School fees in times of Covid: Tips for schools and parents

The lockdown has posed inordinate challenges for education – with schools and universities adjusting to remote learning on extremely short notice. For private schools and universities, there have been tough choices between furloughing staff, deciding which lessons and courses to continue and justifying the level of fees, when many parents are in financial difficulty themselves. Boarding schools and universities have additional problems as they have a high level of sunk costs in infrastructure for overseas students that, at present, are not allowed to travel.

Most contracts have force majeure clauses which, aided by the WHO classification, recognise Covid-19 as a pandemic. Most of these clauses have been inserted as boiler plate clauses to deal with one-off events like war and terrorism that no one really expects will ever be triggered. Suddenly, everyone is dusting off Treitel and recalling their law school cases on frustration and Acts of God.

How do these apply to Covid-19? Frustration is where the contractual obligations are no longer capable of being performed because an event changes the fundamental nature of the bargain struck between the parties so that it would be unjust to hold them to it. Force majeure entitles either party to justify their non-performance of their contractual obligations due to an event that is beyond their control. These remedies are not easily available. A recent example is Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 (Ch), where it was held that Brexit did not make the EMA’s continued occupation of its London headquarters impossible so they remained bound by the contract.

For force majeure, the burden rests on the party seeking to excuse their performance to prove that, as a result of the event, they are prevented (i.e. it is physically or legally impossible for them to carry out their obligations) or hindered (i.e. that service delivery is “more difficult, but not impossible”). They also need to show that they cannot mitigate the loss by finding an alternative means of performance.

This cuts both ways:

  • Parents that have lost their jobs may want to withdraw their children from school and avoid paying a term’s fees in advance or giving the requisite notice period; alternatively they may want to continue their child’s education and preserve their child’s place for the return after lockdown;
  • Schools recognise that they cannot provide the full curriculum or boarding provision but want to provide continuity in core education and maximise contributions to fixed costs. Similarly, universities want to continue their courses and attract/maintain students for the next year but recognise that they cannot provide the full range of facilities

The standard remedy for force majeure and frustration is cancellation of the contract but that outcome may not be what either party needs or wants. Most contracts provide notice provisions, where either party can notify the other if they cannot perform their side of the contract any longer due to unforeseen circumstances. Some contracts may provide for an escalation procedure or cooperation provisions to manage the process. Others are silent.

The Cabinet Office has published Guidance, which encourages responsible and fair performance and enforcement of contracts during the COVID-19 emergency. It advises that parties are “reasonable and proportionate in responding to performance issues and enforcing contracts (including dealing with any disputes), acting in a spirit of co-operation and aiming to achieve practical, just and equitable contractual outcomes having regard to the impact on the other party (or parties), the availability of financial resources, the protection of public health and the national interest”. Examples where parties can relax rules in good faith, include demanding payments, granting extensions, relief for impaired performance (including the nature and scope of services provided), using ADR and mediation where appropriate

How can counterparties effectively manage this uncertain situation when neither of them may wish to call time?

  • Parents/students should notify the school or university provider if they are concerned about their ability to pay fees and seek to negotiate a reduction or staggered payments over time. That will need to be evidence-based on ability to pay rather outright refusal to pay to ensure fair and equal treatment. The important thing is not to panic and cancel your place when schools may resume in July or September as you may still end up having to pay a term’s notice. Many schools have set up hardship funds to assist parents that have been furloughed or are self-employed. You may want to add in a regular update and review, should the pandemic and job insecurity continue after 6 months or a year.
  • Most schools have notified parents that they can no longer perform the full-range of services as envisaged in the contract. This is not a breach of contract but they are fulfilling their obligation to carry out their side of the bargain to the best of their ability. The transition to online learning has been an impressive example of alternative mitigating means. Whilst some aspects (such as science experiments and practical art or boarding facilities/after school clubs) are not possible, schools have offered fee reductions of between 5-25% to reflect the lower standard of services provided.

Some parents have raised objections as they consider the fee reductions offered by their school/university are not sufficient when compared to the cut-back in facilities and extra-curricular activities or are lower than those offered by other schools. Two providers (even within the same locality) may not be comparable as they may have different levels of fixed sunk costs, different access to funding and endowments and have made different choices regarding which subjects, courses, clubs to continue. Putting pressure on schools and universities may be counterproductive as waiving a significant proportion of their fees could squeeze the cash flow leading to cost cutting, teachers losing their jobs and cut backs on future investment plans resulting in inferior services when they do eventually resume.

For schools, it is imperative that any decisions regarding prices are taken in complete independence without any direct or indirect contacts with other schools, through associations or charitable foundations. In 2006, 50 independent schools were found to have taken part in price-fixing by exchanging pricing information and were fined over £10,000 each and required to pay £3m into a trust fund. The CMA has recently sent a warning letter to private schools not to share pricing information or coordinate discounts in response to Covd-19.

