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

ICEL – Law Society of NI Brexit Conference

Tuesday December 13th 14:00 – 17:00

Law Society House, 100 Victoria Street, Belfast

3 CPD Points

Chair – TBC

Much about Brexit is still unknown, but it will certainly be one of the most significant changes to the UK and Irish legal landscape since Ireland and the UK joined the EU in 1973. This afternoon conference brings together leading legal speakers from Northern Ireland, London and Dublin to examine a series of constitutional and economic issues.

Confirmed speakers and topics

  • Professor Derrick Wyatt QC, Brick Court Chambers, London – Brexit and Article 50 – glass half full, or glass half empty
  • David Anderson QC, Brick Court Chambers, London – Brexit and the Border
  • Margaret Gray BL, practising in Belfast, Dublin and from Brick Court Chambers, London – Some implications for private and public law litigation
  • Professor Christopher McCrudden, Queens University Belfast and Blackstone Chambers London – The devolved setting and fundamental rights
  • Dorit McCann, Carson McDowell Solicitors Belfast – Competition and state aid post Brexit
  • Clare Archbold, Legal Advisor to the Department of Justice for Northern Ireland – Northern Ireland Executive: mechanisms to respond to the prospect of Brexit

Please click here for the Irish Centre for European Law online registration page. The cost is £100 for non-members, £50 for members and £25 for associate members. It is also possible to pay in euros.

Please note that this event is being organised by ICEL. If you prefer to register using more traditional means, or have any other queries, please feel free to contact the Centre directly via email icel@tcd.ie or by phone: + 353 1 896 1845, by fax: + 353 1 896 4455. The Centre’s Office Hours are between 10am to 2pm Monday to Friday.

Article 50 ‘Brexit’ appeal

The Supreme Court has uploaded the written arguments of the parties and interveners, which are available on its website here. The hearing is due to commence at 11am on Monday 5th December.

Eight members of Brick Court Chambers are instructed for various parties and interveners:

  • Martin Chamberlain QC and Emily MacKenzie are instructed by Baker & McKenzie on behalf of the Scottish government.
  • Richard Gordon QC and Tom Pascoe are instructed by the Welsh government.
  • Tim Johnston and Professor Robert McCorquodale are instructed by Bindmans LLP on behalf of ‘The People’s Challenge’ (Graham Pigney and others), Interested Parties.
  • Simon Salzedo QC and Andrew Henshaw QC are instructed by Wedlake Bell on behalf of Lawyers for Britain, who have filed written submissions as intervener.

Brexit: Banking and Financial Services

Sophie Shaw

On Thursday 10th November, Brick Court hosted the latest in its series of panel discussions on the legal implications of Brexit. The event was moderated by Mark Hapgood QC, who opened by observing that one of the most important issues arising from Brexit is the impact it will have on banking and financial services in the UK. He posed two questions: what degree of risk is posed to the banking and financial services industries by leaving the EU, and what is the best way to mitigate that risk? Continue reading

The Brexit Case – an alternative view from Andrew Henshaw QC

The Divisional Court’s Miller decision has been much praised in some quarters and condemned in others, mostly on grounds that are irrelevant to the legal reasoning involved.  But how compelling is that reasoning?  I respectfully offer an alternative view.

