Andy Burnham is under pressure over a report that EU negotiators are demanding European Court of Justice oversight and an annual fee as the price of restoring British access to the bloc’s databases of asylum seekers and criminals. The Telegraph’s account, based on sources with knowledge of the negotiations, has not been confirmed by either government, and Whitehall sources said they did not recognise the claims about the court. No agreement has been announced. But the Prime Minister wants the access secured at the UK-EU summit in Brussels on 20 November, the summit agenda covers cooperation on illegal migration, and the report has revived the sovereignty argument at the heart of the Brexit debate at the most sensitive point in the negotiations to date.
Critics argue that accepting ECJ oversight would reverse a central objective of Brexit: limiting the Court’s authority over the United Kingdom. Boris Johnson campaigned to take back control of Britain’s laws from EU judges, and the Trade and Cooperation Agreement his government concluded with Brussels in December 2020 was deliberately built without the Court, with disputes settled by independent arbitration instead. The wider Brexit settlement is more complicated. The Withdrawal Agreement preserved a limited ECJ role in citizens’ rights cases begun within eight years of the end of the transition period, and the Windsor Framework leaves the Court responsible for the EU single market rules that apply in Northern Ireland. Previous governments tried and failed to win back access to the databases, and none accepted the Court’s jurisdiction to do so. The Telegraph reports that Mr Burnham is weighing compromises previous governments rejected, alongside deals on farming exports, carbon taxes and electricity trading which, the sources said, would also come with the Court’s oversight.
Alex Burghart, the shadow chancellor of the Duchy of Lancaster, said: “I warned of exactly this a few weeks ago.
“Labour’s EU Reset treats a closer relationship with Brussels as a panacea, while ignoring the very real trade-offs it would bring for farmers, fishermen and taxpayers.
“If access to EU databases means handing over taxpayers’ money and accepting ECJ oversight, Labour must explain the price. You cannot put a price on sovereignty.”
The databases Britain lost
Two systems are at stake. Eurodac stores the fingerprints and biometric details of people who claim asylum in the EU, together with the member state where they were first registered. The Schengen Information System is the largest security database in Europe, issuing alerts on suspected criminals, missing people and those wanted for deportation.
One distinction matters for how any deal is read. Eurodac is a biometric database; the Dublin regulation was a separate legal framework that used records of that kind to decide which country was responsible for an asylum claim and permitted transfers back to it. Britain lost both at Brexit. Access to Eurodac alone would not restore a returns power: any new mechanism for sending asylum seekers back to the EU state where they were first registered would need its own legal basis in a future agreement.
Lord Hanson, a Home Office minister, told peers in June that the Schengen Information System recorded 95 million alerts last year, “2 million of which related to persons of interest for law enforcement and immigration purposes”. Britain “had access between 2015 and 2020”, he said, “we lost it with Brexit and need to get back into that position as a matter of some urgency”. He was candid about the obstacle on the other side of the table. EU legislation currently prohibits the sharing of Eurodac data with third countries, so any British access requires Brussels to legislate first.
The only non-EU countries allowed into the databases are Norway, Switzerland, Iceland and Liechtenstein, each under its own legal arrangement. Norway, Iceland and Liechtenstein sit in the European Economic Area, where the EFTA Court exercises a role corresponding to the ECJ’s over EEA law. Their participation in the two systems rests not on that court but on separate Schengen and Dublin association agreements with the EU, each applied and developed through joint committees: Council Decision 1999/437/EC records that the Iceland-Norway Schengen agreement “establishes a Joint Committee” whose areas include the Schengen Information System. Switzerland, which stands outside the EEA altogether, joined Schengen and the Dublin system through its own association agreements, and Swiss authorities gained access to the asylum database under a separate protocol signed in 2019, with disputes handled by a mixed committee rather than by rulings from Luxembourg. What the four share is the substance of the bargain: each has bound itself by treaty to the EU rules governing these systems and accepted committee-based machinery for overseeing how those rules are applied, whether alongside the EFTA Court’s EEA supervision or on its own. That is the precedent any British deal must overcome, and the Government has yet to explain publicly how it would.
The art of the possible
On Monday the Prime Minister told the Commons that the Brussels summit would pursue growth and control of illegal immigration, with a food and drink trade deal, emissions trading, energy links, a youth experience scheme and deeper cooperation on immigration on the table. “On immigration, we could link up our law enforcement efforts once again, sharing more data and criminal records of foreign nationals as well as faster electronic evidence from the phones of those behind the gangs,” he said.
Mr Burnham told MPs the country had suffered a “loss of immigration control” because of its inability to access data across the European Union. According to The Telegraph, he went further: “That is something that Britain has long sought in the decade since Brexit. It is the control that we lost, actually, at the time of the referendum.” He added: “I will work hard to see if we can get a practical arrangement on that very issue at the summit in November.” The Prime Minister said Ursula von der Leyen, the European Commission president, had signalled openness to an agreement when they met in New York last month.
Hamish Falconer, the cabinet minister in charge of the EU reset, set the tone in August when he said he would pursue the “art of the possible” for a deeper relationship with Brussels, while insisting the Government stood by its manifesto red lines. The Telegraph reports he is now chasing “a more ambitious” deal.
The pursuit itself began under Sir Keir Starmer, whose government committed to restoring real-time data sharing at the May 2025 summit. The Telegraph’s report suggests the new Prime Minister may be prepared to make concessions his predecessors refused. The Government disputes the reported court demand, no concession has been confirmed, and Mr Burnham has made no statement to Parliament endorsing ECJ oversight. What his record does show is the direction of travel he has set out himself: he told MPs the status quo is “not good enough”, promised a “serious dialogue” about Britain’s long-term relationship with the EU, and said a return to free movement was “not on the table” in the current talks while being unable to rule it out for a post-election future. The Telegraph also reports that he believes Brexit made the small boats crisis worse and could support rejoining the union altogether; that account rests on the newspaper’s reporting rather than any statement he has made in Parliament.
The questions Mr Burnham must answer
The reported terms leave four questions that ministers have yet to answer in full.
- How much would British taxpayers pay each year for “the cost of linking databases”, and for how long?
- Precisely which disputes would the European Court of Justice be “the final arbiter” over under the reported arrangement, and would the oversight reported for the farming, carbon and electricity deals stretch further than the databases themselves?
- Will Parliament see the terms, and vote on them, before the Prime Minister signs anything in Brussels?
- If every country that has ever gained access to these databases has done so by taking on the EU’s rules for those systems under supervisory machinery of some kind, what legal advice tells the Prime Minister Britain can be the first to refuse such terms?
The Government’s answer so far is broad. A spokesman said: “We are building an ambitious, close relationship with the EU that will secure our borders, bolster collective security, and keep our citizens safe.” Whitehall sources have denied that ECJ oversight is on the table, and Lord Hanson told peers in June that “there are still some challenges ahead to making that happen”. Mr Burnham told MPs the British public would be “the boss” in any longer-term reconsideration of the Brexit settlement.
Great British PAC reaction
Steve Wright, Brexit Campaign Leader of Great British PAC, said:
“Yet again we find our UK government desperate to have anyone but themselves in charge. This time they want to pay taxpayer money to the EU, for the privilege of having EU laws placed onto the UK and having EU courts decide on whether we are obeying them. What is it about our political class, that they try so hard to get a job that they do not actually want to do?“
