Legal Analysis: Factually Analysing Theresa’s Tough Talk on Terrorism, ‘Disruptive and Investigatory Powers’ and Human Rights.

This post is by Dr Phil Glover.

The recent tragic upsurge in terrorist activity in England has been accompanied by significant media and social media hyperbole. Stripping away the regrettable politicking and naked electioneering underpinning this is part of the exasperated academic lawyer’s job.

This short piece outlines and comments on current UK law as it stands surrounding one particular Theresa May statement made shortly after the dreadful terrorist murders in Manchester and London:

‘I’m clear: if human rights laws get in the way of tackling extremism and terrorism, we will change those laws to keep British people safe.’

Examples of the hyperbole that followed include the Guardian headline May: I’ll rip up human rights laws that impede new terror legislation and the Express headline I’ll ditch human rights laws to KICK OUT jihadis, says Theresa May in fight against terror. Election fervour meant the Prime Minister’s ‘if’ relating to ‘human rights laws’ became a manifesto-esque commitment to rip them up or ditch them.

We dull law scholars (I’m speaking for myself) prefer facts proven by evidence. A fundamental rule of evidence is that oral evidence tendered by the original source carries more weight than hearsay tendered by third parties. Hence the reason Theresa’s original statement is reprinted above. What she said was that ‘if human rights laws get in the way…’ not that they do.

For legal analysis purposes however (that’s what we do at Aberdeen), we firstly ask, ‘What laws tackle extremism and terrorism?’ We then ask, ‘What did Theresa May mean by ‘human rights laws?’ The legal question can then be framed as, ‘Do human rights laws get in the way of counter-extremism and counter-terrorism laws?’ A final question might then be, ‘Can Theresa May change human rights laws?

UK law ‘tackling extremism and terrorism’

If students were asked in an examination question along the lines of, ‘Describe the UK legislation that tackles extremism and counter-terrorism’, a good answer would be lengthy. Successive UK Governments since at least the era of IRA terrorism and the pre-internet incitement to hatred and violence era have generally been voted in on the back of tough political rhetoric about tackling these issues. This has seen an exponential mutation in the legislative frameworks regulating counter-terrorism, surveillance/information acquisition and prejudice-crime prevention. An examination-standard ‘statute by statute’ exposition is inappropriate for this forum, but thankfully the recent useful work of ‘jargonistas’ means that these huge State national security resources can be summarised as ‘disruptive and investigatory powers’ and ‘hate crime’ measures. The debatably equally useful ‘Transparency’ agenda also means that summaries of the relevant frameworks can be found in the Home Office, Disruptive and Investigatory Powers Transparency Report 2017.

It is somewhat surprising to law scholars to read of even an inference from a long-serving Home Secretary and latterly Prime Minister that human rights laws might ‘get in the way’ of terrorism legislation. Such legislation has largely been subject to robust independent review since 1978 and this has been enshrined in statute since 2005.

Although not explicitly tasked with assessing the tensions between ECHR considerations and counter-terrorism provisions, it is unthinkable that any of the senior legal counsel appointed to the role thus far has not advised successive governments and Home Office personnel as to where the correct balance requires to be struck. No independent reviewer has ever received public criticism from any government of any persuasion in this regard.

Indeed, such was the reputation for independence and quality of advice provided by David Anderson QC (Independent Reviewer between 2011 and 2017) that he and his team were additionally asked to review (and now continue to review on a statutory basis) UK surveillance legislation following the 2013 Edward Snowden disclosures. His 2015 report ‘A Question of Trust’ was universally acclaimed and informed the drafting of the Investigatory Powers Act 2016 (IPA). There is no little irony in the fact that this Act constituted a ‘transparent’ consolidation, expansion and entrenchment of all the previously disparate and occasionally secret state surveillance powers that Snowden et al sought to roll back. There is further irony in the fact that the IPA 2016 (heartily sponsored and endorsed by Theresa May) faces a significant legal challenge on the basis that it disproportionately infringes ECHR rights, yet may now constitute part of the counter extremism and counter-terrorism framework she feels is constrained by human rights considerations! This may be because of the nascent (and somewhat ill-informed) policy of attaching blame for terrorism and extremism on internet service providers, despite the existence of huge internet surveillance powers in the IPA 2016 and its inherent compelled compliance requirements placed on those companies controlling communications infrastructure.

Counter-terrorism and extremism legislation is reinforced by CONTEST, the UK Government Counter-terrorism Strategy (available here).  It is extremely difficult to see how, in legal terms, any aspect of UK human rights legislation impedes this use of ‘soft power’.

UK ‘Human Rights laws’

Law students at Aberdeen soon become au fait with the factual reality of the UK being a signatory to the 1950 European Convention on Human Rights [ECHR] which, since October 2000, has legal effect in the UK via the Human Rights Act 1998 (HRA). This requires that ‘so far as it is possible to do so, [UK] primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. Where it cannot be so read, declarations of incompatibility may be made.

