Resurrected Colonial Courts and the Decolonization of the Chagos Archipelago
This post tells the fascinating story of two recent and remarkable developments in the decolonization of the Chagos Archipelago. Last week, the governments of Mauritius and the UK issued a surprise joint statement that the two countries had reached a ‘historical political agreement’ on the exercise of sovereignty over the Chagos Archipelago. Running in counterpoint to the international plane, a once inactive colonial judiciary established as an administrative pretence has recently begun to hear cases, and in doing so set the administration of justice in conflict with the US military.
Continue reading >>
Downstream Emissions as Climate Impacts
In a 3-2 majority, the UK Supreme Court delivered a landmark ruling today, significantly impacting the consideration of climate impacts in the oil and gas licensing process. While the Government’s approach so far has been to only consider exploration and production emissions, the Court’s decision establishes that emissions resulting from burning the produced oil and gas (regardless of where it occurs) have to also be considered. The ruling is significant as it is the first highest court decision to adopt this interpretation on climate impacts of fossil fuel production. It will no doubt have a knock-on effect on at least three other cases pending before lower courts in the UK, and potentially affect cases both within and outside the European Union.
Continue reading >>
Deepfakes, the Weaponisation of AI Against Women and Possible Solutions
In January 2024, social media platforms were flooded with intimate images of pop icon Taylor Swift, quickly reaching millions of users. However, the abusive content was not real; they were deepfakes – synthetic media generated by artificial intelligence (AI) to depict a person’s likeness. But the threat goes beyond celebrities. Virtually anyone (with women being disproportionately targeted) can be a victim of non-consensual intimate deepfakes (NCID). Albeit most agree that companies must be held accountable for disseminating potentially extremely harmful content like NCIDs, effective legal responsibility mechanisms remain elusive. This article proposes concrete changes to content moderation rules as well as enhanced liability for AI providers that enable such abusive content in the first place.
Continue reading >>
Bend it like Britain?
After months of parliamentary ping-pong, the UK Parliament passed the “Safety of Rwanda (Asylum and Immigration) Act” in late April. Not even two weeks later, 66 persons were detained to be deported to Rwanda, and the FDA launched an unprecedented legal action before the High Court, claiming the Act conflicts with the Civil Service Code obligation to “uphold the rule of law and administration of justice.” By seeking to avoid the prohibition of refoulement, the Act undermines both core principles of the rule of law and disapplies fundamental human rights protections. This blog post discusses key provisions of the new Act, the concerns they raise and some remaining avenues for legal challenges.
Continue reading >>Unconstitutionality à l’Anglaise
After long and tortuous proceedings in Parliament, the Safety of Rwanda (Asylum and Immigration) Act 2024 finally received Royal Assent on Thursday 25 April. There are so many problems with the Act and they are so fundamental that there has been speculation that the courts might refuse to apply some of the Act’s provisions. In this blogpost, I suggest that aside from the ‘hard-line’ approach of striking down or disapplying the statute in whole or in part, the courts also have a ‘soft-line’ option of declaring its unconstitutionality without denying its status as binding law. I explain how such an intervention might fit into the constitutional tradition of the UK and what may make it attractive in the case at hand.
Continue reading >>
The UK Parliament, the UK-Rwanda Agreement and the CPTPP
On April 1, 2024, the Ponsonby Rule, the constitutional convention that set the standard for Parliament’s role in how the UK makes treaties, turned 100. But the procedure for Parliament’s involvement in treaty-making is no longer fit for purpose. As the UK-Rwanda and CPTPPP Agreements show, the UK Parliament’s role in treaty-making must be reformed. In particular, the House of Commons must obtain the power to have a formal vote on international agreements before they can become binding on the UK.
Continue reading >>When Treaties are Forbidden
A few months ago the UK’s Supreme Court held that the Secretary of State’s policy to remove protection seekers to Rwanda to have their claims determined there was unlawful. The British government responded to this decision with a Treaty and Bill that seek to legislate the fiction, or indeed, the falsehood, of Rwanda’s safety. This move demonstrates the fragility of the rule of law, both domestically and internationally. Addressing the latter, this essay shifts focus from domestic challenges to international ones, exploring whether STCs could be contested as ‘forbidden treaties’.
Continue reading >>
Humanitarian Externalisation
Why are the reasons given in support of the declared aim of the current asylum policies in the UK, EU and USA of breaking the business model of smugglers expressed in humanitarian terms? It is, no doubt, tempting to simply dismiss this humanitarian rhetoric as hypocrisy, as the compliment that vice pays to virtue. Yet however justified that dismissal may be in particular cases, to turn away too quickly from this phenomenon would be to miss something of political significance in its form and to fail to register the historical entanglement of humanitarianism and border externalisation.
Continue reading >>
Abschreckung um jeden Preis?
Zurzeit berät das Oberhaus des britischen Parlaments (House of Lords) die sog. Safety of Rwanda Bill. Zusammen mit dem Illegal Immigration Act soll dieses Gesetz die Abschiebung von Flüchtlingen nach Ruanda ermöglichen, um dort deren Asylverfahren durchzuführen. Während entsprechende Pläne auch in Deutschland Anklang finden, zeigt das Gesetzesvorhaben in bedenkenswerter Deutlichkeit, welche rechtsstaatlichen Konsequenzen mit einem solchen Outsourcing von Asylverfahren verbunden sind. Denn um einen möglichst wirksamen Abschreckungseffekt auf andere Flüchtende zu erzielen, haben die britische Regierung und das Unterhaus des Parlaments (House of Commons) bereits dafür gestimmt, Tatsachen zu erfinden, Grundrechte außer Kraft zu setzen und internationales Recht zu brechen.
Continue reading >>
Rethinking the Law and Politics of Migration
2023 was, to put it mildly, a terrible year for (im)migrants and their human rights. With the declared end of the Covid pandemic came an end to the exceptional border policies it had led to which had further restricted already weakened migrants’ rights. Yet governments have largely chosen to replace them with legal frameworks that incorporated many of the same rights negating policies and ideas- except for this time they put them on a permanent legal basis. Liberated from their initial emergency rationales, asylum bans have now joined outsourcing and overpopulated mass detention camps as standard methods of migration governance. What is the role of legal scholarship and discourse at a time where governments seem increasingly comfortable to eschew many long-standing legal rules and norms, often with majority support?
Continue reading >>
Legislating fiction
Members of Parliament in the UK will on 16 and 17 January 2024 debate the Safety of Rwanda (Asylum and Immigration) Bill, which ‘gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country’ for asylum-seekers. The Supreme Court unanimously ruled in November 2023 that Rwanda was manifestly not safe as asylum seekers sent to the country would face a real risk of ill-treatment due to insufficient guarantees against refoulement. The Bill thus aims to use law to determine a factual situation for as long as the law is in force. This blog discusses the risks inherent in creating such a ‘legal fiction’ and how the Bill could be revised to mitigate this risk, before assessing the chances of it becoming law in the currently turbulent political context.
Continue reading >>
Avoiding the Legacy of Impunity
This week for the second time in history the Irish Government has announced its intention to lodge an Inter-State application against the United Kingdom before the European Court of Human Rights in Strasbourg. The Irish government argues that the Northern Ireland Troubles (Reconciliation and Legacy) Act 2023 which was enacted in September 2023 and provides an extensive conditional amnesty is incompatible with the European Convention on Human Rights.
Continue reading >>
Supreme Judgecraft
In R (on the application of AAA (Syria) and others) the UK Supreme Court held that the Secretary of State’s policy to remove protection seekers to Rwanda was unlawful. Rwanda is not, at present, a safe third country. There are, the Supreme Court found, “substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.” Should this occur “refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all.” We argue that the Supreme Court’s legal reasoning and evidential assessment are both impeccable, applying legal principles that are well-embedded in international and domestic law to very clear evidence. However, the UK government’s responses are deeply troubling, from the perspectives of refugee protection, international legality, and the rule of law in the UK.
Continue reading >>
Magical Thinking and Obsessive Desires
Two days before the UK Supreme Court declared the government’s Rwanda policy unlawful, PM Rishi Sunak rid himself of his Home Secretary, Suella Braverman. The sacking, the ruling, and the aftermath demonstrate both a key division in the Conservative Party and illustrate the choice it faces on the kind of politics it will promote after the next election: socially liberal technocratic nationalism (the Sunak option) or illiberal ‘culture war’ nationalism (the Braverman faction). The Supreme Court’s judgment raises the stakes in this conflict because its grounds for ruling the Rwanda Plan unlawful appear to provide ammunition for the radical illiberal wing of the Conservative Party.
Continue reading >>
Defeat in the Supreme Court
On 15 November 2023, the UK Supreme Court (UKSC) unanimously declared the government’s policy of removing some asylum seekers to Rwanda to process their claims unlawful. Like the Court of Appeal, it found substantial grounds for believing that asylum seekers would face a real risk of ill-treatment because of insufficient guarantees against refoulement. This post explores the origin and significance of the UKSC judgment and the legal and policy implications of the UK government’s immediate response to it.
Continue reading >>
A Primer on the UK Online Safety Act
The Online Safety Act (OSA) has now become law, marking a significant milestone in platform regulation in the United Kingdom. The OSA introduces fresh obligations for technology firms to address illegal online content and activities, covering child sexual exploitation, fraud, and terrorism, adding the UK to the array of jurisdictions that have recently introduced new online safety and platform accountability regulations. However, the OSA is notably short on specifics. In this post, we dissect key aspects of the OSA structure and draw comparisons with similar legislation, including the EU Digital Services Act (DSA).
Continue reading >>
(In)tolerance to Civil Disobedience in the UK
Disruptive environmental protest has become a hugely controversial issue in the UK, both politically and legally. It is likely to be a wedge issue in the upcoming General Election. Both major political parties are talking tough on the issue, and the government has instituted draconian new laws. The courts, for their part, are permitting ever more 'Mega Persons Unknown injunctions' and imposing increasingly longer prison terms for peaceful – but disruptive – protests. Part of this is an international trend, caused by the indisputable evidence of global warming and the increasingly activist environmental movement. But from a UK practitioner’s perspective, it is deeply worrying that there are now a large number of peaceful protesters in the prison system, or facing huge bills for legal costs, or both.
Continue reading >>Please Be Kind and Polite. Or Else…
Britain loves to project an image of polite calmness; of a stiff upper lip; of tea, crumpets, and lashings of ginger beer. The Paddington the Bear Twitter account epitomised this sentiment on the morning of the Coronation, reminding people to ‘be kind and polite today.’ Yet in England's green and pleasant land, as loyal British subjects scoffed their scones, quaffed their Pimm’s and raised a glass to their new Monarch, it was not soft-power but good ol’ fashioned state violence that ensured the historical Coronation went off without a hitch.
Continue reading >>
The UK vs the ECtHR
In recent months, the UK government has tabled two Bills - the Bill of Rights Bill and the Illegal Migration Bill - before Parliament which would have the consequence - and almost certainly have the intention - of setting the UK on a collision course with the Council of Europe, and especially the European Court of Human Rights (ECtHR). This post details how these Bills serve to undermine the UK’s obligations under the ECHR and explains their significance within the larger debate surrounding the UK’s possible withdrawal from the Convention. It places this debate in the context of the rarely-convened Council of Europe summit of heads of state and government in Reykjavik in May 2023, whose ambitious agenda is to protect the ‘common heritage’ of respect for human rights, democracy and the rule of law in the face of Russia’s aggression in Ukraine and other existential threats.
Continue reading >>
Closure and Continuity
Trade, sovereignty, rights and freedoms, courts, and constitutional change are lenses through which we can examine how two politically, culturally, and linguistically inextricably linked common law countries have defined their diverging relationship with the EU. 50 years on the divergence is complete. The UK is now a third country, charting a future outside the EU, while Ireland remains one of 27 Member States reporting high levels of trust and support for the EU. Hence 50 years on we have both the desire for closure (for the UK) and continuity (for Ireland). In fact, we argue that closure and continuity are necessary for the relations between both states and their relationship with the EU now and in the next half century.
Continue reading >>
Democracy, Sovereignty and Europe
Fifty years after Ireland and UK joined the EEC together in January 1973, the two states find themselves on radically different European trajectories. Both are common law countries with shared traditions of parliamentary governance and strong cultural links to the wider Anglosphere. However, in Ireland there is broad elite and popular support for maintaining alignment with the requirements of EU and ECHR law – while, in the UK, such European influences trigger a sharp allergic reaction. What explains this dramatic divergence? The answer perhaps lies partially in the differing ‘constitutional imaginaries’ of Ireland and the UK, and how EU and ECHR alignment is understood to impact on the exercise of popular sovereignty in both states.
Continue reading >>
Integration as Disintegration
50 years after accession of Ireland and the UK to the EEC and seven years after the disastrous Brexit referendum, Ireland still sits pretty in the EU, but the UK and its Constitution have been called into possibly fatal doubt, especially as regards their integrative capacity, or continuing ability to bind distinct political classes and the nations of the Union to one another. Writing in early 2023, amidst the ruins of a Brexit reality, if not the end of the Brexit delusion, this short commentary foresees – possibly foolishly – a radical future of independent nations within a loose ‘Confederation of the Isles’, wherein Ireland might share some (symbolic) competences with Scotland, England and Wales, enabling a peaceful a prosperous coexistence within the North-western European archipelago.
Continue reading >>
Constitutional Change in the UK – People or Party?
The UK’s membership of, and later exit from, the EU has had a dramatic effect on the UK constitution. It also provided a catalyst for further change. These demonstrate the relative ease with which the UK constitution can be modified, reinforcing the UK’s characterisation as a predominantly political, flexible constitution. This post will argue that these transformations illustrate something more fundamental that applies to all constitutions – be they predominantly codified or uncodified, with or without the ability of the courts to strike down unconstitutional legislation.
Continue reading >>
Imposing Brexit onto Northern Ireland’s Post-Conflict Governance Order
The Westphalian state provides for an all-but ubiquitous building block of governance. It stacks neatly into dominant accounts of multi-level governance, with all states being presented as nominal equals on the plain of international law. Where reasons of scale or the needs of diverse societies require, sub-state levels of governance can be introduced into the equation. Multiple states, moreover, can pool aspects of their law and decision making where they see the advantages of so doing, resulting in regional supra-national bodies such as the EU.
