A Brexit that will work for nobody

“Brexit means Brexit,” Theresa May famously said on a number of occasions last year, “And I intend it to work for everybody.”  With the half-way point between the referendum vote and Brexit day looming next month, current pronouncements from the Government suggest that on the contrary, we could end up with a Brexit that works for no one.

Our fishermen have good reason to be worried. Unless the Fisheries Regulation 1380/2013 is exempted from the European Union (Withdrawal) Bill – and there is no sign that this is the Government’s plan – we will end up leaving the Common Fisheries Policy only to revert to what is in effect a shadow CFP, including all the access arrangements which would continue to give away our nation’s resource to the EU. Last week, when asked about fisheries, the Prime Minister said,

“When we leave the European Union, we will be leaving the common fisheries policy. As part of the agreement that we need to enter into for the implementation period, obviously that and other issues will be part of that agreement.”.

While this “implementation period” may exist only in Mrs May’s imagination, she should instead have given an unequivocal statement that upon Brexit, we will not only immediately take full control of our Exclusive Economic Zone, but will not be running it on a quota basis.

At least as far as fisheries is concerned, there is hope that ultimately it will be Michael Gove who determines post-Brexit policy. He has shown himself sympathetic to the plight of our fishermen and his mention of John Ashworth in person during a fringe meeting at the Tory Party Conference is a recognition that the fishing community is running a well-organised campaign that not going to take no for an answer.

Another area of concern is the reluctance of this government to disentangle ourselves from the EU’s military machine. Our friends in Veterans for Britain  were understandably critical of the Government’s recent  “future partnership” paper on defence, which would limit our independence. They also do not want to see is tied in to PESCO (Permanent Structured Cooperation) a key factor in the EU’s military ambitions to create a defence union. It appears from an earlier briefing put out by VfB that many MPs are still in the dark about the very limited military autonomy with which government ministers plan to allow us. This is unacceptable. As an independent country, our political objectives will inevitably diverge from those of the EU. We will no longer be interested in its empire building in the Balkans or among the former soviet republics. Our defence policy must be disentangled from that of the EU before we leave. If Mrs May is planning a reshuffle, as is widely being rumoured, the appointment of a genuine Brexiteer to  replace the most unsatisfactory Micharl Fallon as Defence Secretary would be a very good move.

We also need to make a clean break with the EU on criminal justice matters.  Torquil Dick-Erikson has raised the issue of the European Arrest Warrant on this website before. We agree with him that it is totally unacceptable for the Government to keep us as a signatory to the EAW and to be a member of Europol. More than that, Torquil has pointed out that the Government has also declared its willingness to allow “special intervention units” from the EU to set foot on British soil, and under a smokescreen of “ensuring security.”

In these three areas – fishing, defence and criminal justice, Brexit must be as “hard” as possible and the Government’s shortcomings will be highlighted over and over again on this website until there is a change of heart. This is not the Brexit we voted for.  As last year’s Vote.Leave slogan said so graphically, it was all about “taking back control”. If our fishing grounds are shared with the EU, our defence is bound up with that of the EU and EU judges still have the power to haul us off to any one of 27 member countries on the basis of unsubstantiated allegations, we are not in control at all.

What is more, these issues must not be swept under the carpet while all the media focus being on trade talks – or rather, the lack of trade talks. Thankfully, as far as trade is concerned, a number of senior figures from industry, supported by a small but growing number of MPs are expressing their concern that the “No deal is better than a bad deal” mantra is unrealistic and dangerous. Leaving the EU without a deal would be a calamity for our economy, even though one recent opinion poll suggested that as many as 74% of voters would prefer this to a supposed “bad deal”. Do they realise that planes would be unable to fly? That the M20 in Kent would be turned into a lorry park overnight?

Of course, it is possible that the Government is engaging in brinkmanship to try to twist the EU’s arm and get it to start trade talks before the three contentious issues of the Irish border, the “divorce bill” and the rights of EU citizens have been agreed, but it is a high-risk strategy and one that looks unlikely to succeed. It is based on a long-standing failure to perceive that the EU is first and foremost a political project, not a trading bloc.

