It is being reported that Downing Street has postponed the ‘meaningful vote’ on Theresa May’s Brexit deal. She will make a statement to the House of Commons at 3.30pm.
More from Jolyon Maugham QC and the Good Law Project.
— Jo Maugham QC (@JolyonMaugham) December 10, 2018
Responding to the ruling from the Court of Justice of the European Union (CJEU) that the UK is free unilaterally to revoke the notification of its intention to withdraw from the EU, Hogan Lovells partner Charles Brasted says: “The immediate impact of this ruling is to put beyond doubt that, until the moment the UK signs a withdrawal agreement or leaves the EU with no deal on 29 March 2019, it can still stop Brexit, even in the face of opposition by the rest of the EU. If it did so, the UK could also retain its current terms of membership, including the “rebate” negotiated by Mrs. Thatcher, and it would be under no obligation to join the Euro.
“The ruling may come as a surprise to some, after the EU’s own lawyers argued to the contrary. The UK Government’s position in the proceedings was that the question was hypothetical: the UK will not revoke Article 50. While this was enough to convince the UK Supreme Court to take this as the starting point for its judgment in the Miller case in 2016, subsequent political events, including most recently the reassertion of control over the process by the UK Parliament, may suggest the UK Government’s current view is no longer as determinative as it once was.
“The ruling will no doubt hearten ardent remainers across the UK, but it is important to note that it only bites if the UK decides to cancel Brexit and the EU27 disagree. The judgment stipulates that revocation must be “unequivocal”, “unconditional” and “in accordance with the UK’s constitutional requirements”. It is therefore unlikely to present a means of delaying Brexit – this still requires unanimous approval by the EU27 and the UK. Rather, the significance of the judgment is that the UK is still free – right up until the last moment – to reverse the outcome of the EU referendum and confirm its EU membership.
“In the long-term, practical questions remain as to whether, if the circumstances were to arise, the option for the UK to outstay its welcome is politically realistic. In the more immediate term, confirmation that the UK can still choose to remain in the EU is likely to harden minds, and cause more entrenchment, on both sides of the political divide against the compromises presented by the Government’s deal. If so, the ruling has increasing the likelihood of the more extreme outcomes of a no-deal Brexit and or a second referendum. In that sense, the timing of the judgment, less than 48 hours before Parliament’s meaningful vote on the deal, could prove significant.”
Jolyon Maugham QC, the lawyer who brought the case to the EU Court of Justice, has Tweeted his thoughts on the outcome.
To get here I've put my family's security on the line, faced down a Govt wasting huge sums keeping MPs in the dark, stayed aloft of ugly smears by some in the Remain establishment and allegations of financial self-interest from Leave. This is what it costs to do the right thing.
— Jo Maugham QC (@JolyonMaugham) December 10, 2018
The EU court of Justice has made its ruling – the UK can revoke Article 50 any time it likes. Here are the full details.
— EU Court of Justice (@EUCourtPress) December 10, 2018
5 December 2018
Here is the full advice, courtesy of the Labour Party’s shadow Brexit team.
Here is the Attorney General’s legal advice on the Brexit deal. pic.twitter.com/dPrXf1Y3fu
— Shadow Brexit Team (@ShadowBrexit) December 5, 2018
The first reactions to the legal advice, now published, from political figures are coming through…
Having reviewed the Attorney General’s legal advice, it’s obvious why this needed to be placed in the public domain. 1/3
— Keir Starmer (@Keir_Starmer) December 5, 2018
And the *really* weird thing is that the date on the Attorney General's advice suggests that the Cabinet did not get any formal legal advice from him before 13 November – the day MPs first asked for it to be published … ???? 4/4 #Brexit #Art50 pic.twitter.com/88ZY8Dju31
— Caroline Lucas (@CarolineLucas) December 5, 2018
In the run-up to the legal advice being published, a wry take from David Allen Green. Rest assured that all hot takes published on this live blog will be well considered.