Continue reading >>
In Law as in Life?
On New Year’s Day in 2002, my late uncle, visiting us in Kerry at the time, walked to the local shop and came back with a pristine €5 note for everyone in the house. Spend it, keep it, do whatever you like with it; but this, he said, is history. Ireland adopting the euro as its currency marked one of the most significant divergent choices in the history of British and Irish membership of the European Union. The dense and complicated ties between the two states were otherwise reflected in so many ways across their EU membership profiles, from their coterminous application paths to shared exemptions from certain legal obligations.
Continue reading >>
Navigating Uncharted Waters?
This contribution will briefly assess Ireland’s participation in the Common European Asylum System (CEAS) after ‘Brexit’. It will first review the way in which the ‘opt-in/opt-out’ arrangements still apply to Ireland, before considering how Ireland’s position might have evolved after Brexit. In this respect, it will feature some recent cases of the CJEU. Although Ireland considers the UK to be a safe third country for refugees, it is likely that their respective asylum policies will diverge even further, owing to their now very different positions with respect to EU law and especially the CEAS.
Continue reading >>
The Quality of Sovereignty
It can generally be agreed that the purpose of sovereignty is to enable a government to protect the best interests of its citizens. To what extent did UK membership of the EU preclude this? In the context of the EU, the discussion on sovereignty tends to focus on quantity – the greater the scope of action of the EU and its institutions, the lower the sovereignty of the member states. From this perspective, sovereignty is a zero-sum affair – less means less. However, sovereignty can also be assessed from a qualitative perspective, with a focus on its quality, or character, rather than its scope.
Continue reading >>
Post-Brexit Sovereignty
In thinking about sovereignty within the United Kingdom, it is helpful to separate out two ways in which sovereignty has historically been identified in both the United Kingdom and elsewhere. Sovereignty is, first, a power over others, most notably absolute and final authority over a territory. If this allows those holding it to achieve considerable things, it also generates apprehension as it allows them to do many things to others. Sovereignty is, secondly, a constitutive power.
Continue reading >>
Integration and Disintegration
In our analysis below, we examine the convergent and divergent paths of Ireland and the UK on the theme of integration and disintegration in three stages. The first considers the constitutional context and framework within which each of the two countries chose to embark on the path of European integration by acceding to the EEC in the early 1970s. The second examines several key policy choices made by the two states along a continuum between integration and disintegration, as part of a more differentiated, post-Maastricht EU. The final stage examines the implications of Brexit for the UK and Ireland following Britain’s departure from the EU.
Continue reading >>
50 Years On
In 1973 and on the third attempt, Ireland and the United Kingdom (UK) with Denmark acceded to the European Communities, while Norway opted not to join following a referendum. For Ireland and the UK, the half-century since has brought about remarkable social, economic, demographic, political, and legal changes in both states leading to the UK leaving the EU in 2020 and Ireland remaining a Member State. Given the shared anniversary and divergent responses to EU membership in the context of strong (if complex) ties between the two states and a shared common law tradition, a reflection on the 50th anniversary of their accession to what is now the European Union (EU) is timely.
Continue reading >>
The Begum Case: Why Ministerial Discretion Precludes Human Rights Issues
In recent years, cancellation of British citizenship has become a high-profile issue. This is not least because of the case of Shamima Begum, who left the UK as a 15-year-old British schoolgirl for Syria in 2015. Upon being found in a camp in Syria four years ago, the Home Secretary removed her British citizenship soon thereafter, leaving her de facto stateless. After protracted litigation surrounding a number of preliminary issues, three weeks ago, Begum lost her appeal against the decision in front of the Special Immigration Appeals Commission’s (SIAC). The Commission’s refusal to allow her appeal is remarkable for the nearly unlimited degree of discretion it appears to grant the Home Secretary in cancellation cases, even where human rights are at stake.
Continue reading >>Shamima Begum’s Banishment is a Threat to Us All
Two weeks ago, the British Special Immigration Appeals Commission (SIAC) rejected Shamima Begum’s appeal against the Home Secretary’s decision to deprive her of citizenship, dealing the latest blow in her on-going battle to regain her status. SIAC’s choice to uphold the Home Secretary’s deprivation decision is not just blatantly unjust, unfairly punishing a victim of child trafficking, but also indicates a dangerous decline in the UK’s commitment to the rule of law.
Continue reading >>Allister and Peeples
The ruling in Allister and Peeples of 8 February 2023 serves as a potent reminder that the UK has yet to fully say goodbye to Brexit. The matter being scrutinised was the Northern Ireland Protocol and questions surrounding its constitutionality within the famously uncodified UK constitution. Critically, the UK Supreme Court appears to have poured cold water on the idea that certain Acts of the UK Parliament have a constitutional character (the constitutional statutes doctrine). It is my suggestion, however, that the doctrine has not entirely been consigned to history.
Continue reading >>A New Battlefront for Scottish Nationalists in the United Kingdom
By blocking the Gender Recognition Reform (Scotland) Bill, the UK Government is showing that it is now ready to police the boundaries of devolved competence more robustly, especially when it believes legislation is being used deliberately to veer into reserved matters. It is perhaps also now asserting a more homogeneous approach to fundamental human rights values, an assertion which is the hallmark of other federal systems. The current debate also exposes that the radical devolution of so many powers to sub-state institutions over the past two decades without serious thought being given for the potential impact of this process upon the maintenance of coherent state policy was perhaps ill-advised and requires correction.
Continue reading >>Opfer der Diplomatie
Man stelle sich vor, irgendwo in England sperrt ein Beamter seine Haushälterin zwei Jahre lang ein, isoliert sie von der Außenwelt, beutet sie unter unwürdigen Bedingungen aus und zahlt ihr nur ein mickriges Gehalt. Die juristische Aufarbeitung dieser menschlichen Abgründe sollte einigermaßen banal sein – nicht aber, wenn der Täter diplomatische Immunität genießt. Der UK Supreme Court entschied sich jüngst in einem spektakulären Urteil gegen den diplomatischen Schutz – und für Menschenrechte. Einen Ausweg aus dem diplomatischen Dilemma könnten aus deutscher Sicht etwa staatshaftungsrechtliche Aufopferungsansprüche bieten.
Continue reading >>Scottish Independence on Hold
The UK Supreme Court has ruled that the Scottish Government does not have the power to call a new referendum on independence, blocking the SNP administration's apparent plans for a non-binding referendum in October next year. The ruling confirms the inability of Scotland's politics to resolve constitutional issues as it currently established. Politics will follow, but there is no clearer route to resolving the constitutional issues at play now than before the ruling.
Continue reading >>
Not Just an Enhanced Opinion Poll
The UK Supreme Court judgment provides a robust protection of reserved matters under the Scotland Act, despite its shortcomings. This will likely end the legal manoeuvring of the Scottish government towards a second referendum. Instead, the political process is back in the driving seat (as it needs to be) and it now appears more likely than ever that the SNP will contest the next general election on an entirely Scottish independence-based platform. The future of the Union and the UK Parliament remains legally and politically precarious.
Continue reading >>
Extradition and the Regrettable Influence of Politics upon Law
Amongst the ECtHR jurisprudence giving rise to political disgruntlement in the United Kingdom have been judgments on extradition and deportation. Attempts to remove individuals from the UK through one of these avenues have occasionally been frustrated on human rights grounds. In the context of the UK government’s ill-disguised hostility to human rights the Grand Chamber on 3 November issued Sanchez-Sanchez v. UK (App.no. 22854/20). The case considered the application of article 3 of the ECHR prohibiting torture and inhuman and degrading treatment and punishment where an accused drug trafficker was sought by way of extradition by the United States where he faced the possibility of an irreducible life sentence of imprisonment.
Continue reading >>
The post-Brexit Breakdown of the Rule of Law in the UK
The sad reality is that Brexit has contributed to an emerging breakdown of the Rule of Law in the United Kingdom. The famous slogan: ‘Take Back Control’ left open what a post-Brexit society should become. As a result, of course, what Brexit meant had to be worked out after the referendum, and here is where the tensions with the Rule of Law began in earnest, because ‘taking back control’ became, in effect, the only principle and anything that stood in the way of achieving that result was to be sacrificed, including the Rule of Law.
Continue reading >>
The Penultimate Chapter in the Case of Julian Assange
After almost four years under unchanged detention conditions in the high-security prison Belmarsh, Julian Assange is facing yet another challenge. The upcoming decision of the High Court of England and Wales might ultimately determine whether Julian Assange can be extradited to the United States where he would face up to 175 years in prison if convicted on all 18 charges. If the High Court concludes that the first-instance proceedings should not be reopened, legal recourse in the United Kingdom would be exhausted. Many voices are therefore pinning their hopes on the European Court of Human Rights (ECtHR).
Continue reading >>
Mut zur Selbstkorrektur in Straßburg
Die Aussicht, in den USA zu lebenslanger Haft ohne Aussicht auf eine spätere Überprüfung verurteilt zu werden, ist nicht unbedingt ein Auslieferungshindernis. Das hatte der EGMR bisher noch anders gesehen – jetzt hat er seine Linie ausdrücklich korrigiert. Der Gerichtshof zeigt sich damit offen für einen Dialog mit den Gerichten der Konventionsstaaten, der auch für Deutschland im Streit um das Beamtenstreikverbot schon bald relevant werden könnte.
Continue reading >>
Das vorletzte Kapitel im Fall Assange
Nach bald vier Jahren unter unveränderten Haftbedingungen im Hochsicherheitsgefängnis Belmarsh sieht sich Julian Assange einer weiteren Herausforderung gegenüber. Mit der anstehenden Entscheidung des High Court of England and Wales wird von Seiten der britischen Justiz möglicherweise abschließend darüber entschieden, ob Julian Assange an die USA ausgeliefert werden kann. Viele Stimmen setzen daher ihre Hoffnungen in den Europäischen Gerichtshof für Menschenrechte (EGMR).
Continue reading >>Britain’s Political Meltdown and its Constitutional Dimension
Britain’s political meltdown is also a constitutional meltdown – a sign of the increasing redundancy of a remarkably resilient and successful constitutional model that has seen the UK avoid the constant process of revolution and renewal that plagued other European states, at least in the 20th century. The current state of the UK’s constitutional system is unsustainable and increasingly unable to support the primary purpose of government – to actually deliver policy.
Continue reading >>Die Konservative Partei
Liz, Boris und eine Schildkröte namens Archie
Continue reading >>Playing Hide-and-seek with UK’s Parliamentary Supremacy
The ambiguous status of ‘retained EU law’ – this new category of domestic law consisting of the EU law applicable in the United Kingdom until 31 December 2020 – led the UK government to draft the Retained EU Law (Revocation and Reform) Bill, known also as the Brexit Freedoms Bill (‘the Bill’), with the promise to align retained EU law with ‘the UK’s priorities for unlocking growth’. It is the most recent effort of the government to achieve what it has not achieved so far: to scrap the supremacy of EU law once and for all or, to put it differently, to restore the supremacy of the UK Parliament. However, rather than restoring, the government’s legislative proposal threatens the fundamental principle of the UK’s constitution.
Continue reading >>
A Second Scottish Independence Referendum in the UK Supreme Court
On October 11 and 12 an important case was argued in the UK Supreme Court over whether the Scottish Parliament has the competence to enact an independence referendum Bill. The Lord Advocate, Dorothy Bain KC, the principle Law Officer for the Scottish Government, brought a reference to the Supreme Court under the Scotland Act 1998 Schedule 6 paragraph 34. Even though the prospects for the case are unencouraging, an independence referendum is only one limb of the Scottish Government’s planned strategy for independence.
Continue reading >>The Visa Ban, Nikolai and his Russian Sister
The absence of an EU-level decision to bar perceived Russians ‘tourists’ from visiting the EU, however, did not prevent several Member States from adopting such measures at the national level, departing from EU law provisions currently in force. Contrary to the ‘tourist -only’ narrative, however, the new rules severely affect Russian family members of EU citizens and residents – an issue that, so far, has escaped public attention.
Continue reading >>Lessons from the United Kingdom’s “Enemies of the People” case
It is difficult to deny evidence of a potential backlash against the judiciary in the UK. Both Miller decisions sent shockwaves through the United Kingdom. This is despite both decisions having the effect of protecting the powers of Parliament rather than the courts, and both having a marginal, if any, impact on the ability of the UK government to achieve its desired Brexit outcome. It is hard to forget the ‘Enemies of the People’ headline following the first Miller decision.
Continue reading >>
Giving Offence is no Offence
The death of Queen Elizabeth II last week, and thus the accession to the throne of King Charles III is an opportunity for reflection. However, what some have found here in the UK is that expressing republican sentiment in public has been met with a policing intervention – arrest or warning. This post considers the legality of expressing such views, and thus of the police response too, as well as some wider issues about the policing of protest, dissent and free speech.
Continue reading >>
A New European Political Community: The British Perspective
The upcoming State of the Union address scheduled for 14 September and the succession of Liz Truss as UK Prime Minister looks set to be a potential turning point in EU relations. But will the EU grasp it? Could a new intergovernmental political forum – acting alongside EU enlargement – ease the tension of EU treaty change? Such a forum might bridge the potential role prospective EU member states in Eastern Europe could play before formally joining and the necessity of forging a constructive post-Brexit relationship with the UK. It could resolve political and constitutional concerns.
Continue reading >>Net Zero, Full Transparency
Earlier this month, during a record-breaking heatwave and a Conservative party leadership contest that will determine the next UK Prime Minister, the High Court quietly issued a judgment that may have nearly as much impact on the course of UK climate policy over the coming decades than either of the other events. The High Court judgement in the Net Zero Strategy legal challenge can be considered a landmark victory. On the one hand, the case can be understood as a narrow administrative law challenge to the process by which a government decision was made. On the other hand, however, the judgment can be understood in the context of a growing number of cases around the world which demonstrate the critical role of the law and the courts in creating accountability for climate action – something that is increasingly vital in the face of a warming world and a lack of public trust in key institutions.
Continue reading >>
When National Laws and Human Rights Standards Are at Odds
The UK Government’s agenda to erode human rights and to disentangle the UK from its European partners has now been fully materialised. Soon after Brexit, the UK Government announced its intention to replace the Human Rights Act, which incorporates the rights set out in the ECHR into domestic law, with a British Bill of Rights. The replacement draft Bill of Rights is now being considered by Parliament. Although the draft Bill confirms that the catalogue of rights remains the same, it introduces many significant changes. The draft Bill will water down, not strengthen, human rights protection in the UK.
