High Court in Belfast rejects Brexit challenge

The High Court in Belfast dismissed two judicial review challenges to the Government's proposed invocation of Article 50 of the Treaty on European Union, which would trigger the UK's withdrawal from the EU: McCord [2016] NIQB 85.

The case considered only issues unique to the Northern Irish proceedings.  The Court has not made any decision on the issues which are being considered by the High Court in London in the Miller case, where a judgment is expected very soon on the question whether the prerogative power of the Government to trigger Article 50 can be used without reference to the UK Parliament. Please click here for our briefing note on this issue.

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The post below was first published on our UK Real Estate Development blog

Authors: Julie Vaughan, Senior Associate, Environment and Helena Thompson, Associate, Planning and Environment, London

On 2 October 2016, Prime Minister Theresa May announced at the Conservative Party’s annual conference that all existing EU law – and therefore, environmental law – will be kept when the UK leaves the EU.  A “Great Repeal Bill” will be announced in the next Queen’s Speech, to repeal the European Communities Act 1972 (“ECA”) with effect from our exit of the EU. The ECA gives effect to EU law within the UK, provides for its supremacy over UK law where the two conflict, and provides the enabling powers to make secondary legislation to implement EU Directives. May has stated that when the ECA is repealed, all EU law will no longer have effect in the UK, and the existing EU law will be converted into domestic law (“Converted EU Legislation”).

It wasn’t clear from May’s speech exactly how EU law will be converted. Directly applicable EU law (i.e. EU Regulations) could be deemed, rewritten, or copied into, primary legislation; and UK secondary legalisation implementing EU Directives will be saved by various means.  However, the intent is that all EU environmental law will in some manner continue to have effect in the UK. May stated that Parliament will be able to amend, repeal or improve the Converted EU Legislation, and David Davis added that the Great Repeal Bill would include powers for ministers to make some changes by secondary legislation, causing alarm in some quarters that substantive changes could be made without full Parliamentary scrutiny. However, the power to make environmental legislation is devolved to the regions – Scotland, Wales and Northern Ireland – and it is unclear how the Great Repeal Bill will deal with the devolved powers.

Important questions remain unanswered (discussed below in this post):

1. How will we interpret Converted EU Legislation?

2. How will references to EU legislation, guidance or bodies be dealt with in the Converted EU Legislation?

3. Are we stuck with EU legislation at the point of Brexit?


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The post below was first published on our Litigation blog

On Tuesday 18 October (12noon – 1.00pm UK time) we will present the first in a new series of webinars for Herbert Smith Freehills clients and contacts, focussing on the issues that arise in litigating cross border disputes. In this webinar:

  • Larry Shore, a disputes partner in our New York office, will consider ways of obtaining evidence in the US for proceedings in England. Very broad disclosure is potentially available under 28 USC s1782 and Larry will discuss the opportunities and challenges this brings.
  • Gitta Satryani, a disputes senior associate in our Singapore office, will consider the impact made by the Singapore International Commercial Court, launched in January 2015. She will also discuss changes in the rules for enforcement of Singapore judgments since the Hague Convention on Choice of Court Agreements 2005 came into effect on 1 October 2016.
  • Anna Pertoldi, a disputes partner in our London office, will look at  choice of law and jurisdiction post Brexit and the different options available to the UK government in its negotiations with the EU.

The webinar is part of our series of “Soundbite” webinars, which are designed to update clients and contacts on the latest developments without having to leave their desks. The webinars can be accessed “live”, with a facility to send in questions by e-mail, or can be downloaded as podcasts after the event. If you would like to register for a webinar, or to obtain a link to the archived version, please contact Jane Webber.


The post below was first published on our Employment blog

At the Conservative Party conference, Theresa May announced plans to repeal the 1972 European Communities Act, which gives direct effect to EU law in the UK, and to transpose all existing EU laws into domestic legislation. She also promised that “existing workers’ legal rights will be guaranteed” during her premiership.

The conference speeches also built on the policy announced by Mrs May at the G20 summit to tackle corporate irresponsibility, “cracking down on excessive corporate pay and poor corporate governance, and giving employees and customers representation on company boards”.

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