EU versus UK: pre-negotiations

Last Saturday, the leaders of the 27 remaining EU member states quickly agreed to a negotiating path towards a quick divorce deal with the UK. It is now up to the UK to agree to the guidelines so that the talks can begin. The main delay appears to be the UK election.

Despite the unpromising lead-up to Saturday’s summit in Brussels, including an awkward dinner between European Commission President Jean-Claude Juncker and UK Prime Minister Theresa May, and mutterings about the UK blocking EU budget talks ahead of their elections, the EU27 held out clear prospects of compromise.

However, EU leaders did not appear wholly confident, with concerns mounting that the British Prime Minister still does not grasp how long, complex and difficult the path to agreement will be. The main fear seems to be that even if the Conservatives record a strong victory in next month’s General Election, Mrs May will not be willing to moderate her negotiating positions. Indeed, the converse might be true: bolstered with a strong showing, Mrs May might be more inclined to refuse to engage in compromise efforts.

The European Council’s guidelines  define the framework for negotiations under Art 50 TEU, and set out the overall positions and principles that the Union will pursue throughout the negotiation. The European Council is settling itself down for a bumpy ride, and it is not pulling its punches. In the Core Principles section of the guidelines, it writes:

It reiterates its wish to have the United Kingdom as a close partner in the future. It further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level playing field. Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”. The Union will preserve its autonomy as regards its decision-making as well as the role of the Court of Justice of the European Union.

Basically: the UK cannot boast about a hard Brexit, seek to withdraw itself financially from the EU, but still expect to benefit. After all, you cannot have the benefits of club membership without paying your membership fees.

Under Agreement on arrangements for an orderly withdrawal, the European Council  strongly reiterates citizen’s rights:

The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority for the negotiations. Such guarantees must be effective, enforceable, non-discriminatory and comprehensive, including the right to acquire permanent residence after a continuous period of five years of legal residence. Citizens should be able to exercise their rights through smooth and simple administrative procedures.

The European Council also recognised the Northern Ireland/Republic of Ireland quandary, and seeks to limit any potential damage:

The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.

Whilst EU law must be recognised and upheld, the EU is willing to be flexible in any final agreement in order to prevent the imposition of a hard border.

Developing the guidelines was the relatively easy part, highlighting as they do the elements all member state agree on: the need to negotiate withdrawal terms before agreement on future relations, and prioritising citizens’ rights, the financial settlement, and border concerns — particularly for Ireland.

However, there is always going to be differences under the surface of the guidelines. And the risk of disagreement among the EU 27 on detailed aspects of the Brexit negotiations is high, largely because the interests of individual countries in the Brexit talks diverge as much as they do on any other issue. A key priority which is subject to different interpretations and interests is citizens’ rights. On the one hand, countries such as Poland and Lithuania are concerned about their own citizens now living and working in the UK. On the other hand, countries such as Spain and Malta have a primary interest in the fate of British retirees who live in those countries, and the related costs for health care and other services.

The European Council has prepped its hand. It put on a strong, unified showing in its swift agreement on the guidelines. But for how long will it stay unified?

Fast forward to this week, and it is the turn of the European Commission to lay down its cards in advance of the forthcoming Brexit negotiations.

The EU’s Brexit negotiator Michel Barnier, presenting the European Commission’s proposed negotiating directives today, said it was wrong to try to make people believe the separation will be a painless process with no impact on people’s lives. He added that it was not the European Commission’s intention to “punish” the UK for leaving the bloc.

He hinted the talks process will be long and complicated, and warned no one should expect a quick deal:

“Some have created the illusion that Brexit would have no material impact on our lives or that negotiations can be concluded quickly and painlessly. This is not the case.

“We need sound solutions, we need legal precision and this will take time.”

Barnier said in order to ensure the talks succeed and agreement is reached, the UK “must put a great deal of energy and effort” into reaching agreement on key three areas: borders (especially between Northern Ireland and the Republic of Ireland), the rights of EU citizens, and the process for calculating a financial settlement.

