Confusion over our legal status in the transition period

During the House of Lords select committee on 1st. May 2018, the Earl of Kinnoull said to David Davis Brexit Secretary of State,  “I want to come back to what you said about the European Union not being able to agree a treaty with us while we are still members. I have been troubled and scratching my head over that”.

He is not the only one. Article 50, the mechanism which secures the UK departure from the EU as from  30th March 2019, raises two serious problems.

1) The EU treaties, and thus all its regulations will cease to apply to the UK as from 30th  March 2019.

2) The EU can’t sign a Treaty with the UK while the UK is still a Member, meaning the earliest being 30th March 2019.

Put together, these two conditions cause serious problems, because if you compare the procedure in joining the then EEC in 1972, there was an orderly procedure. First came the signing  the  treaty of membership on 22nd January 1972, and then followed the ratification process, resulting in the European Communities 1972 Act, which ensured everything was ready to commence membership on 1st January 1973.

The leaving process, by contrast, is topsy-turvy. The procedure has been reversed. Taking evidence from David Davis during the Lords’ session and the House of Commons select committee of 25th April, you can understand why the Earl of Kinnoull is scratching his head. Mr Davis appears to be contradicting himself.

Before the House of Commons, he stated that there will be several votes on the outcome of the negotiations with the first vote being what has been referred to as the “meaningful” vote: a vote on the overall treaty and agreement in both Houses.  We will do this before the European Parliament will vote on it. Here are some of the questions:-

Q1388 Chair: Will the document on the future relationship be a political declaration or a draft treaty?

Mr Davis: It will be at that stage a statement of the Council. I would not imagine we will have legal text at that point.

Q1389 Chair: What status will it have if it just a statement of the Council?

Mr Davis: Nearer to political declaration than draft treaty. It will not be in draft as a legal text at that stage.

Q1390 Chair: It is likely to be a political declaration, and a political declaration is not a treaty.

Mr Davis: No, it is not a treaty. Again, to remind you of previous evidence, Mr Chairman, when I have appeared in front of this Committee I have reminded you that the requirements of European law are that they cannot sign a treaty with us until we are a third country. That means they cannot sign a treaty, which is the only point at which a treaty becomes in any way binding, until the first days of April or the last day of March in 2019.

Q1391 Chair How can Parliament set any store by it if it is asked to vote on this whole process when the really important question of our future relationship is merely a statement of the Council in the form of a political declaration and not a draft treaty?

Mr Davis: That does not mean the Council will not view it as binding. After all, each of the agreements we have come to in December and March are seen as binding. They are not legally binding but we view them as completely politically binding. (By International Law, not EU Law)

In summary, Mr Davis told the House of Commons that there may be more than one treaty, for a start. It is impossible. We do not know what the full structure of the treaty will look like: whether security and defence will be separate from the future economic partnership. It is quite possible. Some of these things will have substantive domestic effects, so they will of course come with Acts of Parliament before the House as well.

However, he told the House of Lords that we have to have everything pretty well nailed down even legally at the beginning of the implementation period. It will not be ratified, because they cannot sign a deal with us until we are a third country, which will be shortly after formal departure from the Union, but the ratification process will also take place during that period. To achieve this, the agreement must be basically complete by October, at least in joint report-type terms, and fully legally watertight by the time we leave.

He added that signatures will not be put to the treaty until after Brexit Day because “they can only sign with a third party, as Lord Jay knows better than most, I guess. So I will aim to conclude the negotiation, if I can get to that point by then, so that they can sign and then start the ratification process. Remember that ratification will require a brand new European Parliament, which will only just be being elected at that point, and a brand new Commission, and almost certainly—for some of it at least, if not for all of it—it will be a mixed agreement, so it will go round the Parliaments of Europe. So there is quite a lot to get done in ratification terms. We absolutely have to have ratification concluded before the implementation period is over, otherwise we will be in a sort of limbo.”

We need to remember that ratification is the  action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid. That is , valid according to EU Law. An example of this took place with Denmark over Maastricht and Ireland over Lisbon, where EU law did not apply until after ratification yet International Law did – and of course, under the proposed implementation period, we would expect to be under the ECJ, so what would be the legal basis?