1130 – Government legal advice published
1131 to 1145 – Hot takes from people who have not read the legal advice
1145 to 1200 – Press files copy based on collating hot takes or skim reading advice
1201 – everyone loses interest
1202 – new political drama unfolds
— David Allen Green (@davidallengreen) December 5, 2018
In other significant Brexit news, the European Court of Justice’s Advocate General opined yesterday the United Kingdom can call off Brexit without the consent of other EU member states. It’s a step on the road to victory for Scottish independent firm Balfour + Mason, which has fought a year-long legal battle on this front.
The Court of Justice is due to deliver its final ruling at a later date.
Adrian Waterman QC of Doughty Street Chambers has this excellent summary of the situation regarding the legal advice:
In moments of crisis – personal, professional or even national – there is almost always chaos. In moments of chaos, it is clarity which almost always is needed above all else. Without it, decisions become as chaotic as the situation itself.
The approach of the Government in general and the Attorney General in particular to the legal advice given by him to the Cabinet seems to be based on anything but clarity. It is borne of chaos. As Geoffrey Robertson QC has observed in the media today, the convention upon which the government and [Attorney General] Mr Cox QC rely in seeking to resist disclosure of the full advice is, based on the principles of lawyer-client privilege. If I am your lawyer and I give you advice, you (not I) have the right to claim privilege over that advice. Unless you waive that privilege, I, as your lawyer, have no right to disclose the contents of that advice.
However, if you do waive that privilege, then there is nothing whatsoever preventing me as your lawyer from disclosing the contents of the advice or, if it was in writing, the written document itself. Depending on the nature of your waiver, I may only be able to reveal it to a limited range of persons or I may be able only to reveal limited amount of the advice; I may not be able to reveal it to everyone or to reveal the full detail of the advice. However, you may have privilege entirely, in which case there is no legal basis for not disclosing the full content/document. The question of whether you have waived sufficient to lose privilege altogether depends upon both what has been disclosed, and the circumstances in which disclosure has occurred.
No one who watched and listened to Geoffrey Cox in Parliament or various loyal ministers and MPs seeking to justify the Government’s position could be in any doubt that the content of the advice has been revealed to the world. Equally, he made clear, as have the loyal supporting voices, that what has been revealed is the content of the advice. Whether he and they are being truthful about this will only be known if the full written (or a record of what was said orally) is disclosed. But, taking what they have said at face value, as we must in order to assess whether any privilege is left to preserve, there is none.
Thus, neither in terms of the circumstances of what has so far been disclosed, including the range of persons to whom the advice has been disclosed, nor in terms of the scope of the content so far disclosed has the Government, on its own account, limited disclosure. In other words, if there is a generally convention not to reveal such advice, it has already, on the Government’s own account, been comprehensively breached. Since there has been consistency of approach by the Attorney General and the loyalists in the Cabinet, it must be assumed that the Cabinet, including the Prime Minister, has approved this approach.
If this was a normal legal advice tendered to a private client, the privilege would now be considered completely waived. If you, the client, obtained the advice in the course of litigation, your opponent would now be entitled to call for the full advice to be disclosed. Your right to cherry pick would have been lost.
Bringing clarity to the chaos, therefore, two propositions emerge. First, the position appears to be that the reasons for refusing to disclose the full advice are political not legal. Geoffrey Cox’s loud reliance on the public interest is his, and presumably the Prime Minister’s, political judgment about the public interest. It has little or nothing to do with the law. Secondly, the one vestigial argument Geoffrey Cox was able to rely upon is also shown to have no foundation. The fact that the Government has – already – waived privilege in relation to this advice does not mean that the same will apply in any other case. The waiver of privilege is decided upon by the client and assessed by the law on a case by case basis, according to the facts. In other words, whether privilege should be waived in any other case will be – as it always has been – a political judgment to be made on the facts of that case.
In the final analysis, no one could have forced the Cabinet to reveal the advice other than by political pressure. When it chose not to participate in the “humble address” vote, the Government bowed to political pressure. When Geoffrey Cox spent two-and-a-half hours at the Despatch Box yesterday, explaining the advice, he did so because of political pressure. Whether the full detail of the advice is now disclosed will, equally, depend upon political pressure. The time when any legal basis for resisting that pressure could be relied upon has long since passed.
