And they’re off!

Today, our formal negotiations to leave the EU begin in Brussels. David Davis is meeting with Michel Barnier, the EU’s chief negotiator. Mr Davis said he is beginning his task “in a positive frame of mind“.

So there is finally something concrete to report after a ten days of confusion and speculation since the inconclusive General Election result. This. however, is where the certainty ends. It is almost a year since the Brexit vote and we do not know the shape of the planned Brexit deal. Of course, it is quite possible that this is a deliberate strategy to “keep our power dry”. Daniel Hannan, writing in the Daily Mail, claims that the Civil Servants have “had a year to prepare for these talks, and have put it to good effect.

We must hope so, but detail is thin on the ground. Although Philip Hammond, the Chancellor. has been widely reported as supporting ongoing membership of the Customs Union, he recently insisted that this was not the case. Speaking on the Andrew Marr Show, he said, “And by the way, we’ll be leaving the customs union. The question is not whether we’re leaving the customs union, the question is what do we put in its place.” The subject of the customs union was barely mentioned in the referendum campaign last year. It has always been a red herring. For all the otherwise mixed messages of last year’s assorted leave campaigns, virtually everyone was agreed that freedom to determine our trading arrangements would be one of the principal benefits of Brexit and that remaining in the Customs Union would place unacceptable restrictions on any such future arrangements.

The Single Market is another matter, however. Mr Hammond also insisted that we would be leaving this too. Fair enough, but it would be good to know what sort of relationship exactly he and the Civil Servants have agreed to seek if they are to avoid what he called “those cliff edges.”

He also hinted that some transitional arrangement would be sought. “We will need some kind of transitional structures and the European Union needs to understand that as well. This is not a British ask or a British demand, it’s a statement of common sense, that if we’re going to radically change the way we work together we need to get there via a slope, not via a cliff edge. That’s good for business on both sides of the English Channel.” He appeared to rule out remaining in the customs union, even as part of a transitional arrangement, but was vaguer about the Single Market – deliberately so? We will no doubt know more in due course.

This does pose the question about how much influence say he, or even Mrs May, will have. The loss of the Tories’ overall majority leaves the government more beholden to Parliament  – including Tory backbenchers – than before. Some have gone on record – anonymously – that any backpedalling on, or dilution of Brexit by the Prime Minister will result in a leadership challenge.

Mrs May will therefore have her work cut out to appease some more hard line Brexiteers, but on the other hand, she will need to keep on board those MPs are less enthusiastic about leaving the EU, who will doubtless seek to exploit any features of the end deal which would negatively affect the economy in general and jobs in particular.

Labour, however, says it will not seek to derail Brexit. During the election campaign, Jeremy Corbyn was campaigning for a different sort of Brexit but never offered any hint that he would try to undermine it.  There are two issues at play here. First, personally, Mr Corbyn has never been a supporter of the EU project. As we have pointed out, his contribution to the remain campaign was at best lukewarm and in reality, a negative one.  More to the point, outside the big cities, support for Brexit was strong in Labour-voting constituencies and Corbyn and his team rightly realised that unless he emphasised his commitment to Brexit, votes – and potentially seats – could be lost in the constituencies which historically have been Labour’s heartland. This tactic succeeded and consequentially, those Labour MPs who dislike both Corbyn and Brexit must realise that their room for manoevre is rather limited given that their party did much better than was widely predicted two months ago.

Emmanuel Macron, the seemingly all conquering French President, insisted that “the door remains open” to the UK abandoning Brexit and remaining in the EU. Dan Hannan strongly rebutted this offer. “The idea that Britain might crawl back to Brussels, apologising for its mistake, shows an extraordinary misreading of our character, our history – and public opinion,” he wrote.

It’s not just our history and character. One does not often find oneself in agreement with John Major, but during a recent interview on BBC’s Radio 4, he made the point  that the EU has never really been a big priority for most UK voters. Ask any veteran UKIP candidate or even the Lib Dems, whose pitch to the supposed “48%” in the recent General Election campaign fell rather flat, and they would concur 100%. A vocal minority notwithstanding, most people, whichever way they voted in June last year, just want the government to get on with it.

And this is what it is finally doing. We can but hope that everyone will be satisfied with the result.

 

Photo by rogerblake2

European Council authorises the start of Brexit talks and adopts negotiating directives

Below is an official press release from the European Council. Brexit talks are expected to begin in earnest during the week beginning 19th June according to Michel Barnier, the EU’s chief negotiator. This will be shortly after the UK General Election

The Council, meeting in an EU27 format, adopted a decision authorising the opening of Brexit negotiations with the UK and formally nominating the Commission as EU negotiator. The Council also adopted negotiating directives for the talks.

Both texts are based on a recommendation presented by the Commission on 3 May 2017 and build on the guidelines adopted by the European Council (Art.50) on 29 April 2017. Their adoption allows for the start of negotiations with the UK following the notification of its intention to withdraw from the EU (under article 50 of the Treaty of the EU).

