The Chequers Cabinet conclusions – an assessment

Lawyers for Britain Chairman Martin Howe QC has prepared a Chequers Briefing Memo which assesses the details of the Chequers Statement from HM Government . Although the statement is brief and lacks much of the detail which is expected to be in the government’s White Paper to be published next week, some of his key conclusions are:-

  1. The Chequers proposals would involve the permanent continuation in the UK of all EU laws which relate to goods, their composition, their packaging, how they are tested etc etc in order to enable goods to cross the UK/EU border without controls. All goods manufactured in the UK for the UK domestic market, or imported from non-EU countries, would be permanently subject to these laws.
  2. There would be a general obligation to alter these laws in future whenever the EU alters its own laws, with a mechanism for Parliament to block such changes which is probably theoretical rather than practical.
  3. This would put the EU in a position to fashion its rules relating to goods so as to further the interests of continental producers against UK competitors, when we will have no right to vote on those rules.
  4. The obligation to follow the EU rulebook for goods would gravely impair our ability to conduct an independent trade policy. In particular, it will prevent us from including Mutual Recognition Agreements for goods in trade treaties and this is likely to destroy the prospect of successfully achieving meaningful agreements with some of the prime candidates such as the USA and Australia.
  5. The ECJ jurisdiction proposals would put us in the same position as Moldova, an applicant/supplicant state which is willing to accept binding ECJ rulings on the conformity of its laws with EU law as part of the preparations for its accession. Quite why this is thought to be a suitable model for a country which has left the EU and is the 5th largest economy in the world is unclear. The supremacy of the UK courts over laws in the UK would not be restored, contrary to the claim made in para 6(g) of the Chequers statement.
  6. The new “Facilitated Customs Arrangement” seeks to solve one of the problems of the NCP (collection of EU level tariffs with rebate system on goods destined for the UK market) by imposing on UK-destined goods the administrative burdens of a tracking system. This would (1) increase the likelihood of this system being found in breach of the national treatment principle in GATT Art.III, and (2) apparently extend yet further the timescale for implementation of this Heath Robinson system, locking the UK in the mean time into the EU’s common external tariff, preventing the electorate from benefiting from Brexit in time for the next General Election.
  7. However, there is no indication at least from what has been made public that the FCA has solved or alleviated any of the other problems of the NCP proposal. It is not clear how the problem of rules of origin controls on UK manufactured goods imported into the EU will be addressed in the absence of customs controls on the UK/EU border, or how this issue can be solved in compliance with WTO rules.
  8. These proposals will not be accepted by the EU since in their perception they amount to unacceptable “cherry picking” of the “benefits” of the single market. However the EU is unlikely to reject the UK’s position outright, but will instead keep the UK inside a “lobster pot” where it negotiates rather than prepaing for no-deal. When the negotiation time runs down, the EU will then demand huge last minute concessions in return for not taking away the transition period.
  9. These proposals therefore lead directly to a worst-of-all-worlds “Black Hole” Brexit where the UK is stuck permanently as a vassal state in the EU’s legal and regulatory tar-pit, still has to obey EU laws and ECJ rulings across vast areas, cannot develop an effective international trade policy or adapt our economy to take advantage of the freedoms of Brexit, and has lost its vote and treaty veto rights as an EU Member State.

Why we’re leaving the EU – and why the ECJ shouldn’t have jurisdiction over us after we leave

On 27 May 2018 at the XXVIII Congress of FIDE (Fédération Internationale pour le Droit Européen/International Federation for European Law) at Estoril, Portugal, Martin Howe QC, Chairman of Lawyers for Britain, took part in a panel on Brexit following the speech to the Congress by Michel Barnier, the EU’s Brexit negotiatior.

The full text of M. Barnier’s speech is available as a Commission press release and is reported on Bloomberg and Politico.

The Panel

Panel Chairman: Prof Vassilios Skouris,  Former President of the Court of Justice of the European Union

Lord (Jonathan) Mance,  Deputy President of the Supreme Court of the United Kingdom

James Wolffe QC, Lord Advocate of Scotland

Martin Howe QC, Chairman of Lawyers for Britain

Sir Jonathan Faull, Chair of European Public Affairs at the Brunswick Group, Former Director General of the European Commission

Kieran Bradley, Special Adviser to the CJEU on Brexit Continue reading “Why we’re leaving the EU – and why the ECJ shouldn’t have jurisdiction over us after we leave”

Staying in the EU Customs Union after exit

“The” Customs Union, “a” Customs Union, and aligning tariffs with the Customs Union

The idea of the UK staying in the European Union’s Customs Union after we exit from the EU has once again risen into political discourse.