This generally means that UK residents can potentially rely on the UK courts to protect their individual rights, and where disruptive and investigatory powers (discussed above) such as the infamous, post 9/11, Anti-Terrorism, Crime And Security Act 2001 (ATCASA) section 23 (powers enabling indefinite detention of terrorist suspects) are brought to judicial review, as in A & Others v Home Secretary (2004), UK courts have not held back from doing so.

Yet sections 3 and 4 of the Human Rights Act are open to potential criticism in that they deal with a retrospective approach to ensuring that UK law, as enacted, complies with the ECHR. Indeed the example above meant that the ATCASA 2001 had been in place for three years before the House of Lords declared s23 incompatible. Politicians behind the enactment of such powers (like Mrs May) might therefore feel justified in criticising the HRA for enabling the retrospective undermining of their parliamentary sovereignty and legislative scrutiny (other public law student favourites) as part of the separation of powers.

Closer scrutiny of the HRA however, shows that it also places a prospective approach to Parliamentary procedure, in that section 19 mandates (without exception) a Minister of the Crown in charge of a Bill passing through both Houses of Parliament, before second reading of the Bill, to (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.

On the surface therefore, given Theresa May’s roles in successive Governments since 2010, she has presided over the enactment of all counter terrorism and counter extremism legislation in that period, all of which has been signed off as human rights compliant in accordance with the HRA 1998, s19. Only surveillance legislation has been subject to significant retrospective human rights challenges from the privacy and civil libertarian lobby and this on the basis that, despite her Government signing the pre-Act Bill off as ECHR compatible and it receiving Royal Assent, the final Act infringes ECHR rights such as Article 8. There has never been a challenge on the reverse basis, i.e. that human rights considerations actually impede the efficacy of an Act of Parliament.

I am not alone in finding no evidence whatsoever that human rights laws in any way get in the way of UK measures (statutory or otherwise) to counter extremism or terrorism. Given the strong chance of success of a legal challenge seeking to roll back some of the powers within the IPA 2016 on the basis of EU jurisprudence to date, only a fool would consider altering the single human rights law we have (the HRA 1998) to somehow ensure that counter extremism or counter terrorism powers can bite harder. Brexit means Brexit, but the UK remains in the ECHR. Mrs May appears no fool in the eyes of academic scrutiny, but although her remarks quoted herein may undoubtedly have been embellished by others for their own purposes, she may yet come to feel somewhat foolish for having made them in the first place. Politicians attack the laws they themselves drafted and enacted at their peril.

The Brexit Case: The Reasoning, Implications and Potential Consequences of the High Court’s Judgment

This post is by Dr Robert Brett Taylor. It is an expanded version of his note that appeared in the Press & Journal on Friday 4 November 2016.

Following the decision of 52% of the UK electorate to exit the European Union (EU) on 23 June 2016, Prime Minister Theresa May has been steadfast in her belief that the power to initiate the UK’s exit from the EU lay with the Government under the ‘royal prerogative’ and not with Parliament. On Thursday 3 November 2016, however, the High Court of Justice in England gave its highly anticipated judgment in the Brexit Case (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)), ruling that the UK Government must seek parliamentary approval before exiting the EU. This blog post will briefly outline the reasoning of the High Court in reaching its decision, as well as its implications and potential consequences.

Justiciability and the Irrevocability of Article 50

Before considering the reasoning of the High Court, two points must be stressed.

Firstly, all parties to the case, including the Government, accepted that the matter before the Court was entirely justiciable. In other words, that it concerned a legal matter that the courts are best placed to decide.

Secondly, the case proceeded on the basis that Article 50 – the legal mechanism by which a Member State may formally leave the EU – once triggered, could not be revoked.  In other words, the UK will be unable to change its mind and stop Brexit once notice has been given under the provision. Although the accuracy of this interpretation has been questioned on this blog, it must be stressed that the Court did not have to make a ruling on this matter as both parties were in agreement that Article 50 was irrevocable.

The High Court’s Reasoning

The central question before the Court was whether the UK Government can use the royal prerogative to give notice of the UK’s intention to exit the EU under Article 50 as it claimed. The royal prerogative is the body of executive powers held by the Monarch but which is now mostly exercised in practice by Government Ministers.

The High Court rejected the Government’s argument, deciding that the royal prerogative could not be used without parliamentary approval.  According to the Court, triggering Article 50 without Parliament’s approval would have the effect of removing the rights currently enjoyed by UK citizens by virtue of the UK’s membership of the EU both at home and abroad.  Examples include workers’ rights, freedom of movement across the other EU Member States, and the right to vote in elections to the European Parliament. When the UK joined the EU in 1973, Parliament first had to pass the European Communities Act 1972, which gave domestic effect to EU law.  As a result, EU law became part of UK law, and citizens could thereafter bring actions for breach of EU law, including their EU rights, in the domestic courts. The Court decided that, in passing the 1972 Act, Parliament did not intend to allow the UK Government to take away these rights unilaterally.  To do otherwise would be to change the domestic law of the UK as enacted by Parliament, and only Parliament had the power to do so because it was legally sovereign.

