The EU’s rule of law crisis lets Britain change the Brexit deal

Following Germany’s example, courts in Poland have rejected the supremacy of EU law. That is the principle that, if you join the EU, you give away part of your sovereignty to it and you have to do what the European Court says. I have written before about the precedent set in Germany. Both states now say that their constitution trumps EU law and the rulings of the EU courts. Legally speaking, this declaration is simply untrue – as should be known to anybody who read and signed the Lisbon Treaty, joining the EU.

The United Kingdom always upheld this legal truth. If we wanted our sovereignty back, we had to leave the EU. That was a political choice and isn’t therefore something I write about.

It is fair to also highlight that the EU is far from blameless. It wrongly asserts, quite often, that it can sue the UK. It itself violated the rule of law when it was upset about having poorly implemented its vaccine programme.

Now that we’ve left, does any of this matter to us? I think it does. In between Christmas and New Year, I read the EU/UK treaty, as you do. Being a melodramatic fellow, I distinctly remember getting to page 356 and saying out loud, ‘oh, that’s curious’.

On page 356 you find Article LAW.OTHER.137: Suspension. The article numbering is irritating even to lawyers. But what this article says is:

“‘In the event of serious and systemic deficiencies within one Party as regards the protection of fundamental rights or the principle of the rule of law, the other Party may suspend this Part or Titles thereof, by written notification through diplomatic channels. Such notification shall specify the serious and systemic deficiencies on which the suspension is based.’

This is why we are involved. This particular chunk of the Brexit deal can be suspended in the event of ‘serious and systemic deficiencies’ in the EU that harm the rule of law. With both Poland and Germany now in open defiance against the EU legal framework, the rule of law crisis in the EU is now both serious and systemic. And even if the EU is right and Poland wrong, it’s still a serious rule of law breach.

That means the UK can, if it wants to, suspend either all, or bits of, Part 3 of the Treaty – the part that deals with law enforcement and judicial cooperation. It is quite a large part of the treaty.

The UK government now has a choice about whether or not to invoke this article and suspend bits of the treaty. That is an extensive power, and the reason for my dramatic outburst when I read the treaty. We are in dispute about the backstop in Northern Ireland, and we now have some leverage. It is not normal really to be able to suspend treaties over rule of law concerns. But regardless of how normal the power is – it is there.

Will the UK government act and suspend the treaty? I don’t know. But it is fundamentally bizarre that the EU is in this position and so soon after it signed the treaty. Given the oddity of the clause, it is my opinion that the party who wanted this article in in the first place was probably the EU.

Proving that there is a rule of law crisis which is serious and systemic is not hard. Indeed, and to its credit, the European Court of Justice keeps telling the world that Poland is in breach. It is less vocal on Germany. But it is not possible, as law, to distinguish the two cases.

Whatever the outcome it is clear to me now that Lord Frost has legal power under the treaty to suspend either all, or part, of Title 3. A point he may wish to make to the EU as they discuss how to improve things in Northern Ireland – but that is his political choice.