In summary, like Lord Kinnoull, we are all scratching our heads, because it is utter confusion. It needs some bright lawyer to pin Davis down to what is going on. I have only taken this line of investigation  because I questioned the legal right for the UK to have exclusive use of the 12 nautical mile fishing limit during the implementation period, fearing that we could run the risk of EU vessel owners, not only fishing inside that limit, but taking the UK to court, as happened in the Kent Kirk case in 1983.

Lost and Found in translation

This letter from our Chairman appeared in the Derby Telegraph

Sir,

Like Percy Brown (7 March), I found a certain humour in the idiocies of the European Common Agricultural Policy which created the wine lakes, beef, butter and grain mountains. Previously we had a very common sense policy which allowed the food of the world to come here without customs duties. Suddenly the taxpayer and the housewife were made to spend far more to make food dear than we had previously spent to keep it cheap.

Nobody could tell me where this strange policy originated and I did not get a definitive answer until 2002 when I received a copy of a German book from the Forties, called “European Economic Community” where the framework and principles were set out concerning the new neighbourly Europe in the making. It was a compilation of papers by very senior people in law, diplomacy, industry, politics and economics.

With great effort, I translated the two key papers – a difficult job because the introduction was in very stiff academic language and the lead paper in a more popular journalistic style.

More recently I met Lord Walsingham, who had been in the German Department of the Foreign Office in 1950 during the Attlee government when the European Coal & Steel Community was formed. I recorded an interview with him. He told me that British Intelligence was well aware that the Community treaty between France & Germany contained secret clauses that each would subsidise the other’s heavy industry to knock out Britain and assume dominance of Europe. It seems to have worked rather well.

The video is linked to an article which you can Google at Edward Spalton Witness to History. Lord Walsingham is the witness. I am merely the scribe. It also links to my translation.

“European Economic Community” was published in Berlin in 1942 and the lead paper was delivered by Reichsminister Walther Funk – Minister for the Economy and Post War Planning.

 

Yours faithfully

 

Edward Spalton

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where do we go now?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Betty Simmerson RIP

Mrs Betty Simmerson has recently died aged 92 but will never be forgotten.  She and her husband, Reg, were among the first fighters against the United Kingdom joining the EEC and their consistent and active opposition heartened and inspired others to support the fight and to join it.  When Reg died, Betty continued to campaign for our withdrawal from what has become the European Union  and she supported The Campaign for an Independent Britain and many other organisations fighting for the freedom to govern ourselves.  We should all be glad that she lived just long enough to see her own consistent efforts  and those of others, including Reg, to regain the freedom to govern ourselves supported by the British people. Our country is now on the road to recovering its sovereignty so cavalierly sacrificed by successive parliaments since 1973.

Betty will be missed by all who knew her and she has died as a heroine of the great and successful campaign to get our country back. During the Second World War Betty nursed wounded servicemen returning from battlefields on occasions, she told me, severely burned or with intestines hanging out. At night she would be on the roof of her London hospital with a stirrup pump putting out incendiary bombs fires. She is remembered for the occasion when she aimed and hit Edward Heath with brown paper bags filled with flour at a Common Market meeting in Caxton Hall and was dragged away to be interrogated by Scotland Yard. She sold her grand piano to take activists to Belgium to demonstrate against Heath as he signed the treaty taking us into the Common Market and was thrown into prison because Heath had ordered no demonstrations should be allowed to spoil the occasion. Looking like everyone’s favourite grandmother, Betty was truly a British patriotic through and through.

(Photograph shows George West, CIB’s then Chairman, presenting an award to Mrs Betty Simmerson on 4th April 2009 at the CIB Annual Meeting in London.)

 

How the EU works: leaving the EU

The government has accepted that it is under a “democratic duty to give effect to the electorate’s decision” in the EU referendum on 23 June.

The prime minister told parliament in February that “if the British people vote to leave there is only one way to bring that about—namely to trigger Article 50 of the treaties and begin the process of exit—and the British people would rightly expect that to start straight away.”