This idea is expressed in different ways. One way is for the UK to stay “in” the European Union’s existing Customs Union. Another way is for the UK and the EU to join together to form “a” customs union between them. Quite what the practical difference is between these two formulae is not clear. A third way it is expressed is for the UK to maintain its external tariffs in alignment with EU tariffs. Vague suggestions are made that this might only be “partial”, ie covering some sectors of goods but not others.

But all these formulae come to the same thing. They all involve us giving up our right to set and decide the tariffs which are applied to goods entering the UK from the rest of the world. But it is not just about tariffs. Customs also operate a vast range of non-tariff controls on goods, all the way from health and other standards controls on food to, for example, safety of children’s toys. In order to operate any of the variously desribed schemes, the UK would also have to apply this vast range of EU mandated legislation as well.
Continue reading “Staying in the EU Customs Union after exit”

EU citizens’ rights and ECJ references

We must not submit to an unequal treaty, nor be taken in by “voluntary” referrals

By Martin Howe QC, 27 November 2017

When we leave the European Union on 29th March 2019, we shall automatically regain control of our laws and our courts. No foreign court will have the right to overrule British courts, or tell us what laws our courts must enforce within the UK.

We do not need the permission of the European Union or of anyone else to achieve this, which is the normal position in any sovereign, independent state. The only way we could fail to achieve this is if through an act of craven, self-harming stupidity we were voluntarily to agree to being ruled over by a foreign court.

It is therefore a matter of dismay to see stories (such as that written by James Forsyth in The Sun on 27 November 2017) saying that non-attributable sources are indicating that the government may be contemplating a so-called “compromise” proposal under which UK courts would make preliminary references for rulings by the European Court of Justice in Luxembourg on questions to do with EU citizens’ rights. Continue reading “EU citizens’ rights and ECJ references”

Why the EU’s Charter of Fundamental Rights must not be transposed into UK law

By Bryn Harris, D Phil (Oxon)

20 Nov 2017

Tomorrow, the House of Commons will debate whether to transpose the EU’s Charter of Fundamental Rights into UK law after Brexit. The Government’s European Union (Withdrawal) Bill proposes not to transpose it, while a number of opposition MPs, and some rebels on the government backbenches, have tabled amendments proposing that it be retained as part of UK domestic law.

In our Lawyers for Britain paper, The Charter of Fundamental Rights in UK law after Brexit: Why the Charter should not be transposed, we argue that the Government is right to deny the Charter a place in UK law after exit. Citizens agree to be ruled by law because it rules our society – and its institutions – in a way that is predictable and certain: the Charter is neither certain nor predictable in its operation, and so must be rejected if the UK is serious about preserving the proper rule of law.

The Charter, if retained, would overlap with our existing human rights regimes – the European Convention on Human Rights (as incorporated by the Human Rights Act 1998), which the Charter substantially duplicates but can also exceed, and the common law. As the Human Rights Act and the common law will regulate the body of retained EU law, it is difficult to see what extra value the Charter would add (apart from all the extra, possibly lucrative work for lawyers) that would justify the price to be paid in retaining it. Continue reading “Why the EU’s Charter of Fundamental Rights must not be transposed into UK law”

Adjudicating Treaty Rights in post-Brexit Britain

Preserving Sovereignty and Observing Comity

By Martin Howe QC, Francis Hoar and Dr Gunnar Beckfull paper.

The EU Commission is currently demanding that the UK’s future obligations regarding the rights of EU citizens resident in the UK be adjudicated by the European Court of Justice (ECJ). The Commission’s demands are incompatible with near-universal international practice under which independent states simply do not accept the binding interpretation of their treaty obligations by the courts of the other treaty party.

The nature of ECJ case law, under which it frequently overrides the wording of provisions and imposes on them a meaning which in the view of the Court furthers the aims of European integration, makes the ECJ particularly unsuited to the task of impartial adjudication of bilateral treaty obligations assumed by a non-member state.

However, it is reasonable that there should be an impartial and balanced international mechanism for the resolution of any disagreements on the interpretation of the agreed treaty provisions. In establishing such a mechanism, it should be recognised that there are two distinct tasks: (1) resolving issues of interpretation of the treaty in probably numerous individual cases, and (2) resolving residual disputes at international level.