However, it is important that providers do not overreact and reject opportunities for legitimate cooperation that might assist them in these troubled times. The European Commission has announced a “Temporary Framework” and the CMA has issued Competition Act 1998 Guidance, offering an exemption from competition law, for essential cooperation between competitors regarding production, distribution and logistics. For example, the European Commission has just issued a comfort letter to pharmaceutical companies for the production of intensive care medicines. Those measures will not, of course, offer protection for price fixing or market sharing, but could conceivably allow different private schools or universities to share remote learning content, allocate production of webinars or online lesson plans in certain subjects between themselves, enter into joint purchasing, distribution or logistical arrangements. The schools will need to show that such temporary arrangements generate efficiencies and cost savings and do not go beyond what is necessary to achieve those benefits for students and parents. It would also be advisable for any educational providers taking part in such arrangements to set up appropriate checks and controls to prevent any confidential information being circulated within the group of participants.

A2P1 and Access to Education during Covid-19

As the home-time bell rang on 20 March 2020, schools and other educational providers across the country closed their doors in response to the Covid-19 pandemic. The only pupils currently permitted to attend school are vulnerable children and the children of key workers. All children, however, continue to enjoy the right to education under Article 2 of the First Protocol (A2P1) of the European Convention on Human Rights (ECHR).

Strictly speaking, the right under A2P1 is a right to effective access to such educational facilities as the state provides. Currently, the only educational facilities being provided to most children come in the form of online classes and resources. Effective access to such facilities is likely to be much easier for some children than for others.

For example, the Good Law Project recently wrote to the Secretary of State for Education, highlighting the difficulties which children from disadvantaged backgrounds may have in accessing online learning due to the high cost of laptops, tablets and internet access. The Secretary of State subsequently announced that certain cohorts of disadvantaged children are to be given a free laptop or tablet, and 4G connectivity, in order to permit them to access online learning. See also Imogen Proud’s earlier blog post on this topic.

However, the categories of eligible disadvantaged children are relatively narrowly defined (as care leavers, those aged 0-19 with a social worker, and disadvantaged year 10 pupils). There are likely to be many children outside of this cohort whose families cannot afford a laptop or tablet, or who are required to share their device (and therefore their learning time) with siblings.

The problem has been recognised by the United Nations Committee on the Rights of the Child. The Committee has recently published a statement on the impact of Covid-19 on children, calling for states to “ensure that online learning does not exacerbate existing inequalities or replace student-teacher interaction. Online learning is a creative alternative to classroom learning but poses challenges for children who have limited or no access to technology or the Internet or do not have adequate parental support.”

Similarly, there is likely to be a significant cohort of children with disabilities and/or special educational needs who may find it more difficult or impossible effectively to access mainstream online resources. For example, children with visual impairments may require educational activities based around audio learning, whilst children with sensory needs are also likely to require specifically tailored activities.

The ability of some children effectively to access online learning and not others could, in principle, give rise to issues of discrimination on the grounds of socio-economic status or disability, contrary to Article 14 ECHR read with A2P1. For example, a local authority which fails to provide a disabled child with online learning in a form which is genuinely accessible is likely to be prima facie discriminating against them on the basis of their disability.

It would be open to the local authority to justify such discrimination. In order to do so, it would have to show that providing non-accessible home learning is a proportionate means of achieving a legitimate aim. Clearly, the need to curtail the spread of the Covid-19 pandemic, and the limited resources of public authorities during the crisis, will carry significant weight in any such analysis. In any given case, however, the local authority will be required to show that it has addressed its mind to the impact which failure to provide accessible materials will have on the individual rights of the child and balanced those rights against the interests of the community.

Ciar McAndrew is a junior barrister with a developing education law practice and a longstanding interest in education law issues.

Teachers threaten to sue over return to work

The teachers’ union NASUWT has threatened to sue local authorities if its members are forced to return to school without the same PPE given to NHS staff. The union said it has “fundamental concerns” about the government’s 1 June timetable for re-opening schools. The cause of action is said to be “breach of duty of care and personal injury due to foreseeable risk, and any other legal recourse available”.

The complexity here is that, in forming policy, the government must weigh the duties rightly owed to teachers against the harms which are accruing during the period of school closure, particularly to the most vulnerable children (see my earlier blog post). It seems the union’s answer is that the provision of the requisite PPE is the best route to a fair balance.

The Guardian is covering this story here.

Changes to the EHCP regime during Covid-19: a quick guide for parents and representatives

What are the New Regulations?

On 1 May 2020, the entitlements of children with SEND (and their parents) in relation to the Education, Health and Care (EHC) Plan process changed. The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘New Regulations’) came into force. They will expire on 25 September 2020 unless extended. The New Regulations amend four existing sets of Regulations including the Special Educational Needs and Disability Regulations 2014 (the ‘SEND Regulations’).

The New Regulations were also considered in an earlier post by Alexandra Littlewood, which may also be of interest to readers.

Accompanying guidance was published on 30 April 2020, entitled ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ (the ‘New Guidance’). This guidance is non-statutory. Whilst not binding, there is an expectation that it be followed by LAs.

What changes have the New Regulations made?

The temporary changes introduced are to the timescales within which Local Authorities need to take steps within the EHCP process. The steps which LAs are required to take remain the same, and technically the time limits remain unchanged, but LAs are now given a reason (or, in some cases, an additional reason) why they may lawfully miss a deadline. Where is not practicable for the LA to meet certain requirements for “a reason relating to the incidence or transmission of coronavirus”, the LA need no longer comply with the time limit. This is called the “coronavirus exception” in Regulation 5 of the New Regulations. In relation to certain requirements, the LA is required instead to take the action “as soon as reasonably practicable”.

