A rare piece of honesty – but bad news

When you are running a very long term campaign, it is surprising where the breaks come from, no more so than this written question from Liberal Democrat Alistair Carmichael, MP for Orkney and Shetland.

Mr Alistair Carmichael: [135549] To ask the Secretary of State for Environment, Food and Rural Affairs, on what date the 1964 London Fisheries convention will cease to apply to the UK; and from that date all EU fishing vessels will be excluded from the UK’s 6 to 12 nautical miles zone.
George Eustice (Minister of State for Agriculture, Fisheries and Food): The 1964 London Fisheries Convention will cease to apply to the UK on 2 July 2019. During the implementation period, current access arrangements will continue, including access to the 6 to 12 nautical miles zone where permitted under current EU rules. After 2020, we will decide who can access our waters and on what terms. Any decisions about giving access to vessels from the EU, and other coastal states, to our waters will then be a matter for negotiation.

To give George Eustice his due, it was an honest answer although not what our fishing industry wants ot hear. There is, however, more to his answer than appears at first sight.

The UK Government gave two years notice at the beginning of July 2017 to leave the London 1964 Fisheries Convention (which gave certain EU Member States the rights to fish in our 6 to 12 nautical mile zone).

At that period of time, only 3 months into the two years period from invoking Article 50, the government thought that this slight overlap did not matter as we would be coming out of the EU, including the CFP, taking full control of the nation’s marine resource on 30 March 2019.

Because the Government, through wasting so much time, has ended up having to go cap in hand to the EU Commission for extra time, at the first demand from the EU, they surrendered their trump card – fishing. The date of so called exit is now 1st. January 2021

It is not just fishing. For 21 months, unless the government changes course, much of the running of the UK will be handed to the EU. The importance of Mr Carmichael’s question is that the answer clearly shows that the decision to surrender rests entirely with the UK Government, not with the electorate nor the opposition, nor even the EU.

The only other country to leave the EU (then EEC). has been Greenland. I remember it well. While we cannot draw too many parallels, it was noticeable then that Greenland’s negotiators took a bashing from their Brussels counterparts, but they knew their ground, stood firm, told the EEC to get their vessels out of Greenland waters and ended up with an excellent trade deal. What a contrast from our team! What an  unbelievable mess they have made. Greenland understood what control of their fishing waters meant and how important it was. Here in the UK, “control” will essential mean “EU control” as our spineless team of ministers allows Brussels to make all the running.

A storm is coming

In the fishing industry, we expect winter storms – they are part and parcel of the job, Is our government, however, aware of the looming storm of its own making?

The best news of 2017 was our Government’s success in moving the Brexit negotiations from phase one to phase two, although in reality we are only moving on to to phase one and a half, because the transition/implementation period was not on the original agenda and this is what will create the storm.

Storms expose weaknesses, and for the Government it will be its entire Brexit strategy, focussed on this supposed “deep and special relationship.” Just to remind ourselves, Mrs May first used this phrase in herLancaster House speech.”The United Kingdom would seek to secure a new, deep and special partnership with the European Union”.

But there has been nothing of any substance to give us any idea of the foundations upon which this new relationship/partnership is to be based. Is it,

  1. like the present  – in other words, almost as good a deal as if we were still a full EU member? or
  2. starting with a clean sheet of paper?

It is fair to say that, given all the hype over this phrase, that the electorate thinks it is going to be the first of these options whereas the truth is that it is more like the second. When the penny drops, there will be immense disappointment and indeed, anger.

So the storm clouds are building over continental Europe, ready to lash the British Isles. We can expect them to arrive around the end of this month – January 2018. At the eye of the storm is the harsh reality that the unity and solidarity of the 27 EU member States comes first. In order that this will not be compromised, the EU’s proposal for a 21 month transition period will see us totally subservient to our continental cousins. No wonder Barnier was delighted when the UK asked for a transitional period. It suits the EU very nicely.

The EU will spare no effort in its battle to save “Le project” which, it must be emphasized, is primarily a political not an economic project. We have been told that as far as access to the Single Market is concerned, there is to be no cherry picking by the UK, yet this is exactly what the EU itself is doing in areas such as defense and security.

