister Theresa May appeared to contradict that thinking in an interview less than an hour before the document was published, telling Sky News: “When we leave the European Union, we will be leaving the jurisdiction of the European Court of Justice.”
The confusion comes amid criticism that May has already compromised on the vow in her Lancaster House speech that UK “laws will be interpreted by judges not in Luxembourg but in courts across this country.”
The “Enforcement and Dispute Resolution” paper repeatedly talks of an end to the “direct jurisdiction” of the ECJ, implying some indirect influence will still be felt.
The paper sets out a range of examples for a post-Brexit body to ensure any trade deal between the UK and EU “can be monitored and implemented to the satisfaction of bother sides.”
In rejecting the permanent jurisdiction of the ECJ, the Government argues that no country in the world follows the rulings of a court in which it does not have representation.
The paper flags up joint committees and arbitration models as examples of potential post-Brexit legal bodies – which would involve non-UK officials and experts ruling on disputes.
They could be judges from the ECJ.
The Lib Dems described May’s attempts to downplay the government’s climbdown over the European Court of Justice as a “desperate attempt” to hold together the Conservative Party and ward off a eurosceptic rebellion.
The party’s Brexit spokesperson Tom Brake said: “The government has produced a position paper without a clear position. No one reading this paper will have a clue what they actually want.
“It’s a desperate attempt to hold together a divided Conservative party and prevent a rebellion amongst eurosceptic backbenchers.
“Despite Theresa May’s tub-thumping rhetoric, it’s clear that protecting British trade, security and families will mean accepting a role for the European Court.
He added: “The government should stop running scared of the Tory Hard Brexiteers and put the interests of the country first.”
The Government is also looking at Moldova for inspiration as it cites the EU’s association agreement with the small Eastern European country – ranked 145th in the world by economic size.
The report says: “Article 403 of the EU Moldova Association Agreement requires that an arbitration panel established to resolve disputes shall, where the dispute concerns interpretation of EU law, refer the question to the CJEU [ECJ] and be bound by its interpretation.”
It is understood Brexit officials do not believe adopting this position contradicts May’s vow that the UK will be in control of its own laws.
Former Labour Cabinet Minister Lord Adonis, supporter of the anti-Brexit group Open Britain, said: “Not much is left of David Davis’s so-called ‘red line’ of taking back control from European judges.
“This paper is frustratingly vague, to the point that it barely counts as a negotiating position.
“In almost every example the Government gives – from the EFTA Court, to the EEA Agreement to the EU-Montenegro deal – the ECJ has substantial direct or indirect power over the proposed new relationship between Britain and the EU. And they have confirmed that every past judgement of the ECJ will stand after we leave.
“This is a climbdown camouflaged in jingoistic rhetoric. Even if we leave the Single Market, European judges will still have considerable power over decisions made in the UK.
“It would make far more sense for the Government to negotiate continued membership of the Customs Union and Single Market.
“Otherwise, we get the worst of all worlds – a worse deal on trade and jobs than now, yet no extra control over anything for real.”.