Parliamentary Sovereignty: Brexit and Schrödinger’s cat

By Marc Johnson, Lecturer in Law (Truman Boddon Law School)

Photo: Flickr

Brexit has been a source of emotionally-charged debate. One point which has received plenty of attention is the sovereignty of Parliament and its relationship with EU membership. It is often explained that the EU’s ability to make laws (which can apply in the UK) is some form of forfeiture of sovereignty. However, this statement has a number of shortcomings, not least that it ignores the election of Members of the European Parliament by the UK, providing (at least to some degree) a democratic mandate to the European Parliament. I will use Schrödinger’s cat to suggest that sovereignty can be present in multiple places and remain intact, allowing the normal operation of both the UK Parliament and European Parliament, without offending a nuanced view of sovereignty. In order to do this, one must cast aside the orthodox views of sovereignty and start with a pragmatic and philosophical approach to Parliamentary Sovereignty as it today. Brexit is akin to lifting the lid of Schrödinger’s box to observe the actual state of sovereignty at a specific point in time, but in doing so it reduces the observers to that of a quantitative measurer, and asks ‘is it dead or alive’ – when, in fact, reality is far more complex than this. (more…)

A call for the revocation of Article 50

By Prof Phil Syrpis (University of Bristol Law School)

Photo from Flickr

Whisper it gently, but a solution to the Brexit riddle seems to be coming into view. Westminster has yet to see it, but it will not be long now (famous last words…) before the reality, finally, becomes impossible to avoid. March 2019 will be upon us very soon. Unless *something* is agreed the UK will leave the EU on 29 March with no deal.

Developments in the EU

While the attention of the nation is focused on Westminster, and in particular on the travails of Prime Minister Theresa May – who on 12 December survived a no confidence from her own MPs by an uncomfortable margin of 200 to 117 – the most important developments have come from the European Union; the ruling of the European Court of Justice on the revocability of Article 50, and the EU’s ever clearer political statements that it will not countenance renegotiation.

First, on Monday, came the judgment of the CJEU in the Wightman case. The CJEU ruled on the unilateral revocability of Article 50. In a judgment which emphasised the sovereignty of the withdrawing Member State, and its ability to decide whether its destiny lies within or outside the EU, the Court held that unilateral revocation is possible ‘in an unconditional and unequivocal manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements’. It confirmed that ‘the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State’. For fuller analysis of the judgment, see here, and, with added Taylor Swift, here. (more…)

Why the Draft Agreement on the Withdrawal of the UK from the EU should satisfy neither Leavers nor Remainers

By Dr Clair Gammage and Prof Phil Syrpis (University of Bristol Law School)

Introduction

The 585-page Draft Agreement on the Withdrawal of the UK from the EU (“the Withdrawal Agreement”), agreed on 14 November, paves the way for the UK’s departure from the EU on 20 March 2019. The Withdrawal Agreement and the associated Political Declaration on the Future UK-EU Relationship, agreed earlier today, represent the culmination of the Article 50 negotiations between the UK and the EU. The Withdrawal Agreement includes provisions on citizens’ rights (Part Two), provisions governing separation (Part Three), provisions on the transition or implementation period (Part Four), financial provisions (i.e. the divorce bill) (Part Five), and institutional provisions, including a dispute settlement system under a newly-created Joint Committee (Part Six); together with Protocols on Ireland, Cyprus and Gibraltar. For a comprehensive analysis of the Agreement as a whole, see Steve Peers’ analysis, here.

Our intention here is not to engage with the unfolding political drama, but rather to analyse some of the key legal provisions of the Withdrawal Agreement, which explain the way in which the withdrawal process will operate. We begin with a couple of caveats. First, the Withdrawal Agreement is a long document, and we have had only a week to read and think about it. It is not easy to work out how the various parts of the Agreement and the Political Declaration are intended to fit together. Second, this post only purports to provide a broad-brush legal analysis of the Withdrawal Agreement; there are deeper complexities lurking within many of its provisions. We have chosen to focus on those areas in which we have the greatest expertise. Our hope is that this post will provoke a reaction among those keen to participate in both legal, and more political, discussion of the Withdrawal Agreement, and that it will help to generate greater understanding of the proposed terms of the UK’s exit from the EU.

On the basis of our analysis of the deal, we conclude that it should be rejected. It is a better outcome than ‘no deal’. But, it is significantly worse than the status quo. There are significant reasons why not only Brexiters but also remainers should be concerned. (more…)

Why the People’s Vote is not ‘the answer’

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

Photo: Nadja von Massow, People’s Vote March, London 23 June 2018.

Momentum seems to be building for a people’s vote. I argue here that there are a number of legal and political issues which need to be addressed before it is possible to decide whether a people’s vote is indeed ‘the answer’ to the mad Brexit riddle. My conclusion is that it is not.

