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“We will determine a fair settlement of the UK’s rights and obligations as a departing member state, in accordance with the law and in the spirit of the UK’s continuing partnership with the EU.” With these words, last June’s Conservative Manifesto prepared the ground for the Theresa May’s reported agreement over money in the Brexit negotiations.  The EU originally floated a sum of up to £100 billion.  The Government’s opening bid was roughly a tenth of it.

So the two sides of the table have somewhere in the middle.  As our columnist Henry Newman has pointed out, the payments will cover what the costs of membership would have been during any implementation or transition period, plus obligations as an EU member which we previously entered into.  This explains why Boris Johnson and Michael Gove back the compromise, and why most pro-Brexit Conservative MPs have greeted the news equably (though there is an insistence that no money is paid out until after a fully-fledged trade deal is reached).  No less committed a Brexiteer than Iain Duncan Smith has argued that, since payments will be spread out over many years if a trade deal is agreed, Britain will save up to £400 million over 40 years by leaving the EU.

ConservativeHome’s survey suggests that many party members will be very unhappy.  So may voters – although where they might transfer their support to is not obvious.  As the more pro-EU of the two main parties, it is reasonable to presume that Labour would be willing to shell out even more; UKIP is flat on its back and there is no convincing replacement.

The main early test of their view (local by-elections are an uneven indicator) will be the next clutch of opinion polls.  We will see what they bring – and, in particular, whether the big drop in net EU migration, announced yesterday, has the counter-effect of persuading the public that one of the purposes of the Brexit vote is already being achieved.

But if the negotiation about money now seems to be settled in principle, and the approach to Northern Ireland’s border is uncontroversial among Conservative Ministers and MPs, the same cannot be said of final matter in the pre-trade talks triptych: the role of the European Court of Justice.

If paying money to the EU is perhaps what gets voters going easiest, the scope of the ECJ has the same raw power when it comes to Tory MPs – and Ministers.  The Prime Minister has been able to win agreement on the former in the crucial Cabinet sub-committee on Brexit strategy and negotiations.  There is no agreed position yet on the latter.  The EU’s current position is that any cases concerning EU nationals which break new legal ground must still be referred to the ECJ after any implementation period ends.  While Number Ten is denying that the court will have any formal role, ConservativeHome understands the matter is not settled.  Four Ministers who backed Leave in the referendum sit on the committee: David Davis, Liam Fox, Michael Gove and Boris Johnson.

None of them are minded to allow the court jurisdiction post-transition.  So while money seizes headlines and the Irish border grabs attention, the main internal matter that the Government must resolve, before any agreement is reached to move on to trade talks, is ECJ jurisdiction.  Ending it post-implementation is a red line for this site – assuming, of course, that there’s any agreement in the first place.  If the EU offers an off-the-shelf Canada deal and no more, having none at all bar the bare minimums would have its attractions.

176 comments for: Brexit negotiations. The key issue now is the role of the ECJ.

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