The following timescales have been amended so that now the LA need not comply “if it is impractical to do so because of a reason relating to the incidence or transmission of coronavirus”:

    • 6 weeks for an LA to notify a child’s parents that it has determined that it is not necessary to make special educational provision in accordance with an EHCP (Regulation 4(1) of the SEND Regulations, amended by Regulation 6 of the New Regulations)
    • 6 weeks for an LA to notify a child’s parents of a decision whether or not to conduct an EHC needs assessment (Regulation 5(1) of the SEND Regulations, amended by Regulation 7(b) of the New Regulations)
    • 16 weeks for an LA to notify a child’s parents of a decision not to secure an EHCP (Regulation 10(1) of the SEND Regulations, amended by Regulation 9(b) of the New Regulations)
    • 20 weeks for an LA to send a finalised EHCP to a child’s parents (Regulation 13(2) of the SEND Regulations, amended by Regulation 10 of the New Regulations)
    • 1 year in which an LA must review an EHCP, which is replaced by a requirement that the LA instead conduct a review as soon as reasonably practicable (section 44(1) of the Children and Families Act 2014, see now Regulation 11 of the New Regulations)
    • 8 weeks for an LA to amend a plan following a review (Regulation 22(3) of the SEND Regulations, amended by Regulation 12 of the New Regulations)

A full list of all the changes made by the New Regulations can be found in Annex A to the New Guidance.

The 15 days which parents must be given in order to make representations on a draft EHCP is not changed (Regulation 13 of the SEND Regulations).

Parents and advisors should note that the Secretary of State has been given the power to ‘pause’ the duty of LAs to conduct annual reviews of EHCPs (Sch 17 para 5 of the Coronavirus Act 2020), but this has not yet ben used, so annual reviews are still required at the moment.

What should parents expect?

The amendments do not give LAs a licence not to comply with legal deadlines for any reason they choose. Their reason for non-compliance must relate to Covid-19. Further, if subject to legal challenge, it is likely that an LA merely pointing to the existence of the Covid-19 pandemic will be insufficient to establish that failure to comply with a deadline was lawful. Rather, the LA would need to establish that the failure was specifically “because of a reason relating to the incidence or transmission of coronavirus” ie it seems necessary to be able to identify a specific “reason”.

Parents should be vigilant. Where it is suspected that the new leeway is not being used properly, parents may wish to seek legal advice.

The substantive entitlements of children with SEND remain unchanged. There has been no relaxation of the duty to consider new requests for assessments, so parents should continue to make such requests as before, where they have concerns.

School closure: the impact on children and parents unfolds

Where are we now?

Schools in England, along with childcare and other education providers, have been closed “until further notice” since 20 March 2020, for all but vulnerable children and the children of critical workers. With several European countries beginning to re-open schools (Denmark from 17 April, Germany from 4 May and France from 11 May), it remains to be seen when and in what way the closure of our schools will be brought to an end. At the time of writing, the Department for Education (DfE) maintains that no date has been set for schools in England to re-open, but there is speculation around an announcement on 10 May. Geoff Barton, General Secretary of the Association of School and College Leaders (ASCL), has conjectured that the earliest “realistic” point at which schools in England could start re-opening would be from 1 June. A poll for the Observer on 2 May 2020 suggested that fewer than 1 in 5 of the British public believe the time is right to consider re-opening schools. However, in the meantime, the impacts of school closure – including its myriad legal implications – continue to accumulate.

What is the impact of continued closure on children and parents?
  • The most obvious impact is upon pupil progress. The attainment gap between maintained and independent school pupils will likely broaden, as fee-paying schools are incentivised to provide more and higher quality online resources in order to justify continuing to charge fees which are often only slightly reduced below normal rates. (A future blog post will consider parents’ ability to bring legal actions where online teaching quality is not considered commensurate with continuing fee levels.) Initiatives such as the Oak National Academy, whilst helpful, are unlikely to bridge the gap.
  • The negative impact of virtual-only schooling is likely to be felt most acutely by disabled children and those from low income families, raising the possibility of indirect discrimination. The Government announced on 19 April that “disadvantaged children” (care leavers or those with a social worker) were to be given a free laptop/tablet and 4G based mobile broadband to access online learning. However, it seems a band of children who do not fall within this definition of “disadvantaged” but nonetheless cannot access remote education could continue to see their right to education infringed by local authorities who have an obligation to ensure all children can access teaching. Readers may also be interested in Ciar McAndrew’s blog post of 18 May 2020 on this topic.
  • Whilst schools are required to remain open for vulnerable children (defined as those with a social worker or an Education, Health and Care Plan), uptake has been considerably lower than hoped, with just 5% of vulnerable children entitled to a place turning up. Some parents are believed to be keeping children from school in response to broad, strong Governmental messages to stay home. However, if non-attendance were due to insufficient school places for vulnerable children (or children of critical workers) during school ‘closure’, responsibility lies with local authorities who are tasked with monitoring demand and supply, and eligible children with nowhere to go may have a legal cause of action against them. For a proportion of the children entitled to free school meals, their school dinner can be the most nutritious meal of the day, and so schools are expected to continue to provide support either in the form of food or vouchers, through the Department for Education’s national voucher scheme. Concerns remain that school closures could leave children hungry, as food and vouchers may not reach all children from low income families.
  • During term time, teachers and other school staff are often the first to identify and report when a child may be vulnerable to abuse and neglect, or specific harms such as FGM or being drawn into terrorism (under the ‘Prevent Duty’). School closure brings an end to this safeguarding potential. Coupled with this is the fact that, as highlighted by the CEO of the NSPCC on 8 March, children not known to social services are more at risk at home than anywhere else. This means that, for example, sexual abuse – both in person and online – is likely to increase at the same time as schools’ ability to monitor children for such issues is removed. The Government pledged £1.6 million on 19 April 2020 to the NSPCC to expand its national helpline for adults raising concerns, but this safety net can by no means catch all children.
What should we expect?

