You may recall that Gerard Batten highlighted the trap being Article 50. I have received via Idris an email today from ‘Graham’ which reads:
I don’t know whether you happened to see this piece reported by Brexit Central? It is the first analysis of the so called “transition” being discussed that I have seen, and typical of Martin Howe’s approach, is a forensic treatment.
It underscores what we already knew, namely that the Article 50 route for the EU was nothing less than a trap for the UK – or perhaps more aptly given developments recently, could be called an area of lethal quicksand.
It starkly reveals how the “transition” not only enables us to leave the EU in name only after March 2019, but that we would be involved in extremely complex and unnecessary arrangements open to more protracted disputes which could possibly delay almost indefinitely a real Brexit (in spite of Mrs May’s repeated assurances about “leave means leave & etc”)
In my view this a hugely important piece, though long is worth reading and understanding the basic message – it is a noose being prepared for the UK and given enough rope, we know what our devious political class are capable of.
If you would kindly circulate this to your list then it would do a great service in providing a sound analysis of the acute danger we face from the ‘remainers’ by one of the best legal minds today in the UK on matters EU. (some of the emphases in bold are mine below)
In this first part of his analysis of the legal and treaty ramifications of the Florence speech implementation period proposal, Martin Howe QC explains that:
The EU only has the legal power under Article 50 of the Treaty on European Union to agree transitional or interim arrangements once the destination to which the transition leads has been agreed, at least as a framework. There is no power under Article 50 for the EU to agree an open ended transitional period of the kind which many business leaders seem to expect in order to allow time for negotiation about the future relationship.
Because the EU cannot agree to a transitional period until the framework of the future relationship has been agreed, it is impossible for the EU to agree to a transitional period until late 2018 at the earliest. Hopes that such a transition can be agreed â€œby the end of this yearâ€ are naive and totally unrealistic.
The EU27’s negotiating strategy dictates that they will not agree to a transition period until the UK has succumbed to their demands about the EU’s legally meritless financial claim, citizens rights, ECJ jurisdiction, and other matters. From the EU27’s perspective, granting an interim period would let the UK off the hook, contrary to the EU27â€™s strategy to force the UK up against the wall of the hard deadline for exit in March 2019.
1. Implementation vs ˜transitional arrangements – what that means
The word transitional or interim can be used to describe widely differing arrangements which in theory the UK might be subject to in the course of leaving the European Union.
However, leaving aside for the moment these obvious political and economic drawbacks, what the proponents of this kind of â€˜transitionalâ€™ arrangement fail to understand is that it is legally impossible for the EU to agree to an open ended transitional arrangement within the framework of Article 50. This is part of a wider lack of understanding of the scope of what the EU can and cannot agree as part of the â€œarrangements for withdrawalâ€ under Article 50.
2. The legal basis of transitional arrangements
It is important to understand the legal basis of the EU’s power to enter into possible transitional arrangements with the UK. The EU27 are currently negotiating with the UK about the terms of an agreement which would be authorised under Article 50(2) of the Treaty on European Union (TEU ). This reads:-
3. Negotiating and agreeing the implementation period
It seems to be assumed in some business quarters that an implementation period can be agreed with the EU before the end of the current year. Indeed, on 4 October 2017, the Lord Mayor of the City of London urged the government to secure a Brexit transition period by the end of this year, and his demand was supported by Sam Woods, Deputy Governor of the Bank of England.
4. Fashioning a noose for our own neck
However, the prospect of a transitional period promised in vague terms, in the absence of firm legal agreement that there shall definitely be such a period, would create a dangerous noose round the UK’s neck.
This would mean that a late stage refusal of the EU27 to grant the requested interim deal would have an increasingly calamitous effect the closer we get to 30 March 2019. As that date approaches, bargaining power would swing further and further to the EU27. The UK would have wilfully and voluntarily manoeuvred itself into a position where it would have no choice but to agree to any additional or enhanced late stage demands of the EU27, or the European Parliament, or of any individual member state. There is also, as pointed out by Sir David Edward a former judge of that court, a real possibility that the ECJ might rule the withdrawal agreement to be contrary to the EU treaties at a very late stage before it is due to come into force.
On 11 October 2017, Mr Hammond, Chancellor of the Exchequer, wrote anarticle in The Times, in which he claimed that the government and the Treasury are planning for every outcome, including a no-deal scenario, that â€œwe will find any necessary fundingâ€ . Unfortunately, he destroyed the whole effect of this apparent determination to prepare for a no-deal scenario by adding the words: â€œand we will only spend it when itâ€™s responsible to do so.â€ Unfortunately, these words send a clear signal to the EU27 (who do read articles in The Times) that the government is only bluffing about getting ready for a no-deal scenario.
Indeed, these words so shockingly undermine the recent efforts of the Prime Minister and other ministers to say that the UK will be ready for a no-deal scenario that one must wonder why they have been said. Mr Hammond and the Treasury, having ushered the UK into the position of putting the transition period noose round its neck, are effectively trying to kick over the chair on which we are standing which would force the UK to succumb to the EUâ€™s demands.
ANALYSIS OF THE TRANSITION FOR BREXITcarolOct 15, 20170025
Dec 17, 2017
Dec 17, 2017