Mr Davis’ Brexit bridge to nowhere

Some of us will no doubt remember learning the song Sur le pont d’Avignon in our French classes at school. If you are careful, the bridge in question, the Pont St. Bénézet, may be a possible venue for dancing, as the song suggests, but it no longer fills its original function of providing a crossing of the River Rhône as only four of the original 22 arches, which date from approximately 1345AD, are still extant. When the river flooded, the arches tended to collapse and by the 17th century, the authorities gave up their attempts to repair the damaged masonry, leaving its four surviving arches as a bridge to nowhere.

David Davis is now engaged in a hard sell, trying to convince MPs and the general public that his proposed transitional deal is a stepping stone to full severance from the EU. He called it a  “bridge to the future.” If this deal is agreed by our parliament and the EU, nothing could be a less accurate description. Like the Pont St Bénézet in Avignon, it is a bridge to nowhere.

Those Tory MPs making a statement on these lines (and there have been some recently who have use somewhat different terminology to say the same thing) have been denounced as “swivel-eyed” by Claire Perry, the energy minister. The uncomfortable reality is that from what we know of the terms of this deal, it is nothing less than an unmitigated disaster.

We can start with the words of the Brexit secretary himself. Here is his speech. He talks about “strictly time limited implementation period,” yet not only did Mr Davis not specifically mention 21 months but already, rumours are circulating that it may be extended to last for three years.

And during this period, for all Mr Davis’ evasive language and hard-selling, yes, Jacob Rees-Mogg is correct, we would be a vassal state of the EU with no representation yet forced to accept all its laws. Our friends in Fishing for Leave have analysed both Davis’ speech and the EU’s terms for the implementation (aka transitional) period. You can read the analysis of the speech here and a summary of the Commission’s recommendations to the EU council about the terms and conditions for the transitional arrangements here.

The European Council has now (today 29th January) published an annex to its guidelines of 29th April 2017 which covers the transition period. You can read the document here and an analysis of it here. “Vassal State” sums it up well. In case anyone is in any doubt, Clause 13 insists that during the transition period, “The Union acquis should apply to and in the United Kingdom as if it were a Member State. Any changes to the Union acquis should automatically apply to and in the United Kingdom during the transition period.” We’ve got to accept the whole caboodle and we don’t have any say in what may come our way. Davis assured the Select Committee that it takes a long time for new EU laws to pass through the system so it was unlikely that anything which was still only in the pipeline on Brexit Day would actually get through onto our statute books at the end of the transitional period. This is wishful thinking, The Common Fisheries Policy was rushed through in three months in order to be in force when the UK joined in 1973.

The Council document also denies us the right to sign any trade deals during the transition period without the EU’s permission. Clause 16 states:- “During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the fields of competence of Union law, unless authorised to do so by the Union

The Council document interestingly did not repeat the Commission’s refusal for us to piggyback on any deals which it has signed with third countries. Clause 14 of the Commission document was  unequivocal: “It is also recalled that as from the date of its withdrawal from the Union the United Kingdom will no longer benefit from the agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly.” In other words, we would have to agree not to ask the countries in question if they still wished to keep the same trading arrangements with the UK. We would essentially be under “WTO rules” with the rest of the world. Is its absence a “concession?”

Whatever, we would be stuck in the EU’s customs Union. As we have mentioned countless times before, if we are in the Single Market, there is NO NEED to be in the Customs Union. The two are NOT joined at the hip. “Davis, come here, you bad boy. Your punishment is 100 lines; write out the following until the message sinks in:- we do not need to be in the EU’s customs union after Brexit. “

Add to this an insistence that the ECJ will have an ongoing role in the UK’s affairs (Clause 10 of the Council document) and a continuation of free movement of people (Clause 16). The Council document only briefly mentions the EU budget (Clause 17) but the Commission’s insistence on a payment into the EU’s coffers which is little different from our current payments as a member state appears to be implied.

Naturally, during this transition period, we will be subject to the Common Fisheries Policy (see Clause 21 of the Council Document) which is a disaster. Indeed, if it is extended beyond the current 21-month period, there will be very little left of our fishing industry, which would be catastrophic given that Fishing for Leave’s proposals would have turned the UK into a world leader in fisheries management and would have revived our coastal communities.

