Tag Archives: brexit

Article 50, the Supreme Court judgment in Miller ~ and why the question of revocability matters more than ever

By Miss Rosie Slowe LLM, Research Collaborator (University of Bristol Law School).

With the Supreme Court having ruled on 24 January 2017 that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU has revolved around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the Government’s negotiation position. This post puts forward the hypothesis that such debates may be irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable (Prof Syrpis).

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court rejected the Government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50.  Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s intention to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration. Continue reading

Toward a ‘Global Britain’: The post-Brexit landscape

By Dr Clair Gammage, Lecturer in Law (University of Bristol Law School).

In the Prime Minister’s speech of 17 January 2017, in which the Brexit trade negotiation strategy was announced, Theresa May was keen to reassure the world that a ‘Global Britain’ would rise from the ashes of the now infamous June referendum. Outlining twelve core objectives to be pursued in the process of withdrawal from the EU once Article 50 has been triggered, May revealed little substantive detail about what the UK wants from the EU and, indeed, from the rest of the world. Underpinning the strategy is the first objective of “certainty” – certainty for industries, for workers, and for the general population. We now know that the European Communities Act will be repealed but EU law will be translated into the UK legal system. Of course, it is then the choice of Parliament to decide which laws stay and which laws go – presumably depending on the extent to which those laws reflect our Global British values according to the legislature. Will the first objective of “certainty” allay the fears of industry, the public sector, and the general population? The answer to this question rests entirely on the way in which the negotiations are handled from this moment on. So, what does the speech tell us in terms of the post-Brexit trading strategy?

There are two key aspects of the trade strategy going forward: withdrawal from the EU and a renegotiation of our terms with the EU; and, the UK’s trading relationship vis-à-vis the rest of the world which will take the form of WTO compatible free trade agreements (FTAs). FTAs are economic spaces in which the countries to the arrangement reduce tariffs on substantially all the trade that falls under the agreement but each individual member retains its own external tariff with other countries on those goods. The first and second limbs of the trade strategy are interrelated and once Article 50 has been triggered a new form of foreign policy-making that I have (rather tongue-in-cheek) coined “Global Britain external relations law” will begin to manifest. Continue reading

December’s European Council meeting: No country for Social Europe

By Mr Konstantinos Alexandris Polomarkakis, PhD Candidate and Teaching Assistant (University of Bristol Law School).

customtileThe European Council is among, if not the most important of, the pivotal institutions of the EU, mapping out its direction for the near term. Its meetings act as the wayfinding system for the EU policies that are to be drafted and discussed in the coming months, affecting crucial issues that have been considered by the Member States’ leaders as pertaining to the Union’s top priorities. It sets the tone that the Member States as well as the rest of the EU institutions should follow.

In that regard, the latest European Council meeting in Brussels on December 15 touched upon the most pressing issues Europe is faced with at the moment. Managing migration flows and the Union’s asylum policy, ensuring an effective application of the EU-Turkey statement, deepening the common European security and defence policy while at the same time complementing the pertinent NATO mechanisms, the negotiation process on a settlement for Cyprus, as well as the future of the EU-Ukraine Association Agreement in the aftermath of the Dutch referendum in April, and the situation in Syria, all were at the spotlight of the summit. Even Brexit was dealt with by the means of a declaration following an informal meeting of the EU27.

On top of these issues, a whole section of the meeting’s conclusions was dedicated to what was designated as ‘economic and social development, youth’. This is, at first glance, a welcome addition, considering the uncomfortable position the EU is currently sitting at, with high levels of discontent, and, consequently detachment from the European project by its citizens, manifested in the recent public opinion polls and the rise of –primarily far-right- populism in its territory.  Social Europe could be a vehicle, which if employed effectively, has the potential to revive the long-lost interest towards and engagement with the EU. Continue reading

Brexit and Parliament: Doubting John Finnis’s Dualism

By Prof Julian Rivers, Professor of Jurisprudence (University of Bristol Law School).

© Nick Weall

© Nick Weall

The news that the appeal will be heard by a full panel of 11 Justices of the Supreme Court confirms that the High Court’s ‘Brexit Judgment’ is of the highest constitutional significance. So the attention devoted to the judgment by eminent constitutional lawyers is hardly surprising. One powerful argument against the judgment, which is attracting a growing number of supporters, is made by Professor John Finnis in papers for the Judicial Power Project.