The Court’s decision therefore makes it clear that the Prime Minister now needs Parliament’s consent before Article 50 can be triggered.  The implication of the decision is that this approval must take the form of primary legislation, thus making a one-off vote in the House of Commons insufficient.  Unsurprisingly, the decision of the High Court, and the necessity for legislation, could have potentially far reaching consequences.

The Future of Brexit

The High Court’s decision represents a serious setback for the UK Government, and the Prime Minister is already under considerable pressure to concede and comply with the decision. Although the Prime Minister had said that she would trigger Article 50 in March 2017, this looks to be in doubt should she be compelled to put the matter before Parliament for legislative approval.  Whilst this may only result in a delay in the triggering of Article 50, Parliament could also decide to block the UK’s exit from the EU altogether.  Whether or not Parliament would do so, however, is unclear.  Although not legally required to follow the referendum result, political forces both within and outwith Parliament may compel members to go ahead with Brexit, albeit perhaps on terms different from what the current Government wants.

Even if the elected House of Commons consents to any Bill authorising the triggering Article 50, however, Theresa May will likely face strong opposition from the unelected House of Lords.  Because leaving the EU was not a manifesto commitment of Theresa May’s newly-formed Government, the Salisbury Convention will not be engaged, and the Lords will not be compelled constitutionally to approve the legislation as a result. (It will be recalled that conventions are very important to the House of Lords, as I explored in a post on this blog and a related post for the UK Constitutional Law Association.) This may necessitate, therefore, the use of the Parliament Acts 1911 and 1949 to ensure the Bill’s passage through Parliament, which will further delay Brexit.

The UK Supreme Court

Whether or not Parliament will ever be given a say, however, is still far from settled, as the UK Government have said that they will appeal the decision to the UK Supreme Court in the hope that it will be overturned. The case is expected to be heard in December before a panel of 11 Justices for the very first time in history. A judgment is expected sometime in the New Year.  Although the case was heard in England and concerned a matter of English Law, Nicola Sturgeon and the Scottish Government may formally intervene in the legal proceedings. The Welsh Counsel General has indicated his intention to apply to intervene, in accordance with the Government of Wales Act 2006. Withdrawal from the EU will unquestionably impact upon the UK’s devolutionary settlement, and the UK Supreme Court has jurisdiction to decide devolutionary matters.

An Early General Election

Although there is speculation in the media that the Prime Minister could call an early General Election to try and receive a mandate from the public on pursuing her vision of Brexit, it must be stressed that she does not in fact have the power to do so. The Fixed-term Parliaments Act 2011 abolished the prerogative power of the Crown, exercised by the Prime Minister, to call a general election, and gave that power to the House of Commons.  In order to have an election before 2020, therefore, Theresa May must lose a vote of no confidence, or two-thirds of the Commons must agree to call one. Should the Government lose their appeal at the UK Supreme Court, a vote of no confidence in the Prime Minister is possible given the Conservative party’s narrow majority in the House of Commons.

What next?

That is a good question. As noted by my colleague Dr. Justin Borg-Barthet, the one thing we can be sure of is we still cannot be quite sure what Brexit means.

On Tuesday 8 November at 18:00 the University of Aberdeen will be hosting a free guest lecture by Dr. Holger Hestermeyer, How will Brexit Happen? Legal Questions Faced by the UK. Details can be found here.

Yeah but, no but: why the High Court was right and wrong in the Brexit case

This blog post is by Dr. Justin Borg-Barthet.

The High Court decision in Miller (the ‘Brexit case’) was essentially a public law case.  The judgment (PDF) addresses the question of whether the royal prerogative can be exercised to repeal vested statutory rights.  As is well known, the Court found in the negative.  In the Court’s view, therefore, notice of the UK’s intention to withdraw from the European Union requires parliamentary consent.

But the judgment turns on a question of EU law, namely whether revocation of notice of intention to withdraw from the EU is possible.  Here too the Court found in the negative.  Both the claimants and government were of the view that once notice is given under Article 50 TEU, that notice is irrevocable.  In other words, once the UK notifies the European Council that it wishes to withdraw, the UK cannot change its mind and withdraw notification.  Rights derived from the European Communities Act 1972 will be repealed whether Parliament consents or otherwise.

But is the Court correct in its findings regarding Article 50 TEU?  If it is not, its public law findings rest on a false premise and are therefore potentially unfounded.

Article 50 TEU provides as follows:

1) Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2) A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3) The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4) For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5) If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

There is nothing in that article which addresses the question of a change of mind (or heart, as the case may be).  Once Article 50 is invoked, it seems, the process of withdrawal is inexorable.

