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.

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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.

Brexit and EU private international law: cross-border judgments – unintended consequences

This blog post is by Dr. Jonathan Fitchen.

The UK’s vote for Brexit has thrown up a huge range of complex legal problems concerning the disengagement of the UK from the European Union. One such problem concerns the effect of Brexit on existing private international law, also known as ‘conflict of laws’,  in the UK. These are issues of particular interest and concern to the School of Law, especially those in the University of Aberdeen’s Centre for Private International Law. This interest is not simply an academic one, as our colleagues have at various times directly advised on and participated in the development of the law in this area.

Private international law (PIL) deals with questions that arise when a civil case between private parties also involves a foreign element. PIL provides the answers to basic legal questions arising from the foreign element including:

Can I bring my case before my local court (or not)?

If I can do so, what law should be applied to the dispute by that court?

If I win, can I get my judgment enforced abroad?

Does any earlier or competing foreign litigation affect or stop my case?

The EU has put in place many PIL Regulations to replace the different complex national answers to these basic questions with harmonised answers (in different Regulations) applying across all (or very nearly all) EU Member States. These PIL Regulations simplify the otherwise very complex interactions of different systems of PIL (each with different approaches to, and answers for, the questions noted above) and also simplify many of the complex legal issues arising in PIL that affect the lives of ordinary private individuals and businesses in Scotland, England and Wales and Northern Ireland.

Given our present dependency in the UK on EU PIL Regulations, the effect of a ‘clean-break’ Brexit on PIL in England and Wales, in Scotland and in Northern Ireland will be profound: the EU PIL Regulations that provide many aspects of what we in the UK presently understood to be ‘our’ private international law will cease to apply unless positive legislative action is taken by the Scottish Government (PIL is a devolved matter) and by the Westminster Government to off-set this eventuality post Brexit. This might sound technical (it is) and abstract (it isn’t) but the basic point as it concerns the cross-border enforcement of ‘UK’ judgments in the rest of the EU can be simply illustrated with a before and after example.

Example

FACTS – An English company sells goods to a German company. The contract calls for the German company to collect the goods from the factory in England with payment due within one week of collection: though this arrangement has worked well in the past, this time the English company is not paid by the due date. The English company goes to the English court and wins a judgment that obliges the German company to pay it the money due and also its costs. The problem is that the goods and the German company are both in Germany.

NOW – The English Company can quickly and cheaply automatically enforce the English judgment against the German company using the EU’s Brussels Ia Regulation (Regulation 1215/2012): there is no need to go to court in Germany to ask permission to enforce because the EU Regulation means that the incoming UK judgment has to be treated as if it is an enforceable German one. The EU’s Brussels Ia Regulation has streamlined the enforcement process by presuming that the foreign (English) judgment is valid (etc.) and by reducing to an absolute minimum any possibility of the German company challenging the enforcement of the UK judgment in Germany.

AFTER BREXIT – The EU’s Brussels Ia Regulation will no longer technically apply to the English claim, nor to the overseas enforcement of the English Judgment as far as the other 27 EU Member States are concerned. If nothing has been done by the Scottish and Westminster Governments to avoid this prior to Brexit, it will be necessary for the English company to hire German lawyers to ask the German court to decide that the English judgment is capable of being recognised as a foreign judgment by the non-Brussels Ia PIL rules of the German legal system and then, assuming that the English judgment is so recognised, that it is then capable of actual enforcement in Germany. No part of this procedure will be automatic and neither will there be any presumptions that the English judgment is valid. It may well be possible that the enforcement of the English judgment will be obstructed by the un-harmonised German PIL enforcement law. Though post Brexit the precise outcome and legal costs of this example will vary from one EU State to another it is plain that enforcing such a judgment from the UK without the possibility of having recourse to the benefits offered by the EU’s PIL Regulations will take longer and cost more than it does at present.

So what is to be done?  

There is no simple solution to the basic problem that many important areas of ‘our’ PIL in the UK are currently contained in EU Regulations that will, unless action is taken by the Scottish and Westminster Governments, seemingly cease to apply immediately the UK leaves the EU. The seriousness of the issue extends much further than the business dispute in the example above as different EU PIL Regulations presently govern matters as diverse as:

  • cross-border family law (including parental responsibility for children and the payment of maintenance);
  • cross-border civil claims and commercial claims;
  • cross-border insolvencies;
  • what law will be applicable to cross-border disputes over contracts or over tort / delict claims.

If these numerous EU Regulations are allowed to cease to apply at the end of the day before Brexit, we will find ourselves thrown back on domestic civil procedure rules that assume that the EU PIL Regulations still apply when in fact they do not do so: if the legislators do not act to prevent it, the delays, costs and legal problems associated with this uncomfortable reality will become plain whenever a UK judgment concerning a matter formerly governed by an EU PIL Regulation is presented for enforcement elsewhere in the EU.