It was said that the so-called divorce bill – now estimated at €100bn (£84.5bn) -was not a punishment for the UK leaving, but rather a “settling of accounts”.

Barnier made sure to highlight the remaining 27 member states’ show of unity at last weekend’s summit.

It is evident that the looming negotiations will not be straightforward – perhaps much to the displeasure of the British government, especially if time is spent wrangling over the divorce bill. ‘Take Back Control’ must seem like a distant memory, now.

I for one welcome the stance taken by the EU institutions pertaining to the island of Ireland. It is great to see the EU confirm it will attempt to be as flexible as possible when considering the imposition of a border. It certainly makes a change from the endless refrain of “no return to the borders of the past” from the British government…

Brexit and the Bar Council: the Great Paper Debate

I have written a few times about the ongoing uncertainty regarding the outcome of the UK’s referendum on continued membership of the EU, and the legal sector.

Between the issue of whether UK lawyers would be qualified to work in the EU, and UK lawyers thus seeking re-qualification in Ireland, to the issue of the CJEU and whether justice was a priority for the British government during negotiations (it is not, I believe), there constantly have been queries regarding UK law, and how it will operate post-Brexit.

It would seem that the legal sector is growing tired of the lack of official clarification, and wants some certainty restored and answers given.

The Bar Council of England and Wales has said the British government should seek to clarify how it intends to pursue its future relationship with the Court of Justice of the European Union (CJEU), claiming a white paper on its break away from EU law merely ‘scratches the surface’ of the issue. A valid point, as the White Paper has a little section (‘little’ is an appropriate description; it is just four pages long) entitled ‘EU Law in the UK’. Only, it happens to be an annex at the end of the entire White Paper.

In response to the Department for Exiting the EU’s Great Repeal Bill White Paper, the Bar body said domestic courts’ future relationship with the EU will be ‘complex and nuanced’.

For example, the Bar Council said the White Paper does not deal with the possibility of UK courts making references to the CJEU post-Brexit ‘in proceedings concerning a factual situation governed by EU law arising pre-Brexit.’ Conceding this might be considered a ‘rather technical point’, the Bar Council argued whatever provision the Great Repeal Bill makes ‘might not prevent the CJEU from finding other routes to assuming jurisdiction over things taking place in the UK during the period when the treaties remain applicable’.

Moreover, it said there will ‘presumably be a need to provide for the domestic consequences of any dispute-resolution mechanism between the UK and EU appearing in the withdrawal agreement and likewise in any future agreement for the new relationship’.

The Bar Council said it is currently preparing a paper on the CJEU which it says it hopes will provide more opportunity to contribute to the British government’s thinking on matters.

The council added that it is concerned that specific safeguards recommended by the House of Lords Select Committee on the Constitution are not ‘watered down into vaguer ministerial assurances’ and should be clearly written into the text of the bill.

Safeguards proposed include that powers to enact delegated legislation will be used only ‘so far as is necessary to adapt the body of EU law to fit the UK’s domestic framework’ and ‘to implement the result of the UK’s negotiations with the EU’.

 

The Bar Council submitted: ‘…we consider that the white paper could have been clearer on what is or is not to be treated as “EU- derived law” as time progresses and what the approach will be to future changes to EU law which might affect that “EU-derived law” beyond the point of exit from the EU.’

It will be interesting to see what the Bar Council’s paper proposes. No doubt it will be detailed, and will aim to provide more clarity and certainty on the issue. This just goes to show how complex the negotiations will be, and indeed, how unprepared the British government appears to be.

LSE-DB merger meets Brexit politics.

You might remember how I once wrote a blog post or two about the proposed London Stock Exchange-Deutsche Börse mega-merger.

