Tobias Lock, senior lecturer in European law and co-director of the Europa Institute at Edinburgh Law School thinks the two-court solution the best for regulating dealings between the UK and EU after Brexit.

For an attempt to understand the UK government’s position on the future role of the European Court of Justice, it is probably best to start by explaining what the ECJ actually does. Its main role is to ensure that EU law is interpreted and applied in the same way in all 28 EU member states. With regard to the UK it does this either because the EU Commission takes the UK to court for not fulfilling its duties as an EU member state. Or – much more commonly – UK courts ask the ECJ for guidance on the interpretation of EU law to help them decide a case pending before them. This happens regularly because our domestic courts must interpret and apply EU law on a day-to-day basis.

This jurisdiction of the ECJ would naturally come to an end with Brexit because EU law will no longer be binding on the UK. So where does the Prime Minister’s red line about ending the jurisdiction of the ECJ come from? It seems to be motivated by a fear that the EU will try to insist on a continued role for the ECJ in the post-Brexit relationship. And a close reading of the EU’s position papers on Brexit seem to confirm this.

But is there an actual need for the ECJ in future UK-EU relations? The key issue is that if the two sides agree on common rules, it makes sense to have a mechanism in place that ensures that these common rules are interpreted and applied in the same way by both partners. Common rules will in all likelihood feature in the withdrawal deal, in particular on rights of EU citizens in the UK and UK citizens in the EU. And the closer the future UK-EU relationship will be, the more likely it is that there will be common standards needing common interpretation.

So why not simply create a new EU-UK court for that purpose? This theoretical option may not be possible in practice, however, if the new EU-UK relationship mirrors EU law. This is because the ECJ is the only court that may interpret EU law with effect for the EU.

Instead, a two-court solution is more likely: the ECJ would interpret these EU-UK rules with effect for its legal order; and another court would do the same with effect for the UK legal order. In formal terms this solution would end the jurisdiction of the ECJ with effect for the UK although in practice it would require that other court to closely follow the ECJ’s precedents.

UK government’s paper on dispute resolution after Brexit – non-committal as it may be in detail – recognises the need for effective dispute settlement. This should be welcomed as an injection of pragmatism in the EU negotiations, for which the ECJ question was always a dangerous one. Some of the solutions discussed in the paper, most importantly the two-court solution which is closely modelled on the EFTA court in charge of the famous ‘Norway model’, should appeal to the EU side. If the UK-side – in particular the hard-core Brexiteers – are equally willing to move a little, a workable compromise should be possible.

This article first appeared in The Herald.