Some glimmers of hope?

It may be that the legislators in the UK will consult on this matter and then act to minimise the PIL risks of Brexit for their citizens. The Brexit negotiations could – if the matter is placed high enough up on the agendas of each side and is pursued with sufficient determination by the UK – lead to the UK being able to retain the benefits of some of the existing EU PIL Regulations on some sort of a reciprocal basis by also allowing those in the 27 State version of the EU the possibility of using their EU PIL ‘rights’ within the post-Brexit UK.

The UK will replace some EU PIL with PIL derived from Hague PIL Conventions that the UK is already a party to and these Conventions will apply between the UK and the EU (apart from Denmark, in some cases). These Conventions cover child abduction, inter-country adoption, parental responsibility, access, maintenance for children and spouses and exclusive choice of court agreements in commercial cases. There is also the longer term possibility that the ongoing work on the planned global Hague Judgments Convention will succeed (it has already had its first Special Commission in June 2016) and deal with the problem of getting UK judgments recognised in EU States and indeed elsewhere in the world.

What next?

The Scottish Government, the Westminster Government and the representatives in Northern Ireland need to appreciate the nature of the looming private international law problems and to formulate effective strategies to protect their citizens and businesses from the impending uncertainty. The University of Aberdeen’s Centre for Private International Law is looking forward to contributing to that task.

Addendum

The Centre for Private International Law has just published a working paper entitled “Respecting Reverse Subsidiarity is an excellent strategy for the European Union at The Hague Conference on Private International Law: currently being well deployed in the Judgments Project“, by Professor Paul Beaumont. It also considers some implications of Brexit. The final version of that paper will be published in a Polish review: Europejski Przegląd Sądowy, 2016, issue 10 (which translates as “European Judicial Review”).

What is sufficient to constitute an Article 50 decision to leave the EU?

This blog post is by senior lecturer Scott Styles.

The UK stands on edge of the momentous decision to leave the EU. It is therefore vital that the true meaning of Article 50 is understood. In particular it is my contention that this cannot be triggered by the decision of the PM or cabinet but only by Act of Parliament.

Article 50 begins by noting:

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

There are two essential elements here. Firstly, only the State which wishes to leave may make such a decision. Secondly, authority to make such a decision must be “in accordance with its own constitutional requirements.” So this in turn leads us to consider the requirements of the British Constitution. (Article 50 then goes on to say “A Member State which decides to withdraw shall notify the European Council of its intention.” The issue of notification is a matter not considered in detail here.)

In Britain it is Parliament which is sovereign, not the Prime Minister or even the whole Cabinet. The UK entered the EU by means of the European Communities Act 1972. The repeal of an Act of Parliament may only be done by a subsequent Act of Parliament to that effect. As the effect of an Article 50 notification is to trigger a two year timeline at the end of which that even UK would automatically cease to be an EU Member State that would be to nullify the effect of the 1972 Act as a matter of EU law. But as a matter of British law a statute may only be repealed by another statute. It therefore follows as a matter of British law that to have sufficient authority a Prime Minister would need that authority of an Act of Parliament to that effect giving him the authority to make an Article 50 notification and prospectively repealing the 1972 Act with effect from two years of making the notification.

To be clear, I do not think the authority of the House of Commons alone would suffice. What is needed is a statute passed by both Houses of Parliament (Lords and Commons) plus subsequent Royal Assent. There is of course the not insignificant issue of the pro Leave decision in the referendum of 23 June, but whilst that is politically very significant it is not legally enough. To comply with the EU legal requirement of a request “in accordance with its own constitutional requirements” a Prime Minster needs to get an Act through both Houses. As both Commons and Lords contain large Remain majorities this may prove challenging for any Prime Minster to obtain.

There is no doubt that a refusal by Parliament to give effect to the decision of a referendum would cause huge public outcry, even a constitutional crisis, but that crisis would be political not legal. There is already some evident of “buyer’s remorse” and that many Leave voters regret their decision or that many who abstained regret abstaining. There are two possible ways to square the political circle of a Remain Parliament defying the “will of the people” expressed in the recent referendum.

The first, and easiest, would be for Parliament to pass an Act authorising an Article 50 notification and repeal of the 1972 Act but to make the coming into effect of that Act conditional on it being approved by a post-legislative referendum.  There is a strong precedent for such a provision in the Scotland Act 1978. Indeed some might even go so far as to want to a 40% of the electorate rule as well as was found in the 1978 Act, although I personally think that would be going to far.