The most common plea is for a people’s vote ‘on the final Brexit deal negotiated by the UK Government’. But, there are also calls for a people’s vote ‘if the Brexit deal is rejected by Parliament’. Scratch a little below the surface, and it becomes apparent that many of those who are now calling for a people’s vote are either uncertain, or perhaps deliberately vague, about the circumstances in which a people’s vote should be held. They are also uncertain, or again perhaps deliberately vague, about the nature of the question to be put to the people, the timing of the people’s vote, and indeed the consequences which should flow from such a vote. There are, as the Leave campaign should be able to testify, pros and cons for campaign groups who take this sort of stance. A vague plan might elicit support from a wide range of people. But then, it might turn out not to be able to deliver that which people were hoping for.

Calls for a people’s vote come from a variety of sources. The most enthusiastic voices are the ‘remainers’. They tend to see a people’s vote as an opportunity – perhaps the last opportunity – to stop Brexit, and to enable the public to vote not, as in June 2016, on the abstract idea of leave, but instead on the Government’s concrete Brexit plans. They are confident that while there was a small majority for Brexit in 2016, there would not, given what we now know, be a majority for any of the Government’s possible plans, or indeed for a ‘no deal’ Brexit. Recent polls support their claim. They have been joined by a number of other groups, who argue that there is a tactical political advantage to be gained (for the Government and the Labour Party) in backing a people’s vote. (more…)

NHS procurement and Brexit: limited scope for no-deal preparations

By Dr Albert Sanchez-Graells, Reader in Economic Law and Member of the Centre for Health, Law, and Society (University of Bristol Law School).

As Brexit day approaches and the UK and the EU fail to complete their negotiations for a withdrawal and transition agreement to ensure an ‘orderly Brexit’, more and more voices will raise strong concerns about the impact of a no-deal Brexit for important sectors of the UK economy and public sector. In a leaked letter, the trade association of NHS providers sent a clear warning message to the public bodies in charge of running the English NHS (NHS England and NHS Improvement). As widely reported by the press, NHS providers made it clear that poor co-ordination by ministers and health service bosses means there has been a failure to prepare for the UK to be left without a Brexit deal, and that this could mean “both stockpiles and shortages of medicines and medical devices”.

NHS providers have thus requested that the Department of Health and Social Care, NHSE and NHSI accelerate preparations for a no-deal Brexit. In this post, I argue that there is very limited scope for no-deal preparations concerning medical equipment and consumables, and that this can have a very damaging impact on the running of the NHS post-Brexit, given that it annually spends approximately £6 billion on goods (such as every day hospital consumables, high cost devices, capital equipment and common goods). (more…)

Brexit – What are the options for the UK now?

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

In the light of the resignations of David Davis and Boris Johnson, it is time to reexamine the state of play in the Brexit negotiations. In this post, I seek to identify the various possible outcomes, and to provide some comments on the political ramifications of each.

The list of possible outcomes is almost as long as it was in March 2017, when Article 50 was triggered. That in itself is a cause of huge concern. What is also worrying, is that there does not appear to be a clear path to any of the possible outcomes.   (more…)

Retained EU law in the EU (Withdrawal) Bill: A Reaction to the House of Lords Constitution Committee Report

By Prof Michael Ford QC, Professor of Law, and Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).*

On 29 January the House of Lords Constitution Committee delivered a withering assessment of the EU (Withdrawal) Bill, describing it as ‘fundamentally flawed from a constitutional perspective in multiple ways’. Alongside trenchant criticisms of the delegated powers in the Bill, and the effects for the devolution settlement, the Committee’s Report focuses on the definition and status of ‘retained EU law’.

The aim of this short post is to explore some of the implications of the Committee’s approach to this vexed question. If, as the Committee recommends, ‘retained EU law’ is defined narrowly, it will have the virtue of restricting the scope of the Henry VIII Henpowers in clause 7, which only apply  to operational problems and deficiencies in relation to ‘retained EU law’. But a narrow definition gives rise to problems elsewhere. ‘Retained EU law’ is also the definition used for the purpose of the continuing application of existing CJEU case law and retained general principles of EU law under clause 6. Questions as to the validity, meaning and effect of pre-Brexit UK law which is not ‘retained EU law’ are therefore excluded from these interpretative provisions. In the Bill as worded, it is not clear if this difficulty is resolved by the operation of the principle of supremacy of EU law referred to in clause 5, the meaning and effect of which is very opaque. The Committee recommends that the principle of the supremacy of EU law be abandoned altogether; but if its approach were to be followed, there would be no EU principles which would apply to any law currently in the field of EU law which is not ‘retained EU law’. The implications are assessed by reference to the Equality Act 2010 (EqA). (more…)

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). (more…)

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. (more…)

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.  (more…)