Government says No Parliamentary Vote Before Triggering Article 50

Posted on 27 Aug 2016 by Brick Court

Martin Chamberlain QC

The Government yesterday indicated for the first time that there will be no Parliamentary vote before triggering Article 50.

http://www.telegraph.co.uk/news/2016/08/26/theresa-may-will-trigger-brexit-negotiations-without-commons-vot/?utm_source=dlvr.it&utm_medium=twitter 

This means that the result of the various judicial review claims due to be heard by a Divisional Court in London in October (reported on this blog here), and by the High Court in Northern Ireland (here), will be crucial. These claims are likely to end up in the Supreme Court before Christmas.

Article 50 Brexit challenge in Northern Ireland

Posted on 24 Aug 2016 by Brick Court

Maya Lester QC

We have reported on this blog (e.g. here) on the judicial review proceedings that are underway challenging the Government’s ability to trigger Article 50 of the EU Treaty without recourse to Parliament. Proceedings have now been brought in Northern Ireland too (press release here); the case was lodged in the High Court in Belfast on Friday (19 August 2016).  The claimants are (among others) members of the Northern Ireland Assembly, people with associations with the voluntary & community sector, and human rights organisations.  The press release states that the claim differs from the judicial reviews brought in the Divisional Court in London in that (for example) they raise issues of Northern Irish constitutional law, the Belfast-Good Friday Agreement, and EU law incorporated into the law of Northern Ireland by the European Communities Act 1972.

Brexit seminars

Posted on 09 Aug 2016 by Brick Court

Brick Court Chambers presents a series of seminars on the legal implications of Brexit.

Location: The Law Society, 113 Chancery Lane, London WC2A 1PL from 6pm:

• Tuesday 4 October 2016: International trade & sanctions
• Monday 17 October 2016: Jurisdiction & choice of law
• Tuesday 1 November 2016: FRAND, pharmaceuticals & intellectual property
• Thursday 10 November 2016: Banking & financial services
• Tuesday 22 November 2016: Competition law
• Tuesday 6 December 2016: National security, data protection & surveillance

Registration details and further information will follow in September

Brexit and Jersey, Guernsey and the Isle of Man

Posted on 03 Aug 2016 by Brick Court

Paul Bowen QC

Prime Minister Theresa May’s confirmation last week that the Crown Dependencies of Jersey, Guernsey and the Isle of Mann will be involved in Brexit negotiations has been welcomed by senior politicians from the islands.

The Crown Dependencies of Jersey, Guernsey and the Isle of Man are not part of the UK but are self-governing possessions of the Crown (defined uniquely in each jurisdiction) with their own constitution, legislature and laws. The Crown (through the UK government) may legislate for the islands by Acts of Parliament or Order in Council and is responsible for their foreign affairs, including the making and breaking of the EU Treaties, but these powers are subject to important constitutional limitations.

The Crown Dependencies and their citizens have different but nevertheless important Treaty rights and obligations arising from their relationship with the EU which are also affected by Brexit. By virtue of Article 355(5)(c) TFEU and Protocol 3 to the UK’s original Accession Agreement the Crown Dependencies are part of the EU for the purposes of free movement of goods but not of services, people or capital. Effect is given to these treaty arrangements by local legislation: for example, in Jersey by the European Communities (Jersey) Law 1973, which operates in a materially identical manner to the UK’s 1972 Act.  Residents do not enjoy full EU citizenship rights, although the vast majority of the population are also British citizens by virtue of their parents or grandparents or past residence in the UK. They are therefore EU citizens with the right to move, settle and work freely within the EU.

There remain sensitivities over Brexit in the relationship between the UK and its Crown Dependencies. Unlike Gibraltar, citizens of the Channel Islands and the Isle of Man were not entitled to participate in the EU referendum. British citizens resident in the islands (the vast majority) were subject to the same rule as other expatriate British citizens, which required the individual to have been resident in the UK within the last 15 years to qualify. Historically there have been tensions over the constitutional relationship between the UK and the Crown Dependencies and the extent to which the UK can legislate for the islands without their consent. In Jersey this has led to the introduction of a statutory requirement that the States, its legislative assembly, be given the opportunity to signify their views in respect of any legislation of the UK Parliament that is intended to apply to Jersey.

It remains moot whether and at what stage the Brexit process would require the UK to seek the views not only of the governments but also of the legislative assemblies of each of the Crown Dependencies. Although the assemblies could not veto Brexit it would provide an important opportunity for the islands’ democratically elected representatives to debate and express their views about their continuing relationship with the EU. However, Theresa May’s recent announcement is likely to allay many fears and may head off the prospect of litigation from the Crown Dependencies akin to that in the UK currently before the Courts under Article 50 TEU.

Applicable law in tort and Brexit: Back to the PIL(MP)A 1995 by default?

Posted on 02 Aug 2016 by Brick Court

Sarah Ford

Previous blog posts on “Jurisdiction and Brexit” and “Contractual proper law and Brexit” have considered the possibility that when the UK leaves the EU, questions of jurisdiction and the law applicable to contractual obligations might fall to be determined by default by rules set out in the Brussels and Rome Conventions respectively. This post considers which rules might apply to determine the law applicable to tortious claims post Brexit.

The law applicable to claims in tort in respect of damage arising on or after 11 January 2009 is currently determined by the rules contained in the Rome II Regulation (Regulation (EC) No 864/2007). However, the Rome II Regulation will cease to apply in the UK post-Brexit.

Assuming that Parliament does not choose to enact new rules post-Brexit, the law applicable to claims in tort will be determined by the rules set out in Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“PIL(MP)A 1995”).

Section 9(1) PIL(MP)A 1995 provides that the rules in Part III apply for choosing the law to be used for determining issues relating to tort. Section 15A provides that nothing in Part III applies to affect the determination of issues relating to tort which fall to be determined under the Rome II Regulation. Part III PIL(MP)A 1995 therefore already continues to apply in respect of tortious claims which fall outside the temporal or material scope of the Rome II Regulation. However, once the Rome II Regulation ceases to apply in the UK altogether, Part III PIL(MP)A 1995 would by default determine the law applicable to all tort claims save for defamation (which is excluded by virtue of s 13 PIL(MP)A 1995 and is governed by the common law rules).

Unlike the Rome II Regulation, which, in addition to a general rule, contains specific regimes applicable to individual categories of tortious liability such as product liability, competition, environmental damage, intellectual property, etc, Part III PIL(MP)A 1995 contains a general rule (s 11) and provision for displacement of the general rule (s 12) which apply equally to all categories of tortious claims. The effect of this “default option” would therefore be what might be thought to be something of a retrograde step from a more specific regime tailored to individual categories of tortious liability back to a one-size-fits-all approach to applicable law.