Why this top QC wants a quick Brexit

Brexit is throwing up a huge number of legal issues – everything from divorce payments to the jurisdiction of the European Court of Justice during a transition period. And one person who has been closely engaged with the debate from a legal perspective is the barrister, Martin Howe, QC. Howe is the head of 8 New Square, a specialist intellectual property chambers, is an expert in EU law, and is chair of the pressure group Lawyers for Britain.

Lawyers for Britain was set up during the EU referendum to provide a rallying point for lawyers who supported the Leave campaign. However, after the vote they decided to continue because they wanted to “counter the numerous attempts to disrupt Brexit” as a well as “provide solutions for the various legal problems that are arising”. In terms of the former, Howe is happy to report that, while a “few people have been making noises” with various legal challenges, “none of them have been serious”. They are unlikely to stop Britain from leaving the EU.

There are two aspects to the debate over Brussels’ demands for a divorce payment, says Howe. “Legally, we don’t owe them a penny, since any question of liability ceases as soon as we leave he says”. However, “the politics of the question is another thing, since there may be benefits in making some sort of payment if it will help up close a deal”. The problem is that “Brussels is demanding money for the privilege of engaging in trade talks, without specifying what sort of deal is on offer”. This means, says Howe, that we could end up paying large sums of money only to end up with a very poor deal.

He is similarly sceptical about plans for a transitional agreement. He notes that it is going to be “very difficult” to get a deal that is legally binding, especially since Article 50 doesn’t allow for such an agreement, unless a framework for a trade deal has been agreed. What’s more, Brussels seems to be adopting a “take it or leave it” attitude, which would involve us making continued payments to the EU budget, adopting EU regulations and staying within the customs union. Staying within the customs union postpones any new trade deal to 2021, which is important because “there may be a new President who’s not as enthusiastic about trade with us as Trump is”.

Indeed, Howe thinks that cutting trade deals with the rest of the world is key to making a success of Brexit. “I’m no economist but the latest trade figures show that the proportion of our trade with the EU-27 has been falling for the last two decades, even if the absolute amount has increased”, he notes. Even if we were to stay in the EU, this is set to continue as, “the rest of the world is outpacing Europe”. While it “would be good to have unhindered access to Europe’s markets, putting our relationship with the continent ahead of other countries, would be letting the tail wag the dog”.

The ability to cut trade deals with the rest of the world is one reason why the “Norway’’ solution of staying within the European Economic Area would be a bad idea. Such a solution would be “the worst of both worlds”, as “we would have to follow European regulations without having a say in how they are made”. What’s more, while EEA members are theoretically free to cut trade deals with third countries, the need to follow EU rules, means it is hard for them to make the regulatory concessions that are a big part of modern agreements. For example, any trade deal with the US would involve us accepting their rules on GM foods.

Howe also throws cold water on the argument that we could stay in the EEA without Brussels’ agreement calling it “not faintly arguable”. Admittedly there are a few differences between the EU and EEA, such as the fact that we’d be answering to the EFTA Court, rather than the ECJ. However, in reality they are minor and a “fig leaf” to hide the fact that the whole point of the EEA was “as a stepping stone to full membership, rather than as a final destination”. As such it “is not a long term solution”.

Indeed, Howe thinks that many in the business and financial community don’t appreciate the extent that an EEA style agreement would require the UK to follow European rules. Such an outcome “would make us vulnerable to regulatory warfare”. He’s also sceptical of a looser arrangement where we’d shadow European regulations in return for access under “equivalence”. This would give us a bit more freedom “since equivalence doesn’t have to involve identical regulation”. However, there would be a risk that Europe could “pull the plug” at any time, since access under equivalence is at the discretion of Brussels. In any case, “if we don’t gain any regulatory freedom then there’s no point to leaving the EU”.

  • Keith Burns

    It is clear that David Davies is setting us up to crash out of the EU. His very clever “climb down” on allowing Parliament to vote on the EU Deal (?) is almost certain to result in a losing vote for the Government. It is expected that 6-8 Labour MPs will support the Government but a larger number of Conservative Remainers will vote against the motion and the party Whips. Both DD and Theresa May have said that they would then crash out of the EU. I’m dead against a Brexit No Deal, I object to a massive divorce settlement although we probably owe around £20-£30Bn (who knows?), but that is not going to be acceptable to the EU who allegedly are looking for £80-£120Bn. It is farcical to expect us to agree a divorce settlement at any level without significant knowledge of what sort of trade deals we can expect. We are up S$#t Creek without a paddle. How have we got ourselves into this blind alley?

