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Editorial

Lawyers for Britain have been given permission to intervene in the Supreme Court Appeal on behalf of ‘Public Interest’

Lawyersforbritain.org are a group of Lawyers whose belief is the right for the British People to decide upon their own National destiny despite the continued personal interests of Members of Parliament who oppose the will of the majority of the British Public in the recent referendum on membership of the European Union.  They fervently oppose the machinations of those with personal interests that would go against the democratic result of the referendum by placing impediments with the intention to delaying the process in the hope of somehow reversing the referendum result that the majority of People wish Britain to leave the European Union.

Following the recent High Court decision in favour of Gina Miller (the prime mover of the High Court intervention) that the decision to invoke Article 50 of the Lisbon Treaty should not be a matter of Royal Prerogative but instead, be subjected to Parliamentary approval has been the subject of an appeal to the Supreme Court to make a definitive judgement by the Government, Lawyers for Britain have won the right to represent ‘Public Interest’ in the forthcoming Supreme Court hearing.

My personal opinion is that Theresa May has been elected as Prime Minister without opposition was to be a willing scapegoat as she has now passed 60 years old and has no real worry about being re-elected in the next General Election as she has finally realised her ambition to be Prime Minister.  She has been willing to accept her role as an apparent champion of Brexit but is, in reality, a proponent of wishing to stay within the EU.  Especially so as she has been a past participant in the Bilderberg Group of global business concerns.  It is highly unlikely at this stage that she has received an epiphany to change to promoting the will of the majority in a democracy.

Some of the various relevant assertions from Lawyers for Britain are appended below.  They outline not only the legal case as to whether the referendum was ‘binding’ in Law in that the Royal Prerogative is legal but also sets out the case whereby British interests would be served by leaving the EU.  The arguments are reproduced from their own website and though their assertions cite various parts of British Law that is relevant, for those that wish to follow it through, it is written in a manner that can be read and understood  by a legal ‘lay person’ such as myself without legal training.  It is a long process to read through, but I hope that many of you will take the trouble to do so.  I have left the various links to other ‘Lawyers for Britain’ articles to allow those that wish to follow through to understand the whole picture.  To my personal opinion, the answer is unequivocal, the Government has the right to use Royal Prerogative to invoke the ‘Article 50’ procedure, but whether the Supreme Court judges can overcome their personal prejudices is another matter.

That problem, should it occur, can be overcome at the next General Election, to replace those Members of Parliament that have ceased (or never had) the interests of the majority in their dealings.  In any case, it is an opportunity to change the present ‘Elective Oligarchy’ in which MPs follow their own agenda rather than that of their Constituents and make Parliament a ‘Representative’ Parliament rather than the perceived choice of many MPs to be ‘Delegatory’ in which they can choose to follow their own agenda rather than the wishes of the Electorate.

Peter Brown



Lawyers for Britain logo

We are a group of lawyers, legal academics, retired judges and constitutional specialists who came together to campaign for a Leave vote in the referendum. Now that the country has voted to leave the European Union,  we have also been joined by many lawyers who supported Remain but now wish to working constructively to make sure the exit process is carried out in the best interests of the United Kingdom.

Our intervention in the Article 50 case allowed

On 3rd November 2016 the Divisional Court handed down its judgment in R (Miller) -V- Secretary of State for Exiting the European Union[2016] EWHC 2768 (Admin). The court has, to the surprise of most informed observers, decided that it is outside the prerogative powers of the Crown for notice to be given under Article 50 of the Treaty on European Union to withdraw from the European Union. Lawyers for Britain has applied to intervene in the Supreme Court appeal in order to present further arguments as to why the appeal should be allowed and this judgment should be set aside, and our application to intervene and make written submissions was granted by the Supreme Court on 25 November 2016: for details seeSupreme Court Intervention by Lawyers for Britain.

Preparing for Brexit

After the referendum victory for Leave, the focus of our work has shifted from campaigning to working on the legal process by which Brexit will be successfully delivered. That process is governed by Article 50 of the Treaty on European Union. Preparations for exit will involve making changes to the UK’s international treaty relationships and to its internal laws, as well as addressing the post-exit relationship between the UK and the remaining EU. We have published our step-by-step guidance to all the major aspects of this process in Brexit – how it would all work.