When schools re-open it is going to be necessary to maintain social distancing, which will require advance planning, making a short-notice announcement of schools re-opening unlikely. It may be safest to do as other European countries re-opening schools have done and reintroduce certain year groups first. It was previously thought by some, including the ASCL, that it was most likely that England may opt for the German model, under which those preparing for upcoming exams or for secondary transfer return first. However, the Prime Minister indicated on 3 May that primary schools may be prioritised, which would mirror Denmark’s approach. Amanda Spielman, head of Ofsted, supports such a method. Any decision by Boris Johnson or Gavin Williamson would only apply directly to schools in England, since education policy is devolved to national administrations.

In the meantime, whilst the Government has thus far not responded to calls to make it compulsory for vulnerable children to attend school, it would be beneficial to have clearer Governmental messages around the availability of school places for them, which stress that those places are to help pupils and parents rather than to be a burden. Unless the most vulnerable soon return to school, the ramifications set out above will continue to cause problems, and families may turn to the courts for the remedy.

Imogen Proud is a barrister at Monckton Chambers who practices in Education Law. Before coming to the Bar, she was a state school teacher in Hackney and Islington.

Relaxation to SEND legislation due to coronavirus

On 30 April 2020, the government announced two important changes to special educational needs and disability (SEND) legislation. The aim of the changes is to give local authorities more flexibility in responding to the demands placed on them by coronavirus. This post explains those changes, and considers the scope for future legal challenges.

Relaxation of section 42 duty

In the first of the two changes, the Secretary of State for Education published a notice temporarily modifying the duty in section 42 of the Children and Families Act 2014. Section 42 places a duty on local authorities and health commissioning bodies to secure special educational provision and health care provision for children and young people in accordance with Education Health and Care (EHC) Plans. The effect of the Secretary of State’s notice is to relax the section 42 duty so that local authorities and CCGs are now required only to use “reasonable endeavours” to secure the provision in an EHC Plan.

The “reasonable endeavours” modification was made using new emergency powers contained in the Coronavirus Act 2020 (see paragraph 5(6) of Schedule 17). The notice is in force for one month, from 1 to 31 May 2020, but can be extended by further notice.

Local authorities will no doubt rely on this relaxation to justify reductions in provision in EHC plans, and in some cases it may be appropriate for them to do so. However, as the new Government Guidance makes clear, the notice does not absolve local authorities of their responsibilities under section 42. Local authorities must still consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances; any blanket decision to reduce or remove provision without such individual consideration would clearly be open to judicial review.

When considering what can reasonably be provided in the circumstances, the Guidance indicates that local authorities should consider what alternative arrangements can be made, including the use of technology, online learning, and provision of materials for home learning. Failure to consider such alternatives could also leave a local authority vulnerable to challenge, since it would be difficult in those circumstances to demonstrate the use of “reasonable endeavours”.

Changes to the timescales for EHC processes

The second change is that the government introduced the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’). The Amendment Regulations temporarily amend four other sets of Regulations which set out the statutory timescales in which certain processes relating to EHC assessments and plans must ordinarily be carried out.

Under the Amendment Regulations, where, for a reason related to coronavirus, it is not possible to carry out those processes within the normal time limit, the process must instead be completed as soon as practicable, or in some cases as soon as reasonably practicable. The timescales affected include the 6-week limit for deciding whether to proceed with an EHC needs assessment, and the 20 week limit for issuing EHC Plans. A full list of the amendments can be found in the Annex to the Government Guidance.

The amendments to the timescales for EHC processes do not authorise local authorities to stop following the statutory processes, but do allow them greater flexibility in doing so. A local authority must still consider requests for new EHC needs assessments or re-assessments, and cannot implement a general policy of refusing to consider new requests because of coronavirus. Any such policy would again be open to challenge via judicial review. Furthermore, a failure to comply with the time limits for any reason other than coronavirus remains unlawful and open to challenge.

Scope for further changes in future

Whilst this post focuses on the changes to SEND legislation that have already been implemented, it should be noted that there are many other important duties relating to SEND which may be disapplied or modified in the near future using the Secretary of State’s powers in Schedule 17 to the Coronavirus Act 2020. Any further changes to SEND legislation will be closely monitored by this blog.

