European Circuit Blog

“Brexit and Litigation: The nuts and bolts of cross-border and EU litigation post-brexit” – 23 May 2019

Location: Manchester Civil Justice Centre

By Abigail Holt and DR Michael Wilkinson

[Note: This article was initially published in In Brief.]

On 23 May this year, the European Circuit hosted a successful Brexit panel discussion event at Manchester’s Civil Justice Centre, drawing in an audience of over a hundred lawyers who crammed into a packed Court Room 47 on a sunny Thursday afternoon. The event, which was chaired with aplomb by Judge Pearce, involved two panels of speakers talking on various aspects of Brexit and its implications, the first talking about “the bigger picture” and the second about “the practical implications”. It was sponsored by 18 St John Street chambers who supplied refreshments and also by the Manchester Law Library who kindly helped to serve drinks.

The bigger picture

Sir Ernest Ryder, Senior President of Tribunals and Lord Justice of Appeal, opened up discussions outlining the mitigation plans being devised by the Ministry of Justice in order to deal with what is anticipated to be the logistical fall-out from Brexit.  Internally, the MoJ appears to be planning for recession-like increases on Court services, with expected spikes also in extradition hearings, family law jurisdictional cases, and a general increase in conflicts of law, administrative law, tax, employment and benefits cases raising all manner of EU legal questions.

Abigail Holt analysed Brexit from the perspective of legal theory, contemplating whether the rejection of the acquis communitaire and the cancellation of rights would leave behind an “imprint” where rights once were. Abigail asked how our flexible common law system, with its tradition for calling on and developing legal international norms, would approach rights which are shorn from the European values dimension and whether we might find ourselves reaching out in new ways for universal legal values to fill the gaps.

Professor Alastair Sutton then gave a potted history of the WTO explaining the challenges of trading on WTO terms outside the EU. No longer a part of the EU block, the UK will suddenly find itself as a very small fish in a very big pond. Worse still, individuals and businesses will not be able to appeal to the arbitration panel of the WTO when faced with any breaches of trade law – only governments can apply, but even that right is being prejudiced right now as the WTO is facing an existential crisis with President Trump’s government recently vetoing the appointment of any new judges. The upshot of that is that the work of the WTO is already grinding to a halt and in real terms there are only three judges remaining, two of whom are due to retire very soon, and no new judges can be appointed.  Having rubbished the idea of dealing on WTO terms, he concluded by commenting that “It would be nice to know what the UK’s trade policy is”.

Practical implications

Michael Dougan, Professor of EU Law at Liverpool University, opened discussions on the second panel, giving a whirlwind tour through the consequences of implementing the European Union (Withdrawal) Act 2018.  He explained how the desire to “take back control” calls for vast amounts of legislative work. His presentation was broad but also dived into some of the detail, including the massive complexity of the ongoing status of the Charter of Fundamental Rights of the European Union post-Brexit. The take-home message was that the project of unravelling our law from EU law is a vast project which will generate massive legal uncertainty for a significant period of time, with the likely consequence that England will become less attractive as a forum for resolution of international disputes.

Gerard McDermott QC then gave pointers in relation to the challenges generated for litigants who suffer accidents abroad. He drew attention to the MIB and highlighted the advantages of the current system which allows litigants to sue foreign European insurance companies, individuals and businesses in UK Courts. He advised cross-border PI litigators to urgently appraise their current caseload and to ensure that any Francovich claims are commenced as a matter of urgency. Gerard pointed out that, in his experience, many citizens still do not realise that compensation for accidents suffered at work, whilst driving or on holiday abroad are going to become very much more difficult, if not impossible, to pursue post-Brexit.

Dr Michael Wilkinson then looked at some of the implications of Brexit on contracts. Whilst at first glance, Brexit does not look set to greatly affect domestic contract law, it does throw up some serious issues for choice of law and choice of jurisdiction clauses, as well as wider contractual practices.  Cross-border lawyers now drawing up a 5-year supply agreement contemplating an English-law-English-Courts clause, for example, will have pause for thought as at the moment they have no idea whether a judgment obtained in England on such a contract in say 3, 5 or 8 years time will even be capable of being enforced across the EU. He questioned whether England will lose its pride of place as a forum for disputes, pointing to competition in legal services overseas with Courts in Holland, Belgium, Germany and France setting up new courts operating exclusively in the English language and some exclusively in English law – such the International Chamber of the Paris Court of Appeal. He questioned also how far traders and lawyers might re-incorporated EU law into contracts by reaching substantive agreement requiring compliance with the acquis notwithstanding Brexit.