Politeia publishes “Leaving the EU” by Martin Howe QC

Politeia (A Forum for Social and Economic Thinking) has published “Leaving the EU: Legal and Trade Priorities for the New Britain” by Martin Howe QC, Chair of Lawyers for Britain: download here. It is summarised on the Politeia website. It sets out a comprehensive plan for preparing the UK’s international trade relations and domestic laws to take advantage of the freedoms of Brexit, as well as how relations with the remaining EU should be handled.

UK can negotiate and conclude trade treaties before we leave

Lawyers for Britain Committee Member and barrister Francis Hoar has researched in depth the legal arguments about whether the UK is prevented from negotiating and concluding international trade agreements before the date it exits the EU. He concludes that the argument that the UK is prevented from doing so has no support from the EU Treaties or from the case law of the Court of Justice of the European Union: see Negotiating International Trade Treaties before Exit.

Joining us and following us

If you are interested in joining us or just want to hear more about our views, work and activities then please sign up for our emails


 

The referendum result is binding

Invoking Article 50: the Law, the Constitution and Politics

 

    • Constitutionally the referendum result was decisive and binding and not just advisory. The referendum result not merely authorises but positively mandates the government to exercise its legal power to give notice under Article 50.

 

  • As a matter of democratic politics it is astonishing that so many people should apparently regard it as legitimate to engage in activities designed to frustrate the expressed will of the British people. Sadly, this is a symptom of the serious damage which 40 years of membership has done to our sense of national cohesion. This damage can begin to heal once we leave.

Moves to undermine and block the referendum result

Since the result of the Brexit referendum was announced on 24 June 2016, it has become clear that there are significant forces in this country who do not accept the democratic result. There have been both legal and political moves in certain quarters to seek to delay, frustrate, re-run or somehow ultimately reverse the decision taken by the people of the United Kingdom.

One of those moves has been a legal action brought by the law firm Mishcon de Reya on behalf of a number of clients, some disclosed and some undisclosed, whose stated aim is “to ensure the UK Government will not trigger the procedure for withdrawal from the EU without an Act of Parliament.” Mishcons website

The stated aim of this legal action is to “protect the UK Constitution and the sovereignty of Parliament”. But there can be little question that its true aim is an attempt to block the implementation of the referendum result through using a pro-Remain majority in Parliament – particularly in the House of Lords – to frustrate the expressed will of the people. Indeed, the whole action is breath-takingly hypocritical: invoking professed concern for the sovereignty of Parliament in order to fetter and ultimately extinguish that sovereignty through continued membership of the EU.

This action led on 3rd November 2016 to the Divisional Court handing down its judgment in R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The court has, to the surprise of most informed observers, decided that it is outside the prerogative powers of the Crown for notice to be given under Article 50 of the Treaty on European Union to withdraw from the European Union. Lawyers for Britain are applying to intervene in the Supreme Court appeal in order to present further arguments as to why the appeal should be allowed and this judgment should be set aside: for details see Supreme Court Intervention by Lawyers for Britain.

Another move on the political front has been an online petition calling for a retrospective nullification of the referendum result and a re-run which states that:

“We the undersigned call upon HM Government to implement a rule that if the Remain or Leave vote is less than 60% based on a turnout less than 75%, there should be another referendum.”

It has been reported that that petition attracted 4 million signatures, but on 10 July 2016 it was formally rejected by the government.

A third move, this time a mixture of legal and political, was a letter to the Prime Minister which claimed to be signed by over 1,000 barristers.  This called for an Act of Parliament before the procedure is triggered under Article 50 of the Treaty on European Union for the withdrawal of the UK from the European Union, and for a Royal Commission to examine the consequences and report back before the vote is taken on such an Act.  Again, there can be little doubt that this is not a serious attempt to enhance the workings of Parliamentary democracy, but rather an attempt to delay and frustrate the implementation of the decision of the British people for years in the hope that it can somehow be reversed.

This series of attacks on democracy raise a number of legal, constitutional and political issues, which will be addressed in depth in this article.

The law on invoking Article 50

Article 50 of the Treaty on European Union was inserted into that Treaty by the 2007 Lisbon Treaty. It is often (inaccurately) referred to as “Article 50 of the Treaty of Lisbon”. It entitles any Member State to withdraw from the European Union and sets out (in broad outline) the procedure to be followed. Article 50(1) and the first sentence of Article 50(2) set out in very simple terms how the process of withdrawal is begun:

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. …”

As paragraph 1 above confirms, the constitutional law of each Member State governs how that State shall take a decision to withdraw and who, under its national law, has power to take such a decision. The procedure by which this will done will vary from State to State. For example, where, as in the case of some States, membership of the EU has been embedded into the national constitution, it might be necessary to amend that constitution by some special procedure in order for the State to make a valid decision to withdraw.