Finnis argues that the court mistakenly assumes that EU rights are ‘statutory rights enacted by Parliament’. On his view, the European Communities Act 1972 simply provides a means for making EU law rights enforceable in English law; they are not ‘statutory rights’ as such. Finnis draws an analogy with double-tax treaties. These serve to relieve individuals with connections to more than one country from being taxed twice on the same income. In order for this to apply, both state parties must maintain the international agreement. If one of them gives notice to rescind, as they are typically entitled to do under the treaty, the immunity lapses. In dualist systems such as the UK, there is thus an asymmetry between the creation and removal of rights. There are two conditions precedent for the enjoyment of any new right: an international treaty conferring that right, and an Act of Parliament giving effect to that treaty in domestic law. Both elements are needed to create the right, but if either condition precedent fails, so does the right. The mere fact that Parliament has to provide the domestic conduit does not stop the Government from turning off the international tap.

I am not convinced that this argument works in the context of the UK-EU relationship. Continue reading

EU rights as British rights

By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).

eca-1972-imageAccording to a carefully argued contribution by Professor Finnis in the Miller debate, rights under the European Communities Act 1972 ‘are not “statutory rights enacted by Parliament”’; they are only ‘rights under the treaty law we call EU law, as it stands “from time to time”’. Finnis thus purports to have broken the chain of the claimant’s main argument.

In that connection, Finnis considers the somewhat recherché example of taxation treaties and the Taxation (International and Other Provisions) Act 2010 to be a useful analogy. The point of the present contribution is to suggest that a more natural analogy would be the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Like the ECA 1972, the HRA 1998 conditions the legal relationship between citizen and state in an overarching manner and deals with fundamental constitutional rights. There is also particularly instructive judicial authority on the HRA 1998 specifically on question of the nature of its relationship with the international treaty whose obligations it mirrors. 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

We need a new corporate landscape

By Prof Charlotte Villers, Professor of Company Law, and Ms Nina Boeger, Senior Lecturer in Law (University of Bristol Law School–Centre for Law and Enterprise).

© Childs & Sulzmann. Artist’s impression of Boxworks at the Engine Shed

© Childs & Sulzmann. Artist’s impression of Boxworks at the Engine Shed (Bristol)

Our corporate landscape has relevance for our post-Brexit future. Yet deep public distrust exists not just with regard to our politicians but also with regard to business. Recent debacles involving the now defunct British Home Stores and Sports Direct are just the tip of the iceberg in what is widely seen as a broken economic and political system that has given precedence to the leading market actors.

Corporate governance is the key means by which global wealth is distributed but that wealth is not distributed fairly. Two stakeholder constituents are prioritised: boardroom directors who frequently enjoy eye-watering pay and perks, and shareholders, at least in theory, through the profit maximisation imperative. Both groups have focused on making a quick buck rather than the long term interests of their companies. Workers, at the bottom of the corporate hierarchies, have little chance of improving their means of living and face greater levels of insecurity in their working and home lives. Workers further down the supply chain risk their lives trying to scratch a living in countries only too glad to gain trade from the powerful multinationals.  Consumers lose out as product quality and services are whittled down and the environment, as a natural resource constituency, barely gets a look in. Continue reading

Brexit and Notions of British Citizenship

By Dr Devyani Prabhat, Lecturer in Law (University of Bristol Law School).

DevIn a recent article, published in the inter-disciplinary journal Law, Culture, and Humanities, I have argued that a surge in number of cases of cancellation of British citizenship indicates a return to a loyalty-protection model of citizenship which was popular earlier during the two World Wars. Here, I will go further, and say that Brexit and the debates of exclusion of EEA nationals from the UK, are also influenced by the very same loyalty-protection view. The loyalty-protection view had become unfashionable in the aftermath of the Second World War but is now back in vogue. Continue reading

“Brexit means Brexit”: What next for UK Trade?

By Dr Clair Gammage, Lecturer in Law (University of Bristol Law School).

empiretradeThe 13th July 2016 is likely to be remembered as one of the most significant dates in Britain’s recent history. Following the political fall-out from the EU Referendum our newly appointed Prime Minister, Theresa May, has taken office. In one of her opening statements, May has confirmed that “Brexit means Brexit” and it seems that the triggering of Article 50 TFEU is an inevitability – it is now a matter of when, and not if, the trigger is pulled. With this in mind, we should perhaps pause and reflect on the Cabinet reshuffle with a view to considering some of the possible negotiation strategies we may see in the near future. The negotiation strategy will be twofold: in one respect the UK must negotiate its way out of Europe, and in another respect the UK must formulate a coherent external trade policy in order that relationships with non-EU countries can be developed. Continue reading