Yeah but

The High court was correct in its findings, or so it appears at first blush.  Surely if the Member States wished the Treaty to provide for revocation of notice under Article 50, they would have done so.  What is more, if the withdrawing Member State were at liberty unilaterally to revoke its notification of withdrawal from the Union, this would have the practical effect of enabling that State unilaterally to extend the two-year period for withdrawal.  It could revoke notice and start the two-year period afresh at a later date of its own choosing.  Surely, then, unilateral revocation of notice is not allowed.

But it does not necessarily follow that the revocation of notice is impossible.  The Member States are at liberty, should they agree unanimously, to extend the two-year period.  Art 50(3) does not establish a ceiling for the extension of that period.  In the absence of any such limits, it follows that the Member States may extend the period indefinitely.  Effectively, they can agree unanimously to suspend the withdrawal of the Member State.  It would be absurd in such circumstances to argue that the Member States could not formalise an informal suspension of notice to withdraw from the Union.

No but

It appears, therefore, that the High Court was not entirely correct in its findings.  The basic premise that Article 50 is irrevocable is not unimpeachable.  But it does not follow that the rest of the Court’s reasoning is wrong.  The public law reasoning concerns the potential usurpation by government of Parliament’s sovereign right to retain or repeal rights conferred by the European Communities Act 1972.  The power to revoke notification under Article 50 does not reside in the sovereign Parliament of the United Kingdom.  Instead it resides with every other Member State of the Union.  Malta, for the sake of the argument, could choose whether rights conferred on British citizens by the European Communities Act 1972 are to be repealed.

The High Court’s findings are therefore unaffected by the potential flaw in its (and the parties’) reasoning.  If the Court is correct in its reasoning as to the public law question, the judgment remains sound notwithstanding the potential flaw in the interpretation of Art 50 TEU.  Any notification by government of the UK’s intention to withdraw from the European Union divests Parliament of its right to retain or repeal rights conferred by the European Communities Act 1972.

But but

Prof Steve Peers argues, persuasively it is submitted, that the question of revocability of Article 50 is not settled.  Indeed, contrary to the High Court’s ruling and to my own reasoning above, Lord Kerr, the author of Article 50, argues that unilateral revocation of notice is possible. Where there is a question as to the interpretation of EU law, Article 267 TFEU requires a supreme court of a Member State (and the Supreme Court of the United Kingdom still plays that role) to seek interpretative guidance from the Court of Justice of the European Union. If the Supreme Court fails to refer the question, the United Kingdom could be liable to damages under the Kobler doctrine.

There could yet, therefore, be many twists in the tale of Brexit.  All that is certain at this juncture, is that we cannot be quite certain of the meaning of Brexit (means Brexit).

yeah-but-no-but
Image credit – BBC

Exploring and combining the Human Rights Act 1998, intellectual property and EU competition law – while we still can

This blog post is by Dr Abbe Brown, Reader.

The prospect of the UK leaving the EU has, as already explored elsewhere on this blog, significant legal implications. So too would the possible repeal of the Human Rights Act 1998, perhaps to be replaced by a Bill of Rights.  One implication relates to proposals I put forward in my 2012 monograph Access to Essential Innovation and Technology: Intellectual Property, Human Rights and Competition.

These three legal fields of intellectual property (“IP”), human rights and competition were combined in the book as they can be relevant to questions of access to technologies from different perspectives.

Taking access to medicines as an example:

  • IP encourages the developing of new medicines by conferring exclusive rights and the ability to charge licensing fees;
  • the right to life indicates that there should be access to medicines, without money being an obstacle; and
  • competition law, in its prohibition on abuse of a dominant position, objects to an IP owner having too much power.

It is of course possible for these three fields to co-exist and complement each other: IP develops medicines to further the right to life and rewards the activities of innovators, and the ultimate goal of both IP and competition has been argued to be to encourage innovation. Yet conflict is possible; and this can be entrenched by the fact that within the UK jurisdictions there are significant differences in the extent to which each field can be the base of an action.

The book developed a means of enabling these three legal fields to be combined in judicial decision making in the UK, to deliver greater access to technology while still respecting the contribution which IP can make to developing innovation. At the heart of the book’s proposals are firstly a Human Rights Emphasis, which is a framework for enabling courts to consider the wide range of human rights relevant to a dispute to establish what is meant by delivering decisions (in light of the Human Rights Act 1998 and also EU fundamental rights) which are “consistent with human rights”; and secondly there is a new, human rights influenced, approach to the “Euro-defence” (a term explored in this resource from the law firm Slaughter and may (PDF)) and the case law on when refusal to license IP could be an abuse of a dominant position.  These two approaches could lead to courts, in some cases, finding that what seemed to be IP infringement from a pure IP law perspective was not in fact so.  The book then went on to argue that this approach was consistent with UK’s responsibilities to IP owners under the European Convention on Human Rights, and also obligations to protect IP under TRIPS, the IP element of the World Trade Organization  (“WTO”) Agreement. As a result, the approach and the UK would not be vulnerable to challenge at the European Court of Human Rights and through WTO dispute settlement.

