Martin Howe QC is a barrister specialising in EU law, mainly Intellectual Property and the free movement of goods and services. He is Chairman of Lawyers for Britain, and a former Conservative Parliamentary candidate.
Number Ten has been engaging in a programme of briefing for Conservative MPs and for Party members on the Brexit White Paper. It is important that when both make their minds up on this proposal of huge significance to the future of our country, they do so on the basis of a correct understanding of what the Government’s new policy involves.
I have been receiving disturbing reports from those who have attended the briefings that they are carrying away some serious misconceptions about the White Paper. Of course, I do not know exactly what was said, and it is possible that some people have just come away with misunderstandings about a complex topic.
But the people I have heard from are not, I believe, idiots. If they have come away with misconceptions then this suggests that, at best, the briefings are not explaining the details of the White Paper with sufficient clarity. A less charitable interpretation would be that a layer of spin, or worse than spin, has been applied.
So let me list three important misconceptions that have been reported back to me.
1. “The UK will retain a power of veto on whether points of dispute are referred to the ECJ”
The White Paper envisages references to the Europeana Court of Justice being made at two stages (see paragraph 42). The first stage is a possible reference by the proposed Joint Committee, and this would be by mutual consent, so the UK would have a veto at this stage.
However, the UK has no veto against the dispute being sent by the Commission to the independent arbitration panel. At this point, if the dispute involves a point of EU law, the arbitration panel must refer that point to the ECJ for a ruling and the UK has no veto. The arbitration panel is then bound to give a judgment conforming to the ECJ ruling, meaning that, in such a case, it will act as a postbox for referring issues to the ECJ and issuing judgments which rubber stamp the ECJ’s rulings.
This system of adjudication has been adopted from the EU Association agreements of the former Soviet republics of Ukraine, Moldova and Georgia. No other non-member state to date has accepted binding ECJ rulings under this system. More information, including all the detailed legal texts, can be seen in my response to the Attorney-General’s letter to MPs.
2. “The ‘common’ rulebook covers only rules “necessary to provide for frictionless trade at the border”, so does not cover domestic goods and/or goods destined to be sold outside the EU.”
The latter point, about goods to be sold outside the EU, is probably right, at least when they are exported directly by the manufacturer, or possibly when they are sold in controlled circumstances which ensure that they will be exported to a non-EU country without leaking onto the UK domestic market. But this is no different from the position now that we are EU members: for example, the Court of Appeal has held that the Medicinal Products Directive does not apply to “transactions which are neither intended to nor have the effect of releasing a medicinal product into a distribution system which leads to its sale to end users within the Community.”
However the ‘common’ rulebook will most definitely apply to all goods that are released into free circulation on the UK domestic market, because there is a possibility that they can then migrate across the control-free UK/EU border under the Chequers system. This means that the UK will most definitely have to apply the EU rules to all goods produced domestically for the UK market, and to all goods imported from non-member states for consumption in the UK domestic market. The later is a killer for trade deals with major partners because it stops us agreeing mutual recognition of standards which deviate in any way from the EU rulebook.
3. “WTO law will require the UK to put customs posts on the Irish border unless we do a White Paper-type deal with the EU”
There is a germ of an issue here, but this conclusion is nonsense. The WTO Agreements “most favoured nation” principle requires us to charge the same tariffs to all countries, with the exception of countries with which we have a permissible customs union or free trade agreement. So, if we leave without an EU deal then we must charge the same tariffs to goods coming in via the Irish land border as on goods coming in through our seaports and airports.
However there is no obligation under WTO law to collect the tariffs by using men in peaked caps in customs posts at the border. Other methods of collection such as making businesses pay tariffs by self-assessment behind the border, coupled with intelligence led anti-smuggling operations, are perfectly acceptable.
My colleagues at Lawyers for Britain and myself would be very interested to hear reports from those attending briefings in Number Ten about any other statements which seem questionable. We shall then try to look into them and either confirm or correct them with chapter and verse. As I say, it is important that people in the Party do not judge these proposals on the basis of uncorrected misunderstandings.