  1. The Crown, ie the Government, prima facie has the common law power to make, unmake, amend and exercise rights under treaties, including such termination rights as treaties may contain.
  2. Treaties take effect in our domestic law only when, and to the extent that, Parliament has legislated to provide for that to happen.
  3. Parliament may decide to legislate to give effect to a treaty in several ways. In particular:
    1. It may enact provisions designed to give effect to the treaty but without referring to the treaty (eg the Evidence (Proceedings in other Jurisdictions) Act 1975, implementing but not mentioning the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters).
    2. It may expressly set out provisions from the treaty and provide that they shall have effect (eg the Diplomatic Privileges Act 1964 and the Human Rights Act 1998).
    3. It may instead simply refer to the treaty, or even state that treaties may be specified by secondary legislation, and provide that the treaty provisions shall have effect, or a specified effect, in domestic law (eg the Taxation (International and Other Provisions) Act 2010, under which numerous double taxation treaties are given effect, and the European Communities Act 1972 (“ECA”).
  4. It is not at all self-evident that a choice of method C necessarily and of itself implies that Parliament has chosen to strip the Crown of the powers it would otherwise have, on the international plane, to unmake, amend or exercise rights under the treaty in question.
  5. It is true that where method C is used, a change on the international plane may alter the content of domestic rights. But that results simply from Parliament’s own decision to legislate by attaching the domestic law to the coat tails of the treaty. It is no different in principle from any of the other common situations where Parliament chooses to enact a provision whose content or effect depends on the actions of a third party, such as the action of a Minister in making secondary legislation.
  6. Therefore, one cannot conclude that the Crown’s ordinary international powers have been stripped away unless some other, specific provision of the domestic legislation expressly or by necessary implication so provides. It is incorrect to ask, as the Divisional Court did, whether Parliament must be taken to have intended that the Crown should retain its ordinary powers (Judgment § 56). Similarly, the Government’s implied condition argument recorded at Judgment § 93(3) appears to start from the incorrect premise that the ECA prima facie precludes the ordinary exercise of the Crown’s international powers.
  7. The general principle that the Crown lacks the power to “alter the law of the land”, or confer or take away rights, upon which the Divisional Court laid such stress, is of no real assistance. It begs the question of what the rights are. The natural starting point is that by choosing method C to give effect to a treaty, Parliament has chosen to make domestic law track the international law, whatever it may be, as opposed to implicitly stripping away the Crown’s powers at the international level.
  8. It is difficult to find any specific provision in the ECA that fetters the Crown’s international powers either expressly or by necessary implication, applying the appropriately strict test set out in the De Keyser line of cases. On the contrary, the language in section 2(1) giving effect in domestic law to “[a]ll such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties … as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom(my emphasis) seems at least equally consistent with the view that Parliament has not, sub silentio, taken the radical step of removing the Crown’s ordinary powers in international relations. (Contrast section 6 of the European Parliamentary Elections Act 1978, which while in force expressly prohibited the Crown from ratifying any increase in the powers of the European Parliament without the approval of an Act of Parliament; and sections 2 and 3 of the European Union Act 2011 expressly requiring Parliamentary approval for amendments to the TEU or TFEU.)
  9. Nor does the view that Parliament did intend to limit the Crown’s common law powers follow ineluctably from the notion that the ECA is a “constitutional statute”. The ECA is unusual in providing that it is not subject to implied repeal by later statutes, but like any other statute it can be altered by express language or necessarily implication from a later statute. More relevantly, such special status as the ECA may have does not answer the question of whether it is bound to be interpreted as precluding any alteration of the rights on the international plane which it incorporates by reference, or as precluding the exercise of the express international law right contained in Article 50.
  10. Nor does the answer follow from the fact that the ECA requires legislative intervention, in one form or another, to give effect to new EU treaties as and when they are made (Judgment § 93(8)). Parliament might have provided that any new treaties altering those listed in the ECA would automatically have effect in domestic law, but did not so. As a result, further legislation is required for any new treaties to have effect in domestic law in any dualist system such as ours. That is, as the Divisional Court said, a “practical matter” (Judgment § 41) because without such intervention the UK would immediately be in breach of the international obligations it had assumed. It does not follow, however, that the Crown is constitutionally prohibited from entering into such new treaties without the prior sanction of primary legislation.
  11. It is even harder to find any specific feature of the Act that is consistent with – and consistent only with – the conclusion that the Crown cannot exercise the express right provided by Article 50 to terminate the EU Treaties.

I would therefore venture to suggest that the decision of the Divisional Court is incorrect. This is undoubtedly a difficult area of law, as well as an obviously highly significant case, and the Supreme Court’s decision will be of considerable importance legally as well as for the Brexit process.

These are the author’s personal views and may not reflect those of other members of Brick Court Chambers.

Andrew Henshaw QC

Brexit: FRAND, Pharmaceuticals and Intellectual Property

Sophie Shaw

On Tuesday 1st November, Brick Court hosted the latest in its series of panel discussions on the legal implications of Brexit. The event was moderated by Lord Hoffmann, who opened the evening by observing that IP is likely to be one of the areas of law in the UK that is most affected by Brexit.  Continue reading

Government loses Article 50 judicial review

The Divisional Court has handed down its judgment this morning on the Article 50 judicial review proceedings on which we have been reporting. The judgment is here, a summary here, and hearing transcripts here. The name of the case is R (Gina Miller & Dos Santos) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The judges were the Lord Chief Justice (Lord Thomas of Cwmgiedd DJ), the Master of the Rolls (Sir Terence Etherton MR) and Lord Justice Sales.

The Divisional Court has decided that the Government may not use its Executive prerogative powers to give notice of its intention to withdraw the United Kingdom from the European Union under Article 50 of the Treaty on European Union, because this is a matter for Parliament.  Giving notice under Article 50 will inevitably result in the removal of some fundamental rights in EU law enshrined in domestic law by Parliament in the European Communities Act 1972.  The UK constitution does not permit the Executive to alter domestic law by removing those fundamental rights through exercise of its prerogative powers; only Parliament could do so.

The Government has said that it will appeal against the judgment, the Divisional Court issued a certificate permitting the case to “leapfrog” straight to the UK Supreme Court, and the Supreme Court has indicated that it will hear the case over 4 days during the week of 5th December 2016 with a larger than usual panel of judges.

Competition law working group publishes Brexit “issues paper”

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.