    • AAJ

      “How have we got ourselves into this blind alley?”

      Because we were told it was going to be a land of milk and honey. Therefore, we laughed in the face of anyone who said the process would be a nightmare.

  • DiverPhil

    I love these articles, quote, “I am not an economist” and the casual of course we will have to expect genetically modified produce and all rest of the ghastly things that opening up our markets will bring, lovely. He of course being in a very well paid career can choose to use Harrod’s Food Hall to understand what he is buying, you have to have some skin in the game, he has economic choice, a lot will be eating unlabelled rubbish prepare for the worst.

    • where_from_here

      And we seem to think that that “our friends” the US will strike some nice beneficial deal. They make Barnier and Davis look like pussycats, the US will only agree to a deal that suits them. The Harrods food hall analogy applies to many hard right brexiteers, who would be happy to see a hard brexit. I am sure that eventually it might even be better, but the road would be littered with many of us who would struggle with a another 10 years of catch up, only just having caught up with 2008. Note the same Harrods Food Hall analogy applies here too.
      Moneyweek suports this type of article as if it will all be OK out. To imagine that economically, it will take anything less than a decade of readjustment is living in cloud cuckoo land. At least paint it as it is, “Martin Howe, QC. Howe is the head of 8 New Square, a specialist intellectual property chambers, is an expert in EU law, and is chair of the pressure group Lawyers for Britain.” Hardly a two sides of the coin approach!

  • andy hancox

    MoneyWeek was an interesting magazine when I first signed up. Now it seems to be a little more than a cheerleader for Bitcoin; and to publish weasel arguments supporting Brexit. If you were doing a halfway useful job you would do some proper analysis of Brexit and advise on investments accordingly. John Redwood, another Brixit cheerleader, at least has the common sense to advise investing one’s money abroad. But MoneyWeek just produces valueless tripe.

  • Timothy Stroud

    There was a time when the Tory Party had businesslike QC’s in Parliament. Mrs
    Thatcher’s cabinet was full of them. But since the Cameron ” modernisation ” of the
    party, since when did we get ministers or MP’s who could put up coherent
    arguments for anything? Instead of the likes of Martin Howe QC arguing for
    Britain we have David Davis ( no disrespect ) mumbling along, scarcely able to
    read out a prepared statement to the media without stumbling over it. Enough said.

  • Roland Gilmore

    Martin Howe’s analysis is spot on. The government is betraying the will of the people by allowing the EU to set the rules of negotiation, allowing supremacy of the ECJ and dragging out (aka negotiating) the processes. The UK should have left by now and gone to WTO rules. Trading constraints could have been 90% complete by now and agreements with other countries well advanced. My main qualm about a USA trade deal is that apparently, we would be forced to accept their GM food that no one wants and is making Americans ill while destroying the fertility of their farm land. I don’t trust the government or DEFRA on the GM issue.
    Russia is on target to be the largest exporter in the world of non-GM food by 2020. The government should stop this Russian hysteria about them being a threat and interfering in our elections. The hysteria is a Clinton/CIA invention. There is not a shred of evidence to back up the PM’s ignorant pronouncements at the Mansion House banquet. We need to trade with Russia as the EU sits it out and damages itself.

    • John Jeffrey

      Agree with your stance on Brexit Rod, but you should be very careful about trusting Russia on anything. You just have to think about what is happening in the Ukraine and the Middle East, the typical denials are underlined by their pathetic denials about doping in sport!

    • where_from_here

      Sorry, you conflate multiple issues, with minimum facts to somehow support your first paragraph.
      Martin Howe’s analysis is spot on. ONLY IF YOU AGREE WITH HIM, MANY EQUALLY QUALIFIED DO NOT.
      The government is betraying the will of the people by allowing the EU to set the rules of negotiation, allowing supremacy of the ECJ and dragging out (aka negotiating) the processes. 48 TO 52 % AT BEST, HARDLY THE WILL OF THE PEOPLE – WHO, LETS FACE IT WERE BARELY GIVEN THE FACTS AND FOR MANY IT WAS A PROTEST VOTE AT NOT BEING ABLE TO SHOP AT HARRODS.OH, AND RULES OF NEGOTIATION THAT WE SIGNED UP FOR, THE ECJ WE SIGNED UP FOR, AND WHICH SIDE IS DRAGGING IT OUT –
      The UK should have left by now and gone to WTO rules. Trading constraints could have been 90% complete by now and agreements with other countries well advanced. PERHAPS JUST CHECK TO SEE HOW LONG IT TOOK CANADA TO STRIKE A DEAL OR US-CHINA, AUS-JAPAN. WELL ADVANCED IN A YEAR WOULD NOTHING SHORT OF MIRACULOUS.
      nuff said