What is more, any concessions made to the EU in any transitional deal cannot easily be revoked when it is replaced by a long-term arrangement. Because this “transition” is part of a new treaty AFTER Article 50 terminates the current relationship, and because we will have agreed to replicate and adopt all EU laws, we will create a “continuity of rights” under Article 30 and Article 70 of the Vienna Convention. As this new transition treaty will not terminate with a clinical Article 50 clause where “the treaties (& obligations) cease to apply”, the EU will have grounds to argue that because we undid Article 50 and re-adopted the entire Acquis with no clear exit clause that their rights and obligations established under the transition treaty should continue past 21 months.

The EU may be eventually proved wrong to argue so, but protracted litigation on what is a grey area of international treaty law could tie this country in knots and quickly erode the minuscule resistance within the British establishment to concede to any EU demands.

To say therefore that this transitional arrangement is unacceptable, even if by some miracle a new deal could be signed in 21 months with no continuity, is hardly the language of “swivel-eyed loons.” It is merely stating what over 17 million people voted for in June 2016 – in other words, we must leave the European Union. Adopting the transitional terms on the basis of the Commission and Council documents would be like having a dance on Pont St Bénézet in Avignon – once the fun is over, your only choice is to walk off the bridge at exactly the same place where you walked on. In other words, we would not be out of the EU in any meaningful sense of the term – not in 2019, not in 2021, maybe not ever. It is a complete surrender – the worst of all worlds. The sooner the likes of Claire Perry, David Davis and indeed Theresa May realise this, the better.  If they don’t, their party will face the wrath of voters all too soon and could find itself in the middle of its worst crisis since the repeal of the Corn Laws in 1846. Thankfully one MP has realised this. His colleagues need to  wake up quickly. It really is that serious.


Photo by Dano

Macron and Marr muddy the waters as Brexiteers speak out against the ECJ

The headlines in Open Europe’s daily e-mail sounded very promising:-  “UK could have a bespoke arrangement between full single market access and a free trade deal, says Emmanuel Macron.” Isn’t that what everyone has wanted? Could it even be “having cake and eating it”?

Not if one reads the small print. Macron’s comments were made during an interview for the Andrew Marr Show. Nicola Shawson of the Guardian listened to the full interview and pointed out that Macron insisted that there would be no cherry-picking:-

Pressed on whether there would be a bespoke special solution for the UK, Macron said: “Sure, but … this special way should be consistent with the preservation of the single market and our collective interests… and you should understand that you cannot, by definition, have the full access to the single market if you don’t tick the box.”

So nothing new here. We will get a deal giving us some degree of access to the single market, but not full access. It will be worse than the access we enjoy as a full member. Fine. We already knew that.

Another person who listened to Macron’s interview with Andreew Marr was Richard North, who pointed out that Macron contradicted himself:-

By definition, he said, the relationship will be “less deep than today”. The deepest possible relationship is being a member of the European Union. But he then adds: “As you decided to leave you cannot be part of the single market”.

Now this is confusing because he goes on to say that “you can have some deeper relations and some others”. For instance, he says, “we have a deeper relation with Norway than the – the one we have with Canada”. So it depends on the outcome of the Brexit negotiation but, unless you change your mind, you will not be part of the single market because you will not be part of the European Union.

Addressed to someone like Andrew Marr, who already has a slender grasp of the basics – to say nothing of the body politic in general – this sort of confusion, where he elides membership of the EU and the Single Market, can be fatal.

Certainly, the French President seems to contradict what he was saying last week in the aftermath of the Anglo-French summit at Sandhurst.

It’s therefore not only our side which is getting into a muddle over Brexit.

Macron and Marr were discussing a longer-term EU-UK relationship, Turning to the transitional arrangements, it is encouraging to note that opposition is mounting among Conservative MPs to any role for the ECJ and to free movement of people after 29th March 2019 – Brexit day.  Jacob Rees-Mogg didn’t mince his words about free movement nor the cost of the Brexit settlement, while ex-ministers Iain Duncan-Smith, John Redwood, Owen Paterson and Lord Lawson also made clear their opposition to any involvement of the ECJ once we are formally out of the EU.

Of course, it is one thing to point out the bad features of a proposed deal and quite another to come up with a suitable alternative, particularly one which will satisfy the business community, which is desperate for some guidelines in time to plan for life outside the EU. Some compromises will have to be made as it is impossible to find even a short-term deal which will tick everyone’s boxes. A total surrender to the EU, however, turning us into a colony of Brussels for 21 months, is definitely not the answer and it is good that voices in Parliament are beginning to be raised which will hopefully force a re-think – and soon.


