Tag: brexit

Brexit, The Supreme Court (UK) and the principle of loyalty: on the question of irrevocability of a withdrawal notice

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Supreme Court December 2016 - 01

by Alessandra Silveira, Editor
▪

Article 50, TEU is silent on several issues concerning the withdrawal of a Member State from the European Union. Such article establishes that the Member State shall notify the European Council of its withdrawal intention in accordance with its own constitutional requirements. But it does not provide for, for instance, about the hypothesis of revoking the notification of the withdrawal intention, perhaps – before the certainty of revocability – to prevent the Member States of being tempted to influence the destiny of the EU through a false threat of exit. Therefore the doubts raised by article 50, TEU will have to be solved in the light of the principles of the EU law, in special the principle of loyalty [Article 4(3), TEU]. According to this principle of friendly conduct, inherent to all known federative systems, the EU and the Member States respect and assist each other mutually in the fulfilment of the missions resulting from the Treaties.

In 24 January 2017, The Supreme Court issued its expected ruling on whether a notice withdrawing the UK from the EU Treaties can, under the UK’s constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament.[i] Probably to justify the absence of a reference for a preliminary ruling on the question of irrevocability of a withdrawal notice pursuant to Article 50 TEU, The Supreme Court  highlights that UK’s constitutional requirements are a matter of domestic law should be determined by UK judges. Moreover, The Supreme Court asserted that the issues in those appeals have nothing to do with political issues such as the merits of the decision to withdraw, the timetable and terms of so doing, or the details of any future relationship between the UK and the EU.

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R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) : Realpolitik and the Revocation of an Article 50 TEU Notification to Withdraw

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by John Cotter, Senior Lecturer at University of Wolverhampton Law School
▪

The opening lines of a judgment – in common law jurisdictions, at least – can very often be revealing of a court’s concerns. The first five paragraphs of the collegiate High Court judgment (Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ) in Miller indicate very clearly the judges’ worry that their judgment would be misunderstood by sections of the media and the wider public. This judgment did not have “any bearing on the question of the merits or demerits of a withdrawal of the [UK] from the [EU]”, the Court stated. Rather, the question before the Court was a narrow constitutional issue, and a purely legal matter: whether the government could use Royal prerogative powers to give notification of withdrawal from the EU pursuant to Article 50 TEU or whether this was a matter for the Houses of Parliament. On this question, the High Court ruled that the notification under Article 50 TEU may not be given by means of Royal prerogative; rather, such notification is a matter for Parliament exclusively. While the conducting of international relations and the signing of and withdrawal from international treaties were powers generally to be exercised by the executive on behalf of the Crown, the High Court reasoned that where withdrawal from a treaty would result in changes to domestic law (as withdrawal from the EU would), such withdrawal could not be effected without Parliament.

The Court’s attempt to avoid misinterpretation of its role appears, however, to have fallen on deaf or wilfully closed ears, with the judges being subjected to attacks in sections of the media that were astonishing even by the standards of Britain’s rather histrionic tabloid press (one publication’s front page contained the headline “Enemies of the People” along with photographs of the three judges). To many of those advocating Brexit, the judgment was an unelected court playing politics and frustrating the will of the people (even though the European Union Referendum Act 2015 had not provided that the referendum result be binding). To the Court’s defenders, the judgment was the latest in a line of rulings in which the courts upheld the supremacy of Parliament over Royal prerogative powers. It is certainly the case that the High Court judgment, if upheld by the Supreme Court (which is due to hear an appeal in early December), has the potential to make the giving of the Article 50 notification a more lengthy and complex process. It is conceivable that both Houses of Parliament could use their leverage to require the government to reveal more detail on their post-notification negotiating aims. However, as a matter of realpolitik, the judgment is unlikely prevent Article 50 being triggered: Labour, the largest opposition party in the Commons has indicated that it will not vote against a Bill to give notification under Article 50, and it is unlikely that the Lords would provoke further questions about their relevance in modern Britain by blocking Brexit.