The recommendations being issued by the EU institutions for the operation of this proposed 21 month transition are horrific. We will have no representation in the EU institutions, but will have to accept the full EU acquis during this period. We will be back under the Common Fisheries Policy for another 21 months and charged a hefty bill for these “privileges”. Furthermore, who can guarantee that a new trading arrangement will be signed and sealed by the end of the 21 months? The EU has indicated that it is willing to consider an extension to the transitional period in which case, we may never leave in reality, only in name.

It is easy to be cynical about this transitional period. After all, why did we vote to leave? Brexit is about control coming back to our elected representatives, not further subservience to the EU.

Some Westminster MP’s are beginning to grasp that we could end up wasting 21 months under these arrangements and on 1st. January 2021 we could be no further forward – in fact, we would be heavily weakened as these 21 months would give EU companies time to find alternative suppliers within the 27. Other MPs are hiding behind this phrase “deep and special relationship” – as if Brexit is nothing to do with them, The bottom line, however, is that responsibility rests with every MP. There is no mandate to give our country away again, even under the guise of a “transitional arrangement”. Thankfully the plans will be put to the vote, so we will know where each MP stands and how many of them are truly committed to honouring the Prime Minister’s pledge that “Brexit must mean Brexit”.

It’s hard to believe our government is putting us in such a vulnerable position

John Ashworth of Fishing for Leave, who has campaigned tirelessly to Save Britain’s Fish from the EU says; It’s hard to believe that our own Parliament is going to place us in such a vulnerable, dangerous position with a transition. He writes:-.

Ever since Michel Barnier was appointed to lead the Brexit negotiations for the EU he has been clear and precise. Unfortunately, neither the UK Government nor the mainstream media have taken the slightest notice in what he is saying.

In his press statement of 20th December 2017, Barnier laid out the procedure the EU wants the negotiations to follow as everyone moves on to so-called “Phase 2”:-

  • By October 2018 a withdrawal agreement and a new treaty to cover only the transitional period should be in place, in order for time to get these through the various bodies by the end of the Article 50 process on 29th March 2019 when the UK leaves regardless.
  • The Article 50 of TEU allows the negotiation of the withdrawal agreement, which must be completed on time or else there will be no agreement, whether including a transition period or not.
  • The new treaty to be agreed will come into force on 30th March 2019, and I suspect it will be the reverse of an Accession treaty, with transitional derogations.
  • This is where it gets a little complicated. At 23:01 of 29th March 2019 the UK will have left the EU and will have become a “third country”. Apart from Barnier’s talk of a treaty, no one has provided any other detail, so we have to make a guess as to what will happen next.
  • You can’t leave the EU, take up third country status, and then carry on as if nothing had happened until 1st January 2021.
  • So the new Treaty which will cover the withdrawal agreement will come in to force in tandem with the EU (Withdrawal) Bill. Together, these two pieces of legislation would, I suspect, enable us to carry on trading, as we do at present, although it will be only for a fixed period covered by a time-limited transitional derogation.
  • On 1st January 2021, the derogation will cease, and either a new EU/UK trade agreement treaty will be created, or added to the new treaty otherwise it is possible the UK will be in the same position as we are under Article 50 with the transition coming to an end and no future agreement in place.

The transition period means we will be no further forward than now but will have left the EU and in effect re-acceded to obeying all EU law under our own steam.

This means Parliament will have taken back control only to give total control of all the UK’s affairs from 30th March 2019 to 1st January  2021 back to the EU even though we have officially left.

Meanwhile, the UK government will bang on about a “deep and special relationship” and the wonderful trade deal we will get, yet at the same time, the European Commission and Parliament have both made it very clear that we will be treated like any other third country while at the same time we would be trapped as a vassal state.

It is hard to believe that our own Parliament is going to place us in such a vulnerable dangerous position.

What are the electorate going to say and do when they find the UK trapped in obedience to EU law, locked out the rest of the world as we have agreed to do so?

