This week’s roundup of legal news and commentary includes the Brexit threshold deal, the judiciary and its critics, family law transparency and accountability, and the triumph of luxury in the marketplace.
Brexit in Brussels – a feast of fudge
On Wednesday they were saying Davis was bluffing and Brexit was doomed. David had promised “sectoral analyses” and the Commons had voted for him to produce “impact assessments”. Of course he had been unable to do so, they were asking for the wrong thing. The Brexit camp looked to be in as deep a state of shambles as it ever had been. Meanwhile, the DUP, holding the government to account, or possibly ransom, refused to go along with a form of words intended to paper over that metaphorical crack known as the hard border (the one between Northern Ireland and the Republic in the South).
But, by Friday, a deal had been done. A form of words had been found. A smudge of fudge had coated over that crack. The deal was announced after a breakfast in Brussels where it looks as though the Kool Aid was cunningly disguised as orange juice.
The deal covers the three preliminary hurdles which the UK was required to cover before the rest of the member states were prepared to move on to trade talks – talks about the basis on which goods and services would move between Europe and Britain post-Brexit. They were:
- The status of EU nationals on either side of the Brexit border: the deal enshrines residence and security rights for around 3m EU nationals inside the UK and 1m UK nationals in other EU countries.
- The so-called Brexit bill, or outstanding liabilities for financial contribution into EU coffers: the settlement agreement will see the UK paying between €40bn and €60bn over an indeterminate period (measured in decades rather than years) to come.
- The Irish border issue: a promise, whatever trade deals later emerge, to ensure a “full alignment” in regulations between the UK and the EU’s single market and customs union, thus avoiding a hard border. The “full alignment” measure requires whatever regulations apply on the Northern Irish side of the border to “support North-South co-operation, the all-island economy and the protection of the 1998 [Good Friday] agreement.”
As a bonus, although the ECJ and its caselaw will continue to bind UK courts for another decade at least, the EU divorce settlement itself will not be subject to the direct jurisdiction of the ECJ.
Commentators have suggested that the Irish border deal, in particular, makes a hard Brexit far less likely. Some have even suggested that Theresa May has played a double bluff against her own cabinet hardliners by talking a hard game and playing a soft one. Yet we’ve surely taken the long road about to get to somewhere we needn’t have gone in the first place. Any relief, let alone euphoria, cannot last long. Meanwhile, on their side, EU Commission president Jean-Claude Juncker, EU Council president Donald Tusk, and chief negotiator Michel Barnier have all issued statements warning that the road ahead will be just as hard, if not harder. This is only the end of the beginning.
The Observer said in its editorial, The Observer view on Brexit developments:
“In signing up to this, May has implicitly abandoned her ludicrous mantra that no deal is better than a bad deal. The most positive reading is that if worse came to worst, the UK will exit on terms we already know are amenable to the EU.”
Fintan O’Toole, in the Irish Times ( Ireland has just saved the UK from the madness of a hard Brexit) said:
“By standing firm against their attempts to bully, cajole and blame it, Ireland has shifted Brexit towards a soft outcome. It is now far more likely that Britain will stay in the customs union and the single market. It is also more likely that Brexit will not in fact happen.”
For more detail, read:
Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union (pdf).
Katy Hayward, in the Irish Times, Brexit deal allows for three different types of Irish Border
David Allen Green in the FT: Brexit: what regulatory alignment means and does not mean
Tom McTague, Politico: Anatomy of a Brexit deal
Conor James McKinney, Free Movement: Brexit citizens’ rights deal near completion
Jane Lambert, NIPC Brexit, Briefing November 2017
Obiter J, Law and Lawyers blog,
- The Joint UK-EU Report (1) – Those vital Citizens’ Rights
- The Joint UK-EU Report (2) – Ireland and Northern Ireland
- The Joint UK-EU Report (3) – The money !
- The Joint UK EU Report (4) – Euratom and Other points
Mark Elliott, Public Law for Everyone: The Brexit agreement and citizens’ rights: Can Parliament deliver what the Government has promised?
Two Brexit tweets
The Conservative party was quick to hammer home the deal on jurisdiction:
We’ve gained back control of British Laws, with the European Court of Justice no longer making judgements over British Courts. pic.twitter.com/nbdOiox9ed
— Conservatives (@Conservatives) December 8, 2017
As any fule kno, or shud kno, (a) we do not use gavels in UK courts (nor do they in ECJ) – they are a feature of foreign courts (such as those of the USA); (b) there are three (four, in statute law) separate jurisdictions in the United Kingdom, so “British laws” is a vague idea at best; (c) judgments issued by a court are properly spelled with only one E; (d) ECJ does not make judgments “over” British courts. It determines points of law referred to it by domestic courts, who then apply the law as thus clarified (or in some cases, still confused, rephrase the question and refer it back again). Finally, the usage “gained back control” sounds inelegant and would not look out of place on the tweet of a foreign propaganda bot. Just saying.