This mistaken perception of the EU’s nature suggests that the transitional arrangement mentioned recently by Mrs May (where we would be able to trade seamlessly with the EU after Brexit in return for being subject to most of the EU’s rules and policed by the European Court of Justice) is mercifully a non-starter.  It is an unsatisfactory pick-and-mix deal which violates the EU’s political integrity while being an extremely bad arrangement for the UK. It remains a mystery why the EEA/EFTA option is still being ruled out of court by all senior government figures when something far worse is being publicly advocated instead.

While no sane person would disagree with the statement by David Davis that Brexit is “the most complex peacetime operation in our history”, it is now nearly 14 months since the referendum vote and we do not yet have any indication that the Government has come up with a strategy which will deliver a satisfactory break with the EU.  Thanks to David Cameron’s ban on allowing the Civil Service to work on any Brexit plan before the  referendum, the Government and Whitehall have found themselves on a sharp learning curve, but some campaigners, such as John Ashworth have been active for 20 years or more and have considerable knowledge their specialist subjects. Why are their recommendations not being adopted? Why, after all this time, is the government still seemingly confused about the difference between the Customs Union and customs clearance agreements? Why has the defence integration continued since the Brexit vote without any consultation with the military, who actually understand the issues?

It does not help when anyone who dares to stick their heads above the parapet and suggest that we are heading for a disaster is labelled a “traitor” – as was the case with Philip Hammond last week. Of course, Mr Hammond supported remain during the referendum and some ardent Brexiteers refuse to believe that anyone who did not campaign for Brexit can possibly be genuinely committed to making it happen, in spite of our own soundings which suggested that most MPs, whatever side they took in the referendum campaign, have accepted the result and will not seek to be obstructive over Brexit. More worryingly, a veteran leave supporter like Christopher Booker, whose pro-Brexit credentials are impeccable, has been tarred with the same brush for expressing concern about the direction of Brexit talks. What is the point in saying things are looking good when there is every evidence that they are not?

There are two very big worries which force concerned Brexiteers like Mr Booker – and indeed, your author – to stick to their guns. The first is that a calamitous Brexit would be grist to the mill of the hard-core remainiacs who have never accepted the result of last year’s referendum. A spike in unemployment and inflation coupled with possible food shortages would lead to calls for us to start negotiations to re-join the EU, even though we would lose our opt-outs on the €uro and Schengen along with the Fontainebleau rebate won for us by Mrs Thatcher. This would be a disaster.

Secondly, it would lead to unprecedented political upheaval. Less than a year ago, some Conservatives were convinced not just that Jeremy Corbyn was unelectable but that the Labour Party was in its death throes. Last June’s election was a rude awakening for the Tories, proving their optimism to be very wide of the mark. The mood at the Party conference was apparently very sombre indeed.

There is good reason for this, as today’s young people in particular are far more likely to support Labour than the Tories, suggesting that far from Corbyn being unelectable, he is likely to become Prime Minister in 2022, bringing with him a team of MPs who are in the main, even more reluctant Brexiteers than the Tories. The best way  – indeed, probably the only way – of avoiding this is for the Tories to deliver a successful Brexit. Analysis of voter intentions suggest that the most popular reason why voters opted for the Conservatives last June was a conviction that they would deliver on Brexit. To betray the voters’ trust  would not just hand over the keys of No. 10 Downing Street to Jeremy Corbyn in 2022; it would produce the biggest crisis in the Conservative Party since the repeal of the Corn Laws in 1846.

As  Anthony Scholefield, a CIB Committee member, pointed out in his 2011 critique of Cameronism, “Too ‘nice’ to be Tories – how the modernisers have damaged the Conservative party“,  attempts by the Tory leadership since 2005 to reach out to urban touchy-feely politically correct types have served rather to alienate many traditional supporters. As I argued a few years ago, there are plenty of people who genuinely want to vote for what Mrs May famously called a “nasty” party. I was wrong in predicting that Cameron wouldn’t win the 2015 election, but he only won it because he was forced to give in to the mounting pressure within his party to hold a referendum on our membership of the EU. It was the EU issue which also saved Mrs May’s bacon two years later. Given that a good few Tory voters (and indeed activists) still remain most uncomfortable about this move to the supposed centre ground since Cameron became leader, I believe that nothing else can save the Conservatives from calamity in 2022 except a smooth, well-managed and complete Brexit that will enable our businesses to keep trading while at the same time revitalising our fishing industry and freeing us from the clutches of the EU’s military and the EAW.