The United Kingdom does not have a written constitution which spells out who has the power to take a decision to withdraw from the EU and communicate that decision to the European Council. Therefore, one starts by looking at the general law on who has the power to conclude and withdraw from international treaties. And the general rule is quite clear. Under the UK’s constitution, it is the Crown (the Queen acting under the Royal Prerogative in practice on the advice of government ministers) which has the power to enter into and withdraw from international treaties.

Before 2010, there was no legal requirement for Parliament to approve the ratification of treaties or even to be consulted, although there was a constitutional convention (the “Ponsonby rule”) under which the government undertook to lay treaties in front of Parliament 21 days before ratification. The Constitutional Reform and Governance Act 2010, sections 20 to 25, put the Ponsonby rule on a statutory footing and empowers the House of Commons (but not the House of Lords) to block the ratification of a treaty by passing a resolution against it.

Many international treaties contain provisions similar to Article 50 which allow notice to be given withdrawing from or terminating the treaty. The 2010 Act applies to the initial ratification of a treaty, but does not apply to the giving of a notice withdrawing from it or terminating it, or indeed to measures or decisions made under it (as made clear by section 25(2)). Accordingly, the giving of a notice of termination or withdrawal of a treaty in general remains part of the prerogative powers of the Crown untrammelled by any legal requirement for the approval of Parliament.

In the Miller case, the judgment of the Divisional Court argues that there is an exception to this general rule in the case of the EU Treaties because they give rise to legal rights. This argument is now subject to appeal to the Supreme Court.

Although the Crown has extensive powers over international treaties which as a matter of law can be exercised without reference to Parliament, it has no power to alter the internal laws of the United Kingdom. This can only be done by Parliament, or under specific powers granted by Parliament. This means that the Crown is in practice unable to ratify international treaties which contain obligations to alter the internal law of the United Kingdom without Parliament first having made the necessary changes in the law, or at least being very confident that Parliament will make the required changes, or it would end up in breach of its international treaty obligations.

It is sometimes loosely said that Parliament has “ratified” a treaty when it passes an Act which gives effect to a treaty in the UK’s internal law. But this is inaccurate – Parliament enacts the necessary changes in the law and the Crown then ratifies the treaty under its prerogative powers. They are separate acts, one by Parliament the law-maker, and the other by the Crown exercising its international treaty powers.

Parliament has made the necessary changes in the UK’s internal laws to give effect to the European Union treaties, mainly through the European Communities Act 1972. This was passed in 1972 in order to give effect to the Treaty of Rome which applied to the United Kingdom from 1 January 1973. Whenever the Treaty of Rome has been amended, Parliament has passed another Act amending the 1972 Act in order to give the necessary effect in the UK’s internal law to the European treaties as amended.

But the fact that the European Communities Act 1972 gives effect to the European treaties in UK internal law does not exclude the prerogative powers of the Crown in relation to the operation of those treaties on the international plane. And actions taken by the Crown on the international plane will have consequential effects of altering legal rights and obligations within the UK. For example, if a Minister votes in the Council of Ministers in favour of a Regulation which is directly applicable inside Member States, that Regulation will then alter legal rights and obligations which are available in the UK.

The giving of notice under Article 50(2) of the Treaty of European Union is an act on the international plane, which alters or affects the UK’s international treaty obligations by bringing the UK’s adherence to the EU treaties to an end after a maximum 2 year period. Clearly this will then produce a consequential effect on legal rights and obligations available in the UK, since once we leave the EU, its various laws and rules will cease to apply internally in the UK. But the primary effect is on the international plane, and the subsequent effect on domestic law is consequential.

The Miller judgment suggests that Parliament by enacting the 1972 Act has (by implication) restricted the exercise of the royal prerogative, so preventing the Crown from giving notice under Article 50 without the consent of Parliament. The argument has to be based on implication because there is nothing in the express words of the 1972 Act or any Acts of Parliament which follow it which restrict the Crown’s right to exercise this international treaty power.

There are however three answers to this argument.

