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…)

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. (more…)

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. (more…)

Half-hearted, half-baked and stuck in the rut of business as usual: The Government’s Response to the Green Paper Consultation on Corporate Governance Reform

By Prof Charlotte Villiers, Professor of Company Law and Corporate Governance (University of Bristol Law School).

The UK currently faces huge economic and political challenges. The Brexit negotiations are clearly of central importance and the outcome will strongly influence our country’s future as a trading nation. Our economic prospects will also be dependent on the strength of our corporate governance system. During the past couple of years, a number of corporate scandals and failures such as the demise of BHS with its huge pension losses and the worker exploitation at Sports Direct as well as continued publicity of ‘fat cat’ executive pay have threatened the reputation of the UKs corporate governance framework. In light of these negative reports a corporate governance inquiry was launched by the House of Commons Committee of the Department for Business, Energy and Industrial Strategy and the Government published a Green Paper on Corporate Governance Reform in November 2016. Despite a busy schedule with Brexit and a slimmed down Queen’s Speech, the Government continues to pursue its plans for corporate governance reform with its publication of a Government Response to the Green Paper in August 2017.

When Theresa May made her speech launching her campaign to become Prime Minister in July 2016 she announced her intention to ‘have not just consumers represented on company boards, but employees as well.’ She repeated the promise as Prime Minister at the Conservative Party Conference in the same year. In that same campaign speech in July Theresa May also noted that during the previous eighteen years executive pay had more than trebled and there was ‘an irrational, unhealthy and growing gap between what these companies pay their workers and what they pay their bosses’. She said that she wanted ‘to make shareholder votes on corporate pay not just advisory but binding’ and ‘to see more transparency, including the full disclosure of bonus targets and the publication of “pay multiple” data: that is, the ratio between the CEO’s pay and the average company worker’s pay’ and ‘to simplify the way bonuses are paid so that the bosses’ incentives are better aligned with the long-term interests of the company and its shareholders.’

(more…)

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. (more…)

Scoping the impact of Brexit for NHS procurement

By Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).

NHS England spends over £20 billion every year on goods and services, which typically accounts for around 30% of the operating costs of each hospital. A significant part of the remainder of NHS non-salary budget involves the commissioning of health care services. This expenditure and commissioning is controlled by NHS procurement rules, which in part derive from EU law. Different procurement rules apply in different countries within the UK, and both Scotland and Northern Ireland both have separate regulatory schemes. Even though this post only focuses on the situation in England, some issues reflect broader concerns in the UK context. Generally, NHS procurement rules are regularly criticised for imposing excessive red tape and compliance costs on the NHS, and calls for NHS procurement reform to free it from such strictures are common.

In this context, Brexit could be seen as an opportunity to overhaul NHS procurement and to move away from the perceived excesses of EU law (see eg Cram: 2016). However, I think that it is far from clear that such reform could not fit within the blueprint of EU law, and that most of the constraints on NHS procurement rather derive from independent decisions adopted by the UK over the last 25 years. Moreover, from an economic perspective, Brexit will probably hurt the functioning of the NHS (including its procurement), with or without significant regulatory reforms.

This post is based on my presentation at the event Brexit, Regulation and Society, held by ManReg on 13 June 2017, and concentrates on two issues. First, does EU law prevent significant reforms of NHS procurement and, if so, can Brexit suppress such constraints? Second, is the way the Brexit process is unfolding conducive to an improvement of NHS procurement, both from an economic and a regulatory perspective? (more…)