With the EU able to claim ‘continuity of rights established’ as the UK undid the clean slate of Article 50 by agreeing to continue obeying EU law after leaving? This is not what the British people voted leave for an anything but Brexit.

The government cannot even get their terminology correct. “Transitional” is the word the EEC/EU has used since our 1972 Accession Treaty, so why is the government using entirely different terminology by talking about an “implementation” period?

Both the Prime Minister and David Davis claim that the plan for a transitional (or implementation) period was first mentioned in the Lancaster House speech of 17th January 2017. Michel Barnier, however, claims it was first raised in the Florence speech and this appears correct.

Mrs May said in Florence; “As I said in my speech at Lancaster House a period of implementation would be in our mutual interest. That is why I am proposing that there should be such a period after the UK leaves the EU”

But what she said in the Lancaster speech was; “I do not mean that we will seek some form of unlimited transitional status, in which we find ourselves stuck forever in some kind of permanent political purgatory”

Here, Mrs  May uses ”transitional” the commonly used word of the EU since 1972 for such a situation, so why switch to “implementation” if there is not a difference of meaning?  No one seems to have offered us any real answer.

In the House of Lords Select Committee session of 13th December 2017 asked what the difference was between transition and implementation but was not given an answer – what is the government missing or trying to hide?

In the Florence speech, she continued; “we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest.”

This all sounds very confusing, but I believe the key to Mrs May’s thinking remains the words in her Lancaster House speech: “I want us to have reached an agreement about our future partnership by the time the two-year Article 50 process has concluded

I take this to mean that she wanted an agreement concerning a long-term future arrangement concluded by Brexit day, which will be 29th March 2019. She did not mean that only a withdrawal agreement would be in place by that date, with a trade deal to be discussed during a transition.

She continued; “From that point onwards, we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest”.

“For each issue, the time we need to phase-in the new arrangements may differ. Some might be introduced very quickly, some might take longer.”

Her original objectives seems to be the very opposite of the direction in which we are now heading. Caused by so much time being wasted as the government deluded itself that adopting all EU law onto the UK statute book alone would be enough rather than cracking on with new UK policy to allow the UK to be entirely independent at the end of Article 50.

Instead of applying for an extension to Article 50 of TEU the Government has chosen formally to leave the EU at 23.00 hours on 29th March 2019 but then hand over our governance back to the EU, with no representation, and accepting all the institutions of the EU.

This is a situation far worse than anything we suffered during our 44 years of membership and all for the hope of a trade deal which still may not be ready to be signed in time.

The worst feature of this proposal is that during those 21 months the EU has been clear that the UK would have to accept any new EU legislation that comes into force during those 21 months.

Commission 830 – Final ANNEX 1 to the Recommendation for a Council Decision

  1. Any transitional arrangements provided for in the Withdrawal Agreement should cover the whole of the Union Acquis…. the Union Acquis should apply to and in the United Kingdom as if it were a Member State. Any changes to the acquis should automatically apply to and in the United Kingdom during the transition period.

Donald Tusk – Phase 1 talks – 8th Dec. ‘17
“As you know the UK has asked for a transition of about 2 years while remaining part of the single market and customs union…during this period the UK will respect the whole of EU law including new law”.          

However, David Davis was very evasive when questioned about this during the select committee session of 25th October 2017:

Question 89 – Mr Djanogly: During that period, will the UK have to accept new EU laws made during that period?

Answer – Mr Davis: One of the practical points of this, which anybody who has dealt with the European Union knows—as you will have done, I guess—is that it takes two to five years from inception to outcome for laws to make it through the process. Anything that would have any impact during those two years we are talking about will already have been agreed with us in advance.  Anything that happens during it will be something for subsequent discussion as to whether we propose to follow it or not.  That is where the international arbitration procedure might become important.

Mr Davis thinks we will have some choice, However, M. Barnier, made it very clear in his speech of 20th December 2017 there will be no cherry picking; we will have to accept EVERYTHING during transition period, including legislation currently in the pipeline.