First, there is no coherent or logical basis for arguing that Parliament has not impliedly restricted the exercise of the prerogative where a Minister of the Crown takes an action which increases EU powers, for example by voting for a new Regulation in the Council of Ministers, but arguing that Parliament has impliedly restricted the exercise of the prerogative power in a case where (under Article 50) the exercise of the power results in a reduction of EU powers.

Secondly, the proposition that Parliament has impliedly restricted the exercise of prerogative powers under the European treaties has been rejected by the courts. In R v Foreign Secretary ex parte Rees-Mogg [1994] QB 552 (Lord Rees-Mogg’s  unsuccessful challenge against the ratification of the Maastricht Treaty), Lord Lloyd giving the judgment of the Queen’s Bench Divisional Court rejected an argument that the European Communities Act 1972 impliedly restricted the exercise of the Royal prerogative under the European treaties. He said: “When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, …”

Thirdly and compellingly, the argument that Parliament has impliedly restricted the prerogative power of the Crown under Article 50 is impossible to reconcile with the European Union (Amendment) Act 2008. That Act was passed to enable the UK to adhere to the Lisbon Treaty by adding it into the list of European treaties in section 1 of the European Communities Act 1972. As pointed out above, the Lisbon Treaty amended the Treaty on European Union by inserting Article 50 into it, as well as making a large number of other amendments to that Treaty and to the Treaty of Rome (which it renamed the Treaty on the Functioning of the European Union or “TFEU”).

But nowhere in the 2008 Act in there any restriction upon the exercise of the Royal prerogative to give notice under Article 50. By contrast, section 5 of the 2008 Act imposed an explicit restriction on the Royal prerogative by requiring that any amendment of the founding treaties under the Ordinary Revision Procedure of Article 48(2) to (5) of the Treaty on European Union cannot be ratified unless approved by Act of Parliament. In addition, section 6 imposed a requirement of Parliamentary approval (by resolution of both Houses) on a number of prerogative actions by Ministers of the Crown under certain other Articles of the Treaty on European Union and of the TFEU.

So Parliament in the 2008 Act created a detailed scheme under which Crown prerogative actions under certain specified Articles of the Treaties were explicitly made subject to Parliamentary control, either by a requirement for an Act of Parliament or for resolutions of both Houses. Since Parliament did NOT include Article 50 among the Treaty provisions where the acts of the Crown or of Ministers require Parliamentary approval,  it is quite illogical to argue that such a restriction of the Royal prerogative arises by implication in the case of Article 50 and of other Treaty articles where Parliament has chosen to impose no such restriction.

In conclusion, the power in law to give a notification under Article 50 is a prerogative power of the Crown which may be exercised by the government without the need for Parliamentary consent or approval.

Constitutional authority and obligation

So far, we have considered the question of who has the legal authority to trigger Article 50, and we believe it is the government exercising Royal prerogative powers.

However, under the UK’s unwritten constitution, the question of who has legal authority to do something is not always the same as who has constitutional authority to do it according to the practice and conventions of the constitution.  There are many instances where the holder of a legal power is constrained by constitutional practice to exercise it or not to exercise it in a certain way.

A famous and well known example is the constitutional convention under which the House of Commons alone is responsible for taxation. When the House of Lords broke that constitutional convention by exercising its legal power to vote down Lloyd George’s 1909 budget, it provoked a constitutional crisis which ended with the curtailment of the powers of the House of Lords under the Parliament Act 1911.

The legal power to trigger Article 50 rests in the Crown (i.e. the government) as explained above. However it is clear that as a matter of constitutional practice, that government legal power must be exercised to give effect to the declared result of the referendum.
First, the Conservative General Election Manifesto of 2015 promised a referendum on membership of the EU in the following terms:

“We believe in letting the people decide: so we will hold an in-out referendum on our membership of the EU before the end of 2017.”

It should be noted that the election promise was to “let the people decide”. It was not a promise to hold an advisory referendum, with the final decision being left to Parliament. Nor was there any mention of minimum thresholds of percentage of vote or of turnout before the referendum would be binding. Therefore the British people were given a politically and constitutionally binding promise in the election manifesto of the successful party that they would be given the final and deciding say in a referendum in which the majority would prevail.

As a matter of constitutional practice, the inclusion of a policy in the election manifesto of a political party which achieves a majority at a general election gives rise to a constitutional mandate to implement that policy.

