Binding ECJ jurisdiction on the Ukraine/Moldova/Georgia model – response to the Attorney-General

On Monday 15 July 2018, the new Attorney-General Geoffrey Cox MP circulated a letter to Colleagues in the House of Commons which commented on the Chequers Memo published by Lawyers for Britain Chairman Martin Howe QC the day after the Chequers Cabinet meeting.  Martin Howe QC has now issued another Memo containing his Response to the Attorney-General’s Letter

While he agrees with the AG that the White Paper envisages that the UK’s adherence to the so-called “common rulebooks” will be achieved by international obligations rather than by internal direct effect under UK law, he disagrees with the AG’s view that these international obligations would be “standard” or “normal”. On the contrary, they are based on the harmonisation and disputes procedures in the Association Agreements between the EU and the former Soviet republics of Ukraine, Moldova and Georgia. These contain a complex “joint reference” procedure under which the UK would be bound by ECJ decisions about UK law even though the formal ruling on a dispute would be given by an arbitral panel. He disagrees with the AG’s contention that this system “respects the principle that the court of one party cannot decide disputes between the two.” This coupled with an unbalanced obligation on UK courts to “pay due regard” to ECJ case law (with no obligation in the other direction) would make ECJ rulings in practice binding in the UK courts.

Lawyers for Britain are currently working on a fuller briefing paper on the court jurisdiction proposals in the White Paper, and are intending to  publish a series of further briefing on different aspects of these proposals as soon as thes are available.

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”

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