Brexit and civil jurisdiction. EU unlikely to consent to UK joining the 2007 Lugano Convention in time for the end of the implementation period.

 

Once the news was all “Brexit, Brexit, Brexit”. Halcyon days. Now it is nothing but the public health emergency. Except, there are still a few pieces of news about Brexit. One of which concerns the arrangements for civil jurisdiction and enforcement of judgments between the UK and the EU Member States after 1 January 2021.

Absent an agreement with the EU on jurisdiction, the UK will revert to its common law rules on jurisdiction on 1 January 2021. This assumes that the UK does not avail itself of the opportunity under the EU Withdrawal Agreement to seek an extension to the implementation period by the end of June, something Mr Johnson has repeatedly stated he will not do, and something which has been specifically ruled out in the statute implementing the Withdrawal Agreement. But there are two other civil jurisdiction regimes to which the UK can become a party, and that is certainly the government’s intention.

The first is the 2005 Hague Convention  on Choice of Court Agreements 2005 (Hague Convention), which came into force as between the Member States and Mexico on 1 October 2015 (for intra EU matters the Recast Regulation prevails).  The Convention deals with exclusive jurisdiction clauses in favour of a Contracting State and for recognising and enforcing judgments within Contracting States in respect of contracts with such clauses. The Convention does not apply to contracts for the carriage of goods ( bills of lading and voyage charters) or passengers, although it would apply to time charters and demise charters. The EU has exclusive competence over anything jurisdictional, and agreements with third party states must be made by the EU acting on behalf of the Member States – hence it was the EU that ratified the 2005 Hague Convention and not the Member States. The UK government previously submitted its accession to this back in December 2018, to come into effect on ‘exit day’, but this has, for the time being, been withdrawn. Doubtless it will re-accede in September to allow for the UK to join the Convention in its own right as of 1 January 2021.

The second is the 2007 Lugano Convention between the EU and three third states, Norway, Iceland and Switzerland. This is basically the original 2001 Brussels Regulation, an inferior regime to the 2012 Recast version, but better than nothing. On 8 April the UK applied to join the Lugano Convention. For this to happen the consent of all the existing contracting parties must be forthcoming. The three third states seem quite happy about this but what about the EU? The signs are that it is not going to consent to the UK’s application.

An article in today’s FT states “EU diplomats said the European Commission had advised the bloc’s member states earlier this month that a quick decision was “not in the EU’s interest”. The diplomats said the commission raised the issue during a meeting with EU member-state officials on April 17, saying that granting the request would be a boon for Britain’s legal sector. A commission official told the meeting there were other international rules that Britain could use as a fallback, and that current signatory countries were all part of the EU’s single market, the diplomats said. With the UK determined to leave the single market after the transition expires, the commission “will surely not make a positive recommendation,” said one national official who took part in the meeting.”

A Brussels I glitch for underwriters, but perhaps no great harm

The sequel to the Atlantik Confidence debacle hit the Supreme Court this week. That court determined that UK courts won’t be doing any more deciding on the affair.

To recap, the Atlantik Confidence, a medium bulk carrier, was scuttled by her owners just over seven years ago in an insurance scam. Her hull underwriters, who had paid out some $22 million in all innocence to Credit Europe, the bank assignee of the policy, understandably asked for their money back. Unfortunately the bank was Dutch, and stood on its right to be sued in the Netherlands under Art.4 of Brussels I Recast, and also under Art.14, which says that insurers can only sue a policyholder or beneficiary in his own jurisdiction. Teare J held (as we noted here) that in so far as the underwriters could prove misrepresentation by the bank (which they had a chance of doing) they could sue in tort in England, since the effects of the misrepresentation had been felt here. Art.14 was no bar, since although this was a matter relating to insurance that provision was predicated on the person sued by the insurer being a weaker party (see Recital 18 to the Regulation), and no sensible person could think Credit Europe needed to be protected from the foul machinations of overbearing insurers. The Court of Appeal agreed (see Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2018] EWCA Civ 2590), citing the Advogate-general’s view in Kabeg v Mutuelles Du Mans Assurances (Case C-340/16) [2017] I.L. Pr. 31 that Art.14 could be disapplied to a subrogee “regularly involved in the commercial or otherwise professional settlement of insurance-related claims who voluntarily assumed the realisation of the claim as party of its commercial or otherwise professional activity”.