An explainer of what happened yesterday from Maya Lester QC of Brick Court Chambers: “The House of Commons yesterday found Ministers in contempt of Parliament because the Government had been asked by a parliamentary motion on 13 November to produce its Attorney General’s legal advice on the proposed Brexit withdrawal agreement in full, but it refused. As far as I’m aware this is the first time the House of Commons has found Ministers to be in contempt of Parliament.”
The Government could have avoided this humiliating defeat. Last month, Labour held a “humble address” in Parliament (a rarely used procedure in which Parliament asks the Government to publish a document) but the Government did not turn up to that vote, lost the vote, then ignored the result. Yesterday the Attorney General offered his summary of the advice but not the advice itself. The Government declined the compromise plan put forward in the debate by Rt Hon Kenneth Clarke QC MP suggesting that the Government share the document with Labour on Privy Council terms, and agree the sections to be redacted in the national interest. The Government then tried to delay the contempt vote (and lost) then lost the vote. It has now been forced to agree to publish the full advice.”
Welcome back to the live blog and another crucial day in the Brexit process. Last night the Government was found in contempt of Parliament and compelled to release its full official legal advice on the Prime Minister’s Brexit deal.
That advice is set to be released at 11.30 this morning.
“I don’t know what further matters are covered in the advice which the Attorney General gave to the Cabinet, but the fact that the Government had been fighting so hard not to disclose it tends to suggest that the advice is even worse that what he publicly acknowledged,” 8 New Square’s Martin Howe QC, the chairman of pro-Brexit group Lawyers for Britain, tells The Lawyer. “I am very concerned that we were attacked in previous statements made by the Number 10 Downing Street ‘Rebuttal Unit’ (the Cabinet Office’s social media-focused Rapid Response Unit) which were not in accordance with what we now know was the Government’s internal legal advice
14 November 2018
Ladies and gentlemen, we have a new Brexit Secretary! And it’s another ex-lawyer who’s going to be “in charge” of negotiations for the Government. Stephen Barclay MP spent most of his legal career in-house, specialising first in the insurance for AXA and then working as a regulator for the Financial Services Authority (now FCA).
It’s quite the illustrious CV; prior to becoming MP for North East Cambridgeshire, he was head of anti-money laundering and sanctions at Barclays Retail Bank.
Barclay follows in the wake of former Linklaters lawyer Dominic Raab, who resigned yesterday from the role of Secretary of State for Exiting the EU after just four months.
Lawyers in Herbert Smith Freehills’ financial services sector have put out some comments on the situation: “So far as we can tell, the deal that has been reached does nothing to resolve issues relating to contract continuity (including whether post-Brexit performance of pre-Brexit contracts triggers cross-border regulatory licence requirements). Contract continuity will likely be an issue to some extent for most UK firms with EU clients and counterparties, although the transitional period will allow for more time to explore effective solutions across different market products, including implementing contingency arrangements.”
Fun legal fact.
Because the Secretary of State for Exiting the European Union is at law a "corporation sole" it can continue to be an Appellant in this legal case, even though not a single politician can be found to take the job. https://t.co/8nlZPOODOt
— David Allen Green (@davidallengreen) November 16, 2018
A statement from the Supreme Court:
The Supreme Court has received an application for permission to appeal in the matter of Secretary of State for Exiting the European Union (Appellant) v Wightman and others (Respondents).
The application has been referred to three Supreme Court Justices – Lady Hale (President), Lord Reed (Deputy President) and Lord Hodge – who will form the decision panel.
The Court is aware of the urgency of this matter.
We will provide updates as further information becomes available.
This is about whether Article 50 can be unilaterally revoked. A cross-party group of politicians applied to see if this was possible. The court of session in Edinburgh referred the question to the court of justice of the EU. Now the UK Government has applied to the Supreme Court seeking permission to appeal against that referral.
We start the day with some comment from Europe – the venerable Dutch firm NautaDutilh, to be precise.
Looking further than the transitory arrangements contained in the Draft Withdrawal Agreement, partner Herman Speyart notes certain striking features that are contained in the Outline of the Political Declaration setting out the Framework for the future relationship between the EU and the UK. One is a far reaching single customs territory with provisions on the alignment of rules applicable to goods that closely resemble the Norway-model.