PS: Since this article was published, a further article which provides an indication of the scale of opposition to free movement of people and any role for the ECJ after Brexit has appeared in the Independent. Mrs May is going ot have a very tough time trying to get an agreement for the transitional deal as it stands, although a leadership challenge, as suggested by the author of the article, does look very unlikely.

Photo by LeWeb14

One step nearer….

It’s good to have some good news on the Brexit front after hearing of the hardening of the EU’s stance on the proposed transitional arrangement and the recent but unnecessary talk of a second referendum. Last night, something positive happened which takes us one small step nearer to leaving the EU – the European Union (Withdrawal) Bill passed its third reading in the House of Commons and will now go to the Lords.

Recently, the focus of Brexit has been on our future relationship with the EU once we leave. There is another equally important aspect of leaving the EU  – ensuring that we have sufficient laws in place to enable the country to run smoothly on Brexit day. Essentially, all laws passed by the EU which have then been included on our statute books derive their authority from the EU treaties, but these will cease to apply once we leave the EU and repeal the 1972 Accession treaty, so the resultant legislation also becomes null and void.

In order to avoid a legal vacuum, with no regulation at all covering areas of day to day life, laws originating with the EU must be “repatriated” so that they derive their authority from our Westminster Parliament instead and this is what the European Union (Withdrawal) Bill provides a framework for. They will not necessarily be transposed verbatim. Last year, we highlighted the problems with so doing using one particularly obnoxious law – the Fisheries Regulation 1380/2013 – as an example.

The debate over the Bill has centred on the scale of the task in ensuring all this legislation works for an independent UK. Labour has been concerned that the Government may try to twist the necessary re-wording of some directive and regulations for its own political advantage, bypassing Parliament in the process – commonly referred to by the media as the “Henry VIII powers”. However, all the proposed amendments were defeated (See here)

What is more, not a single Conservative MP voted against the bill. Even Ken Clarke and Anna Soubry trooped into the “Aye” lobby! Four Labour MPs – Kate Hoey, John Mann, Graham Stringer and Frank Field (along with the suspended Kelvin Hopkins), rebelled against the party whip to support the government which ended up with a majority of 29. They deserve our thanks. A further eight Labour MPs did not vote either way. A full list of how MPs voted can be found here.

For the benefit of anyone not familiar with Parliamentary procedure, bills normally pass through three reading before coming law. The final reding has now been completed. The predominantly Europhile House of Lords may try their hands with further amendments, but some of their number have thankfully acknowledged that it is not appropriate for an unelected body to try to mess up the democratic will of the people. There may, perhaps, be a bit of further Parliamentary ping-pong with any Lords’ amendment, but  essentially, we are one step nearer leaving the EU as very little now stands in the way of one vital piece of the Brexit jigsaw finally being put in its place.

Awaiting the storm (or explosion!)

It cannot be much longer before the penny finally drops regarding the terms being proposed by the EU for the UK’s 21-month “transitional arrangement.”

Businessmen like John Mills and John Longworth, both of whom met Michel Barnier in Brussels last week, are distinctly unimpressed with what we are likely to be offered, but it is surprising that there haven’t already been even louder cries of outrage from the Conservative back benches. Last November, at a meeting organised by Conservative MEP David Campbell Bannerman, Rt Hon David Jones MP was quite unequivocal that any further involvement of the European Court of Justice (ECJ) in the legal affairs of the UK after Brexit would be an “absolute red line” for himself and a number of his colleagues, who would rather leave with no deal.

As more details emerge, it is becoming clear that it’s not just a role for the ECJ in our affairs which the EU wishes to incorporate into the transitional deal. According to an article in The Times, the EU will insist on the free movement of people throughout the period and the inclusion of people moving to the UK before 31st December 2020 in any post-Brexit agreement on citizens’ rights.. This again is a slap in the face for leave voters. It’s not just that many of us voted leave because we want to see a drastic cut in immigration; more to the point, we voted leave because we wanted our institutions to be sovereign – and this means that the EU must have no say in determining who can or cannot come into the UK or how long they can stay.

This tougher stance is contained in a new document dated 15th January. It is not the final word on the EU’s position, which will not be published until the end of the month, but it certainly gives us an idea of the general direction of travel. The guidelines produced last year by the European Parliament, although essentially a consultative document, were bad enough. We would be, in effect, a colony of the EU, unable to sign any trade agreements with other countries and still subject to the Common Fisheries and Common Agricultural policies. This document was bad enough, but according to Bloomberg, the latest document also states that we would need to seek the EU’s permission even to start negotiations on trade deals with third parties. We would be unable to strike out on our own path. The net “divorce bill” may also be increased.