This is a rather complex and technical subject, but I hope I have been able to convey just how dangerous this “transitional period” is.  Our fishing industry would still be stuck with the disastrous Common Fisheries Policy (CFP) but worse, as the EU could move the goalposts to it’s own advantage to cripple what it left of Britain’s fishing fleet and coastal communities.

If the EU can clear the UK fleet from the seas it can then invoke Article 62.2 of UNCLOS which says;
Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall ….give other States access to the surplus of the allowable catch.

If the government signs up to a transition it would not really be Brexit in anything other than name only as the UK would become a vassal state.

Where do we go now?

Ever since Michel Barnier was appointed to lead the Brexit negotiations for the EU , he has been clear and precise, Unfortunately, neither  the UK Government nor the mainstream media have taken the slightest notice in what he is saying.

In his press statement of 20th December 2017, Barnier laid out the procedure the EU wants the negotiations to follow as everyone moves on to so-called “Phase 2”:-

  • By October 2018 a withdrawal agreement and a new treaty (to cover the transitional period) should be in place, in order for time to get these through the various bodies by 29th March 2019.
  • The old article 50 of TEU allows the negotiation of the withdrawal agreement, which must be completed on time or else there will be no transition period.
  • The new treaty will come into force on 30th March 2019, and I suspect it will be the reverse of an Accession treaty, with transitional derogations.
  • This is where it gets a little complicated. At 23.01 of 29th March 2019 we will have left the EU and will have become a “third country”. Apart from Banier’s talk of a treaty, no one has provided any other detail, so we have to make a guess as to what will happen next.
  • You can’t leave the EU, take up third country status and then carry on as if nothing had happened until 1st. January 2021, when it is possible we will be in the same position as now.
  • So the new Treaty which will cover the withdrawal agreement will come in to force in tandem with the EU (Withdrawal) Bill. Together, these two pieces of legislation would, I suspect, enable us to carry on trading, as we do at present, although it will be only for a fixed period covered by a time-limited transitional derogation.
  • On 1st January 2021, the derogation will cease, and either a new EU/UK trade agreement treaty will be created, or added to the new treaty.

It is hard to believe that our own Parliament is going to place us in such a vulnerable dangerous position. The period from 30th March 2019 to 1st January  2021 gives EU-based companies a more than adequate time frame to allow themselves to extricate themselves from the UK. Meanwhile, the UK government will bang on about this “deep and special relationship” and the wonderful trade deal we will get, yet at the same time, the European Commission and Parliament have both made it very clear that we will be treated like any other third country. Unless UK-based  companies realise the reality of this, they will hit the buffers unprepared.

Our side cannot even get their terminology  correct. “Transitional” is the word the EEC/EU has used since our 1972 Accession Treaty, so why are we talking about an “implementation” period?  In the House of Lords Select Committee session of 13th December 2017 asked what the difference was between transition and implementation  but was not given an answer.

What are the electorate going to say and do when they find the economy is in decline and EU continuity rights have been established? This is no real Brexit.

Both the Prime Minister and David Davis claim that the plan for a transitional (or implementation) period was first mentioned in the Lancaster House speech of 17th January 2017. Michel Barnier , however, claims it was first raised in the Florence speech and this appears correct.

Mrs May said in Florence, “As I said in my speech at Lancaster House a period of implementation would be in our mutual interest. That is why I am proposing that there should be such a period after the UK leaves the EU”

But what she said in the Lancaster speech was ,  “I do not mean that we will seek some form of unlimited transitional status, in which we find ourselves stuck forever in some kind of permanent political purgatory”

Here, Mrs  May uses ”transitional” the commonly used word of the EU since 1972 for such a situation, so why switch to “implementation” if there is not a difference of meaning?  No one seems to have offered us any real answer.

In the Florence speech, she continued, “we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest.”

This all sounds very confusing, but I believe the key to Mrs May’s thinking remains the words in her Lancaster House speech: “I want us to have reached an agreement about our future partnership by the time the two-year Article 50 process has concluded” I take this to mean that she wanted the agreement  done and dusted by Brexit day, which we now know will be 29th March 2019. She did not mean that only a withdrawal agreement would be in place by that date, with a trade deal to follow. She continued: “From that point onwards, we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest”.