Finally, Hugh Mercer QC articulated the problems generated by Brexit for the recognition of foreign Judgments in the UK and, perhaps more importantly for us, the recognition of UK Judgments abroad. The current intra-EU system is complex, but is settled and functions effectively. “Taking back control” of our law means a loss of confidence, if not control, in enforcing Judgments. Hugh also highlighted the problems which will be created if UK professional qualifications are no longer recognised, whether legal or those of other professions.

This event was kindly sponsored by 18 St John Street chambers.

Photo 1: from left to right: Abigail Holt, Sir Ernest Ryder, HHJ Richard Pearce, and Professor Alistair Sutton QC.

Photo 2: from left to right: Professor Michael Dougan, Gerard McDermott QC, HHJ Richard Pearce, Michael Wilkinson, Hugh Mercer QC

Photo 3: from left to right: Michael Wilkinson and Sir Ernest Ryder

Credit photo: Michael Wilkinson

Posted by: Cécile Perrault

 

EUBA CPD Session: “Cross-Border Practice Post-Brexit” – 4 July 2019

By Chris Mills BL

Last Thursday 4 July (fortuitously coinciding with Independence Day in the USA), the EU Bar Association of Ireland held a panel discussion on “Cross Border Practice of Law in Ireland and the UK”. The panel was chaired by the Honourable Mr. Justice Barniville, and the other distinguished panellists were Hugh Mercer QC, Michael Bowsher QC, Niamh Hyland SC, Paul McGarry SC, and Ken Murphy, Director General of the Law Society of Ireland.

The event took the format of a relaxed, panel type discussion rather than individual presentations. Hugh and Michael began by proceeding  to give a brief description of the kinds of cross-border work they have done in their careers. These matters often involved international legal issues, for international clients who could effectively choose any jurisdiction in which to structure their legal affairs and related disputes, but who chose London and English lawyers. The point was made that the types of international work discussed by the English QCs was slightly different to the international work that many at the Irish Bar currently do – which is largely focused on EU or international issues in Irish cases, for Irish clients. One of the panellists remarked that it would be interesting to see if any of the more international work, in particular with EU law aspects, comes to Ireland post-Brexit.

Impact of Brexit

Discussion then turned to the Brexit-shaped elephant in the room. Ken talked about the impact on the solicitor’s profession. He noted that internationalisation of practice for solicitors is currently driven heavily by Brexit. Since 1 January 2016, over 3,000 solicitors from England and Wales have come onto the roll of solicitors (making up c.15-16% of all solicitors on the roll), of whom c.700 have actually taken out practising certificates. He said that these numbers are rising as Brexit approaches. Despite these numbers, very few firms have actually established offices in Ireland, however, with the likes of Covington, DLA Piper and Pinsent Masons being notable exceptions. None of the panellists foresee major global law firms coming in and taking all the work, as the Irish market is well served by established firms, and personal connections matter in the market.

Many of the new practitioners on the roll are focused on the area of EU law, and are worried about their rights of audience and privilege for EU clients (particularly in the context of competition law enforcement by the EU). It was suggested that this is a risky approach for them, and in time the EU Commission is likely to challenge privilege claims by lawyers based in England and Wales, but purporting to practice under Irish practising certificates. The Law Society is taking the line that this is entirely a matter for individual solicitors, and they are not advising them one way or the other.

Automatic recognition of qualifications

Ken noted that at present we effectively have mutual recognition with England and Wales for solicitors, and thus it is a low administrative burden for solicitors from there to come onto the Irish roll.

With respect to barristers, presently it is a relatively straightforward process to cross-qualify and get called in England and Wales, with automatic recognition of professional qualifications under various EU Directives. The requirements are that you have been in practice in Ireland for 3 years, after which you apply to the Bar Standards Board which provides a certificate of exemption, and then you get called by one of the Inns of Court. Around 300 Irish barristers are already members of the UK Bar, with a particular Irish connection with Middle Temple. Calls take place 3-4 times a year, and there is a call on 10 October to Middle Temple (prior to Brexit).

Hugh suggested that even in the event of a hard Brexit, the Bar Standards Board is relatively pragmatic, and any new recognition requirements will be proportionate, so there shouldn’t be high barriers if you are from a similar jurisdiction e.g. Ireland. There are even discussions at the moment about possible mutual recognition with other Common Law Bars, much in the way that there is automatic recognition between France and Quebec.

