A Messy Divorce
A Deeply Rooted Impediment to an Amicable Brexit

Passions are running high during Brexit talks this week, with reports of Brussels demanding a stiff €100 billion bill and accusations from London that the EU has been “bullying” the UK and interfering in its coming elections. According to Stephen Booth at Open Europe, however, the public spat has obscured the biggest stumbling block to a deal. As both sides seek to guarantee mutual residency rights for their nationals, Brussels is insisting that those rights be enforceable by the EU Court of Justice:

The EU is demanding that the guarantee be applied under EU law and that the EU’s Court of Justice should therefore continue to have jurisdiction over how these rights are applied in the UK after Brexit. At yesterday’s press conference, [Michel] Barnier said:

“Whenever EU law is involved on citizens and [the] financial settlement we will have to go and depend on the Court of Justice of the European Union. Otherwise the rights defined by the agreement for citizens are just an illusion, a promise.”

In effect, Barnier is saying that the UK cannot be trusted, either to respect any promises it makes under the withdrawal agreement or to respect the rights of EU nationals under its own legal system. It seemingly wants any individual to be able to take a case to the ECJ. No British Prime Minister could accept the EU’s demands for extra-territorial jurisdiction.

England has a deeply rooted historical tradition of resistance to outside judicial authority—just think of the 14th-century praemunire laws, later enforced by Henry VIII during the Reformation to prohibit papal jurisdiction over the monarchy. For many Brexit supporters, getting out from under laws they don’t control was the whole point of leaving the EU, and maintaining the ECJ’s extensive legal jurisdiction in a post-Brexit settlement runs directly counter to that goal.

Brussels is nonetheless holding its ground on the issue, insisting on “iron-clad guarantees” for EU citizens and threatening to oppose any deal without those protections. But the EU may be underestimating the potential that the U.K. simply won’t swallow this—and with Theresa May likely to strengthen her negotiating hand after the June 8 elections, her appetite for compromise is not likely to improve.

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