My analysis and reasoning on these points is set out more fully at the Lawyers for Britain website. Compliance with this obligation can be subject to independent arbitration. Martin Howe QC 20 October 2020 5:46 pm, Boris Johnson says the EU has refused to negotiate seriously with the UK for the last few months, and time…, With Boris Johnson finally in No. It will also apply to the EU laws which apply in Northern Ireland under the Protocol for an indefinite period unless and until the Protocol is replaced. A future agreement ‑ whether our future relationship or other “alternative arrangements” (as referenced in the legal text) would ensure that the backstop was never needed or was turned off. The government in yet another foolish capitulation which is in breach of international treaty practice, have agreed in Art.160 to give the ECJ rather than an independent panel the right to rule on the size of the EU’s financial claims. The likely extension of the transition coupled with the very thin political declaration means that it could run indefinitely, prolonging the turmoil of the past 18 months and uncertainty about the future. He is quite right to maintain a no-deal Brexit as his own backstop. 4. Boris Johnson says the EU has refused to negotiate seriously with the UK for the last few months, and time… There’s another option beyond no deal or May’s deal – and Boris knows it. 20 October 2020, 6:46am. Twitter; Facebook; LinkedIn; Email; With Boris Johnson finally in No. 9:00 AM. It has since been amended to “31 December 2022". 8. You’re gonna make us lonesome when you go, The middle-class childhood mafia is fleecing us again. The ‘transition’ period would see most EU laws continuing to apply in the UK, enforced as now by the Commission and adjudicated by the ECJ. You reap what you sow: … Legal opinion The Political Declaration does not save us from the trap of the Withdrawal Agreement. Again No 10's claim is not true that arbitration could provide a remedy for a refusal by the EU to agree to release the UK from the Protocol under the review procedure. A major new paper “Brexit delayed is Brexit Denied – Why the UK Must Not Extend the... News We’ve left the EU as a matter of law: now we need to leave... 31 January 2020. by Martin Howe. 5. 9:00 AM. Below is the full legal advice of the 'Star Chamber' - a group of lawyers assembled by the ERG and the DUP to scrutinise May's arrangements on the backstop. Downing Street: It takes on average two years for significant new rules to pass through the EU, and the UK would therefore have helped to shape these rules. The Spectator: Martin Howe QC responds to No10’s “rebuttal” 10 Downing Street has published a ‘rebuttal’ to my article in this week’s Spectator looking at the legal implications of the Withdrawal Agreement. There is a provision for further extension of the Implementation Period if strictly necessary, but it can be extended only once and only for a time limited period. 10’s ‘rebuttal’. This amounts to £146 billion of exports, more than three times the £47 billion that went to the US, the UK’s second largest trade partner. The memo draws some important conclusions on the basis of the limited information available in the press statement prior to the … Martin Howe QC is a barrister in the fields of intellectual property and EU law at 8 New Square. 10 we now have a prime minister who says he is committed to Britain…, Martin Howe QC 24 November 2018 9:00 am, The most important point about the draft Brexit withdrawal agreement is that, once it is ratified, the United Kingdom will…, Australia's best political analysis - straight to your inbox, The Spectator Australia's Morning Double Shot delivers a hearty breakfast of news and views straight to your inbox, Weekly round up of the best Flat White blogs - delivered straight to your inbox, The Spectator, 22 Old Queen Street, London, SW1H 9HP, There’s another option beyond no deal or May’s deal – and Boris knows it. 7. The turmoil and uncertainty of the last 18 months will undoubtedly continue during the transition period. 27 July 2019. This is because paragraph 23 rules out origin checks which are necessary in order for countries to operate Canada-style free trade agreements which allow their third country tariffs to diverge from each other, both for practical reasons and for legal compatibility with the definition of permissible free trade agreement under Article XXIV of the General Agreement on Tariffs and Trade. He is Chairman of … 24 November 2018. 