Government future position paper – cross-border civil and judicial cooperation framework

This Government Position paper, like some others which have been published,  is annoying vague on detail and repeats the silly phrase “deep and special” which has featured in some of the earlier papers.  It is a rather soppy and meaningless phrase which seeks to gloss over the fact that 15 months ago, we voted to leave because we wanted a looser relationship with the EU – it was far too “deep”.

It is self-evident that some form of cooperation with the EU on legal matters will be essential. Civil law (as opposed to criminal) includes, among other things, trade disputes, family issues and cases of insolvency and in today’s world, differing parties may well reside in different countries.

The document reiterates the point which the government has made on a number of previous occasions – we will be leaving the jurisdiction of the European Court of Justice as it derives its authority from the EU treaties which will no longer apply after Brexit. Fair enough, but what follows is basically a wish list, which points out that as the UK has signed up to a number of international agreements on civil judicial cooperation but nonetheless reverts to the oft-repeated hope that as we are starting from “an unprecedented position of close integration”, coming up with a deal shouldn’t be too hard. All the same, the authors of the document are sufficiently aware of the complexities of securing a new arrangement to suggest that  the UK “would benefit from an interim period that allowed for a smooth and orderly move from our current relationship to our future partnership.”

One detail worthy of note is the statement in Paragraph 22 that “we will seek to continue to participate in the Lugano Convention that, by virtue of our membership of the EU, forms the basis for the UK’s civil judicial cooperation with Norway, Iceland and Switzerland.” The Lugano Convention, however, states that courts from contracting parties to the Convention should take into consideration judgements made by the European Court of Justice. Taking something into consideration isn’t the same as being bound by it, but even so, there does seem to be some ambiguity here given how keen the Government has been to emphasise that Brexit will bring the ECJ’s authority to an end in the country.

What is more, the paper is keen to talk of similarity when it is the differences between UK and continental legal systems which are more of greater significance. The differences are more noteworthy when it comes to criminal justice but even so, the foundations of all UK law are  different from most of those on the Continent. Even as an EU member state, the UK is a popular choice for international civil disputes because of the clarity of its legal system. London is as important a centre for legal services as for financial, as this article makes clear.

This significant role played by our capital city will continue after Brexit; we can be confident about this. How we will cooperate with the EU on cross-border civil issues is another matter and the Government paper has not provided us with many clues.

Government “Future Partnership” paper – Foreign policy, defence and development

On this website, we have expressed our concern that the Government shows no desire to disentangle ourselves from EU defence policy on Brexit. This latest Government paper has done nothing to alleviate our worries. Rather than provide our own assessment of this paper, we are reproducing (with permission) the comments of David Banks from Veterans for Britain.

DExEU’s defence partnership paper is a grave mistake and gives the EU control

A Norway-style abdication of defence powers would betray British voters, senior military veterans say today.

It is in response to a DExEU paper which calls for a defence relationship with the EU “closer than a third country”.

One other country currently fulfills the EU’s criteria for ‘closer than a third country’ and that is Norway, which has submitted itself to EU Common Defence Policy, EU defence industry directives, membership of the European Defence Agency and the growing impact of Juncker’s European Defence Action Plan.

The DExEU paper proposes keeping the UK locked into structures, policies and financial schemes of the new EU ‘Defence Union’ that are scheduled to pass increasing amounts of control to the EU after 2017. It poses a major threat to the Five Eyes Intelligence Alliance with the Anglosphere and will certainly alienate the Americans

The DExEU paper, which is in fact the product of FCO and MOD civil servants, comes after 10 months of EU agreements in defence which were hardly noticed by UK MPs and media because UK participation and consent was not thought relevant to the departing UK.

“Britain is walking into a carefully planned EU ambush from which UK officials have not protected us. We would ask MPs, ministers and defence observers to urgently read through the 100,000+ words of EU plans, advisory notes and EU Council agreements completed since the Brexit vote. All of this, which has virtually bypassed MPs on the understanding that we are leaving, is now suddenly and desperately relevant to the United Kingdom,” said Major-General Julian Thompson, chairman of Veterans for Britain and Royal Marines Veteran who commanded landing of British troops on the Falklands Conflict.

