Monthly Archives: December 2017

Brexit and Public Procurement Reform: What Next?

By Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).*

Eight months ago, by giving formal notice under Article 50 TEU, the United Kingdom formally started the process of leaving the European Union (so called Brexit). This has immersed the UK Government and EU Institutions in a two-year period of negotiations to disentangle the UK from EU law by the end of March 2019, and to devise a new legal framework for UK-EU trade afterwards. The UK will thereafter be adjusting its trading arrangements with the rest of the world, and the Government has recently stated its intention for the UK to remain a member of the World Trade Organisation Government Procurement Agreement (GPA).

In this context, public procurement regulation is broadly seen as an area where a UK ‘unshackled by EU law’ would be able to turn to a lighter-touch and more commercially-oriented regulatory regime, subject only to GPA constraints. There are indications that the UK would simultaneously attempt to create a particularly close relationship with the US, although recent changes in US international trade policy may pose some questions on that trade strategy. Overall, then, Brexit has created a scenario where UK public procurement law and policy may be significantly altered. In a paper* recently published in the Public Contract Law Journal with Dr Pedro Telles, I speculate on the possibility for Brexit to actually result in a significant reform of UK public procurement law (of which I remain sceptical). Continue reading

The Irish conundrum exposes the harsh realities of Brexit

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

On Monday 4 December 2017, we reached what may prove to be a key staging post on the long, and winding, road which may or may not be leading us towards Brexit. Progress to phase 2 of the withdrawal negotiations, in which the UK and EU will be able to begin to discuss their future relationship, is, as stipulated by the EU and agreed by the UK Government, dependent on ‘sufficient progress’ in relation to the divorce bill, citizens’ rights, and Ireland. The clock towards March 2019 is ticking.

By Monday morning, it appeared that a methodology for calculating the divorce bill had been agreed, and that sufficient guarantees relating to the protection of citizens’ rights had been offered (though it should be noted that various difficult issues, including in relation to the future role of the CJEU, appear to have been left to phase 2). It was also reported that an agreement had been reached that there was ‘to be no divergence from those rules of the internal market and the customs union, which now or in the future, support North South cooperation and the future of the Good Friday Agreement’, a form of words which appears to have been agreed in Brussels, Dublin and London. Reading that, it is not clear whether the leaked agreement contemplated harmonisation between the EU (including Ireland) and Northern Ireland specifically; or between the EU (including Ireland) and the UK as a whole.

Enter the DUP. Arlene Foster made it clear that the DUP would not accept ‘any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom’. Suddenly, the deal was off. Had the UK been agreeing to a lack of divergence between Ireland and the UK as a whole, the DUP’s concern would not have resonated. It is only possible to conclude that, in order to allow the withdrawal negotiations to move forward, the UK Government was contemplating a regime in which divergence within the island of Ireland was to be managed, while the rest of the UK retained the freedom to distance itself more sharply from EU (including Irish) rules. A chorus of voices, from Scotland, Wales and London (and also, I believe, Grimsby), predictably rose to demand an equivalent right to similar special treatment, seeking to protect their own special relationships with the EU. We wait to see how the Government will react.

This short contribution aims to illustrate that there are now hard questions for the Government to confront. If Ireland is in the single market and customs union and Northern Ireland is not, there will need to be a border on the island of Ireland, and, as Anand Menon wrote yesterday, any increase in regulatory divergence in Ireland would impact significantly on people’s lives there (he references health care, agriculture, transport, and energy). If the island of Ireland is to remain in the single market and customs union (or, and I will come back to this shortly, be the subject of an equivalent arrangement ensuring continued regulatory alignment) and the rest of the UK is not, there will need to be a border across the Irish Sea. Continue reading

The Models of Parliamentary Sovereignty

By Mr Marc Johnson, Teaching Associate in Law (University of Bristol Law School).

By Mайкл Гиммельфарб (Mike Gimelfarb) – https://commons.wikimedia.org/w/index.php?curid=5049123

The concept of Parliamentary Sovereignty (also referred to as Parliamentary Supremacy and Legislative Supremacy) deals with several concurrent principles and this makes it a complicated concept to grasp in its entirety. Coupled with this, the media portrayal of this subject through the campaigns on the referendum on exiting the European Union often gave a disingenuous or incomplete view of the Sovereignty of Parliament and as such there are many misconceptions.

This blog piece will address those misconceptions by setting out the models of Parliamentary Sovereignty. These models attempt to explain the way which sovereignty operates, though it may not have escaped the reader’s attention by this blog’s conclusion that each model has positive and negative attributes. This blog offers some opinion on each model of sovereignty to incite further discussion and debate on the topic.  Continue reading