14:26, August 23 303 0 theguardian.com

2017-08-23 14:26:03
The Guardian view on UK Brexit policy: this time the lady is for turning

The orthodoxy says that few things are more humiliating for a leader than a U-turn. That’s especially true in the Conservative party, where the ghostly voice of Margaret Thatcher in 1980 – “You turn if you want to. The lady’s not for turning” – still echoes in the Central Office rafters. Sometimes, though, the orthodoxy is simply wrong. In some circumstances, a U-turn can be – and can even be publicly respected as – an act of common sense and even enlightenment. Mrs Thatcher might have survived longer if she had scrapped her delusional poll tax in 1989. Tony Blair’s reputation would be different if he had abandoned the Iraq invasion in the face of the public’s discontent. In Germany, Angela Merkel’s ratings grew stronger after the Fukushima incident persuaded her to phase out the nuclear power programme she had previously backed.

Theresa May’s U-turn on Britain’s relationship with the European court of justice after Brexit is one that should be warmly welcomed. Be in no doubt that a U-turn is what it is. In the past the prime minister’s language on the ECJ has been absolutist and without nuance. She has pledged that “the authority of EU law in Britain will end”, that a return to ECJ jurisdiction is “not going to happen”, and that the laws “will be interpreted by judges not in Luxembourg but in courts across this country”. With the publication of the government’s latest policy paper, on post-Brexit dispute resolution, none of those assertions is now true. Instead the paper sets out a range of ways in which the ECJ and its rulings will continue to play some part in the rule of UK law after Brexit.

These dispute resolution proposals are only presented as options. But Mrs May’s previous policy would have meant the hardest of Brexits. Total exclusion of the ECJ would have meant no possibility of a post-Brexit relationship with the EU single market or customs union, relationships that are profoundly in the interest of British jobs, companies and the British economy. The paper’s claim that leaving the EU will end the “direct jurisdiction” of the ECJ within the UK is a fig leaf to conceal the government’s larger retreat. The future relationship with the EU is now in play. This is a big change. It should be supported and developed.

It was always utterly foolish to treat the ECJ as a red line in the Brexit process. The reality of any future relationship with the EU, in trade, individual rights, family law, crime, the environment and much else, is that it is not going to happen unless the ECJ is a stakeholder in its rule-making and rule enforcement. The only way in which exclusion of the ECJ would make sense is if foreign judges can never say anything about international codes that Britain should take into account. This is not the way British law has evolved and it is not the way that the rest of the world works either, especially in trade. Most trade is governed by multilateral codes, not the bilateral ones the Brexiters fantasise about. Multilateral agreements require multilateral disputes mechanisms, so any agreement with the EU requires its judges, the ECJ, to play a part.

The UK government has now published six Brexit negotiation position papers. More are imminent. All are too cautious. None is bold enough to make the national interest explicit. But the momentum of all of them is towards compromise with the EU and away from unilateralism. All of them to some degree embody consensual aspirations towards the EU. All of them express a recognition that compromise, not defiance, is in the best interest of British jobs and living standards. None of them, as yet, proposes the logical outcome of this direction of travel, that Britain should remain in as close a relationship as possible with the EU after Brexit. But that is the direction of travel. The government is having a necessary encounter with reality. Supporters of liberal values and internationalism must redouble the pressure. This time the lady is for turning.