To sit or not to sit? Reflections on exam grading in a Covid-19 world

On 18 March 2020, the Prime Minister announced that school examinations, including GCSEs, A Levels, and AS Levels, would not take place this academic year. That announcement was followed by a Parliamentary Written Statement from the Secretary of State for Education on 23 March 2020 indicating the broad approach that would be taken in place of examinations, followed by more detailed guidance from Ofqual on 3 April 2020.

The basis upon which grades are to be awarded involves a two-stage process. At the first stage the “Head of Centre” (i.e. normally the headteacher) is required to produce an assessment of “the grade that each student is most likely to have achieved if they had sat their exams. This professional judgement is derived from evidence held within the centre and which has been reviewed by subject teachers and relevant heads of department” and a rank order for each student within each grade and each subject. That information is to be passed to the examination boards which “will use a statistical model to standardise grades across centres in each subject.” In reaching their assessments, Heads of Centre are required to provide a “holistic professional judgement, balancing the different sources of evidence” which will include (where available) records of performance over the period of study, performance on any non-exam assessment (even if not fully completed), performance on any homework or classwork assessments, performance in any mock examinations, and “any other relevant evidence”.

While the cancellation of examinations in May or June may have been inevitable given the current public health crisis, its replacement by this alternative method of assessment raises a number of issues. Not least, a pupil who has spent two or more years preparing for a qualification on the basis that (in many subjects) the sole and decisive determinant of his/her grade would be performance in examinations might be thought to have a legitimate expectation that would be the approach to be applied, not some quite different approach. That change has also taken place at a point when the ability of the pupil to adapt to the new approach is very severely constrained, not least given Ofqual’s stricture that “Where additional work has been completed after schools and colleges were closed on 20 March, Heads of Centre should exercise caution where that evidence suggests a change in performance.”

Although Ofqual has subsequently undertaken a consultation (which closed on 29 April 2020) on certain detailed aspects of the new arrangements relating to their implementation, that exercise did not include any consultation upon the most fundamental principle of its approach, namely that the award of grades for GCSE, A Levels, and AS Levels on the basis of examination performance should be replaced by a combination of holistic assessment and statistical adjustment. Ofqual did not seek views on what alternatives might been put in place, such as, for example, delaying examinations or, if a different assessment process were to be used, replacing the current grading scale with one which reflected the very different circumstances which now obtain.

It will be seen in due course how the results of that consultation exercise are taken into account, but one of the most striking proposals is that there should be no right of appeal save on the grounds that the centre made a data error when submitting its information or that the examination board made a mistake when calculating, assigning or communicating a grade. If those proposals are adopted, a pupil who does not receive the grade(s) that s/he might have expected had the planned examination taken place will apparently have limited redress through the appeal process. In particular, the proposed approach would appear to make much more difficult any challenge to one of the most important components in the assessment process, namely the “holistic professional judgement”.

One answer to the pupil who does not receive the grades s/he considered appropriate appears to be that an opportunity will be provided for examinations in the autumn, whose results will be given the same weight as those awarded in the summer. However, given that plans for exiting the current lockdown have yet to be announced, and may in any event need to change if there is another spike in the coronavirus pandemic, it remains to be seen how feasible that proposal will be.

Only time will tell how the proposed new approach will work out. However, given the enormous stakes which ride upon the grades awarded at GCSE, AS and A Level, it would not be surprising if in due course the lawfulness of the process, its application, and the results it produces were not subjected to more detailed scrutiny than has been the case so far.

A further blog on the outcome of the Ofqual consultation will follow in due course.

UK Accession to the Lugano Convention 2007 – an “oven ready” option?

The future of Civil Judicial Cooperation between the EU-27 and the UK after Brexit is an important issue. Once the UK ceases to be subject to common EU rules in the sphere of Civil Judicial Cooperation such as the Re-Cast Brussels Regulation it will lose the benefits of those rules, which provide certainty on which country’s courts may hear a civil or commercial cross-border disputes and ensure that the resulting judgment can be recognised and enforced across borders. The rules also help to prevent multiple court cases taking place on the same subject matter in different countries and reduce the costs and expenses for the parties involved. The rules in the area of Civil Judicial Cooperation are significant for UK businesses, the legal services sector, individuals and families (in relation to family maintenance arrangements).

Post-Brexit the UK Government’s intention is to accede to the Lugano Convention 2007, although it has given some consideration to a bespoke bi-lateral agreement: see the White Paper to Parliament on 12 July 2018 setting out its proposals to develop and agree the framework for the future relationship with the EU. The proposals in the White Paper on civil judicial cooperation built on the Framework for the UK-EU Partnership: Civil Judicial Co-operation published by the UK government in June 2018. Lugano provides a regime that is largely equivalent to the EU rules as between the EU, Denmark, Iceland, Norway and Switzerland. Attention has been re-focussed on the potential accession by the UK to Lugano because of the recent statements of support from Norway, Iceland and Switzerland for the UK’s intent to accede to the Lugano Convention.

Common rules generally pre-suppose that a common interpretation and a mechanism for resolving disputes is desirable. The EU Court of Justice performs this role for the EU-27 in relation to the EU rules in this sphere, including in relation to the interpretation of the Lugano Convention. Any continuing role for the EU Court of Justice so far as the UK is concerned post-Brexit remains a politically difficult issue.