Continue reading >>
For Whom The Bell Tolls
Less than three years ago, Boris Johnson led his party to their largest election victory since 1987. Today, his premiership is in ruins, his party has abandoned him, and he has resigned in disgrace. The political aspects of the United Kingdom’s constitution are often said to be founded on the belief that politicians are good chaps. In reality, this constitution, at least when it comes to issues of survival, is based on the maintenance of confidence. Once that is gone, so are you.
Continue reading >>Scottish Indyref 2
On Tuesday 28 June, First Minister Nicola Sturgeon addressed the Scottish Parliament about her plans for a second independence referendum. According to the proposed Bill, the referendum will take place on 19 October 2023. The announcement reopened the age-old debate about the ‘festering issue’ whether Holyrood does possess the power to organise such referendum without the explicit consent of Westminster.
Continue reading >>The UK’s anti-legal populism
Calls for UK withdrawal from the ECHR are raised at fairly regular intervals in certain quarters of the Conservative party, but this week various members of the Government, including the Prime Minister. Reason for this was an interim measure by the European Court of Human Rights that stopped a deportation flight to Rwanda. It was entirely predictable that calls for UK withdrawal from the ECHR would resurface. Less predictable for many, are the implications this would hold for the EU-UK Trade and Cooperation Agreement.
Continue reading >>British Bare Necessities
In the latest episode of the Brexit saga, the United Kingdom government has published the Northern Ireland Protocol ('NIP') Bill, by which it seeks to unilaterally disapply large parts of the Protocol on Ireland/Northern Ireland to the 2019 Withdrawal Agreement (‘WA’) concluded between the UK and the European Union. The British government has shared a summary of its legal position, seeking to justify the NIP Bill on the basis of the doctrine of necessity. However, this justification seems to be a literal, if unconvincing, attempt to make a virtue of necessity.
Continue reading >>British Cavalier Attitude
On 17 May, the UK’s Foreign Secretary, Liz Truss, announced to the House of Commons that the Government would be introducing legislative proposals to supersede the Northern Ireland Protocol (NIP). This drastic measure is the culmination of strained negotiations between the UK and the EU to modify the NIP since summer 2021. Stepping outside of the framework of the Withdrawal Agreement to address the claimed problems, the UK challenges the Rule of Law in international relations.
Continue reading >>
The Never-Ending Struggle Over (Northern) Ireland
Claiming the need to “protect the Belfast/Good Friday Agreement in all its dimensions”, the UK government threatens once again to adopt legislation unilaterally changing the Protocol Ireland/Northern Ireland. In legal terms, this would constitute a breach of the Withdrawal Agreement between the EU and the UK. But does the Good Friday Agreement indeed exclude divergence between Northern Ireland and Great Britain or even demand protecting trade from GB to Northern Ireland?
Continue reading >>
Partygate, Inquiries, and how not to Learn Lessons in the UK
Responding to public pressure and the criticisms of bereaved families, many states have begun to examine the actions and decisions taken during the COVID-19 pandemic. Public inquiries or parliamentary investigations are an essential step in this examination and can provide lessons to support an effective future response to crisis. In any such investigation, the question of who investigates and what is investigated can be as important as the findings themselves. However, a barrier to learning will be the political pressure not to own up to failures or failings, particularly where it concerns a culture of government or a style of governance still practiced. What this can collectively amount to is a failure to learn: a critical failing where it is not question of if a future crisis arises – but when.
Continue reading >>Vom Krieg gegen Terror bis zum Klimawandel
Von Terrorismus und Wirtschaftskrise bis hin zu COVID-19 und Klimawandel: In den ersten Jahrzehnten des 21. Jahrhunderts sind die Demokratien von Krise zu Krise getaumelt und haben rechtliche und politische Maßnahmen ergriffen, um der jeweiligen Bedrohung zu begegnen. Viele dieser vermeintlichen Notfallmaßnahmen sind jedoch zu dauerhaften Maßnahmen geworden, die die Legitimität sowohl der von der Notfallmaßnahme betroffenen Verfassungsnormen als auch der Notfallmaßnahme selbst in Frage stellen. Dieses Plädoyer für den Notstand muss jedoch hinterfragt werden.
Continue reading >>
From the War on Terror to Climate Change
From terrorism and economic crisis, to COVID-19 and climate change; the first decades of the 21st Century have seen democracies lurch from crisis to crisis, implementing legal and political responses to tackle the threat at hand. Many of these ostensibly emergency responses have, however, become permanent, raising profound challenges to the legitimacy of both the constitutional norms impacted by the emergency response, and the emergency response itself. This plea to emergency must, however, be interrogated; Ultimately, what is key to understanding permanent emergencies is not the threat but the decision-maker that claims such an emergency exists.
Continue reading >>
Counter-Terrorism, the Rule of Law and the ‘Counter-Law’ Critique
The Rule of Law requires that the law be a reliable and non-oppressive guide to how citizens should act: as such, the laws governing every citizen must be rationally knowable and voluntarily followable (and, by extension, open to rational challenge and justification). Tendencies in counter-terrorist legislation clearly run counter to the Rule of Law thus understood. Every move away from knowable and followable laws is a move away from it.
Continue reading >>
Next Chapter, in a Larger Story
The Northern Ireland Assembly election is generating much speculation about the wider consequences. Beyond the usual implications of any vote in Northern Ireland, there is heightened interest in what it might mean for the debate on the constitutional future, as well as the ongoing and intense dialogue about the Ireland/Northern Ireland Protocol. There are sound reasons to view this election as historic, but it would be wise to place the projected outcome, if it unfolds, in context.
Continue reading >>Democracy on Thin Ice
The notorious Elections Act 2022 culminated in an appropriately dramatic fashion this past week. Following two successful motions in the House of Lords that sought to tame the most controversial provisions of the Act – the voter ID measure and subjecting the Electoral Commission to greater executive oversight – the House of Commons was forced to directly confront the disputed and unpopular nature of these measures. Despite ongoing concerns and the Lords’ efforts to intervene, the Act will go into effect largely as originally drafted.
Continue reading >>
Why ‘Partygate’ May Be the Beginning of the End
On 12 April, the UK Prime Minister, Boris Johnson, and Chancellor, Rishi Sunak, received fixed-penalty notices for breaching Covid regulations, regarding their attendance at a surprise birthday party for the Prime Minister in the Cabinet Room in 10 Downing Street on 19 June 2020. Both paid the fine. Both apologised. Neither resigned.
Continue reading >>
Claiming “We are out but I am in” post-Brexit
It is not often that the European Court of Justice (ECJ) is presented with a case in which the law is so crystal clear, and so overwhelmingly contrary to the applicant’s claims, as in Préfet du Gers. The central question of the case is weather British nationals retain their EU citizenship and EU citizenship rights after Brexit. Given how straightforward the Treaties and the case-law are on this matter, it is unsurprising that AG Collins answered this question in the negative in a well-argued and straightforward Opinion.
Continue reading >>
Electoral Oversight under Government Control
The Elections Bill 2021 has generated significant controversy among members of parliament, scholars, and observers. The provision that has generated the most alarm has been a voter ID provision, whose effect has been described as prospectively oppressive and whose justification is widely seen as thin, given the low levels of identified voter fraud in the UK. However, another provision of the Bill has also generated alarm: granting the Secretary of State the power to influence the currently independent Electoral Commission.
Continue reading >>
A Profit that Creates Loss
The recent UK Supreme Court judgment of 2 February 2022 continues to exclude children from citizenship rights. The Court's decision is built on the idea that British citizenship is a statutory right rather than being based on common law or human rights law. As a consequence, the court's focus was on statutory interpretation instead of child welfare. The profit made from the children’s registration fees is at the expense of children who remain excluded from citizenship.
Continue reading >>
British citizenship as a non-constitutional status
It would generally seem uncontroversial to suggest that citizenship constitutes a fundamental status in all democratic societies. The UK Supreme Court’s recent decision in PRCBC casts doubt on whether that assertion holds true. The judgment highlights the uneasy relationship between fundamental (or constitutional) rights and citizenship rights, as well as between common law rights and statutory rights, within the UK’s incompletely codified constitutional order.
Continue reading >>
Terrorism law and the erosion of free speech in the UK
The horrifying nature and unpredictability of terrorist attacks in the past two decades meant that in the UK, the extensions of state power had considerable public support in the years following 9/11. While useful to authorities dealing with an unpredictable threat, there are several factors in the laws that provide a potent recipe to erode expression rights.
Continue reading >>
Clause 9 of the Nationality and Borders Bill
In July 2021, the UK government set to work on a new Nationality and Borders Bill. Should this far-reaching amendment acquire statutory force, it will raise important questions about the capacity of the UK constitution to prevent sweeping executive authorisation, even in matters with intense bearing on the most profound human rights and entitlements.
Continue reading >>
Illiberal Britain
The right to peaceful protest in England and Wales is under graver threat than first feared. On 24 November 2021, new amendments were introduced to the already highly controversial Police, Crime, Sentencing and Courts Bill (PCSC) in the House of Lords. These are jaw-dropping measures that will expand police stop and search powers, increase restrictions on peaceful protests, create new criminal offences and banning orders, and expand delegated powers. What follows is a brief attempt to make sense of these illiberal proposals. If enacted, they will have severe implications for how the law strikes the balance between rights of protestors and the wider community. But even if not, their very proposal, and the means of legislating for them, are further evidence of a government with distaste, if not hostility, for constitutional norms of debate, scrutiny, and accountability inside and outside of Parliament.
Continue reading >>
Stateless without Notification
Shocking new legislation currently going through the UK parliament includes controversial powers to strip British citizens of their citizenship without notification, even if they hold no other citizenship and risk being made stateless. Opponents say such powers would be draconian and in violation of international law. The numbers of people potentially affected are huge, at almost 10% of the population. Moreover, there are clear racialised biases, with ethnic minorities and those of migrant heritage predominantly at risk. Citizenship seems no longer to be an inviolable status of rights and protection, but more and more a conditional and insecure privilege.
Continue reading >>
Lloyd v Google: towards a more restrictive approach on privacy protection in the UK?
The UK Supreme Court has delivered its much-awaited judgment in Lloyd v Google - a highly significant case for the development of privacy law in the United Kingdom. The Supreme Court paints an overly thin picture of data privacy and raises important concerns about possible divergence from EU standards in the future.
Continue reading >>
Die Versicherheitlichung und Kriminalisierung von Migration und Asyl in Großbritannien
Die 'Nationality and Borders Bill' stellt den Höhepunkt der zunehmend sicherheitsorientierten, kriminalisierten und feindlichen Haltung der britischen Regierung gegenüber Asyl und Migration dar. Der 11. September verfestigte den höchst zweifelhaften Zusammenhang zwischen Migration und Terrorismus, der noch heute von einigen in der Regierung hergestellt wird. In der Zwischenzeit hatte die britische Regierung jahrzehntelang eine restriktive Migrationspolitik und -praxis betrieben, die jetzt neue Extreme annimmt.
Continue reading >>
The UK’s Securitisation and Criminalisation of Migration and Asylum
The Nationality and Borders Bill is the culmination of the UK government’s increasingly securitised, criminalised and hostile approach to asylum and migration. While 9/11 served to solidify the highly dubious nexus between migration and terrorism, the UK (alongside other destination states) has for decades been implementing restrictive migration policies and practices designed to deter and prevent asylum seekers and other migrants from reaching its territories and accessing safety.
Continue reading >>
Fischen im Trüben
Der Post-Brexit-Fischereistreit zwischen London und Paris will nicht enden: Erst im Mai dieses Jahres standen sich vor der Kanalinsel Jersey französische und britische Kriegsschiffe gegenüber. Nach der Festsetzung eines britischen Fischerbootes in der Hafenstadt Le Havre am vergangenen Donnerstag droht der Konflikt nun abermals zu eskalieren. Kern des Streits sind Unstimmigkeiten über die Ausstellungen von Fischfanglizenzen für britische Gewässer zwischen sechs und zwölf Seemeilen vor der Küste. Das beiderseitige Säbelrasseln über die Zugangslizenzen überdeckt die Tatsache, dass es sich letztlich um eine bürokratische Einzelfrage handelt. Diese gilt es nun zu klären.
Continue reading >>
Brexit, Labour Shortages and Structures of Exploitation
Even though there were warnings that labour shortages would follow Brexit, the UK Government did not put sufficient plans in place between 2016 and 2021, to prevent the current crisis that many predicted. Now, the UK Government is attempting to address the problem in two different ways: first, by introducing temporary visas for migrant workers; second, by employing prisoners and other offenders to cover shortages. However, for migrant workers or prisoners to work in fair conditions, radical change of the legal framework is needed.
Continue reading >>
The Narrowing of Electoral Access
The broad reforms in the UK Elections Bill 2021 present as self-serving entrenchment by Conservatives. Two measures in particular support this assessment. A voter ID requirement would raise hurdles that could reduce turnout among vulnerable or marginalized groups; and the Electoral Commission would be placed under greater oversight of the partisan Speaker’s Committee, hamstringing the Commission as a neutral monitor of elections. Other provisions lack such a clearly oppressive or self-serving character, but could raise similar concerns if abused in implementation.
Continue reading >>
Lean Authoritarianism
On judicial review and constitutional plumbing
Continue reading >>
Lean Authoritarianism
Über justizielle Kontrolle und inkrementelle Verfassungsklempnerei
Continue reading >>
Modernising the United Kingdom’s Official Secrecy Laws
In the United Kingdom, proposals to reform official secrecy laws could have damaging implications for journalistic expression, whistleblowing and government transparency. As is, the Home Office proposals could lead to a situation whereby a law which prohibits whistleblowers from going outside of their organisation, and is thus incompatible with Article10 ECHR, could be replaced with an even worse law, which inhibits expression, and prevents journalists from lawfully reporting on important matters of public interest.
Continue reading >>
Towards a Radical Revision of the Northern Ireland Protocol?