With respect to the Northern Irish Bar, Paul noted that there is de facto recognition between both Bars. There was a mass call in both jurisdictions recently, although this may not be strictly necessary.

Getting work in the UK

Some chambers in the UK have a programme of door or associate tenancy for foreign lawyers, but the situation is different if you actually want to practice in England and Wales, since you would then need a practising certificate (and be obliged to comply with the Bar Standards Board rules, have adequate Professional Indemnity Insurance etc.).

Our English colleagues noted that Chambers don’t recruit actively at the moment for door tenants; while post-Brexit they might start recruiting more, getting these roles in Chambers is mostly down to personal connections. In addition, a lot of work in these international areas (e.g. EU) is self-generated rather than coming from clerks in Chambers, so Chambers aren’t a route to this work in the UK necessarily. When applying to work for or with a Chambers, you have to represent a clear value proposition for them and bring something to the Chambers.

Hugh’s advice to younger colleagues looking to get involved in international work was to join groups that focus on EU and international issues, and from there build expertise and contacts which will often lead to a break into that kind of work.

International litigation – role for Ireland post-Brexit

Panellists remarked that the nature of Irish cases is becoming more international, referencing the Quinn and Madoff litigations. This trend is likely to continue, with the example of data protection cited; the Data Protection Commissioner in Ireland has at least 20 investigations open, some into the largest tech firms in the world. Dealing with this type of litigation requires a lot of collaboration between Irish and US lawyers.

After Brexit, certainly some of the international work currently done in London may move, for instance in the area of financial services (new International Swaps and Derivatives Association Master Agreements now exist under Irish and French law, and not just English and New York law). Ireland has some advantages in the competition to attract that work: it has a good regulatory system that generates reasoned decisions, and litigation; the English language helps; and the courts provide good, transparent and reasoned decisions.

From the floor, Colm Ó hOisín SC talked about the role for Ireland in international arbitration, and international litigation more generally. He suggested that Ireland has been generally more inward-looking in the legal sector, with a focus on the Irish market and Irish clients abroad, and not outward-looking like other areas of the economy. The English Bar has been very successful at getting international work, and the Irish Bar should be better at it. It has the capacity and capability to do it, but it doesn’t have the structure, and he suggested that the lack of Chambers here was a disadvantage. The Irish Bar, and in particular its younger practitioners, needs to step up to the opportunities presented by Brexit.

Conclusion

The event concluded with a plug for the upcoming European Circuit Conference taking place in Rome in September (details available at: www.europeancircuit.com), followed by drinks in The Sheds.

The evening provided a lively discussion with some fascinating insights into cross-border practice, and in particular the potential implications of Brexit for the legal sector here.

LOCATION: BAR COUNCIL OF IRELAND, THE DISTILLERY BUILDING, DUBLIN

Credit photo: Imogen McGrath BL

Posted by: Cécile Perrault

 

“Mediation: Extrajudicial solutions for cross-border disputes” – 14th March 2019

LOCATION: BAR LIBRARY AT THE INN OF COURT OF NORTHERN IRELAND, BELFAST

by Abigail Holt
   

On 14th March, as Westminster writhed with conflict and Stormont was silent, the European Circuit of the Bar was generously hosted by the Bar of Northern Ireland in their elegant Bar Library HQ in Belfast on the topic of the use of mediation in public law cases and the benefits of mediating cross-border litigation.

John Larkin QC (Attorney General of Northern Ireland) and Sir Paul Girvan PC (Lord Justice of Appeal of the Court of Judicature of Northern Ireland – retired) kicked off the debate by setting out the particular sensitivities around the appropriateness of mediation for resolving public law cases, which included issues such: that the public interest is not something which lends itself to a form of negotiation; that there is a perceived culture of Government and State bodies being slow to admit fault; and an understandable reluctance of Judges to be involved in mediating disputes whilst they are also charged with giving anxious scrutiny to evidence in the same dispute, or a similar one or one involving the same parties.

