Brexit delay in EU court ‘potentially a blessing’
Former judge says extra time would allow politicians to hammer out an improved deal
BREXIT could be delayed for a year if Remainers appeal to the European Court of Justice (ECJ), a former EU judge has suggested as he claimed such a scenario could be a “blessing in disguise”.
Sir Konrad Schiemann, who previously sat at the Court of Justice of the European Union (CJEU), of which the ECJ is a part, suggested the legality of the UK’S Brexit deal could be challenged by a business or an individual at home or abroad. Such a legal challenge could be a “spanner in the works”, he said, and could result in “an extra year or maybe longer” to hammer out an improved deal.
David Jones, the former Brexit minister, warned such a legal challenge could leave the UK in a “period of limbo” and said it demonstrated the importance of Britain being prepared to walk away without a deal.
It came after Theresa May secured Cabinet backing, including from Boris Johnson and Michael Gove, for an increased Brexit bill offer above £20billion if the EU is prepared to make concessions in return. But her plan to present Brussels with a more generous divorce settlement suffered a blow as the Irish government said more money would not necessarily guarantee the start of trade talks.
Simon Coveney, Ireland’s new foreign minister, said that his country was prepared to veto attempts to unblock negotiations unless Britain agreed to maintain an open border between Ireland and Northern Ireland.
However, Arlene Foster, the leader of the Democratic Unionist Party, accused Brussels of using Northern Ireland’s future as a “bargaining chip” in negotiations and said Ireland was being “reckless” with the peace process.
Meanwhile, EU diplomats suggested a rumoured offer of around £40billion would not be enough to move on to trade, with Politico quoting one as saying it “could make sense only if it’s a first step”.
The two-year period of negotiations between Brussels and Britain which Article 50 allows for is due to conclude in March 2019. But Sir Konrad appeared to suggest the UK’S withdrawal from the bloc could be delayed if the deal were challenged in the courts.
Mr Jones said: “I think he is right. I think it could be subject to a challenge and the ECJ probably would have jurisdiction and could veto the agreement.”
Mr Jones warned such a challenge could leave the UK in a “period of limbo” with “no certainty for business” and that such a delay would simply be “kicking the can down the road”.
Sir Konrad told the House of Lords EU justice sub-committee that he did not know how likely a referral to the ECJ was, just that he believed it to be possible. The former judge said he could not see how any such challenge would stop the clock on Britain’s withdrawal.
But he appeared to suggest that a legal challenge could lead to both sides agreeing to an extension of negotiations, potentially delaying the UK’S departure.
He said a delay could be a “blessing in disguise in the sense that it may permit all the parties on both sides to say ‘well of course we disapprove of any further delay but this is a spanner in the works which people didn’t anticipate, we have now got an extra year or maybe longer’”.
The Government was forced to clarify its Brexit strategy yesterday after Brandon Lewis, the immigration minister, signalled it may be ready to accept the continued jurisdiction of the ECJ.
Downing Street later stressed “the jurisdiction of the European Court of Justice will end” after a two-year transition period.
It came as a senior German MEP accused Brussels of “insulting an entire nation” by demanding that Britain should say how much it will pay towards the Brexit divorce bill.
Hans-olaf Henkel said: “If you go into a shop you don’t name a price without knowing what you are going to get. I think if your Prime Minister says we will fulfil our financial obligations that should be enough. If a French Commissioner doesn’t accept it I think it’s insulting an entire nation.”
The leaders of Northern Ireland’s political parties were in Downing Street yesterday trying to find a way to revive the province’s power-sharing executive, which collapsed earlier this year. Disagreements between Unionists and republicans are nothing new, but the whole process has been complicated by the Brexit vote and uncertainty over the future relationship between the UK and Ireland.
Until a few weeks ago, this seemed to be one of the less complex areas to sort out. Neither side wants a hard border between the North and the Republic, which were part of a common travel area long before both joined the Common Market in 1973. The difficulty is that Ireland will stay in the EU when the UK leaves, and the border will be the only land frontier between Britain and Europe.
The EU negotiators placed sorting out the Irish question as one of the key upfront points to be agreed before moving on to trade talks. Yet it cannot be resolved until discussions advance from the current trench warfare. There is more than a whiff of the sensitive issue of Northern Ireland being used to exert pressure on London, which is unacceptable. So is the attempt to drive a wedge between the province and the mainland by effectively putting a customs border in the Irish Sea.
Leo Varadkar, Ireland’s prime minister, has threatened to block progress in the talks unless the UK gives a formal written guarantee that there will be no hard border with the North. This is an odd demand, since Ireland stands to lose most from “no deal” and Britain does not want such a border. The Government should make that clear again. If one goes up, it will be the EU’S doing, not the UK’S.