Back to Brexit

Articles | Tue 28th Apr, 2020

Do you remember Brexit? When viewed through a rose-tinted lens, the shenanigans of 2019 seem like carefree days of whimsical and costless political indulgence. The fact that, at a critical stage in the (time-limited) transition period negotiations, the principal negotiator on each side was self-isolating with suspected covid-19 might appear like posterity’s sardonic comment on the relative importance of Brexit versus pandemic. However, the Brexit circus staggers on: its tattered banners and meaningless advertising beaten down, but unabashed. It was, therefore, with a degree of relief (for the distraction if nothing else) that I turned to a small inside piece in yesterday’s FT (27 April 2020) captioned, “Brexit: Britain risks losing access to EU Legal Accord.” Some of you will have noted that on 28 January 2020 the UK Government (MoJ) published a statement welcoming the support received from Switzerland, Iceland and Norway for the UK to accede to the Lugano Convention 2007 (at the end of the present transition period which ends … soon: 31 December 2020). While Lugano does not contain all of the reciprocal rights and benefits of recast Brussels I (No 1215/2012) it is (much) better than nothing and many of us are already adept at using Lugano in claims brought against Swiss, Norwegian etc. domiciled Defendants. A tried and tested jurisdictional regime of this kind might also provide some legal certainty and predictability of outcome (to be communautaire) for Defendant insurers.

On 8 April 2020 the UK duly submitted a formal application to accede to Lugano in its own right (preserving most, if not all, of the advantages of the present regime so that, on 31 December 2020, we do not bump out of recast Brussels I and Lugano at once, but preserve Lugano). In this regard the UK Government has woken up (late) to the need to provide some protection and continuity to its highly successful legal sector and has been keen to deal separately on Lugano so that the advantages of this regime are not lost or bargained away in the wash up for the general trade talks. While, as indicated, our application has the support of Switzerland et al, we also need the European Union to support our bid to join on an independent basis and, specifically, the support of the European Council. If the FT report is accurate, we are not (yet) in luck, “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.” Pausing here, one cannot help wondering whether this predicted boon played some part in framing the Commission’s thinking … . However, the stated reason for treating Britain’s request with such caution was that current signatory countries were all part of the single market and the UK’s determination to depart the single market come 31 December was such that, according to one unnamed EU source, the EU Commission “will surely not make a positive recommendation.” While the present crisis might have demonstrated that EU affection for the single market has its limits (as Italy’s health sector might point out), Brexit and the UK’s belated desire to protect its legal market apparently provides an example of where the bonds between the Union’s institutions and the single market remain as strong as ever. No doubt, negotiations will continue.

About the author

Matthew Chapman QC was called in 1994 and took silk in 2017.  Together with his colleagues at 1 Chancery Lane, he co-authors the leading legal textbook in the area, and is described in the legal directories as being ‘the go-to barrister for complex issues of jurisdiction and applicable law’.