The second way to establish if it really is the “settled will of the British people” to leave the EU would be to hold a General Election (subject to the operation of the Fixed-Term Parliaments Act 2011) on the express issue of EU membership with every candidate declaring where they stand on the issue of EU membership. This might even result in candidates standing as “Labour/Conservative/LibDem Leave/Remain” candidates. If a pro Leave majority was returned then obviously such a Commons would happily pass an “Article 50 Act” and the Lords would be obliged to defer to the Commons on application of that Salisbury Principles.

There is also the argument that the consent of the devolved assemblies is needed, but this is a constitutional novelty. (This argument has not attracted the unflinching support of constitutional lawyers, or indeed a prominent Scottish National Party politician.) The strength of the argument I am advancing is that it rests on the classical Diceyan understanding of the British Constitution.

Scott describes himself as “a mere private lawyer”, but he hopes this blog post might add something to the emerging debate around Article 50. Further analysis of Article 50, and Parliament’s role in relation to it, can be found at the UKCLA blog and by David Allen Green.

Editor’s note: the initial title of this blog was “What is sufficient to constitute an Article 50 notification to leave the EU?” It was edited on 28 June 2016 to change “notification” to “decision”.

 

 

Expatriates Lose Supreme Court Bid for Right to Vote in EU Referendum

In this post Dr. Heather Green, Senior Lecturer, considers the law setting the franchise for the referendum on the UK’s membership of the European Union, which takes place on 23 June 2016.

Mrs Thatcher’s government was the first to legislate for expatriate voting rights, creating rules in the Representation of the People Act 1985 that permitted citizens overseas to continue to rely on their last UK electoral registration for up to 5 years after leaving for the purposes of voting in Parliamentary and European Parliamentary elections. The time period has since been varied: to 20 years in 1989; and then to 15 years in 2000. The European Union Referendum Act 2015, section 2 adopts this scheme. This was challenged in the courts by expatriates disenfranchised by the rule.

Harry Shindler, a 94 year old Second World War veteran, has lived in Italy since the 1980s. Jacquelyn MacLennan, a partner in a law firm in Brussels, has lived there since 1987. Both are British nationals, and neither holds another nationality. Their challenge was based on EU law, arguing that section 2 of the EU Referendum Act 2015 interfered with their rights to freedom of movement under EU law by effectively punishing them for choosing to exercise those rights for longer than the 15 years during which voting rights are enjoyed. The European Convention on Human Rights could not help their claim in this case, as the Convention right to free elections (found in Article 3, Protocol 1) does not extend to referendums. The Supreme Court confirmed this reading of Strasbourg doctrine in 2014, rejecting attempts to deploy it by prisoners disenfranchised in the Scottish independence referendum. (Strasbourg is where the European Court of Human Rights sits, so it is the decisions of that court that make up Strasbourg doctrine.)

Mr Shindler has conducted a long-running legal campaign to acquire the right to vote in UK elections. In 2013, he lost an earlier case before the European Court of Human Rights arguing that the 15 year time bar breached A3P1. The Court considered that it was within the margin of appreciation enjoyed by the UK to set this cut-off point as an approximate means of measuring the likely strength of the bond between expatriates and the UK. Case by case assessments of individuals’ links to the UK were not feasible. The Convention permits states to employ “bright-line” rules such as the 15 year time bar.

The EU Referendum Challenge

The first hurdle in this case relating to the impending EU referendum was to establish that EU law is engaged by the franchise law in the 2015 Act. In the Court of Appeal the government succeeded in its argument that it is not so engaged. Article 50 of the Treaty on European Union provides that “Any Member may decide to withdraw from the EU in accordance with its own constitutional requirements.” The Court of Appeal took the view that the 2015 Act forms part of those constitutional requirements, and as such the government was free to design the electorate for the referendum without considering the constraints imposed by EU law guarantees.

That would have been enough, but the court went on to consider the position if EU law was assumed to be engaged. the Court of Appeal endorsed the reasoning of the Divisional Court that the 15 year time bar did not interfere with free movement rights: the court did not accept that disenfranchisement in a one-off referendum was a factor likely to influence the decision to settle or remain in another EU state.

Aware of the difficulties of establishing the EU law argument, counsel for the expatriates included in the case put to the Court of Appeal the additional claim that voting is a common law constitutional right which judges have a duty to protect against statutory restrictions of the sort included in the 2015 Act. The Master of the Rolls dismissed this argument as ‘hopeless’ [para. 50], considering that the Supreme Court’s dicta on common law protections of the franchise in Moohan v Lord Advocate were confined to hypothesising about political abuses by a Parliament intent passing a statute effecting mass disenfranchisements. There was nothing so contrary to principles of democracy in section 2 of the 2015 Act.