British voters have always been more opposed to an EU role over their defence than any other issue. Polls have consistently shown that public support for UK control over defence is much greater even than the majority who want to leave the EU.

NOTES TO EDITORS

  1. What recent EU Defence Union agreements mean
  2. Problems for the UK ‘closer than third country’ submission to it
  3. Ministerial statements about EU Defence Union
  4. Additional comments from Professor Gwythian Prins, Rear-Admiral Roger Lane-Nott and Colonel Richard Kemp
  1. What recent EU agreements mean
    1. EU Defence Union is framed in five separate EU Council agreements between 14 November 2016 and 22 June 2017, relating to the Security and Defence Implementation Plan (Mogherini) and the European Defence Action Plan (Juncker).
    2. The UK is a full participating signatory to the EU Council agreements.
    3. A further informal meeting on Permanent Structured Cooperation (PESCO), the final component of Defence Union, was held on Thursday in Estonia where the UK representative also indicated complete agreement. A binding EU Council meeting of defence ministers is to be held in October 2017 and the EU Commission expects to begin PESCO i.e. an EU Army in all but name,  before the end of 2017.
    4. The agreements cover:
      1.     Four new sources of military finance including the European Defence Fund.
      2.     There are also plans on space, intelligence, UAVs and marine drones.
      3. Military technology will lead to joint purchasing and ownership of assets and these assets will be governed by joint policy.
      4. Strategic direction, decision making and physical command centres.
      5.  Defence research.
      6. MPs are STILL unaware and have not debated or agreed to most of this. Only one part was discussed, that was the European Defence Fund – 10 weeks AFTER it was agreed by UK officials at the EU.
  1. The problems created by UK adherence to EU defence
    1.    Harm Five Eyes relationship. UK is asked under SDIP to propose ways to plug UK into SIAC, the EU’s military intelligence command. (Single Intelligence Analysis Capacity)
    2. Loss of control over growing areas of defence policy. The DExEU paper describe actively delegating growing areas of decision-making over UK defence policy to the wider EU. It also submits the UK to gradual EU integration in intelligence, ownership of assets, defence procurement, research, growing elements of funding and strategic direction to collective decision-making over time in all these areas: intelligence, asset development, budgeting, research, asset purchase, asset ownership,as described in the EU Council agreements the UK has agreed since November 2016.
    3. Decision making and participation would be on EU terms. The UK would be submitting to EU control of budgets, research, assets, policy.
      1. Defence procurement.
        1. EU Defence procurement directives mean cheapest EU-wide tender for government contracts.
        2. UK shipyards and defence firms have relied on a national security exemption where UK gov can restrict contracts to UK suppliers — which the EU has just clamped down on.
        3. It is also subject to the gradually tightening and the latest EU moves via the European Defence Action Plan.
        4. The Type 26 Frigate adheres to EU rules and EDA benchmarks.
        5. The National Shipbuilding Strategy commits to  build only frigates, destroyers and submarines  in the UK. All other types including patrol, RFA, LPDs are to be open to international tender..
    4. Tied in in defence research project PADR (Preparatory Action on Defence Research), which the MOD started to push in June and which requires long-term UK adherence to EU rules.
    5. The US will be upset by EU protectionism in its emerging EDTIB. The UK is collaborating in its creation. (European Defence Technology Industrial Base
  1. Ministerial statements about EU Defence Union

What ministers have committed to:

13 December 2016: “Government supported much of the content of the Mogherini Security and Defence Implementation Plan” https://publications.parliament.uk/pa/cm201617/cmselect/cmeuleg/71-xxii/7112.htm

8 June 2017: UK pushing companies towards EU deals that require long-term adherence to EU policy, CSDP, EDA https://twitter.com/VeteransBritain/status/905551231195779076

22 February 2017: Minister regards European Defence Action Plan as “predominantly positive for member state capabilities and the UK defence industry” https://publications.parliament.uk/pa/cm201617/cmselect/cmeuleg/71-xxxiv/7114.htm

22 February 2017: Minister expects UK adherence to EU defence directives to continue: https://publications.parliament.uk/pa/cm201617/cmselect/cmeuleg/71-xxxiv/7114.htm

7 September 2017: National Shipbuilding Strategy submits the UK to EU rules

https://twitter.com/VeteransBritain/status/905439206473945090

  1. Additional comments

Ministers in charge of exiting the EU are being advised by people who wrote defence integration agenda of Blair, people who have worked and still work under Federica Mogherini and people who simultaneously work for MOD and the European Defence Agency. The British public would be shocked by the conflicts of interest of people advising ministers and people in this country. The British people do not want to surrender defence autonomy to the EU.

