Martin Howe:

The Sunday Telegraph - - Front Page - By Martin Howe QC Martin Howe is a QC fo­cused on EU law and chair­man of Lawyers for Bri­tain

The ex­ist­ing con­fus­ing December 2017 text about the “back­stop” is not legally bind­ing. We still have a brief, golden op­por­tu­nity to walk away from this mess.

Trade treaties nor­mally con­tain clauses which al­low ei­ther party to with­draw on no­tice. I can’t think of a sin­gle ex­ist­ing trade treaty which does not con­tain such a no­tice clause. So what the EU is cur­rently ask­ing for – a clause which would al­low the UK to ter­mi­nate the back­stop only if it is re­placed by a sub­se­quent agree­ment with the EU – is wholly ex­cep­tional in in­ter­na­tional treaty prac­tice. This would lock the UK into a re­la­tion­ship with the EU which the UK could not es­cape with­out the EU’s per­mis­sion.

In­stead of press­ing for a sim­ple clause which gives the UK the right to with­draw from the back­stop on no­tice, the Govern­ment is con­tem­plat­ing a clause un­der which the UK’s right to with­draw is de­pen­dent upon sat­is­fy­ing a ‘joint re­view mech­a­nism’ or ar­bi­tral body. It is vir­tu­ally un­heard of in in­ter­na­tional treaty re­la­tions for states to agree to be bound by de­ci­sions of tri­bunals which are not strictly neu­tral.

Typ­i­cally, an in­ter­na­tional ar­bi­tra­tion panel will con­sist of an ar­bi­tra­tor ap­pointed by each party and a neu­tral chair­man. How­ever, the Che­quers White Pa­per has pro­posed an ar­bi­tra­tion process mod­elled on Ukraine’s hu­mil­i­at­ing deal with the EU un­der which the ar­bi­tra­tion panel is obliged to re­fer is­sues of EU law to the ECJ and is bound by its de­ci­sion.

It would be con­trary to all in­ter­na­tional prac­tice if the ECJ were to be in­volved in this way in an ar­bi­tra­tion which gov­erned whether or not the UK was per­mit­ted to leave the back­stop and re­gain con­trol of our own laws and our ex­ter­nal trade pol­icy. It would also add to the de­lays of an ar­bi­tra­tion.

In­ter­na­tional ar­bi­tra­tions can be in­her­ently com­plex. So a big risk fac­tor to be con­sid­ered by the Cabi­net is the prospect of the UK be­ing locked into the back­stop for a lengthy pe­riod while an ar­bi­tra­tion drags on.

The Fa­cil­i­tated Cus­toms Ar­range­ment (FCA) in the Che­quers White Pa­per aims to en­sure that all goods im­ported into the UK will be sub­ject to the cor­rect EU im­port tar­iff (to be levied by UK cus­toms and paid over to the EU) if they are re-ex­ported into the EU over an open UK/EU bor­der. A dual-tar­iff scheme of this kind has not been tried be­fore any­where in the world.

The UK Govern­ment has ad­mit­ted that it can­not get this new sys­tem work­ing un­til the end of December 2021. It could be much longer. The truth is that the Govern­ment can have no con­fi­dence about when it would have the sys­tem ready and be able to ini­ti­ate the pro­ce­dure for ex­it­ing from the back­stop, let alone how long an ar­bi­tra­tion would take and whether it would suc­ceed.

While the back­stop is in op­er­a­tion, it would be im­pos­si­ble to im­ple­ment free trade agree­ments with non-EU coun­tries be­cause we would not be al­lowed to re­move tar­iffs on their goods. In the­ory we would be free to ne­go­ti­ate such agree­ments, to come into force when the back­stop ends. But if es­cap­ing the back­stop depends on an ar­bi­tra­tion pro­ce­dure we could not tell prospec­tive free trade part­ners when we would be free to im­ple­ment a deal – or whether we would be able to im­ple­ment a deal at all.

So my ad­vice to the Cabi­net is that agree­ing to a back­stop which the UK can only leave if we sat­isfy a re­view mech­a­nism risks drop­ping the UK into a le­gal black hole for a num­ber of years and quite pos­si­bly for longer.

We would be sub­ject to EU con­trol of our tar­iffs and ex­ter­nal trade pol­icy and of wide ar­eas of our in­ter­nal laws, with­out hav­ing any vote on the rules which bind us, and we would be un­able to ne­go­ti­ate trade agree­ments with non-EU coun­tries. My own view is that sign­ing up to this back­stop with this re­view mech­a­nism would be mad, sim­ply mad.

‘We could not tell prospec­tive free trade part­ners when we would be free to im­ple­ment a deal’

The Govern­ment’s ap­proach to a ‘back­stop’ agree­ment is flawed and could leave the UK trapped

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