This merger was supposed to create a bridge between Frankfurt, the Eurozone’s financial capital, and post-Brexit London, Europe’s and -sometime – world’s financial centre. However, the mega-merger designed to create a European champion for investors and listed companies — the very embodiment of the Commission’s capital markets union — is in deep trouble. And Brexit is its name.

Uncertainty about the UK’s future in Europe is what might just end the Deutsche Börse-LSE merger.

A few weeks ago, the London Stock Exchange announced its long-planned tie-up with Frankfurt-based Deutsche Börse was in troubled waters. The given reason for the situation was the claim that the LSE held ownership of an obscure Italian bond trading platform. Whilst the €29 billion deal was always far from a sure thing, and technicalities, for all their trouble are still important waters to navigate, the reality is that Brexit has caused jitters.

The merger between the two leading European exchange groups was left hanging by a thread after the LSE announced it was not able to meet a key condition for approval by European Commission competition authorities.

“Based on the Commission’s current position, [London Stock Exchange Group] believes that the Commission is unlikely to provide clearance for the merger,” LSE said.

LSE said the issue is that in mid-February, the Commission ‘unexpectedly’ asked the company to sell its majority stake in MTS, an Italian platform for trading bonds. The Commission’s competition directorate wanted LSE to commit to the sale by Monday, 27th February. The day before this deadline, the LSE said it could not do that.

The exchange’s statement does not explain why, but it implies that the Italian authorities didn’t want it to sell:

“Following dialogue with Italian authorities about the Commission’s required remedy and given prior discussions between the principals and Italian authorities regarding LSEG’s Italian businesses in the context of the merger, the LSEG Board believes that it is highly unlikely that a sale of MTS could be satisfactorily achieved, even if LSEG were to give the commitment.”

The LSE statement also implied that the deal’s chances are now slim. In the last paragraph, it says the company’s board “is highly confident in the strength of the [LSE’s] business, strategy and prospects on a standalone basis, under its strong management team led by Chief Executive Xavier Rolet,” who was going to leave after the merger but would presumably stay if there is no deal.

The Commission has until the 3rd April to make a decision on the issue – a date notably set after the proposed deadline for the British Prime Minister to invoke Art 50, and commence the process of formally withdrawing the UK from the EU.

The fact of the matter is, this was always going to be a very political deal, and it became an even more political deal after Brexit.

After months of preparation, a merger of this scale is not going to wither away on a technicality. What could yet end it is uncertainty over the UK’s departure from the EU.

Given that Theresa May has yet to even invoke Art 50, it remains too early to predict what type of arrangement the UK will acquire from the EU for the City of London. The regulatory uncertainty that financial companies face in the interim makes a deal like the LSE-DB merger risky if not outright negligent. Add to that the suddenly toxic politics in London, and on the Continent, around anything that touches on future relations between the two.

Of course, something might happen which would keep the merger alive. Some type of three-way deal might be struck between the LSE, the Italian authorities, and the Commission to allow the LSE to sell its big stake in the Italian bond-trading platform MTS to a buyer approved by the Italians.

But would require the Commission to extend the deadline for a deal to be agreed. And that’s not looking too likely.

Now, should the merger ultimately fail, the LSE could become the subject of another bid. This would most likely be in the form of a US rival, perhaps ICE or Nasdaq. Alternatively, an Asian may step into the frame, such as the Hong Kong Stock Exchange. These non-European suitors could be emboldened by the lower pound and the likely fall in the value of the LSE’s shares if the DB deal fails.

Regardless of what unfolds, Brexit will be on everyone’s lips. 

Brexit is already having a corrosive effect on the UK’s business ties with the Continent. There may be few signs the UK economy had taken a hit in the immediate aftermath of the EU referendum, but the possible decline of the LSE deal is just the sort of longer-term damage many economists warned about before the vote.

One of the key issues on the list for EU and British Brexit negotiators — in addition to citizen rights, and the ongoing debate over a so-called ‘divorce bill’ — will be how to uphold all the deals and investments negotiated on the assumption that the UK belongs to the EU. As the apparent LSE-DB breakup seemingly demonstrates, many investors just cannot afford to wait for the politicians to sort it all out.