“Today we have established the EU position on the key issues for the beginning of the talks. The rights of citizens are at the very top of our agenda and we aim for an ambitious solution, where those affected continue to enjoy their rights”.

Louis Grech, Deputy Prime Minister of Malta and President of the Council

Negotiating directives and phased approach

This first set of negotiating directives is intended to guide the Commission for the first phase of the negotiations. They therefore prioritise issues that have been identified as necessary for an orderly withdrawal of the UK, including citizens’ rights, the financial settlement and the situation of Ireland, as well as other matters in which there is a risk of legal uncertainty as a consequence of Brexit.

The first phase of the talks aims to provide as much clarity and legal certainty as possible and to settle the disentanglement of the UK from the EU. Once the European Council deems sufficient progress has been achieved, the negotiations will proceed to the next phase.

An agreement on a future relationship between the EU and the UK can only be concluded once the UK effectively leaves the EU and becomes a third country. However, discussions on an overall understanding of that future relationship could start during a second phase of the negotiations.

The negotiating directives may be amended and supplemented during the negotiations.

Citizens’ rights

The first priority for the negotiations is to agree on guarantees to protect the rights of EU and UK citizens, and their family members, that are affected by Brexit. The EU27 insist that such guarantees should be reciprocal and based on equal treatment among EU27 citizens and compared to UK citizens. This should cover, among others, the right to permanent residence after five years of legal residence, including if this period is incomplete on the date of withdrawal but is completed afterwards.

The negotiating directives specify that workers, self-employed persons, students and other inactive persons should be covered, as well as frontier workers and family members. Guarantees should protect residence rights and free movement, as well as all the rights attached to them (such as health care). All rights should be protected for the lifetime of the persons concerned.

Financial settlement

The EU27 agree there must be a single financial settlement and the UK must honour its share of all the obligations undertaken while being a member. The UK should also fully cover the specific costs related to the withdrawal, such as the relocation of EU agencies currently based in the UK. The agreement should include a calculation of the total amount and a schedule of payments, as well as further rules and arrangements to address specific issues.

The situation of Ireland

The EU is committed to continue to support peace, stability and reconciliation on the island of Ireland. Nothing in the UK withdrawal agreement should undermine the objectives and commitments of the Good Friday Agreement. Negotiations should aim to avoid a hard border, while respecting EU law. Issues such as the transit of goods will need to be addressed.

Goods placed on the market and procedures based on EU law

The negotiating directives also cover other issues were arrangements are needed to reduce uncertainty and avoid a legal vacuum. This includes addressing what will happen with procedures based on EU law and with goods already on the market. For instance, if a product is already placed on the single market before the withdrawal, it should be ensured that it can remain in the market afterwards.

Other matters where there may be a need to reduce uncertainty or avoid a legal vacuum, such as services, will be covered in future negotiating directives.

Next steps

The Commission will agree with the UK the dates for the first negotiating sessions. The first formal meeting between the EU and the UK negotiators is likely to take place in June.

 

Fisheries and the complexities of international treaty law

On 29th March, Mrs May invoked Article 50 of the Lisbon Treaty. Article 50 is very clear:- after two years, the treaties (and regulations} cease to apply – at least as far as the departing member state is concerned. The treaties will still apply to the remaining 27 members but not to the UK. However, the “withdrawal agreement” specified under Article 30 section 4b will be applicable to all.

As far as Article 50 is concerned, there are no grounds for any legal challenge, because the UK was only following the treaty obligation by invoking article 50, to which every other member has agreed twice – once when the Lisbon Treaty came into force and once when Croatia joined the EU.

The problem arises because of the need for a “withdrawal agreement” and the Westminster Parliament’s plan to take the EU acquis across into domestic legislation. If no exceptions are made, as far as fisheries are concerned we would have left the CFP through article 50 only for our Parliament to all intents and purposes to subjugate us into what is in effect the CFP in all but name, especially by bringing regulation 1380/2013, (which contains the percentage share-out – otherwise known as Relative Stability – and historic rights) across into domestic legislation as part of the “agreement”.

When the negotiations are finished and the “agreement” done, it will have to be presented in some legal form or other – a treaty or something similar, as the EU is under a treaty obligation to secure a “withdrawal agreement”.

By coming out of the EU legally through Article 50 and then basically going back to what we have just left through the “agreement”, then according to the Vienna Convention on Treaties we could have problems at a later date. as the UK has on its own accord secured the other 27 EU Members’ continuity rights to fish in its waters. These would be very difficult to remove at a later date, even though invoking Article 50 will make the EU treaties and regulations cease to apply to the UK.