Juxtaposed, Administrative Judge Friedrich-Joachim Mehmel (Administrative Judge and President of the Hamburg Higher Administrative and Constitutional Courts) gave a fascinating and contrasting insight into the approach in Germany, in his area at least. Having apologised for attending in his (very smart) jeans (after a long and weary journey) he focussed first on communication and the failures and limits of the adversarial system to resolve legal disputes in a holistic way. Prima facie, it seemed counter-intuitive to a room full of Solicitors, Barristers and very senior ex-advocate Judges to say that the judicial process embodies and is constantly limited by communication failures, but he pointed out the blindingly obvious, namely that: disputes resulting in litigation are often caused or maintained by communication failures; ego conflict is often at the heart of disputes; that decisions to litigate are so often founded on failures to acknowledge and respect others; and that legal process was pressurised by time-constraints. He opined that litigation often embodied emotional problems and that attempts to apply cool rational legal principles to “fix” emotional situations was unsatisfactory. He highlighted that public law matters were often highly emotionally charged. He then went on to describe how in the German system there was the facility for a Judge managing a case to refer an issue within that case to another judicial colleague to deal with (a) discrete issue(s) which was amenable to mediation in a private satellite “bubble” outside the “main” litigation track. The mediator-hat-wearing-judge seemed to me to be very intellectually attractive route to justice. However, it was also noteworthy that the German system was prepared to prioritise this new culture and approach to the extent of providing the “in house” mediation service free of charge to the litigants.

Hugh Mercer QC (Chair of the Brexit Working Group of the Bar and Chair of the CCBE European Lawyers’ Committee), Brian Fee QC (of the Bar of Northern Ireland and of the Bar of Ireland), John Sturrock QC (Distinguished Fellow of the International Academy of Mediators) who practices, inter alia, Scotland, and Colm Ó hOisín SC (Bar of Ireland) then shared their vast experience of mediation, particularly bringing out the adaptability of mediation as a tool in different cultural contexts. They also enunciated the advantages of mediation over arbitration for certain cases and gave examples of experiences of practicalities regarding the use of mediation in particular jurisdictions. Switzerland, Ireland and the Middle East were cited in examples. UN Singapore, New York and CEDR were referred to as different mediation models. Enforcement and notarised agreements were discussed.

As we live through huge political and social turbulence on a global scale, it was encouraging and a privilege to learn from those going with the flow of globalisation and evolving new skills to adapt. I was reminded of Professor Ronald Dworkin and his thoughts on law as technique. People talk about mediation being a further “weapon” in the competent lawyer’s “armoury”. However, given, that we are saturated with conflict we could do no better than to heed Judge Mehmel and make greater use of mediation to address the emotional dimension which so often provides the rocket fuel behind disputes.

The Circuit would like to thank Michael Bready of the Belfast Bar in particular for setting up and organising this event.

  

Credit photo: Abigail Holt. We are grateful to all speakers for allowing publication.

Posted by: Cécile Perrault

 

“Brexit: Lessons from the Court” – 24th January 2019, Edinburgh

Event hosted by the Faculty of Advocates and the European Circuit.

by Abigail Holt

The best laid schemes o’ mice an’ men…. 

On Thursday 24th, as Edinburgh was gearing up for Burns Night 2019, the European Circuit of the Bar had the privilege of being hosted at the Faculty of Advocates for a fascinating legal supper of Wightman [C-621/18] haggis and Brexit neeps, along with the lyrical highlights of the UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill – a reference by the attorney general and the advocate general for Scotland (2018) [2018] UKSC64.

Hugh Mercer QC provided the starter. With remarkable clarity and simplicity he condensed the essential ingredients of: the EU Referendum Act 2015;Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469; Shindler v Council [T-458/17]; Miller [2017] UKSC5; R (Webster) v SoS for exiting the EU [2018] EWHC 1543 (Admin); R (the Good Law Project) v Electoral Commission, Vote Leave Ltd, Darren Grimes [2018] EWHC 2553 (Admin); R (Good Law Project, Moly Scott Cato MEP) v SoS for exiting the EU [2018] EWHC 719 (Admin); District Court Amsterdam: Does UK Exit automatically deprive UK citizens of EU citizenship and conditions/restrictions/retention of rights. In any other circumstances’ Hugh’s offering would have been a meal in itself. The audience did not complain of legal indigestion and were quite prepared for further jurisprudential nourishment.

Morag Ross QC then treated us to the main course; a comprehensive explanation of Wightman and the adventure of bringing this axiomatic case before the Court of Session and then the Court of Justice in Luxembourg. Given that this case might just save the UK’s social and economic bacon, against the threat of the more extreme Brexit regimes contemplated in some quarters, it was also important to listen to Morag’s analysis of the legal gaps, silences and further questions raised by Wightman.

Finally James Mure QC managed the near impossible feat of spicing up and making entirely palatable the intricacies of the UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill. He illuminated the problems for devolution and what it meant in the context of Brexit, especially when the Scottish attitude to European law and values as demonstrated by the 2016 referendum result were decisively remain. (Oh the irony the UK government argued against Scottish independence in 2014 on the basis that such independence would mean loss of member state status).