Mutual recognition hope for lawyers

I have written recently about the legal issues caused by the uncertainty triggered by Brexit. I feel that it is becoming increasingly evident that the ramifications of the vote to Leave the EU last summer were never fully considered by the British government, especially within the legal sector.

Such legal issues include the practise of law in a post-Brexit UK. I noted last year that many practising solicitors in the UK were opting to register with the Irish Law Society in order to ensure they could continue to practise EU law.

However, there perhaps could be a solution to hand for those lawyers worrying about their qualifications in the event of the UK eventually withdrawing from the EU: mutual recognition.

For only recently, a former senior trade minister said that the ‘genuinely mutual benefits’ of professional recognition would mean that UK lawyers could expect a continuation of their right to practise in EU jurisdictions post-Brexit.

Lord Maude of Horsham, who was Minister of State for Trade and Investment in former Prime Minister David Cameron’s government, told a press briefing it would be ‘very surprising if mutual recognition arrangements’ could not be sorted out relatively easily.

Lord Maude, now a senior adviser at US firm Covington, was also a government minister from 1987-1992, and had a direct role in the design of Directive 89/48/EEC on which subsequent professional recognition regulations were based.

Such continuation of the mutual recognition regulations was likely, Lord Maude said, because the ‘benefits on both sides’ were now well-established.

The former Swedish Prime Minister Carl Bildt, who is also a senior adviser at the same firm, identified ‘justice’ as an area where early agreement between the EU and UK can be reached.

I wrote recently on the very topic of ‘justice’ with regards to the Brexit and the upcoming negotiations. I noted that justice does not seem to feature highly on the UK government’s list of priorities entering the negotiations. The UK government, as we are all too aware of, prefers instead to prioritise economic matters rather than legal matters. This is despite the fact that the UK co-operates closely with other EU Member States in relation to matters of justice, and law and order. Whilst I feel that justice is not recognised as an area of priority entering the Brexit negotiations the UK government, Mr Bildt’s comments regarding justice being a potential area for early agreement seems promising. (I will keep my fingers crossed.)

However, Mr Bildt did warn that while the UK government expected Art 50 and interim arrangements could happen ‘in parallel’, the EU negotiating team did not match that expectation. ‘Their mandate is just a divorce mandate,’ he noted.

Yet perhaps lawyers’ concerns are not entirely without foundation, nor do they look set to be reassured soon. Jonathan Goldsmith, the former secretary-general of the Council of Bars and Law Societies of Europe (CCBE), commented:

‘The lawyers’ directives are not standalone but depend on what will happen on mutual recognition and the single market overall. If we are out of the single market without exceptions, and have to return to WTO rules, then there are big problems.’

As we know from Prime Minister Theresa May’s recent Brexit speech, the UK goverment is now committed to a so-called ‘hard Brexit’ which would see the UK withdraw entirely from the EU, including the Single Market. Thus, Mr Goldsmith’s comments are indeed worrying.

Mickael Laurans, who is the Head of the Law Society’s Brussels office, said the qualified lawyers transfer scheme would mean continued recognition for EU lawyers in England and Wales. However, he did also note that reciprocal agreement for solicitors and barristers post-Brexit ‘would depend on the goodwill’ of the EU’s 27 member states. Perhaps it is just me, but that does not ring with optimism.

We can hope that the current model might be used as a foundation to build something constructive in the future and regardless of the deal that eventually is negotiated between the UK and EU. But it appears that until we are informed of the final agreed deal, a lot of uncertainty and question marks will persistently remain, particularly in the legal sector.

The Brexit Bill.

And so it came to pass, that the UK government did finally publish a Brexit bill to present to the UK Parliament.

