News and Articles
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 nooseIn
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
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
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
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
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
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.