The Supreme Court was having none of it: see Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2020] UKSC 11. It was brief and to the point. This was a matter related to insurance; there was no agreement binding on the bank to submit to English jurisdiction; and Art.14, as so often in the case of Euro-law, should be interpreted as seeking bureaucratic certainty rather than nuanced determination. Any reference to relative weakness was merely background, there to explain why the EU has a bright line rule that insurers can’t ever be allowed to sue except in the defendant’s domicile.

Where from here? On present indications our final Brexit disentanglement from the EU will be no escape, since the present intention is for the UK to jump sideways from Brussels I to Lugano, which also has identical provisions about insurers (for Art.14 read Art.12).

But remember that in the case of marine insurance Art.14 can be ousted; and the sting of this decision might well be able to be drawn by some nifty drafting. Obviously every policy must have a provision under which the policyholder submits expressly to the jurisdiction of the English courts. There needs to be added to this a provision that no assignee can enforce payment except against the giving of an express undertaking to submit to English jurisdiction in the event of any dispute; and a cast-iron practice of never making payment to any assignee except against receipt of such an undertaking by the underwriter.

Of course we don’t know what the ECJ would say about this (though it’s difficult to see how it could object). But that may not matter. By the time the issue comes to be tested, we are likely to be outside the clutches of that court anyway.

UK withdraws accession to 2005 Hague Convention on Choice of Court.

As expected, 31 Jan 2020 saw the following

 

31-01-2020
With reference to depositary notification Choice of Court No. 01/2019, dated 2 January 2019, regarding the accession to the Convention by the United Kingdom, and with reference to depositary notifications Choice of Court No. 03/2019, dated 29 March 2019, Choice of Court No. 04/2019, dated 12 April 2019, and Choice of Court No. 07/2019, dated 31 October 2019, regarding the suspended accession of the United Kingdom to the Convention, the depositary communicates that the Instrument of Accession, Note Verbale and Declarations were withdrawn by the United Kingdom on 31 January 2020.

 

In the meantime the UK keeps riding along in the Convention due to the EU’s accession.

Don’t worry, another UK accession will probably be along later in the year as the UK approaches ‘third party state’ day (TPS day) on 31 December 2020 – possibly to be followed by another ‘withdrawal’ in the event that the UK and the EU conclude an agreement on judgments and jurisdiction before the end of the implementation period.

Going, going, gone (but no Bong!). UK leaves EU at 11 tonight.

 

Tonight at midnight Brussels time, 11 pm for us Brits, the UK ceases to be a member of the european union. So what will change? Very little. The UK now enters the implementation period which will see it subject to EU law, the customs union and the internal market. It will not participate in the institutions of the European Union so today our MEPs will be packing their bags and coming home.

The implementation period will cease at 11 pm our time on 31 December. In the meantime the UK government is now free to start official negotiations with the EU and with the US and other states for free trade agreements.  These cannot be implemented, though until the implementation period comes to an end.

The Brussels Regime on Jurisdiction and Judgments would cease to be part of UK domestic law on ‘exit day’ pursuant to  2019 No. 479 Exiting the European Union Private International Law. The Civil Jurisdiction and Judgment (Amendment) (EU Exit) Regulations 2019. This has not been repealed, but under ss 1and 2 of the European Union (Withdrawal Agreement) Act 2020 the whole corpus of EU law will remain effective in the UK during the implementation period, including the Brussels Regime.

The UK acceded to The Hague Convention on choice of court agreements on 28 December 2018, followed by a series of suspensions until exit day which come to an end on 1 February 2020. Cometh the exit day cometh the Convention. Previously the UK was a party to the Convention via its EU membership. That will cease at 11pm tonight. At 00.01 tomorrow it will now be a party in its own right. However, in its declaration of 30.10.2019 the UK Government stated

“In the event that a Withdrawal Agreement is signed, ratified and approved by the United Kingdom and the European Union and enters into force prior to or on 1 February 2020, the United Kingdom will withdraw the Instrument of Accession which it deposited on 28 December 2018.”

This does not appear to have happened yet.

Brexit. Here’s the new deal – same as the old deal?

 

Mr Johnson yesterday concluded a new withdrawal agreement with the EU which will be put before Parliament on Saturday, after the rugby.