Yes, following the UK Supreme Court’s judgment that the UK Parliament must give its consent for the commencement of Brexit negotiations, the U.K. government tabled the bill which enables such a vote to obtain Parliamentary consent. It is this 137-word bill that will give Prime Minister Theresa May the power to trigger Art 50, and officially begin Brexit negotiations.

The European Union (Notification of Withdrawal) Bill was introduced to the House of Commons and given its First Reading on Thursday 26 January 2017. This stage was a formality, meaning that the bill is presented to the Speaker, its title read out, and all this takes place without any debate. In a statement with the bill, Secretary of State for Exiting the EU, David Davis said he trusted that the UK Parliament “will respect the decision taken by the British people and pass the legislation quickly”. In other words, neither he nor the Conservative government will brook no opposition to the bill, and will argue that to reject the government’s bill is to reject the overall decision of the UK to leave the EU in the 2016 referendum.

During Departmental question time, also on Thursday, Mr Davis refused to guarantee that the parallel government white paper on the withdrawal process, which was announced on Wednesday, would be published before the Art 50 bill had been debated in the Commons:

“It will be as expeditious as we can be, it takes time to do. But we won’t waste time in producing it for the house.”

The publication of this bill prompted UK Labour to table a series of proposed amendments, including one seeking to guarantee that the UK Parliament has a final say on any final deal.

The bill, containing just two clauses and only 137 words long, will be granted five days of time in the Commons, the government announced, prompting concern from some Labour MPs that it could not receive proper scrutiny in such a period. David Lammy MP, for example, said the bill was the “most important decision taken for generations” and allowing five days “shows contempt for parliamentary sovereignty”.

MPs will next consider the Bill at Second Reading, and this is the exciting bit in that MPs will have the opportunity to debate the bill. It is expected to have its Second Reading debate on 31 January 2017, with conclusion of Second Reading scheduled for 1 February 2017.

MPs can table ‘reasoned amendments’ to the motion for second reading, declining to give the Bill a second reading. The choice of any amendment to be considered is made by the Speaker. Any amendments that have been tabled are published in the Order Paper, and to date, five reasoned amendments have been tabled.

The Bill is then due to be considered in Committee on Monday 6 and Tuesday 7 February 2017, concluding in Committee on Wednesday 8 February 2017 when the remaining stages are also due to take place.

S1(1) of the Bill provides that the Prime Minister ‘may notify, under Article 50(2) of the Treaty on European  Union, the United Kingdom’s intention to withdraw from the EU.’. Moreover, s1(2) states that this section ‘has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.’

Interestingly, it is not the only Brexit bill tabled in the UK Parliament. Conservative MP and long-time Eurosceptic, Peter Bone, tabled the PMB, the Withdrawal from the European Union (Article 50) Bill 2016-17. This Bill was presented to Parliament on 30 November 2016, and is expected to have its second reading debate on Friday 24 February 2017.

There is a subtle difference between Mr Bone’s bill and that of the UK Conservative government’s. Whilst Mr Bone’s bill seeks ‘to require Her Majesty’s Government to notify the European Council by 31 March 2017 of the United Kingdom’s intention to withdraw from the European Union’, the government’s bill aims ‘to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.’ The UK government’s bill, if/when passed by both the Commons and the Lords, directly confers the authority to invoke Art 50 on the Prime Minister. Mr Bone’s bill is basically a ‘hurry it up’ type of bill, stating a deadline for the Prime Minister to notify the EU of her intention to trigger Art 50.

Mr Davis might have commented that he hoped MPs would accept and support the bill, and so ensure the legislation was swiftly passed. However, there could be trouble ahead in the form of the Official Opposition. Labour is divided between following the lead of its leader, or listening to constituents.

The Labour leader, Jeremy Corbyn, confirmed he would seek to oblige his MPs to back the bill, a decision that seems set to cause considerable opposition within the party. (Quelle surprise.) Moreover, when speaking to Sky News, Mr Corbyn said he would impose a three-line whip to ensure the PLP backed the bill.