“For each issue, the time we need to phase-in the new arrangements may differ. Some might be introduced very quickly, some might take longer.”

Her original objectives seem to be the very opposite of the direction in which we are now heading.  Because so much time has been wasted, instead of applying for an extension to Article 50 of TEU, where we could have carried on for a further 21 months (although we would not have been out of the EU, which would have been politically unacceptable with a general election looming), the  Government has chosen formally to leave the EU at 23.00 hours on 29th March 2017 but then hand over our governance back to the EU, with no representation, and accepting all the institutions of the EU. This is a situation far worse than anything we suffered during our 44 years of membership and all for the hope of a trade deal which still may not be ready to be signed in time.

The worst feature of this proposal is that during those 21 months we would have to accept any new EU legislation  that comes into force during those 21 months, even though David Davis was very evasive when questioned about this during the select committee session of 25th October 2017:

Q89            Mr Djanogly: During that period, will the UK have to accept new EU laws made during that period?

Mr Davis: One of the practical points of this, which anybody who has dealt with the European Union knows—as you will have done, I guess—is that it takes two to five years from inception to outcome for laws to make it through the process. Anything that would have any impact during those two years we are talking about will already have been agreed with us in advance.  Anything that happens during it will be something for subsequent discussion as to whether we propose to follow it or not.  That is where the international arbitration procedure might become important.

So Mr Davis thinks we will have some choice, However, M. Barnier, made it very clear in his speech of 20th December 2017 there will be no cherry picking; we will have to accept EVERYTHING during transition period, including legislation currently in the pipeline.

This is a rather complex and technical subject, but I hope I have been able to convey just how dangerous this “transitional period” is.  My own industry, fishing, would still be stuck with the Common Fisheries  Policy but worse, it would not really be Brexit in anything other than name only.

Where our negotiators are going wrong- Part 2

Article 50 of the Lisbon Treaty – or, to quote its proper name, the treaty of European Union (TEU) – is clear and precise with the added advantage that 27 Member States agreed its terms and all 28 current Members reconfirmed these provisions through the Accession Treaty of Croatia. So there can be no legal comeback when the Treaties cease to apply to the UK at 23.01 on 29th March 2019, and competency (control) of our Fisheries Exclusive Economic Zone (EEZ) ­of 200 nautical miles or median line becomes the responsibility of every single Member of Parliament in Westminster.

We will see the UK leave the Common Fisheries Policy, (CFP) and our EEZ will be operated under the guidance of international Law – UNCLOS3 – well, that is the theory.

Things do get more complicated, however, as Our Westminster Parliament is proposing to bring all the EU legislation in force up to 29th March 2019 (the Acquis), into domestic legislation, and this will include the CFP. This means that, having left the CFP legally and with the full support of all EU member states, our Parliament will then endorse what we have left through the European Union (Withdrawal) Bill. It will not be the CFP in name, but a carbon copy of the CFP, giving exactly the same rights to EU vessels in our EEZ as they currently enjoy.

It is a pretty poor outcome for our negotiators: All 27 EU member states have returned the competency back to Westminster and Westminster then passes a law giving those rights back.

The Government claims that it will also introduce a Fisheries Bill. At the moment, however, we have no idea of its contents or whether it will be robust enough to ensure UK control of our EEZ enabling us to introduce a UK system of fisheries management during the next stage of the Brexit plan – the two year transitional period also known as implementation period.

The Government does not wish to apply for an extension of the two years stipulated by Article 50, because it is concerned that the 17 plus million voters who supported Brexit will turn against them. Taking nearly three years to leave the EU is just about acceptable but five years would not be tolerated. The Government would be punished at the general election.

So the date of 29th March 2019 will remain as the date of leaving, and at 23.01 of that day we will no longer be a member of the EU and will become a “third country”. This means that all EU treaties cease to apply within the UK, including Article 50 of the Lisbon Treaty, so while the transitional period will be negotiated under Article 50, the actual implementation of that period will have operate under a different legal basis – a new treaty.

