REUTERS | David Mdzinarishvili

Brexit: January round-up

There have been several important Brexit developments in the past few weeks, including the Supreme Court’s decision on triggering Article 50 and publication of the government’s European Union (Notification of Withdrawal) Bill.

Supreme Court decision on triggering Article 50

On 24 January, the Supreme Court upheld by a majority the judgment and declaration issued by the High Court in Miller and Santos to the effect that the government could not issue notice under Article 50 of the Treaty on European Union to withdraw the UK from the EU by way of the Royal prerogative and would require authorisation of an Act of Parliament to do so. The case is likely to be cited as a landmark exposition of constitutional law and, particularly, the limits of the Royal prerogative and the devolution settlements.

The House of Commons Library had previously published a briefing paper on Brexit and withdrawal from the EU under Article 50. It outlines the process by which the UK would leave the EU under Article 50, and discusses issues that this may create, including the European Council’s formulation of a negotiating mandate for the withdrawal agreement, and the required ratification of this by a “super” qualified majority (72%) of member states, excluding the UK.

European Union (Notification of Withdrawal) Bill 2016-17 receives first reading in Parliament

The Supreme court’s decision meant that the government’s proposal to issue notice under Article 50 for the UK to withdraw from the EU would have to be enacted through legislation.

On 26 January 2017, the European Union (Notification of Withdrawal) Bill 2016-17 was introduced to Parliament by the Secretary of State for Exiting the European Union, David Davis, and had its first reading. The Bill is scheduled to have its second reading before the House of Commons (HoC) on 31 January 2017 and its third reading on 8 February 2017. Assuming it is approved by the HoC, it will then progress to the House of Lords. The government’s intention is that the Bill will receive Royal Assent and be enacted prior to 31 March 2017.

Brexit and civil justice cooperation

On 31 January, the House of Lords EU Justice Sub-Committee will hear evidence from Sir Oliver Heald MP, Minister of State at the Ministry of Justice, on Brexit and civil justice cooperation. This follows evidence provided by Sir Mathew Thorpe QC and Sir Richard Aikens QC, two former senior UK judges, on the significance of EU legislation designed to facilitate cross-border civil disputes.

The Lord Chancellor Liz Truss has emphasised the importance of cooperation in civil justice post-Brexit at a recent event hosted by Freshfields Bruckhaus Deringer LLP. In her speech, she declared that a bold, bright future awaits British legal services as the UK prepares to leave the EU. She said that she has been working on a plan to help maintain and grow the legal sector with key figures, including the Lord Chief Justice, major law firms and representative bodies.

Government objectives for exiting the EU outlined

On 17 January, Theresa May gave a speech on the UK government’s negotiating objectives for exiting the EU. Crucially, she confirmed that the UK will not seek to be a member of the single market following its departure from the EU and the UK will seek to agree a free trade agreement with the EU.

The Welsh Government has also published a White Paper outlining Wales’ key strategic interests and priorities as the UK government prepares to enter formal negotiations on the terms of its exit from the EU.

Earlier in January, the House of Commons Library published a briefing paper on directly applicable EU law. An estimated 5,000 binding EU regulations with direct effect apply in the UK (and the other member states). The briefing paper analyses the total number and type of EU legislative provision on a sector by sector basis, finding that the following topic areas are affected by the highest number of EU regulations: fisheries (1,122 regulations in force), agriculture (922 regulations) and external relations (643 regulations).

Key pre-Christmas developments

There were also several noteworthy developments in the week before Christmas, which may have previously been overlooked:

  • The CBI published a report, Making a Success of Brexit, which highlighted six common principles to guide the UK-EU negotiations. The report was the result of a detailed consultation exercise undertaken by the CBI across every sector of the UK economy.
  • TheCityUK published a paper on the impact of Brexit on the UK legal services sector, which highlights the importance of ensuring the competitiveness of UK legal services following the UK’s withdrawal from the EU.
  • The Chartered Institute of Patent Attorneys (CIPA) published a detailed guide to the impact of Brexit on all intellectual property rights. The guide sets out CIPA’s strong preference for the UK to remain part of the Unified Patent Court system after Brexit, along with the likely impact on the full range of IP rights, systems and transactions.
  • The House of Commons Justice Committee heard from experts in commercial law on the effect of Brexit for civil justice. The experts reiterated calls made by other bodies, including the Bar Council’s Brexit working group, that the government should prioritise maintaining EU directives that regulate the reciprocal enforcement of judgments between the UK and member states.

Detailed coverage of Brexit, including how it may impact different industry sectors, can be found on the Brexit homepage

Practical Law In-house Robert Clay

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