Brexit talks stalled at launch; issues with European Court’s authority in Britain

European Council. Brussels, June 2017. UK national briefing by PM Theresa May.

Last Monday, the British PM Theresa May directly bought for £1 + 0.5 billion the Parliamentary votes, of the ten (10) Irish aggressively Eurosceptic, extreme right-wing, ultra conservative evangelical Protestant deputies of the Democratic Unionist Party (DUP). The Tories and the DUP had to ritually sign this controversial pact, obviously because they don’t trust each other. The Tory chief whip Gavin Williamson and his DUP equivalent Jeffrey Donaldson signed the document at 10 Downing Street early last Monday morning.

An open verbal political agreement on principles wasn’t enough for this violation of Britain’s traditionally democratic political order. It’s the first time that a British political party, after losing its Parliamentary majority in a legislative election, uses government money – is peoples’ taxes – to buy from the first seller a troublesome majority in the House of Commons. The terms of the deal firstly and primarily foresee, that the 10 DUP deputies against a £1 + 0.5bn payable in two years, will vote whatever Brexit legislation May is to introduce in Parliament.

Shamelessly buying votes

Unquestionably, this is an open provocation for May’s fellow Tory ‘remainers’. The 10 DUP deputies are well known aggressive Eurosceptics and will press towards a hard Brexit, exactly what the Tory ‘remainers’ are currently striving to avoid. Philip Hammond, the Chancellor of the Exchequer (minister for Finance) is a prominent member of this Tory group. The last issue of the respected conservative newspaper Sunday Times authentically reported that there are deliberations within the party, for Hammond to replace May as head of the government and the party.

It seems, however, that he prefers not to provoke a new turmoil in the British political scenery and will continue to work for an amicable Brexit from his current position. Unfortunately for him, the Tory-DUP pact now creates an extra obstacle in his efforts for a low cost divorce with the EU. The DUP will undoubtedly press for the hardest Brexit option, because of their aggressive anti-European convictions and their religious, political and social Puritanism.

Insisting on a vague offer

This is exactly what May must have had in mind last Monday morning, after concluding the agreement with the DUP. She surely felt that her hard Brexiteer stance was thus bolstered. So, the PM aired once more the same unacceptable proposal for the future of the Europeans, who will, after the Brexit, be caught living and working in the ‘wrong’ country. She had proposed so to the 27 EU leaders during the EU Council of Thursday 22 June. After they strongly criticized it, she had undertaken to offer clarifications on Monday. No changes could be detected though in Monday’s proposal. It’s worth noting that it’s about 3 million of mainland Europeans who live and work in Britain and more than one million Britons who reside in the mainland.

The first reaction came also on Monday morning from Michel Barnier, the chief EU negotiator of the Brexit. “EU goal on citizens rights: same level of protection as in European Union law. More ambition, clarity and guarantees needed than in today’s UK position,” he tweeted. As it turns out though, the issue is very complex, because it concerns not only the rights of those residing today in Britain but also the prospects of family unification, including kinsfolk living outside the EU. Another key issue is the time of residence needed in Britain for eligibility to apply for ‘permanent residency’ and the date that this right is to be cut-off. Not to forget also that Britain charges £ 3,000 for every such application, not counting most probable additional legal costs.

The crucial legal aspect

In all probability, a large number of cases will surely end up in the courtrooms. That’s why Barnier demanded the “same level of protection as in European Union law”. His insistence on that is based on the principle that the people who live and work in the ‘wrong’ country should have the same level of legal protection after the Brexit, as today. This can be secured only under the EU law and in the EU courts, which will continue to be all-powerful in Britain too until March 2019, when Brexit will be a reality.

After that date though, those people will be worse off if they lose ‘the same level of legal protection’ as they enjoy today, and that can be only achieved if the EU rules and courts continue to judge their cases. Since both sides have agreed that nobody should be in an inferior position because of the Brexit, then the EU rules and courts should continue to judge the cases of residence for mainland Europeans living and working in Britain even after March 2019.

Brussels will not back off

It’s rather obvious by now that Brussels will not back off from this position (after Brexit mainland Europeans living and working in Britain and the Brits in the mainland should have their legal issues concerning residency judged under the EU rules, applied by the European Court of Justice). However, this is easier said than done. It’s a very bitter pill for 10 Downing Street to swallow, because for many – many years after the Brexit, there will be litigations involving foreign people residing in Britain, who will have their cases judged in the EU by the European courts (Court of First Instance and the European Court) and the decisions be applicable in Britain.

Britain of course insists that, after the Brexit, the European courts are to no longer have any jurisdiction in the UK, even in legal cases concerning the residency of EU citizens. According to London, only the British courts must have the authority to judge such cases involving EU subjects, living and working there. It clearly emerges then that a major conflict of sovereignty arises with the Brexit, and this issue will be surely haunting the negations all along the next two years, even surpassing the issue of workers’ residency.

Sovereignty conflict

Coming, for example, to trade matters, jurisdiction and residency of agents, all these will be particularly complex to regulate. It’s a subject which will certainly be emerging time and time again and can block the negations process for months, even years. It may prove so complex and difficult to solve, so as at the end may finally oblige the two sides to reconsider the entire Brexit affair altogether. The seriousness of the situation was also underscored by David Davis, the British head of the Brexit negotiations team. He very characteristically said, that the European Court’s jurisdiction will be the issue of the summer. Clearly, he didn’t want to go any further on that, because of the administrative character of his mandate.

In conclusion, the very first major problem in the procedure of the Brexit negotiations seems to have developed into a real Gordian Knot, alas with no Alexander being around. In a matter of hours this affair has developed into a real dead end, emerging out of a subject which, on first reading, seemed rather easy to solve. One can imagine what the future may hold, when the real problems of money and trade will be on the negotiations table.