25 November 2018. by Martin Howe. 10’s ‘rebuttal’ of his Spectator article - Lawyers for Britain Chairman of Lawyers for Britain Martin Howe QC has published here his response to 10 Downing Street’s “rebuttal” of his Spectator article on the legalities of the Withdrawal Agreement. Martin Howe QC is a leading Barrister who specialises in EU Law. Grant: Avoiding the Trap – How to Move on from the Withdrawal Agreement. It means that our treaty obligations can be effectively rewritten in the future - through the ECJ promulgating a “reinterpretation” of EU rules we have agreed to follow. Boris Johnson (photo: Andrew Parsons / No 10 Downing Street) … Downing Street: The UK will be able to negotiate, sign and ratify free trade agreements with rest of world partners and, following the Implementation Period, implement any elements that do not affect the functioning of the backstop – such as those aspects related to services, procurement and investment. Martin Howe QC 20 October 2020 5:46 pm. 9:00 AM. As Martin Howe QC explains in this week’s issue, Boris is right to look towards a temporary solution while a more permanent trade deal with the EU can be negotiated. Martin Howe QC. This makes it unique among … 2 December 2018. by Martin Howe. Legal opinion Withdrawal Agreement: The Northern Ireland Protocol is neither a “backstop” nor temporary . Disputes between the UK and the EU will not be resolved by the CJEU; its role will be strictly limited to the interpretation of EU law, consistent with the principle that the court of one party cannot determine disputes between the two. Share This. How are we enjoying the Biden presidency so far? Where the treaty obliges the UK to apply EU law or rules based on it, this procedure will require the substance of the dispute to be decided by the ECJ and not by the panel. Brexit deal: Martin Howe QC responds to No. The UK Supreme Court formally “resolves the dispute” by passing the formal judgment in the case, but is obliged (1) to refer any doubtful questions of EU law to the ECJ, and (2) is bound to follow and apply the answers given by the ECJ, whether it agrees with them or not. Even in a backstop, we could implement any elements that do not affect its functioning — such as those aspects related to services and investment. Martin Howe QC. 10 we now have a prime minister who says he is committed to Britain leaving the EU on 31 October, deal or no deal. Share This. "Once the Protocol is in force, the UK cannot leave it except by ‘joint’ decision of the UK and the EU. And Martin Howe QC, who wants to quit the EU, said: 'Governmental claims that the summit deal is legally binding are highly misleading.' It is most regrettable that the government is not trying to sell the deal on its merits, but is seeking to take advantage of legal complexities to misrepresent the legal effects of the agreement on this critical point as well as others. Those notably include the provisions on EU citizens’ rights, where the UK will be required to maintain direct effect and supremacy for as long as anyone is alive who benefits from these rights, which will include EU citizens living here by the end of the transition as well as their descendents. The EU could carry on proposing terms which are unacceptable to the UK and/or spin out these complicated negotiations for years without it being possible to demonstrate that the EU is in breach of any obligation of best endeavours. My response: These astonishing and humiliating procedures derived from the Association Agreements of the former Soviet republics of Moldova, Georgia and Ukraine plainly do not respect the principle that the court of one treaty party cannot resolve disputes between the two. Martin Howe QC is a barrister specialising in intellectual property and EU law and is Chairman of Lawyers for Britain. First, the positives. Scott Morrison is being convicted of the crime of being a decent man. MARTIN HOWE Q.C. Boris Johnson’s deal unveiled on Thursday 17 October 2019 is miles better than Theresa May’s ghastly capitulation. by Martin Howe QC, Chairman of Lawyers for Britain. 27 July 2019. In fact £39bn is probably an under-estimate of what we will end up paying. Why Boris should reject this Brexit deal. Here Martin Howe QC, Chairman of Lawyers for Britain, gives his first assessment of the Political Declaration agreed by EU leaders on 25 November 2018 as a companion for the draft Withdrawal Agreement. The financial settlement reflects a fair settlement of our rights and obligations as a departing member of the EU. Martin Howe QC 27 July 2019 9:00 am. Downing Street: This is untrue. It would not let us forge our own trade policy with other parts of the world. Here he expands on the points first put forward in his Telegraph article of 10th September 2020, ‘Forget the foaming indignation, this Brexit bill is perfectly justifiable’ The United Kingdom’s Internal Market is part of our Constitution In agreeing to this clause, the government has caved in over seeking a right to leave.". 9:00 AM. 10 Downing Street has published a ‘rebuttal’ to my article in this week’s Spectator looking at the legal implications of the Withdrawal Agreement. This means that the EU will not even be under a moral, still less legal, obligation to agree a trade deal which allows the UK to conduct its own future independent trade policy.". Angus Colwell. Direct effect and supremacy would continue to apply across the board up to the end of the transition period. Why does the Left keep making the same mistake? The criteria for release are extremely broad and vague and are linked to the overall objectives of the Belfast (Good Friday) Agreement. Sign up. The theoretical right to do trade deals about non-goods matters is of little value since we need to be able to offer tariff-free access to our markets for other countries’ goods exports in order to persuade them to take the services exports we want to make. We don’t need to go here into the latest arguments about ‘oven-ready’, or ‘Johnson duped us’ or ‘Johnson is a buffoon and doesn’t know what he’s doing’. Martin Howe QC - EFTA court doesn't involve ECJ directly but slavishly follows their judgements - EFTA court gives binding ECJ rulings by the back door If the transition period is extended, the UK’s financial obligations will automatically increase by tens of billions. And ultimately we want to ensure it never needs to be used; or is used only for a temporary period. Get the latest developments around the world. 