David Davis is urging Brussels to “move swiftly” on Brexit talks ahead of the Government unveiling a raft of papers on the UK’s negotiating goals.
The Brexit Secretary will this week set out the Government’s positions on services, goods and the ending of the “direct jurisdiction” of the European Court of Justice (ECJ) – something which has proved a stumbling block in negotiations so far.
The papers – coming after similar documents on future customs arrangements and the Irish border question – are designed to ramp up pressure on Brussels to move on to the second stage of talks on securing a UK/EU free trade deal.
Reports from the EU this week suggested moving to “phase two” might be delayed until December, with the German elections in September potentially altering the approach of the bloc’s most powerful member.
Davis wrote: “At the start of these negotiations, both sides agreed that the aim was to make progress on four key areas: citizens’ rights, the financial settlement, Northern Ireland and Ireland, and broader separation issues.
“It was never the expectation that these would be settled by October, but simply that sufficient progress would have been made. And with the clock ticking, it wouldn’t be in either of our interests to run aspects of the negotiations twice. Both sides need to move swiftly on to discussing our future partnership, and we want that to happen after the European Council in October.
“While we are happy to negotiate and make progress on these issues, it is our long-term aim that ultimately many of these separation arrangements will not be necessary. We are seeking an ambitious free trade agreement, which provides for as tariff-free and barrier-free trade as possible. This would negate the need for separation arrangements in a number of areas.”
Lib Dem Brexit spokesperson Tom Brake MP said Davis was putting pressure on Brussels over the talks timetable to distract from mounting problems in the UK.
He said: “To be now, a couple of months down the line, trying to reopen the issue reeks of desperation at an approaching economic storm and a cabinet who don’t have a clue.
“Constant reports of cabinet spats show our government cannot even agree a position between themselves, let alone win concessions from EU negotiating teams in our country’s best interests.”
Prime Minister Theresa May made leaving the ECJ one of her Brexit red lines during her Lancaster House speech in January.
She said: “We will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.
“Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast.
“And those laws will be interpreted by judges not in Luxembourg but in courts across this country.
“Because we will not have truly left the European Union if we are not in control of our own laws.”
That position was borne out in the Government’s proposals for EU citizens’ rights after Brexit, which confirmed the ECJ would not offer legal protection for those affected.
Brussels wants the ECJ to keep its role, and today Davis seemed to water down the UK’s position slightly by saying there must be an “end to the direct jurisdiction” to the court.
He wrote: “It is vital that there are clear mechanisms to manage any disputes between the UK and the EU over the interpretation of the agreements we strike, including on trade and citizens’ rights.
“While we believe this will likely require a new and unique solution, our paper will examine a number of precedents. There is a common theme with all these examples — none of them involves the direct jurisdiction of the Court of Justice outside the EU.
“So, we’re not being dogmatic in our approach but building on existing precedents to find a solution. Ultimately, the key question here is how we fairly consider and solve disputes for both sides.”
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Meanwhile, Sir Paul Jenkins, who was the Government’s most senior legal official for eight years until 2014, said Britain would have to replicate EU rules and submit to the ECJ “in all but name” if it wants to remove the need for hard borders with Ireland.
“If the UK is to be part of something close enough to a customs union or the single market to remove the need for hard borders, it will only work if the rules are identical to the EU’s own internal rules,” Sir Paul told the Observer.
“Not only must they be the same but there must be consistent policing of those rules. If Theresa May’s red line means we cannot be tied to the ECJ, the Brexit treaty will need to provide a parallel policing system.
“That may be a new court but, in reality, any new court will have to follow what the ECJ says about the EU’s own rules, otherwise the new system won’t work. So, never mind Theresa May’s foolish red line; we will have the ECJ in all but name.”