‘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.

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.