The European Courts and Brexit

Businesses need to keep its eyes and ears on how matters develop over the Brexit negotiation period. Peter Sellar states that while it seems that the UK Government wishes to keep matters secret, the EU can be counted on to be transparent. He expands: “Thanks to that, we will be able to keep track of developments and the likely direction of travel. That should facilitate matters in terms of adapting or, better still, pre-adapting as we enter Brexit.” Peter has since founded a Brexit consultancy called Scotland’s EU Consultancy to navigate clients through the Brexit process; we speak with Peter on matters involving the UK leaving the EU and his previous role as Head of Competition.

Before you were called to the Bar, you worked as Head of Competition for Lloyds Banking Group – what were the main indications to a ‘good’ corporate deal?

I worked as Head of Competition and Regulatory in the insurance division. Indications of a good corporate deal – from the competition law point of view – were obvious. The earlier that the legal minds could be brought into the matter, the more likely issues down the line would be avoided. Necessarily, lawyers need to be kept in the background otherwise they can get in the way, but for as long as they have a shadowing remit with an invitation and encouragement to interject as required and as very much part of the team, the deal was more likely to run smoothly.

The issues that had to be dealt with tended to be ones where the business got carried away with itself, concentrating on internal targets for example, rather than thinking about the client. In short: personal greed would get in the way of treating customers fairly.

Since being called to the Bar in 2014, how did your role change? What new challenges did you face?

At the bar you are autonomous. You trade on your reputation. It is up to you to go out there and get that work and to keep on getting it because there is no wage or fixed salary. That is the principal challenge that all advocates face. In terms of changes to the work itself, life is much more focused on: (a) research and drafting, whether of opinions or pleadings and (b) preparation for and appearance in the highest courts. When you are busy, it is full-on work with no one to share the responsibility – “on your head be it”, in other words, but there is plenty of positive adrenalin.

Did you have any misconceptions of the European Courts before you were called to the Bar? What changes would you make to the EU Courts if you could?

I had practiced for 15 years in private practice and had appeared as a solicitor before the European Courts and Tribunals, so I was familiar with those courts. Personally, I would hope that – Brexit notwithstanding – the UK courts continue to borrow more from the tendency in the EU and focus on written pleadings in the first place and then a targeted oral hearing. There is a myth that one turns up and speaks for only 15 minutes in Luxembourg. My experience is the opposite – the judges come prepared and will grill you good and proper on the five or ten irksome issues they have identified. That stands in contrast with the UK way of doing things, which focusses too much on procedural obfuscation and an oral hearing at which one finally discovers what one meant by the written pleadings, only after having rehearsed every argument at virtual dictation speed. Too much hangs on human error at that stage in my view. Writing should be king, with the killer blows landed by mouth.

How do you expect cases to change throughout and post Brexit?

We have no idea at this stage how EU Law based cases currently being litigated before UK courts will be considered. It would strike me as most odd if, for example, any such case which is brought in accordance with the applicable procedural rules should be denied the opportunity to refer a preliminary preference to the Court of Justice, for example. Those already in train must – it seems reasonable to me – be grandfathered to their natural end. Whether that will allow their barristers and advocates to continue with the presentation is another matter given that they will no longer be members of bars of a Member State but perhaps that is a detail which will rank very low on the negotiations priority list. Unless there is clarity coming from those negotiations, what will the appetite be of client, lawyer and judge alike, to avail themselves of that preliminary reference opportunity? Given Scotland’s innate reluctance to engage (only 15 or so total references since 1973), I foresee none being sent from now on. All this, however, will not mean that EU arguments cannot be played out in national courts and the usual way of assessing them – by reference to CJEU case law for instance – will continue. But over time, the authority given to that case law will wane; it will take on a different sheen.

What after effects are you predicting to witness once the GDPR act takes effect in May 2018? I.e., what do you think clients will be seeking advice on?

May 2018 falls in the middle of the Article 50’s two year-deadline for negotiations. One year further on and the UK will have Brexit-ed. We can expect the Great Repeal Bill to anticipate the grandfathering of the GDPR after April 2019, and indeed the Government has stated that Brexit should not alter its application. It will, then, become part of UK Law and general advice to those affected is simply to adhere accordingly. Of the principal issues for concern, I imagine that they will include the following: the potential administrative penalties will motivate boiler-plate compliance; what falls within the broader definition of “data”; what constitutes “consent”; and how to ensure the right to erasure.

Peter Sellar

Founder of Scotland’s EU Consultancy (www.scoteuc.com / peter.sellar@scoteuc.com)

Advocate at Axiom (www.axiomadvocates.com / peter.sellar@axiomadvocates.com)

Tel 07917 018 274