The position under Protocol No 2 to the Lugano Convention provides greater flexibility to those state signatories outside the EU as it only requires the courts of non-EU Member States (of which the UK would be one) to “pay due account” to the case-law of the EU Court of Justice on the Brussels Regulation. Hence, Protocol No 2 appears to provide an acceptable way for UK courts to respect the case-law of the ECJ – without being bound by it – in the post-Brexit scenario.

Now that Switzerland and the EFTA States position in favour of the UK’s accession to Lugano has been clarified the EU’s position is awaited. While the looser interpretive obligation in Protocol No2 that would apply and the lack of EU Court of Justice jurisdiction will be less conducive in the EU’s eyes to ensuring a uniform approach than is currently the case, the fact remains that that is the position already for the existing non-EU signatories to the Lugano Convention. Moreover, despite any perceived disadvantages of this sort the Lugano Convention would still deliver a greater degree of harmonisation between the EU-27 and the UK than if the UK reverted to applying the common law rules on jurisdiction at the end of the transition period. In addition the Lugano Convention offers (dare one say it) a relatively “oven ready” option. While negotiating other bi-lateral options may be perceived to be healthier “time-poor” negotiators may conclude that the costs of doing so outweigh the benefits.

The government’s new state aid proposals are the worst of all worlds

The European Union state aid rules are a keystone of the EU single market: by setting limits, enforced by the Commission, on the ability to subsidise domestic industries, they make it possible for member states fully to open their markets to each other’s goods and services, confident that their own producers will not face unfairly subsidised competition from producers elsewhere in the EU.

Last year, I wrote an article for Prospect which discussed the quiet consensus that the UK would retain these rules after Brexit. That quiet consensus was apparently shattered on Friday, when the Conservatives produced a paper in which they promised to get rid of the state aid rules and replace them with a new system based on World Trade Organisation anti-subsidy rules, which they claimed would allow the government “greater discretion” and provide “certainty” to investors.

On the right, the Institute of Economic Affairs, whose main criticism of the state aid rules is that they permit too much subsidy, immediately responded by denouncing the proposals as “support for cronyism.” And on the left, many “Lexiters” welcomed the proposals on the basis that, despite their own general inability to point to any actual Labour policy that would be frustrated by the state aid rules, they see them as a neoliberal plot to stop the interventionist plans of a socialist government.

But both sides may have made a mistake in taking too seriously the headline promise to scrap EU state aid rules. The reality is that the proposals are an incoherent mess.

The first issue is that the proposal is based on WTO anti-subsidy rules. There are two serious problems with those rules as a substitute for retaining the EU state aid regime.

– Far from bringing greater clarity, as promised, a switch to WTO anti-subsidy rules as the basis for a domestic system would introduce much greater uncertainty. There are areas of uncertainty in EU state aid law (as there are in much of English common law). But when I have to advise on what is a state aid, I have volumes of case-law to help me (just as, in the common law, I have volumes of case law to help me advise on what “negligence” means). In contrast, there is very little case-law on the equivalent WTO concept of subsidy (largely because WTO litigation is always state-to-state, and states are generally unwilling, for obvious reasons, to try to push the boundaries of what counts as a subsidy). Much though lawyers like me might benefit from extensive re-litigating of issues long settled in the current state aid regime, I cannot recommend the change as a means of increasing certainty.

– Further, peering through the uncertainty, the best guess is that changing from EU state aid rules to a regime modelled on the WTO concept of a subsidy would make little difference to what is prohibited. The basic texts and principles of the EU and WTO rules are very similar, including a wide approach to what counts as an aid or subsidy, including tax breaks, free use of government facilities that are normally paid for, and so on. So it is entirely possible—and in fact likely—that, after a lot of time and money is spent on working out what the new regime means, it turns out to be much the same as the old one.

The Conservatives do have a point when they say that the current system frequently involves some delay, as non-exempt state aid has to be notified to and cleared by the European Commission before it can lawfully be implemented, and there can then be further delays and uncertainty if the Commission’s decision is appealed. But the Conservatives’ claims are over-stated: the Commission approves genuinely urgent cases such as rescue aid very quickly—and anyway, in a post-Brexit state aid regime run domestically by UK institutions and courts, delays in approving state aid measures would be under UK control. And any control system, no matter how well-designed, has to give time for a proper hearing of those whose interests are affected by a subsidy proposal—the recipient, its competitors and others. If it doesn’t, good points are missed and you get unfair and bad decisions, with further delay when the courts end up having to sort out the mess.

The central weakness in the proposals, though, emerges when you notice how coy the Conservatives are about explaining why we should keep any anti-subsidy rules after Brexit: after all, if we are no longer in the single market, why do we need one of its keystones?

Part of the answer is to provide a discipline for all parts of government in the UK—and particularly the devolved governments with their wide spending and tax powers—from subsidies that have knock-on effects elsewhere in the UK. It is easier to rely on a rules-based system, with an independent arbiter, to control what the Scottish government can hand out to favoured sectors than it would be to rely on UK ministers issuing orders from Westminster.