 

The main changes from Mrs May’s withdrawal agreement are that under the new backstop, that would come into effect on 1.1.2021 if a new agreement with the EU has not been concluded by then, there would be customs border between Eire and Northern Ireland but in practice customs checks on goods going into the island of Ireland, would take place on the UK mainland – not, as has been suggested, in the Irish Sea. Northern Ireland would also be subject to the rules of the internal market as regards goods and agriculture. Stormont will be able to vote on the continuance of this backstop four years after the end of the transition period and should it vote against them these provisions would lose force two years later during which time the “joint committee” would make recommendations to the UK and EU on “necessary measures”. In the absence of a sitting Northern Ireland Assembly at that time the UK would make alternative arrangements to provide for the necessary vote.

If the Northern Irish Assembly votes against the provisions, they would lose force two years later during which time the “joint committee” would make recommendations to the UK and EU on “necessary measures”.

 

There are changes to the political declaration, too. The parties are committed to concluding a free trade agreement which provides for regulatory autonomy in para 18 as follows.

“The Parties will retain their autonomy and the ability to regulate economic activity according to the levels of protection each deems appropriate in order to achieve legitimate public policy objectives such as public health, animal health and welfare, social services, public education, safety, the environment including climate change, public morals, social or consumer protection, privacy and data protection, and promotion and protection of cultural diversity. The economic partnership will recognise that sustainable development is an overarching objective of the Parties. The economic partnership will also provide for appropriate general exceptions, including in relation to security.”

Para 21 contemplates “free trade area, combining deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair competition, as set out in Section XIV of this Part.”

Shortly afterwards there follows one of those exceptions.

 

  1. While preserving regulatory autonomy, the Parties will put in place provisions to promote regulatory approaches that are transparent, efficient, promote avoidance of unnecessary barriers to trade in goods and are compatible to the extent possible. Disciplines on technical barriers to trade (TBT) and sanitary and phytosanitary measures (SPS) should build on and go beyond the respective WTO agreements. Specifically, the TBT disciplines should set out common principles in the fields of standardisation, technical regulations, conformity assessment, accreditation, market surveillance, metrology and labelling. The Parties should treat one another as single entities as regards SPS measures, including for certification purposes, and recognise regionalisation on the basis of appropriate epidemiological information provided by the exporting party.

And another is to be found in section XIV

“To that end, the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters….”

The parties commit to “maintain environmental, social and employment standards at the current high levels provided by the existing common standards…. [and] should rely on appropriate and relevant Union and international standards, and include appropriate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement. The future relationship should also promote adherence to and effective implementation of relevant internationally agreed principles and rules in these domains, including the Paris Agreement.”

 

But it is not all about goods. Paragraph 25 provides “The Parties should conclude ambitious, comprehensive and balanced arrangements on trade in services and investment in services and non-services sectors, respecting each Party’s right to regulate. The Parties should aim to deliver a level of liberalisation in trade in services well beyond the Parties’ World Trade Organization (WTO) commitments and building on recent Union Free Trade Agreements (FTAs).” This will aim for substantial sectoral coverage in line with GATT article 5.

Maritime transport is mentioned at para which provides “The future relationship should facilitate cooperation on maritime safety and security, including exchange of information between the European Maritime Safety Agency (EMSA) and the United Kingdom Maritime and Coastguard Agency (MCA), consistent with the United Kingdom’s status as a third country.” There is no mention of the Rotterdam Rules.

There would be an independent arbitration process to deal with disputes under the new agreement but: “[131] The Parties indicate that should a dispute raise a question of interpretation of provisions or concepts of Union law, which may also be indicated by either Party, the arbitration panel should refer the question to the Court of Justice of the European Union (CJEU) as the sole arbiter of Union law, for a binding ruling as regards the interpretation of Union law. Conversely, there should be no reference to the CJEU where a dispute does not raise such a question.”

The new WA will have to obtain the approval of Parliament on Saturday, otherwise Mr Johnson will be required by law to seek an extension to 31 January under art.50.  If the necessary letter is not sent, the Scottish Court of Session will reconvene on October 21 to decide whether it will sign a letter to the EU on Mr Johnson’s behalf.

In the meantime, expect a lot of phone calls by Mr Johnson to ‘our friends in the North’. Labour votes, or abstentions, are likely to be critical to getting the new deal through.

 

Parliament has not been prorogued. Supreme Court rules prorogation unlawful and of no effect.

 

Today the Supreme Court has unanimously ruled that Mr Johnson’s advice to the Queen to prorogue Parliament was unlawful and the subsequent Order in Council giving effect to it was unlawful, void and of no effect and should be quashed.