This DExEU paper is not a bargaining hand. It means giving the EU the deck of cards. 

The last 10 months of agreements spell out where the EU is going. Offering continued UK compliance to these agreements means submitting to their evolving nature and increasingly to the will of collective decision making in everything from finance to deployment, instead of UK government decision making within NATO.

Ministers need officials who are willing to spell out the full EU agenda here and what the UK would lose in democratic control – not just pass on the warm words used by Brussels.

Instead of promising more giveaways, ministers should be working out how the UK can extricate itself from these unnecessary commitments.

Based on a misperception that the EU is a benevolent a-la-carte club.  

In loose language, it alludes to “a defence relationship with the EU that’s closer than any third country” — in other words, the continuation of the mess that officials from FCO and MOD have created in the last 12 months. 

–       Rear-Admiral Roger Lane-Nott, former chief of staff, submarines.

We have NATO and EU efforts to establish decision making authority or to have its own structures threatens the transatlantic alliance.

Submitting to EU defence plans also lets down the UK’s closest allies including the US – it means supporting the EU’s plans for the protectionist EDTIB (European Defence Technology Industrial Base) which seeks “EU sovereignty” in defence assets and whose new defence research network actively blocks US and Canadian companies from participating.

In simple democratic terms, if the public were fully aware of what “closer than third country” actually means they would never agree  to it. Nor would they agree with the ministerial statements of the last 10 months in reference to them. Our ministers seem to be walking blindly into a well prepare EU ambush of just the sort Yanis Varoufakis the sacked Greek finance minister has been repeatedly warning us.” –Professor Gwythian Prins,

“The paper will talk about a defence relationship ‘closer than any third country’. BUT IN PLAIN WORDS THAT amounts to the UK staying in the recently agreed EU Defence Union agreements just as Norway has agreed to do. Also, just like Norway, it means the UK submitting to EU common defence policy, EU defence directives and European Defence Agency membership, which are all conditions the EU has placed on the UK for this kind of arrangement. This is all dangerous and puts the UK on a trajectory to EU defence union.
“It puts control of our future direction, strategy and even foreign policy squarely into the hands of the EU. This is in any case unnecessary because our defence relationship with EU member states should instead be conducted via NATO. The EU has declared defence autonomy from NATO.

“UK ministers consented to defence union agreements after the Brexit vote and we were told that it was because the UK would have no part in them. Yet the government is now allowing these gradual and erosive commitments to the EU to stand. It means a hollowing out of UK Parliamentary authority over UK defence particularly BY STEALTH where defence procurement and the collective ownership of assets are concerned. The EU has put in place policy which dictates that collectively-owned assets on land, air, sea and space are also subject collective policy. The collective nature of defence assets and policy is at present only conceptual but it is agreed and is timetabled to be vast within just a few years.” – Colonel Richard Kemp, former commander of British Forces, Afghanistan

We in the Campaign for an Independent Britain will seek to work with organisations like Veterans for Brtiain in opposition to these plans to lock us into the EU’s defence agenda after Brexit.  IN this area, Brexit must be as “hard” as possible.

The parallel universe next door

For anyone wanting to take the EU’s temperature, the annual “State of the Union” address by the President of the European Commission is always a helpful speech to study. Anyone wanting to read the full 6,130 words of Jean-Claude Juncker’s lengthy talk can do so here.

However, most of us will only want a brief summary. As far as Brexit is concerned, Juncker had very little to say. He called it “a very sad and tragic moment,” adding “We will always regret it.” The text of the speech does not include the phrase “and you will regret it soon”, although this extract from the speech shows that he clearly said these words (in French) and also added that Brexit isn’t the future of Europe.

