“UK offers climbdown on European courts deciding cross-border cases” reads a Guardian headline this morning. This is in response to a government paper released today that sets out the need for a smooth transition from what we have now as a member of the EU and what a post-Brexit judicial world will look like. This follows a trend: everything the government is putting forth this summer on Brexit is about “transition” and the need for it.
“A judgment obtained in one country can be recognised and enforced in another. For example, with more and more families living across borders, we need to make absolutely sure that if and when problems arise they can be reassured that cross-border laws will apply to them in a fair and sensible way.”
What is happening now, it seems to me, is a slow movement towards where the government seems inevitably headed: a transitional period of indeterminate length in which Britain will be in the customs union and very likely the single market, and probably paying a high monetary price to do so. The idea seems to be have a measured climbdown on the Theresa May’s Lancaster House speech (hard to believe that was less than a year ago now), spread over as much time as possible, as opposed to having to admit in one go that hard Brexit is not going ahead as announced.
The promise to be removed from the aegis of the ECJ completely was always a foolish one. It is very difficult to see any scenario, even ones that would unfold under the most ultra forms of Brexit, in which this would strictly speaking be the case. If you want to trade within the European Union, you will encounter the ECJ somewhere along the way – stating that British businesses looking to trade on the continent wouldn’t have to do this was just false. So now, it is let it slip that, yes, judgements obtained elsewhere may just have to apply in the UK. Put it out in silly season. And hope no one gets too upset about it all.
The interesting question, of course, is will it work? What I mean by that is will the Conservative Party be able to weather the fact that they have promised so much in terms of Brexit and what it will bring, most of which is undeliverable? I don’t know, but the answer is: probably, yes. Because, let us not forget, Corbyn is a terrible leader of the opposition, and has blown it on Brexit for the sake of doing better in the 2017 general election than expected. He isn’t trying now to flag up the Tory climbdown on things like the ECJ, or pointed out the problems inherent in their customs union proposals for two reasons: one, to do so would expose his own nonsensical position on Brexit and two, he just really doesn’t care very much about opposing the Tories on anything Brexit related anyway and never has. And given Brexit is pretty much all the government is going to be doing for the next two years at least, that means the Tories essentially have no sizable parliamentary opposition on any of this awaiting them. The public might notice what’s going on – then again, they very well might not.
Paul W says
I’ll stick with my prediction that the UK will rejoin the European Free Trade Association and use the EFTA court to mediate its relationship with the EU. Yes, the UK and EU could set up a special disputes tribunal, but why do so when the EFTA court is there for a similar purpose? Meantime, I agree with you about Jeremy Corbyn’s stance on Brexit. The Labour party will most likely stick with its Schrodinger’s cat of a policy on Brexit – after all, the policy only needs to hold together for eighteen months. Easy peasy. Maybe.
The problem is the disjunction between a transition and a destination. The Brexiter destination thus far has been fantasy land and so long as they can live each in their own dreams Brexiters can sort of find common cause.
The trouble here is that the EU cannot accept a transition unless there is clarity on the destination,but .Brexiters who might agree on transitional arrangements cannot agree on a destination. Meanwhile the economy slides into stagnation and worse beckons.
Labour may be a rubbishy opposition, but if there is any Conservative dissent, Labour will find an excuse to defeat the government, whether or not this means voting for ultra-Brexit or minimal Brexit. Corbyn is banking on an almighty mess, during which the keys to no. 10 fall into his lap. What happens after that is I fear yet more fantasy stuff.
The omens are not good.
The trouble is that the EU’s aim is to flim-flam for as long as possible in the hope that if they can fritter away the time until it’s too late to get any kind of deal, transitional or permanent, the UK will back down and remain in the EU. They are playing chicken and they think the UK will swerve a the last minute. It worked with Greece, after all: they had a referendum, the EU held its ground, and the government caved and ignored the referendum.
M: If the EU were doing that, though it is not because that is not how the EU works, it is getting every possible help from the UK government. In over 9 months before activating article 50 the government achieves little in preparation, has a damaging and time wasting election and is still unclear or should I say flim-flamming.
With 27 governments and the EU parliament to respond to, Michel Barnier and his team have little margin for movement and are more or less constrained to take UK statements at face value, so they work on the assumption that May means what she says; i.e. out of the Single Market, out of the customs union and no recognition of the CJEU. But then from the UK come so many contradictory statements which look to be intentionally obtuse. Out of the Single Market, border controls are inevitable. Any acceptance of common standards implies a recognition of the CJEU that interprets how these standards work in practice.
Although both sides have agreed that the borders of NI and Gibraltar, the status of EU citizens in the UK and UK citizens in the EU are of prime importance, it is the UK that is floundering and lacking realism.
Perhaps there is a slow movement towards realism, but there is no equivalence between the two sides for it is only one side that has been living a fantasy.
Out of the Single Market, border controls are inevitable.
Then how are there countries in the Schengen area, but not in the EU?
Any acceptance of common standards implies a recognition of the CJEU that interprets how these standards work in practice
No it doesn’t; I expect we’ll end up with the EFTA court doing that job.
it is only one side that has been living a fantasy
No, it’s just that they’ve both been living different fantasies: the EU’s fantasy (which it’s been living ever since Cameron’s attempted renegotiation) is that when it comes right down to it the UK might not actually leave.
The non EU countries in Schengen are also in the Single Market (though Switzerland rather messily so). Your point is irrelevant, the limits of the Single Market require checks that what passes through is authorised and compatible with the Single Market.
The EFTA court (just over the road from the Court of Justice in Luxembourg) follows CJEU rulings. Yes it is a possibility, but all EFTA members are integrated into the Single Market, accepting free movement of goods and workers, so without this I cannot see how it would function if it were not.
There is no EU fantasy because the EU is simply a collection of states each with its own views. I am not aware of any of the 27 member states harbouring the fantasy you refer to. The 27 states agree a position, for that to change there has to be a new agreement. For any future relationship between the EU and the UK this agreement would have to be unanimous. You might not like it, but there is no prospect that a member state would accept that its citizens have a second class status..
Well, the EU can’t stop us joining EFTA on leaving, so I expect, if the EU doesn’t get its act together and offer us a better deal in the next year or so, that is what we’ll do.