Brexit negotiations: what happens if there is no deal and a “hard Brexit”?

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.[1]

We gave oral evidence to the Foreign Affairs Committee on 7th February.[2]

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?

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Brexit – the judges speak

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.

A legal analysis in Dublin of the Miller judgment

Margaret Gray

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.


Commercial Bar Association (COMBAR) Reports on the consequences of Brexit

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:

  1. 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)
  2. Banking (Fred Hobson)
  3. Financial Services (Andrew Henshaw QC)
  4. 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.

Supreme Court Brexit judgment

Maya Lester QC

The UK Supreme Court has held today that an Act of Parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the European Union. 8 judges formed the majority judgment (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge), 3 judges dissented (Lord Reed, Lord Carnwath and Lord Hughes).  A link to the judgment is here and to the summary here.

Brick Court Chambers in association with The Times is hosting a discussion of the judgment on Monday 30 January by:

  • Rt Hon Michael Gove MP
  • Theresa Villiers MP
  • Sir Richard Aikens
  • Lord Falconer of Thoroton QC
  • Rt Hon Dominic Grieve QC MP
  • Joanna Cherry QC MP

chaired by David Aaronovitch of The Times

The event is fully booked, however it will be live streamed on the Brick Court YouTube site here.

Brexit and the Border

David Anderson QC has spoken in Belfast to the Irish Centre of European Law (and thereafter to the Northern Irish judges) on the subject of Brexit and the (Irish) Border.  His talks were given on 13 December, the day after the publication by the House of Lords European Union Committee of its report into UK-Irish relations after Brexit.  His PowerPoint presentation is here and a detailed summary of his presentation follows later in this blog post (click ‘continue reading’ below).

Derrick Wyatt QC also spoke at both events, addressing the issue of what happens when the UK triggers Article 50? Derrick spoke about negotiating the withdrawal agreement, possible future trading agreements between the UK and the EU, what might happen with a “hard Brexit” which could fall off a cliff at the end of the 2 year negotiating period, and the particular effects of all of this on Northern Ireland. His paper is here.

Margaret Gray also addressed both events, speaking about potential Brexit Litigation Issues in Northern Ireland. Margaret discussed the potential subject-matters where EU law issues could continue to arise during and after a withdrawal and how there could be unique litigation opportunities for NI citizens and companies over the next few years as the UK’s new relationship with the EU is developed. She also addressed the issue of how state liability for breaches of EU law could continue to be a source of litigation for sometime after a UK departure from the EU. Her paper is here.

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Brexit and mixity – the implications for a UK free trade agreement with the EU

Aidan Robertson QC

In a blog in July, I referred to the question whether the EU is likely to have exclusive competence to conclude a free trade agreement with the UK or whether a free trade agreement will be a ‘mixed’ agreement requiring ratification by individual EU Member States so far as it would cover areas not falling within the EU’s exclusive competence.

The issue of the extent of the EU’s exclusive competence is under consideration by the Court of Justice of the European Union in relation to the EU’s free trade agreement with Singapore.

Advocate General Sharpston handed down her Opinion in this case on 21st December 2016. In her view, the Singapore agreement is infected with some degree of mixity because the EU does not have exclusive competence over particular areas. These include provisions on trade in air transport services, maritime transport services, types of investment other than foreign direct investment; -government procurement in so far as they apply to transport services; non-commercial aspects of intellectual property rights; provisions laying down fundamental labour and environmental standards and falling within the scope of either social policy or environmental policy. Thus any free trade agreement with the UK involving those limited areas would require national ratification. However, the areas falling within EU exclusive competence, which would form the bulk of any agreement with the UK, could have provisional application without national ratification.

In other words, the outcome so far before the Court of Justice is as predicted by Professor Derrick Wyatt QC in July this year (see my previous blog): not much of a free trade agreement would fall within shared competence.

The Court will hand down its judgment in the new year.

The Court’s press release is here.

Advocate General Sharpston’s Opinion is here.

The return of the anti-suit injunction post-Brexit?

Oliver Jones

The decision of the united Kingdom to leave the European Union has given rise, in the context of the rules regulating civil jurisdiction and enforcement in the EU, to questions as to how this may impact on the availability of the anti-suit injunction, an injunction issued by the courts of this jurisdiction to prevent a person from bringing proceedings in any other jurisdiction.

For many of us the anti-suit injunction featured heavily in our legal education as a prime example of the remedial power and flexibility of English law. However they have been a somewhat rare occurrence in recent legal practice because of the regime now embodied in the recast Brussels Regulation (Regulation (EU) No. 1215/2012), and its predecessor, the Brussels Regulation No. 44/2001.

Brexit is likely to lead to the UK’s departure – in some form – from that regime. As a consequence, this has at least given rise in some quarters to the perception that the anti-suit injunction may be in line for a return to prominence. Continue reading

New Irish Brexit case

Maya Lester QC

The UK Supreme Court case challenging the Government’s use of the royal prerogative to trigger Article 50 has been widely reported on this blog and elsewhere.  Another set of proceedings is now to be lodged in the High Court in the Republic of Ireland.  The purpose of the Irish proceedings is said to be: (a) to ascertain whether Article 50 has already been triggered; (b) to persuade the Irish High Court to refer a question to the European Court of Justice in Luxembourg on the revocability of Article 50; and (c) to clarify whether leaving the European Union means automatically leaving the European Economic Area.  The likely claimants are members of the European Parliament, and defendants are the Government of Ireland and the European Commission and Council of Ministers.

Brexit: Security, surveillance and home affairs

David Heaton

On Tuesday 6 December 2016, Brick Court hosted a Brexit panel discussion on “Security, Surveillance and Home Affairs”.  Gordon Corera, the BBC’s Security Correspondent, moderated the event.  He opened it by remarking that the subject presented many unanswered questions. Continue reading