To put it another way, the Tories have a long list of EU-related sins for which they need to repent collectively, going back to the deceit of Edward Heath in the 1970s. This is their one and only opportunity to make atonement. They created the mess; it is poetic justice that they are being saddled with the task of getting us out of it. If they succeed, the country can move on after over 40 years in our unhappy relationship with Brussels and the party need never again “bang on about Europe”.  If they fail, our country may well end up marking the centenary of the resignation in 1922 of David Lloyd George, the last ever Liberal Prime Minister,  with the resignation of the last ever Conservative Premier. It really is as serious as that

 

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. The Government’s Position Paper cites the Queen Mary  Study which states that:-

  • 30%  of international contracts are governed by English Law – second place Swiss with 9%
  • 40% of international arbitrations are in London – 7% in New York.

The rest of the world believes that English Law is superior to Civil (European, Code Napoleon jurisdictions) Law, but the British Government is not prepared to back English Law (the Common Law: the law of India, the USA, Canada, Australia, New Zealand, South Africa, Hong Kong, etc.) which is preferred internationally because English Law provides certainty.

Even some French and German multinationals prefer to make their  contracts subject to English law (even when contacting with parties in their own country) because English Law provides certainty.

If the the British Government allows European Law to override English law, then London will cease  to be the number one destination for international arbitrations, which will also result in ancillary job losses (e.g. , insurance (Lloyds and, P and I Clubs), finance, legal, scientific and expert services).

The British Government needs to realise that it is English Law which is largely responsible for the primacy of the City of London, because the world believes that contracts made in the U.K. will be fairly enforced, and should not allow European Law to subvert English Law.

We can but hope that the significant role played by our capital city will continue after Brexit. Unfortunately, the Govenrment paper has offered us much reassurance on this subject nor offered many clues on how we will cooperate with the EU on cross-border civil issues.

The European Union (Withdrawal) Bill: (1) Why we need it

The European Union (Withdrawal) Bill, which is being debated in Parliament this week, prepares the way for us to abrogate the 1972 Accession Treaty by which we joined what has become the EU and repeal the European Communities Act 1972 which gave the Treaty its force in British law. If there are no delays, we will cease to be a member state of the EU on 29th March 2019.

The campaign to regain our sovereignty has lasted for many years and it is encouraging that Parliament will finally be preparing the way whereby this is to happen. After over 45 years as a member of the European project, however, we are currently in a position whereby many items of legislation on our statute books originated in Brussels and what is more, derive their authority from the EU treaties to which we have been a signatory.

In this regard, the wording or Paragraph 3 of Article 50 of the Lisbon Treaty, which the UK Government invoked last March is particularly important:-

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Note the phrase “The Treaties  shall cease to apply.” This means that the current basis for any EU-derived legislation being included in UK law disappears on Brexit Day in March 2019. In other words, if the Government doesn’t take action, a considerable number of laws completely lose their authority.

For the benefit of anyone who has never studied any EU legislative document, you may like to click on this link, which does admittedly take you to one of the most pointless of all regulations, but at least it is short, so you won’t have to plough through pages of technical detail.

It begins by saying:-

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Right from the start, the document makes clear that it derives its authority from the EU treaties, which will cease to apply to the UK once we leave the EU. Therefore this regulation’s authority also ceases for us.

Just to confirm this point, Article 3 of this regulation says:-

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union

and then the Regulation concludes with these words:-

This Regulation shall be binding in its entirety and directly applicable in all Member States

So to underline the point, we will no longer be a Member State, so it will no longer apply.