The UK Supreme Court

The case, reported as R (on the application of Shindler and another) (Appellants) v Chancellor of the Duchy of Lancaster and another (Respondents) UKSC 2016/0105, reached the Supreme Court last week. The Court held an oral hearing for application for permission to appeal. This failed. Lady Hale expressed sympathy for Shindler and MacLennan, but announced the Court’s decision that, assuming EU law to apply, it is not arguable that the 2015 Act interferes with free movement rights. As the hearing was confined to seeking leave to appeal, the Supreme Court did not engage in review of the Court of Appeal’s stance on Art 50, TEU. Nor did it accept the bold invitation of counsel for the appellants, put during the oral hearing, to declare the 15 year time bar unconstitutional on common law grounds. Aidan O’Neill QC drew the Court’s attention to the government’s plans, announced in the May 2015 Queen’s Speech, to abolish the 15 year time bar, which it has conceded to be arbitrary. The planned Votes for Life Bill has not materialised.

The difficulty for litigants invoking the common law in such cases lies in persuading a court to build on the acknowledged constitutional foundations of the franchise as a political liberty to articulate a concrete – actionable – common law right to vote. The constitutional principle the Supreme Court articulated in Moohan v Lord Advocate, echoed in the Court of Appeal in this case, indicates the potential readiness of the courts to step in to block attempts by Parliament to retract voting rights in some dramatic, discriminatory or blanket way: stripping the franchise from certain racial or religious groups for example, or setting the voting age at 45. There is little trace in the dicta on the nature of the common law right to vote indicating any willingness on the part of the judiciary to deploy the common law to police other sorts of disenfranchisements (of prisoners; of long-term expatriates) which appear less blatantly unacceptable on constitutional grounds. The common law protects a right to vote in the sense that it offers a broader constitutional assurance that judges would oppose political attempts to retreat significantly from the law’s commitment to universal suffrage. Judges are unlikely ever to be persuaded to regard the common law as a sound basis for claims seeking to recalibrate franchise laws that respect in broad terms the constitutional commitment to universal suffrage. This poses a structural obstacle for groups like prisoners and expatriates who find themselves currently situated beyond prevailing political understandings of the limits of the idea of universal suffrage. And a sceptic might think that a common law right to vote that merely tracks the statutory expressions of it which Parliament chooses to offer is not much of a legal right at all.

Another dimension of the issue that this litigation highlights (as does ongoing constitutional litigation in Canada) is the zeal with which constitutional law and politics remain committed to the idea that national citizenship is relevant to the distribution of voting rights. There is another group disenfranchised in the EU referendum: EU citizens lawfully resident in the UK. Though they enjoyed the right to vote in the Scottish referendum, they have no say in this momentous political choice concerning their rights to remain settled in their homes, jobs and lives here. Yet Commonwealth citizens residing here have the right to vote. This group includes those from Malta, who are also EU citizens. Cypriots might find themselves in a similar position. Separately, Irish citizens are in the privileged position of enjoying full UK voting rights, so they too can vote in the referendum by virtue of those laws if not in consequence of their EU citizenship.

Comment

We should consider reforming election law to endorse the principle that lawful residence, not the happenstance of the particular passport we possess, generates the right to vote. And though we may share Lady Hale’s sympathy with the expatriates who feel left out by their disenfranchisement, there are powerful arguments against including any expatriates in the electorate. Voting is not, after all, an act concerned with a person’s emotional attachments to a place they may never return to live in. It is a right related to the stake a person has presently in the polity. We should not allow respect for feelings of Britishness to dictate something as fundamental as the terms of our laws governing the franchise.

Instead of a Votes for Life Bill, how about a Votes for All Lawful Residents Bill, extending the franchise to resident non-citizens (perhaps after a one year settlement period) and retracting it from all non-resident citizens? The claims of the former to the right to vote are at least as strong as those of expatriates. New Zealand has led the way with reforms granting all permanent residents full voting rights. We should follow this model. The franchise ought not to be characterised as a lifelong free gift to privileged groups of people holding favoured passports. Perhaps one day norms will evolve that will condemn our present day willingness to disenfranchise large tracts of the population on the basis of their passport status as we now reject the historic denial of votes to women. Identity, whether tied to gender or nationality, ought not to be used to distribute or deny the right to vote. Those expatriates who have a legal right to vote on June 23rd are the beneficiaries of policies and election laws that seek to universalize suffrage extra-territorially while fencing out of the electorate many deserving domestic residents. This sort of practice is an injustice politics is unlikely to remedy soon, and one our courts are not equipped to cure.