The word on the street was more creative:
Hackney is so brilliant. I just heard a youth refer to dumping a girl as "Brexiting" her ie leaving her without thinking about the consequences.
— HeardinLondon (@HeardinLondon) December 9, 2017
Lord Chief Justice meets press
Just two months into his job, the newly appointed Lord Chief Justice, Lord Burnett of Maldon, spoke at a press conference on 5 December in which he set out his hopes and fears for the task ahead:
“there are two things that I have been particularly concerned about: to increase awareness of what judges do, together with their centrality to maintaining the rule of law; and, to secure the reforms necessary to bring the working of our justice system up to date.”
In relation to the first, he said: “Our judges work incredibly hard making important, often life-changing decisions; day in, day out, in difficult circumstances.” He accepted that judges “should not be immune from criticism for their decisions; but fair criticism is different from abuse.” Some judges had faced a “torrent of personal abuse” for their decisions, online and via social media, and some had even been physically threatened. Such abuse was capable of undermining the rule of law.
In relation to the billion-pound courts reform programme, he said “Improving access to justice is at the heart of the reform programme.” Pilot projects had gone well and progress was being made.
“When we reach our goal, it should be possible for a very large number of civil disputes to be resolved using online facilities with appropriate judicial input when it is needed, but rarely requiring the parties to attend court.”
[ UPDATE: for a fuller account of the press conference, including the Q & A afterwards, see this later post. ]
Judicial independence: a warning
The involvement of the judiciary in the HMCTS Reform programme and in other managerial projects is a cause for concern, according to Lord Justice Beatson, delivering his thoughts on judicial independence in the latest Atkin Lecture at the Reform Club last month.
Judicial Independence: internal and external challenges and opportunities covers a lot of ground, and is well worth reading in full. It examines the landscape of judicial independence and transparency following the constitutional reforms implemented from 2003 to 2008. But a key strand concerns the position of “judges holding leadership positions”. To paraphrase (I fear rather crudely): By making them part of the management of the courts and the justice system, you expose judges to a different kind of accountability which may threaten their independence as judges; you reduce the availability of senior and specialist judges for court work; you add to the burden of their work at a time of resource shortage and underfunding (and in some cases at a time of life when they may be starting to lose the energy and capacity to manage it all); you can, in the longer term, also threaten the separation of powers, according to which the judiciary should be able to act as a check and control of the executive (as indeed should Parliament, on the other side), not be so intimately involved in its operations and dependent on its funding as to risk being a target of criticism that should more properly be aimed at the executive.
Beatson LJ quotes the chair of the Bar, Andrew Langdon QC, who puts it all very succinctly:
“if judges become too closely identified with a programme of modernisation where success is dependent on funding and implementation by the Executive, there is a risk that in the future we will evaluate our judges on their ability to be effective managers rather than fearless independent judges who are independent of the Executive”. (The Barrister 11 September 2017)
Privacy versus accountability in the Family Courts
On 5 December 2017 the Transparency Project hosted a debate about privacy and accountability in the family courts, to mark the launch of their Guidance Note: Publication of Family Court Judgments. The event took place at the Station in Bristol and was chaired by His Honour Judge Stephen Wildblood QC, with a panel representing the law, media and social workers. Opinions among the packed audience were divided as to whether the family courts should be more open, with many expressing fear and distrust and others wanting better scrutiny and accountability.
You can read a summary of the event by Sarah Phillimore on the Transparency Project website.
There is also a link to a video of the event,
which was live tweeted on the night under the hasthtag #talkfamilyjustice
Kinship care preferable
One of the panellists was fellow Transparency Project member Louise Tickle, who writes for the Guardian on education and social care issues. In a recent article. Adoption and fostering are not the only options. It’s time to invest in kinship care, she suggests that the authorities could avoid the separation of vulnerable children from their families which the adoption process inevitably involves, and instead provide better support for other family members to enable more of those children to benefit from kinship care.
“ The law is clear: if a support package – financial, practical, therapeutic – means a child who has been taken into care can be adequately looked after by relatives, then the “nothing else will do” test required for an adoption against a birth family’s wishes, has not been met and that support must be offered.”
The problem is that, all too often, that support is not there. And from the authorities’ point of view, as a long term solution, adoption is ultimately cheaper. But from the child’s point of view, retaining a connection with their birth family must often be preferable, both emotionally and (a recent study suggests) educationally. “It is wrong if the lack of state support for kinship carers is taking that option away or plunging these vulnerable children and their selfless relatives into poverty.”