Secondly, Parliament enacted the European Union Referendum Act 2015, whose formal title stated that its purpose was “To make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union”. That Act authorised the holding of the referendum, regulated who would be legally entitled to vote in it and other matters about the conduct of the campaign, and specified that the question would be: “Should the United Kingdom remain a member of the European Union or leave the European Union?”

The Act does not contain any provision saying that its result is subject to a minimum turnout threshold or a mininum percentage vote in favour of either remain or leave. Such thresholds can be imposed, for example a 40% of the electorate threshold was specified by Parliament in the 1979 Scottish devolution referendum. What would be unprecedented would be restrospectively imposing a threshold after the vote has taken place, as proposed by the petition mentioned above.

The letter from 1,000 barristers claims that the result of the referendum is “advisory” because that Act “does not make it legally binding”. It is true that the Act does not contain a section at the end expressly saying that the government is under a legal duty to proceed to implement the result of the vote.

But that does not mean that the referendum result is “advisory”. The Act itself does not say that it is advisory. At no point did ministers in their public statements either to Parliament or outside say that the referendum result would only be advisory. On the contrary, they repeatedly said that the referendum would allow the British people to decide the question of whether we remain or leave.

In opening the second reading debate (Hansard) on the Referendum Bill on 9 June 2015, the Foreign Secretary said:-

“This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.” (emphasis added)

And he concluded that speech as follows:

“Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.” (emphasis added)

Thirdly, in the course of the referendum campaign the government spent £9.5million of taxpayers’ money on printing a leaflet and distributing it to all households in the United Kingdom. That leaflet attracted widespread (and deserved) criticism for its gross bias in favour of remaining in the EU. However, on the consequences of the referendum it could not have been clearer. On the page headed “A once in a generation decision” it stated that:

“The referendum on Thursday 23rd June is your chance to decide if we should remain in the European Union.”

It did not say “it is your chance to advise on whether we should remain, the actual decision being taken by Parliament.”

But it went on to be even clearer and more emphatic:

This is your decision.  The Government will implement what you decide.

It is therefore clear that the referendum was not merely advisory, but was constitutionally decisive and binding. The clear, repeated and unequivocal promise made to the British people was that their vote in the referendum would finally decide the course which our country takes. Treating the result as merely advisory would be a flagrant breach of the repeated and unequivocal promises made to the British people. There should be no second guessing or reversal of the result by Parliament or by anybody else.

The government is therefore constitutionally mandated to exercise its legal power under the Royal prerogative to trigger the Article 50 process.

Political commentary

What is astonishing about these various moves to frustrate the result of the referendum is that the people involved have so little respect for democracy, and so little self-awareness.  They arrogantly believe that their minority views should prevail in the face of the clear majority decision of the British people. Many of them seem coloured by the view that people who voted to Leave are stupid, uneducated, xenophobic, racist and live outside London, and accordingly their votes are worth less than their own educated and enlightened votes cast by people such as them in London or (even better) in Hampstead.

It is deeply disturbing that any citizens of this country should be so dismissive of the democratic rights of millions of their decent and intelligent fellow countrymen and countrywomen, who cast their votes in the poll with the highest national turnout for 24 years.  The 17,410,000 people who voted to leave the European Union were the highest number ever to have voted in the history of the United Kingdom for a proposition or for a political party.

The astonishing arrogance, petulance, and desperate plotting to negate the democratic decision of the British people which has been displayed since the referendum result was announced is a deeply worrying symptom of the great damage which 40 years of EU membership has done to our sense of national and civic cohesion.  The EU has persistently pursued policies which at every level are designed to weaken the bonds which bind us together as a nation. Its technique is to recruit an elite inside each Member State which regards its primary allegiance as being to the EU and not the country, and which is rewarded with power and influence in return for keeping the populace under control.

It is by leaving the European Union that we can begin the long term process of healing our nation from this disease, and re-unify our people once again as members of a proud independent self-governing nation.


Brexit – how it would all work

Myths and Misconceptions

There are many myths and misconceptions about the Brexit process and what it will involve. During the campaign, near hysterical fears were voiced that somehow the UK would be plunged into a situation where we would be cut off from trading with the EU or even somehow severely hampered in in trading with the wider world.

The £9.5m leaflet distributed in May 2016 at taxpayers’ expense which set out the views of the pro-Remain faction within the Government claimed that voting to leave the EU would “create years of uncertainty” and that “it could result in 10 years or more of uncertainty as the UK unpicks our relationship with the EU and renegotiates new arrangements with the EU and over 50 countries round the world.