Both the European Commission and the European Parliament (which has a final say on any agreement), have made it very clear that no non member can have the same terms and conditions as a member, which is rather obvious otherwise there would be no point being a member.

One issue of which we can be sure is that, irrespective of the Fisheries Bill, the EU will demand that any implementation treaty must include the Fisheries Acquis and being a treaty, we could find ourselves falling foul of the Vienna Convention on Treaties, especially article 30 and 70, if the EU, a single member state or individual challenges the rights if our own Parliament rescinds what they  established. We could end up in a lengthy legal process.

This transitional/implementation period will be under the full authority of the EU institutions, including the ECJ, but there will be no UK representation at all. Even though the Secretary of State for Exiting the EU stated at a select committee session on 25 October 2017 that no new EU law will be acceptable post Brexit because it will be sorted before Brexit, no cherry picking will be allowed, so we would have to accept any new legislation during that period.

For the past 30 years, successive governments and main political parties have claimed that we hold a considerable degree of influence within the EU, but from April 2019 to March 2021 (perhaps 2022 as the European Parliament would allow up to three years), we would in effect be governed by the EU, as a third country, with no input whatsoever.

The Prime Minister and Ministers have made it very clear during this period that would adhere to International Law on fisheries. It is absurd that over the years, many UK political leaders have condemned the Common Fisheries Policy and yet our own Parliament could end up unilaterally implementing the very policy they condemn. Furthermore, this would not comply in any form to the requirements of International law, UNCLOS 3, especially Article 61 (Conservation of the living resource), Article 62  (Utilization of the living resource), Article 63 (Straddling stocks) and Article 64 (Highly migatory species).

Fishing for Leave has  produced a management plan/model, designed by those with practical experience, for the UK’s fishing EEZ that ticks all the boxes. It is environmentally sustainable, follows International law, creates harmony between fishermen, scientists and fishery officers, while at the same time if will engender a revival of our coastal communities. This plan is based on the Faeroe Islands’ “days at sea” principle, but it has learnt from the Faeroese’ mistakes and is an improvement on the original crude “days at sea” model The Faeroese Government is impressed and is now extremely interested in the FfL model. By contrast, the alternative, which we could yet end up with, is a carbon copy of the present CFP. It will be a complete failure  – socially, environmentally, and economically – and could end up giving the Nation’s resource away permanently.

There are those that appear to think that as far as fisheries is concerned, the UK will still be subservient to the EU after Brexit. With our mixed fisheries, which requires its own plan, we should be the world leader. We will never get another opportunity to do this and it is down to political will. The buck stops with every Member of Parliament in Westminster; the potential is there to make Brexit either a huge success, or a catastrophic failure. Failure will bring with it a very heavy price, because although the responsibility rests with every MP, the electorate will see it as the Government’s fault.

Where our Brexit negotiators are going wrong – and it’s not just fishing!

When anyone says they want “a deep and special relationship you know they are only looking at their side of negotiations and are oblivious of the other side’s position.

The EU isn’t in a position to give us such a relationship. The project must come first – in other words, the first duty of the European Commission and Parliament is to preserve the unity of the remaining 27 members. They don’t want other countries leaving and expecting a special deal.

The UK Government also states that The same rules and laws will apply before and after Brexit. There is nothing wrong in moving the EU acquis across into domestic legislation through the European Union (Withdrawal) bill for areas that apply only within the UK. It is a different matter with any legislation which include a degree of interaction with EU27 – fisheries policy, for example. We may point out that we are maintaining regulatory convergence but the laws are not compatible from the EU prospective because in March 2019, we will no longer be an EU member state.

At the bottom of the majority of EU regulations it states: This Regulation shall be binding in its entirety and directly applicable in all Member States. As we will be no longer a member the regulation is neither binding nor applicable on the UK.

So while the two highlighted statements sound convincing at first glance, they are not and the fact that our negotiating team keeps repeating them shows that in reality, they are very vulnerable.

