The EU published its draft Brexit withdrawal treaty this week amid escalating confusion about the role of the European Court of Justice (ECJ), clamour over the transition period, a potentially game-changing move by the Labour Party on the customs union issue and news that the Scottish Government will publish its own Brexit Bill.
Chief EU negotiator Michel Barnier pre-empted publication of the 120-page draft treaty with the promise that its 168 paragraphs would contain no surprises. However, the draft treaty, drawn up by the other 27 EU member states, gives the ECJ jurisdiction over any treaty disputes once Britain leaves.
This position conflicts with Prime Minister Theresa May’s stated view that the ECJ should have no jurisdiction over Britain after the post-Brexit transition period expires.
Senior judges including Lady Hale, President of the Supreme Court, have identified the future role of the ECJ as a key concern, repeatedly calling on the government to provide more clarity.
Meanwhile, Barnier warned there were ‘significant areas of disagreement’ on when the transition period will end. Speaking in Brussels this week, he said the EU wanted it to end on 31 December 2020 but the UK has not yet specified a date and apparently wants it to be ‘open-ended’.
The draft treaty also contains the option to keep Northern Ireland in the single market and customs union.
Labour Leader Jeremy Corbyn staked a claim to the Brexit middle ground in a speech this week, signalling support for British membership of a customs union with the EU. He said Labour would seek to negotiate a new EU-UK customs union ‘to avoid the imposition of tariffs on goods traded within Europe, and to help solve the Brexit conundrum at the Irish border’.
North of the border, the Scottish Government published its UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in the Holyrood Parliament. It is similar to Westminster’s EU Withdrawal Bill, currently passing through Committee Stage in the Lords, but focuses on devolved matters such as health, agriculture and economic development and would be used if MSPs reject the Westminster Bill. Wales may follow suit.
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