“Even though this model has often be rejected as tying the UK to the EU rules without it being able to participate in their elaboration, it is the only way forward if the UK wants to secure access to the EU market for its goods,” he says.
“When it comes to the free movement of financial services, which is also of upmost importance to the UK, the Declaration provides for a system of equivalence assessment, meaning that UK financial service providers will be free to provide services in the EU if the UK supervision and regulatory rules are deemed by the EU to be equivalent, and vice versa.”
“Finally, the Outline contains a level playing field-provision designed to avoid a regulatory race to the bottom in terms of state aid, competition, social and employment standards, environmental standards, climate change, and tax matters. This last element is striking, as UK Tory politicians had announced earlier that they would use Brexit to lower the UK’s corporate income tax to make the UK more attractive for companies.”
Good morning. The live blog is back and we’ll be giving the lawyers’ eye view whatever happens in the world of Brexit today. Which, let’s face it, could be anything.
Thursday 15 November
Theresa May hasn’t resigned, and with that we’re closing the blog for the moment. Good night.
Yet another lawyer has resigned from a government payroll position. This time it’s Rehman Chishti MP, who is a barrister and honorary door tenant at Red Lion Chambers.
He was also Vice Chairman of the Conservative Party for Communities, but not any more.
Unlike the other three lawyers to resign from their roles in the last 24 hours (see 13.00), Chishti backed Theresa May in the 2016 Tory leadership campaign.
My letter of resignation sent to PM @theresa_may stepping down as Vice Chairman @Conservatives & PM Trade Envoy to Pakistan. 1. Cannot support Draft EU Withdrawal Agreement. 2. Very disappointed by lack of leadership shown by UK Gov to do morally right thing in Asia Bibi Case. pic.twitter.com/hcaxba1hJr
— Rehman Chishti (@Rehman_Chishti) November 15, 2018
Baker McKenzie partner Ross Denton says for lack of anything better, business should back May’s deal: “Assuming remaining in the EU is not politically feasible, the draft Withdrawal Agreement should be supported by business because it is the only option on the table that demonstrates a clear and deliverable pathway to avoiding an economic cliff edge caused by a hard Brexit. As our research has shown, a hard Brexit will cause considerable economic damage to the UK economy. While the UK Government appreciates this, it is clear that many constituency MPs involved in the UK approval (or not) of this Agreement do not. Business should urgently take steps to ensure that they do”.
The legal Twitterati are, as you would expect, in full voice on the topic of Brexit today.
Here’s Schona Jolly QC on Michael Gove’s supposed latest demand.
For the love of all things sane. Renegotiate what and with whom?
This deal is about as cherry-picking as it’s going to get. And the EU has made that clear.
— Schona Jolly QC (@WomaninHavana) November 15, 2018
Meanwhile, Martin Howe QC, the most prominent lawyer outside Government who is championing Brexit, is against May’s deal. He says it could drop the UK into a “legal black hole.”
On the pro-leave Lawyers for Britain website, he writes: “My advice to the Cabinet is that agreeing to a backstop which the UK can only leave if we satisfy a review mechanism risks dropping the UK into a legal black hole for probably a number of years – and quite possibly for longer. While in that black hole, we would be subject to EU control of our tariffs and external trade policy and of wide areas of our internal laws, without having any vote on the rules which bind us. We would be unable even to negotiate any meaningful trade agreements with non-EU countries until we could provide them with a certain end date for the backstop.”
In terms of cross-border restructuring and insolvency, Kirkland & Ellis partner Kon Asimacopoulos says: “We are pleased to see the draft Withdrawal Agreement confirms that the Insolvency Regulation and Judgments Regulation – important for cross-border recognition of schemes of arrangement – will continue to apply to insolvency proceedings/judgments commenced before the end of the transition period, as anticipated. This should mean it is ‘business as usual’ for European cross-border restructurings and insolvencies until the end of 2020. However, recognition for later proceedings is left open, and is much more uncertain. This of course assumes the emerging crisis on Downing Street does not impact this…”
What does May’s deal mean for capital markets, we hear you ask? Ashurst partner James Coiley says: “Given the political uncertainties around any deal, this won’t affect anyone’s planning or implementation at this stage. If the deal passes, then this is a more helpful outcome in the short term for some capital markets activities than has looked likely at some points in the process. But that is largely a function of lowered expectations.”