      • Roland Gilmore

        The democratic vote has been taken and although there was misinformation from both sides of the argument, the central issue was one of sovereignty, whether you like it or not and the result stands. I am sick of hearing class based excuses for failure to get a remain vote from Remoaners, the traitorous criminal Tony Blair, Nick Clegg etc. It has been clear since the referendum that the EU wants to punish the UK as an example to stop other nations from leaving. They are fighting for survival. For that reason alone, we should have left immediately then sorted out the details afterwards; without the supremacy of the ECJ. The fact that the UK has lost 9 out of 10 cases brought to the ECJ is reason enough. There is nothing in Lisbon or any treaty that binds us to the current EU non-negotiating strategy after leaving. Don’t be fooled by MSM reportage that has been a disgrace in generally siding with the EU against the UK. As with the referendum itself, the presstitute UK media can not be relied upon to disseminate facts.
        Yes, in view of Teresa May’s Mansion House speech, I did conflate the Russia situation however; Main Stream Media in the UK has published nothing other than propaganda about Ukraine while not reporting USA hegemonic behaviour. From 2014: –
        Try these (and the references cited) by the highly respected Dr Paul Craig Roberts: –
        The greatest threat to our world is not Brexit but US policy for a first strike nuclear war against Russia yet western governments, the EU and the markets are severely undervaluing that risk. The UK would probably be the first to disappear off the world map. The situation is far more dangerous now than in the 1950’s and 60’s.

  • sbh071

    The sad reality is that the UK will inevitably now be in “the worst of both worlds” where “we would have to follow European regulations without having a say in how they are made”, even if it stayed outside the EEA – ask Google, Microsoft, IBM or any other US company that has run afoul of the EU Competition authorities in recent years. Yes, I understand that companies that serve only the UK market will henceforth be free of EU regulation. Everyone else will be forced to comply with rules they have no say over exactly because of the size of the EU market. Brexiteers seem to miss this point entirely.

  • Chris Kubicki

    It’s only fair that we get the views from both Leave and Remain sides on Brexit.
    The legal views on the tactical matters of the Brexit negotiation process should be respected whether Martin is a “top” QC or just a QC. However his opinions on Economic consequences and Trade matters are far more questionable particularly when he describes himself as “no economist”. Trade figures show a widening Trade gap despite growing exports and, of course, we currently trade with all the benefits of EU membership including the 700 + Trade Agreements the EU has established with markets across the world. None of these Agreements will stand when we leave. A Soft Brexit will be very painful a Hard Brexit crippling.

    • where_from_here

      yes, but only one side at Moneyweek, and who will pay. It will take a now divided Britain that i have never seen before and turn it into a very angry have and have nots. We are so deeply in the s***, that any quality publication should give both sides, not painting either option as the “right one”

  • headofthorns

    Martin Howe. His name should be followed by a ?? Or two. If this is legal advice from a top QC its no wonder we are heading for a fall.
    Firstly, we may or may not have a legal responsibility to a ‘divorce’ payment. I would argue we have both a legal and moral responsibility to ensure any commitments we have agreed to should be honoured particularly towards pension liabilities. They are not demanding anything other than our acceptance of these commitments before any progression. That Davis and his useless team have wasted months on this when they should have been assessing these commitments is a disgrace. No wonder Michel Barnier is frustrated.
    All this negotiation is a waste of time. If we want a deal we will get what the EU are prepared to give us and nothing more. They don’t need us except for defence and that is becoming questionable according to our senior Generals. Any job losses they experience they will be well able to absorb whereas the UK will struggle. All talk of trade with the rest of the world is pure fantasy. If it was so easy our firms would be doing it now. Once we leave we will have no bargaining strength and will have to accept anything other countries offer us on their terms to get them to buy our goods. The £50 Billion deficit with Germany will be a drop in the ocean in comparison. The UK ‘dog tail’ will be well and truly wagged.
    If we leave I see Tata move Jaguar Land Rover to Slovenia where they are already building a factory. BMW will move Rolls Royce out of the UK to anywhere the labour is a fraction of the cost here. Throw in Nissan, Peugeot, Ford before we start on our other foreign owned multi-nationals. With the exception of Financial Services (approx 60+%) of the UK economy we produce almost nothing unless it is for a foreign owned manufacturers.
    We will end up a dumping ground for every suspect food product including GM foods. Our kids will probably be born with 3 ears. Sadly the 17+ million morons who got us into this mess will miss most of it and it will be their poor kids who will be left to muddle through.
    Mr Howe please turn your legal mind to keeping us in the EU and get us off this runaway train to oblivion.