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Brexit is going to happen, but…

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by João Alexandre Guimarães, Erasmus student at UMinho
▪

The New York Times says the British government’s plan for leaving the European Union was thrown into uncertainty on Thursday after the High Court ruled that Parliament must give its approval before the process can begin. “The court’s decision seemed likely to slow — but not halt — the British withdrawal from the bloc, a step approved by nearly 52 percent of voters in a June referendum. Nevertheless, the court’s decision was a significant blow to Prime Minister Theresa May“.

She had planned to begin the legal steps for leaving the European Union by the end of March, and to prepare for the negotiations over Britain’s exit mostly behind closed doors. If the court’s ruling is upheld — the government immediately vowed to appeal — that plan would be thrown into disarray, analysts said.

On CNN (also here), Jane Marrick says, this does not have to expose Britain’s detailed negotiating position with Brussels, but it should allow our democratically elected representatives to scrutinize the broad terms. It will also give the 48% who voted Remain — 16 million people — a voice that under the government’s plans they are currently denied.

Eleanor Garnier, from BBC, said this decision has huge implications, not just on the timing of Brexit but on the terms of Brexit. That’s because it’s given the initiative to those on the Remain side in the House of Commons who, it’s now likely, will argue Article 50 can only be triggered when Parliament is ready and that could mean when they’re happy with the terms of any future deal. Of course, it will be immensely difficult to satisfy and get agreement from all those MPs who voted to remain. Could an early general election be on the cards after all? , via BBC.

On the CJEU’s post-Brexit case-law on European citizenship. The recovery of the identity Ariadne’s thread?

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by Professor Alessandra Silveira, Editor
▪

The CJEU over the years has helped forging a concept of citizenship directed to be the “fundamental status of Member States nationals”. However, since the ruling Dereci of 2011, the proactivity of the CJEU concerning the development of the European citizenship seemed to have gradually exhausted its potentialities, mostly on the so-called social citizenship. It happens, tough, that the crucial moment the European Union faces demands the enhancement of its vertical relation with the citizens it upholds – it is either this or fragmentation. And maybe this is the subliminal message from the CJEU in three post-Brexit rulings that, decided in the Grand Chamber, surprisingly recover and develop the most emblematic case-law about the European citizenship – namely the Rottmann[i] and Zambrano[ii] rulings – whose political potential and/or identity potential seemed irrevocably muzzled.

In the ruling Rendón Marín[iii] and CS[iv], the core issue involved the expulsion and the automatic refusal of the concession of residence to third states nationals who have a dependent minor European citizen – in  both cases due to the parent’s criminal records. The CJEU recovered the Zambrano assertion, according to which Article 20, TFEU precludes national provisions that have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union[v] – and, in this sense, it must be attributed the derived right of residence to the national from a third State, under this risk of the useful effect of the European citizenship being affected, if the minor is forced to leave the territory of the Union to follow his/her parent[vi]. In both rulings, the novelty is the way the CJEU appreciates, in the light of the fundamental rights of the European citizen, the possibility of a Member State to introduce limits to such derived right of residence which arises from Article 20, TFEU.

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The voters have spoken. Brexit it is.

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by Catherine Barnard, Professor of European Union Law 
and the Jean Monnet Chair of EU Law 
in the Faculty of Law at the University of Cambridge

The voters have spoken. Brexit it is.

But what does Brexit in fact mean? Pulling up the drawbridge altogether or entering some special relationship with the EU? One possibility would be adopting EU law-lite, through membership of the European Economic Area. The UK would retain access to the single market but would still have to pay a membership fee and probably accept free movement of persons, at least in a modified form. What about free trade agreements like the one the EU has with Canada (which is not yet ratified)? But what would this mean for the UK’s flourishing services sector? There are some unpalatable choices ahead for politicians to make.

Meanwhile, there are some important constitutional questions to be addressed. What is required to trigger Article 50 TEU, the legal provision for a country to leave the European Union? Can the Prime Minister do it by way of the exercise of her prerogative (inherent) powers or will there need to be an Act of Parliament? This issue is currently being litigated in the British courts.

Once triggered, how long will the negotiation process take? The Article envisages two years, but with the possibility of an extension but only by unanimous agreement. How will the negotiations fit in with the elections in France and Germany when their leaders have their eye on domestic matters? Can the UK civil service, 25% smaller than in 2005, cope with the severe strains that Brexit will put it under? And what about the position of Scotland and Northern Ireland?

