Brexit negotiators, who began formal talks with their EU counterparts this week, should tackle the trickiest issues first, senior barristers have said amid warnings that navigating Government ‘red-lines’ will not be plain sailing.
Announcing the publication of The Brexit Papers: Third Edition, Chair of the Bar Council Brexit Working Group, Hugh Mercer QC said:
“If we want a good trading relationship with Europe post-Brexit, the UK Government, businesses and citizens will need a way to resolve disputes with their opposite numbers in Europe. But there are some big question marks over how the Government will stick to its commitment to pull away from the jurisdiction of the European Court of Justice without jeopardising deals that could benefit the economy.
“There needs to be a way for treaties and trade agreements on areas like agricultureand fisheries to be adjudicated, and if UK and EU citizens are to have enforceable rights in each other’s legal jurisdictions, we have to agree on what legal mechanisms to use. Because ‘nothing is agreed until everything is agreed’, no Brexit deal is possible without settling how such disputes will be resolved. This will be a tricky area for negotiation and one the Government should prioritise. We cannot afford to leave this part of the negotiations until the last minute. The risks of ending up in a no-deal scenario are too great.”
“The Brexit Papers outline a number of solutions that borrow from existing UK legal principles and recognise the Government’s objective of taking back control of our own laws. One option is to allow UK judges to have due regard to CJEU rulings and to have an obligation to interpret rulings consistently to ensure a level playing field.”
A total of nine new papers are published as part of The Brexit Papers: Third Editionsetting out in plain English the key legal challenges the Government will face on a range of policy issues including acquired rights, WTO, agriculture, fisheries, product standards, public procurement, environment, dispute resolution, and the CJEU.
Speaking on the Brexit Paper on agriculture, Hugh Mercer QC said: “Whatever form Brexit takes, the UK will leave the Common Agricultural Policy. The CAP gives UK producers low tariff access to EU markets so the pressure is on to find a replacement deal or farmers may face tariffs of around 40-50% for their produce under existing WTO rules, rising to 80% for high value products such as Hilton beef.
“Any trade deal with the EU will probably mean continuing the current agreement on origin marks. That is good news for pork pie makers in Melton Mowbray, but means there is little chance of UK consumers getting their hands on British Roquefort.”
The Brexit Papers also warn of a potential clash between central government and the devolved regions over who will have overall policy control.
Hugh Mercer QC said: “The devolved regions may well be in control of their own agriculture policy when we leave the EU, but if regional subsidies diverge from each other there would be considerable distortion in competition that could frustrate international trade deals.”
Summary of other key points and recommendations
Environment: The Government should seek to align UK and EU environmental standards to assist the maintenance of cross-border trade. Under the current system, the Commission and Court of Justice enforce compliance in key areas such as air and water quality. It is important that after Brexit we have an effective national regime to enforce environmental rules in the public interest.
WTO: Good diplomatic relations with other WTO members will be key to a smooth transition from EU membership. There is no specific template for how to deal with a WTO member leaving the EU, which means that certain transitional arrangements will need to be approved by other members who may be tempted to engage in tactical negotiations to gain better market access for themselves.
Acquired Rights: The Government should make it a priority to identify and protect the acquired rights of UK and EU citizens and to ensure that there is an agreed mechanism for individuals to enforce those rights. There is a good case for the UK Government to make unilateral provision to ensure that the rights of EU citizens living in the UK are maintained.
Product standards: Government policy statements on product standards suggest it is unlikely simply to transpose all EU standards and directives to UK products. This means that manufacturers in the UK and abroad may need to produce different versions of products destined for the UK and EU to accommodate divergences in standards. In the case of products produced in small numbers such as medical devices, manufacturers might decide that producing a special version for the UK market is not cost effective.
A link to The Brexit Papers: Third Edition is available here. This link is not accessible via the Bar Council website and only members of the press have access to the URLs provided.