European court could veto terms of Brexit if the legality of the deal is challenged, former EU judge suggests

Anti-Brexit protestors wave EU and Union flags outside the Houses of Parliament
Anti-Brexit protesters wave EU and Union flags outside the Houses of Parliament Credit: Peter Nicholls /Reuters

Brexit could be delayed for a year if Remainers appeal to the European Court of Justice (ECJ), a former EU judge has suggested as he claimed such a scenario could be a "blessing in disguise".

Sir Konrad Schiemann, who previously sat at the Court of Justice of the European Union (CJEU) of which the ECJ is a part, suggested the legality of the UK’s Brexit deal could be challenged by a business or an individual at home or abroad.

Such a legal challenge could be a “spanner in the works”, he said, and could result in “an extra year or maybe longer” to hammer out an improved deal.

David Jones, the former Brexit minister, warned such a legal challenge could leave the UK in a “period of limbo” and said it demonstrated the importance of Britain being prepared to walk away without a deal.

It came after Theresa May secured Cabinet backing, including from Boris Johnson and Michael Gove, for an increased Brexit bill offer above £20billion if the EU is prepared to make concessions in return.

But her plan to present Brussels with a more generous divorce settlement suffered a blow as the Irish government said more money would not necessarily guarantee the start of trade talks.

Sir Konrad Schiemann
Sir Konrad Schiemann (left) Credit: Ian Jones for The Telegraph

Simon Coveney, Ireland's new foreign minister, said that his country is prepared to veto attempts to unblock negotiations unless Britain agrees to maintain an open border between Ireland and Northern Ireland.

However Arlene Foster, the leader of the Democratic Unionist Party, accused Brussels of using Northern Ireland's future as a "bargaining chip" in negotiations and said Ireland is being "reckless" with the peace process.

The two year period of negotiations between Brussels and Britain which Article 50 allows for is due to conclude in March 2019.

But Sir Konrad appeared to suggest the UK’s withdrawal from the bloc could be delayed if the deal is challenged in the courts.

Mr Jones said: “I think he is right. I think it could be subject to a challenge and the ECJ probably would have jurisdiction and could veto the agreement.”

Mr Jones warned such a challenge could leave the UK in a “period of limbo” with “no certainty for business” and that such a delay would simply be “kicking the can down the road”.

Sir Konrad told the House of Lords EU Justice sub-committee that he did not know how likely a referral to the ECJ was, just that he believed it to be possible.

He said: “I can see circumstances in which a company would want to bring through its national court, say France, a question to the European Court of Justice as to whether this agreement, which either has been concluded or is on the point of being concluded, is a lawful one.”

The former judge who served on the CJEU between 2004 and 2012 said he could not see how any such challenge would stop the clock on Britain’s withdrawal.

Theresa May, the Prime Minister
Theresa May, the Prime Minister Credit: Geert Vanden Wingaert/AP

But he appeared to suggest that a legal challenge could lead to both sides agreeing to an extension of negotiations, potentially delaying the UK’s departure.

He said a delay could be a “blessing in disguise in the sense that it may permit all the parties on both sides to say ‘well of course we disapprove of any further delay but this is a spanner in the works which people didn’t anticipate, we have now got an extra year or maybe longer’”.

The Government was forced to clarify its Brexit strategy after Brandon Lewis, the Immigration Minister, signalled it may be ready to accept the continued jurisdiction of the ECJ.

Downing Street later stressed “the jurisdiction of the European Court of Justice will end" after a two year transition period.

It came as Hans-Olaf Henkel, a German MEP and leading business figure, blamed the EU for Brexit.

He said: "You joined an EU of sovereign nations, and suddenly someone decided to make a united states of Europe out of it. It is Brussels who changed the rules of the game, and you reacted."

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