The UK Government’s Command Paper released on 21 July 2021 urges a renegotiation of the Protocol on Ireland/Northern Ireland, which forms part of the EU-UK Withdrawal Agreement. The EU has already indicated that a renegotiation is out of the question. In fact, this blog post argues that it would be constitutionally impossible for the EU to agree to the UK’s proposals without agreeing to a radical revision of the Protocol that would endanger the achievement of its overall aims. In addition, the invocation of Article 16 (the safeguards clause) as discussed in the Command Paper would not resolve the underlying issues either and the UK Government knows this. But that leaves the question: What is the Command Paper really about?
Continue reading >>A New Constitutional Dawn for Unionism?
In the recent High Court decision on the legislation regarding the Northern Ireland Protocol, the court delivers a number of messages which are suitable to deepen divisions in Northern Ireland, and classes international treaties as merely political compromises not suitable for adjudication. If these views were confirmed before the UK Supreme Court, the EU or anyone else would be well advised to be very careful when concluding agreements with the UK, and to pay close attention to effective enforcement mechanisms beyond UK courts.
Continue reading >>Nation of Animal Lovers
On May 12, 2021, the UK government published an Action Plan for Animal Welfare setting out reform plans to protect animals both within its borders and overseas. In this plan, the UK government pledges to further steps in its efforts to promote animal welfare and to recognize animals as sentient beings in law. As the ‘Nation of Animal Lovers’ the UK has a comparatively impressive record of animal welfare legislation. Yet, the tone of government communication is tainted by adversity against the EU in the context of Brexit.
Continue reading >>
A Government (Un)Governed?
On 16 December 2020, despite rising rates of infection and the widely predicted ‘second wave’ already impacting neighbouring European countries, Prime Minister Boris Johnson mocked the opposition for wanting to ‘cancel Christmas’ by reintroducing nationwide lockdown restrictions. Three days later, a nationwide lockdown in England was introduced (inadvertently mimicking the March 2020 commitment that London had ‘zero prospect’ of lockdown, four days before it was enforced). The lockdown – closing schools, universities and a majority of businesses which were deemed non-essential and prohibiting gatherings of more than two people outdoors from separate households – continued until 12 April 2021 when restrictions began to be lessened through a phased ‘roadmap out of lockdown’. Such political hyperbole by the executive and lax response, followed by sudden U-turn policy making (‘essay crisis’ governance) and severely restrictive measures, have characterised much of the response to the pandemic in the UK.
Continue reading >>
The UK’s Post-Brexit ‘Constitutional Unsettlement’
The tortuous process of Brexit is complete. The UK has left the EU, and Boris Johnson and the Conservative party now enjoy a commanding majority in the House of Commons after several years of unstable minority governments. However, Brexit has opened up a number of constitutional fault-lines, which have not closed with UK departure from the EU: indeed, if anything, they have continued to widen. This has accelerated a process that had started even before the ‘Leave’ vote in the June 2016 referendum - namely the ‘unsettling’ of the once famously stable British constitutional order.
Continue reading >>
Zwischen Chefberater und freiem Meinungsmarkt
Es ist offenkundig, dass das zur Pandemiebekämpfung notwendige medizinische und epidemiologische Spezialwissen in Kernexekutiven nicht vorhanden ist und deshalb von außen dem Entscheidungsprozess zugeführt werden muss. Dies passiert in unterschiedlichen politischen Systemen auf sehr verschiedene Weise. Aber wie sehen die Beratungsstrukturen grundsätzlich aus und wie agierten sie in der Pandemiekrise der letzten 12 Monate? Diese Frage soll im folgenden aus vergleichender Perspektive mit einem Blick auf die Bundesrepublik Deutschland, Großbritannien und die Vereinigten Staaten beantwortet werden.
Continue reading >>
Hercules comes to Scotland
In a landmark case, the Outer House of the Court of Session in Scotland on 24 March 2021 declared that the closure of worship places in Scotland was a disproportionate interference with the right to freedom of religion and freedom of assembly under article 9(2) and 11 of the European Convention of Human Rights. The judgment is as an example of anxious scrutiny in judicial review of administrative action in the pandemic context. His consideration of the evidence concerning closure of worship places strikes as well documented and highly demanding assessment. Given the exceptional circumstances in which governments are crafting their emergency responses to the pandemic, pitching proportionality assessments as Lord Braid does is concerning.
Continue reading >>
A Shot in the Arm or a Shot in the Foot?
The European Commission’s proposal to impose what was referred to as an “export ban” on exports of COVID-19 vaccines has generated considerable political and social media comment, particularly from the United Kingdom. The measure is (probably) lawful as a matter of international law and is certainly not a breach of the rule of law. But that does not mean that it is wise. Using the EU’s power in this way is a bit like pulling a brick from the tower in the well-known game of Jenga: the risk is that what is already a somewhat rickety tower (the rules-based trading order) will wobble yet further. More immediately, the risk of vaccine nationalism is that other states will retaliate in a negative-sum game.
Continue reading >>A Tricky Move
The European Commission’s decision to commence legal proceedings against the United Kingdom for unilaterally extending certain grace periods for the movement of goods in contravention to the Northern Ireland Protocol is legally sound, but politically tricky. In legal terms, the decision to launch both infringement proceedings and take first steps towards arbitration is the most promising avenue towards UK compliance with the Protocol. Yet it brings with it a political risk of further escalating the tensions around the Protocol within Northern Ireland and between the EU and the UK.
Continue reading >>
A Paean to Judicial (Self) Restraint
The UK Supreme Court Shamima Begum decision is widely reported to be a win for former home secretary Sajid Javid who had stripped Begum of her citizenship. Yet, is it really a vindication of this action? The decision of the Supreme Court is not based on a factual assessment of Begum’s case but only on whether she has to be given permission to return to the UK to participate in an effective and fair manner in the immigration appeal. A limited decision, and by no means a final adjudication on Begum’s deprivation of citizenship case.
Continue reading >>
The EU’s and UK’s Self-Defeating Vaccine Nationalism
The European Union and the United Kingdom currently risk being victims of their own vaccine nationalism. The time-pressure for securing as many vaccine doses against COVID-19 as possible has led to hiccups and even tensions between both. At the heart of the matter is AstraZeneca’s delay in distributing a given number of doses in the European Union. Meanwhile, it continues to serve the United Kingdom in a timely fashion. The threat of imposing export restrictions is now on the table.
Continue reading >>Striking While the Iron is Hot
Boris Johnson will reportedly head to Scotland this week in order to demonstrate the benefits of the British union. His visit is likely triggered by the 11 point ‘roadmap’ unveiled on Sunday by the Scottish National Party (SNP) to hold another independence referendum. The United Kingdom is at a critical juncture: the country risks becoming a ‘failed state’ unless the Scottish issue can be resolved.
Continue reading >>
English Court Blocks Puberty Blockers in Anti-Trans Craze Judgment
In a far-reaching and immediately impactful judicial review decision, the English High Court conflates puberty blockers and medical transition and decides puberty blockers should not be available to trans youth under the age of 16. The court gives the reason that puberty blockers ‘lead down a pathway to medical transition’ which can have some irreversible effects. According to the court, young persons under the age of 16 cannot appreciate the significance of these potential, and potentially irreversible effects in the areas of sexual functioning and fertility. Better then, is the court’s logic, to let them experience the irreversible effects of puberty. The decision puts trans children’s lives at risk and only makes eventual transition much more invasive.
Continue reading >>Mitigating Brexit through Bilateral Free-Movement of Persons
Rather than bemoaning the Brexit choice the UK made, it is time to start thinking about living with it in a way that would cause as little disruption as possible for all those concerned. How to mitigate, at least to some degree, the sudden, unprecedented loss of rights that Brexit caused? EU citizenship not any more on the table, bilateral freedom of movement of persons agreements with the EU Member States, EEA countries and Switzerland could offer a way forward. This solution is fully in line with EU law and has already been tested.
Continue reading >>Dead Lawyers, Complicit States
The decision by Northern Ireland Secretary Brandon Lewis to refuse an inquiry into the 1989 murder of Belfast solicitor Pat Finucane was just the latest episode in a long and sorry saga. The result is that a 2003 judgment from the European Court of Human Rights (ECtHR) finding that the UK had breached Article 2 ECHR (right to life) by failing to hold an appropriate inquiry into Finucane’s murder has still not been acted upon and any possibility of justice or accountability fades just that little bit more.
Continue reading >>
Zwischen Pausenhof und Verfassungsschutz
Nach der Drohung eines 11-jährigen Schülers seine Grundschullehrerin zu enthaupten, steht das Thema Radikalisierung an Schulen wieder weit oben auf der politischen Agenda. Die Unsicherheit unter Lehrer*innen, wie sie mit solchen Fällen umgehen sollen, ist groß. Nicht nur ist unklar, was unter Radikalisierung zu verstehen ist, sondern es fehlt auch an klaren gesetzlichen Vorgaben, wie die Rechte und Pflichten von Schüler*innen und Lehrer*innen in Einklang zu bringen sind.
Continue reading >>
The BBC and Henry VIII’s Heirs
Once again, the BBC is under pressure. Once again, the British Government is briefing hostile newspapers about how both it, and its sister public service broadcaster, Channel 4, are in the firing line. Once again, dark clouds gather over its future, which has been called into question. The licence fee, the hypothecated tax that provides the corporation with its revenue, has been under threat in the past, but this time, it’s proved the lightning rod for more dissent, with a citizen’s campaign to defund the BBC. How did we get here? Where should we go? Where will we go?
Continue reading >>A Draft is no Infringement
In the last few weeks, little more has been said about the infringement action launched by the Commission against the UK at the beginning of October for failure to fulfil obligations under EU law in relation to the Withdrawal Agreement. However, not only has this not gone away, but the recent ratcheting up of ‘no deal’ tensions means that a claim may soon be made on the so-called insurance policy (the controversial clauses in the UK Internal Market Bill), turning the threatened breach into an actual one. After the Bill becomes law, and assuming that the controversial clauses remain, a minister may use those clauses to pass a statutory instrument, for example, forbidding any checks to be carried out on goods travelling from Great Britain into Northern Ireland. Some would argue that the threat is bad enough and itself justifies an infringement action. That may be so. However, the Commission’s action is still premature.
Continue reading >>
Bad Role Models
Over the past several months, there has been an increase in asylum seekers and refugees crossing the English Channel in small inflatable boats. This prompted the UK government to propose stemming arrivals with an Australian-style approach: ‘pushing back’ boats to France before they can reach British territorial waters. The UK already funds France to prevent asylum seekers leaving French territory through ‘pullback’ measures. Such pushback and pullback practices likely violate several international refugee, human rights and law of the sea obligations.
Continue reading >>Lawful composition – the EFTA Court’s approach
On 10 September 2020, the British Advocate General at the Court of Justice of the European Union, Eleanor Sharpston, was replaced by the Greek lawyer Athanasios Rantos. Most of the commentators of the incident, which stirred up a great deal of dust, focus on the question whether the termination of Ms. Sharpston’s mandate on 10 September 2020 was lawful. The following considerations, on the other hand, examine the legal situation in the event that her expulsion from the ECJ was after Brexit in line with EU law. A precedent of the EFTA Court in 2016 may be relevant in this context.
Continue reading >>A Matter of Faith
The purpose of Brexit, we have been told, is to “take back control”. It should hardly come as a surprise therefore that this involves the reassertion by Parliament of its prerogative to determine the domestic effects (if any) of international agreements within the UK legal system. Wresting this power away from Brussels goes to the very root of Brexit’s raison d’être. Moreover, why have this power if you’re not going to use it? It is in this context that the furore concerning the Internal Market Bill, presented last Wednesday by the Johnson government, should be viewed.
Continue reading >>
In the Name of Peace and Integrity?
Last Tuesday, something rare took place in Westminster. The UK Government officially announced its intention to breach the Withdrawal Agreement that it had signed and ratified a few months ago. Prime Minister Boris Johnson valiantly defended the draft by declaring that such breach is necessary in order ‘to uphold the integrity of the UK, but also to protect the Northern Irish peace process and the Good Friday agreement.’ Is that really so?
Continue reading >>
A Test for Sovereignty after Brexit
Speaking in the House of Commons on the eve of the publication of the Internal Market Bill and in response to an urgent question, the Secretary of State for Northern Ireland Brandon Lewis stated that ‘Yes, this does break international law in a very specific and limited way'. Can the UK, by domestic legislation, limit the direct effect of the Withdrawal Agreement?
Continue reading >>
Contested Justice
As the UK and the EU are entering the final phase in the negotiations over a post-Brexit trade deal, it has become clear that there is a fundamental clash of interests not only about fishing and governance issues but also about human rights. For people outside the UK it has often been difficult to comprehend the persistent contestation of the HRA and the European Convention, as well as their lack of public support. There are three main reasons behind this conundrum.
Continue reading >>
No unity in the United Kingdom
The United Kingdom has not achieved a unified approach towards COVID-19. Rather, the crisis has exposed the transformation of the UK into nations pulling in quite different directions. This post will discuss the disunity in the British response to coronavirus, focusing on the Scottish and British governments. COVID-19 illustrates the political and legal instability of the British constitution as the country exits the European Union.
Continue reading >>
Corona Constitutional #6: Der englische Patient
Boris Johnson liegt mit Corona in der Intensivstation. Was passiert, wenn der Premierminister stirbt oder sein Amt nicht mehr ausüben kann? Wie regelt man das ohne geschriebene Verfassung? GAVIN PHILLIPSON ist einer der besten Kenner des britischen Verfassungsrechts. Im Interview mit Max Steinbeis gibt er Auskunft über die Rechte und Möglichkeiten des Parlaments, über die ungeheure Machtfülle der Regierung und über die Zukunft der Grund- und Menschenrechte im Vereinigten Königreich.
Continue reading >>
A Prime Minister in Hospital: the Constitutional Implications
Following the news that the British Prime Minister, Boris Johnson, has been taken to hospital for treatment for COVID-19, there has been much discussion about what should happen if he should die or become incapacitated. Who would take over and how would such a successor be chosen? What is the role of Dominic Raab, the Foreign Secretary, who has been designated to deputise for him in his absence? And how do we find the answers to the above questions, given the UK has no codified Constitution to consult?
Continue reading >>
More than just ,Protecting Veterans’
On 18 March the UK Minister for Defence Ben Wallace introduced into the UK Parliament its promised package of new legislation designed to ‘protect veterans’. the proposed laws would amend the UK’s Human Rights Act 1998 (HRA) in a number of ways that impact on its human rights obligations under international law, particularly treaty commitments under the ECHR.