“It’s clearly a three-line whip…It is a vote on the Article 50 … We will put out a statement today to our members that we want them to vote for Article 50.”

Mr Corbyn acknowledged the pressures MPs faced from their own personal views on Brexit, and that of their constituents, but urged all Labour lawmakers to “unite around the important issues of jobs, economy, security, rights, justice” to help frame the UK’s relationship “with Europe in the future.”

Perhaps trying to achieve the best of both worlds and satisfy all sides, Labour has tabled seven planned amendments to the bill. One such amendment would guarantee a “meaningful vote in parliament” on any final deal. Another amendment would be to guarantee the protection of workers’ rights and securing “full tariff- and impediment-free access” to the EU’s single market.

The other five amendments are: to ensure Mr Davis reports on progress to the Commons at least every two months, guaranteeing the rights of foreign EU nationals living in the UK; obliging regular consultation with the devolved governments, require regular impact assessments on the effects of leaving the single market, and to oblige the government to keep all existing EU tax avoidance and evasion measures.The final amendment is targeted at the government’s threat that if the UK does not get a sufficiently good deal from the EU it will walk away and shift the economy towards low regulation and tax.

The party will also support two more amendments, drafted by Melanie Onn MP, connected to protecting workers’ rights.

There has now been over sixty pages worth of amendments submitted, including a joint amendment from the SNP and SDLP, who are advocating the Scottish and Northern Irish Remain mandates respectively, and seek to uphold the devolved administrations’ role in the negotiations.

The issue becomes, of course, whether any of the numerous amendments will succeed: they would require cross-party support to pass. With so many amendments, there comes a risk that amendments will fall as parties feel other parties’ amendments do not go far enough, or go too far.

It had been wondered whether Mrs May might have to contend with trouble from within her own ranks, let alone from across the aisle. After all, Mrs May has a slim majority in the Commons, and one which she must guard and monitor carefully. A handful of backbench rebels, especially on Brexit, would present the perception to the public that she cannot control her own party, let alone the Brexit negotiations which will soon take place.

However, it appears that the Prime Minister might be able to strike one concern off the list: she most likely will face no rebellion, and will only have to face down any Labour MPs who rebel Mr Corbyn’s three-line whip, and other MPs who have vowed to vote against the government’s bill, including the Lib Dems, the SNP, and the SDLP.

Indeed, news came today that potential Conservative rebels are now quietly backing away from supporting amendments proposed by Labour, or other opposition parties. Moreover, a band of Conservative MPs fighting in particular against a hard Brexit are indicating they have been largely satisfied by the prime minister’s promise of a white paper. Consequently, Labour and the Liberal Democrats now believe there is very little chance of getting enough cross-party votes for amendments – the very issue I had previously addressed. They had hoped to win support on issues such as guaranteeing the rights of EU nationals, and a more meaningful vote at the end of the two-year negotiations or protections in the House of Commons. Instead, opposition parties are now concentrating on getting the government to concede points voluntarily, with Labour MPs believing the most likely proposal to be accepted is a demand for the Prime Minister to provide quarterly updates to the UK Parliament on the negotiations.

This does not mean that MPs will not seek to hold the UK government to account. Indeed, some MPs may still table amendments or support tabled amendments in an effort to restrain the Prime Minister in her quest for a hard Brexit. For example, MPs may come together to focus on ensuring the UK is not taking out of the Single Market without a Parliamentary vote. After all, the referendum last year asked the electorate whether they wanted the UK to remain in or leave the EU – it never mentioned anything about withdrawing from the Single Market, or the Customs Union.

Mrs May is aiming to have the bill passed through both the Commons and the Lords to meet her self-imposed deadline of invoking Art 50 by the end of March. It seems more than likely her government’s Brexit bill will pass, but not without debate and bumps along the way. How she emerges at the other end before triggering Brexit remains to be seen, but it is important that she does not appeared weakened after a bloody battle with MPs.