The Transitional deal

The above comments apply equally to the proposed two year transitional period. Because of the time which has already been lost, many in the establishment are hailing this as an important step forward but in reality, they have failed to appreciate how catastrophic the terms of such a deal are likely to be.

Fishing for Leave believes that only when the negotiations reach the point when a transitional arrangement can be discussed – which David Davis expects us to have reached by end of March 2018 – will it become apparent just how severe the conditions that will be imposed on the UK actually are.

The European Parliament has made its position clear in this document.  There will be no UK representation in any EU institution during that period, but we will have to accept the full rigours of EU institutions, and who is to say it will only last two years? We could well find ourselves no further forward in March 2021. Far from being Brexit, these two years (or perhaps longer) could well be the worst two years of our involvement with the EU project.

Let us consider some of the evidence for this:-

Firstly, from the House of Commons Department for Exiting the EU Committee 25th October 2017 (Our comments in Italics)

Q67            Joanna Cherry: Can I go back to the transitional period or the implementation period?  What is your understanding of the legal basis for a transitional deal or an implementation period?

Mr Davis: The presumption we have been working on is that it comes under the Article 50 proposal.  It was raised with us by the Commission.  The European Parliament sees it in those terms.  I am assuming the Commission legal service does.  But in many ways it is a question almost for the Commission rather than me.

If you are to negotiate, you have to know the legal basis under which you are working and not leave it to the other side.

Q68            Joanna Cherry: Do you have any legal advice of your own as to the basis of a transitional deal or implementation period?

Mr Davis: I am not going to share the legal advice for the reason I gave earlier: that is the convention.  But our belief is that it fits under Article 50.

Q69            Joanna Cherry: Legal advice exists, and it is your belief that it is under Article 50.

Mr Davis: I am not going to be drawn any further on that.  I said I believe it is going to be under Article 50.

As Article 50 comes from the Lisbon Treaty – TEU, it will cease to apply on 30th March 2019, so the transition period can be negotiated under article 50, but the implementation of the transition period will have to be under another EU legal basis.

Q70            Joanna Cherry: Article 50 does not actually say anything about transitional deals or implementation periods.

Mr Davis: Article 50 does not say very much about anything, if you read it.  It is the blandest and unhelpful phrase you are ever likely to come across, but there we are: that is that.

Article 50 is clearly laid out, and does not make reference to a transitional period.

Q71            Joanna Cherry: What it does make clear is that, during any period of deferred withdrawal, the treaties would continue to apply, so if we went into a period of deferred withdrawal under Article 50 we would still be in the single market; we would still be in the customs union; and we would still be under the jurisdiction of the European Court of Justice.  That is correct, isn’t it?

Mr Davis: My response to that is the same as my response to Mr Bone: we are not looking for deferred withdrawal; we are looking for an implementation period.

 If that is the case, whether you call it a transition deal or an implementation period, the bottom line is that it will not be covered by Article 50 because, along with the rest of the EU treaties, it will cease to apply on 29th March 2019

Q72            Joanna Cherry: But if it is the case that, as a matter of law, all you could have under Article 50 was a deferred withdrawal, we would not be leaving on 29th March 2019, would we?

Mr Davis: That is not what we have been negotiating for.  The phrase “deferred withdrawal” has never been used to me by the Commission.  The phrase they use is “transition period”.  Our term of art is “implementation period”.

(FfL believes Joanna Cherry is correct)

Then we move onto who will actually be running the country during the transitional period

Q58            Mr Rees-Mogg: To follow on from Mr Bone’s question, the worry is when we get to 29th March 2019 we stay under the auspices of the European Court; we are still in the customs union; we accept new rules as they come through; and we keep on paying money with the promise of a trade deal on the never‑never.

We are still therefore within the European Union for a further two years.  All that has happened is the endpoint has been delayed and the uncertainty in 2021, which the aim is to avoid, is just as great—but we have stayed in the European Union for two years longer and not achieved what we are aiming for.