Will we regret it? On the basis of the rest of the speech, I think not. Open Europe, hardly a bastion of withdrawalism in pre-referendum days says that the speech is “likely to test the limits of what EU citizens or even EU leaders might support. Juncker admitted that 2016 was “a year  that shook our very foundations” – in other words, a crisis. What is the classic EU solution for any crisis? More Europe, and yes, this is exactly what he is proposing:- an increase in qualified majority voting – or to put it another way, the removal of national vetoes – in foreign policy decisions and in maters of taxation, a European Finance minister  and elections for the European Parliament featuring trans-national rather than national lists. Treaty change is “inevitable” at some point, he added, but in the meanwhile, use should be made of the so-called “passerelle” clauses in the existing treaties which allow qualified majority voting to be extended without treaty amendment. Juncker does not want a two-speed Europe, but by stating that the Parliament of the €urozone is the European Parliament, he is forcing non-€urozone countries either to join the Single Currency or accept second class status.

It is hardly surprising that Pieter Cleppe of Open Europe says that “This was not a great speech for those hoping the European Commission would see Brexit as the moment to take stock and reconnect with those across Europe who feel that the EU has over-reached.” Reaction from the UK has been more scathing. Diane James, formerly a UKIP MEP but now sitting as an independent, wrote a scathing article for City AM which pours scorn on the upbeat assessment of the EU’s current state by Mr Juncker. ” I can sum up the “state of the Union” in one word: dismal.” She points out that 66 per cent of Europeans stated in a recent survey that they were dissatisfied by the direction being taken by Brussels. The EU may be putting pressure on us to try to stop Brexit, or at lest to water it down, but many citizens in EU-27 are hardly happy bunnies and Juncker’s speech will have done nothing to make them feel better.  The powers-that-be in Brussels seem to be living in a parallel universe from most ordinary people.

Nigel Farage was even more scathing in his response to Juncker’s speech when addressing the European Parliament. “All I can say is Thank God we’re leaving,” he said. Lord Stoddart, a former President of CIB, was equally dismissive, calling Juncker’s vision of the EU as a “nightmare”.

Indeed. Juncker’s speech will have reminded many of us of exactly why we campaigned for years – indeed, in some cases, decades – to extricate our country from the EU. Given that there are still many tensions between the member states simmering beneath the surface, Juncker’s speech has, if anything, made it more likely that another country may well follow us out of the door.

 

The European Union (Withdrawal) Bill 3:- fisheries shows the need for exemptions

The European Union (Withdrawal) Bill was designed to ensure that life continues as normal the day we leave the EU.  In an earlier post, we explained the rationale behind this bill. While Labour in particular is concerned about the “repatriated” legislation being tweaked for political ends, a far more serious problem concerns legislation which will need tweaking because of the new status of the UK as an independent sovereign nation outside the EU. Indeed, the degree of tweaking required for some legislation which does not concern merely domestic issues is so great that we believe that it is best that there should be exemptions included in the Great Repeal Bill – in other words, replacement legislation should come into force on Brexit day and the regulation, decision or directive  in question should not be put onto the statute books at all.

Regulation 1380/2013 is the main piece of EU legislation which governs the Common Fisheries Policy. Leaving the EU will free us from this iniquitous, environmentally damaging piece of legislation which has wrought havoc to our fishing industry.  All we have to do is exempt this one single Regulation from the EU (Withdrawal) Bill and our fishermen will be freed from control by Brussels. Even if no agreement on fishing is signed by Brexit day, this would be better than the current set-up. We would find ourselves excluded from EU waters, but the exclusion of EU vessels from our Exclusive Economic Zone (up to 200 nautical miles from the shoreline, or the median point where the sea is less than 400 nautical miles wide) would be more than a compensation.

In other words, unlike customs arrangements, trade in goods and services or mutual recognition of standards, fisheries is one area where we really don’t have to worry if there is no agreement with the EU by 29th March 2019. We would revert to UN guidelines which would allow us to manage our own waters.