Perhaps ironically, the Council President Donald Tusk told the European Parliament that “our hearts are still open “that the UK might “have a change of heart” and stay within the EU. This suggests a warmth towards us which just is not reflected in the negotiating guidelines which seem designed to squeeze and humiliate us as much as possible. Chancellor Philip Hammond claimed recently that the EU is “paranoid” that other countries will follow us out of the door. It has also been claimed that the EU is pressurising Switzerland not to make a bilateral deal with the UK The EU’s tough stance may well all be technically justifiable from the treaties, but it clearly wishes to interpret them in the toughest way possible as far as Brexit is concerned. No one with any sense of self-respect should give in to this bullying.

The transitional deal must therefore be kicked into the long grass as soon as possible, especially as there is no guarantee that a new trade deal will be ready to replace it after 21 months. The EU’s ambassadors have signalled a willingness for the transitional period to be extended, but this would only prolong an unsatisfactory situation which is not Brexit in any real sense of the term.

A further complication is looming on the horizon. The Norwegians have indicated that they would seek to renegotiate their trading arrangements with the EU if we were given favourable access to the EU’s single market  while not being a member of it.  This, of course, refers to any long-term deal and therefore is not an issue for Mrs May at the moment as the EU has insisted that negotiations on a long-term trading arrangement cannot start yet.  Let’s face it, she has enough on her plate as her team prepares to negotiate the transitional arrangements. We must hope that there is already a storm brewing up on the Conservative back benches which will rapidly knock these unacceptable proposals on the head and force the government to take a different approach.

If not, the storm is likely to strike with far greater ferocity  in four years’ time. A botched Brexit where we leave in name only is not what we voted for and not what Mrs May promised us when she became leader.   Brexit must mean Brexit or our Prime Minister will not only find herself consigned to a “rogues gallery”, excoriated by posterity alongside the likes of Lord North, Neville Chamberlain, Heath, Blair and Brown, but she may well take her party down with her.

Tony Blair must be silenced

Do you know anyone who doesn’t hate Tony Blair? The most I can say in his favour is that I know a couple of people who loathe certain other politicians even more than they loathe him. Most people wish he would just shut up and retire to obscurity but unfortunately, being an ex-Prime Minister, the media is still more than willing to listen to what he says – and as far as Brexit is concerned, he has been rather verbose recently.

His latest outburst shows that he remains stubbornly opposed to the government carrying out the democratic will of the people.  He doesn’t want us to leave the EU. Even though much of the article focuses on the problems of a future trade relationship, his  support for the EU goes beyond trade issues. “Membership of the European Union is right as a matter of principle, for profound political as well as economic reasons.” he asserts. He goes on to say “We are making an error the contemporary world cannot understand and the generations of the future will not forgive….Brexit isn’t and never was the answer.”

Naturally, we would disagree, but if Blair and his ilk are to be silenced once and for all, two things are necessary. Firstly,  his arguments in favour of the general principle of EU membership have to be refuted, but secondly, the government must address the current weaknesses in its Brexit strategy.

The first of Blair’s points, namely that EU membership is a good thing politically as well as economically, is so fatally flawed  that no fair-minded well informed person could possibly agree.  Thanks to our EU membership, we have found ourselves unnecessarily mixed up in the EU’s empire building – for example, in the Ukraine, a part of the world where we have little strategic interest. We have found our excellent Common Law legal system compromised by our membership of  Europol or the European Arrest Warrant. Furthermore, the direction of travel in the EU is towards closer integration, which means in effect power will be taken still further away from the people and their elected representatives,  given instead to a largely unelected and increasingly unaccountable clique of bureaucrats and politicians in Brussels.

In 2012, Angela Merkel told David Cameron, “Your vision of the EU is so cold, David.’ The point she was making is that for most of us, including our former Prime Minister, the EU was about trade. We have always been sceptical about grandiose political projects.  and thus have always felt on the outside of the EU, most of whose member states do not share our scepticism. Only a few senior British politicians have ever embraced the EU’s federalism wholeheartedly. One of these few, however, was Blair’s mentor Roy Jenkins, the only Briton ever to lead the European Commission. As Prime Minister, Blair never felt himself in a position to display his federalist sympathies quite so openly as Jenkins but now Brexit looks like extinguishing the dying embers of his megalomaniac ambitions of becoming Emperor Tony the First, he clearly feels he has nothing to lose.