Continue reading >>
Is the UK Government Undermining the BBC?
The independent viability of the BBC from the government of the day has always been significantly a matter of convention. Any Government that took on the BBC was likely to suffer, politically, as a result. But since the last election, the political calculus has changed.
Continue reading >>
Es geht nicht um den Platz am Tisch.
Es geht um den Tisch.
Über Deutschland, UK, Irland, Flüchtlingsschutz und meine ganz persönliche Bitte an Friedrich Merz.
Continue reading >>It’s not about a seat at the table.
It’s about the table.
On Germany, UK, Ireland, refugee protection and a respectful request to Friedrich Merz.
Continue reading >>
Paving the Way for Undermining the Independence of UK’s Media
Two stories made the headlines in the United Kingdom last week. One concerns the exclusion of reporters from a briefing at Downing Street, the other a potential review of the BBC's funding model. Both raise concerns over a declining culture of respect of media independence in the United Kingdom.
Continue reading >>
Die vollendete Trennung
Gestern haben die Brexiteers endlich bekommen, was sie wollten: Seit Mitternacht mitteleuropäischer Zeit ist Großbritannien nicht mehr Mitglied der EU. Ich war in London an diesem Tag, den hier tausende EU-Gegner*innen gefeiert haben. Und ehrlich gesagt, es war weniger spektakulär als all die Bilder es nahelegen. Was bleibt, ist ein Gefühl des Unwirklichen.
Continue reading >>Was qualmt denn da so komisch?
Über Polen, Russland und andere "gelenkte Demokratien", UK und andere (noch) nicht gelenkte Demokratien. Und Deutschland. Und Europa. Und, erwähnte ich das schon? natürlich Polen.
Continue reading >>
Have you noticed that burnt smell?
On Poland, Russia and other "guided democracies", the UK and other not (yet) guided democracies. And on Germany. Oh, and have I mentioned Poland? And on Poland.
Continue reading >>The Return of Power-Sharing in Northern Ireland
After three years power-sharing government has returned to Northern Ireland following extensive discussions and the recent publication of a document by the British and Irish governments. It is a lengthy text containing many proposals, plans and initiatives; the relative incoherence is evidence of the conflicting challenges faced. At the core of the dilemma is how to encourage the representatives of the two main communities in Northern Ireland (nationalist-unionist) to share power once again.
Continue reading >>Why Scotland’s Journey to Independence Needs to Include another Stop in Westminster
Much as some of its members might wish it otherwise, the Scottish Parliament is a parliament of limited legislative competence, and it is not unlikely that not having the power to legislate for an independence referendum is among those limits.
Continue reading >>Avoiding the next Brexit Cliff-Edge
Boris Johnson wants to legally exclude the prolongation of the extension period of the Withdrawal Agreement. The way to prolong it nevertheless would be an amendment of the Withdrawal Agreement itself. Some argue now that any other way to change the transition period than its prolongation by the JC is legally impossible. Another reading of the legal situation is, however, supportable.
Continue reading >>Back to the Future?
Although the UK has appeared to move from one constitutional crisis to the next during this year, there has been a clear direction of travel: 2019 saw both the legislature and the courts strengthening their checks over the executive. The Conservative Party Manifesto may be interpreted as an attempt to reverse this direction of travel and reinstate the executive at the centre of the Constitution.
Continue reading >>
Brexit and the CJEU: why the Opinion of the Court Should be Sought as a Matter of Emergency
With the comfortable majority he managed to secure in the Commons, Boris Johnson is now very likely to be able to push through the British Parliament the withdrawal agreement he negotiated with the European Union back in October. Provided that the European Parliament greenlights it quickly enough, it may well come into force by 31 January 2020, deadline of the last extension decision agreed between the EU-27 and the UK. However, one actor of the process seems to have been forgotten: the Court of Justice of the European Union. This could end up being a huge mistake.
Continue reading >>The Failure of the Left to Grasp Brexit
Thursday’s General Election was a bad day for the Labour Party, it spelled the end of Remainism and signalled a historic defeat for the Left. There needs to be serious reflection on all of this because the repercussions are severe and wide-ranging, and broader lessons must be learned, not just for the UK but elsewhere. It turned out, contrary to much expert assessment, that the 2016 referendum was, in fact, binding. The Left failed to grasp this and the underlying disconnect it signified.
Continue reading >>The Choice of Our Time
In which I worry an awful lot about the United Kingdom of Great Britain and Northern Ireland.
Continue reading >>Johnson’s Withdrawal Agreement Fails Romanian and Bulgarian Migrant Workers
Romanian and Bulgarian nationals might not be British workers, but they are nevertheless workers. And both the EU and the UK have an ethical responsibility to outline provisions so that Brexit does not further marginalize the very same group of workers who already face discrimination in the British labour market.
Continue reading >>
Scotland, Brexit and Independence
The past month has been important for Brexit developments, with UK Prime Minister Johnson attempting a ‘last minute’ Brexit deal with the EU. In particular, arrangements concerning Northern Ireland have featured prominently. But now, all appears to have been set aside for a December UK general election. However, the UK is composed of four nations, and Scotland’s position in the UK union, often ignored in the Brexit context, now appears near to ‘tipping point’, especially after First Minister Sturgeon’s recent confirmation that Scotland would hold an independence referendum in 2020.
Continue reading >>Fools Rush Out
Few actions when done quickly are done well – and law-making has certainly never been one of them. Late in the evening of 22 October, the House of Commons was asked to approve of a legislative programme which would only have allowed it three days to consider, debate and amend a law which is bound to radically alter the constitutional, political, and economic foundations of the UK. This programme was rightly rejected.
Continue reading >>
Brexit, Democracy and Peace in Northern Ireland
How to give the people of Northern Ireland a democratic say over the new legal arrangements that will apply to them under the Withdrawal Agreement? Given the deeply divided nature of Northern Irish society, this is a legal, political and constitutional conundrum. The WA, exceptionally for an EU/international treaty, sets out a complex mechanism regulating how the Northern Ireland Assembly may vote in the future to grant or withhold democratic consent to the terms of the WA as it applies to Northern Ireland. However, this mechanism may yet prove to be a recipe for future political conflict.
Continue reading >>
The People Have Voted, Now Let the People Speak
The Brexit stalemate is unlikely to wither. In a smart spin, distracting from the unlawfulness of the Parliament shutdown, the blame for not delivering Brexit is now put on the Parliament. The Parliament and “the establishment” are pitted against the will of the people. Since the 2016 referendum, however, provided for no clear procedural or substantive mandate, no form of Brexit, including remain, can claim its legitimacy based on the “will of the people” unless there is a second referendum.
Continue reading >>Dealing with a Rogue UK Prime Minister
In the current “Brexit” crisis, the EU should strive to achieve a smooth agreement-based process. This is the only way to ensure that the intricate web binding the UK to the EU is not ripped up without a reliable substitute. Boris Johnson’s priority to withdraw the UK on 31 October "do or die“ is next to impossible to reconcile with that aim. Domestically, it will be difficult to halt Johnson’s no-deal plan. But what about the EU? Indeed, there are several measures the EU could take to deal with a rogue UK Prime Minister and to make a smooth withdrawal more likely.
Continue reading >>The Rule of Law, not the Rule of Politics
On 24 September 2019, just two weeks after Parliament had been controversially prorogued by Prime Minister, Boris Johnson, the UK Supreme Court handed down a unanimous judgment holding that such prorogation was ‘unlawful, null, and of no effect’. Parliament was not and had never been prorogued. But this is not likely to be the end of such questioning of the fundamentals of the constitution and – in particular – the limits of executive power.
Continue reading >>
An Alternative to the Brexit Backstop: An All-Ireland “Common No-Custom Area” under Art. 24 GATT
In order to resolve the current stalemate in the brexit negotiations, we propose to establish a “Common No-Custom Area” in Ireland applicable only to products originating in either part of the island. This special regime conforms to the Frontier Traffic exception of Art. 24 of the General Agreement on Tariffs and Trade (GATT/WTO) and builds on the “precedent” of Cyprus where a similar regime has been in place since 2004. This practical solution takes into account that a major part of intra-Ireland trade is made up of products originating in either part of the island.
Continue reading >>Is Brexit a Game?
Can Boris Johnson's and Dominic Cumming's Brexit strategy be made plausible by means of game theory? I think not. It seems too simple to present the current situation as a two-party game, with the UK (or Boris Johnson) on one side and the EU on the other. In reality, Johnson faces two opposite players—one being the EU, the other the hard Brexit opponents and the Supreme Court at home.
Continue reading >>A Constitutionally Momentous Judgment That Changes Practically Nothing?
The Supreme Court’s judgment in Cherry/Miller (No 2) that the prorogation of Parliament was unlawful, null and of no effect was a bold move as a matter of public law. It represents a constitutional court willing to assert its authority as guardian of the constitution. But although potentially of long-term constitutional moment, it changes very little with regard to the fundamental constitutional and political issue of Britain’s membership of the European Union.
Continue reading >>
Boris Johnson’s Strategy of Assured Mutual Destruction: Crazy but not Irrational
One of the frequent equivocal “courtesy” titles that has been awarded to Boris Johnson these days is that of plunger or reckless gambler. Boris Johnson may be many things — his language coarse, his behavior ruthless — but if you analyze his behavior in the current Brexit affair from a decision theoretic angle there is a rational interpretation for his seemingly irrational approach.
Continue reading >>Why the UK’s Government’s Demands on the Irish Backstop Would Violate the Sovereignty of the EU-27
Prime Minister Boris Johnson has asked the European Council President in a letter for reciprocal ‘binding legal guarantees’ not to put in place infrastructure, checks, or controls at the border between Northern Ireland and Ireland. The significance of this has been amplified by the European Parliament’s resolution that it will not consent to any Withdrawal Agreement without an Irish Backstop, in direct contravention to the UK’s position. This post will argue that the EU legal order places constraints on this option. Ireland would be in breach of EU law if it followed this course, and the EU institutions have no discretion to suspend these legal obligations.
Continue reading >>
Justiciable but not Necessarily Illegal
The UK Supreme Court is about to decide the fate of the UK Government’s decision to prorogue Parliament. Two are the main issues: First, justiciability – whether the Government’s decision can be subject to judicial scrutiny or whether it lies beyond the Judiciary’s remit. Second, if judicial review is available, whether the Government’s decision is lawful. Although the two issues prima facie appear to be distinct, in this case they are intertwined. I believe that the issue of prorogation in this case is justiciable and that the Government’s decision to prorogue falls within the legal boundaries of the Constitution.
Continue reading >>Where Power Lies or Where Power Lied?
Tomorrow, on Tuesday 17 September, the UK Supreme Court will be asked to consider appeals from the Court of Session in Scotland, and the High Court in England on the question of whether prime minister Boris Johnson’s advice to the Queen to prorogue parliament was lawful. Such a question will oblige the court to consider foundational questions of the separation of powers and the division between law and politics. It will also have to decide whether the motives of executive decision-making can be judged against principles of parliamentary sovereignty, democracy and the rule of law. If the Supreme Court finds the advice was unlawful, an even more difficult question arises in what sort of order may be given to remedy such a legal wrong: can the court order Parliament to return to a session which has ended, or the Queen to ‘un-prorogue’?
Continue reading >>
The UK Constitution and Brexit – Five Brief External Observations
As a constitutional lawyer one therefore cannot help but ask: What is happening to the British Constitution? What is going on with the political and parliamentary culture of a nation so proud of its parliamentary history? And what about the Queen? In the following, I would therefore like to share five very brief and somewhat unsystematic observations of these recent developments from a German perspective.
Continue reading >>A Matter of Confidence
On lying without expecting belief and other harbingers of constitutional doom.
Continue reading >>
Schroedinger’s Backstop
Weiler, Sarmiento and Faull suggest that the best way to avoid a no-deal Brexit, even at the 11th hour, would be to adopt “a regime of dual autonomy”. EU officials said that this proposal was "inadequate and nowhere near the landing zone". But we can also entertain the thought that reciprocity or symmetry is indeed a necessary if not a sufficient condition for the backstop compass to lead us to a landing zone. Six ingredients need to be added to the mix, however.
Continue reading >>Nostalgische Justizstaatsskepsis
Jonathan Sumption ist einer der schillerndsten Intellektuellen des Vereinigten Königreichs. In seinem neuen Buch kritisiert er, wie das „Imperium des Rechts“ immer größere Landgewinne verzeichnet und in immer mehr Bereiche des täglichen Lebens vordringt. „Trials of the State“ ist wie ein Volkshochschulkurs im Granteln über den Traditionsverfall im Recht einer modernen Gesellschaft mit ihrem inhärenten Drang zur Verrechtlichung.
Continue reading >>The Next Few Days Will Reveal where the Heart of Power Lies in the British Constitution
Were the UK government to ignore a Supreme Court judgment finding the advice to prorogue illegal, or even refuse to recognise an Act of Parliament directing action to prevent a no-deal Brexit, this would be a constitutional crisis. This will bring all institutions into conflict – most immediately the crown, which may be obligated (one way or another) to make an extremely polarising political choice.
Continue reading >>
Boris and the Queen: Lessons from Canada
UK Prime Minister Boris Johnson’s advice to the Queen that she prorogue Parliament for several weeks has sparked vociferous controversy. The unfortunate situation, which threatens to do real damage to constitutional, political and social relationships, has some analogues in former British dominions such as Canada.
Continue reading >>
Backstop Alternatives: Examining the “We Cannot Trust the Brits” Excuse
Last week, together with two colleagues, Daniel Sarmiento and Sir Jonathan Faull, we published a plan which could avoid a no-deal Brexit. It is to one reaction, attributed in the Press to anonymous Commission sources that I wish to react. And I do not do this solely or even mainly in order to defend the viability of our particular Proposal. I do so because I fear that this same reaction of these anonymous EU officials will meet any proposal for "alternative arrangements" to be put on the table by the UK government.
Continue reading >>Prorogued until October?
