The German Courts have just made Brexit talks easier

31 May 2020

12:52 AM

31 May 2020

12:52 AM

The old division of leaver and remainer will not serve the best interests of the country as we go forward. That truth might be emotionally hard to accept, but it will remain true. We need now to adapt to the real challenges the future holds.

One of the most pressing is our future relationship with the EU – and that is being negotiated again on Monday.

I have written on how we should support the EU given the recent judgment of the German Constitutional Court on the question of the European Central Bank bond scheme. The case is complicated and while I enjoy a good legal fight over complex financial products, I appreciate many do not. But, as is often the case in law, the reason it is important has nothing to do with its subject matter.

What matters about the German Court’s action is simply that, for the first time ever in the history of the EU, a national court has refused to submit to the European Court of Justice.

When the UK voted to leave the EU, it was always theoretically possible for Parliament to do so by passing an Act of Parliament. But the idea of doing so was unthinkable at the time; the UK began its process of leaving, not under our law, but under EU law. What the German Court has done is the constitutional equivalent of us unilaterally leaving. Just because the issue is over a seemingly dull topic, it must not be underestimated.

On Monday, David Frost will speak with Michel Barnier in the next round of negotiations which the German Court has made irrelevant and potentially impossible.

There are 26 other member states, each of whom has a constitution and a highest court. Any one of those 26 could now copy Germany and declare itself supreme over EU law. Perhaps more troublingly, any one of those 26 legislatures or executives (parliaments or governments) could do the same.

This is a loose thread in a tapestry and if anyone pulls too hard, the whole thing is put at risk of collapse.

It will take months for the Commission to react to the problem – although von der Leyen is making the right noises and personal criticism of her seems to me to be wholly unfounded. But that ignores the fact there are real and practical problems that arise for many – right now.

Lawyers who advise clients on these issues will be finding the task of giving future certainty extremely challenging, to say the least. The UK is bound by EU law for 6 more months, and already EU control of the UK coronavirus recovery scheme is causing real difficulties for British business.

But on a fundamental level, when David Frost asks ‘Michel, how can you demand a sovereign UK must remain subject to EU law when your own member states are not?’, he will ask a question to which there is no answer.

The confusion that will now engulf the EU is one where we must again stand in solidarity with international law. But equally, it is one where to be in the best position to give our support, the UK must have had a clean break.

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