The Brexit vote was the easy bit. The hard work is about to begin.

___

Picture credits: ‘Brexit, Polling station sign for the EU referendum vote’, by Ungry Young Man.

A Perspective on Brexit

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by Elaine Dewhurst, Senior Lecturer in Law, University of Manchester

and Dimitrios Doukas, Reader in Law, University of Manchester

If there are two words that characterise the sentiments of many British-based academics anticipating Brexit, they would be ‘uncertainty’ and ‘sadness’. In the widest sense, there is uncertainty about the future of the EU as a project, and the place of non-British EU citizens living in the United Kingdom. Since the referendum result, the careers and livelihoods of those who benefit from EU research funding and collaboration and/or whose expertise lies predominantly or exclusively in areas of EU law have been marred by fear and doubt. Within the legal profession, for example, UK lawyers face an uphill challenge of seeking admission to a second Bar or Law Society, such as in Ireland, to enable them to continue enjoying the freedom to provide their services within the EU. Within legal academia, there is much speculation surrounding the furtherance of existing research projects, and recent studies suggest that collaborations and funding are at risk of termination as a result of the referendum. In addition, there is uncertainty over whether a post-Brexit Britain will retain a migration stream for academics which would match the free movement principles in terms of its encouragement of cross-border movement. For many, it is not just the professional difficulties that may deter academics from working in Britain. Some also have considered leaving Britain as they fear (or have already experienced) a rise in racism and xenophobia, a problem which may also discourage others from seeking work in Britain. More widely than this, there is fear of increasing and unchecked populist politics and anti-immigrant sentiment in the United Kingdom, an apprehension heightened because of Britain’s unadulterated majoritarian democracy in which EU law with its extensive judicial controls has heretofore performed an enforceable moderating influence. Uncertainty also mars the student experience. British universities have, and continue to, benefit financially and culturally from the many EU students who come to Britain every year to study. Reports suggest that the numbers of EU students applying to British universities has dropped since the referendum, and existing students have had to receive assurances as regards their position. Equally affected by this uncertainty are those British students wishing to participate in Erasmus programmes (a programme which has already benefitted over 200,000 British students).

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Editorial August 2016

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by Katarzyna Gromek-Broc, Senior Lecturer, 
Senior Advisor for Academic Matters,
University of York

[The Editorial team is pleased to annouce that this Editorial and following two articles resume perspectives from British schoolars on Brexit].

Brexit

The 23rd of June 2016 marks an unprecedented moment in British and European history.  A moment that everybody feared, but nobody really believed would actually happen. The moment is heart-breaking: British people decided to abandon the European Project. The results of the referendum of the 23rd of June ‘to leave the EU’ – expressed by 51.9% to 48.1% out of 72.2% of the electorate – symbolised the end of an era lasting 44 years of the UK in the EU.[1] Birkinshaw declared that ‘in the morning after the referendum the country was is in a state of shock’, intensified by the initial calculations of the results, which indicated a slightly pro-Europe advantage.[2]  Although the shift in outcome was predictable since the first results available were from the City of London – a bastion of pro-Europe campaign – backed up by some other dynamic cities, including Glasgow, Edinburgh, Aberdeen, Brighton, Manchester and Bristol, with notably high concentrations of intellectual minded adults, as well as young people. The referendum divided Britain geographically and broke the link between the generations. The younger people were in majority in the ‘Remain campaign’.  My region – Yorkshire – sadly voted overwhelmingly to leave.[3] Almost all of the key cities, including Sheffield, Hull, Bradford, Hambleton, North Lincolnshire, Rotherham and Selby, decided to withdraw from the EU, with just a few exceptions, such as Harrogate (51%) and York (58%).[4]

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Brexit and the European Football Market: The Consequences for the Premier League and the British Players

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by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho
▪

The results of the referendum held in Great Britain on the 23rd of June of 2016 shall certainly change the course of history. On this day “Brexit” trumped “Bremain” by 52% against 48% with a turnout of about 72%. And while the results of the referendum are not binding it does seem that the British government plans to respect the will of the voters.

