Brexit Update: First day of High Court hearing

Challenge to the UK Government’s Authority


Yesterday, the High Court in London heard the most significant Brexit challenge to date and we had someone there to listen to the arguments.  This serious constitutional matter is being heard by three senior judges including the Lord Chief Justice and Master of the Rolls; and at least twenty three barristers were in court representing one side or the other. 

The court claim has been brought by various individuals and groups, including the crowdfunded "Peoples’ Challenge”. While Prime Minister Theresa May gave her clearest indication yet that Article 50 will be triggered by the end of March, the challengers believe that the decision should be one for Parliament, not the Government alone. The majority of MPs wanted the UK to remain in the EU, so there would be a lively debate if the matter were to be put to Parliament.  However, given the amount of feeling the vote generated on both sides of the debate it would be a brave MP who would vote against the majority view of their constituents.

The Peoples’ Challenge argue that membership of the EU confers rights of citizenship on individuals which cannot be removed by mere use of the royal prerogative.  Only Parliament has the right to legislate to deprive citizens of rights. Triggering article 50 would put the UK on an unstoppable course to leave the EU and remove rights so Parliament should decide.  Amongst other things, they support this argument by referring to the 1689 Bill of Rights which laid down that suspending laws by regal authority without consent of Parliament is illegal.

The reply arguments are expected to be heard on 17 October.  We will let you know as soon as a decision has been handed down.


IP Rights


We have been getting more clarity on the future of IP legislation for a number of IP rights. Perhaps most significantly the future of the UK’s place within the proposed Unitary Patent and Unified Patent Court. In their recent Opinion, Richard Gordon QC and Tom Pascoe have said that the UK could still participate subject by entering into an appropriate international agreement. The Opinion was prepared at the request of CIPA, the IP Federation and Intellectual Property Lawyers Association in which Rouse’s Arty Rajendra is playing a leading role on responding to Brexit.

However, as Theresa May has recently said, “…But let me be clear…we are not leaving [the EU] only to return to the jurisdiction of the CJEU.” Is that the final death knell? It makes it difficult to see how the UK can play a part.

Turning to copyright, the Culture, Media and Sport Committee (within the UK Parliament) has invited responses from the creative industries on the likely impact of Brexit on them and the digital single market. It notes that: “The UK digital sector currently is worth £118 billion a year; 43% of UK digital exports go to the EU.” While the focus is on employment and skills, the Committee is also asking what should happen to copyright once the UK leaves the EU. The deadline for written submissions is Friday 28 October.

The UK’s Intellectual Property Office continues to gather views on the pros and cons of various alternatives to the current rights system. However, it stresses that nothing has changed or will change until the UK formally leaves the UK which is still looking to be in early 2019.

As to trade marks, the UK still intends to press forward and amend the domestic legislation to bring it into conformity with the recent EU Trade Mark directive.


To read about the arguments from the second and third days, please click here.