Government’s post-Brexit blueprint raises more questions than answers

The government sketched out plans for the UK’s future relationship with the Court of Justice of the European Union (CJEU) in one of its post-Brexit ‘position papers’.

In Enforcement and dispute resolution: a future partnership paper, the government said: ‘In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU).

‘The UK and the EU need therefore to agree on how both the provisions of the Withdrawal Agreement, and our new deep and special partnership, can be monitored and implemented to the satisfaction of both sides, and how any disputes which arise can be resolved.’

The paper said the UK wants to: maximise certainty for individuals and businesses; ensure that they can effectively enforce their rights in a timely way; respect the autonomy of EU law and UK legal systems while taking control of our own laws; and continue to respect our international obligations.

It said that the UK will ‘take steps to implement and enforce our agreements with the EU within our domestic legal context’, including providing ‘the appropriate means’ by which individuals and businesses can rely on and enforce rights contained in any agreements, underpinned by the creation of international law obligations which will flow from our agreements with the EU.

Among the options, it seemed to envisage an arrangement similar to the court used by the countries in the European Free Trade Association.

Responding to the paper, the Bar Chair, Andrew Langdon QC, said: ‘The paper raises more questions than it seeks to answer on what is a matter of crucial significance to the UK.’

Langdon said: ‘A number of suggested alternatemechanisms to the CJEU are listed,though it is not clearwhich, if any, thegovernment favours.’

He stressed: ‘Whatever agreement the UK reaches with the EU, there must be some form of dispute resolution process with the EU post-Brexit in which all parties haveconfidence.

‘There are important regulatory, economic and rights-based reasons for ensuring legal certainty which underline the ongoing relevance of the CJEU case law post March 2019.’

He also warned that the EU Withdrawal Bill was a ‘recipe for confusion’ that will leave UK citizens and businesses with less protection against the power of the state.


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Brexit ‘no threat’ to London

Brexit will not affect the quality or certainty of English law or the standing of London’s courts, the Lord Chief Justice insisted.

At the judge’s dinner at Mansion House Lord Thomas of Cwmgiedd said rumours that English law is no longer certain and that London is no longer a safe forum to bring disputes are ‘fuelled by our competitors for their own advantage’ and are ‘unequivocally’ wrong.

Rumour he said, must be countered ‘if we are to ensure that the lie repeated does not’ be taken as truth. English contract and commercial law, he said, is unaffected by Brexit as they has never been within the scope of EU law.

‘London will continue to be a leading arbitration centre. Our legal profession will continue to be expert and world-respected. Our judges will continue to be drawn from the highest ranks of that legal profession. They will continue to be renowned for their expertise, impartiality and integrity,’ he said.

At the same event the Lord Chancellor, David Lidington, pledged to push the UK’s legal services as the country heads towards its departure from the EU.

He said Brexit will show Britain’s judges are the best in the world. ‘The message will be choose the UK and you will get a global guarantee of judicial excellence and integrity.’

Earlier the President of the Supreme Court, Lord Neuberger, saidBrexit could boostLondon’sstatus as the world’s legal centre. Once British judges are ‘left to our own common law devices’, he said, the courts will be able to ‘react more quickly and freely to developments in our fast-changing world’.

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Citizens of nowhere?

Colin Yeo examines the status of EU citizens in the UK and British citizens in the EU after Brexit

On 26 June 2017, over a year after the Brexit referendum result, the government finally published its proposals to ‘safeguard the position of EU citizens living in the UK and UK nationals living in the EU’. 

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Women’s rights post-Brexit

Brexit is likely to do real damage to women who would be disproportionately affected by a bonfire of workers’ rights, warns Aileen McColgan

EU membership has been extremely significant to the rights of women in the UK, particularly in the area discrimination/equality rights which are the focus of this article. 

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Article 50: the trigger that never was?

With the start of Brexit negotiations drawing closer David Wolchover argues that the Prime Minister has not triggered Art 50 of the Treaty on European Union

On 29 March Sir Tim Barrow delivered a letter from the UK Prime Minister Theresa May to European Council President Donald Tusk purporting to give notice under Art 50(2) of the Treaty on European Union of Britain’s decision to quit the EU.

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Choice of law post-Brexit

Will Brexit reduce London’s dominance as a litigation centre? Michael McParland QC examines the potential impact on use of English jurisdiction and choice of law agreements

‘One of the attractions of English law as a legal system of choice in commercial matters is its stability and continuity…’ Wood v Sureterm Direct Ltd [2017] UKSC 24, para [15]

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Terrorism: the EU picture

David Anderson QC examines the post-Brexit implications for national security and identifies potential fault lines for future security cooperation with the EU

As jihadi fighters from Europe return from the battlefields of Syria, sometimes by complex overland routes, the advantages of a coordinated European response to terrorism seem obvious.

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The Brexit Papers

In a welter of longer treatises, the Bar’s Brexit Papers have been described as ‘gold dust’. Written in the public interest to inform and guide the negotiations ahead, Hugh Mercer QC highlights the value of the Bar’s topic-based and clear-sighted analyses

One of the difficulties in predicting the impact of Brexit on different fields is that the government’s strategic priorities have been expressed in fairly general terms. 

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Brexit justice priorities

Protecting cross-border legal practice rights must be a priority in the government’s Brexit negotiations, according to a high profile cross-party committee.

The Justice Committee’s report, Implications of Brexit for the justice system, highlighted four key priorities: continue cooperation on criminal justice as closely as possible; maintain access to the EU’s inter-state commercial law regulations; enable cross-border legal practice rights and opportunities; and retain efficient mechanisms to resolve family law cases involving EU member states and the UK.

The Committee said that the overall implications of Brexit for the legal services sector give ‘cause for concern’ and warned that the ability of the legal services sector to underpin many areas of UK economic activity would be diminished without protection of existing practising rights there for UK lawyers.

Chairman Bob Neill said: ‘The UK’s legal services sector makes a £25.7bn annual economic contribution. It relies on openness, and its lawyers’ current rights to practice across EU member states help small businesses and ordinary people as well as large firms and wealthy individuals.’

The committee also argued that the Court of the Justice of the European Union should retain its jurisdicton in the UK, stating it is a ‘price worth paying’ to maintain effective cross-border tools of justice.

The Bar Council said the committee had reached some ‘sensible conclusions’ and, in its own Brexit Papers, called on the government to give EU citizens unrestricted access to UK jobs in post-Brexit Britain.

See further The Brexit Papers (Counsel, May 2017).

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Strength testing the British constitution


Following the triggering of Art 50, Anneli Howard assesses the possible ramifications of the Supreme Court’s Miller ruling, other associated litigation and key next steps for the UK’s withdrawal from the EU

The British are famous for their unwritten constitution, which has evolved over the last 800 years. 

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