David Anderson QC
David Anderson QC’s article about Brexit and Security, Terrorism: the EU picture, has just been published in Counsel magazine.
- The leadership role in the EU exercised by the UK in matters relating to security (in particular counter-terrorism) will inevitably be lost after Brexit.
- There are reasons to hope that broadly satisfactory arrangements can be made for subsequent access to EU databases, institutions and procedures such as the European Arrest Warrant.
- But six factors are identified that have the potential to obstruct agreement: lack of precedent, desire for bespoke arrangements, the UK red line over acceptance of CJEU rulings, acceptance of future EU developments, political contagion and data sharing.
The article reflects in part his oral evidence of 28 February 2017 to Parliament’s Committee on Exiting the European Union (“Brexit Committee”) on the same subject, which is reflected in the Committee’s report at paras 92 and 232-272.
Richard Gordon QC and Tom Pascoe have published a paper on the legislative process of preparing for Brexit. The paper follows the release of the government’s White Paper on the Great Repeal Bill on 30 March 2017. It examines the major constitutional implications of the Bill, including the anticipated use of extensive Henry VIII powers to ‘repair’ EU law after Brexit, the status of EU case law after Brexit day and the effect of devolution on the Bill. It also sets out three further legislative models for preserving EU law, and describes the way in which these may be used alongside a Great Repeal Bill to ensure that the law operates coherently after the UK’s departure from the EU.
The paper can be found here
The Government has released an initial outline of the legislation intended to provide the domestic legal system with a transition from membership of the EU, to Brexit.
The term itself, ‘Great Repeal Bill’ (an ambitious echo of the Great Reform Act of 1832) captures only a small part of the process. The Bill would in fact effectively entail the wholesale re-enactment and continuation of law; the Secretary of State has though explained in evidence to Parliament the terminology on the basis that alternative names, such as the ‘Great Continuity Bill’ lack “the same appeal”. Continue reading
Maya Lester QC
The House of Commons Justice Committee has published a report on the implications of Brexit for the justice system, including key priorities for criminal justice, civil law and the legal services sector. The report welcomes the Government’s indications of continued cooperation with the EU on criminal justice (an area “too precious to be left vulnerable to tactical bargaining”), recommends a continuing role for the European Court of Justice as regards “procedural” regulations on choice of jurisdiction and mutual recognition and enforcement of judgments, and retaining efficient mechanisms to resolve family law cases involving EU Member State and the UK.
The House of Lords EU Sub-Committee has published a paper on ‘justice for families, individuals and businesses’ (Sir Richard Aikens, Richard Lord QC and Oliver Jones of Brick Court Chambers all gave evidence to the committee) setting out options for continued judicial cooperation in civil matters (the Brussels I Regulation recast, Brussels IIA and the Maintenance Regulation) again recommending that the Government should “keep as close to these rules as possible when negotiating their post-Brexit application”.
The Bar Council has published a second edition of The Brexit Papers. The papers have been prepared by barristers from a range of practice areas, with the assistance of the Bar Council’s Brexit Working Group. The papers provide short and concise advice to policymakers, legislators and negotiators on the range of complex issues that arise from Brexit.
This second edition includes new papers on intellectual property, consumer law and financial services. They also include detailed written evidence provided for the Bar Council by members of Brick Court Chambers to the House of Commons Foreign Affairs Committee on the implications of Brexit with “no deal”.
Read the papers here.
The House of Commons Foreign Affairs Committee has published its report on the implications of leaving the EU with “no deal”. HM Government had notified the Committee that it would not provide evidence to the Committee on these issues, with the Secretary of State for Exiting the EU explaining to Parliament that the implications of “no deal” are so complex that undertaking an assessment would be no more than guesswork. The Committee invited expert evidence from the Bar Council to address the range of legal and technical issues that would remain unresolved if the UK left the EU at the end of the Article 50 period with no deal in place. Professor Derrick Wyatt QC and Hugo Leith gave evidence to the Committee on behalf of the Bar Council.
The issues considered in detail by the Committee include:
- The legal structure for Article 50 negotiations and the risks that could lead to a deal being derailed;
- The framework for negotiation of the ‘divorce’, including assessment of any exit bill owed by the UK to the EU;
- Uncertainty and confusion over the position of UK citizens in the EU and EU citizens in the UK – including as to pensions, employment, entry rights and health care;
- The application of WTO terms to trade with the EU, and the status of UK exports under existing agreements between the EU and third states;
- Regulatory gaps and uncertainty in areas that cannot simply be addressed by the ‘Great Repeal Bill’, such as civil aviation and medicines;
- Uncertainty over the UK’s participation in the EU’s common foreign and security policy; and
- The implications for the border between the Republic of Ireland and Northern Ireland.
