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.

Government says UK & EU will be “stronger acting together” on sanctions & foreign policy post Brexit

Maya Lester QC

The Department for Exiting the European Union has published a position paper today (one of a number of its Brexit position papers) entitled ‘Foreign policy, defence and development: a future partnership paper’ in which it “discusses options for foreign policy, defence and development collaboration in the future partnership”.  Link here. Key points in the paper are that:

  1. The UK has been central to EU foreign policy, including as regards sanctions where the UK:
  • “has been the most active Member State in proposing autonomous EU sanctions as a foreign policy tool”;
  • “has also been able to encourage cooperation between the EU and like-minded partners, including the United States, increasing the reach and impact of agreed measures”; and
  • many of the asset freezes applied to terrorist organisations by the EU are based on UK national proscriptions or asset freezes.
  1. “The UK and EU will be stronger acting together.” “Given the shared threats and challenges we face, and the UK’s deep commitment to European values, it is in the interests of both the UK and the EU to continue to work together to meet the challenges of the day, including by “upholding the rules-based international order through aligning sanctions regimes”. “The UK and the EU should remain close partners in foreign policy issues.”
  2. The UK “is establishing its own national legal framework for sanctions” (see previous European Sanctions blog) “but continues to see a strong mutual interest in cooperation and collaboration with European partners.” This could be done through “regular dialogue and specific cooperation. The UK and the EU should have regular close consultations on foreign and security policy issues, with the option to agree joint positions on foreign policy issues. This could include cooperation on sanctions listings, including by sharing information and aligning policy where appropriate.”

Report on Brexit and competition law

Maya Lester QC

The Brexit Competition Law Working Group has just published its conclusions and recommendations, link here. In summary, the report states that:

1. The interests of the UK economy, and those of businesses and consumers within it, will be best served by continuity of UK competition law and policy, so far as is possible following Brexit.

2. Brexit does not give cause for radical reform of the principal UK competition statutes, nor of the role of the competition authorities. But primary legislation will require amendment. In particular, the report recommends that the duty in section 60 of the Competition Act for the UK authorities and courts to act consistently with EU becomes simply a duty to ‘have regard to’ that jurisprudence. It recommends repeal of section 10 the the Competition Act so that future EU block exemptions from the competition rules are not automatically imported into the UK; they would instead become a matter for the UK to decide. To preserve continuity of the ability of private parties to bring actions for damages in the UK for breaches of EU (as well as UK) competition law, the report recommends retaining sections 47 and 58 of the Act.

3. For mergers and market investigations it recommends retaining the existing statutory criteria, notably the ‘substantial lessening of competition’ test for mergers, and not to vary the existing public interest criteria. For market investigation references, while the CMA should not have an unfettered discretion in its choice of legal instrument when investigating agreements that might be harmful to competition, the Working Group recommends against retaining a domestic analogue of the current EU provision that precludes remedies relating to agreements between firms that go further than the antitrust rules.

4. The report includes recommendations on the carrying forward of commitments from past antitrust and merger cases, and of leniency arrangements, and for mergers that ‘straddle’ the date of Brexit, and (in the longer run) parallel UK/EC investigations, both of mergers and antitrust issues. It also addresses the need for more resources for the CMA.

Leading EU lawyer and former Commission official looks at UK’s post-Brexit free trade options

Former EU Commission director, and leading lawyer and academic, Dr John Temple Lang, looks at the UK’s post-Brexit free trade options, including the Single Market, Customs Union, EEA, WTO, and bespoke agreements. His paper is attached below.


House of Lords inquiry into post-Brexit competition policy

Maya Lester QC

The EU Internal Market Sub-Committee of the House of Lords has just launched an inquiry into UK competition policy after Brexit. The closing date for written submission is Friday 15 September 2017. The Sub-Committee is asking for written evidence on particular questions by 15 September 2017. Link to the questions here and form to submit answers here. It will hold oral evidence session in October. The Sub-Committee is chaired by Lord Whitty and its members are listed here.

The inquiry will explore:
• Opportunities and challenges in re-shaping UK competition policy post-Brexit;
• The implications of Brexit for the application and enforcement of competition law in the UK;
• Whether UK authorities have the capacity and resources to cope with additional responsibilities and a greater caseload;
• Potential state aid obligations in any UK-EU free trade agreement;
• Future cooperation between the UK and the EU on investigations and enforcement actions.

Parliament debates post-Brexit sanctions

The House of Commons is debating the implications of sanctions policy today. Debate pack of background material and details are here, and live feed on Parliament TV here.  This follows a public consultation on the future legal framework for imposing and implementing sanctions and the announcement of new sanctions legislation in the Queen’s Speech. Tomorrow the EU External Affairs Sub-Committee of the House of Lords will hear evidence as part of its inquiry into UK sanctions policy after Brexit, including from Maya Lester QC. Details here and coverage here.

Repeal bill published

Maya Lester QC

The text of Great Repeal Bill (European Union (Withdrawal) Bill) has just been published, the whole document is here.

EU trade deals and the death of Investor-to-State Dispute Settlement

Aidan Robertson QC

The EU is about to sign a free trade agreement with Japan and it has released, in the last few days, a short FAQ document. Usually such agreements included investor-state dispute resolution mechanisms such as UNCITRAL, ICSID, and so on. The EU’s policy on this is made clear on page 6 of the recent FAQ: http://trade.ec.europa.eu/doclib/docs/2017/july/tradoc_155684.PDF

“A new system – called the Investment Court System, with judges appointed by the two parties to the FTA and public oversight – is the EU’s agreed approach that it is pursuing from now on in its trade agreements. This is also the case with Japan. Anything less ambitious, including coming back to the old Investor-to-State Dispute Settlement, is not acceptable. For the EU ISDS is dead.”

Thus, even if the UK secures a trade deal with the EU, disputes will not (on the EU’s approach) go to UNCITRAL or ICSID or anywhere else but the Investment Court System that is outlined in the FAQ.

The future of CAP subsidies in the UK

Aidan Robertson QC

The Common Agricultural Policy accounts for nearly 40% of EU expenditure during the 2014-2020 budget period.


UK agriculture receives approximately €3bn CAP funding annually in various forms.


The new Secretary of State for Environment, Food and Rural Affairs, the Rt Hon Michael Gove MP, was questioned on Radio 4’s Today Programme on 13 June 2017 on the future of CAP subsidies in the UK, being asked ‘can you guarantee them to the scheduled end of this Parliament’ i.e. 2022? Mr Gove replied ‘yes – that is a manifesto commitment’.

http://www.bbc.co.uk/programmes/b08tbdxw at 2:19:30.

This appears to give broad continuity of funding for the agriculture sector in the immediate post-Brexit years.

It is, however, important to appreciate that the legal environment for the agriculture sector is nevertheless likely to change on Brexit, whatever the terms of the forthcoming (one still assumes) Great Repeal Bill. Until now, agriculture has enjoyed a limited degree of protection from the full application of EU rules on competition conferred by Article 42 TFEU. This provides that Union rules on competition apply to production of and trade in agricultural products only to the extent determined by secondary legislation, account being taken of the objectives of the common agricultural policy set out in Article 39 TFEU. The extent of that protection is currently under consideration by the Court of Justice of the EU in the Endive Cartel case (Case C-671/15 APVE). Advocate General Wahl’s opinion was delivered on 6 April 2017 and the Court’s judgment is awaited.


That protection will cease to apply once the TFEU itself ceases to apply on Brexit, thus exposing the agriculture sector to the full application of the UK’s domestic competition law. I will examine the potential implications in a future blog, after the Endive Cartel judgment has been handed down.