The British government yesterday secured a prorogation of Parliament from the Queen. Parliament will stand prorogued no earlier than Monday 9th September and no later than Thursday 12th September 2019 to Monday 14th October 2019. For many commentators the weeks from now until 12 September and from 14 October to 31 October (the day the United Kingdom exits the European Union) were crucial. It tipped the balance of the prorogation from blindingly unconstitutional to constitutionally dubious, but permissible. Regardless of whether one finds this line of reasoning convincing, there is a threat that this prorogation can be extended indefinitely that has been largely overlooked: the Prorogation Act 1867.
Continue reading >>An Offer the EU and UK Cannot Refuse II: FAQ
We have received many comments and questions to our Proposal on avoiding a No-Deal Brexit. The following are the most frequently asked questions with our replies.
Continue reading >>An Offer the EU and UK Cannot Refuse
The EU reasonably expects a guarantee that Brexit will not compromise the integrity of its customs and regulatory territory. Hence its insistence on the Backstop. The UK reasonably expects a guarantee that it will not be locked into a permanent Customs (and regulatory) Union with the EU. Hence its rejection of the Backstop. The resulting deadlock is hurling both parties into a No-Deal Brexit. This proposal, which includes features which have never been discussed, will guarantee the integrity and autonomy of the EU’s and UK’s respective customs and regulatory territories, and will require neither a Customs Union between the two nor a hard border between Northern Ireland and the Republic.
Continue reading >>Prorogation is a Paper Tiger, but Time is the Elephant
There are 15 weeks left until the UK’s scheduled departure from the EU. A new leader of the Conservative party, and so de facto Prime Minister, will be chosen by party members and presented to Parliament just before it plans to rise for summer recess on 25 July. A point of distinction between the two candidates for Conservative leadership is on the exercise of a power to prorogue Parliament in order to ensure the UK’s withdrawal on 31 October 2019: Jeremy Hunt will not use the power, Boris Johnson will not rule it out. The threat of prorogation, if serious, could prove a catalyst for constitutional crisis.
Continue reading >>Lies in Politics
On Boris Johnson, Annegret Kramp-Karrenbauer and other active or passive issues of constitutional truthfulness.
Continue reading >>#DeniedMyVote too: Brits in France, the European Elections and the Council of State
European Elections Day in the United Kingdom has been stained by revelations that many EU citizens were unable to vote due to various clerical errors, widely reported on Twitter with the hashtag #DeniedMyVote. It seems that something along the same lines, though on a smaller scale, happened to UK citizens residing in other Member States of the European Union, for example in France.
Continue reading >>
Brexit and the Politics of Law-Making
Should MPs be able to legislate contrary to the wishes of the government of the day? The Cooper Bill has raised fundamental questions over the relationship between law and politics in the United Kingdom.
Continue reading >>
After the Second Brexit Extension: What Now?
Unless the Withdrawal Act is adopted after all, the UK will need to elect MEPs in May. It is unlikely, however, that European Parliament elections will help to resolve the political impasse in Westminster. Hence, something else will have to move.
Continue reading >>Unconstitutional Prorogation
On 1 April, the British Parliament again failed to agree on a plan for withdrawal from the European Union. It has now been suggested that the government should prorogue Parliament until after 12 April in order to terminate the current parliamentary debate. This would effectively silence Parliament to achieve its preferred version of Brexit without regard to principles of democracy and representative and responsible government.
Continue reading >>
‘Our Precious Union’: The Backstop and the Constitutional Integrity of the UK
The decision of the Prime Minister Theresa May to stand down if the Parliament approves the Withdrawal Agreement has led a number of passionate proponents of Brexit including Boris Johnson to change their view of the deal. Still, the Democratic Unionist Party said on Wednesday that the Brexit deal and in particular the backstop posed ‘an unacceptable threat to the integrity of the United Kingdom.’ This is significant not only because the DUP is in a confidence-and-supply arrangement with the Government but also because a number of ardent Brexiteers such as Jacob Rees-Mogg have said that their stance towards the deal depends on DUP’s position. In light of another meaningful vote, one has to wonder whether the DUP’s fears concerning the threat of the backstop to the constitutional integrity of the UK are justified.
Continue reading >>
Protecting the EU from a Kill Switch: Why EU Law Does Not Require EP Elections in the UK
According to the EU, postponing Brexit beyond May 23 legally requires UK elections for the European Parliament. If no elections are held, the argument goes, the new European Parliament would not be legally constituted. Yet, on closer inspection, this conclusion is not as legally convincing as it appears.
Continue reading >>Brexit ohne Bundestag?
Aus dem Brexit ergeben sich fundamentale Änderungen an der Architektur der Europäischen Union. Hätte der Bundestag am Austrittabkommen und an der anvisierten Verlängerung der britischen EU-Mitgliedschaft beteiligt werden müssen?
Continue reading >>The Bercow Bombshell: Political Constitutionalism in Action
In this post, I defend the constitutional logic of Speaker's intervention. In a constitutional system such as the UK, which largely depends on political institutions and norms to check the executive, it is entirely appropriate – indeed, desirable – that the Speaker identify, interpret and enforce such norms to defend the institutional interests of the House of Commons and basic values of parliamentary democracy.
Continue reading >>Wege aus dem Brexit-Chaos: Weshalb die EU die Initiative ergreifen sollte
Das Vereinigte Königreich hat sich seit der Entscheidung für den Brexit im Juni 2016 nicht gerade als Musterbeispiel für gutes Regieren präsentiert. Dennoch: Die EU sollte dem Vereinigten Königreich noch einmal entgegenkommen und ein Angebot machen, das eine Mehrheit für den Ausstiegsvertrag im britischen Unterhaus doch noch ermöglicht. Jetzt ist politische Führung gefragt.
Continue reading >>The House of Commons’ Last Chance at Taking Back Control?
On Wednesday 27 February, MPs will have another opportunity to debate an amendable motion on the Government’s approach to Brexit. The debate on Wednesday is likely to focus on the plan put forward by Yvette Cooper MP (Labour) and Oliver Letwin MP (Conservative). They want MPs to have a legally binding say on whether the Prime Minister seeks an extension to Article 50’s two-year negotiating period. The opportunity to approve or reject the Cooper-Letwin on Wednesday represents the most important Brexit decision that the Commons has taken since the deal was rejected on 15 January.
Continue reading >>
National Security and Investment Screening: the UK proposal and its problems
In its white paper published in July 2018, the government has acknowledged the key role of foreign investment for the UK’s growth and development, whilst also noting that ‘a small number of investment activities, mergers and transactions in the UK economy pose a risk to our national security.’ The aim of the proposed reforms is to ensure that in these cases the UK government is able to intervene in order to prevent or mitigate such risks.
Continue reading >>
Why Referendums in Ireland Work Better than in the UK
Former UK prime minister Gordon Brown has recommended the Irish innovation of the citizens’ assembly to inform and guide public opinion. Theresa May, too, included a glancing reference to the notion in her recent House of Commons speech. They are mistaken, though, if they believe that this formula has much to offer in the UK.
Continue reading >>
Disastrous Stability: Brexit as a Constitutional Crisis
The reason Continental Europe so often misunderstands what is happening in the UK is that it views events there either as developments in an international negotiation or as a crisis of the Tory party. The reality is that we are witnessing a constitutional system in crisis. One of the oldest constitutional systems in the world is trying to digest three paradigm shifts – and it is trying to do so in one gulp.
Continue reading >>Collateral Damage? Der Brexit und das Europaparlament
Sollen die EU 27 dem Vereinigten Königreich eine Fristverlängerung für den Brexit zugestehen? Das würde die Europawahlen im Mai gefährden, und damit die Verfassung der EU. Der Austritt des Vereinigten Königreichs am 29. März 2019, mit oder ohne Austrittsabkommen, ist als Ende mit Schrecken einem Schrecken ohne klares Ende vorzuziehen. Damit die EU nicht auch noch Schaden nimmt.
Continue reading >>Not the Meaningful Vote: a Guide to the Role of the Commons on Tuesday
On 15 January, the Commons rejected the Government’s Brexit deal. On Tuesday 29 January, the Commons will consider the Government’s response to this rejection. This will be in many respects an unusual constitutional event.
Continue reading >>Brexit and the Speaker of the House of the Commons: Do the Ends Justify the Means?
Yesterday, the Speaker of the UK House of Commons decided to allow an amendment to the Brexit timetable to be selected and voted upon by the Commons, in flat contradiction of the Commons’ rules and against the advice of his senior clerks. In this post, I outline the constitutional context which helps to explain why the Speaker took his decision, even if it does not justify the way in which the decision was taken.
Continue reading >>The Strange Case of the Publicity of the Brexit Legal Advice
One of the most remarkable episodes of the most remarkable Brexit saga is the strange case of the publicity of the Brexit legal advice. The actions of Theresa May’s government seem to aim at reducing both popular and democratic sovereignty to an empty shell before the incumbent Prime Minister and her cabinet are kicked out of power. However, the case of the publicity of legal advice is indeed strange not only on account of what has transpired on the British isles, but also of what has not happened on the continent.
Continue reading >>
Sovereign Choices: The CJEU’s Ruling on Exit from Brexit
In today’s Wightman judgment, the CJEU has ruled that a Member State may unilaterally revoke its notified intention to withdraw from the EU prior to that withdrawal taking effect. The Court is clearly signalling that membership of the European Union, and the rights and responsibilities which come with it, is voluntary. As political messages go, that is a pretty big message.
Continue reading >>The Meaningful Vote on Brexit: the End of the Beginning or the Beginning of the End?
Tomorrow, the House of Commons will, barring a last minute delay, be the stage for the conclusion of the most dramatic parliamentary debate of the Brexit process so far: the meaningful vote on the Brexit deal. In strict constitutional terms the question is simple: will MPs decide to approve the motion that is legally required (by the EU (Withdrawal) Act 2018) to enable the Withdrawal Agreement to be ratified before exit day? However, the political and procedural reality is, as one would expect, less simple.
Continue reading >>
Can an Art. 50 TEU withdrawal notice be revoked? How Advocate General Bordona offered a legal Trojan horse to Union law
In his opinion given in the Case Wightman et. al., Advocate General Bordona pleads for the possibility to revoke the notification of withdrawal. Although it may be politically and economically desirable to keep the UK in the Union, this does not justify the introduction of a “legal Trojan horse” into the European law order by interpreting the European treaties in a one-sided manner.
Continue reading >>Exit vom Brexit?
Das EuGH-Verfahren Wightman hat heute seinen vorläufigen Höhepunkt erreicht: Zum ersten Mal äußerte sich mit Generalanwalt Manuel Campos Sánchez-Bordona ein Vertreter des Gerichtshofs zu der Frage, ob das Vereinigte Königreich den Austrittsprozess einseitig beenden könne („Exit vom Brexit“). Die Antwort des Generalanwalts ist grundsätzlich zu begrüßen, weitere Klarstellungen werden aber nötig sein.
Continue reading >>On Thin Ice: the Role of the Court of Justice under the Withdrawal Agreement
Her alleged red line of bringing “an end to the jurisdiction of the Court of Justice in Britain” was always going to be a problem for Theresa May: After all, the UK’s commitment to comply with certain EU rules would inevitably mean that the ECJ’s interpretations of these rules would have to be binding on the UK. It is thus no surprise that the Withdrawal Agreement provides for the jurisdiction of the ECJ in various places. What is perhaps more of a surprise – and surely a negotiation win for the UK – is the EU’s legally problematic concession of an arbitration mechanism to resolve inter-party disputes over the interpretation of the Withdrawal Agreement.
Continue reading >>Safety Net, Trap or Trampoline – Will the Backstop Lead to a No Deal Brexit?
Following yesterday’s announcement that the UK and the EU have agreed a revised text of the draft Withdrawal Agreement, the political fallout in the UK has begun with the UK Brexit Secretary Dominic Raab’s resignation from the Government. In his resignation letter, it is the so-called ‘backstop’ arrangements to avoid a hard border on the island of Ireland that appears to be the primary cause of discontent.
Continue reading >>The Bakery as battleground
How should the modern liberal state reconcile the demands of equality and religious belief? It appears that the new battleground is not at the pulpit or the ballot, but at the … bakery. In Lee v Ashers Baking Company Ltd the UK Supreme Court has delivered an artificial reasoning riddled with conceptual confusion.
Continue reading >>
Can An Article 50 Withdrawal Notice be Revoked? The CJEU is Asked to Decide
The legal issue of whether the United Kingdom can change its mind and revoke – unilaterally – its notified intention to withdraw from the European Union has been a matter of academic and professional conjecture since the 2016 referendum. An authoritative interpretation of the issue may be delivered by Christmas following the lodging on 3 October 2018 of a request by the Scottish Court of Session for a preliminary ruling in Case C-621/18 Wightman and Others.
Continue reading >>Big Brother Watch and others v. the United Kingdom: A Victory of Human Rights over Modern Digital Surveillance?
The European Court of Human Rights delivered its long-awaited judgment in Big Brother Watch and others v. the United Kingdom. While this landmark decision marks a victory for the fundamental rights to privacy and freedom of expression over surveillance, it is also a missed opportunity for the Strasbourg Court.
Continue reading >>WTO Option in Practice: How a No-Deal Brexit Would Seriously Damage Key UK Industries
Whilst a no-deal Brexit seemed unrealistic in the immediate aftermath of the UK’s referendum, it seems that now the UK is bracing itself for a Brexit without a withdrawal or transition agreement. What would that mean for the UK's trade relations with the EU and other countries and how would it affect some of the UK's key industries?
Continue reading >>
Disenfranchised by Accident: the Brexit Initiative and Brits abroad
On the 23rd of July 2018, the European Commission registered a European Citizens’ Initiative called “Permanent European Union Citizenship”, with the objective, in the context of Brexit, to ask the Commission to “propose means to avoid risk of collective loss of EU citizenship and rights, and assure all EU citizens that, once attained, such status is permanent and their rights acquired”. The aim of this initiative is, for British citizens, to retain European Union citizenship post Brexit. However, paradoxically enough, a considerable number of British expats, who are the main concerned, are legally unable to support this initiative (or any other as it turns out) because of a legal conundrum.
Continue reading >>Suffering from Withdrawal – Controversy in the UK EU (Withdrawal) Bill
Beginning today, the EU (Withdrawal) Bill (EUWB) will return to the UK House of Commons, where all 15 amendments made to the EUWB by the House of Lords will be debated over only two days. The EUWB is arguably one of the most contentious and complex pieces of legislation to be presented to the British Parliament in this century. The amendments are a response to the concerns regarding the broad discretion across an unknown expanse of law with an almost-unfettered use of legislative power by the executive.