But the heart of the answer (which the proposals simply ignore) is that the EU has made it clear that it will insist on retention of state aid controls as a condition of doing any trade deal with the UK (a point I explored in more detail here).

The EU’s determination to make sure that the UK stays within the state aid framework is shown by the startling provisions in Article 10 of the new Northern Ireland protocol to the current Withdrawal Agreement, accepted by the Johnson government without apparent demure (or perhaps without even realising, in the rush, what it had agreed to). That Article keeps the United Kingdom fully bound by the EU state aid rules—including enforcement by the Commission and Court of Justice of the EU—to the extent that any UK measure is a state aid that affects trade between Northern Ireland and the EU. That means that any general UK tax measure extending to Northern Ireland that favours a particular sector will almost certainly be subject to prior approval by the Commission, subject only to an appeal to the Court of Justice. But the control goes further: any UK government measure that affects Northern Ireland—for example a grant to an English company with significant Northern Ireland operations—may well, because of Article 10, fall under the Commission’s powers.

So there are two fundamental problems with the Conservatives’ approach.

– First, returning to the claimed objective of increasing clarity and simplicity, one has to wonder how operating two parallel systems (the new system in all cases, state aid where Northern Ireland is in issue) can be described as clear or simple. On the contrary, it looks like a sure recipe for complexity and muddle.

– Second, and perhaps most importantly, it creates a major road block in the way of the Conservatives’ already unrealistic promise to reach and ratify a final relationship agreement with the EU by 31st December 2020. Rather than offer to maintain the EU state aid rules, it looks as if the Conservatives plan to try to sell to the EU a new, unclear and untested system. That is not going, to put it gently, to be an easy sell: it will, with the most favourable winds, take time. And the Conservatives’ commitment not to extend the transition period means that time is precisely what they will not have.

So, the Conservatives’ plans for apparently major change in the UK’s controls on subsidies risk getting the worst of all worlds: making the task of negotiating a deal with the EU much more difficult, reducing clarity and business certainty, and not actually changing very much at the end of the day. When they realise that, and in the face of likely hostility from the EU, the best guess is that these proposals will be quietly dropped. But in the meantime they may well have achieved their immediate object of appealing to left-wing Brexiteers and erstwhile Labour voters who (usually for bad reasons) object to the state aid rules on principle and who regard getting rid of them as one of the important aspects of Brexit.

This article first appeared in Prospect Magazine. An edited version was also published in The Telegraph.

Fisheries after Brexit

Two years ago, I helped organise and chaired an evening conference at the British Institute of International and Comparative Law on the subject of the legal consequences of Brexit for the fishing industry. Since that conference was rated a great success, BIICL decided to repeat the experience on 19 November at the offices of public international law firm Volterra Fietta, which kindly hosted the event, as BIICL’s premises in Russell Square are currently undergoing major renovation. This time, the speakers were just as eloquent as two years ago and the interventions from the floor were just as interesting and informative. What is more, thanks to BIICL’s event promotion team nearly fifty people participated.

As is well-known, a high proportion of British fishermen are ardent Brexiters. Readers will recall the flotilla of fishing boats organised by Fishing for Leave, which sailed up the Thames with the then leader of UKIP to urge Parliament to take back control of British waters, shortly before the referendum of June 2016. As one would expect, FfL has lost none of its ardour in the meantime, as a glance at its website (here) will confirm.

Yet there is a two-fold problem. First, if there is one economic activity which is strictly regulated by international law, it is fisheries. If the UK were to exclude all or most foreign fishing vessels from its waters, British fishermen would receive the same treatment from the countries concerned. Many fishermen in a number of neighbouring countries, including France, the Netherlands and Denmark, stand to lose their livelihoods. For the same reason, the UK would no doubt find it extremely difficult, if not impossible, to join the regional fisheries management organisations (RFMOs) which control many sections of the Atlantic and other waters. Second, the overwhelming majority of the fish caught by British boats are sold to the EU27. If the UK takes a hard line on fishing rights within its waters, the EU will not offer any tariff concessions and EU tariffs on some stocks are high.

The four speaker’s slides are available on BIICL’s webpage (here), so what follows is an overview of the salient points.

Eoin Fannon, a former Irish civil servant who is an expert on maritime law, began by setting out the key relevant provisions of international law, notably those of the UN Convention on the Law of the Sea (UNCLOS). He then focused on the disputed fishing rights around Rockall, which is claimed by the UK, but this claim is disputed by Denmark (for the Faroes), Ireland and Norway. This was a “test case” of the international law problems which could arise.

The next speaker was Thomas van Rijn, a former Director in the Legal Service of the European Commission who had devoted some sixteen years to the Common Fisheries Policy. Building on the talk by Eoin Fannon, he described the main international and EU treaties which will come into play, including UNCLOS (focusing on some of the provisions not mentioned so far) and the treaties establishing various RFMOs as well as the revised Withdrawal Agreement (here) and the revised Political Declaration on future relations between the EU and the UK (here). That declaration states in particular that the Parties “should cooperate bilaterally and internationally to ensure fishing at sustainable levels, promote resource conservation, and foster a clean, healthy and productive marine environment”. It also states that “the Parties should cooperate on the development of measures for the conservation, rational management and regulation of fisheries, in a non-discriminatory manner”. Finally, Thomas described some of the steps which the EU will take in 2020 if the Withdrawal Agreement comes into force.