Leaving the EU will affect not only the economy but every single aspect of the lives of the British people, including sports. The British love sports, mainly football, and Britain, more precisely England has one of most competitive football leagues in the world: the Premier League. Nigel Farage a top UK politician and one of the most prominent leave supporters said in April:

“What this referendum is about is taking back control of our lives, our laws and our borders”.

However, we must ask ourselves what are the consequences of “taking back our laws and borders” for the Premier League?

Farage is a supporter of Crystal Palace, whose team is composed of 32 players, and 12 of those players are not British. Manchester United, the winner of the FA Cup, regularly plays with 7 non-British players on its line-up even if in total it has more than 50% British players on its roster. How will the Premier League survive after Brexit? Will its teams agree with Farage’s statement “outside of this single market we will be better off” (here)?
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“Out is out” (including in relation to the Mediterranean diet…). On the Article 50 of the European Union Treaty in the light of the federative principle of European loyalty

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by Professor Alessandra Silveira, Editor
▪

Since Abraham Lincoln faced the hardest constitutional crisis of the USA (War of Secession, 1861-1865) the modern legal theory of federative systems had taken for granted that the hypothesis of secession was repelled. And then the Canadian Supreme Court reframed the data. In the country, in 1995, a referendum was called on the unilateral declaration of secession of Québec. The proposal of separation was reject by a short difference – 50,58% of the votes in a turnout of 94%. Following the referendum the federal government appealed to the Supreme Court to know if a unilateral secession, addressed in a popular consultation not approved by the remaining States, would violate the Constitution. The Supreme Court ruled that a unilateral secession with those features would infringe the Constitution. However, if in a different referendum, when answering a “clear question”, the “clear majority” of the Québécoise casted an unequivocal will of not integrating Canada anymore, then the remaining States and the federal government would be bonded to negotiate with Québec the conditions for its withdrawal because unwritten constitutional principles determined it (Reference re Secession of Quebec, [1998] 2 S.C.R. 217). In the aftermath the federal government passed in the Canadian Parliament “clear” rules tending to regulate and calculate the “price” of withdrawal, especially to safeguard the legitimate interest of the remaining States and their population – as a result, Québec still integrates the federation. Punch line: in a federative system there are neither free lunches nor free exits.

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Editorial of July 2016

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by Professor Alessandra Silveira, Editor
▪

Every cloud has a silver lining. On the referendum able to push forward the unity of the Europe and the disunity of the Kingdom

Modern democracy, with which the West has lived since the liberal revolutions, is representative – exceptionally accompanied by moments of semi-direct democracy through referenda or popular consultations. Such exceptionality is based on the very survival of democracy as referenda hardly ever manage to escape high doses of manipulation and abuse. When Hans Kelsen was asked once about the rightfulness of popular consultation, he allegedly answered that, despite they make sense in certain situations, it should not be forgotten that an uninformed population preferred Barabbas over Jesus Christ. This metaphor illustrates one of the main assumptions of the democratic theory (which no one described as brilliantly as Norberto Bobbio): the excess of democracy may kill it.

This becomes crystal clear in the referenda (supposedly) on European issues, tendentiously instrumentalized by national political elites that convert them in arenas to internal disputes. The day the world awaked in astonishment with the results of the British referendum, the top questions at the social networks and search engines in the United Kingdom on the European Union since the Brexit result was officially announced were: “What is the European Union? What does it mean to leave the European Union?” That reveals that many British have voted without really knowing what the EU is or what it stands for in their daily life.

And so 17 million British, deceived by the most despicable demagogy, decided about the destinies of 500 million European, subverting the most elementary democratic rule of a polity – the one of majority will. They did so openly for the worst reasons – fear, hostility, xenophobia, all wrapped in the sovereignty narrative –, offering weapons for the Leftist and Rightist populisms all over Europe to wield a speech against the Brussels’ technocracy. The same technocracy that will stop paying grants to British agriculturists, that will cease supporting research in the British universities, that will discontinue the stimulation for the movement of British Erasmus students, that will interrupt law-making towards promoting equality and non-discrimination among the British.
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