Keeping up with Brexit—preparations will intensify in 2018

Professor Derrick Wyatt QC offers analysis of the UK’s Brexit preparation and challenges ahead for the UK Parliament, central government, devolved administrations and businesses, as negotiations on the Withdrawal Agreement gather pace and negotiations on transitional arrangements and the framework of a future UK-EU trade relationship move up the agenda in 2018.

This article, first published on Lexis®PSL Public Law on 8 January 2018, is available here.

European Union (Withdrawal) Bill: Disapplication of Primary Legislation

Sir William Cash MP, Chairman of the European Scrutiny Committee, has written to the Prime Minister summarising the committee’s concerns about the provisions of the European Union (Withdrawal) Bill giving the UK courts a power to disapply pre-exit UK primary legislation.  The full text of his letter is here.

The Trade Bill – renegotiation and renewal of EU trade agreements after Brexit – in this new constitutional territory more Parliamentary scrutiny is urgently needed

Professor Derrick Wyatt QC

The lack of adequate Parliamentary scrutiny when the UK negotiates trade agreements (something it has not done in its own right for many years) has come to the attention of the House of Commons International Trade Committee. This is timely given the prospect of the UK negotiating the single most important trade agreement it is likely to negotiate for a long time – its future trade agreement with the EU. The context for the Committee’s concern is its inquiry into the Trade Bill. One of the issues which the Bill addresses is the domestic implementation in the UK of those EU trade agreements which are adapted for continued application by the UK after Brexit. The Committee has asked whether Parliamentary scrutiny of ministerial rules implementing these agreements is adequate, and, more broadly, whether scrutiny of the UK signing up to these and other trade agreements, is adequate. Continue reading

The EU (Withdrawal) Bill and the courts: peering through the glass darkly

In this Spotlight article, first published in the November issue of Butterworths Journal of International Banking and Financial Law, Richard Gordon QC considers the first draft of the EU (Withdrawal) Bill and the extent to which banks and other financial market participants can challenge by way of judicial review if they dislike the way the government amends primary financial services legislation by statutory instrument.

Please click here to view the article.

‘Negotiating Brexit: The Legal Landscape’

A co-authored paper by Richard Gordon QC and Alastair Sutton ‘Negotiating Brexit: The Legal Landscape’was launched last night in the House of Lords. It covers the Brexit negotiations to date including detailed sections on the EU’s Mandate and Position Papers, the EU Withdrawal Bill and the impact of the Brussels negotiations on the devolved governments. The event was chaired and hosted by Lord Tyler.

A link to the paper is here.

References to the European Court and Brexit

Aidan Robertson QC

Has the prospect of an impending Brexit affected the approach of the UK courts to the exercise of their discretion to make references to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty of the Functioning of the European Union (TFEU)? Two judgments show that the approach may now be different, depending on the circumstances; a third judgment, in which this issue was raised by the bench, is pending.

This issue was described by Roth J as “the elephant in the room” during closing submissions in the Competition Appeal Tribunal on 29 March 2017 in Generics (UK) Ltd v Competition and Markets Authority (Paroxetine), where he pointed out that where a referable issue arose in the present situation “there is a lot to be said for making a reference sooner rather than later”. If the issue were decided without a reference and then appealed, it might be that by the time the appeal was heard, Brexit would have taken place and the opportunity to make an Article 267 reference would have gone. Judgment in this case has yet to be delivered.

In Coal Staff Superannuation Scheme Trustees Ltd v HMRC [2017] UKUT 137 (TCC) (26 April 2017), Rose J rejected an application for an early reference to enable the CJEU to consider a question of the compatibility of UK tax legislation on withholding taxes with EU law on free movement of capital. Rose J held that whatever arrangements for Brexit might be negotiated, that should not at this stage require a change in judicial practice as to the exercise of discretion whether to refer under Article 267 TFEU. She rejected a submission that the appeal tribunal in this case had effectively been turned by Brexit into a court of final instance obliged to make a reference under Article 267(3) TFEU save where the issue of EU law is acte clair.

