The CJEU rules that the EU is more competent than previously thought

Aidan Robertson QC

In earlier blog posts (here and here) I explained that the Court of Justice of the European Union (CJEU) was due to rule on the extent of the Union’s exclusive competence to negotiate trade deals in a case in which the Commission was seeking an opinion on the EU/Singapore trade deal (Opinion 2/15) and that this would be significant for the trade deal that the UK is hoping to negotiate with the EU.

The CJEU’s Opinion was handed down on 16 May 2017. The CJEU has ruled that the extent of the EU’s exclusive competence is much broader than the Court’s Advocate General had advised in her opinion handed down on 21 December 2016. In that opinion (see https://brexit.law/2016/12/) AG Sharpston had identified several areas where the EU did not have exclusive competence, albeit none of these would likely be core to any trade deal.

The CJEU has now ruled that EU’s competence is broader than its Advocate General had advised. The only areas in the EU/Singapore free trade agreement which the CJEU identified as falling within shared competence with Member States were the fields of non-direct foreign trade investment and the regime governing dispute settlement between investors and Member States.

This means that any trade deal struck between the EU and the UK, even if it covers those two areas of mixed competence, can enter into force on the basis of provisional application even without ratification by all Member States (including regional parliaments where relevant). Member State ratification will only be required to give effect to the two areas of mixed competence, if they form part of an EU/UK agreement. This should simplify the task of negotiation of a new trade agreement.

The CJEU’s press release is here.

The CJEU’s Opinion is here.

Consultations on post Brexit UK sanctions law and policy

Maya Lester QC

There are currently 2 major consultations into the shape of UK economic sanctions post Brexit:

1. The Foreign & Commonwealth Office has published a white paper consulting on the legal powers it will need to be able to continue imposing and implementing sanctions once the UK leaves the EU.  Its focus is on the legal powers necessary to operate UK sanctions and not on the shape of UK sanctions policy in the future or other policy issues. Comments on the questions for consultation should be sent to the FCO by 23 June 2017 (details on the consultation paper).

2. The House of Lords EU External Affairs Sub-Committee is undertaking an inquiry into UK sanctions policy after Brexit.  The inquiry will hear oral evidence and take some written evidence by the end of June, and will explore the advantages and disadvantages of future co-operation between the UK and the EU on sanctions policy and how co-operation might take place, the current EU sanctions regime and how this will be transposed into UK law, and the impact of a separate UK sanctions regime on the UK’s ability to achieve its foreign policy goals. The UK Sub-Committee’s page giving information about the inquiry is here.

This follows also the call from the House of Commons Foreign Affairs Committee for the FCO to clarify by March 2018 “how the UK will impose sanctions post-Brexit, explain whether Brexit would entail changes from the current sanctions regime and analyse the costs and benefits of the possible models for future UK-administered sanctions”.  This was in the Committee’s report on the UK’s relations with Russia (link here).

These follow 2 other recent UK sanctions consultations:

3. A consultation by HM Treasury’s Office of Financial Sanctions Implementation (OFSI) on its new powers to impose civil monetary penalties for sanctions breaches, which led to new guidance and a consultation response (link here).

4. A report by the House of Lords EU Justice Sub-Committee on the legality of the EU sanctions listing procedure (link here).  The purpose of this inquiry was to understand why EU targeted sanctions were being struck down by the EU courts, and whether improvements could be made to the sanctions listing process, and the report makes a number of recommendations to Government (consultation response here).

Further details and links on www.europeansanctions.com

Terrorism: the EU picture

David Anderson QC

David Anderson QC’s article about Brexit and Security, Terrorism: the EU picture, has just been published in Counsel magazine.

In summary:

  • 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.

Preparing for Brexit: the legislative options

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

Government publishes White Paper on the ‘Great Repeal Bill’

Hugo Leith

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

Parliamentary reports on legal implications of Brexit

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”.

 

Bar Council publishes “The Brexit Papers: Second Edition”

Hugo Leith

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.

 

 

Foreign Affairs Committee reports on the implications of Brexit with “no deal”

Hugo Leith

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.

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?

Continue reading

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.