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.
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.
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.
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.