The Divisional Court in Northern Ireland in Kociolek v The Polish Judicial Authorities [2017] NIQB 87 (12 October 2017) rejected an application for a reference of a question as to whether the UK government had failed transpose into domestic law a European Council Decision on the European arrest warrant. The Court observed that by the time any ruling was handed down by the CJEU, Brexit would have taken place and even if the CJEU held that the UK was in breach of an obligation to transpose the Decision into national law “It is, of course, most unlikely that the political will to introduce such legislation would be present in any event.” The Court therefore concluded that a reference would be academic, recalling the “dictum of Lord MacDermott in McPherson v The Department of Education, NIJB 22 June 1973, that an order of the court ‘does not usually issue if it will beat the air and confer no benefit on the person seeking it’. That is apposite here.”

House of Lords Constitution Committee receives evidence from Brick Court

Richard Gordon QC is giving evidence this morning alongside Lord Neuberger (former President of the Supreme Court) at 10.30 am before the House of Lords Constitution Committee on the EU (Withdrawal) Bill in Committee Room 1 of the House of Lords. A link to the televised evidence is here.

Post Brexit sanctions legislation introduced to Parliament

Maya Lester QC

The Sanctions and Anti-Money Laundering Bill was introduced into the House of Lords this week (on 18 October 2017).  The Government’s press release states that the Bill “ensures that when the UK leaves the EU, we can continue to impose, update, and lift sanctions and AML regimes”. Impact assessment here and regulatory policy committee assessment here.  See previous blog for the background to this Bill and consultation process.

Tuesday 7th November 2017 at 6.30pm in Committee Room 1 at the House of Lords

Richard Gordon QC and Alastair Sutton of Brick Court Chambers will introduce their joint report entitled Negotiating Brexit: The Legal Landscape.

This Constitution Society publication encompasses the progress of the Brexit negotiations to date. There will be sections on the guidelines, the mandate, the various position papers, who’s who on the EU side; and the impact on the devolved administrations, the Crown dependencies and Overseas Territories.

Hard copies will be available at the event. Please register to attend on Eventbrite here

Brexit and the Irish Bar

Jemima Stratford QC and Sarah Abram

The Brexit vote has opened a Pandora’s box of uncertainties for UK lawyers, not least the issue of how leaving will affect their rights to practise in the EU.

Two questions are fundamental: first, will British lawyers retain their rights to appear in the courts of the EU after the UK leaves the union? As it stands, only lawyers who are entitled to practise before a court of an EU state or that of the European Economic Area (EEA) may represent parties in cases before the Court of Justice and General Court of the EU.

Second, will the advice British lawyers give on EU law continue to be protected by legal professional privilege? At present, EU law only recognises privilege in advice given by external legal advisers who are qualified in the EEA.

Various organisations, including the Bar Council of England and Wales, are seeking solutions to the difficulties that Brexit may cause barristers wishing to practise in the EU. But given the many sectors, professions and industries clamouring for their interests to be advanced in the Brexit negotiations between British ministers and Brussels officials, some self-help remedies are in order.

The rush of solicitors to register on the Irish roll of solicitors since June 2016 has been well-documented. What is less well known is that a group of barristers has successfully applied to join the Irish Bar, and several others are in the process.

Being called in Ireland is more complicated than might be assumed.

The Irish Bar understandably requires exams to be taken before an English barrister can qualify. That demands a return to the spirit of university finals, complete with revision cards, practice exam questions and panics over whether the handwriting of seasoned practising barristers would be legible.

Barristers called in England and Wales can, ironically, rely on EU law rights that allow qualified lawyers from other member states to transfer. They must submit a written application, including details of knowledge and experience to justify exemption from a number of other exams, including contract, tort and property law.

Exemptions are based on knowledge and experience rather than being linked to a number of years in practice. Candidates will be relieved that they do not have to “devil” before call, the Irish equivalent of pupillage.

And crucially, transfer is not cheap, so will only be of interest to those at the specialist EU Bar on this side of the Irish Sea. There are fees for the application and for the call ceremony meaning that in total the cost runs to more than £1,000.

The process is also lengthy, taking about a year from start to finish, although the authorities are understood to be speeding this slightly.

Even if a universal solution to the practice conundrum of UK lawyers post-Brexit cannot be found, an Irish qualification will enable English barristers to ensure that the advice they give clients remains privileged, and that those barristers will be able to continue representing clients in the courts of the EU.

The following members of chambers are called to the Irish Bar:

Mark Hoskins QC, Jemima Stratford QC, Maya Lester QC, Klaus Reichert, Margaret Gray, Victoria Wakefield, David Scannell and Sarah AbramAidan Robertson QC has passed the exams and will be called next spring.

Further details can be found here.