It is possible HMG is unaware of this dang­erous situation, but we can be certain French EU negotiator Michel Barnier will know, therefore it is imperative regulation 1380/2013 is not repatriated into domestic legislation, but will cease to apply on Brexit, as per the treaty obligations within Article 50.

Given we will hopefully see the removal of historic right in the 6 to 12 nautical mile zone by terminating the London 1964 Fisheries Convention, it would be tragic if our Westminster Parliament reinstates the present rights enjoyed by EU fishermen to take 59% of our UK resource and thus accelerate the demise  of our coastal communities.

In connection with the “withdrawal agreement” the following Articles of the Vienna Convention apply:-

Article 30. APPLICATION OF SUCCESSIVE TREATIES RELATING TO THE SAME SUBJECT-MATTER

  1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.
  2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
  3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
  4. When the parties to the later treaty do not include all the parties to the earlier one:

(a) As between States parties to both treaties the same rule applies as in paragraph 3;

(b) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

  1. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.

Article 4L AGREEMENTS TO MODIFY MULTILATERAL TREATIES BETWEEN CERTAIN OF THE PARTIES ONLY

  1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:

(a) The possibility of such a modification is provided for by the treaty; or

(b) The modification in question is not prohibited by the treaty and:

(i) Does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii) Does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

  1. Unless in a case falling under paragraph l(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.

My reading of these articles suggests that we would be back to square one, making the share out and rights a treaty obligation once again.

Article 14. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY RATIFICATION, ACCEPTANCE OR APPROVAL

  1. The consent of a State to be bound by a treaty is expressed by ratification when:

(«) The treaty provides for such consent to be expressed by means of ratification;

(b) It is otherwise established that the negotiating States were agreed that ratification should be required;

(c) The representative of the State has signed the treaty subject to ratification; or

(d) The intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

  1. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

 

I think Article 14 section 2 is dangerous, because we would be bringing the acquis across and turning it into a treaty. Likewise Article 30 section 4b which would mean that the UK has re-established mutual rights and obligations.

Article 59. TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY IMPLIED BY CONCLUSION OF A LATER TREATY

  1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:

(a) It appears from the later treaty or is otherwise established that the parties in tended that the matter should be governed by that treaty; or

(b) The provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.

  1. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties.

Comparing moving the acquis across into domestic legislation with the independence of Ireland and India is of only limited help as both these events predate the Vienna convention.

We are entering uncharted waters in dealing with the EU is untested, as we are not dealing with a sovereign nation but a group of 28 member states, where only one is leaving. It is HMG’s desire to bring the acquis across, the thinking being it will create a smooth transition, which in many cases it will. As far as fisheries is concerned, however, all it will do is re-establish a right for EU vessels to continue to take UK resource on the same excessive scale. .

The only way resource should be allowed to EU vessels over and above equal reciprocal arrangements is through Article 62 of UNCLOS3. Unless HMG is prepared to start with a clean sheet with a policy policy designed for our mixed fishery, fisheries Brexit will never be achieved.

Some helpful insights from the Freight Transport Association

The really hard tasks will begin soon. Once Article 50 is triggered, the UK government will then have to negotiate a Brexit deal that will enable our trade with both the EU and the rest of the world to continue.

As an example of how complex this might be, the Freight Transport Association (FTA) has published a submission it made to Parliament, expressing a number of concerns facing the industry.  Like many organisations involved in trade with the EU, the FTA wishes to ensure that we do not face huge disruption as a result of Mrs May’s decision that we will leave the Single Market.

The piece is worth reading in full, but a few points are worth highlighting:-

  1. There will almost certainly need to be a transitional trading arrangement between the UK and the EU. Negotiating a full trade deal may be very tight, if not unachievable, within the two year timescale of Article 50.
  2. No deal will give us as unfettered access to the Single Market as EEA membership would have done. There will inevitably have to be some trade-offs.
  3. Increased Border controls will be very time-consuming. Falling back on the WTO option would be particularly bad in this respect. The port of Dover would suffer more than anywhere else as freight movements are predicted to rise to between 14,000 and 16,000 per day in the next decade.
  4. Although tariffs are falling worldwide, some sectors of the economy would suffer if tariff-free access to the EU were lost. Tariffs of 10% or more could be imposed on motor vehicles, for instance.
  5. The biggest worry is that the EU may not want to tackle trade issues until after Brexit.  Michel Barnier, the European Commission’s Chief negotiator, made a statement suggesting that the two-year period following the formal triggering of article 50 would only be devoted to withdrawal arrangements and that issues related to the post-Brexit trade relationship with the EU would only be dealt with post-Brexit.  While this is only one person’s opinion and that other voices within the EU are keen to avoid such a disastrous scenario, it shows that the UK’s negotiators will be facing some quite difficult individuals on the other side of the table.

No, Brexit is not going to be easy. We can but hope that the Government has been preparing for these eventualities and knows what it wants before the negotiations begin.