‘Judicial imperialism’ Ex EU judge slams bloc for demanding ITS court oversees Brexit deal – Express.co.uk
But he also had some harsh words for the British side, saying the confusion over its actual negotiating position is harming the process and urging UK politicians to consider EEA membership as a transitional measure.
The respected former judge made his remarks after Theresa May unveiled a “fair and generous” offer on EU citizens’ rights after Brexit which would allow all three million in the UK to apply for permanent residence.
One of the sticking points in the early stages of the divorce talks has been about who should oversee the implementation of such a deal, with eurocrats insisting it must be their in-house court.
But the PM has said continued ECJ oversight is a red line and made that clear again in her position paper published yesterday, raising the prospect of a neutral tribunal being set up to police the divorce settlement.
And today she found an unlikely ally in Belgian former judge Mr Dehousse, who pointed out that Brussels would be unlikely to accept the jurisdiction of the UK Supreme Court over the lives of British expats on the continent.
Writing for the respected Egmont Institute think tank, he said: “Having the ECJ dealing with the implementation of this agreement is for the UK worse than the status quo and looks a lot like judicial imperialism.
“Additionally, this is far from the general philosophy of Article 50. Exit means exit – for both sides of the negotiation. The ECJ topic is a good example of what is going wrong in this negotiation. All this could finally produce a fine legal mess.”
Mr Dehousse predicted that at least four separate deals would emerge from the Brexit talks, all of which will need to be subject to some form of independent judicial oversight.
The first of these will be the divorce settlement itself – settled in phase one of the negotiations with Brussels – which will agree future citizens’ rights, a UK financial settlement and the Irish border situation.
Secondly there will be a future trade deal between the UK and EU, where the former judge says Britain will have to accept some form of ECJ involvement if it wants deep and meaningful access to the Single Market.
Thirdly, given the two-year time constraints placed by Article 50 and the confused domestic British political situation, there will be a need to strike a transitional deal to avoid a cliff-edge scenario.
Here Mr Dehousse raises the possibility of Britain joining the EEA for a short period – known as the Norway model – which would require a temporary compromise on freedom of movement.
And finally there will be any number of other deals struck on issues as varied as security and defence to higher education and nuclear cooperation, all of which will need to be policed.
Mr Dehousse wrote: “Each time there is a need to define a system of disputes settlement. The more the UK wastes time to define a clear position, the more it will have to accept a known model, because there simply won’t be time any more to define others.
“Time is becoming an essential factor, because many precious months have already been lost by the UK side, and essential decisions not yet been taken.”
He added: “Going on like this, by the way, invisibly strengthens the hard Brexiteers’ hand because it progressively closes, just for technical reasons, the door to any kind of deal.”
The former judge said the entire direction of the negotiation “all turns around one precise question that no one wants to answer precisely” – namely whether Mrs May’s hard Brexit stance still stands.
And in a blunt warning to the UK, he concluded: It is now high time that the UK political classes accept that one cannot have one’s (single market) cake and eat it.
“They say they want a deal but their behaviour in fact threatens it. They must bite the bullet, and finally provide a precise direction. Otherwise the economic and social costs will mount rapidly, and first of all for the British people.”