Tag Archives: Article 50

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

Researching European Union Tort Law in the Era of Brexit

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School).

October 2017 marked the publication of the Edward Elgar Research Handbook on EU Tort Law. This is part of the series of Research Handbooks in European Law published by leading Law publishing house, Edward Elgar, which offer authoritative reference points for academics, students, and practitioners studying or working in EU law, private law and comparative law. The aim is to be comprehensive and informative, but also accessible for those approaching the subject for the first time.

The Research Handbook on EU Tort Law is edited by University of Bristol Professor of Comparative Law, Paula Giliker, but also contains contributions from other Bristol academic staff including Dr Jule Mulder, Dr Albert Sanchez-Graells and Professor Keith Stanton, together with 14 other contributions ranging from the UK and Ireland to France, Germany, the Netherlands and Hungary. This truly international project seeks to examine the extent to which EU-sourced law (directives, judicial decisions, regulations, Treaty provisions) have created new rights in the law of tort on which claimants can rely in either the Court of Justice of the European Union (CJEU) or national courts.

The variety of areas of law in which EU-sourced tort law can be found is striking, as highlighted in Giliker’s introductory chapter, ‘What do we mean by “EU tort law”?’ Contributors discuss actions in the CJEU (Gutman), State liability for breach of EU law (Granger), product liability (White), competition law (Odudu and Sanchez-Graells), data protection law (Stauch), employment law (Mulder), insurance law (Davey), financial services law (Stanton) and the law relating to unfair commercial practices (Riefa and Saintier). Further contributions examine what we mean by compensatory remedies in EU law (Leczykiewicz), whether we can identify a culture of EU tort law (Niglia and Knetsch) and the possibility of harmonising European tort law more generally (Martin-Casals, Blackie and Faure). Finally, Giliker examines the future of EU tort law, both as a substantive area of law and as a concept in need of clarification and further academic debate. Continue reading

A call to stop Brexit

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

Increasing frustration with the Brexit process has prompted me to write this. I have tried to keep it short. My main argument is that the perceived obligation to implement ‘the will of the people’, felt by a large majority of politicians on both sides of the House, is creating a political, legal, social and economic crisis in the UK.

The time has come to demand that Brexit be stopped. A transition period, in which EU law rights and obligations are maintained for a time, now seems inevitable. Opinion in the country seems, slowly, to be beginning to shift. The sunlit uplands, as we are reminded on all almost daily basis, are no more than an illusion. Policy makers are seeking to find second-best solutions, and engaging in attempts to salvage what they can from existing arrangements (which work, at least tolerably, well). Unless advocates of the Brexit cause can point to political, social and economic benefits associated with Brexit, and unless they can demonstrate, in concrete terms, how these benefits are to be realised – and thus far, they have singularly failed to do so – we should not be prepared to allow them to indulge in their reckless fantasy. Continue reading

European Union (Withdrawal) Bill: Paving the way towards a very uncertain future

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

The stated aim of the, then Great, Repeal Bill was to provide clarity and certainty for citizens and businesses, and to ensure a functioning statute book on exit from the EU. The key statement of principle in the White Paper was as follows: ‘In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once we have left the EU. This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before’ (for analysis, see here).

However, the continuity provided by what is now the European Union (Withdrawal) Bill, published last week, must be seen in the context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame (see here). After all, the Government’s aim is that, as a result of Brexit, the UK will be able to decide which parts of EU-derived law to keep, and which to amend or repeal. A number of Brexit Bills, which will change the law in relation to, among others, immigration, trade, customs, agriculture and fisheries, were promised in the Queen’s speech. The clarity and certainty promised in the White Paper, which at first glance appear to provide comfort to citizens and businesses concerned over the effects of Brexit, are more elusive than ever. Continue reading

Law and Politics in the Supreme Court

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

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. Continue reading

Brexit, Environment and Devolution: the Welsh case

By Dr Margherita Pieraccini, Senior Lecturer in Law (University of Bristol Law School).

© BBC

© BBC

These were notes prepared for a seminar held by the External Affairs and Additional Legislation Committee of the National Assembly for Wales on the 31st of October 2016 to discuss the implications of Brexit for Wales in the field of environment and marine policy in particular. The notes discuss a number of constitutional and sector specific issues, key challenges and present some suggestions.    Continue reading

Miller: Why the Government should argue that Article 50 is reversible

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

© PA

© PA

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.  Continue reading