Once More unto the Breach? An Independent Scotland, Europe, and the Law

Today, Scottish First Minister Nicola Sturgeon has announced that she would ask the Scottish Parliament to allow her to agree with the UK Government on another independence referendum. The Scottish people should be given a right to decide – once the terms of Brexit are known – whether to stick with the UK and leave the EU or pursue the route of independence and stay within ‘Europe’. This blog post will briefly outline some of the legal obstacles on the way, both internal and external.

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Limiting the Constitutional Space of Scotland and Northern Ireland

Scotland might soon be having a second independence referendum, and Ireland is pushing for Northern Ireland rejoining the EU after Brexit. Why does the noble idea of a differentiated Brexit, that could absorb some of the tensions created by UK’s future withdrawal from the EU, seem to lose traction even within the political elites of Scotland and Northern Ireland? One possible answer might be that the UK political and constitutional framework does not provide for a supportive environment. In fact, the judgment of the Supreme Court in Miller points to the limits of the UK political and constitutional order to accommodate the demands of the devolved nations.

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The EU (Notification of Withdrawal) Bill: Bargaining Chips on the Commons Table

EU citizens living and working in the UK will, according to the House of Commons, not be ensured a right of residency after Brexit, as the government wishes to use them as bargaining chips with Brussels – a move both strategically misguided and morally indefensible. Now, all eyes are on the House of Lords.

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The Miller decision: Legal constitutionalism ends not with a bang, but a whimper

Miller was essentially a case which was argued before, and decided by, the court on the basis of the English Imperial constitutional tradition forged in the Victorian age. This judgment has made the political constitution of the devolved United Kingdom as a whole more unstable, more brittle, more fragile and more likely to break-up precisely because it denies the devolved nations’ institutions any legal right to participate in the Brexit process.

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Sailing uncharted waters – for how long? On transitional post-Brexit trade arrangements

Given the short timeframe for negotiating an exit agreement, the UK and the EU-27 may not be able to agree on new terms for their future trade relations before the UK’s formal exit from the EU takes effect. Consequently, many experts are pushing for a transitional arrangement.

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Brexit in the Supreme Court: An Opportunity Missed?

For all that this case has been written-up in the media as a ‘defeat’ for the government, this was a case in which the Supreme Court passed up a significant opportunity to compensate for the UK’s newly imbalanced constitutional framework.

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The Supreme Court in Miller – some early comments

The UK Supreme Court’s decision in the Miller appeal was probably greeted with a sigh of relief in 10 Downing Street. Sure, the Government will now need to seek parliamentary approval for triggering Article 50 TEU and starting the formal process of withdrawing from the EU, but the much greater political danger of having to also seek the consent of the devolved parliaments of Scotland, Northern Ireland, and Wales, has not materialised. What follows are a few brief comments on the Supreme Court’s reasoning and an assessment of its implications for the future.

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Europarecht, Prärogative und Devolution: Der UK Supreme Court entscheidet über den Brexit

In seinem heutigen Urteil zum Brexit hat der britische Supreme Court entschieden, dass die britische Regierung nur nach gesetzlicher Ermächtigung den Austritt aus der EU erklären darf. Die Mehrheit des Gerichts sieht das Unionsrecht als eigene Rechtsquelle an, die nur das Parlament trocken legen kann. Dass es das nun tun wird, steht außer Frage.

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Is Article 50 Reversible? On Politics Beyond Legal Doctrine

Can the United Kingdom, once it has declared its withdrawal from the EU, revoke this decision later on? This question is at the core of the ongoing case before the UK Supreme Court on Art. 50 TEU. I argue that revocability fits neatly in the letter and spirit of article 50 because of formal and substantive reasons. I further content that the Supreme Court decision may create a bifurcation in which interpretation of a key TEU provision may become purely an issue of domestic law. However, I further content that actors' political decisions have progressively framed a situation in which revocability does not seem politically possible.

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