I can't believe that when Dominic Raab did his contract-negotiating training at @LinklatersLLP, they taught him that after you negotiate a deal, you tell the clients it is a useless contract, they're on their own, and then run away.
— Aled Griffiths (@juveVerlag_Gr) November 15, 2018
Justice minister Rory Stewart gets called out on Radio 5 for making up the figure that “80 per cent” of the British public support May’s deal.
He goes on to clarify that most would support it “if it was calmly explained to them.”
“80% of the British public support this deal….
“I’m producing a number to try to illustrate what I believe…
“I totally apologise for that and I take that back”
— BBC Radio 5 Live (@bbc5live) November 15, 2018
Despite the chaos in the Commons today, lawyers have been largely positive about what May’s deal would mean for business.
Stewart Room, lead partner for GDPR and data protection at PwC, says: “The commitments on personal data will be reassuring to citizens and businesses across all sectors. The terms of the withdrawal agreement, if agreed and ratified, will make sure there is no interruption to cross border data flows, as EU data protection law, including current adequacy decisions, will continue to apply in the UK during the transition period. UK citizens’ data will continue to be protected in EU law.
“The political framework provides a welcome commitment to cooperating on data protection in the next phase of negotiations, however an adequacy assessment by the end of the transition period is not guaranteed.”
On the customs union, Bird & Bird competition partner Richard Eccles says: “It appears that the draft Withdrawal Agreement was forced through cabinet despite dissent and without a vote. It is open to question whether Mrs May really believes that this is the best deal, as opposed to staying in the EU. Her comments to the media last night actually allowed for the possibility of no Brexit, presumably therefore the possibility of a second referendum.
“The fact that the Brexit Secretary, responsible for the negotiation of the Agreement, has now resigned, undermines the deal’s credibility. There is real doubt as to whether it will get Parliamentary approval as required by the EU Withdrawal Act.”
“In terms of substance, the fact that the UK will stay in the customs union for the foreseeable future avoids the main source of border chaos that would otherwise arise in trading goods. However, staying in the customs union will prevent the UK negotiating its own free trade agreements, which was one of the main goals of Brexit.
“The UK is a mostly services economy and leaving the single market means that UK businesses will lose passporting rights based on home state authorisation, which have been very valuable to UK services sectors.”
An interesting detail on the three lawyers who have resigned in the last 24 hours, Shailesh Vara, Suella Braverman and Dominic Raab (see 12.05). All three backed Michael Gove in the last Tory leadership race.
Gove has been tipped to replace Raab as Brexit Secretary, but he’s remained quiet today and a cynic might make something out of this…
Braverman, Raab and Vara all backed Gove in the leadership election. (McVey was not an MP at the time) https://t.co/RaYcumNchS
— anyabike (@anyabike) November 15, 2018
No prizes for guessing what the main fear for mid-size law firms is right now.
In our UK200 attitudinal survey, just over half of firms in the 101-200 bracket thought trading conditions would be tougher. Brexit and economic uncertainty were cited as the main reasons for firms thinking trading would be tougher this year than last.
A departure from the Ministry of Justice – Parliamentary Private Secretary Ranil Jayawardena. “This is not taking back control,” he writes. Jayawardena had only been at Justice for a few months, having switched over from the Department for Work and Pensions.
"This is not taking back control", Ranil Jayawardena tells Theresa May as he resigns as PPS at the Ministry of Justice pic.twitter.com/P6A2oxS5PX
— Asa Bennett (@asabenn) November 15, 2018
Getting a bit Churchillian, Clifford Chance’s head of UK public policy Phillip Souta says that “this is not the beginning of the end but the end of the beginning.”