Continue reading >>
If ‘Vote Leave’ Broke the Law, Could Brexit be Void?
Could Brexit be declared void by a court, and article 50 revoked, if there were major irregularities in the vote? Evidence is emerging of possible fraud, and criminal acts by Vote Leave, Cambridge Analytica, and Aggregate IQ: illegal overspending, psychologically profiling and targeting people with online ads, based on stolen data. Now, the legal opinion of three barristers has become public on how Vote Leave, and its organiser Dominic Cummings, committed criminal offences.
Continue reading >>The Right to Fair Trial and the Rise of Sensitive Intelligence Evidence: Responses from the Dutch and UK Courts
Writing extra-judicially, Lord Justice Brown once described the typical court […]
Continue reading >>
Has Parliament Taken Charge of Brexit?
The UK House of Lords has adopted amendments to the European Union (Withdrawal) Bill that would make the conclusion of a withdrawal agreement contingent on parliamentary approval. It is not at all clear which, if any, of the Lords amendments will survive in the House of Commons, and we may not find out for a while. It may be premature to conclude that Parliament is now fully in charge of the Brexit process. What the amendments show, however, is that Parliament can assert control if it chooses to do so.
Continue reading >>
Das Wissensproblem im Asylprozess und wie es behoben werden kann
Im Asylrecht stehen die Gerichte regelmäßig vor einem Wissensproblem: Um über den Schutzanspruch von Asylbewerbern urteilen zu können, müssen sie wissen, wie es generell um die Verfolgungssituation in den Herkunftsländern bestellt ist. Das ist nicht ihr Metier, denn ihre Hauptaufgabe ist die Streitentscheidung im Einzelfall. Wie kann das am Einzelfall orientierte Gericht der Aufgabe, generelles Wissen über die Herkunftsländer zu generieren, gerecht werden? Wie kann es insbesondere vermeiden, dass von Fall zu Fall inkonsistent entschieden wird, die Rechtssicherheit auf der Strecke bleibt und es zu einer „Asyl-Lotterie“ kommt?
Continue reading >>With a little help from Henry VIII
There are few legislative assemblies in Europe which can call themselves with proud sovereign. The Principle of Parliamentary Sovereignty is the most important part of UK constitutional law. It implies that all legislation derives from the superior legal authority of Parliament and hence it is the job of the Members of Parliament to create, abolish and change the law. Well, since Henry VIII this principle is no longer entirely true, and it is currently challenged again by the future “Great Repeal Bill”.
Continue reading >>What’s in a name? A Brexit we can all enjoy
Northern Ireland will have a ,hard Brexit' as any other part of the UK and, at the same time, be subject to a ,regulatory alignment' with the Republic of Ireland and, hence, the EU. Such is the elegance of this solution, that one might be tempted to mistake it for a genuine policy innovation. In fact, using a made up name for something that you are already doing and calling it ‘new’ has a long pedigree and has been used aplenty.
Continue reading >>Prisoner Voting and Power Struggle: a Never-Ending Story?
On 29 October 2017, it was announced that the UK authorities are planning to revoke the blanket ban on prisoner voting and allow those who are sentenced to under a year in prison to go home for a day and vote. This was done to ensure the compliance with the judgment of the European Court of Human Rights in the case of Hirst No 2 which was delivered in 2005. It took the UK government twelve years to come up with a proposal that would put English law in line with the case law of the European Court of Human Rights.
Continue reading >>The Irony of Brexit for Immigration Control
Immigration was a hot topic throughout the Brexit debate. ‘To take back control’ was a prominent slogan. While Brexit can facilitate legal control over the entry and stay of EU citizens, it need not necessarily make it easier for the UK to control the immigration of third-country nationals, including asylum seekers. It might even, paradoxically, render control of immigration by non-Europeans more difficult to some extent.
Continue reading >>
Can Brexit be stopped under EU Law?
Ominous clouds are gathering and the terrain underfoot increasingly resembles a quagmire on the Brexiteers ‘sunlit uplands’. It is therefore unsurprising that the chatter about revoking the Art. 50 notification to withdraw from the EU – itself waxing and waning since the referendum vote – has become louder in recent days; spurred on by a freedom of information request seeking the government’s legal advice on the question.
Continue reading >>Dispute Resolution after Brexit
When setting out her priorities for the Brexit negotiations in a speech at Lancaster House in January, Theresa May promised to ‘bring an end to the jurisdiction of the European Court of Justice in Britain.’ This forcefully formulated ‘red line’ turned into a headache for the British negotiators as it was both somewhat misconceived – the ECJ’s preliminary reference procedure hardly results in jurisdiction ‘in Britain’ – and overly categorical ignoring both the likely content of the UK-EU withdrawal agreement and the shape of the future UK-EU relationship envisaged by her own government as a ‘new, deep and special partnership.’ Today’s paper on ‘enforcement and dispute resolution’ should therefore be welcomed as injecting a portion of realism and pragmatism in the debate over the ECJ.
Continue reading >>One year after the Brexit Referendum: More, Fewer or No Referendums in Europe?
One year after Brexit, the issue of referendums seems to be everywhere: Their desirability cannot be described with a clear ‘yes’ or ‘no’. There is simply more than one valid constitutional perspective in evaluating the case for or against referendums.
Continue reading >>
An Early Deal-Breaker? EU Citizens’ Rights in the UK after Brexit, and the Future Role of the European Court of Justice
The UK has finally made an offer to allow some EU citizens to retain some rights in the UK after Brexit. There are two sets of issues that arise: the substantive rights that will need to be agreed to, and the enforcement of these rights. The UK government confirmed that the arrangements on offer will be enshrined and enforceable in UK law, that commitments in the Withdrawal Agreement will have the status of international law, but that the CJEU will have no jurisdiction in the United Kingdom. Despite this, there remains much uncertainty.
Continue reading >>The Brexit Divorce Bill – Großbritanniens Welt der alternativen Fakten
Der Brexit könnte für das Vereinigte Königreich teuer werden. Schätzungen gehen von bis zu 100 Mrd. Euro aus. Darüber wird in den seit dem 19. Juni 2017 offiziell laufenden Austrittsverhandlungen zu sprechen sein. Bisher wollten die Britten allerdings von alledem nichts wissen. Sie glauben gar, demnächst einen Scheck aus Brüssel zu erhalten. Der nachfolgende Beitrag möchte der rechtlichen Fundierung der britischen Gedankenwelt nachgehen. Schließlich macht es verhandlungstaktisch keinen kleinen Unterschied, ob Großbritannien lediglich moralisch oder auch rechtlich zur Zahlung einer Brexit divorce bill verpflichtet ist.
Continue reading >>First Thoughts on the UK General Election Result 2017
The Faustian pact by the UK Tory Party with the Northern Irish DUP will bring all the messy and ugly history of Northern Irish sectarianism back into mainstream of our politics. My recipe for the Tory party to save itself from the damnation of Faust is for it to remove Theresa May "with all deliberate speed" and replace her as leader with Ruth Davidson, the leader of the Scottish Conservative and Unionist Party.
Continue reading >>
The Singapore Silver Bullet
Is the CJEU's Opinion on the Singapore free trade agreement a boost for Brexit? After reading the Opinion my feeling is exactly the opposite. The Court has made a clever juggling exercise with Christmas presents for everybody. But in fact, the Court has saved the best Christmas present for itself. And there are hardly any gifts for Britain. In fact, the Opinion contains a paragraph that could blow up the entire Brexit process.
Continue reading >>Brexit Lawsuits, But Not As You Know Them
Calling in the lawyers is becoming a frequent response to the challenges of Brexit. While court actions on matters of constitutional law are well known, there is another, less publicised, avenue of legal resistance. The consequence: the Brexit bill is about to become a lot bigger.
Continue reading >>Of course you can still turn back! On the revocability of the Article 50 notification and post-truth politics
The British Prime Minister Theresa May has announced yesterday the intention to call a ‘snap’ general election to be held on the 8th of June 2017. This announcement, which has caught literally everyone off-guard, makes some strategic sense if read together with another contention stressed by Prime Minister May: that there is no turning back from Brexit. Which is untrue, both from the legal and political point of view. To put it shortly, the PM is lying.
Continue reading >>The Great Repeal Bill and the Charter of Fundamental Rights – not a promising start
On the day Brexit happens EU Law will be incorporated into the UK legal system, including the entirety of the Court of Justice’s case-law. This is a huge digestion of rules and judicial rulings, unprecedented in the way and speed in which it will take place. However, there is a piece of EU Law that will not be incorporated into UK Law. This is no ordinary or irrelevant piece. It is the Charter of Fundamental Rights of the European Union. It is another revealing sign of the impact that Brexit will have in the UK and, above all, for UK citizens and their rights.
Continue reading >>
The Taming of Control – the Great Repeal Bill
Brexit is underway. For voters who wanted the UK to remain in the EU, the risk was how much would change after the UK leaves. For those who wanted the UK to leave the EU, the hope was that, indeed, much would change. Both sets of voters may be surprised at the efforts being placed on seeking continuity in governance. For Remain voters, while this may afford some comfort, it will simply reinforce the view that the better way of keeping things the same was for the UK to remain a Member State of the EU. For Leave voters, the outcome may be more ambiguous.
Continue reading >>
After Article 50 and Before Withdrawal: Does Constitutional Theory Require a General Election in the United Kingdom Before Brexit?
On March 29th, Theresa May will notify the EU Council of the withdrawal of the United Kingdom from the EU. This is the result of the Brexit referendum which, for the first time in the United Kingdom’s constitutional history, has opened up a powerful new source of popular sovereignty as a social fact. It is necessary for the constitutional integrity of the United Kingdom that this new stream of popular social legitimacy is realigned with the existing stream of Parliamentary Sovereignty. The most effective and desirable way in which to achieve this would be for a General Election to take place.
Continue reading >>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.
Continue reading >>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.
Continue reading >>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.
Continue reading >>
The ‘Elegant Way’ of the Constitution
The Miller judgment will be famous for its affirmation of the rule of law as against an unaccountable and overreaching executive. But it should also be remembered for marking the recognition by the UK courts of the systematic nature of the British constitution.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>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.
Continue reading >>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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>From Greenland to Svalbard: Scotland’s quest for a differentiated Brexit
On 20 December 2016, the Scottish Government released its blueprint on how Scotland can remain in the European Single Market post-Brexit. From the governing SNP’s point of view, the paper can be seen as a compromise given that it does not advocate Scottish independence. Instead, it proposes that the best outcome for the UK as a whole is to remain in the European Economic Agreement following the ‘Norway model’. It recognises, however, that in the current political constellation this seems unlikely. So, it argues for the continued membership of Scotland in the European Single Market.
Continue reading >>
Brexit and the Single Market: You say Article 50, we say Article 127?
Hard on the heels of the Article 50 case heard last week by the UK Supreme Court, comes the announcement of another challenge to the UK Government’s Brexit plans, this time based on Article 127 of the EEA agreement. Much like Article 50 TEU, that provision allows contracting parties to the EEA agreement to withdraw from it. The claimants in the Article 127 challenge contend that withdrawal from the EU under Article 50 will not lead to withdrawal from the EEA, given that with Article 127 the EEA agreement contains its own termination clause. Hence their argument goes that unless the Government also triggers Article 127, the UK will stay in the EEA even after Brexit; and that would mean that the UK would remain in the single market. Much like the Article 50 case, the impending court case therefore seeks a declaration by the High Court that the Government cannot trigger Article 127 without prior approval of Parliament. The claimants’ hope is that while Parliament may feel politically bound by the EU referendum result to allow the Government to leave the EU, it may not vote in favour of leaving the EEA, viz. the single market, as this was not a question on the ballot paper. It is the aim of this blogpost to identify the three main hurdles the claimants are likely to be facing and discuss whether these can be overcome.
Continue reading >>How the UK passed the most invasive surveillance law in democratic history
You might not have noticed thanks to world events, but the UK parliament recently approved the government’s so-called Snooper’s Charter and it will soon become law. This nickname for the Investigatory Powers Bill is well earned. It represents a new level and nature of surveillance that goes beyond anything previously set out in law in a democratic society. It is not a modernisation of existing law, but something qualitatively different, something that intrudes upon every UK citizen’s life in a way that would even a decade ago have been inconceivable.
Continue reading >>Scotland, Catalonia and the Constitutional Taboo of Secession
The UK constitution does not allow Scotland to unilaterally secede in the case of Brexit - in that respect its situation is not unlike Catalonia's. Given the political nature of the UK uncodified constitution, it is almost unthinkable that a similar judicialisation of politics will occur in the UK as it did in Spain. However, unless Westminster takes seriously into account the demands of the devolved administrations in the Brexit negotiations, there is a real danger that a serious constitutional stalemate will occur.
Continue reading >>Wahlkreisreform in UK: die Neuvermessung des Mehrheitswahlrechts
Wahlkreisreformen sind oft eine anrüchige Sache. Die Regierungsmehrheit gerät leicht in den Verdacht, sich die Wahlkreise zu ihrem eigenen Vorteil zurechtzuschneiden. Auch in Großbritannien gibt es laute Proteste der Opposition gegen die aktuellen Reformpläne der Tories. Doch wenn man genauer hinsieht, zeigt sich: die Demokratie im Vereinigten Königreich wird eher profitieren.
Continue reading >>The Big Picture
In Europe, UK, and USA constitutional structures are proving unfit to respond to the challenges of the XXI century. Now is the time to ride on the constitutional moment for the all three of them.
Continue reading >>On the Slippery Slope to a ,People’s Court’
Writes Matej Avbelj in High time for popular constitutionalism!, ‘The majority in our societies seems to be increasingly disconnected with the liberal values that especially the legal academia, but also the ruling political class – at least on a declaratory level – have taken for granted…’ Living as I do in the country in which one sees an increasing distaste for the European Convention of Human Rights and regular media criticism of the ‘unelected judges’ in Strasbourg – and that despite the fact that the judges of the Court are, in fact, elected from a slate of three by the Parliamentary Assembly of the Council of Europe – I cannot help wondering whether the disconnect is anything very new.
