David Collins is Professor of International Economic Law at City Law School, University of London

Tw: @davidcollinslaw

Introduction

The UK government’s Chequers White Paper “The Future Relationship Between the United Kingdom and the European Union” relies heavily on a Facilitated Customs Arrangement (FCA) in which the UK will charge importers a common external EU tariff at its borders, exempting those goods which are demonstrably destined to be consumed in the UK. For goods with an indeterminate destination, the higher of the UK or EU tariff will be charged, with a rebate paid to the exporter if the good ends up in the lower tariff jurisdiction, whether that is the UK or the EU. This proposal has already encountered resistance from the EU’s chief negotiator Michel Barnier, who hs said that “The EU cannot and will not delegate the application of its customs policy and rules, VAT and duty collection to a non-member who would not be subject to the EU governance structures.”

But in addition to this problem and the practical difficulties associated with this complicated system, notably tracking products with multiple components to their ultimate destination, there are at least two reasons why this may be illegal under the rules of the World Trade Organization (WTO) of which both the EU, and the UK (after Brexit) are members. Continue reading “Chequers White Paper Briefing No 2: Does the Facilitated Customs Arrangement comply with WTO law?” →

On 7 July 2018, Martin Howe QC, chairman of Lawyers for Britain, published a widely read memorandum with an initial assessment of the Prime Minister’s Chequers plan, based on the 3-page press statement issued by the government on 6 July 2018. Following the publication of the White Paper on 12 July 2018, he and other legal colleagues are producing a series of in-depth briefings about different aspects of the Chequers plan. In the first of this series, Martin Howe QC deals with the future jurisdiction of the European Court of Justice under the Chequers plan.

Introduction

At the core of the proposed permanent post-Brexit relationship with the EU is a ‘common rulebook for goods including agri-food’ (White Paper, §7a – references are to paragraph numbers in the White Paper, unless otherwise stated). This rulebook will be ‘common’ only in the sense that the rules decided on by the EU will bind the UK, but without the UK having the right which it presently enjoys as an EU Member State to vote on those rules. In addition, the White Paper commits to another ‘common’ rulebook for state aid (§7f), and a further ‘common’ rulebook consisting of the EU’s Customs Code and its rules related to safety and security (§17d). There is also another possible ‘common’ rulebook on electricity trading (§140). Continue reading “Chequers White Paper Briefing No. 1: ECJ Jurisdiction” →

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.

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” →

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” →