Afterwards we enjoyed hospitality and lively conversation with colleagues grappling to understand the consequences of Brexit for their practices, their communities and the rule of law. However, Robert Burns in “To A Mouse” might prove to be the last word on Brexit: The best laid schemes o’ mice an’ men Gang aft a-gley, An’ lea’e us nought but grief an’ pain For promis’d joy.

Credit photo: Abigail Holt and the Faculty of Advocates. We are grateful to all speakers for allowing publication.

Posted by: Cécile Perrault

 

Annual Conference 2018 – Stockholm

This year the European Circuit hosted its Annual Conference in Stockholm on the 20th – 21st of September 2018, with our key conference focus being e-Justice.

For the first time this year we offered an additional add on option for Thursday 20th of September, which was an Arbitration event with a fantastic panel of speakers & moderators. This event was hosted by Arbitration Ireland, the Stockholm Chamber of Commerce & The European Circuit.

As per tradition, our annual conference began with a drinks reception at the British Ambassador’s residence, which were generously sponsored by Vinge.

THURSDAY 20TH SEPTEMBER 2018

Arbitration Event Hosted by the Stockholm Chamber of Commerce, Arbitration Ireland & The European Circuit

The stimulating discussion covered various themes, including “The future of European investment disputes” and “Cross cultural teamwork in international disputes.”  Judge Christopher Vajda, Judge of the European Court of Justice was one of the moderators, as was Mr Justice David Barniville SC, Designated Arbitration Judge of the High Court of Ireland. They were joined by an impressive panel of speakers, as our programme outlines below.

SPEAKERS FOR THURSDAY INCLUDED:
  • MARLEN ESTÉVEZ (PARTNER WITHIN THE LITIGATION AND ARBITRATION LAW DEPARTMENT AT ROCA JUNYENT)
  • GORDON MARDELL QC, 20 ESSEX STREET, SPECIALIST IN INTERNATIONAL LITIGATION AND ARBITRATION
  • BARBARA DOHMANN QC, BLACKSTONE CHAMBERS, SPECIALIST IN INTERNATIONAL ARBITRATION.
  • COLM Ó HOISÍN SC, BAR OF IRELAND, ARBITRATION IRELAND
  • PHILIPPA CHARLES, HEAD OF INTERNATIONAL ARBITRATION AT STEWARTS LAW LLP
  • COLLEEN HANLEY, 20 ESSEX STREET, BARRISTER WITH PARTICULAR FOCUS ON SHIPPING, COMMODITIES AND INTERNATIONAL ARBITRATION
  • JAMES HOPE, HEAD OF DISPUTE RESOLUTION AT VINGE
  • PATRICIA SHAUGHNESSY, STOCKHOLM UNIVERSITY
PROGRAMME

13:45 – REGISTRATION

14:00 – OPENING ADDRESS – Kristin Campbell Wilson, Deputy Secretary General, Swedish Chamber of Commerce Arbitration Institute

 

 

 

 

(Credit photo: Arbitration Institute of the Stockholm Chamber)

14:30 – 14:45 – THE FUTURE OF EUROPEAN INVESTMENT DISPUTES

Moderator – Judge Christopher Vajda, Judge of the European Court of Justice

SPECIFIC DISCUSSIONS INCLUDED: Post Brexit dispute resolution mechanism; ongoing work of UNCITRAL in relation to the EU proposal for a Multilateral Investment Court; Relationship of FTA and BIT/MIT law with EU law – where are we now?

16:15 – 17:45 THE ARBITRATION MELTING POT: CROSS CULTURAL TEAMWORK IN INTERNATIONAL DISPUTES

Moderator: Mr Justice David Barniville SC, Designated Arbitration Judge of the High Court of Ireland

SPECIFIC TOPICS INCLUDED: Arbitrator perspective; Practitioner perspective; The Institution: Stockholm Chamber of Commerce

18:15 Drinks reception at British Ambassador’s residence, generously sponsored by Vinge.

FRIDAY 21ST SEPTEMBER 2018 –  EUROPEAN CIRCUIT ANNUAL CONFERENCE

Hosted by The European Circuit at the Swedish Bar Association

The Friday morning began with a Court Visit before registration followed by a variety of topics including “Litigating Big Data” and “Digital Justice: Tools & Challenges”, with speakers including Sir Ernest Ryder (Senior President of Tribunals), AG Eleanor Sharpston (Advocate General at the European Court of Justice), David Cairns (British Ambassador to Sweden) and Seamus Woulfe SC (Attorney General in Ireland)

We closed the conference with drinks, dinner & discussion at Grodan Restaurant.