9. This memo is based on the press statement issued by the government about the conclusion of the Chequers Cabinet meeting on 6 July 2018, and should be read in conjunction with that statement which is reproduced on this page. The implementation period is designed to ensure continuity and certainty for businesses and citizens during this limited period when EU law continues to apply. Goods sectors, including agrifood, account for £226 billion of UK GVA, employ 835,000 people and see 48% of exports go to the EU. No 10's statistics give the UK’s goods exports to the EU but do not mention our goods imports from the EU, which in 2017 were £259bn, giving a trade surplus in favour of the EU of £95bn. Instead, it locks us down by throwing away in advance our two strongest negotiation cards: EU budget payments of £39 billion and the future access to our market for EU goods. Martin Howe's response: No 10's response does not contradict what I said in the sentence quoted from the article, which is manifestly correct. In addition to the undesirability of effectively postponing Brexit for an extended period in order to carry on negotiating rather than for actually implementing anything, there is a severe risk that the EU will adopt and shape regulatory measures which are damaging for UK industries during the transition period - when we will have no vote but still be required to implement them. Flat White. What’s good about Boris Johnson’s revised deal. The ‘independent’ panel will simply act as a postbox for sending the dispute to the ECJ. As a by-product, the Protocol would require us to remove tariffs on goods imports from countries which the EU does a trade deal with, even if that deal were to offer no reciprocal benefit to the UK. Martin Howe QC. 6. Martin Howe QC is a barrister specialising in EU law, mainly Intellectual Property and the free movement of goods and services. Michael Tappin QC Call: England & Wales 1991, Ireland 2018 | Silk: 2009 Adrian Speck QC Call: 1993 | Silk: 2012 Andrew Lykiardopoulos QC Call: 2004 | Silk: 2014 3. Regrettably, its responses to my critique go beyond making a best case for the treaty. Posts Tagged: Martin Howe QC Simon Richards: Almost 15 years ago, I helped to set up Better Off Out. They have raised a separate point about the ability of the UK to do trade deals with non-EU countries. It would not give us back control of our laws. His Politeia publications include How to Leave the EU, Legal and Trade Priorities for the New Britain (2016) and Zero Plus: The Principles of EU Renegotiation (2014). There is also an explicit review clause built in to the agreement, enabling the backstop to be terminated where it is not necessary to meet its objectives. Will we ever know the truth about Russiagate? And as a rubber stamp when the answer comes back. My response: No 10's claim that an obligation “to use best endeavours to agree” could be enforced by arbitration is not true. This respects the principle that the court of one party cannot resolve disputes between the two. This gives the EU a right of veto over the UK’s exit. They involve issues of both political and operational judgement that any replacement arrangements proposed by the UK are such that the Protocol is “no longer necessary to achieve the objectives”. We were opposed by Cherie Booth QC, Rabinder Singh QC and Shami Chakrabarti. The political declaration in fact recognises that our customs arrangements will build and improve on the single customs territory. 24 November 2018. The withdrawal agreement establishes a binding obligation on both the UK and the EU to use their best endeavours to agree a future relationship which would supersede the backstop by December 2020. "Indeed, the Protocol — which has become known as the ‘backstop’ — locks the whole UK into a customs union with the EU with no decision‑making power.". My response: When the article was written, the draft withdrawal agreement (rather farcically) stated that the transition could be extended “up to 31 December 20XX”. Sign up to the Best of the World newsletter . Martin Howe QC. Publications: Author of leading practitioner textbooks: Russell-Clarke and Howe on Industrial Designs , Sweet & Maxwell, (1998 and 2005 Eds), and Halsbury's Laws Title on Trade Marks (1985, 1995, 2000 Eds), as well as numerous articles in The customs union under the Protocol throws away the possibility of the UK importing more of those goods from markets where they are cheaper to the benefit of UK consumers, and of using the reduction of barriers on goods imports into the UK market in order to negotiate favourable terms for UK exporters of both goods and services into fast growing markets around the world. To understand Boris Johnson, you have