So the current plans by the government to include Regulation 1380/2013 make no sense whatsoever – all the more when analysis of the actual document shows that a massive re-write would be needed before it could be incorporated into UK law or else a tremendous muddle would ensue. You only have to go as far as paragraph (2) on the first page before encountering the terms “Union waters” and “Union fishing vessels.” At the moment, these terms refer to the boats and EEZs of all EU28 countries – at least, all those which have a coastline and therefore a maritime fishing industry. On Brexit day, the term will mean something different as phrase containing the word “Union” will refer to EU27 – in other words, not the UK.

Read on to paragraphs (3) and (4) on the same page and they talk about the objectives of the Common Fisheries Policy. Unless the government wants us to be in the CFP even though we will be out of the EU, these two paragraphs can be struck through as irrelevant.

Paragraph (5) begins by mentioning “the Union”. Well, we happen to be a signatory to the same UN agreement, so perhaps our Civil Servants can just cross this out and put in “the UK” instead. Sadly, it’s not that simple. Read on a few lines and you come across a reference to a decision by the EU Council. That doesn’t apply to us any more so that needs to be changed.

Given the document is 40 pages long, I won’t bore you with going through the other pages in detail, but the absurdity of repatriating this Regulation must already be apparent. Every reference to “union”, “member states” “Commission” and so on will need alteration. Why bother with a piece of legislation which is so flawed? Scroll through it in its entirety and there are numerous references to quotas. UK fishermen do not want a quota system on independence. Our booklet Seizing the Moment,written by John Ashworth of Fishing for Leave proposes a “days-at-sea” basis, modelled on Faeroese practise, which is far better than any quota system for preventing discards, while at the same time enables a much better management of the environment.

Three further objections to the incorporation of this Regulation into the EU (Withdrawal) Bill should, however, be mentioned. Firstly, the final 12 pages comprise an annex listing the access to coastal waters by different member states. This obviously includes the UK’s territorial waters which the Government indicated it intended to return to UK control by denouncing the 1964 London Convention.  If these pages are included, then the good done by doing this is essentially undone and the government would have broken a promise.

Secondly, this Regulation is the latest of a series of regulations enshrining the UK’s 10-year derogration restricting access to the waters up to 12 nautical miles from the shore, which currently expires on 31st December 2022. If the Regulation is included in UK law featuring any wording implying that restricting access to any part of the waters around the UK is subject to agreement with Brussels, then we have in effect granted the EU a right to continue dictating who may or may not fish in our waters. This is unacceptable.

Finally, if anything resembling Regulation 1380/2013 ends up on the UK statute books after Brexit, even if it has been heavily amended, it will be scrutinised in minute detail by, among others, the French, who will seek to find any opportunity they can to take us to an international court and challenge our decision to repatriate our fishing policy.  Given that so much of this document needs to be deleted or amended to make any sense and that there is plenty of scope for ambiguity creeping in, the threat of a legal challenge adds still further to the reasons for saying that excluding it from the EU (Withdrawal) Bill in its entirety is the only sensible approach to take. Fishing for Leave has the expertise to devise a fishing policy in 18 months – one which will revitalise our coastal communities after years of decline. If even a heavily amended version of this Regulation finds its way onto the UK statute books, it will not be truly Brexit for an industry that has campaigned so long for the return of fisheries to UK control. Given the appalling way in which previous Conservative governments have betrayed our fishermen, this present administration must not be allowed to bungle this great opportunity to right an historic wrong. Thankfully, one Conservative MP has already flagged up the potential problems a bungled fisheries Brexit would cause. We can but hope his colleagues will take heed.

 

Fisheries: One MP talks sense as battle over quotas continues

A week ago today, the subject of fisheries was raised by Craig Mackinley, the Conservative MP for Thanet South, in the debate over the European Union (withdrawal) Bill.

The relevant part of his speech, taken from Hansard, was as follows:-

“I support it {The European Union (Withdrawal) Bill} completely for legislation that is applicable only to the United Kingdom, but when dealing with legislation that involves relationships outside the United Kingdom, such as the common fisheries policy, I have a few concerns, because the body of legislation—the acquis—that is the CFP is made up almost entirely of regulations. The only way we can achieve compatibility is through a legally binding withdrawal agreement, and that in itself brings some problems. First, at this stage, we do not know what that agreement will contain. Indeed, we do not even know if we will be getting an agreement at all, such has been the appalling behaviour, sadly, of our EU partners.