    • Tim Whiston

      You forgot to mention that everything you have said is in “your opinion”. A casual reader may think you are stating facts.

      • Lynda Goetz

        If Martin Howe is a QC who is an expert in EU law, I am inclined to take note of some of the things he has to say on the subject of Brexit. If indeed it is the case that we have no legal responsibility to make a Brexit divorce payment, then of course it does become simply a moral and political question. Are we really morally responsible for the (possibly inflated) pension claims of Brussels bureaucrats? Politically, we may wish to make some sort of payment to enable us to obtain a decent trade deal, but I for one do not understand quite how or why we should have to ‘put the money on the table’ BEFORE we are even allowed to discuss a trade deal. We could put more money up and STILL end up with a rubbish deal, as in doing so we would have reduced our bargaining position considerably. The EU needs our money (we are after all net contributor to the system, in spite of all the bleating about EU payments into certain areas, geographic, environmental, academic etc) and they are very keen to make sure that leaving the EU is not seen as ‘easy’. This surely is why M. Barnier is being so obdurate. I should think his frustration is nothing compared with that of David Davis. Hammond should be preparing for a no deal exit. It is looking increasingly likely.

        • where_from_here

          an expert on EU law does eqal an expert on the EU.
          responsibilty is not just moral and responsible, it is about reasonable in exchange for reasonable, we signed up to a budget, full stop. Pension provisions not just for bureaucrats but for cleaners, that way we can be more sympathetic….
          would you strike a trade deal before sorting out the housekeeping, it’s both reasonable and a bargaining chip, just they have it and we don’t. We will pay eventually, so would it not be better just to get on with it!
          why do you imagine a rubbish deal, it’s in nobody’s interest except hard right brexiteers who will fiddle (told you so) as Rome (the UK sinks) burns.
          “leaving the EU is not easy”!!!!!!! Of course not, only Boris et al want to paint it as such to smear MB et al as the bad guys. The referendum portrayed it as a yellow brick road -I’ll leave you to play with Tin Man and no heart analogies- which has been shown to be a lie, to believe the EU would role over is just plain naive.

      • where_from_here

        I would say that this is reasonably informed opinion, what is Martin How’s if not an opinion.
        UK car manufacturing will move without a deal on tariffs, the CEO’s have effectively said so as the situation would be untenable unless labour costs dropped substantially, -quite possible!!
        German business is already readjusting as a damaged UK will not be buying in the same way after Brexit, 50 B may or not be a drop in the ocean depending on the country, but German business will / is moving quickly to adjust.
        The US will insist on GM and dodgy chicken, and although these are headline stories, just ask any Brit living in the US about US food quality – there, legislation favours the manufactrer not the consumer. It’s why they get so angry with the EU, as it is the other way around…. and we are leaving that.
        As for negotiation, DD (in my opinion) is more interested in making a name for himself for when TM goes.
        Maybe “morons” is a bit strong, but it is our kids who will bear the brunt, and, they didn’ want it!

  • Ralph

    The EU is playing hardball and that was surely only to be expected. What is disappointing is that the UK has not responded in kind. It is the confusion and uncertainty that this is causing that in turn is creating alarm and has people coming to all sorts of different conclusions, most of which are just a small snapshot of a section of a much bigger “picture”. If the EU refuses to discuss a trade deal until we commit to a fixed payment (in other words extortion in real terms) then we should walk away and start discussions with other countries NOW. Why do we feel obligated to stick to their rules (which we won’t be a part of moving forwards) if they in return are being so demanding and unreasonable – it simply doesn’t make any sense whatsoever. Furthermore, the sums of money that are being suggested by various different people is in itself quite ridiculous. How can that possibly be fairly negotiated in isolation? The so called “divorce settlement” can only properly be considered as a part of the overall negotiations and not in isolation. The U.K. Gvmt should have made that absolutely clear from the outset, which would have put the onus completely on the E.U. (Brussels) thereby forcing the member states to become much more involved sooner rather than later. We should also have given them a timeline, at the end of which we start negotiating other trade agreements if they are not prepared to discuss one with us themselves. It is also patently obvious that Westminster as a whole doesn’t support Brexit and that is naturally making things very difficult from a negotiating perspective. If things eventually do go badly for the UK it is not just the people who voted for Brexit who will be to blame but perhaps even more so, the people who subsequently refused to accept the democratic outcome of the referendum and have been prepared to do that to the detriment of the Country as a whole.