The book develops its arguments through several scenarios, across health, communications, and the environment, with a range of outcomes depending on the facts. The proposals have been well reviewed (and also termed “possibly heretical” (Stothers 2013)) and stimulated wide interest among lawyers and IP owners, notably at the Licensing Executive Society International Conference in 2011.

Looking forward it does seem possible that there will be some sort of a Bill of Rights and also be some sort of competition law framework in post-Brexit UK, yet  in these new regimes human rights and competition may not have their present special legal status that has enabled the societal objectives (other than short term reward of innovation) to prevail.

My ongoing work (including blog posts of 26 November 2015, 2 May 2016, and 26 July 2016) explores how the interaction between legal fields can be further developed, including by looking beyond the Human Rights Act 1998 and EU competition law. (This could be serendipitous, given the current political situation.)  For now, the arguments developed remain a valuable tool for experimentation by lawyers and activists who are faced with IP obstacles to using technologies to pursue important goals.

ip-human-rights-and-competition

Brexit and English Jurisdiction Agreements: A Look into the Post-Referendum Legal Landscape

This blog is by Dr. Mukarrum Ahmed from the University of Aberdeen’s Centre for Private International Law

The initial shock at the UK’s referendum vote must be replaced by a reasoned consideration of how best to respond in an uncertain situation. Will it really happen? When will it happen? Will the continuing EU play hardball in negotiations or will it seek to ensure that the UK becomes a good neighbour? What will the post-Brexit UK and EU look like? One decision for those entering into cross border commercial contracts in the post-referendum legal landscape is what to do about an English jurisdiction provision in the contract. The referendum result hasn’t itself changed anything legally, but it may be necessary to invoke these jurisdiction provisions of a contract in two or more years’ time, when the legal framework might be different.

Jurisdictional Principles

The jurisdiction of the English courts and the courts of other EU Member States in civil and commercial matters is currently governed by the Brussels I Regulation (Recast) or the Recast Regulation (EU Regulation 1215/2012). The Regulation provides that a choice of jurisdiction by the parties should be upheld and that judgments given by the courts of one Member State should be enforced in all other Member States. After Brexit, the Recast Regulation will in all probability cease to apply to the UK, which has led some lawyers in continuing EU Member States to promote the idea that commercial litigation that might have traditionally come to the English courts should instead be diverted to the other emerging European centres of international litigation. English lawyers are naturally perturbed by such a prospect. What the post-Brexit jurisdictional and enforcement landscape will look like is uncertain. Lawyers can debate enthusiastically whether judgments given in proceedings commenced before Brexit will continue to be enforceable after Brexit, whether the 1968 Brussels Convention will be restored, whether the pre-Brussels Convention bilateral treaties between the UK and individual Member States will revive, whether the UK has a right to adhere to the Lugano Convention or, if not, whether one or more of the existing Contracting States will block the UK’s doing so. Interesting though those debates will be, they do not reduce the uncertainty and offer scant help to those who must make a decision now.

The Starting Point on Jurisdiction

The first question is what the jurisdiction agreement in any particular contract is trying to achieve. If a fundamental objective of the jurisdiction clause is to provide a judgment that will be enforceable throughout the EU, then the uncertainties of the post-referendum world come into play (as illustrated in this earlier post by Dr. Jon Fitchen). There is a real risk that, with the departure of the Recast Regulation and the uncertainties over Lugano and other issues, an English judgment will not be readily enforceable in the continuing EU and vice versa. Possible responses where enforceability of a judgment in the continuing EU is an important factor are discussed below.

There are, however, many reasons for a choice of jurisdiction save for the enforceability of the resulting judgment within the continuing EU. For example, the party against whom enforcement is likely to be required may not have any accessible assets in the EU. Most obviously, the party might have assets in the UK or otherwise outside the EU, in which case the issues will be the same pre-Brexit as post-Brexit. In some instances, enforceability might not be a major issue. For instance, a party may have sufficient security against which to discharge its counterparty’s obligations within the jurisdiction. Or a party may conclude that it is more likely to be the sued rather than sue the counterparty. Or enforcement risk may simply not be a big factor for the particular counterparty. In these situations, a jurisdiction clause may fulfil a more defensive role of ensuring that the party can only be sued in a court in which it has confidence. If so, again the considerations may not have changed significantly as a result of the referendum vote. Post-Brexit, a jurisdiction clause in favour of the English courts may not require courts in EU Member States to defer to the English courts in quite the same way or for the same reasons as now, but the counter may be that, if so, the English courts will, contrary to the current position, be able to grant anti-suit injunctions to restrain a party from pursuing proceedings in an EU court. A party with any business, presence or assets in the UK cannot afford to ignore an injunction.

EU Enforceability: Solutions

If enforceability of a judgment throughout the continuing EU is important, there are four solutions in circumstances where, pre-referendum, jurisdiction would have been given to the English courts.