Secondly, taking the common fisheries policy as an example, article 50 takes us out cleanly, so there is no possibility of future legal challenges that we would have to try to avoid. Regulation 1380/2013, which will be brought across by the Bill, will re-establish the common fisheries policy in all but name, possibly paving the way for a legal challenge, perhaps via the Vienna convention on international treaties, through the withdrawal agreement. The evidence of that is the acquis that we have accepted and transposed into UK law, thereby creating a continuation of rights thereon.

I would like to see the proposed fisheries Bill, which is due before us at some stage, and which could solve the problem. We have no idea what that Bill will contain. Will it continue to give away the nation’s wealth that is its fish? Will it continue the disastrous CFP policy of quota allocation, which puts the resource in the hands of a few, and is the cause of the completely immoral discarding of prime fish that we have seen all these years? We simply do not know. Why are we going down this tortuous route when the easiest route would be to exempt the entire fisheries acquis from the withdrawal Bill, and produce a fisheries Bill, coming into force on 30 March 2019, that confirmed what international law bestows on this nation? That is not unusual, because the withdrawal Bill already exempts parts of the charter of fundamental rights.

Fishing is the area in which the British people demand a clean Brexit, and I think they will accept nothing less. Fishing must not be used as part of a trade-off, and availability must not form part of a deal elsewhere. Control of our exclusive economic zone extending to 200 nautical miles or the median line will regenerate our coastal communities, but if we follow current fisheries policy, we will certainly fail to do that. It is quite odd that we commit vast amounts of cash to communities such as mine in Ramsgate, Broadstairs and parts of Margate through the coastal communities fund—I am thankful that we do—but we seem to have no clear commitment to the one thing that could provide great rejuvenation for our coastal communities, which are recognised as having lower rates of employment, and which are in need of restructuring and infrastructure.

On this subject, the electorate are very wary of shenanigans. We cannot afford to create failure, and it is our responsibility to make this a success. I am happy to trust the Government by supporting Second Reading tonight, but I would very much like to hear more about their proposals for restoring one of this nation’s finest treasures—our very positive fishing grounds, which have the potential to benefit our communities and should never have been taken away.”

It is encouraging that at least one MP has spoken so clearly about the key issues as far as fisheries are concerned.  There is much vested interest, particularly among those who have bought quota, to keep the status quo. This, as Mr Mackinley rightly points out, will do no good whatsoever to our coastal communities and especially the smaller family-owned fishing boats which may struggle to survive 2018 if the new discards ban is enforced.

 

Peer says: Let’s back Boris’s “positive vision” not Juncker’s “nightmare”

THE PRESS OFFICE OF

The Lord Stoddart of Swindon

(independent Labour)

News Release

 

18th September 2017

 

Let’s back Boris’s “positive vision” of UK’s future not Juncker’s “nightmare,” says independent Labour Peer

The independent Labour Peer, Lord Stoddart of Swindon has welcomed Foreign Secretary, Boris Johnson’s controversial intervention in the ongoing debate about the Brexit negotiations.  Lord Stoddart said: “I congratulate the Foreign Secretary for having the courage to write about a positive vision of the future of our great country, in the face of so much pessimism from gutless politicians who seem to have no faith in our country or its prospects.

“Mr Johnson has laid out the golden future that awaits us outside of the European Union and the public sector ought to welcome the £9 billion net saving we will make on leaving, as this sum gives the Government the funding not only for decent public-sector wage increases but also for investing in the NHS. His vision is particularly timely given that the European Union, in defiance of public opinion, has unashamedly set itself on the road to a federal super-state, as has been made all too clear by European Commission President Jean-Claude Juncker, in his recent state of the Union address.

“We must strongly support the Foreign Secretary’s vision of the future, not the nightmare envisaged by Mr Juncker.”

Ends

NB: Boris Johnson’s full article can be read at: https://en-gb.facebook.com/borisjohnson/posts/10155036320191317