Next, Jill Wakefield of Warwick University spoke on two separate topics: trade and environmental protection. On trade, she described the new regulations for export to the EU, the import tariffs which the EU imposes on the main stocks and the problem of EU standards, which may be an even more formidable hurdle for UK fish than tariffs. The particularly severe impacts for the small-scale sector reliant on export to the EU were raised. In discussing the relevant provisions of the Withdrawal Agreement and its Protocol on Ireland/ Northern Ireland, she mentioned that the Council’s guidelines for a future trade agreement with the UK (here) contain the following important statement: “In the overall context of the FTA, existing reciprocal access to fishing waters and resources should be maintained …”

On the environment, Jill exposed the weakness of the current EU regime due to the fact that the Common Fisheries Policy prevails over the Marine Strategy Framework Directive, the environmental pillar of the Integrated Maritime Policy. The result is that the goal of the CFP remains maximum sustainable yield. As to the UK, although section 16 of the European Union (Withdrawal) Act 2018 requires the environmental principles enshrined in EU law to be maintained and although EU environmental law is due to remain in force provisionally by virtue of the same Act, there were grounds for serious concern that these provisions would be weakened after a short time. For instance, the fact that the now defunct Environment Bill, which was before Parliament earlier this year and which applies to England alone, only contains a passing reference to the marine environment is scarcely encouraging.

Finally, Helen McLachlan of WWF UK, the only member of the panel who is a marine biologist and not a lawyer, took the floor. As the chair of the fisheries work of Greener UK (a group of 13 major environmental organisations, with a combined public membership of over 8 million united in the belief that leaving the EU is a pivotal moment to restore and enhance the UK’s environment), she is well placed to discuss the Fisheries Bill. She demonstrated how the Bill, which was before Parliament earlier this year and failed to reach the statute book, fell well short of the measures advocated by Greener UK on several counts; and she described the Bill as so regressive that it would have failed to ensure sustainable fisheries.

Given the immense importance of Scotland in this sector (which accounted for 57% of UK landings by value and 64% of UK landings by tonnage in 2017), we needed a voice from north of the border; and Helen ticks that box as well. She stated that, without a UK Fisheries Act, the devolved administrations will be in limbo as regards the powers which they will enjoy after Brexit. Before its untimely demise, the Fisheries Bill had provided for the four administrations to subscribe to a joint statement setting out the means whereby they would realise the aims of the Bill.

She concluded with a number of slides explaining the gravity of the environmental damage currently being inflicted on the oceans. One slide referred to a report published this year according to which fishing is the human activity with the greatest impact on ocean health.

The audience was notable not only for its impressive expertise in the field and its remarkable collective memory spanning several decades, but also for its professional diversity. In addition to legal practitioners, academics and civil servants (mainly from Defra, but also from other Government departments), the fishing industry itself was very well represented in the room. This led to an unusually lively and stimulating debate, in which the civil servants naturally did not take part.

These problems stand on the cusp of two crises: the uncertainties over Brexit and the environmental emergency. Not only on the panel but also amongst those who intervened from the audience, there appeared to be a consensus on both points. Many “dark thoughts” (as one attendee put it) were expressed, as further problems were raised.

According to one member of the audience, the fishermen were being led to believe that a significant proportion of their catch after Brexit need not be subject to UK quotas – a policy which the EU would never accept, which would make a fisheries agreement between the parties extremely unlikely. Another attendee referred to the passage in the Political Declaration according to which the Parties would use their best endeavours to conclude and ratify a fisheries agreement by 1 July 2020 so as to ensure continuity, if the Withdrawal Agreement comes into force but expires at the end of 2020. In his view, the chances of meeting this deadline were very slim or even non-existent.

Other points raised by the audience included discussion on: the advantages and disadvantages for the UK in negotiating quota as an independent state; the continuing obligation to ensure resource sustainability under international law; the nature of the public resource of fish and possibilities in the defunct Fisheries Bill for reform of fishing opportunities allocation; provision for the small-scale fleet; whether EU product standards will impact the UK more forcefully as a third country and whether these standards will impede or prevent export to the EU.

Towards the end of the conference, I also ventured a brief intervention, predicting that, despite its protestations to the contrary, in the worst-case scenario – where either there is a no-deal Brexit or the Withdrawal Agreement does come into force, but we subsequently fall over the proverbial cliff edge – the EU might after all be prepared to conclude a number of agreements relating to the specific sectors where there is the greatest urgency. This would certainly include security, but fisheries is also an obvious candidate for such exceptional treatment. One thing is clear, though: the EU will insist on having common rules on governance (essentially dispute resolution) so as to avoid falling into the same trap as it has with Switzerland, which has concluded some 130 separate agreements with the EU over the years without any kind of common institutional framework.

Let me end with an afterthought: only one State in Western European is likely to be an ally of the UK in its relations with the EU, and that country is Switzerland. But presumably not when it comes to fisheries.

BIICL has asked me to specify that this post does not represent their views.