He says: “The deal has a more comprehensive backstop than many were expecting and businesses are likely to welcome that. They will also be concerned that the risk of the Commons rejecting the deal for that very reason may have increased. As such, businesses have to have contingency plans in place now, and in most cases are not waiting until beyond December to act on them. A deal is still the most likely outcome, but no deal still remains a real possibility.”
Souta’s colleague, regulatory partner Simon Gleeson, adds: “This must be the moment where we stop thinking about breaking up the European markets of today, and start asking how we build the European markets of tomorrow.”
“The UK will remain the primary financial centre of the continent of Europe for at least the medium-term, and we need to accept that that poses a significant problem for the financial authorities of the EU. If over the next year or so we can create a co-operative framework within which the UK and EU authorities can co-operate seamlessly, that will be a benefit for market users, investors, savers and borrowers. If we cannot, then we increase the risks of instability and unpredictability.”
“The financial crisis showed how fragmented supervisory and regulatory systems can harm whole economies, so we have to hope that those memories are fresh enough to bring both sides to a good outcome.”
One of the other resignations this morning was Suella Braverman, the Conservative MP for Fareham and the Parliamentary Under-Secretary of State for Exiting the European Union.
She wrote this opinion article for The Lawyer in 2016 about why she would be voting Leave. She was very much a “take back controller”, writing that: “My main reason is not to do with economics. The issue of whether we will gain or lose economically is neutral. As the world’s fifth largest economy… the UK is sufficiently robust to withstand any short-term uncertainty to thrive in the long term.”
Today, in her resignation letter, she said “My reasons [for resigning] are simple. Firstly, the proposed Northern Ireland Backstop is not Brexit. It is not what the British people – or my constituents – voted for in 2016. It prevents an unequivocal exit from a customs union with the EU. This robs the UK of the main competitive advantages from Brexit. Without a unilateral right to terminate or a definite time limit to the Backstop, our numerous promises to leave the customs union will not be honoured. 17.4 million people voted for the UK to leave the EU in our own sovereign way and at a time of our choosing. The Backstop renders this impossible and generations of people will see this as betrayal.”
Hogan Lovells were the first off the mark with comment on what Theresa May’s proposed deal will mean. Partner Angus Coulter has some views on what its impact on competition law will be – good for business, in his opinion.
“The draft treaty provides welcome points for practitioners, regulators and business – both clarity and the substance of what is proposed,” he says.
“The provisions make clear that the Commission will not have to drop the UK element of existing merger reviews and antitrust investigations, meaning that the UK’s CMA will not have to launch duplicative inquiries. They also give guidance on which investigations will be saved by these provisions. UK lawyers will remain able during the transition period to represent clients in the EU courts.
“Otherwise, the level playing field provisions of the draft treaty reintroduce the core elements which the EU competition law currently provide for EU-UK trade, on anticompetitive agreements, abuses of dominance and mergers. Probably most importantly, the UK (and the EU) are required to give effect to these rules taking into account the EU rules and case law as these evolve – not a snapshot of EU jurisprudence at the date of leaving (which is what the UK no-deal backstop in this area takes as its starting point).
“In all this is a package which – if it comes into effect – should please business. Their advisors will be able to continue to give a very clear steer – important in an area where there is a huge reliance of companies to work out for themselves what is legal and what is not. It will give the UK the flexibility to move its enforcement as practice moves, to avoid for now British companies having to adhere to two, diverging sets of rules. This will be most important in cutting-edge areas where both the UK and the EU have live (and often interlinked) cases, on topics like excessive pricing for pharmaceuticals and the role of technology and big data in giving market power.”
Who are those three lawyers that have resigned?
- Chief among them is Brexit Secretary Dominic Raab – an ex-Linklaters lawyer, let’s not forget.
- His underling Suella Braverman, a barrister and the Parliamentary Under-Secretary of State for Exiting the European Union, has also gone.
- The Northern Ireland minister, solicitor Shailesh Vara, was the first minister to hand in his notice.
Welcome to our Brexit live blog. Several senior members of government, including three lawyers, have already resigned in the past few hours as it reaches crunch time for Theresa May’s negotiations. We’ll be bringing you the latest insight from the legal world as things develop.