European court may prove sticking point as round two begins
PM’s vow to take UK out of jurisdiction will overshadow talks agenda of citizens’ rights, financial claims and Irish border
Fights over the European court of justice (ECJ) are expected to overshadow the second round of Brexit talks as both sides brace for a clash that could hamper progress on citizenship and money.
David Davis, the Brexit secretary, will meet the European Union’s chief negotiator Michel Barnier this morning at the European commission headquarters to set up the second round of formal talks.
Over three and a half days, the two sides will hold detailed discussions on all aspects of the divorce treaty: protecting citizens’ rights, money and the Irish border. They will also discuss how to ensure a smooth transition on Brexit day – a set of topics known as “other separation issues”, where the ECJ looms large.
Brussels wants to ensure that, when Britain leaves the EU on 29 March 2019, individuals and companies do not fall into a legal black hole; for example, goods in transit or ongoing British court cases at the ECJ. Negotiators aim to guarantee, for example, that a consignment of car parts ordered before Brexit day could still be subject to EU product rules – and the ECJ – even if it reached its intended destination after Britain has left the EU.
Defining the role of the ECJ will be one of the most sensitive issues of the Brexit divorce treaty, as Theresa May has vowed to take the UK out of the jurisdiction of the Luxembourg court. She also wants to ensure that any disputes over EU citizens’ rights are settled by British courts, not judges in Luxembourg.
Despite concern in Westminster that the government’s opposition to a future role for the court has limited its room for manoeuvre, three position papers published last week recommitted Davis to reject any role for the ECJ after Brexit.
European diplomats fear that the UK is continuing to tie itself to an uncompromising position and are expecting it to push back strongly on the court, as both sides map out their differences in detail.
Davis is expected to call for both sides to get down to business as he arrives for the second round. Whitehall sources say he will set out citizens’ rights as his personal priority for the round, with a push to lift uncertainty for the 3 million EU citizens living in the UK and 1 million Britons living in other EU countries.
“We’ll be getting into the real substance,” Davis is expected to say. “Protecting the rights of all our citizens is the priority for me going into this round and I’m clear that it’s something we must make real progress on.”
On the eve of the talks, sources in Brussels were also more optimistic about avoiding a total breakdown in negotiations after the UK formally recognised financial obligations to the EU in a written statement to parliament last week.
The prime minister had made similar pronouncements before, but the statement to MPs and peers carried weight in Brussels. Diplomats had feared a collapse in talks after Boris Johnson, the foreign secretary, caused confusion with his statement that the EU should “go whistle” for the “extortionate” sums demanded.
Discussions on the politically charged issue of the Irish border issue will be led by Sabine Weyand, Barnier’s deputy, and Oliver Robbins, the permanent secretary of the Department for Exiting the EU. They will meet regularly through the week, with the aim of keeping the talks on track.
But this next round of talks is unlikely to be definitive: EU officials expect to map out their differences with the British rather than strike any final agreements.
Further talks are expected in late August and the autumn before a Brussels summit in late October, where EU leaders will decide whether the UK has made “sufficient progress” on the Brexit divorce to allow trade talks to go ahead.
Chris Patten, the former Tory chairman, warned yesterday that the Brexit deadlock represented one of the bleakest moments in British post-war history.
“I think it’s the worst time since Suez, though maybe even worse than that because Suez was the end of an era, the end of our colonial aspirations,” he told ITV’s Peston on Sunday. “The European Union was our replacement for that colonial role and thanks to the calamitous errors of two Conservative prime ministers in a row, who thought they could manage the unmanageable – the English nationalist right wing of the Conservative party – we’re in this hell of a mess.”