UK ministers show ‘deep ignorance’ about Brexit’s legal impact, former EU judge says

31 January 2017 9:54am
Liam Fox

30th September 2016. By Lewis Crofts & Sille Ruubel

UK government ministers have revealed their “ignorance” of Brexit’s legal implications in recent speeches and declarations, according to Sir David Edward, the country’s former judge at the EU’s highest court.

He also said that the question of whether the UK could go back on a formal notification to leave the union would ultimately be a “point of politics and not of law.”

Edward, who served as a judge at the EU courts from 1989 through 2004, told a conference* in London that there was a “great deal of ignorance” and a “great deal of loose talk” in the government’s handling of its Brexit position following the June 23 referendum.

He took particular aim at a speech given by Liam Fox, the UK’s international trade minister, who told diplomats this week that the UK would keep the EU’s existing tariff schedule when it leaves the bloc.

“Nobody who understands trade law could possibly have said what he said,” Edward said.

The former judge also made broader criticism of the way the UK government was communicating its Brexit intentions.

“People talk about the single market as if it’s some sort of enhanced free-trade agreement,” he said. “They don’t understand the notion of the single market as a complete economic package.”

— Article 50 —

When the UK notifies its intent to leave the bloc, the country won’t be in the “driving seat” or be able to “insist on anything” when negotiating a possible deal with the EU, Edward said.

“It is a matter of dispute as to whether once you serve the Article 50 notice you can withdraw it unilaterally,” he said, referring to the part of the Lisbon Treaty that sets out how EU members can leave the bloc. “My personal view is that would be entirely matter of politics.”

The former judge also said there was “not the slightest evidence” that UK Prime Minister Theresa May was taking on board Scotland’s position in formulating her Brexit stance.

— Options —

Edward went on to discuss various trade deal options that have been floated so far, including those with Norway, Switzerland, Turkey and Canada.

“Let’s be clear: There are no options that don’t involve negotiation and possibly constitutional ratification in other member states,” he said.

“As an economist has said, there is no such thing in today’s world as free trade or a free-trade agreement. There is only managed trade or participation in a regulated market.”

“And that is quite important,” Edward added. “The notion that we can get back to some kind of Victorian liberal notion of totally free trade I think is totally misleading.”

— Individual rights —

Edward also stressed that “EU membership has created reciprocal rights and obligations for individuals, that includes companies, firms and other corporate bodies.”

“So, inevitably, the Brexit negotiations cannot be solely about relations between states,” Edward said. “They also have to include withdrawal or modification of individual rights.”

“And failure to protect individual rights adequately could give rise to court actions in the UK and also in other member states. And that could give rise to references to the Court of Justice of the EU. The outcome is unpredictable and the timescale is unpredictable,” Edward said.

“So the timescale is not even totally in the hands of the UK, the other member states or the EU institutions,” he said.

Brexit Special Report