First, give jurisdiction to the courts of an EU Member State or a Lugano Convention Contracting State (Norway, Iceland and Switzerland). This depends upon being comfortable with proceedings in that court, including as to its procedures, costs, speed and outcomes. This is already sometimes done in, for example, security agreements where the security in question is located in another EU Member State.

Second, give non-exclusive jurisdiction to the English courts. This cautious approach hedges the parties’ choice of jurisdiction and allows the position to be reconsidered at the time when legal proceedings are commenced. If at that time enforcement remains important and an English judgment is enforceable in the EU, then the English courts can be used; if, however, an English judgment is not enforceable in the EU, it will allow the use of other courts. A variant of non-exclusive jurisdiction clauses is the asymmetric or unilateral jurisdiction agreement, which is commonly used in cross border finance contracts. This binds one party to sue exclusively in the primary non-exclusive forum, but allows the other party to commence proceedings in that court or in any other court of competent jurisdiction. The French Cour de cassation has cast some doubt on the validity of these clauses under Article 23 of the Brussels I Regulation in Mme X v Rothschild (26 September 2012) and Article 23 of the Lugano Convention in ICH v Credit Suisse (25 March 2015). However, the position has been somewhat ameliorated by the most recent Cour de cassation decision in Apple Sales International v eBizcuss (7 October 2015). Moreover, doubt as to a matter of EU law may be less significant if the UK is outside the EU because the English courts have traditionally enforced these clauses. It could, however, affect EU Member States’ courts’ approach to the jurisdiction clause, but that is in any event a matter of some uncertainty until finally resolved by the Court of Justice of the European Union.

Third, arbitration is a possibility. Arbitration is already commonly used if enforcement is important and the counterparty has assets in a location where an English judgment is not enforceable because of the extensive reach of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. All EU Member States are parties to the New York Convention, which provides for the enforcement in participating states of an arbitral award given in another participating state. An arbitration seated in a participating state, whether the UK, a continuing EU Member State or elsewhere, should therefore be able to give an award enforceable throughout the EU.

Fourth, parties could continue with whatever their current policy is. The massive uncertainties surrounding what Brexit will bring could be treated as meaning that the risks of change are as great as the risks of no change.

EU Enforceability: The Hague Convention on Choice of Court Agreements

There is another possible solution to the problem of enforceability of a judgment throughout the EU. This is to give the English courts exclusive jurisdiction. The potential benefits of this route arise because the EU is a party to the Hague Convention on Choice of Court Agreements. In addition to the EU, Mexico and most recently Singapore have signed and ratified the Convention, which is therefore currently of limited significance in global terms. The Convention does, however, provide that all Contracting States must give effect to exclusive jurisdiction agreements (Articles 5 and 6) and enforce the resulting judgment given by the chosen court (Article 8). The UK is not currently an individual Contracting State to the Convention because the Convention’s subject matter falls within the exclusive competence of the EU. There is divided academic opinion on the issue whether the UK is bound by this international treaty post-Brexit without any need for the UK to ratify the treaty afresh as it might be argued that the UK is only bound by the treaty while it is a Member State of the EU. Assuming the UK would not be bound, the UK would still be entitled to sign and ratify the Convention in order to bring it into force immediately on the UK’s leaving the EU or soon afterwards; the consent of the existing parties is not required. If the UK were to do so, a judgment given by an English court that has taken jurisdiction under an exclusive jurisdiction clause will again be enforceable throughout the EU. This position is not, however, without potential transitional wrinkles. Article 16 of the Convention states the Convention applies to exclusive jurisdiction agreements concluded after its entry into force for the state of the chosen court and that the Convention does not apply to proceedings instituted before its entry into force in the state of the court seised. The Convention has, however, already entered into force in the UK because of the EU’s ratification of the Convention.

Suppose that a contract contains an English exclusive jurisdiction clause but that, post-Brexit, a court in an EU Member State is seised of proceedings falling within the scope of that clause. What will the EU Member State’s court do, assuming that the Hague Convention on Choice of Court Agreements is not applicable?

Post-Brexit, so far as the continuing EU is concerned the English courts will (subject to any future contrary arrangements with the EU) be in the same position as any other courts outside the EU. The commercial expectation might be that the courts of EU Member States would give effect to the parties’ wishes, but it is not entirely clear that this will necessarily be the case. Article 33 of the Recast Regulation provides that courts in EU Member States may stay proceedings in favour of courts outside the EU if three conditions are met: first, the non-EU court was first seised; secondly, the non-EU court can give a judgment capable of enforcement in the EU Member State in question; and, thirdly, a stay is necessary for the proper administration of justice. If these three conditions are met, then the court in the EU Member State can stay, and might generally be expected to stay, proceedings in favour of the court outside the EU. But what if any of these conditions is not met (for example, because the court in the EU Member State was seised first)? It is arguable that, despite the fact that the agreement between the parties has been broken by one party starting proceedings in an EU Member State’s courts, the courts of EU Member States cannot stay their proceedings in favour of the non-EU court. Before Article 33 was added to the Recast Regulation, there was no explicit provision addressing the position of non-EU courts. There is evidence of some Member State court’s practice which gives effect to jurisdiction agreements in favour of non-EU courts under the guise of giving ‘reflexive effect’ to the Regulation’s provisions regarding jurisdiction clauses. However, as the Recast Regulation now specifically addresses the position of non-EU courts, the convenient legal fiction of the doctrine of reflexive effect may be harder to justify in principle.