The disappearance of this particular Regulation, complete with its picture of a cuddly toy sheep, from our statute books wouldn’t create any anxiety for HM Government or the team of Civil Servants in the Department for Exiting the European Union. There are, however, many far more important pieces of EU legislation which, if they lost their authority overnight without anything else being put in their place, would cause chaos.

For instance, the EU’s Bathing Water Directive 2006/7/EC which deals with the quality of bathing water. Readers may like to study this page of the DEFRA website which tells Councils what they must do to inform bathers at beaches and lakes about the quality of the water in which they will be swimming. If there is no regulation in force to replace the one which the EU has foisted on us, there is an enormous potential for serious problems to ensue. To take an extreme example, someone could pour hundreds of gallons of a highly toxic substance into a lake used for bathing and if the local council failed to put up a notice about it, there would be no mechanism to prosecute it. The legal basis for a court case would have vanished on 29th March 2019.

What the EU (Withdrawal) Bill will do is to “repatriate” EU legislation. In other words, it will remain on our statute books but in an amended form so that its authority will derive not from the EU treaties, which no longer apply, but from our Westminster Parliament.

It may upset some Brexit supporters that we still will be stuck with this legacy of our EU membership, but it was the approach adopted by several newly-independent states in the past as the only way of ensuring life carried on normally after independence. For instance, in 1922, the Irish Free State adopted all laws bequeathed to it by the Westminster Parliament to be effective in the newly-independent country and enforced by its institutions. The alternative would have been an impossible legal vacuum.  India did likewise when the British Raj came to an end in 1947.

While it may go against the grain still to be reliant on laws bequeathed by the authority you have just shaken off, as an independent country you will be in a position to revise or repeal them at a later date if you don’t like them. Even though there is more time to prepare for Brexit than the very hasty British withdrawal from India, however, negotiating independence will be a massive undertaking. As far as the mechanisms for day-to-day administration of the UK are concerned, it is therefore best to let sleeping dogs lie during the period immediately after independence.  The EU (Withdrawal) Bill seeks to do just that. Some EU legislation is actually very sensible. An independent UK would probably have passed a very similar act to the Bathing Water Directive. It is therefore likely that this piece of EU-inspired legislation will continue as UK law more or less unaltered for the foreseeable future.

On the other hand, some EU laws do not suit the UK and would better be replaced by new domestic legislation. Take the Landfill Directive which was brought in because Denmark and Holland, two small flat countries, had run out of holes in which to bury their domestic waste.  The UK, with its quarrying industry, does not suffer from this problem, but the requirement to comply with this directive has resulted in the erection of smelly incinerators.  In due course, we can rid ourselves of unhelpful legislation like this.

Likewise, the Interoperability Directives,  which set the rules for the registration of newly-built railway rolling stock, are unnecessarily complicated for well over 95% of the trains running in the UK because they were designed to make it easy for trains to cross international borders. Given the UK’s island location, the Eurostar services, car, coach and lorry shuttles through the Channel tunnel, international freight trains and the handful of through Belfast-Dublin passenger trains (Currently eight in each direction on weekdays and five on Sundays) are the only rail services ever likely to cross international boundaries. We could replace it with something much simpler for the benefit of most UK domestic rail operators.

At the end of the day, however, if it takes a couple of years before Parliament has the time to look at replacing these less-than-ideal pieces of legislation with something better, the sky is not going to fall in if we still abide by them post-Brexit. What really matters is that on 29th March 2019, we don’t wake up to a huge legal vacuum where areas of our life as a nation are completely unregulated because the EU treaties no longer have any force.

This, then, is the rationale behind the EU (Withdrawal) Bill. In the next article, I will address an obvious concern that sharp-eyed readers may have spotted. Taking again our “Cuddly Toy Sheep” Regulation 1462/2006 as an example, it clearly cannot be transferred onto the UK  statue books verbatim. It is no longer a Regulation deriving its power from the EU treaties so any reference to the Commission or to Council Regulations and other EU legislation will need to be re-worded. Then there is the phrase “Member States”. This again will need to be changed in the “repatriated” version or it won’t make any sense.  You would think that it ought to be a simple job using certain formulae to make the necessary corrections in regulation after regulation without altering the provisions of the original EU law beyond limiting its scope to the UK, but in reality life isn’t quite that simple…………………

 

The European Arrest Warrant – further reasons for pulling out

My speech on the subject of “European Law – will it go away with Brexit?” was delivered at a CIB-organised meeting at the House of Lords on 15th March 2017. You can download the full text here.