Mr Davis: There are ways around that, but, if you forgive me, I am not going to detail them here today.

Q89            Mr Djanogly: During that period, will the UK have to accept new EU laws made during that period?

Mr Davis: One of the practical points of this, which anybody who has dealt with the European Union knows—as you will have done, I guess—is that it takes two to five years from inception to outcome for laws to make it through the process.

Anything that would have impact during those two years we are talking about will already have been agreed with us in advance.  Anything that happens during it will be something for subsequent discussion as to whether we propose to follow it or not.

This is another area where FfL believes Davis is wrong. As far as we understand things,  it is the acquis which has passed onto the UK statute books on or before 29th March 2019 that will be covered by the European Union (Withdrawal) Bill, not work in progress, that is moved across to domestic legislation, and as cherry picking is supposedly not on, Davis’s answer is unusual, and Rees-Mogg and Djanogly were in order to ask those questions.

Michel Barnier’s comments to House of Lords Committee 12th July 2017

  1. Barnier made it quite clear that the transition period would see us under the thumb of the ECJ:-

“You talked about the risk of divergence. It is a risk, not a certainty. The repeal Bill is meant to bring EU legislation into British laws, and that is very good and important, but what will happen D plus 10 or D plus 20? How will your law and your standards develop? ……

That period will be set in a framework, a transition period, and then there will be a new relationship. I cannot give you a time more precisely than that. I cannot even tell you the nature of it. All that I can say—and I can say this in the name of the EU—is that during that period we will maintain, in relation to the internal market, the regulatory architecture and supervision of the Court of Justice.”

The European Parliament said exactly the same thing three months earlier:-

From European Parliament resolution of 5th April 2017

Transitional arrangements

  1. Believes that transitional arrangements ensuring legal certainty and continuity can only be agreed between the European Union and the United Kingdom if they contain the right balance of rights and obligations for both parties and preserve the integrity of the European Union’s legal order, with the Court of Justice of the European Union responsible for settling any legal challenges; believes, moreover, that any such arrangements must also be strictly limited both in time – not exceeding three years – and in scope, as they can never be a substitute for European Union membership;

Michel Barnier raised further complications about the transitional deal:-

  • We will be able to apply absolutely no pressure on the EU during this time.

Speech by Michel Barnier at the press conference following the third round of Article 50 negotiations with the United Kingdom

Brussels, 31st August 2017

“…but it also wants to have these standards recognised automatically in the EU. That is what UK papers ask for. This is simply impossible.”

  • Even a transitional deal would require a treaty

Speech by Michel Barnier in front of the Committees of Foreign Affairs and the Committees of European Affairs of the Italian Parliament

Rome, 21st September 2017

The dialogue we are having here today – as in all national parliaments – is essential because our future partnership with the United Kingdom, and its legal text in the form of a treaty, will have to be ratified by you, when the time comes.  Once again, the future of the Union is our priority, not Brexit

Finally, the implication for fisheries

FfL believes the Government is heading into uncharted waters; creating problems for which they and not the EU are responsible.

1) Article 50 takes us cleanly out of the EU and the CFP, with no legal repercussions.

2) The European Union (Withdrawal) Bill takes us back in all but name if we include the fisheries regulations of the acquis. What we have just left, our own UK Parliament intends fully to take us back into again.

3) The proposed two year transitional/implementation period will require a treaty and during that time, we will be subject to the CFP.

Furthermore, FfL believe that it wouldn’t just be fisheries which would be affected by this “out and in” process, which could cause us to fall foul of the Vienna Convention on the Law of Treaties, a notoriously grey area, which could bog down the system with lengthy and complex legal cases.

While it is the intention of HMG to produce a Fisheries Bill, we don’t know what will be in the Bill. Can it be made watertight? This could be difficult in view of the EU stating there can be  no cherry picking in any transitional arrangement. We can be sure that the EU would  not allow the present fishery arrangements to be exempted from such a deal and worse still, EU control of our fisheries could become permanent if the Government does not change course and exempt the EU fisheries regulation from the European Union (Withdrawal) Bill.