These alarmist claims do not stand up to critical scrutiny for reasons which we shall carefully explain.

The reality

The reality is that the Brexit process is legally straightforward.  The UK, in common with all other EU Member States, has an unqualified right to give notice of withdrawal from the European Union.  As explained in our first section on the Brexit Process, under Article 50 of the Treaty on European Union,  the giving of notice by a Member State is followed by a 2-year period during which an agreement on arrangements for withdrawal and for a continuing future relationship can be negotiated between the withdrawing State and the EU.

A common misconception is that the European Union would be able to delay our departure by dragging out the negotiating process.  This is not correct. The Treaty is clear that at the end of the 2-year period we would cease to be bound by the European Treaties, and therefore cease to be liable for budget contributions and all the other obligations of membership, whether or not the details of exit and of our continuing future relationship had been agreed.

During this two-year period,  the UK would be able to carry out a series of steps which would not need the cooperation or agreement of the EU.

First, we would revise our internal law in preparation for exit so that we could take full advantage of the most important freedom we would regain, which is the ability to decide on our own laws in the wide areas of policy where at present the content of our law is dictated by EU obligations.

Secondly, we would be free to negotiate international trade agreements with other countries including the EFTA states.  Pro-Remain assertions that it can take years to negotiate new free trade agreements are irrelevant and beside the point.  As we explain in our detailed page on Brexit and International Trade Treaties,  the UK is already a party to the EU’s external free trade agreements  and there would be no need to negotiate new terms with the other States involved.  All that would be needed is much simpler: for those States to agree to the UK representing itself rather than being represented by the EU Commission, and to continue the existing free trade terms.  They would have every incentive to do this in time for Brexit:  it is impossible to see why Korea for example would want to see tariffs re-imposed on its exports of electronic goods and cars into the UK market.

Thirdly,  we would replace many international arrangments which at present are conducted though the EU by directly joining global or regional multilateral treaties.  In many areas, there is simply no logic or purpose in conducting our international relations through the EU.

Fourthly, we would wish to negotiate a trade relationship with the EU in order to preverse existing trade patterns.  Since we are the EU’s best customer and buy far more from the EU than we sell to them,  a free trade deal is more in their interests than in ours and we would have a very strong hand in negotiating free trade on fair and reasonable terms for our mutual benefit without having to pay any sort of “price” for the great “privilege” of continuing to buy goods from the EU without imposing tariffs or other barriers on them.

The steps in the Brexit process

In the following pages, we shall explain the steps which will be followed by the UK in the Brexit process.

First, we explain the legal framework of the Brexit process as laid down in the European Treaties, what needs to be done to trigger it and what happens next.

Then we explain in International Trade Treaties how the UK would take over directly the existing free trade relationships with third countries under the existing EU-third country trade agreements,  preserve its free trade relationship with the EFTA countries,  and then be in a position to start negotiating additional and improved free trade agreements in advance of actual exit from the EU to take effect after exit.

In further instalments of this series, we explain in Amending UK law in preparation for Brexit how the UK could go about reforming its internal laws in the period before for exit,  and how in a large number of areas there are already available global or regional treaties which would replace international arrangements which are currently conducted through the medium of the EU.

In Brexit and the EU Single Market we explain the legal elements which make up the single market, some of which are beneficial but others of which (such as ‘Fortress Europe’ restrictions it imposes on our trade with non-EU countries) are very harmful. Therefore the objective after exit should not be to remain part of the Single Market with all its negative consequences: instead, the aim should be to maximise the UK’s access to the Single Market.

And finally in Brexit – doing a deal with the EU we explain the objectives and negotiating tactics the UK should pursue in seeking a long term agreement governing trade and other relationships with the remaining EU.


Brexit – doing a deal with the EU

During the referendum campaign, huge attention has focussed on the question of what kind of deal should replace the current relationship which exists under the EU Treaties between the UK and the rest of the EU. That  current arrangement naturally involves the UK participating in the EU single market. What then should replace that current relationship and how would it compare with present arrangement?

The first point to make is that participation within the single market is far from being an unmixed blessing.  In our article Brexit and the Single Market, we explain that the rules of the European single market are made up of a number of different elements, some of which are helpful to trade, some of which (such as harmonised regulations) have benefits and disadvantages which counterbalance each other and may have different positive and negative impacts depending upon the sector concerned, and others of which are positively harmful and negative for the UK.  In that latter category are the ‘Fortress Europe’ rules of the single market which positively require us to impose restrictions on trade between ourselves and non-Member states, so driving up costs to our consumers and industry.

