Legal views and news

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

Contribution by Martin Howe QC

“The reasons why the people of the United Kingdom voted to leave the European Union are often misunderstood, particularly on this side of the Channel.

M. Barnier has told us that as a young Gaullist one of his first political activities was to campaign in the French referendum on the admission of the United Kingdom, Ireland and Denmark to the EEC. A few years later I was just old enough to vote in the first referendum we held in 1975. I voted in favour of the UK staying in the EEC.

My uncle Geoffrey Howe was always a firm supporter of the UK’s engagement in the EC. As a lawyer, he was the architect of the UK’s constitutional Act of Parliament in 1972 which gave direct effect to the treaties and suspended the UK’s normal constitutional rule of the supremacy of Parliament in favour of the primacy of Community law.

He was later Margaret Thatcher’s Foreign Secretary and Deputy Prime Minister. His conflicts with her about European policy are well known and eventually led to her departure from office.

But despite this personal background, and despite my original support for our membership of the EEC, by the time of the 2016 referendum I was firmly convinced that the right path for my country was to leave the European Union. So I was pleased to lead the lawyers’ official campaign group for a ‘Leave’ vote.

The fundamental reason is this. The ever growing spread of EU laws into wider and wider areas removes the democratic right of the British people to live under laws which are decided upon by their elected representatives in Parliament.

The spread of Community law (and later EU law) and the consequent loss of sovereignty has always been regarded in the UK as a negative feature of our membership. It has been tolerated in the past, because it was perceived to be in the economic and trading interests of the UK to join a trade bloc with internal free trade.

But alongside the ever wider spread of EU law, the pattern of the UK economy has been changing in ways that dramatically reduce the benefits and increase the disadvantages of belonging to such a bloc.

Let us look at this chart from Eurostat which shows how much of their goods exports each Member State exports within the EU as compared with its exports outside the EU:

This chart shows that, apart from tiny Malta, the United Kingdom has the lowest percentage of any Member State of exports to other states within the EU. More than half of our goods exports go outside the EU. For goods and services combined, 57% of our exports now go to non-EU destinations according to the latest 2016 figures.

This unusual trade pattern means that only a minority of our exports benefit from free trade inside the EU, while we suffer disproportionately from the inability to conduct our own international trade policy.

The long term trend over the last 20 years has been for our EU trade to diminish relative to our trade with the rest of the world, which has been strongly growin. Another Eurostat table shows the trends in exports of goods within the EU between 2002 and 2016:

Most member states show healthy growth in their exports to other Member States within the EU single market and customs union. For example, Germany’s exports have grown by 3.9% average over the period since 2002, while many of the newer Member States have achieved spectacular growth rates.

In stark contrast, the UK’s average annual growth in intra-EU goods exports over that period has been negative, at -0.3%. So in contrast to other Member States, the benefit which the UK has obtained from membership of the single market and the customs union is not large, if indeed it exists at all.

And this trend will continue. The UK’s trade with high growth economies around the world will become ever more important relative to our trade with the EU27.  This is why it is essential to us not only to regain control of our internal laws but also of our international trade policy.

The fundamental differences between the UK and the Continental economies were famously the subject of comment by President de Gaulle in 1963 when he vetoed our original application to join the EEC:

“England in effect is insular, she is maritime, she is linked through her exchanges, her markets, her supply lines to the most diverse and often the most distant countries; she pursues essentially industrial and commercial activities, and only slight agricultural ones. She has in all her doings very marked and very original habits and traditions. In short, the nature, the structure, that are England’s differ profoundly from those of the continentals.”

I leave aside the General’s suggestion that linkage to distant markets around the world implies insularity; rather, it involves engagement with the wider world outside the confines of the European continent. But the fundamental differences which he identified in the structure of our economy and of our global trading links have, as I have demonstrated, not diminished but rather have become even more marked over the last 20 years.

The UK’s departure from the EU is not born from any hostility towards the EU, still less towards the peoples of Europe. It is just that our future paths are so different that it serves neither the interests of the UK nor of the EU for our membership to continue.

No half-baked half-in half-out solutions

Our future relationship must I believe be based on mutual respect. In particular, complete respect for the autonomy of the European Union law on the one hand and the United Kingdom’s legal system on the other.