Foster care – positive stories
Another piece in the Guardian, this time by Sarfraz Manzoor, told some wonderful and heartwarming stories of different foster carers and how they had made children of different cultural and religious backgrounds feel welcomed and loved. In one case a Muslim couple, Riffat and Sajjad, only recently approved as foster carers, had received three Christian children shortly before Christmas. As soon as they were asleep, the couple set about getting a tree and some presents, wrapped them up, decorated the tree. Next morning the children’s faces, on coming down to breakfast, told them all they needed to know.
“I had never seen that kind of extra happiness and excitement on a child’s face,” remembers Riffat.
The children were meant to stay for two weeks – seven years later two of the three siblings are still living with them.
This kind of story — which should surely be made into a positive, heartwarming family film — offers a much-needed antidote to some of the sourly prejudicial coverage we’ve seen recently, such as of the notorious Tower Hamlets/Muslim foster carer story.
Retail pride maintenance
– or how brand mystique trumped competition law
Last week’s decision of the European Court of Justice in Coty Germany v Parfümerie Akzente (Case C‑230/16) EU:C:2017:941  WLR(D) 811 got rather superficial attention in the UK press. Even the Times law Brief newsletter, supposedly aimed at lawyers, thought it unnecessary to mention the case name or reference or provide a link to the judgment when reporting that Luxury brands can restrict sales on Amazon, EU judges rule
In their ruling yesterday, the EU judges confirmed that luxury brands could restrict sales through online marketplaces without breaching European competition rules. The court said that proportionate restrictions of online sales could be justified within the context of a selective distribution network to protect the “aura of luxury” of specific high-value products.
As the more specialist IP Kat blog explained:
The case saw Coty Germany, a seller of luxury cosmetic goods and its distributor, Parfümerie Akzente, disputing over a contractual clause which prevented the distributor from selling the luxury products on third–party platforms which operate in a discernible manner towards consumers. The distributor was free, however, to use their own electronic shop window or third-party platforms not discernible to the consumers. Coty Germany brought proceedings against Parfümerie Akzente in order to prevent it from selling on the platform “amazon.de”.
The Oberlandesgericht Frankfurt am Main asked the CJEU, essentially, whether this clause is lawful under competition law (the implications of this question for trade mark owners in distribution agreements are extremely relevant).
The answer appears to be that it is. Article 101(1) TFEU, which prohibits agreements that have as their object or effect the “prevention, restriction or distortion of competition within the internal market“, does not preclude an contractual clause that
“prohibits authorised distributors in a selective distribution system for luxury goods designed, primarily, to preserve the luxury image of those goods from using, in a discernible manner, third-party platforms for the internet sale of the contract goods, on condition that that clause has the objective of preserving the luxury image of those goods, that it is laid down uniformly and not applied in a discriminatory fashion, and that it is proportionate in the light of the objective pursued”
In so ruling, inter alia, they distinguished Pierre Fabre Dermo-Cosmétique (C‑439/09, EU:C:2011:649)  Bus LR 1265 on which the national court had initially relied, which says that sales of cosmetics cannot be restricted to a physical space in the presence of a qualified pharmacist thus excluding sales via the internet. Presumably the restriction was not so dire in Coty’s case because it did permit some online sales, just via an exclusive channel.
So the question of fact that then arises, presumably, is whether goods in fact enjoy a “luxury image”, or merely a ridiculous price tag. As to this, the court observes, at para 50:
the fact that luxury goods are not sold via such [unauthorised] platforms and that their sale online is carried out solely in the online shops of authorised distributors contributes to that luxury image among consumers and thus to the preservation of one of the main characteristics of the goods sought by consumers…
So the restrictive method of selling the goods guarantees the very exclusivity that justifies using the restrictive method to sell the goods.
The perfume may smell nice, but this decision perhaps not so much.
UPDATE: the IPKat now has a full case comment on this: Coty, distribution agreements and luxury brands
And finally… Tweet of the week
From Aidan Lloyd, for whom civil procedure is not just the icing on the cake.
Slice of CPR cake anyone?! A fantastic 30th birthday cake creation from my mother-in-law. Well done Jane! pic.twitter.com/99ygPvuvCY
— Aidan Lloyd (@Aidan_Lloyd) December 9, 2017
That’s it for this week. Thanks for all your tweets and blogs. Do sign up for email alerts below, if you haven’t already done so.
This post was written by Paul Magrath, ICLR blog editor, and does not necessarily represent the views of ICLR as an organisation.