to understand the figure who has inspired him, shaped his worldview and accompanied him throughout his career. According to popular wisdom, the only way of avoiding the latter is for the government to negotiate a modified version of Theresa … This deal isn’t perfect – but it delivers what we campaigned for. My response: No 10's response does not actually contradict, because they cannot contradict, what I said in the sentence they have quoted - which is that the Protocol “locks the whole UK into a customs union with the EU with no decision-making power”. Downing Street: This agreement confirms that as we leave the EU the days of sending vast payments to the EU are coming to an end. TikTok's fake news problem. An obligation on two parties to agree with each other is not justiciable because it is not possible for a judge or arbitrator to pin the blame on one party or the other if they cannot reach an agreement. A shortened version of this piece appeared in the Sunday Telegraph on 25 November 2018 under the title “May’s capitulations are catastrophically […] Written by Martin Howe QC. 2. My response: No 10's response is just not true. With Boris Johnson finally in No. UK courts will no longer be able to appeal to the CJEU, other than for a time‑limited period on the important matter of citizens rights and on very specific aspects of our exit from the EU budget. Editor’s picks. No10: a response to Martin Howe QC 10 Downing Street In this week’s Spectator, Martin Howe QC gives the legal verdict on Theresa May’s Brexit deal, and finds: ‘This is not a bad deal. That would still be six and a half years after the referendum, longer than the Second World War, and after the last possible date for a general election at the end of the current Parliament. Here he expands on the points first put... News Brexit Delayed is Brexit Denied – Why the UK must not... 17 May 2020. by Martin Howe. This was confirmed by Dominic Raab as the government’s internal legal advice on the Today programme on 22 November 2018, and accords with the conclusions which I have explained in a 30-page report available at the Lawyers for Britain website. It is estimated to be much lower than some of the estimates we heard – as high as £100bn and it is agreed in the spirit of our future relationship. 10’s ‘rebuttal’ of his Spectator article. Downing Street: The political declaration is clear that whatever is agreed in the future partnership must recognise the development of an independent UK trade policy beyond this economic partnership. That means exactly what it says — that we can make use where appropriate of what we have included in the withdrawal agreement. In this week’s Spectator, Martin Howe QC gives the legal verdict on Theresa May’s Brexit deal, and finds: ‘This is not a bad deal. Martin Howe QC. Twitter; Facebook; LinkedIn; Email ; The most important point about the draft Brexit withdrawal agreement is that, once it is ratified, the United Kingdom will have no legal route out of it unless the EU agrees to let us out and replace it with another agreement. I would invite interested readers to consider these points carefully, and reach the conclusion that No 10's argument that arbitration could provide an alternative route out of the ‘backstop’ Protocol to that of having to reach agreement with the EU is not only wrong but entirely implausible to any competent lawyer. It makes sense that common rules will continue to apply until the Implementation Period ends in 2020, to give UK citizens and businesses consistency and certainty. The arbitral panel will be in the same position as our Supreme Court now is regarding EU laws. Tough love: we are letting ourselves get really dumb. 1. Under international law the UK owes at most a small fraction of the sums the withdrawal agreement would make us liable to pay. Our treaty obligations will be changed by an organ of the EU, without the UK having any say. And direct references from UK courts in Northern Ireland (including from the UK Supreme Court when dealing with a Northern Ireland appeal) to the ECJ will also continue indefinitely, placing the citizens of Northern Ireland under a foreign court as well as under foreign laws. Paragraphs 26 and 27 merely say that the EU will “consider” trusted trader schemes and other facilitative arrangements, without placing any obligation (even a non-legally binding one) on the EU actually to accept their use. But Art.4 makes clear that direct effect and supremacy would continue to apply to all provisions of the withdrawal agreement and to all provisions of EU law which the agreement requires the UK to follow, including those which will continue after the end of the transition. Allowing our treaty obligations to be decided in this way by a court of the other treaty party is totally contrary to international treaty practice under which sovereign states simply do not agree to this happening. Martin Howe QC responds to No. The most important point about the draft Brexit withdrawal agreement is that, once it is ratified, the United Kingdom will have no legal route out of it unless the EU agrees to let us out and replace it with another agreement. It would for example be impossible for the UK to join an existing multi-lateral free trade agreement such as the Trans-Pacific Partnership while bound into the Protocol’s customs union. My response: As I have already said, the theoretical right to conclude trade agreements will be of no practical use if those trade agreements cannot extend to doing deals on tariffs with prospective trading partners. Roger Kimball. 