EU refuses to let Canada act as an independent Brexit monitor
British offer of an impartial arbitrator fails as Brussels claims it is tied to its own commission and courts
BRITISH negotiators offered to set up an ombudsman to independently monitor any potential breaches of the UKEU divorce agreement but were turned down by EU negotiators, The Sunday Telegraph can reveal.
The British offer of a body chaired by a judge from an impartial third country, such as Canada, was among the practical solutions that UK negotiators presented when discussing how to protect EU citizens’ rights after Brexit during negotiations last week.
But it was rejected by Brussels to comply with the demand that the divorce agreement between the EU and the UK be monitored by the European Commission, backed by the European Court of Justice (ECJ) – a position Britain says is wholly unacceptable. The idea of an independent commission was suggested by the UK in a spirit compromise, and in recognition of Europe’s fears that it might try to move the goalposts on the rights of the three million EU citizens in Britain after Brexit.
The initial rejection of the British offer has exposed a key flaw in the Brexit negotiating process – namely the inflexibility of the legal mandate which has been handed to Michel Barnier, the EU’s chief Brexit negotiator, by the 27 other EU member states.
Even those EU negotiators who wanted to discuss the UK proposal in working groups last week were held back by the knowledge that agreeing in principle to such a confidence-building measure could prejudice the EU’s own red line on the primacy of the ECJ and European Union law.
“We understand their position, but the problem is that to make progress both sides need to move together, and the current process just doesn’t work,” said a frustrated senior UK negotiator.
“If the EU 27 cannot move in small steps, then there is no reason our side should either.”
The structural flaw helped to explain the deadlock on many issues in the talks last week in which both sides essentially scoped out the areas of agreement and disagreement, while negotiators at a lower level mooted some possible solutions.
On some minor issues, such as voting rights and how to treat workers posted to the UK by EU companies there was progress, but on substantive question of the legal enforcement of the agreement the impasse was overwhelming.
The next phase of talks scheduled for the week of August 28 will require the two sides to move towards compromises, something which looks unlikely unless Mr Barnier can forge agreement from 27 EU members states about where he can show flexibility.
At present the link between Mr Barnier and the member states is via a special Brexit Working Group, led by Didier Seeuws, the chief Brexit adviser of Donald Tusk, the president of the European Council.
There are internal question marks over whether the working group is sufficiently nimble to enable negotiations to proceed with adequate speed. Mr Barnier will brief EU ambassadors on Thursday on last week’s talks so that member states can report back to their capitals. Both David Davis, the Secretary of State for Exiting the European Union, and Mr Barnier agreed at last week’s post-talks press conference that “incremental steps” would not be sufficient if the two sides were to make progress, reflecting jointly held concerns over the process.
Brussels has said that “sufficient progress” must be made on the financial settlement, Northern Ireland and citizens’ rights to move into the next phase of negotiations on trade and future relations, hopefully in October.
With neither the UK nor the EU prepared to subordinate their top courts to the jurisdiction of any other, the question remains over how to settle disputes when they have reached the apex of both legal systems. Mr Barnier hinted this week that the EU might accept the so-called “Norway arrangement”, where countries from the EEA are independent of the ECJ but effectively take instruction from the EU’s highest court in agreeing to adopt its law.
Janet Daley: Page 16