In order to deal with the first task within the UK,  a report from Lawyers for Britain  (Full Report) co-authored by Martin Howe QC, Francis Hoar and Dr Gunnar Beck proposes the establishment of an International Treaties Court, staffed by British judges and under UK law, which would act as a central point providing guidance to non-specialist courts and tribunals throughout the UK on the interpretation of the UK legislation which implements the treaty. This court could be modelled on the Competition Appeal Tribunal, a specialist court which has jurisdiction throughout the UK and is at the same judicial level as the High Court in England and Wales and Northern Ireland, and the Outer House of the Court of Session in Scotland. Continue reading “Adjudicating Treaty Rights in post-Brexit Britain”

We don’t owe the EU any money

We do not owe the EU any money as a Brexit divorce bill. That is the conclusion that Martin Howe QC, Chairman of Lawyers for Britain, and Charlie Elphicke MP have come to after an exhaustive analysis (click to download report) of the claims the EU Commission sent to the British Government in June. The Government would, therefore, be right to stand firm and not be blackmailed into a multi-billion pound divorce bill. Particularly as it transpires that the legal position is that the EU owes us €10 billion. Continue reading “We don’t owe the EU any money”

Brexit choices: the EU Customs Union and the Single Market?

by Martin Howe QC, 25th July 2017

Brexit is happening, but the big question now is: “What kind of Brexit?” Should we seek to stay in the EU’s Customs Union and/or its Single Market, as the Liberal Democrats, some Labour MPs and Scottish and Welsh Nationalists propose, or instead seek a wide and deep Free Trade Agreement as the Government and the Labour front bench propose? Continue reading “Brexit choices: the EU Customs Union and the Single Market?”

Rights of EU Citizens in the UK after Brexit

A fair settlement – or a privileged caste with superior rights enforced by a foreign court?

By Martin Howe QC, Francis Hoar and Dr Gunnar Beckfull paper.

An early and fair settlement of the rights of EU citizens resident in the UK, and of UK citizens resident in the EU27, has been a priority for the British government. When the European Council published its Brexit negotiating guidelines on 29 April 2017, it appeared that the EU27 shared that objective as well and that any discussions would be limited to matters of detail.

Unfortunately, the picture radically changed on 24 May 2017 when the EU Commission published a more detailed Working Paper. This introduced two major demands, absent from the European Council’s guidelines. First, it demanded that EU citizens should, in perpetuity, have “the same level of protection as that set out in Union law at the date of withdrawal”; and, secondly, that their rights in the UK should be overseen, interpreted and enforced after Brexit by the EU Commission and by the European Court of Justice at Luxembourg (ECJ).

We have published a detailed paper which explains why each of these demands is unacceptable. Continue reading “Rights of EU Citizens in the UK after Brexit”

Withdrawal – UK potential financial liabilities

The European Union’s ever expanding Brexit financial claims against the UK, now apparently northward of €100bn, have raised their head in the campaign. On 21 March 2017, the Prime Minister gave an interview to The Sunday Telegraph in which she insisted that the UK’s rights must be respected — including its claim to a share of the European Investment Bank —  as well as any obligations. David Davis gave an interview to The Sunday Times in which he was dismissive of the EU’s financial demands for €100bn or more and commented:  “I’m sufficiently poor to think that €1bn is a lot of money.” He also raised the possibility that the EU’s stance on this and other issues might lead to “no deal”.

We have scrutinised the EU’s Brexit financial claims as they are now being advanced under the European Council’s approved negotiating guidelines. Our new and updated Analysis of the UK’s potential financial liabilities looks at the legal arguments in depth. We have failed to find a credible legal argument either for a liability on the UK to contribute to the EU’s unfunded pension fund deficit, or for any liability to contribute to the EU’s ongoing programmes after Brexit day on 29 March 2019, with the possible exception of an obligation to carry on contributing overseas aid of €1.3bn up to the end of 2020 via the European Development Fund (EDF). But the EDF example is actually helpful to the wider argument that the UK has no ongoing liability at all to contribute to the EU budget, since the funding for the EDF is agreed via a quite different mechanism in which the individual Member States assume direct obligations to fund the programme outside the framework of the EU treaties. Continue reading “Withdrawal – UK potential financial liabilities”

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