The Supreme Court  found that the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable, both as regards the existence and limits of a prerogative power. A decision to advise prorogation would be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. This was the case here. This prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances in the light of the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October.

Parliament reconvenes today, Wed 25 September.

Former Justice of the Supreme Court, Jonathan Sumption, today expressed the view, on the ‘Today’ programme, that enforcement of the Benn Act would be through proceedings being taken in the Courts and the Court appointing an individual to write the letter requesting an extension under article 50 on behalf of the Prime Minister.

 

 

England 1 Scotland 1. Brexit prorogation in the courts. Extra time now being played in the Supreme Court.

Last week in Cherry v Lord Advocate the First Division, Inner House, Court of Session [2019] CSIH 49 P680/19 held that Mr Johnson’s decision to advise the Queen to prorogue Parliament for five weeks was justiciable. The key part of the decision is quoted below.

“[91] I can see that just because a government has resorted to a procedural manoeuvre in order to achieve its purpose does not mean that there is necessarily scope for judicial review. Procedural manoeuvres are the stuff of politics, whether conducted in Parliament or in lesser bodies. However, when the manoeuvre is quite so blatantly designed “to frustrate Parliament” at such a critical juncture in the history of the United Kingdom I consider that the court may legitimately find it to be unlawful.

There are undoubted difficulties in the courts applying its supervisory jurisdiction to an exercise of the royal prerogative within the political sphere, but Mr Johnston for the respondent did not go the distance of saying that there could never be a case which would justify intervention. He accepted that a two year prorogation of Parliament might be amenable to review. Here, the prorogation is only five weeks (and it is to be borne in mind that in practice the reduction of sitting days will be less because of the traditional adjournment of Parliament during the political party conference 49 season). However, it is a lengthy prorogation at a particularly sensitive moment when time would seem to be of the essence. In my opinion Mr Mure QC for the Lord Advocate (whose analysis I accept) was right to point to the dictum of Lord Sumption in Pham v Secretary of State [2015] UKSC 19 at paras 105-106: “in reality [there is] a sliding scale, in which the cogency of the justification required for interfering with a right will be proportionate to its perceived importance and the extent of the interference”.

Here there has been interference with Parliament’s right to sit, should it wish to. The petitioners want to protect that right. If Parliament does not wish to be so protected it can decide accordingly but the petitioners want to give it the opportunity to determine whether and when it is to sit between now and 31 October. The petitioners submit that as yet Parliament has not had that opportunity, notwithstanding the legislative activity that was going on during the hearing of the reclaiming motion.

What has led me to conclude that the court is entitled to find the making of the Order unlawful is the extreme nature of the case. A formulation to which I have been attracted is found in chapter 14, Crown Powers, the Royal Prerogative and Fundamental Rights, in Wilberg & Elliott, The Scope and Intensity of Substantive Review (Hart, 2015) at p 374 where the author of the chapter, Sales LJ, as he then was, refers to a group of authorities where the courts had been prepared to review exercises of the Crown’s common law and prerogative powers. The formulation is: “these are egregious cases where there is a clear failure to comply with generally accepted standards of behaviour of public authorities”. I see this as an egregious case. Mr O’Neill came to submit that the essence of the illegality here was irrationality (as had been the cases with the cases referred to by Sales LJ). Mr O’Neill may be right about that, although I would see it as having to do with improper purpose. At all events, I consider the Order to be unlawful and that making it was contrary to the rule of law.”

 

A contrario, the English High Court has found that the matter is one of high politics and is not justiciable.

The case is currently being heard on appeal in the Supreme Court. Eleven of the Twelve Justices of the Supreme Court are hearing the case.

Brexit in the courts. Miller loses, but Supreme Court to hear on 17 Sept.

Gina Miller’s challenge to prorogation was unsuccessful but an appeal to the Supreme Court has been scheduled for 17 Sept. The court’s reasons are to be released shortly.

With the possibility of a new PM early next week this may all become somewhat academic.

Today the House of Lords has passed the Benn bill to prevent a no-deal Brexit and it will receive the Royal Assent on Monday.

It has been revealed that a former Prime Minister has been referred to by Mr Johnson in a leaked memo as ‘a girly swot’.

A Brexit Dictionary (2). Pro rogue, or anti rogue?

 

Constitutional crisis. What would happen if Mr Johnson advised the Queen to refuse the Royal Assent to an Act of Parliament requiring he seek an extension under article 50.