10 seeks to take advantage of the legal complexities to misrepresent the legal effects of the agreement on the first critical point (whether there could be any effective recourse to arbitration) as well as others. The odds are … This makes it unique among trade treaties (including the EU’s), which always contain clauses allowing each party to withdraw on notice. Martin Howe QC then gives a brief ‘historical’ (well, it wasn’t that long ago …) summary of the WA which necessitated this new Bill. Downing Street: An ability for the ECJ to provide an interpretation of EU law is not the same as it resolving disputes ‑ the UK has been clear that must fall to an independent arbitration panel. Going forwards, all laws in the UK will be passed by our elected representatives in Belfast, Cardiff, Edinburgh and London. 27 July 2019. Martin Howe QC is a barrister specialising in intellectual property and EU law at 8 New Square Chambers and chairman of Lawyers for Britain. More seriously, paragraph 23 on Tariffs is incompatible on its face with the UK and the EU agreeing and operating a Canada-style free trade agreement which permits each party to operate tariff policies with third countries independently of each other. Downing Street: The political declaration is clear that whatever is agreed in the future partnership must recognise the development of an independent UK trade policy beyond this economic partnership. This lays the City open to EU measures which are designed to encourage business to migrate from London to eurozone financial centres. For example, there is explicit agreement to use all available facilitations and technologies in developing this ambitious customs arrangement, including examples of tools that the UK and the EU may draw on, such as trusted trader schemes. The single customs territory also ensures no tariffs, quotas or checks on rules of origin for UK goods trade with the EU – it is by its nature reciprocal. Now that the fuller version of the declaration is available, the position is even worse. A major new paper has been published by Politeia and Briefings for Brexit, by authors Martin Howe QC (Chairman of Lawyers for Britain), Sir Richard Aikens PC and Dr T.D. Martin Howe QC. Martin Howe QC responds to No. Instead, No. Downing Street: The Protocol is explicit in the legal text that it is intended to be a temporary arrangement. Much is at stake, so I have replied to each of its ‘rebuttals’ in bold, below. Downing Street: In leaving the EU, the jurisdiction of the CJEU in the UK will end, including the end of direct effect and supremacy of EU law. 9:00 AM. It is simply not true to state the agreement provides for an indefinite Implementation Period. This article by Martin Howe QC, Chairman of Lawyers for Britain, appeared in shortened form in the Daily Telegraph on 18 October 2019. Admittedly Samuel Johnson has been dead since 1784, but his importance to Boris is unquestionable. This draft agreement will not take us closer to an acceptable final deal with the EU. During the IP we will be able to negotiate, sign and ratify free trade agreements with rest of world partners, ready to bring them into force thereafter. Most disturbingly, paragraph 124 of the political declaration makes clear that the UK government has caved in to making these arrangements in the withdrawal agreement a permanent feature of the UK-EU relationship, while paragraph 83 will give the ECJ a similar role in the field of extradition and other criminal law measures. Why Boris should reject this Brexit deal. Flat White. Further, no serious trading partner will think it worthwhile to conduct negotiations with us with a view to bringing a deal into force as soon as we escape from the transition period and the Protocol if we are unable to give any assurance as to when - or even whether at all - we will be able to escape from the Protocol. "The declaration states that there will be “customs arrangements that build on the single customs territory provided for in the withdrawal agreement”. Throw another bundle of banknotes on the barbie. For information about my professional activities as a barrister, ... Davis MP, myself and Andy Hayman, former head of Counter-Terrorism at Scotland Yard. Show comments. My response: The article was written based on the outline version of the political declaration then available. The Chairman of Lawyers for Britain, his Politeia publications include Avoiding the Trap – How to Move on from the Withdrawal Agreement (2019) and How to leave the EU: Legal and Trade Priorities for the New Britain (2016). If the EU does not engage in that review in good faith, that too can be arbitrated. Terry Barnes. It would be impossible to demonstrate in an arbitration that a refusal by the EU to agree to release the UK from the Protocol was in bad faith. This is my personal home page. 9:00 AM. 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