Therefore the aim should not be to preserve participation in the European single market with its negative features. Instead, the aim should be access to the single market.

The EU trade tail should not wag the global dog

Before turning to what kind of deal with the remaining EU we should aim for, we should first ask what is the dog and what is the tail?  Over the past 10 to 15 years, there has been a dramatic decline in the proportion of our trade which goes to the EU as compared with our trade which goes to the wider world.

In 1999, 55% of our exports of goods and services went to the EU.  By 2015, this percentage had dropped to under 44% and it is still declining.

This speaks volumes for the supposed benefits of the single market  – if it’s really so great to belong to it, why do we find it more difficult to grow our exports to the EU than to the rest of the world?

But what it means is that trade with the rest of the world is now more important to us than trade with the EU.  This is not some passing phase but a long term and persistent trend which seems likely to continue into the future.  So, in our dealings with the EU after exit we must look first to what is best for our global trading interests outside the EU (the dog),  and must ensure first and foremost that any deal regarding trade with the EU (our declining tail) does not interfere with or compromise our global trading interests.

It is also worth noting how we compare with other EU member states in our pattern of trade. The EU’s official statistics body, Eurostat, has published a comparative study of the way in which exports from different member states go to other EU member states or outside the EU: Intra-EU trade in goods – recent trends

That Eurostat article contains an informative table which we reproduce for the benefit of our readers:
Eurostat Table Intra-EU Exports by Member State
This shows that by 2013, the percentage of our exports going to other EU states had dropped to 43.6%,  the lowest percentage of any member state except for tiny Malta. This trade pattern is hugely out of line with the rest of the EU: it is 18.4% below the EU average of 62%.  It represents a major change from the position in 2002 when over 61% of our exports went to EU members, and we were much closer to the average and much more typical of the pattern of other member states.

This illustrates why the interests of the UK are so dramatically different from those of all other member states of the EU.  Our global trade is much more important to us than it is to other EU member states, while our exports to the rest of the EU are much less important to us than any other major EU state – the next major state closest to us in its trading pattern is Italy, which sends 53.7% of its exports to other EU states.

Since the EU club is run for the benefit of the club members who send most of their exports to each other inside the EU, it is hardly surprising that we are the club member who gets least benefit from our membership.

The EU’s best customer

The other aspect of our trading relationship with the EU is our balance of trade. We import very much more from the EU than we export to them, a trend which has persisted over recent years and appears to be strengthening.

According to the latest figures (2015, ONS “Pink Book”) the UK exported £134.3bn worth of goods to the r-EU but imported £223.0bn, a trade gap of -£88.7bn: we import 66% more goods from the EU than they export to us. The reason why this trade gap is important is not because it is of itself a bad thing – within a country’s overall trading pattern it will have surpluses with some trading partners and deficits with others, and there is no particular reason why one should try to achieve a trade balance with each partner.

But this trade gap does have major implications when it comes to negotiating a trade deal with the remaining EU. Any measures which inhibit trade between the UK and the r-EU after exit (such as the imposition of tariffs) would disproportionately affect EU exporters compared with UK exporters.

Rather silly comments currently are being made by certain EU politicians in an attempt to influence the outcome of the referendum claiming that terms of access to the r-EU market will be made difficult for the UK in order to deter other countries who might have the temerity to believe in democracy and be thinking of following us out of the door.  Such puerile sentiments will not be reflected in reality when the jobs of German car workers and French agricultural producers are dependent upon reaching a harmonious and mutually beneficial trade deal with the UK.

Key elements of the trade deal with the EU

There is a widespread misconception that any post-Brexit trade deal with the EU would have to be based on a “model” of one of the EU’s existing external trade agreements. So it is asked whether the UK should go for a Norwegian, Swiss, Canadian or even Albanian “model”?

This is a mistaken starting point. Of course it is interesting to examine the EU’s existing trade agreements in order to see the kinds of things the EU has agreed to in the past. It is also interesting to note that the Western European countries who are outside the EU all seem to be doing very well economically and do not want to convert their existing arrangements into EU membership.