SPEAKERS & MODERATORS FOR FRIDAY INCLUDE:
  • AG ELEANOR SHARPSTON, ADVOCATE GENERAL AT THE EUROPEAN COURT OF JUSTICE
  • SIR ERNEST RYDER, SENIOR PRESIDENT OF TRIBUNALS
  • ROBERT O’DONOGHUE QC, BRICK COURT CHAMBERS
  • MICHAEL COLLINS SC, BAR OF IRELAND
  • JAANUS TEHVER, VICE CHAIRMAN OF THE ESTONIAN BAR ASSOCIATION
  • CHARLES CIUMEI QC, ESSEX COURT CHAMBERS
  • RUPERT PAINES, 11KBW
  • EILEEN BARRINGTON SC, BAR OF IRELAND
  • FERGUS RANDOLPH QC, BRICK COURT CHAMBERS
PROGRAMME

08:45 – 10:30 – COURT VISIT, SVEA COURT OF APPEAL

  

11:00 – 11:40AM REGISTRATION & OPENING ADDRESS – Seamus Woulfe SC, Attorney General in Ireland

11:40 – 12:00PM – KEYNOTE ADDRESS – “MAINTAINING & DEVELOPING JUSTICE IN EUROPE” – AG Eleanor Sharpston, Advocate General at the European Court of Justice

12:00 – 13:30 – DIGITAL JUSTICE: TOOLS & CHALLENGES

13:30 – 14:30PM – LUNCH

14:30 – 15:45 – LITIGATING BIG DATA

16:15 – 17:15 – GDPR & E-PRIVACY – TOP TIPS FOR ADVOCATES

17:15 –  AGM

19:00PM – DINNER & DISCUSSION – GRODAN, GREV TUREGATAN 16, STOCKHOLM

If you are interested in becoming a member of the European Circuit, please do not hesitate to contact us at [email protected] .The next annual conference will take place in Rome – look out for details on our website.

Credit photo: Abigail Holt, Amy Scollan and Michael Wilkinson. We are grateful to all speakers for allowing publication.

Posted by: Cécile Perrault

 

 

“OPPORTUNITIES FOR LAWYERS POST-BREXIT” – 5th July 2018, Manchester

by Abigail Holt

On a sweltering evening when, thankfully, we were not competing with the World Cup, the European Circuit came to Manchester chaired by Hugh Mercer QC in order to discuss whether Brexit would bring legal practitioners more opportunities; more happy Mondays or whether we’d be wailing “heaven knows I’m miserable now” after Brexit.

Fergus Randolph QC (Brick Court Chambers) kicked off explaining where the Brexit process was up to in terms of the European Union (Withdrawal) Bill 2018 and the fault lines, if not chasm, running between it and the EU’s formal Article 50 negotiating position.

Sarah Crowther QC (Outer Temple Chambers) gave a concise explanation of Henry VIII powers, and the use to which they would be put by government as part of the Brexit process to enable ministers to amend or repeal primary legislation (which has already been agreed by Parliament) using secondary legislation which may not be subject to parliamentary scrutiny. Sarah emphasised the volume of legislation that was going to need to be filtered through government post-Brexit and noted that Henry VIII powers was a mechanism whereby government could have a massive “spring clean”. However, as was emphasised by questions from the audience, the potential danger was that sheer size of the task of the housekeeping exercise and which would mean that significant legal changes would be brought about without being properly scrutinised by Parliament.

Manchester barrister Abigail Holt talked about EU citizens’ rights. She explained that immigration law in relation to EU citizens’ rights had gone down a completely different track to domestic immigration law ever since the UK joined the European Community. She also noted that, whilst on the face of it, the proposed immediate changes and proposals for EU citizens already in the country during the transitional period did not appear to be too controversial, the proposed changes would double the work of the Home Office overnight and significant logistical problems had already been noted by the Home Affairs Select Committee in their report on delivering Brexit.

Alex Batesmith barrister and academic at Liverpool University spoke about the importance of instilling in the next generation of legal students and practitioners proper respect for evidence, experts and empiricism. He also said that the opinions of lawyers and the legal profession would be better taken into account if legal practitioners were perceived to be closer to the wider community rather than being seen as simply motivated by commercial considerations.

