Thread by @GeorgePeretzQC

The Polish rule of law crisis obviously matters. But I don’t think this article by @SBarrettBar offers much help in understanding it or what (if any) U.K. “angle” to it there might be.

https://twitter.com/SBarrettBar/status/1446747365235470336

The article talks about the “Brexit deal” in a loose way: but it is (and to be fair makes clear when you read it thoroughly) that it’s talking about the TCA. So forget any thought that it might be relevant to the current government’s attacks on the NI Protocol that it negotiated.

The point being made is that Article 693 of the TCA (minor gripe: the piece uses the old numbering not the now correct one) allows either side to suspend the part of the TCA dealing with judicial cooperation in criminal matters.

It can do so “in response to serious and systemic deficiencies within [the other] Party as regards the protection of fundamental rights or the principle of the rule of law”.

As far as the U.K. is concerned this is only interesting if we want to suspend eg extradition arrangements. If we don’t (and we probably don’t) this is irrelevant to anything practical. (The article states that practicality is a political question which it doesn’t want to touch.)

There *is* a strictly legal question which the article assumes has an obvious answer but actually doesn’t, when you think about it.

*From the point of view of this part of the TCA* (the correct perspective: thinking about eg extradition) is there a “serious and systemic” breakdown of rule of law *in the EU* because of the ruling of a “constitutional court” of 1/27 Member States?

The article attempts to link the ruling of the Polish “constitutional court” to the controversial ruling of the German constitutional court earlier this year. But they very different as this article explains (sorry only in German).

https://twitter.com/verfassungsblog/status/1447172127094972420

One problem here is that any suggestion that the U.K. might be able to run any argument to escape its obligations under the WA (or TCA) generates excitement. But any such excitement here has no solid basis.