For those who wish to know more, I made a submission to the House of Lords in 2013-4 as a contribution to the debate at that time on whether to opt back into the EAW or not. This was posted on the CIB website a while ago and can be downloaded here. However, there were three appendices to the submission which were not previously available. They now can also be downloaded.

Appendix A shows the article I published in the New Law Journal in 1990. Readers may recall the famous miscarriages of British justice – the Birmingham 6 and the Guildford 4 – some Irishmen wrongly convicted of placing bombs in pubs for the IRA. After 15 years while these innocents languished in prison, the British system did acknowledge that this had been due to the investigators (the police) beating confessions out of them and then lying on oath in court. As a result of this, a well-known campaigner called Ludovic Kennedy then campaigned, with the support of barrister Michael Mansfield, to introduce elements of the French inquisitorial system, where investigations are conducted by, or under strict supervision of, a judge, not the police. My article served to show that this solution would not give the desired results, on the contrary.

Appendix B reproduces two pages from the official programme distributed to the participants at the seminar I attended in Spain in April 1997 where the Commission unveiled its Corpus Juris project for a single criminal code for all Europe. They serve to dispel and disprove the myth put about at the time by the Europhiles that  was NOT anything out of the EU institutions, just a “thinkpiece” dreamed up by some unaffiliated academics (untrue – see page B1); and the other myth that its scope was limited only to the defence of the financial interests of the EU, with no intention to expand it later to cover all other forms of criminal law and justice (again, untrue, see page B2 – where they openly call it an “embryo criminal code for Europe”).

Appendix C, taken from Hansard, gives the briefing paper I wrote which was read aloud in the Commons by Nick Hawkins MP in 2003. I think it is necessary to put this on the record because it shows that the government had done no research whatsoever into the continental criminal law system to which they were recklessly exposing British people in Britain; in fact, they did not bother to discuss and refute what I said, but simply disregarded my analysis completely. All that the government spokesman Bob Ainslie MP could say at the time was “Well, we see that the Italian justice system is very different from ours”. My main point was to show that the Italian system makes no hard and fast distinction between an investigation phase and a prosecution phase – an investigation is always “against” a suspect – so the government’s pretence that a case had to be “prosecution-ready” was meaningless.

New Government position paper – the exchange and protection of personal data

This is the final of the five position papers released by the Department for Exiting the European Union in advance of the next round of talks between David Davis and Michel Barnier, which are due to begin next week.

It is highly unlikely that this particular subject will be up for discussion any time soon. The EU is keen to see progress on the Brexit bill, the Irish border and  the rights of EU citizens resident in the UK before widening the scope of negotiations to include issues like these.

Once again, we are informed that the Government is keen to build a “new, deep and special” relationship with the EU – an unfortunate phrase which fails to reflect the reality of Brexit, as we have already pointed out.

This study paper falls into the common trap of some earlier position papers in assuming that because our procedures are aligned with the EU at the moment by virtue of being a member state, an agreement will be straightforward. This represents a failure to appreciate that being a Third Country for EU purposes is radically different from being an EU member state. The Treaties no longer apply (to quote Article 50, Paragraph 3) and just because there has been  – and indeed, will be – conformity in a number of areas up to Brexit day, this in no way obliges the EU to carry on as normal once we leave. As far as data sharing is concerned, this remains true even though the latest EU legislation on data sharing,  General Data Protection Regulation (GDPR) will be incorporated into UK law next year.

Furthermore, the whole point of Brexit is divergence. We voted no longer to be ruled by the EU and for our own Parliament and our own laws to be supreme. In this area and many others, we will not want to incorporate subsequent EU laws into UK law lock, stock and barrel once we leave or else it means Brexit isn’t Brexit. Maintaining the balance between independence and cooperation is the biggest challenge our negotiators will have to face and this paper, along with others which have recently appeared, has stated the issues and the desired outcome without providing any detail about how it is to be reached.