Hugh Mercer QC (Essex Court Chambers) spoke about the loss of rights which Brexit envisaged. He listed some of the most glaring potential losses, so that the question whether Brexit would be worthwhile and resulting in a potential net gain of legal rights effectively asked itself. The overall conclusion seemed to be that it was not t all clear what the final outcome would be from the perspective of legal rights and how what would come after exit day would compare with our current arrangements.

As to the issue of whether Brexit would provide opportunities for lawyers, Fergus Randolph perhaps best summed the situation up when he said that there “was gold in them there hills”. However, so far as he was concerned, it was tainted.

  

Credit photo: Abigail Holt. We are grateful to all speakers for allowing publication.

Posted by: Cécile Perrault

 

 

“Written Constitutions – experiences and challenges.”

by Abigail Holt & Athena Markides 

Brenda from Bristol may have put it best: “not another one” is perhaps the only reaction to a forthcoming general election ever to have gone viral.

This is a nation ostensibly tired of politics. Tired of experts. Tired of being made to make difficult decisions. So is this is a sign that we need a written constitution? And if we do, is now the right time for one?

These are complicated and highly charged questions, and on the 4th May the European Circuit was privileged to hear these points addressed by some of Europe’s foremost authorities on the topic.

Lord Mance chaired a panel comprised of Sir Jeffrey Jowell QC, Professor Stefan Vogenauer, Professor Eoin Carolan and Professor Alison Young, each of whom spoke on the subject “Written Constitution – Experiences and Challenges” before taking questions from the audience. In the best legal tradition, the speakers were split and individually persuasive in their views.

It was hard not to sympathise with Sir Jeffrey Jowell’s assessment that a written constitution could offer a form of clarity, authority and accessibility which our current system does not.  UK lawyers, let alone the public at large remain unfortunately but understandably ignorant of the jurisprudence of constitutional law. This might be otherwise if the starting point were a slim paperback with which every school child – and indeed every politician, newspaper columnist and lawyer – could be provided.

Sir Jeffrey Jowell also emphasised that a written constitution could be used to entrench and safeguard commonly held values and those rights which we consider to be inalienable. It would provide a framework for decision-making, rather than being an instrument of decision making itself, and thereby subject to political imperatives. In this regard, Sir Jeffrey characterized a written constitution as “a tie imposed by Peter when sober on Peter when drunk.” At a time when Peter appears to be poking at his left ear and proclaiming that he has found his nose, it is tempting to lock the fine china out of his reach.

Professor Vogenauer offered his insights regarding the German constitution. He noted that the German consensus was that their written constitution was a source of national pride and a “good thing”. Professor Vogenauer acknowledged, however, that a written constitution is not a panacea. It can only ever be as good as its contents and those who preserve and apply them. It is easier to protect human rights by restricting those actions which undermine them than to legislate for the provision of social rights. A successful written constitution might therefore disappoint the aspirations of its proponents. Professor Vogenauer concluded that a cost-benefit analysis ought properly to be incorporated within a written constitution to ensure that it was able to change and remain flexible and responsive, whilst simultaneous safeguarding those rights which were contemporaneously considered sacred.

Professor Carolan adopted the theme of practicality, emphasizing the limits of language as a tool to uphold uplifting public values and reiterating that drafting in loose language can be expensive for governments. In so doing, he reminded the room that language alters over time, often unpredictably; a written constitution would need to be sufficiently flexible to avoid it becoming a tool of oppression. Professor Carolan also highlighted the perceived lack of trust in experts, elites and public authority figures in the UK at present. As perhaps the most natural proponents of a written constitution, these figures would be unlikely to receive a welcome reception. A written constitution perceived as illegitimate by the majority- or even a significant minority of, say, 48% – is arguably even worse than the current system. There are significant logistical challenges in organizing the consultations which would be a necessary precursor to a written constitution: enshrining the status quo is not a rallying cry for concentrated political action. The possibility of fomenting change might garner more support, but it is far from clear that that those competing objectives could solidify into support for any single set of proposals.

Professor Young reinforced the view that “elites” are a damaged currency at present. National divisions create the real risk that advocates for constitutional change will find their views discounted on the basis that they are either a “Leaver” or a “Remainer”. As campaigning becomes increasingly partisan and the electorate is asked to define itself as much by who it opposes as by who it supports, it is hard to define the fundamental values which might form the basis of a written constitution. It was also easy to sympathise with Professor Young’s view that Parliament is rather preoccupied at present, and would be unlikely to welcome significant constitutional debate with the care, time or investment it deserves.

