Brexit and counter terrorism in the UK

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)

Speculation about the consequences of Brexit for the UK has, not surprisingly, focused much more upon the economy, trade, migration, and self-governance than upon countering terrorism. While the most important contribution to the latter lies, in any case, with states themselves, the UK’s departure from the EU will, nevertheless, have counter terrorist implications. The two principal ones are likely to concern the effects upon the UK of its disconnection from the EU’s relevant policy frameworks, data bases and networks, and the galvanising effect a ‘hard’ border, ie one with physical impediments between Northern Ireland and the Republic of Ireland, may have upon dissident armed Irish republicanism with the risks this could pose for the peace process in Northern Ireland.

In order to assess these issues more fully, three core questions need to be addressed: what kind of counter terrorist relationship did the UK have with the EU before Brexit? How might this be affected by Brexit? And what kind of alternative arrangements, if any, might be provided afterwards? (more…)

Brexit and LGBT+ Rights

By Dr. Peter Dunne, Lecturer in Law (University of Bristol Law School)

On 6 July, groups and individuals from around the United Kingdom gathered to mark the annual LGBT+ Pride (‘Pride’) festivities in London. An estimated 1.5 million people filled the streets of the nation’s capital – proudly expressing their identity, supporting friends and family, or merely enjoying what has become one of the largest and most popular public celebrations across the country. In 2019, Pride events (both at home and abroad) have a particular significance – coming fifty years after the famous ‘Stonewall Inn Riots’ in New York City, which are often cited as a key moment for developing sexual orientation and gender identity (‘SOGI’) rights in the United States.

In the UK, Pride is a time to both celebrate recent advances and to highlight the many, complex challenges which LGBT+ communities still confront. The limited efficacy of non-discrimination frameworks, deficiencies within LGBT+ asylum processes and on-going controversy surrounding the Gender Recognition Act 2004 are just three (among many) challenges which impede full SOGI-related equality within this jurisdiction. Yet, despite the pressing needs of LGBT+ populations in the UK (as emphasised by the National LGBT Survey), issues relating to sexual orientation and gender identity have – like many other important political concerns – been largely drowned out by the all-consuming Brexit debates.

At the London Parade festivities last Saturday, representatives of most of the UK’s main political parties were present – publicly reaffirming their commitment to LGBT+ rights. However, it has been striking to observe the extent to which LGBT+ populations (and the potential impact of leaving the European Union upon their lives) have been absent from Brexit conversations. (more…)

Some thoughts on the frustrations of carrying out Brexit-related research (in the UK)

By Dr Pedro Telles, Senior Lecturer in Law (Hillary Rodham Clinton School of Law, Swansea University) and Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).

Britain in the Crazed Brexit Vortex

Brexit, its research and its teaching are increasingly becoming a field of study on their own—see eg the illuminating contributions to the special issue edited by C Wallace & T Hervey on ‘Brexit and the Law School’ (2019) 53(2) Law Teacher 133-229, some of which build on the earlier series of SLS ‘Brexit and the Law School’ Seminars, one of which Albert had the pleasure to host at the University of Bristol Law School in July 2017. This seems rather natural, as it is hard to overstate the impact that Brexit is having on the work of academics active in all areas, but particularly for public and EU law scholars. In this post, we offer some personal reflections on the frustrations of carrying out Brexit-related research, some of which are related to Brexit and its unforeseeability, while others are derived from more general constraints on the ways legal research is published and assessed.

Researching a moving target …

The first issue that concerns us is the need to try to foresee what is likely to happen along the Brexit process (itself unknown and highly volatile), which puts legal scholars in a difficult bind because this is clearly a politics-driven phenomenon that curbs almost every imaginable rule or precedent remotely applicable to a comparable situation. We are not sure that legal scholars are in the best position to offer policy forecasts but producing research that is of any use to policy-makers requires such an effort. (more…)

The case for revoking the A50 notification

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

This blog is written after the European Council conclusions were agreed yesterday, on 21 March, on the assumption, which is widely shared, that the EU’s extension plan is accepted by the UK.  It is in two parts. In the first, I explain the nature of the choices ahead. In the second, I seek to make a positive case for revoking the A50 notification.

The choices ahead

As has been the case for a while now, there are four possible outcomes to the Brexit process.

  1. The UK leaves the EU under the Withdrawal Agreement
  2. The UK leaves the EU with no deal
  3. The UK leaves the EU under a different deal
  4. The UK does not leave the EU

The first option is Theresa May’s preferred outcome: that we leave the EU under the terms set by the Withdrawal Agreement. Under the terms of the conclusions, the European Council agreed to an extension until 22 May ‘provided the withdrawal agreement is approved by the House of Commons next week’. The European Council reiterates that there can be no reopening of the Withdrawal Agreement, adding that ‘any unilateral comment, statement or other act should be compatible with the letter and the spirit of the Withdrawal Agreement’. This looks very much like the ‘technical extension’ Theresa May asked for in her letter of 20 March, with the 22 May date chosen so that the UK leaves the EU before the elections to the European Parliament occur, and with a clear indication that no sugar-coating of the backstop will be tolerated. (more…)

Why a no-deal Brexit on 29 March is unconstitutional, not the “legal default”

By Rose Slowe LLM, Honorary Research Fellow, University of Bristol Law School. Author on EU Law and Barrister at Foundry Chambers.

Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.

Article 50(1) of the Treaty on European Union (‘TEU’) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court, the highest judicial authority responsible for interpreting our unwritten constitution, confirmed in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, that, as a matter of UK constitutional law, only an Act of Parliament can authorise, and give effect to, changes in domestic law and existing legal rights. The Miller litigation, while lacking in a critical respect, as discussed elsewhere, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate. (more…)

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…)