Examination of the EU’s external trade deals demonstrates that there is no fixed template and no limited “a la carte” menu from which other states must choose. The wide variety of the agreements reached simply demonstrates that the EU is willing to negotiate on a case by case basis a deal which suits the mutual interests of itself and the party it is negotiating with. Therefore it is not surprising if agreements negotiated to suit the circumstances and interests of other states with economies that differ from the UK should not be best fits for the UK’s interests.

What the UK should press for in terms of a trade related agreement is in fact fairly straightforward and simple, and consists of three elements:

    1. A free trade agreement: A free trade agreement allowing for tariff-free entry of goods (in both directions) is a permissible departure under Article XXIV of GATT from the rule that WTO members must charge the same tariff rate to all comers. Unlike a customs union, members of a free trade area can decide on the level of the standard tariffs which they charge to non-members of the free trade area.  As pointed out in our article Brexit and International Trade Treaties, this would allow the UK to charge lower or nil tariffs on goods where there is no substantial UK industry to protect, to the benefit of our consumers and industry. The r-EU would have a very strong incentive to agree to an FTA deal, in view of the huge trade imbalance pointed out above. In any case,  all non-EU territories in Europe have free trade agreements with the EU apart from Belorussia.

 

    1. General rules on free movement of goods and services: The general rules of the EU treaties on free movement of goods and services have generally worked well and in the interests of the UK. There would be no difficulty in replicating these general rules in an EU-UK trade agreement and in fact many of the EU’s external trade agreements already do so. Since these rules are for the benefit of consumers in the state of importation, there is a strong argument for replicating these rules and applying them to goods and services imported from non-EU states as well, something which we are currently prevented by our EU membership from doing.

 

  1. Continued access for goods and services under existing regulations and directives: The EU currently has numerous regulations and directives which lay down rules with which goods and service providers must comply, in return for which the goods or services may be sold in other member states without further regulatory restrictions. Unlike a country which might newly approach the EU for a trade relationship, the UK is currently compliant with this mass of regulations and directives. This makes the basis of a trade deal simple: so long as neither party changes the relevant rules, access will continue after exit in the same way as before. Importantly however, this would give both parties (us and the r-EU) the right to change the rules in a relevant area but bearing in mind that a rule change might affect the continued access rights of those businesses who export from the UK to the r-EU or vice versa.

Trade is of course not the only aspect of our current relationship with the EU where it would be sensible to continue to cooperate. A wide range of matters should be covered by inter-governmental agreements, from intelligence and security cooperation to continued participation in Europe-wide (not EU-wide) programmes such as scientific and higher education research and student exchange programmes. Such continued mutually beneficial cooperation in non-trade matters does not need to be embodied into a trade agreement.

 

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10 Comments on "Lawyers for Britain have been given permission to intervene in the Supreme Court Appeal on behalf of ‘Public Interest’"

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Nick Toeman
Guest

Too conspiratorial for me. Blair, Major, Farron, Sturgeon, Carney, etc. are either open or their words speak for themselves. The PM might not prove strong enough to get the result we need but I haven’t seen evidence the she’s a stooge. Failures at our borders may be incompetence more than policy. Our best hope is that the EU implodes because of the Euro or other citizens demanding their own exits.
Nick

Nick Toeman
Guest
Peter, Thank you for your work on extracting key topics from Lawyers for Britain. I will be reading through all that as I, like you, am concerned about backsliding from the people’s Brexit decision. However my concern is mainly about the politicians, lawyers, Bank of England Governor, etc. who seem intent on throwing up obstacles or engineering a “soft” Brexit that is as meaningless as they can make it. However Mrs May has not shown us that she is in that camp, let us judge her by her words and actions rather than imply a conspiracy. Remember that Margaret Thatcher… Read more »
Margaret robinson
Guest

Thank you for this peter. Most informative. I hope you are feeling better. Do you still want to receive articles for reprinting. This seems a better case than that put forward by the AG in the original case. I womdered it that case was under presented possibly due to a bit of elitetist arrogance and over confidence in belief of an easy win.

Jennifer
Guest

I completely agree Margaret Robinson. Do you subscribe to Lawyers for Britain’s newsletters, can thoroughly recommend them, if you don’t.

Jennifer Lindley
Guest

I received the email from Lawyers for Britain yesterday and am delighted that they are being allowed to intervene. If lawyers don’t know the law, then who does? Gina Marshall does she know the law? Who is Gina Marshall you may ask? She is the “businesswoman” who is at the centre of the recent court case …This “bulletin” takes some wading through, no question, but I do think it is well worth it.

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