I could not help but share in Sir Jeffrey’s enthusiasm for the benefits of a written constitution. But as the talks progressed, I found myself increasingly convinced that at this precise moment in time, we would be unlikely to reach agreement on any constitution worth having.

It was a recurrent theme amongst the speakers that countries adopt written constitutions following a tipping point: some moment of fundamental change, typically war or revolution. No one can deny that the United Kingdom is facing significant constitutional upheaval. No one can deny that there are advantages to a written constitution. The question is whether we should wait for Peter to sober up, or whether we need to act now before he finishes the bottle.

 

 

Annual Conference 2017 – Brussels

By ATHENA MARKIDES

Earlier this year, I was asked whether I would like to attend the European Circuit’s annual conference on behalf of the Young Barristers’ Committee.

It was a tempting prospect.

I have long had an interest in EU law. The opportunity to visit Dublin and watch a line-up of EU law heavyweights discussing the most important developments of the day (or indeed of the decade) seemed too good to miss. Plus, attendees were being offered the opportunity to tour local courts, with the entire conference being rounded off with dinner at the Honourable Society of King’s Inns. I had never been to Dublin before, and this seemed as good a time as any to head over. So I agreed.

“Great,” I was told. “Oh and by the way, we want you to give a short talk. Something about the challenges for juniors looking to develop an international practice. That’s all right, isn’t it?”

As a very junior barrister with a common law and commercial practice, I felt well equipped to discuss those challenges. More difficult, however, would be any discussion regarding achievements. Yes, I have an LLM and a keen interest in EU law. Like many others, my practice includes some elements of ‘proper’ international work – advising on conflicts of laws and involvement in a couple of international arbitrations – but I’d still be an obvious outsider, wouldn’t I?

I needn’t have worried – I had a fantastic time.

Conference organiser, Gerard McDermott QC, was the first to put me at ease, telling me how he had successfully incorporated international elements into his personal injury practice. This wasn’t something which had been handed to him on a plate by his Chambers (in fact it hadn’t even been on the menu); he had identified this as an area of particular interest and then worked solidly to turn it into a cornerstone of his practice.

This was a theme which resonated throughout the conference. Covering an enormous range of topics – from court reform across Europe, to cross-border traffic accidents, appellate advocacy in the US, and a perspective from the Irish judiciary – the conference well-illustrated the international elements relevant to a range of practice areas. The conference organisers also had at least one eye firmly on the future, with talks about the online court and the increasing use of technology in dispute resolution.

But above all, this conference stood out because of the community which attended it: friendly, welcoming and very interesting. In common with the best smaller conferences, attendees left buzzing with ideas and information (and probably champagne too…) but also with the sense that foundations had been laid for potential future friendships as well as working relationships.

The European Circuit aims to support and facilitate the exchange of experience among lawyers with a cross-border practice. And the conference absolutely achieved that aim. It was fascinating to compare my own experiences as a junior barrister with those of juniors from the Northern Irish and Republic of Ireland bars. My contemporaries and I may have concerns about attracting work, pleasing our clerks and getting paid on time, but this is nothing to the experience of our self-clerking counterparts across the Irish Sea.

The conference was also attended by a contingent from the American Counsel Association and I had a great time learning more about US insurance law, the American judiciary and how juries are used to set damages in civil trials in Connecticut.

And this fed into yet another broad theme: that of openness, awareness and of a willingness to embrace progress. Our domestic legal system is on the brink of significant change. Brexit is an obvious but not exclusive harbinger of a new order: the Joint Vision Statement produced by the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals this September is a radical manifesto on any account.

It is at times like these that I think all practitioners benefit from an appreciation of the range of dispute resolution mechanisms which are out there and operational across the world. In terms of personal and career development it is obviously vital to be open-minded but also well-informed. For the young practitioner, conferences like this one offer a great chance to meet like-minded (and often better-minded) people, to hear about their experiences in work and in life more generally and to gain a broader perspective.

All in all, the conference was a terrific two-day event. It has galvanised me to get more involved with the Circuit and to keep developing the international elements of my practice. I also found the conference happily uplifting. At a time when people may be feeling less international and more divided, it was a striking reminder that we can and do benefit from an international outlook.

If you are interested in becoming a member of the European Circuit, please do not hesitate to contact me at [email protected]  The next annual conference will take place in Brussels – look out for details on the European Circuit’s website https://www.europeancircuit.com/

 

 

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