I am in complete agreement with one aspect of M. Barnier’s remarks. Half-baked half-in half-out solutions for our post-Brexit relationship will not work in the interests of either party. In this category I would place the so-called “customs partnership” which is still, regrettably, being considered by the British government. Apart from its other manifest deficiencies, this proposal would compromise the autonomy of the UK by requiring UK customs authorities to administer EU customs rules and collect EU tariffs, and compromise the autonomy of the EU by requiring Member State customs authorities to apply UK rules and collect UK level tariffs on imports from third countries.

Mutual respect and independence and autonomy of legal systems

Our courts systems need to be autonomous from each other. After Brexit, the Court of Justice will cease to be a multi-national court in which the UK participates as a member equally with other Member States, and become as far as the UK is concerned an entirely foreign court rightly owing its allegiance to the EU and its Member States alone.

It is contrary to international treaty practice for a sovereign state to accept to be bound by the rulings of the judicial or other organs of the other treaty party. It is also contrary to the EU’s own practice: we cannot find any examples where a non-Member State has accepted the direct jurisdiction of the Court of Justice. Even the Association Agreement of tiny Andorra provides for resolution of disputes by a neutral 3-member arbitration body.

However, non-binding coordination of interpretation is desirable, particularly where it involves treaty provisions in an EU-UK treaty, or the interpretation of laws which remain the same in parallel in the EU and the UK. Mutual respect for judgments in these situations is entirely in accordance with the normal norms of judicial comity, provided that each court is free at the end of the day to decide its case in accordance with its own conscience.

The UK should not be bound by future judgments of the ECJ

Although it does not involve direct jurisdiction by the ECJ, the EEC-Turkey agreement which creates a customs union between the EU and Turkey requires Turkey to follow and apply the jurisprudence of the ECJ on all matters relating to tariffs and also in a number of related areas which affect the import and circulation of goods.

This illustrates the fact that a customs union can only operate if all the relevant rules and the way in which they are interpreted are closely harmonised for now and into the future. For the UK to remain in customs union with the EU after we have ceased to be a Member State would inevitably involve a huge and permanent loss of sovereignty over tariffs and over all the non-tariff rules and laws which apply to goods placed on the market. This huge and permanent loss of sovereignty would damage our democracy and is unacceptable for this reason, quite apart from the fact that it would destroy any prospect of the UK implementing its own international trade policy.

Both the customs union and the EU internal market involve dynamic systems of rules which need to be kept in line with each other in every participating state in order for the systems to function properly. For this reason both the EU-Turkey customs union and the EEA Agreement involve mechanisms by which the client states are required to align the interpretation of their rules to the rulings of the ECJ as well as legislative changes made now and in the future by the ECJ.

It is for this reason, and this reason alone – adherence in the future to a dynamic system of rules which must be interpreted consistently – that it is necessary that the courts of these States must comply with future rulings of a foreign court.

This consideration does not exist in the case of the UK. M. Barnier argues that the provisions of an EU-UK treaty which are based on concepts of EU should be interpreted in the future by the ECJ in a way which binds the UK.

M. Barnier’s argument is entirely fallacious. Where the UK agrees (as for example in the case of certain rights of EU citizens in the UK and UK citizens in the EU) to base rights in the treaty on the extent of the rights currently enjoyed under EU law, this does not create a dynamic linkage between the acquired rights of these citizens and the future rights of EU citizens within the remaining Member States. The rights acquired by citizens at the point of the UK’s departure are frozen in time and will not, and should not, develop in line with whatever changes might be made by the ECJ’s jurisprudence to the rights of e.g. French citizens resident in Germany internally to the EU. Those EU-internal rights will no doubt continue to develop but that development should have no bearing on the rights and obligations of the United Kingdom under the withdrawal agreement.

To accept binding future ECJ interpretation of rights under the withdrawal agreement is tantamount to the United Kingdom writing a blank cheque into which the organs of the EU can write new treaty obligations which the UK never voluntarily assumed when it agreed to the treaty. This is, as the EU and all its organs should recognise, entirely incompatible with the international treaty practice of sovereign states.”