Contempt of Parliament. Mr Johnson’s possible situation if he refused to abide by any Act of Parliament requiring he seek an extension under article 50. Michael Gove has refused to say whether the government would abide by legislation against no-deal Brexit, if it were passed by Parliament. A case of ‘Who GOVErns Britain’ then (c. Heath, E 1974).

Cummings. ee, American poet (1894-1962) who broke the rules of punctuation. Dominic, chief adviser and major domo to Mr Johnson.

General Election. Cannot be called until 2022 under the Fixed Term Parliament Act 2011 unless either the Government or the Opposition put forward a motion of no confidence in the government. If this is passed there are then fourteen days for an alternative government to be formed and if this is not possible Parliament will be dissolved and there will be a general election at a time specified by the Prime Minister. Alternatively, as in 2017, Parliament may be dissolved before the expiry of five years from the previous general election if there is a two thirds majority for this in the House of Commons. The opposition may not necessarily cooperate in which case there could be no ‘snap election’ for Mr Johnson, but Mr Corbyn might have to accept the soubriquet ‘frit’ (c Thatcher, M).

GNU. A Wildebeest, celebrated in song by Flanders and Swann.  Alternatively, a Government of National Unity.

Interdict. Scottish for ‘injunction’. This was refused on Friday in the current proceedings in Scotland challenging the legality of the prorogation of Parliament by Mr Johnson, but the hearing of the proceedings has been advanced to this Tuesday. Gina Miller has launched a separate application for judicial review of Mr Johnson’s prorogation of Parliament to be heard on Thursday. Today’s ‘Times’ reports that space has been made for the Supreme Court to hear the inevitable appeal this coming Friday. A further application is before the court in Northern Ireland. A busy week for the judiciary.

Labour votes. What Mr Johnson may need to get a new withdrawal agreement through Parliament (see ‘Spartans’ below).

No deal Brexit, ways of stopping.

  1. Mr Johnson renegotiates a withdrawal agreement and seeks an extension from the EU under article 50 to get Parliament’s approval.
  2. Article 50 is revoked. Must be done by a PM so need a new PM via Vote of No Confidence (VONC).
  3. An extension to article 50 is sought. Must be done by a PM so need a new PM via VONC.
  4. Act of Parliament requiring PM to seek further specified extension under article 50 and to revoke article 50 if the EU had not given the extension sought by 30 October. See, too, contempt of parliament, constitutional crisis.

Making your mind up. Rare Eurovision win for UK in 1981. Alternatively, something Parliament was incapable of doing in the indicative votes in the Spring.

Rebel Alliance. Han Solo, Luke Skywalker, Princess Leia (still fighting the same enemy thirty odd years after their decisive victory).  Alternatively, Oliver Letwin, Dominic Grieve, Anna Soubry etc

Spartans.  Members of the European Reform Group who are likely to vote against any new withdrawal agreement negotiated with the EU by Mr Johnson.

Standing Order 24

From Parliament’s website

“An MP may apply to the Speaker for an emergency debate on Mondays to Thursdays during sitting time under the rules of Standing Order No. 24.

If the Speaker has given the MP leave they will have three minutes to make a speech after question time and any urgent questions or ministerial statements. The Speaker then decides whether to submit the application to the House.

The House will have to agree that the debate takes place. If the House agrees to the application the emergency debate will take place on a future day, usually the next sitting day. The motion to be debated will be “That the House has considered the matter of [Topic]”.

Expect Speaker Bercow to allow an emergency debate on a bill requiring the PM to apply to the EU for an extension under art.50.

TBP. The Brexit Party.  Hovering in the wings.

 

 

The Brexit dictionary.

 

P is for prorogue.

This is the action of discontinuing a session of a parliament or other legislative assembly without dissolving it. The Prime Minister, Mr Johnson, has today announced his intention to ask the Queen to prorogue Parliament in the second week of September ahead of a Queen’s Speech on 14 October.

Other notable proroguers have been Charles I, James II, Clement Attlee, and John Major.

Last month Lord Doherty in the Scottish Court of Session fast-tracked a legal challenge backed by 75 MPs and peers to prevent the Prime Minister Mr Johnson proroguing parliament to force through a no-deal Brexit. A hearing is scheduled for the end of the next week and in the meantime Jolyon Maugham QC who is representing the challengers has stated that he will be seeking an order that the prospective prorogation of Parliament for four and a half weeks from 11 September announced today be put on hold until after the result of that hearing.

S is for Supreme Court

Which is where this will probably end up.