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Letter from Sir Richard Aikens to the Prime Minister opposing ECJ Jurisdiction after Brexit

As prominently reported in the Sunday Telegraph Tories at war over European judges amid claims UK heading for version of Brexit 'that effectively fails to leave EU' (behind paywall) and other newspapers on 3 December 2017, the Rt Hon Sir Richard Aikens, President of Lawyers for Britain and former Lord Justice of Appeal, has written to the Prime Minister in order to express his grave concerns over media suggestions that the government might be about to concede binding ECJ jurisdiction over the rights of EU nationals in the UK. The full text of Sir Richard's letter is here.

The transition period: avoiding the negotiation noose

In the first of a series of articles about the complex legal ins and outs of the 'implementation period' proposed in the Prime Minister's Florence speech, we have published "The legal ins and outs of implementation periods: Part I: avoiding the negotiation noose" by Martin Howe QC.

The EU Customs Union and the Single Market -- or a Free Trade Agreement?

In Brexit choices: the EU Customs Union and the Single Market, Martin Howe QC sets out a detailed analysis of the consequences of the different policies of whether we should seek to stay in the EU Customs Union and/or Single Market after Brexit, or alternatively seek a Free Trade Agreement. There are clear and very important differences between these kinds of arrangements, which profoundly affect the future of the country, how we govern ourselves and our freedom of action in international trade.  But these differences are not well understood by the public, media and politicians. So this enormously useful guide helps public understanding of the pros and cons of the different arrangements.

EU citizens after Brexit: a fair settlement - or a privileged caste with superior rights enforced by a foreign court?

An early and fair settlement of the rights of EU citizens resident in the UK, and of UK citizens resident in the EU27, has been a priority for the British government. It also a appeared a priority for the EU27 when the European Council produced its negotiating guidelines. Unfortunately on 24 May 2017, the EU Commission produced a detailed Working Paper which goes far beyond the European Council's Guidelines and demands that EU citizens who at the date of Brexit reside, or have resided in the past, in the UK should keep in perpetuity all the rights they now have under EU law. These rights include, for example, the right to bring a non-EU spouse to live in a UK even in circumstances where UK citizens themselves would not have such a right. Even more significantly, the Commission's paper demands that these rights should be monitored by the Commission and enforced by the ECJ under the same machinery as applies to Member States, despite the fact that the UK after exit will no longer be a member and so will no longer nominate a judge to the ECJ. Martin Howe QC, Francis Hoar and Dr Gunnar Beck have looked into the issues in detail and have put their findings in a short post and a  full paper. They point out that it is virtually unknown in international practice for an independent State to submit itself to the courts of another treaty party, and have established that the ECJ does not have jurisdiction of the kind demanded that the UK should submit to, in any of the EU's many association and trade agreements -- even with tiny Andorra. They liken the demand for a class of resident non-citizens to enjoy superior rights to UK citizens enforced by a foreign court to the status of Western subjects in the Far East under unequal treaties making them subject to special extra-territorial courts and exempt from local law.

The EU's financial claims against the UK

These financial claims - now apparently for €100bn or more - were covered in interviews on 21 May 2017 by the Prime Minister in The Sunday Telegraph and by David Davis, the Brexit Secretary, in The Sunday Times. Lawyers for Britain have now published our new and updated Analysis of the UK’s potential financial liabilities which looks at the legal arguments in depth, and concludes that most of the EU's claims are legally very weak.

Jurisdiction of the Luxembourg Court after Brexit

One issue which has surfaced is whether the European Court of Justice should be given a continuing role in supervising areas of UK law after we leave, such as the rights of EU nationals who are resident here when we leave. Our committee member Dr Gunnar Beck explains the reasons why The European Court of Justice is not an impartial court and has no role to play in post-Brexit EU-UK relations

Politeia publishes "Leaving the EU" by Martin Howe QC

Politeia (A Forum for Social and Economic Thinking) has published "Leaving the EU: Legal and Trade Priorities for the New Britain" by Martin Howe QC, Chair of Lawyers for Britain: download here. It is summarised on the Politeia website. It sets out a comprehensive plan for preparing the UK's international trade relations and domestic laws to take advantage of the freedoms of Brexit, as well as how relations with the remaining EU should be handled.

The Supreme Court Article 50 case and the wording of s. 2(1) ECA 1972

We publish an article by Annabel Partridge which casts new light on the detailed wording of section 2(1) of the European Communities Act 1972 and asks precisely what the subsection does. The subsection, she argues, does not "give legal effect" to EU laws but rather does something subtly different, which is to require that they be "recognised" and "available in law".

UK can negotiate and conclude trade treaties before we leave

Lawyers for Britain Committee Member and barrister Francis Hoar has researched in depth the legal arguments about whether the UK is prevented from negotiating and concluding international trade agreements before the date it exits the EU. He concludes that the argument that the UK is prevented from doing so has no support from the EU Treaties or from the case law of the Court of Justice of the European Union: see Negotiating International Trade Treaties before Exit.

Germany and the EU cannot afford to drive a hard bargain over Brexit

Gunnar Beck, Lawyers for Britain Committee Member, barrister and Reader in EU law & Legal Theory, University of London, explains how Germany's Eurozone trade surpluses are in fact funded by German taxpayers via the European Central Bank so that Germany and the EU's bargaining position over Brexit is weaker than it might seem.