Ultimately, the Court of Justice of the European Union will have to determine the most appropriate approach in these circumstances. Even if the courts of an EU Member State consider that they have no power to stay proceedings in favour of the English courts despite an exclusive jurisdiction clause in favour of the English courts, the English courts may not be without a pragmatic remedy. Under the Recast Regulation, the English courts cannot grant an anti-suit injunction to restrain a party from pursuing proceedings in the courts of another EU Member State bought in breach of the jurisdiction agreement (Case C-159/02 Turner v Grovit [2004] ECR I-03565). However, if the UK is no longer an EU Member State, its mutual trust constraints will no longer apply and the English courts would again be free to grant, and would generally grant, anti-suit injunctions ordering parties to stop legal proceedings brought in breach of contract. Failure to obey an injunction would constitute contempt of court, which could lead to a fine, imprisonment and, ultimately, sequestration of assets. A party with any presence or assets in the UK would have to comply with the injunction or reconcile itself to the loss of those assets. If, contrary to the assumption made above, the Convention was applicable, the courts of an EU Member State that are seised of proceedings in breach of an exclusive jurisdiction agreement should defer to the English courts according to Article 6 of the Convention. Moreover, the Convention’s system of qualified mutual trust may also permit the use of anti-suit injunctions, the damages remedy for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such relief furthers the objective of the Convention.

 

Article 50, the Articles of Union and using the Royal Prerogative to end the union between Scotland and England

This blog post is by Scott Styles.

The use of the prerogative power to invoke Article 50 of the TEU has been much discussed since the Brexit vote on 23 June 2016 (including this initial post on the matter and a follow-up post). The present author believes that only an Act of Parliament can be used to invoke Article 50 but if I am mistaken then a very interesting route to Scottish independence potentially opens up.

If the UK government were to persist in arguing that the Prerogative can be used to trigger Article 50 and that submission were to be upheld by the courts then that will logically lead to a conclusion that Westminster will not welcome: that the Prerogative can be used to dissolve the Union between Scotland and England.

To understand why we must look at the often overlooked legal mechanics of the union between Scotland and England because there is a strong analogy with the Articles of Union 1706 and the Acts of Union 1707 and the Treaty of Accession to the EC and the European Communities Act

Creating and Dissolving Unions: International Treaties and Acts of Parliament

The terms “Articles or Treaty of Union” on the one hand and “Acts of Union” tend to be used interchangeably by authors discussing the Union of Parliaments, for the understandable reasons that their substantive texts are the same, however legally they are quite different types of document. The Articles of Union signed on 2 July 1706 were an international treaty agreed between the two sovereign kingdoms of England and Scotland with the respective negotiating “teams”  acting under the prerogative. However, this 2 July treaty did not create the Union of Scotland and England  any more than the  accession treaty on 22 January 1972 between UK, Denmark and Ireland with the existing EC members signed by the then Prime Minster, Ted Heath, made the UK a member of the Common Market. The UK only became a member of the EC  after the European Communities Act 1972 had been passed  on 17 October 1972 and came into  effect on 1 January 1973. Likewise, Scotland and England were not conjoined until the passing of both the English and Scots Acts of Union which ratified the Articles of Union of 1706. This distinction between treaty and act is made very clear in the preamble to the 1707 (Scots) statute:

Whereas Articles of Union were agreed on the Twenty Second day of July in the Fifth year of Your Majesties reign by the Commissioners nominated on behalf of the Kingdom of England under Your Majesties Great Seal of England bearing date at Westminster the Tenth day of April then last past in pursuance of an Act of Parliament made in England in the Third year of Your Majesties reign and the Commissioners nominated on the behalf of the Kingdom of Scotland under Your Majesties Great Seal of Scotland bearing date the Twenty Seventh day of February in the Fourth year of Your Majesties Reign in pursuance of the Fourth Act of the Third Session of the present Parliament of Scotland to treat of and concerning an Union of the said Kingdoms

And Whereas an Act hath passed in the Parliament of Scotland at Edinburgh the Sixteenth day of January in the Fifth year of Your Majesties reign wherein ’tis mentioned that the Estates of Parliament considering the said Articles of Union of the two Kingdoms had agreed to and approved of the said Articles of Union with some Additions and Explanations And that Your Majesty with Advice and Consent of the Estates of Parliament for establishing the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland had passed in the same Session of Parliament an Act intituled Act for securing of the Protestant Religion and Presbyterian Church Government which by the Tenor thereof was appointed to be inserted in any Act ratifying the Treaty and expressly declared to be a fundamental and essential Condition of the said Treaty or Union in all times coming the Tenor of which Articles as ratified and approved of with Additions and Explanations by the said Act of Parliament of Scotland follows