 

 

UK justice is not a priority during Brexit negotiations.

I have recently written about the legal ramifications of Brexit, whether in relation to the jurisdiction of the ECJ to the registration of British lawyers with the Irish Law Society.

It is evident that the overall majority decision of the UK to vote to withdraw from the EU has wide-reaching consequences, particularly within the legal sector. A pity that this was never fully addressed or considered during the referendum campaign – by either side – but I suppose it does not suit to dwell on the past, and the lack of clarity provided during the campaign.

Yet, following the discourse surrounding Brexit since the referendum last summer, it becomes apparent that the economy and immigration seems to be high on the UK government’s priorities. Whether discussing trade agreements, creating a stronger economy, reducing EU red tape, or debating freedom of movement and the need for borders (see: Northern Ireland), it seems the UK government is only interested in the financial aspect of Brexit. It seems to have forgotten about other issues, let alone law and order.

Interestingly enough, the Justice Committee in the UK Parliament is currently undertaking an inquiry into the implications of Brexit for the UK justice system. With regards to the scope of this inquiry, the Committee is interested in views on the likely effects of Brexit on the processes of criminal and civil justice, as well as views on the financial effects on the legal sector and business and the economy more widely. It is also interested on steps which should be taken in the process of Brexit negotiations or by other means to minimise any adverse effects and enhance any positive effects.

It was whilst giving evidence to this Committee inquiry that criminal law practitioners recently highlighted the challenge that leaving the EU will pose to international criminal justice cooperation. Moreover, it was suggested that the topic of justice is not currently high on the UK government’s Brexit agenda.

Members of the Criminal Law Solicitors’ Association and Criminal Bar Association spoke in relation to the importance of the European arrest warrant (EAW). However, both representative bodies told Committee members the UK government had not consulted them on the mechanisms for the EAW to continue post-Brexit. It seems rather incredible that the UK government would fail to consult on such an important legal issue, but there we have it.

CLSA member and solicitor Michael Gray, founding partner of Gray & Co Solicitors, told MPs it was disappointing that the justice debate had not happened sooner:

‘because it would have been useful for the public generally to see what an intricate, complicated web of cross-border cooperation we have in place, and that people have worked hard to put in place’.

Mr Gray was responding to Committee member Keith Vaz MP, who had noted justice had not been a priority for the UK government. Indeed, Mr Vaz pointed out that discussions pertaining to Brexit has consistently focused only on trade, immigrations, and the economy to date.

Earlier in the session Mr Gray told the committee that the EAW was a ‘very powerful tool’ being used on a daily basis, adding that it was not just an important tool in the fight against crime, but also in bringing justice for all those concerned.

However, he predicted ‘huge problems’ in future negotiations, noting Norway and Iceland’s lengthy efforts to establish their own bilateral extradition agreements that mirror the EAW.

Meanwhile, CBA chair Francis FitzGibbon QC acknowledged there was no reason why access to the European Criminal Records Information System should not be negotiable. At present, no non-EU member states can access the system, which was set up in 2012.

However, Mr FitzGibbon warned that to get access to that kind of information, the UK would have to be compliant with EU data protection standards. Moreover, Mr FitzGibbon pointed out that difficulties would arise when the UK was outside of the EU with regards to the sharing of data. This would subsequently cause problems for co-operation across the board when it came to law and order matters.

In addition, Mr FitzGibbon predicted that the implications of the judgment on surveillance handed down in Secretary of State for the Home Department v Watson and Others in the ECJ, and forthcoming data protection reforms, could potentially cause ‘significant’ problems post-Brexit.

It is obvious that there are many issues to contend with and consider regarding Brexit, particularly in the legal sector. I will follow the Justice Committee’s inquiry, which evidently is much-needed. It is simply frustrating to read the comments given by representatives from the CLA, and CBA, and remember how little consideration was truly given to the potential consequences of the UK withdrawing from the EU when the decision to propose holding a referendum first came to pass.