How exactly would that work?

Constitutional requirements

Article 50(1) of the Treaty on the European Union says that any member country may decide to withdraw from the EU “in accordance with its own constitutional requirements”. In the UK, those requirements would include the approval of parliament.

As a matter of law, the result of the referendum is not binding. As a matter of politics, though, it would be difficult to disregard the referendum result.

David Cameron told parliament: “for a prime minister to ignore the express will of the British people to leave the EU would be not just wrong, but undemocratic.”

Some Leave campaigners have said a Leave vote might instead trigger a further renegotiation of the UK’s EU membership terms, followed by a second referendum on those terms. However, other EU countries would have to be willing to discuss this.

Also, such a further renegotiation (to curtail the free movement of EU citizens to the UK, for instance) would likely need amendments to the EU treaties, which could prove difficult to negotiate and ratify.

Notification and negotiation

Article 50(2) says that a member state that decides to withdraw from the EU must “notify the European Council of its intention”. The European Council includes the 28 EU heads of state or government together with the European Council’s president (Donald Tusk) and the president of the European Commission (Jean-Claude Juncker).

Article 50(2) continues: “in the light of the guidelines provided by the European Council, the [EU] shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the union.”

The process has several stages.

First, the European Council—without the UK—would agree guidelines for negotiations.

The agreement would need to be approved by the UK and 20 of the 27 remaining member states, representing 65% of those states’ population.

The European Parliament would also need to approve the deal by a simple majority. British Members of the European Parliament could vote.

Timing

Article 50(3) says that the leaving state ceases to be an EU member two years after a notification unless an extension of negotiations has been agreed unanimously by the European Council and by the leaving state, or the withdrawal agreement sets an earlier or later date.

Return

Article 50(5) says a state that has left the EU can ask to rejoin. This would be on the same basis as a country joining for the first time.

Is there any other way of leaving?

As a matter of national law, it would be possible for the UK to ignore the Article 50 process. Parliament could simply repeal the European Communities Act 1972.

However, this would be a breach of the UK’s treaty obligations under international law. And it would presumably make it more difficult for the UK to strike a preferential trade agreement with the EU after withdrawal.

How long would this take in practice?

The clock would not begin to run until the UK had notified the European Council of its intention to withdraw from the EU. That could be at any time after a “leave” vote.

The UK would then cease to be a member of the EU two years after that notification unless an earlier or later date was agreed.

The government says it would probably take “up to a decade or more” to negotiate the UK’s exit from the EU, its future arrangements with the EU and its trade deals with countries outside the EU. However, those on the Leave side argue that this process could be quicker.

It’s not clear whether a country could stop the process by withdrawing its notification. As the Treaty doesn’t discuss this, the point is arguable either way.

What would the deal cover?

Article 50 does not say that the withdrawal treaty will also regulate the UK’s future relationship with the EU. In fact, it seems to suggest that there would have to be separate treaties: one on the details of withdrawal, and one on the future relationship.

The wording of Article 50(2) refers only to ‘taking account of’ that ‘future relationship’ in the withdrawal deal.

In practice, the withdrawal deal and the treaty on that future relationship would be closely linked. Probably the withdrawal treaty would, among other things, aim to regulate a transition period before the treaty on the future relationship entered into force.

Article 50 does not legally oblige the remaining EU to sign a free trade agreement with the UK. The words ‘future relationship’ assume that there would be some treaties between the UK and the EU post-Brexit, but do not specify what their content would be.

Equally, while Article 8 of the same Treaty requires the EU to have good relations with neighbouring countries, it does not require it to sign a free trade deal with them, or go into other specific details on what the relationship should be.

Most of the EU’s free trade agreements require a unanimous vote of all EU governments and ratification by all member countries. The practical implication of this is that if the UK’s future relationship with the EU takes the form of a free trade agreement, it may be harder to negotiate.

(This helpful summary was written by Steve Peers, Professor of EU Law and Human Rights Law, University of Essex  and first appeared on the fullfact website. One inaccuracy, which claimed that the Council will appont the European Commission to handle the negotiations, has been removed from the text)