Having considered these issues, the Committee found that a breakdown in negotiations would represent a “very destructive outcome leading to mutually assured damage for the EU and the UK”. Both sides would suffer economic loss and harm to their international reputations and individuals and businesses could face considerable uncertainty and confusion. It concluded that it “is a key national and European Union interest that such a situation is avoided”. The consequences of this outcome can, the Committee found, be assessed and are not a matter of guesswork.
The Committee also found that despite the interests on each side in avoiding this result, the real possibility of ‘no deal’ being reached requires contingency planning by HM Government, and that there is no indication that it is being undertaken. It warned that a failure to undertake such planning would be a serious dereliction of duty by the Administration.
The Committee’s Report is available here, and its Statement here. The evidence submitted on behalf of the Bar Council is available in the Report (Appendix 1).
For press coverage, click the following links: Guardian (and also here), City AM and Daily Mail.
Professor Derrick Wyatt QC
Inquiry of the House of Commons Foreign Affairs Committee into the implications of a no-deal in the Brexit negotiations
The end of the two year period under Article 50 TEU for the UK and the EU to negotiate a withdrawal agreement prior to Brexit has been graphically described as the “cliff-edge”, because at that point the EU Treaties will cease to apply to the UK, even if no agreement has been reached. The Foreign Affairs Committee of the House Commons is conducting an inquiry into what happens if the Brexit negotiations produce a “no-deal”, and if the UK and EU fall over the cliff-edge into an “unplanned” and “hard” Brexit. With Hugo Leith, of Brick Court Chambers, I have been preparing written evidence for the Committee, on behalf of the Bar Council. This written evidence will appear as one of the “Brexit Papers” published by the Bar Council Brexit Working Group.
We gave oral evidence to the Foreign Affairs Committee on 7th February.
In this blog post I discuss four issues raised by the Committee at the hearing:
- Is “no deal better than a bad deal” and what is the worst case scenario for a future trade agreement?
- How disruptive would an unplanned hard Brexit be?
- Could the UK and the EU recover from an unplanned Brexit, and still conclude a withdrawal agreement and transitional arrangements?
- If the UK refuses to pay the exit bill demanded by the EU, could the EU sue the UK?
On Monday 30th January 2017 Brick Court Chambers and The Times presented a panel discussion about the Supreme Court’s judgment in the Miller Article 50 case.
The debate was chaired by David Aaronovitch of The Times, with panellists:
- Michael Gove MP
- Theresa Villiers MP
- Sir Richard Aikens
- Dominic Grieve QC MP
- Joanna Cherry QC MP
Each panellist spoke individually and a lively question and answer session ensued.
Watch the debate here.
Margaret Gray spoke on the Miller judgment, at a breakfast seminar on 31 January 2017 at the Law Library, Dublin.
The event was chaired by John Cooke SC, former Judge at the General Court of the EU, who also commented on the effect of the judgment. Professor Barrett, UCD, addressed the principal constitutional issue decided by the Supreme Court, outlining the basis for the majority ruling that an Act of Parliament is required before notice of UK withdrawal is given under Article 50 TEU.
Margaret Gray then outlined the specific issues referred by the courts in Northern Ireland, the Supreme Court’s treatment of them and the consequences of that part of the ruling for the devolved administrations.
The event was hosted by the Irish Centre for European Law, of which Margaret is a member of the board of directors.
Andrew Henshaw QC
Eight members of Brick Court Chambers have contributed to the preparation of four papers written on behalf of the Commercial Bar Association (COMBAR) explaining the potential effect of Brexit on important areas of commercial legal practice and business. The areas covered by these papers, and the members of Chambers who have contributed to them, are:
- Conflicts of Laws, Jurisdiction, Choice of Court Agreements, Choice of Law, Service of Legal Process and Judicial Assistance in Taking of Evidence (Sir Richard Aikens and Jasbir Dhillon QC)
- Banking (Fred Hobson)
- Financial Services (Andrew Henshaw QC)
- Competition (Daniel Jowell QC, Kelyn Bacon QC, Daniel Piccinin and David Bailey)
These papers were recently submitted to the Ministry of Justice following a meeting with the Lord Chancellor in December attended by a number of members of the COMBAR Brexit Committee. They have now been made available on the COMBAR website here.