If it is correct that the mere use of the Royal Prerogative is sufficient legal authority to trigger Article 50 of the TEU and so revoke and repeal the European Communities Act 1972 then it would seem to follow by analogy that the Royal Prerogative could be used to in the context of Scotland leaving the UK, because  it is submitted that if the Prerogative can be used to invoke Article 50 which is not an international treaty but part of the domestic law and so effectively repeal the European Communities act 1972 the same process could be used by the Scots government to revoke the Scots Act of Union of 1707.

This could be by the Scottish Government using the Prerogative power to revoke the international treaty (the Articles of Union) and thence by implied repeal revoke the Act of Union. This in turn naturally raises the question of whether the Scottish First Minister could use the Prerogative in this way.

In principle I do not see why this would not be possible.

First, the pre-1707 Scots monarch enjoyed the Prerogative and the Articles of Union were made under the prerogative.

Second, the post-devolution Scots monarch is bound by the advice she receives from the Scottish Government.

If the Scottish Parliament, after a referendum vote for independence, passed an Act instructing the First Minister to revoke the Articles of Union or if the First Minister were simply to use her right to advise the crown, the sovereign would be obliged to comply. Once the Articles are revoked, so too would the Act of Union be revoked. Thus Scotland could leave the Union without the permission of the Westminster Parliament and Westminster could not stop it!

Readers of this post will  be wondering how this works in terms of the devolution settlement. Is the constitution not a reserved matter under the Scotland Act 1998? Let us consider the relevant provisions of the 1998 Act, namely section 30 and Schedule 5.

SCHEDULE 5 Reserved matters

Part I General reservations

The Constitution

1 The following aspects of the constitution are reserved matters, that is—

(a) the Crown, including succession to the Crown and a regency,

(b) the Union of the Kingdoms of Scotland and England,

(c) the Parliament of the United Kingdom,

(d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,

(e) the continued existence of the Court of Session as a civil court of first instance and of appeal.

2(1) Paragraph 1 does not reserve—

(a) Her Majesty’s prerogative and other executive functions,

(b) functions exercisable by any person acting on behalf of the Crown, or

(c) any office in the Scottish Administration.

Note that under paragraph 2(1)(a) the Prerogative is expressly declared not to be reserved. Therefore there seems nothing in law to prevent the Scottish Government exercising their Prerogative powers to revoke the Articles of Union and hence the Act of Union!

Perhaps those arguing in favour of the Prerogative’s role in the UK exiting the EU should think carefully about its potential role in Scotland exiting the UK, as the royal prerogative might be an equally powerful means for the Scots people to leave the UK. This analysis of the Prerogative would allow Scotland to leave the UK without the permission of the British Government and Parliament. A sovereign people would thus achieve their independence by means of the prerogative powers of their sovereign.

Article 50, the Prerogative and the Implied Repeal of Statutes

This blog post is by Scott Styles.

In my previous blog post I argued:

  1. Parliament is sovereign and only an Act of Parliament can repeal an existing Act of Parliament.
  2. The UK entered the European Union by the passing of the European Communities Act 1972.
  3. To trigger an Article 50 of the TEU withdrawal from the European Union is to begin a legal process which automatically ends 2 years later with the withdrawal of the UK from the EU.
  4. If the Article 50 request was made by the Prime Minister acting under the Royal Prerogative to negotiate and withdraw from international treaties this would be ultra vires (that is to say, beyond what is competent) for two reasons. First, it is inappropriate because the TEU is not an international treaty but rather a part of the domestic law of the UK Second, it would mean that the Government was by pure executive fiat de jure and de facto revoking the European Communities Act 1972 without having first obtained the necessary Act of Parliament.

I would now like to advance a further arguments in favour of this argument, based on the abolition of the principle of the implied repeal of statutes

The courts have made it clear in Thoburn v Sunderland City Council [2002] 2 WLR 247 that the old doctrine of “implied repeal” where two Acts of Parliament conflict, as found in Ellen Street Estates v Minister of Health [1934] 1 KB 590, no longer applies. In Thoburn Laws LJ set out a hierarchy of norms and made it clear that constitutional statues, one of which he expressly stated was European Communities Act 1972 was not subject to implied repeal by a subsequent act:

In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental […] And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

If a subsequent Act of Parliament cannot repeal the European Communities Act 1972, how can it possibly be argued that the use of the Prerogative, a weaker source of law than an Act, can be used to impliedly revoke an Act of Parliament?

I therefore repeat my simple proposition: only a subsequent express revocation of the European Communities 1972 Act is sufficient legal authority to trigger Article 50.