The UK government only appears concerned with matters of law and order and justice when constantly repeating that with Brexit, the UK courts are now sovereign. It is a vague mention, and it is not enough. More thorough consideration is needed going forward.

Brexit and the CJEU.

Prime minister Theresa May last Tuesday vowed to end the influence of the Court of Justice of the European Union (CJEU) over UK law, in a much-trailed speech in which she confirmed the UK would not remain a member of the single market.

The Prime Minister confirmed that remaining in the single market would mean ‘not leaving the EU at all’ as it would have to accept continued jurisdiction of the CJEU, which she said would have a ’direct legal authority in our country’.

“Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast,” Mrs May said. “And those laws will be interpreted by judges not in Luxembourg but in courts across this country.”

Whilst this portion of the speech provided clarity and certainty to the legal world regarding the CJEU, understandably the general response to the speech was a cautious one.

Bar Chair Andrew Langdon QC said: “[Tuesday’s] speech from the prime minister has provided some much needed clarity on the government’s direction of travel over Brexit. Central to our success is the ability of barristers, solicitors and other legal professionals to provide legal services across national borders within the EU, and we support the prime minister’s welcome reassurance that the UK will remain open to international talent.”

After all, for all of Mrs May’s words, it should be noted that withdrawing from the jurisdiction of the CJEU is easier said than done. Moreover, the Prime Minister might not actually want a rapid withdraw from the CJEU: she stressed there would be a transition phase, and an implementation phase that would deliver the full future relationship going forward. She has been careful to reassure businesses by highlighting the intention for the continuity of laws post-Brexit.

Another consequence of leaving the CJEU is that the recognised jurisdictional rules on recognition and enforcement embedded in the EU framework would no longer apply. However, the UK and EU will be open to agree bespoke arrangements based on their mutual interests, which may go beyond existing conventions.

May’s commitment to leaving the CJEU appears to contradict the government’s previously signalled intention to accept aspects of CJEU authority by agreeing to sign up for the European Unified Patent Court (UPC), part of which will be based in London.

Last week, The Law Society listed continued access to the CJEU as a priority for English and Welsh lawyers. In its submission to the Department for Exiting the European Union and the Ministry of Justice, Chancery Lane also said the UK should focus on ‘maintaining, or introducing arrangements equivalent to EU directives on establishment and professional qualifications, mutual recognition and enforcement of judgments and maintaining collaboration in policing, security and criminal justice.

In her speech, Mrs May did stress she wanted the UK to create its own laws but confirmed that EU law would, at least temporarily, remain in place after UK withdrew from the EU. She said:

“The same rules and laws will apply on the day after Brexit as they did before. And it will be for parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.”

May also agreed with Chancery Lane’s calls for collaboration in policing, security and criminal justice saying: ‘I want our future relationship with the EU to include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies.’

It should be noted that whilst Mrs May might have a stance on the legal issues and ramifications of the vote to Leave, she must acknowledge the position of the EU, and the Member States who will form a united bloc during the negotiation period.

Indeed, Joseph Muscat, Prime Minister of Malta – which has assumed the EU’s rotating Presidency – recently stated that EU law will continue to apply in the UK as an essential part of any transition deal. He stressed that the writ of the EU court was an essential part of any deal to smooth the path to Brexit, saying:

“It is not a transition period where British institutions take over, but it is a transition period where the European court of justice is still in charge of dishing out judgments and points of view.”

Interestingly, whilst the EU’s chief negotiator, Michel Barnier, has spoken in private about avoiding an overly comfortable transition, Mr Muscat’s comments marked the first time an EU leader has publicly stated that the CJRU must be part of a transitional deal.

Clearly, EU law and the CJEU will play an important role during the Brexit negotiations. So, law students – expect to still be subject to studying EU constitutional law for a while yet.