The paper is nonetheless correct in stating that with data flows being important both for trade and for dealing with crime, some form of arrangement must be sought. However, we will have to agree with the European Commission that the UK provides an adequate level of data protection before any formal agreement can be made. This may not be straightforward at all. As this article points out, the UK government has been far too keen to grant excessive surveillance powers to its security services. In an understandable desire to keep tabs on terrorism, the powers sought by the UK government under the Investigatory Powers Act to interfere in the communications of innocent men and women earned it a rebuke from the European Court of Justice to which, whether we like it or not, we are subservient until March 2019.

It would have been helpful if the Government  paper had fleshed out the rather broad concepts it discusses with some everyday examples by way of illustration. The article mentioned above does provide some useful clarification on the type of personal data which is currently shared across national borders. UK companies with customers, users or employees in the EU currently transfer personal data like family pictures, banking details and employee payslips across national boundaries. This is the nature of the globalised world in which we live.

So the aim of the Government is understandable – it would like the transfer of information to carry on much as before when we finally leave. Reality could turn out to be rather different.

New government position paper – Enforcement and dispute resolution

This latest Government position paper begins with a phrase we have heard time after time “new deep and special relationship.” This is a most unfortunate term, although at least it makes the point that we don’t want to make enemies of EU-27. Our relationship will certainly be “new” as we will no longer be a member state but “deep and special”? We voted for a looser relationship to enable us to be closer to the rest of the world. It is hard to imagine that in a decade or so, if Brexit is managed successfully we will be any closer to the EU than to our friends in the Commonwealth, for instance. The EU, in other words, will not be particularly special even if we naturally want to work closely with it.

The paper attracted much comment over the future role of the European Court of Justice. Upon its publication, the Government was accused of back-tracking over its commitment to end the jurisdiction of the European Court of Justice upon  Brexit. Even the Prime Minister felt obliged to make a statement confirming that this was still the Government’s intention.

The paper says little about one contentious issue – the desire of the EU that its citizens resident in the UK will remain subject to EU law after Brexit. This is a most unreasonable request and flies in the face of our Common Law principle – that the law is the law for everyone from the monarch downwards. Historically, the scope of our Common Law has applied to non-nationals either resident in or visiting the country. We do not hear of the governments of, for example, India, Saudi Arabia, Switzerland or the USA wanting an arrangement whereby their citizens remain subject to the laws of their home country while they reside in the UK, nor would these countries grant UK citizens living abroad the right to be governed by UK law. The EU’s claim to “extra-territoriality” is exactly the same as that which the nineteenth century Imperial powers imposed on China. Under their terms, Citizens of the European states could not be tried by Chinese courts but only in the courts established by the European powers in China. Given that the UK’s legal systems are better than those found in much  of Continental Europe, the EU’s demand should be resisted


As an aside, if the UK rebuffs the EU on the grounds that the same legal system applies to everyone resident in the country,* it does pose the question about the legitimacy of the Sharia courts operating in the UK, which do not have any formal legal status but in reality, make decisions which have a profound impact on the lives of women and children in particular.

The paper leaves open the nature of cooperation between the legal authorities in the UK and the EU in the event of international disputes. It quotes examples of international legal bodies already in existence, including the EFTA court, interestingly enough. The UK government has thus far shown no inclination that it wants to re-join EFTA, but such a move could be helpful in enabling us to take advantage of an existing body which works closely with the ECJ while remaining independent of it.

Like the previous papers, detail is rather limited and although these papers have been produced in theory to guide the next round of Brexit talks which are due to start next week, this topic isn’t going to be discussed any time soon. We need not have agreed with the EU’s demand for progress on the rights of EU citizens living within the EU, the exit fee and the Irish border issues before moving onto discussing the wider Brexit settlement, but David Davis did so. Consequentially, as has been pointed out elsewhere, this paper is really only for domestic consumption only.

 * Obviously, Scotland and Northern Ireland have different legal systems to England and Wales