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”

The Phase 1 Deal: Costly EU demands on regulatory alignment could prevent us securing trade deals elsewhere

By Martin Howe QC

Our government on our behalf is offering to pay the EU around €45-50 billion of money that we don’t legally owe, to submit to our courts and our Parliament being overruled by a wholly foreign court after we have left the EU, and to commit to keep our regulation in agriculture and possibly other fields “aligned” with the EU in order to resolve the Irish border issue. This is all so that we can reach the nirvana of having not an actual trade deal, but just talks about a trade deal. Continue reading “The Phase 1 Deal: Costly EU demands on regulatory alignment could prevent us securing trade deals elsewhere”

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”

Perpetuating ECJ jurisdiction after Brexit

Sir Keir Starmer’s obsessive love affair with the Luxembourg Court

By Martin Howe QC

14 Nov 2017

Under the EU treaties, Judges and Advocates-General who serve on the ECJ and the EU General Court at Luxembourg must be nationals of a Member State. So when the UK leaves European Union at just before midnight on 29 March 2019, the British nationals who are currently serving in these roles will cease to hold office.

As a result, what is currently a multi-national court in which we participate will become an entirely foreign court.

But strangely, Labour’s Brexit spokesman, Sir Keir Starmer QC, is seeking to perpetuate in every conceivable way the jurisdiction of this foreign court over the UK after we have left the EU. He wrote to the Prime Minister demanding that the ECJ should continue to exercise jurisdiction over the UK during any transitional period, and threatened an amendment to the EU Withdrawal Bill to make this happen if the PM does not agree. And on Monday 13 November 2017,  in a BBC interview, he argued that the ECJ should have jurisdiction over the UK for the indefinite future where we wish to enter into arrangements with EU agencies.

However, it is virtually unheard of in international relations for an independent sovereign state to agree to subject itself to the jurisdiction of a foreign court. One has to go back to the 19th Century to find examples such as the (British) Supreme Court for China sitting in Shanghai, which exercised jurisdiction over British subjects in China and over their disputes with Chinese nationals to the exclusion of Chinese courts. Continue reading “Perpetuating ECJ jurisdiction after Brexit”

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”

Transition Period: Part 2: The high costs and small benefit of staying in the EU Customs Union

Britain’s politicians, pro- as well as anti-Brexit, seem to agree on the need for a transition deal after the UK leaves the EU on 29 March 2019. But, warns Martin Howe QC, Chairman of Lawyers for Britain, such a deal will not deliver the early certainty that some business leaders seem to expect from it and will impose heavy costs across the whole UK economy in return for limited benefits for the sector of the economy exporting into the EU27.

In a new Politeia analysis The Cost of Transition: Few Gains, Much Pain? Martin Howe explains that under the Article 50 framework, there can be no transition deal unless and until both parties know what the end point is. ‘The EU has legal power under Article 50 to conclude a transitional arrangement, if but only if, the end state to which the transition will lead has been agreed at least as a framework’.

However, the EU has not only refused to reveal its hand and begin formal negotiations, it is unlikely to do so or play its ‘trump negotiating card’ until the ‘eleventh hour’, he says.  By then the UK government could be panicked into agreeing almost anything and conceding to EU demands for money and other terms, if only to avoid the post-Brexit ‘cliff edge’ caused by lack of preparation. With Whitehall and government lulled into complacency with inadequate preparations to leave, the UK could be going ‘completely naked into the conference chamber’. Continue reading “Transition Period: Part 2: The high costs and small benefit of staying in the EU Customs Union”

Transition Period: Part 1: Avoiding the Negotiating Noose

By Martin Howe QC:

In this first part of his analysis of the legal and treaty ramifications of the Florence speech “implementation period” proposal, Martin Howe QC explains that:

  • The EU only has the legal power under Article 50 of the Treaty on European Union to agree transitional or interim arrangements once the destination to which the transition leads has been agreed, at least as a framework. There is no power under Article 50 for the EU to agree an open ended transitional period of the kind which many business leaders seem to expect in order to allow time for negotiation about the future relationship.
  • Because the EU cannot agree to a transitional period until the framework of the future relationship has been agreed, it is impossible for the EU to agree to a transitional period until late 2018 at the earliest. Hopes that such a transition can be agreed “by the end of this year” are naive and totally unrealistic.
  • The EU27’s negotiating strategy dictates that they will not agree to a transition period until the UK has succumbed to their demands about the EU’s legally meritless financial claim, citizens rights, ECJ jurisdiction, and other matters. From the EU27’s perspective, granting an interim period would let the UK off the hook, contrary to the EU27’s strategy to force the UK up against the wall of the hard deadline for exit in March 2019.
  • Continue reading “Transition Period: Part 1: Avoiding the Negotiating Noose”

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”

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