Competition law working group publishes Brexit “issues paper”

Maya Lester QC

The Brexit Competition Law Working Group (list of members here) has published an ‘issues paper’ here which is intended to foster public debate and inform government policy on the implications of Brexit for competition law and policy. The paper explains the immediate likely effects of the UK leaving the EU on mergers and antitrust rules that must be considered in the short term, and longer term issues, including in relation to the private enforcement of competition law.

The group welcomes contributions by 30 November 2016 from all engaged in UK competition law and policy, including legal practitioners, consumer groups, business organisations, economic consultants, regulators and academics.  It will hold roundtable discussions (provisional dates 23 November, 5 December and 12 December 2016). It will submit a final report to Government and publish it early in 2017.

Belfast High Court rejects Northern Irish Article 50 judicial review

Maya Lester QC

The High Court in Belfast today dismissed judicial review challenges to the way the Government intends to trigger Article 50 of the TEU. A link to the judgment of Mr Justice Maguire is here and a summary here.

This case is separate from the Article 50 judicial review proceedings in the Divisional Court in London in which judgment is currently awaited. The Belfast court stayed consideration of issues in the Northern Irish case which overlap with the Divisional Court proceedings. The main issues in the Northern Irish case include whether provisions of Northern Irish constitutional law preclude the use of the royal prerogative to trigger Article 50, whether the Government has failed to comply with provisions of the Northern Ireland Act.

Brexit: Jurisdiction, Enforcement and Conflict of Laws: A case of “Fog in Channel, Continent cut off?”

Sophie Shaw

On Monday 17th October, Brick Court Chambers hosted the second in its series of panel discussions on the legal implications of Brexit. The event was chaired by Helen Davies QC.

Julian Makin, the global co-head of mining and metals at Freshfields Bruckhaus Deringer opened the presentations. He discussed the global strength and importance of the UK legal services market due to the certainty, clarity and predictability of the law and the quality of the UK lawyers and judiciary. Post-Brexit, the key issue will be retaining this certainty. Matters that will need to be addressed include the operation of the ‘Great Repeal Act’, the power to amend and repeal EU law once it has been converted into English law and the status of CJEU decisions.

Sir Richard Aikens considered the impact of Brexit on the Brussels Regulation regime. Sir Richard observed that on the UK’s withdrawal from the EU, the Brussels I Recast Regulation and Lugano Convention 2007 will cease to have any effect. However, the Brussels Convention still has the force of law in the UK, and would arguably bind Member States who joined the EU after the Brussels I Regulation. The best solution going forwards would be for the UK to enter a bilateral treaty with the EU allowing the UK to participate in the Brussels Regulation regime. This would, however, give rise to both practical and political difficulties.

Oliver Jones addressed the possibility of a resurgence for anti-suit injunctions on Brexit. He observed that in the unlikely scenario that the default position on Brexit was a return to the common law, the anti-suit injunction would return with full force.  Noting, however, that the restrictive EU case law arose under the Brussels Convention, the result of Brexit may be that the UK remains subject to the EU jurisdictional regime with none of the benefits negotiated in the Recast Regulation. Agreeing with Sir Richard, he agreed that the best outcome would be for the UK to remain subject to the Brussels I Recast Regulation.

Ben Woolgar considered the enforcement of judgments. Having outlined the current system, he noted that it works well because it is procedurally simple, covers a wide range of decisions, is relatively quick and also has a high degree of certainty due to the narrow scope of the defences. The best option on Brexit would therefore be to retain the Brussels I Recast Regulation if the necessary reciprocity can be agreed. Considering the other options, he observed that the Lugano and Brussels Conventions would require a judgment to be recognised in the other state prior to enforcement. Enforcement under the Hague Choice of Courts Convention or the common law is significantly more difficult.

Finally, Andrew Henshaw QC discussed two topics.  First, the current EU Evidence and Service Regulations compared to the default Brexit position.  In the absence of these Regulations, the UK would fall back on the relevant Hague Conventions and other bilateral arrangements. However, problems would include the fact that not all EU Member States are parties, the processes are significantly slower, and the scope for participation in the taking of evidence would be reduced. Secondly, Andrew discussed precautions parties can take in relation to all the topics covered, and where intervention by the UK Government will be essential, focussing on (a) jurisdiction and the “Italian torpedo” problem under the Brussels Convention, (b) severability of jurisdiction clauses, (c) arbitration and (d) enforcement of judgments.

The presentations were followed by a Q&A session.

Please click here to view the notes and a recording of the event.

Five members of Brick Court instructed in landmark Article 50 case

Five members of Chambers have been instructed in the landmark constitutional case R (Miller) v Secretary of State for Exiting the European Union. The case arises out of the Prime Minister’s announcement that the government will give notification to leave the EU without seeking the consent of Parliament.

The claimants contend that it would be unconstitutional for the government to trigger the withdrawal process under Article 50 because such a decision would fall outside the scope of its prerogative powers. The case raises a number of fundamental constitutional issues, including the question of whether the executive may override EU law rights which have been incorporated into domestic law by Parliament under the European Communities Act 1972.

The proceedings have attracted a high level of media interest. For example:

The first day of the hearing took place on Thursday 13th October and the second day will take place on Monday 17th October. A transcript of the first day’s hearing has been published here.

Tim Johnston appears for ‘The People’s Challenge’, instructed by Bindmans LLP.

Martin Chamberlain QC and Emily MacKenzie are instructed by by Baker & McKenzie on behalf of the Scottish government.

Richard Gordon QC and Tom Pascoe are instructed by the Welsh government.

The Legal Implications of Brexit: International Trade

Sophie Shaw

On Tuesday 4th October, Brick Court Chambers hosted the first of its panel discussions on the legal implications of Brexit. All three panellists have substantial experience of trade negotiations, the EU and the WTO. The event was chaired by David Anderson QC, who opened the discussion by reference to Liam Fox’s recent statement that Britain will ‘lead the charge once more’ towards a world of free trade. Continue reading

Announcement on A50 trigger and repeal of ECA 1972

Today (Sunday 2 October 2016) the Prime Minister (Theresa May) announced at the Conservative party conference that the United Kingdom will invoke Article 50 of the TEU (which triggers a member state’s exit process from the EU) within 6 months, i.e. no later than the end of March 2017. After that the UK has 2 years to negotiate the terms of its relationship with the EU.  The judicial review proceedings currently pending concern whether Parliament should have a role in that process (see previous blogs) of triggering Article 50.
The Prime Minister has also said that the Government will introduce a “Great Repeal Bill” to Parliament in the next Queen’s Speech (April or May 2017) which will (if passed) repeal the European Communities Act 1972, which gives effect to EU law in the UK.  This will not enable Parliament to reverse the Article 50 process in any event (whether or not Article 50 is revokable or not, as to which see here) because Article 50 will (on this announced timetable) have been triggered before the Great Repeat Bill has passed through Parliament.