For those of us living in the real world, however, it is blindingly obvious that our political system needs to be reformed so that we digress further from the EU. In other words, power should be brought closer to the people – taking non-EU Switzerland as our model, which has one of the most accountable systems of government in the world. Indeed, we should seek to become the leader of Free Europe, as we were between 1940 and 1945, showing that there is a better way for countries to organise themselves than to emasculate their national democracies in favour of a remote, unaccountable bureaucracy in Brussels. We can do far more good and wield far more influence internationally this way than by remaining in the EU. The future generations, far from being unwilling to forgive us for Brexit, will be delighted that by leaving the EU, we made not only our country, but other lands too, a better place. Blair’s argument that Brexit was an unfortunate mistake will, unless the Government messes up badly, prove to be about as accurate as his conviction that Saddam Hussein possessed a vast stockpile of weapons of mass destruction.

Unfortunately, our opportunities to help the government address the weaknesses of its Brexit strategy (and thus avoid making a mess of Brexit) are more limited, but we must do what we can. Blair outlines four possible outcomes:- staying what he calls a “reformed Europe”, leaving the EU but staying within the Single Market and Customs Union, leaving the EU but negotiating a bespoke Free trade agreement which “keeps us  close to Europe politically” or leaving the EU and “negotiating a basic Free Trade Agreement and market ourselves as ‘Not Europe’”.

As far as the first option is concerned,  the Conservative Party has spent much of the last 30 years trying to “reform” the European Union. last year’s “State of the Union” speech by Jean-Claude Juncker and the strongly pro-federalist speech by Martin Schulz a couple of months later  shows how deeply federalism which, above all, led to the Brexit vote, is still embedded into the EU’s DNA. Perhaps Blair has forgotten that for all his talk of our “staying in the EU, using the Brexit vote as leverage to achieve reform” that David Cameron did come back from Brussels with some degree of reform nearly two years ago.  He secured a sort-of exemption from ever closer union and a very weak concession that the EU might allow a limited “emergency brake” on immigration. The majority of the electorate wasn’t impressed and voted to leave. 18 months on, there has been no indication of any widespread change of heart.

The way Blair frames the second option, he is either being devious or just plain stupid. Like a number of other remainers, he portrays the single market and the customs union as somehow joined at the hip. They are not. Staying in the EEA as a transitional arrangement would be a vast improvement on the transitional deal currently being discussed, which would leave us as a colony of the EU with no power. The Customs Union, on the other hand, was never even discussed during the referendum debate. Apart from micro-states like San Marino, Turkey is the only non-EU country to be part of the Customs Union. The Turks do not like this deal and given that we would not be able to secure an independent trade policy, it wold not be popular here either. It is an irrelevancy and the sooner it falls out of any discussion of our future, the better.

Blair’s third and fourth options are more about politics than trade. Both assume we end up with a bespoke deal with the EU. Do we want to stay politically close to the EU or deliberately launch out on a different path? In reality, rather than a binary choice, the question should be phrased more on the lines of whereabouts on the scale of political closeness or political divergence do we wish to position ourselves? The answer is probably far closer to the “divergence” end of the spectrum than Blair would wish, as has been noted above.

Unfortunately, the muddle which the Government has found itself in may result in our ending up stuck in limbo between options 1 and 2 – a transitional deal which sees us effectively locked into the EU for a further 21 months and which gives us access to the Single Market but on far worse terms than Norway or Iceland. It is staggering that there has so far been so little critical analysis of the proposed transitional deal, as it is a very bad arrangement indeed. Somehow, the EU’s harsh guidelines have been completely ignored by many politicians and indeed, much of the media. As mentioned above, we would essentially end up as a colony of the EU, forced to accept the full acquis but with no say in the framing or implementation of these laws.  In such circumstances, it would be all too easy to end up saying “What was the point of the Brexit vote?”

To throw in the towel is exactly what Blair and co would love us to do. No one can deny that the last 18 months have been exasperating and there is still little light at the end of the tunnel as far as a sensible exit strategy is concerned. If you are a leave voter who has become utterly fed up with the whole subject of Brexit, take heart; you are not alone! Perhaps, however, we should think back to that momentous day in June 2016. Our elation at the time should act as a reminder that we must not give up, no matter how frustrated we feel at the moment. To allow the likes of Blair to win by default, especially given the weaknesses of his arguments, would be the ultimate tragedy for our countrymen and a betrayal of all  that we have fought for over the last four decades. Blair can only finally be silenced by persevering to the end, continuing to make the case for Brexit, seeking to influence the debate on how best to achieve the best deal – and persevere we must and shall.

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.