Continue reading >>
Miller, Brexit and the (maybe not to so evil) Court of Justice
As strange as this might sound, hardcore Brexiteers have now their closest and most reliable ally not at home. But in what they have considered to be, all these years, the evil, monstrous, devilish, undemocratic, unelected, corrupt and dictatorial Court of Justice of the European Union.
Continue reading >>The Article 50 Litigation and the Court of Justice: Why the Supreme Court must NOT refer
Is the UK Supreme Court in the current Brexit case obliged to refer to the Luxembourg Court? If that were the case, the conformity of any Member State’s EU exit with its own constitutional requirements would be open to review by the CJEU – and hence could no longer be qualified as an act of self-determination since a EU institution would have the final say on it.
Continue reading >>The Article 50 Litigation and the Court of Justice: Why the Supreme Court must refer
Article 50 TEU says that member states decide to withdraw from the Union "according to their own constitutional requirements". It is for the Luxembourg Court to clarify what this means. Thus, in the current case on Brexit the UK Supreme Court is obliged to refer to the European Court of Justice. One could argue that this should never have been made a Union problem. But it was, and, like it or not, that makes it the Court of Justice’s problem too.
Continue reading >>Who Speaks in the Name of the People?
The practice of using a referendum to justify the power of the executive has been used and abused throughout history. Napoleon who ruled like a plebiscitarian monarch can serve as the best counter example for contemporary liberal democratic regimes. All the institutions of the government, the executive, the parliament and the judiciary speak in the name of the people in our conception of the western democratic constitutionalism. It is only thanks to the checks and balances that the separation of powers provides in a conception of collaborative constitutionalism that we can avoid practices of misusing references to a supposed democratic legitimacy in view of derailing the operations of the government in a direction that is entirely out of control of democracy itself.
Continue reading >>
Brexit, Democracy and the Rule of Law
The decision of the High Court in London this week was a ruling not on whether Brexit should happen, but on how it can happen lawfully. There is nothing at all in the court’s judgment to block the will of the people, to reverse the result of the referendum, or to get in the way of Brexit. Nor is there anything inappropriate in turning to the courts to determine how Brexit can proceed in accordance with the rule of law. That said, as a lawyer I think the court’s ruling is wrong.
Continue reading >>Enemies of the People?
"Enemies of the People": that is, according to the Daily Mail, what the High Court judges are. Joseph Stalin would have been wildly amused by this way of putting things… Leaving aside such 30s reminiscences, it seems to me too simple to reduce this phenomenon solely to the disgracefulness of the British boulevard press and Tory backbenchers. There is something more fundamental going on. Not only in the United Kingdom. But in the entire Western democratic constitutional space.
Continue reading >>Feinde des Volkes?
"Enemies of the People": So titelt die Daily Mail als Reaktion auf das gestrige Brexit-Urteil des High Court. An dieser Diktion hätte Josef Stalin seine helle Freude gehabt. Aber jenseits solcher 30er-Jahre-Reminiszenzen scheint es mir zu kurz gesprungen, dieses Phänomen allein auf die Verkommenheit der britischen Boulevardpresse und der snotty Tory-Elite zu reduzieren. Da geht etwas Grundlegenderes vor. Und zwar nicht allein im Vereinigten Königreich. Sondern im gesamten westlichen demokratisch-rechtsstaatlichen Verfassungsraum.
Continue reading >>The High Court’s Judgment in Miller and Others – four brief remarks
Today’s decision by the High Court of England and Wales that the UK Government did not have the power under the Royal Prerogative to initiate the process of withdrawing from the EU laid down in Article 50 TEU came as a surprise to many. Four brief remarks on what the decision might entail politically.
Continue reading >>
Sovereignty means Sovereignty: Über den Verlust von Rechten entscheidet das Parlament
Großbritannien darf erst nach einem Parlamentsbeschluss aus der EU austreten. Das hat der englische High Court auf eine Klage von Bürgern hin entschieden. Bleibt die Entscheidung bestehen, könnte sie den Zeitplan für den EU-Austritt durcheinander bringen, noch bevor dieser eigentlich begonnen hat. Verhindert wird der Brexit aber höchstwahrscheinlich nicht mehr.
Continue reading >>
The High Court’s Brexit Decision: A Lesson in Constitutional Law for the UK Government
In today's Brexit decision, the High Court has delivered a tutorial on the UK constitution, exemplary in its clarity and reasoning. Its key finding: the government cannot take away rights that citizens enjoy in the EU and would be lost on withdrawal without involving Parliament. In failing to understand the constitution of its own country, the government was taught an embarrassing lesson today.
Continue reading >>Why all Member States should clarify their Constitutional Requirements for Withdrawing from the EU
The UK’s ‘chaotic Brexit’ may perhaps be the inevitable result of being the first state to even contemplate withdrawal from the European Union. Regardless, the other Member States can now look to this uncertainty as something to avoid. By contrast to the United Kingdom’s current situation, they should look to the clarity of procedure for legitimate secession in Canada and seek to provide a similarly exhaustive statement of how the ‘constitutional requirements’ of Article 50 would be fulfilled in their own constitutional orders.
Continue reading >>
Why the Brexit debate might mark the end of Britain’s unwritten constitution
The current debate in the UK about Parliament's right to vote on the Art. 50 decision suggests that not only the Brexit decision may become subject to revision, but the uncodified constitution may become subject to scrutiny as well. So far, the absence of a written constitution was generally viewed as a sign of “stability of the British polity.” However, the Brexit contestations may change that, and, on the long run, the status of an ‘unwritten’ or ‘uncodified constitution’ may well come to an end. The present constitutional turn in British politics suggests that the long period of stability of the British polity is challenged, just as the Brexit campaign promised the contrary.
Continue reading >>Warum ein Opt-out aus der EMRK für britische Streitkräfte eher unwahrscheinlich ist
Die britische Premierministerin Theresa May will die Streitkräfte von den Verpflichtungen der Europäischen Menschenrechtskonvention befreien. Folgt daraus, dass Schadensersatzklagen von Opfern demnächst als unzulässig abgewiesen werden? Oder dass das Vereinigte Königreich nicht mehr an die EMRK gebunden ist, wenn es seine Streitkräfte in den Einsatz schickt? Wohl kaum.
Continue reading >>
Brexit – a Tragic Continuity of Europe’s Daily Operation
The British vote to leave the European Union came as a surprise and a shock. It has been understood as an aberration, as a triumph of populism and nationalism, in conflict with the ethos of the Union. But Brexit should not be understood as a mere aberration, but instead as one position on continuum of exhausted thinking about EU and (transnational) law in general.
Continue reading >>
Theresa May’s Great Repeal Bill – a Scottish own goal?
Theresa May’s announcement of a Great Repeal Bill on Sunday has the hallmarks of a stroke of genius: It creates some momentum in the internal Brexit debate without substantively changing anything, it appeases the die-heart Brexiteers in her party, and it may kill off legal challenges pending in the courts of England and Northern Ireland demanding that Parliament be involved before Article 50 TEU is triggered. The Great Reform Bill however raises interesting constitutional questions with regard to the devolved nations of the UK, and in particular Scotland. Has Theresa May scored an own goal by allowing the Scots to block her first big step towards Brexit? Or is this part of an even more cunning plan to delay having to trigger Article 50 TEU for a very long time?
Continue reading >>Triggering Art. 50 TEU: Interpreting the UK’s ‘own constitutional requirements’
Can the British government initiate the process of leaving the European Union without consulting Parliament? On September 28th the government released its legal position that the only constitutional way to give effect to the Brexit referendum result is through the exercise of the executive power. Some of the government's arguments appear to be on shaky grounds. The mere fact that the process has been caught up in legal wrangling before it has even begun shows that there is still a long, long road ahead before any sense of stability will return to British (constitutional) politics as well as the relationship between the UK and the EU in whatever form that may eventually take.
Continue reading >>Jein – eine fehlende Variante bei dem Brexit-Referendum
Großbritannien hat eine Schicksalsentscheidung getroffen. Zwar hat die Volksbefragung nach herrschender Meinung nur beratenden Charakter, doch hat die britische Regierung im Vorfeld ankündigte das Ergebnis zu befolgen und wird es daher kaum übergehen. „Brexit means Brexit“, sagte auch Theresa May, die neue britische Premierministerin und frühere Remain-Befürworterin. Was „Brexit“ bedeutet, bleibt aber unklar.
Continue reading >>
INIS Free? Towards a Scots-Irish Union
A post Brexit union of Ireland, Northern Ireland and Scotland would be one way of achieving what the majority of the electors of Northern Ireland and Scotland who voted in the Brexit referendum sought to achieve, namely to remain within the EU and retain their EU citizenship. Historically, there is considerable precedent for such a Scotch-Irish Union.
Continue reading >>BrEXIT AND BreUK-UP
How to balance the aim of the UK to leave the European Union with the complex independence and border issues this would cause in Scotland and Northern Ireland? One possible scenario could be for Scotland to broker a five-year EFTA-EEA "naughty step" membership for the United Kingdom, at the end of which Scotland could itself become an independent EFTA-EEA member state and thus be well positioned to re-enter the European Union.
Continue reading >>
10 (pro-EU) reasons to be cheerful after Brexit
As the dust continues to swirl around the momentous Brexit referendum result a month ago (and doesn’t show any signs of settling anytime soon) I suspect many EU sympathisers will be somewhere in the middle of the various stages of the Kübler-Ross Grief cycle: denial, anger, bargaining, depression, acceptance. So, somewhat incongruosly, are the ‘leavers’. Whereas there are almost as many emotions being experienced on all sides as there are potential options on what will happen next both in terms of the UK’s future relationship with the EU as well as the future of the EU itself, in this post I want to set out a number of (pro-EU) reasons – some obvious, some optimistic, others wildly speculative – to be cheerful amidst the uncertainty created by the Brexit vote.
Continue reading >>AG Saugmandsgaard Øe on Mass Data Retention: No Clear Victory for Privacy Rights
The opinion of the CJEU Attorney General on mass data retention has been long awaited by anyone interested in privacy rights, and more generally the relationship between states and their citizens during this period of an extended “war on terror”. While some civil rights groups have already claimed victory, on closer look the opinion of the AG is not an unmitigated success for privacy activists: It gives considerable discretion to member states to enact data retention provisions providing they meet the Digital Rights Ireland standard.
Continue reading >>
After Brexit: Time for a further Decoupling of European and National Citizenship?
According to the President of the European Council, Donald Tusk, the issue of Scotland’s EU membership after Brexit is ‘a matter for the UK’. That statement is simply false: the future EU citizenship of UK nationals is not a domestic matter but an issue – perhaps the issue – for the Union as a whole to determine.
Continue reading >>Like a Bargaining Chip: Enduring the Unsettled Status of EU Nationals Living in the UK
Yesterday, the UK Government has issued a statement to reassure EU nationals living in the UK as to their post-referendum status. While hundreds of EU nationals channel their relief through social media in welcoming the news and British businesses praise the Government for giving them the reassurance needed, to a more expert eye things seem much less reassuring.
Continue reading >>Das Brexit-Referendum: Sieg für die Demokratie?
War das Referendum doch zumindest ein Sieg für die Demokratie? Im Ergebnis wohl nicht. Demokratietheoretisch darf die Kritik freilich nicht beim Ergebnis, sondern bei der Entscheidung für das Referendum ansetzen: War die Austrittsfrage eine für ein Referendum geeignete Frage, oder hätte diese dem Parlament vorbehalten sein müssen? Vieles spricht hier für Letzteres.
Continue reading >>Calling Europe into Question: the British and the Greek referenda
On this day last year, Greeks woke up facing a referendum result that very few had expected. Almost a year later, on the 24th of June 2016, British and other Europeans woke up overwhelmingly surprised by the ‘Leave’ vote. Despite their significant differences, the Greek and the British referenda have some important things in common. Reading them together might have something to teach us about referenda on the EU—especially now that more people seem to be asking for one in their own country.
Continue reading >>Brexit and Art. 50: the Key lies in Luxembourg
A large British law firm has announced legal steps to ensure that the Art. 50 TEU procedure leading to EUV will be triggered by the British parliament. This might lead to a referral to the European Court of Justice.
Continue reading >>Political Reductionism at its Best: the EU Institutions’ Response to the Brexit Referendum
In their reaction to the Brexit referendum, some EU institutions have shown a troubling understanding of law – law as the mere crystallisation of power relationships, norms as just technicalities, annoying obstacles standing between the political actors and their legitimate goals. This is profoundly wrong and dangerous.
Continue reading >>Everything you need to know about Article 50 (but were afraid to ask)
After the Brexit referendum, the new prime minister cannot dodge the fact that Article 50 is the only legal way for the UK to secede and that he or she, therefore, has a duty to pull the trigger. Not to deploy Article 50 would result in an even more disorderly situation than we have now. Article 50 it is. And if it were done, it were best done quickly.
Continue reading >>A Lame Duck for a Member State? Thoughts on the UK’s Position in the EU after the Brexit Vote
Despite the fact that nothing has technically speaking happened in legal terms, the UK’s journey out of the European Union has already commenced and is starting to have tangible legal consequences.
Continue reading >>Populists chairing the European Commission and Parliament
No, the title of this post does not refer to a dystopia to come after the next European elections in 2019. It refers to the two presidents of today – Jean-Claude Juncker and Martin Schulz. Now why can they be seen as populists in some plausible way? In my view, this is because of the way in which they see politics and the role of the “people” in it.
Continue reading >>
Sovereign and misinformed: Brexit as an exercise in democracy?
Rather than criticising the Brexit referendum as a decision-making tool because ‘the people’ don’t have the necessary expertise to take decisions of this magnitude, we should question the conditions in which many UK voters were called to express their opinion. They, like many all over the world, have seen the progressive hollowing-out of those basic rights that make voting the expression of the right to individual and collective self-rule in the first place.
Continue reading >>England’s Difficulty; Scotland’s Opportunity
Rather than arguing over when and how Article 50 TEU might be activated and by whom, or whether the two year clock ticking for exit can be stopped once started, we need as responsible citizens in a democracy to face up in good faith to what many of us regard as an appalling result, and coalesce around pressing for the quickest possible conclusion of the least worst option which still respects the actual referendum result.
Continue reading >>
United no more: Constitutional Headaches ahead for the United Kingdom
Those who voted Brexit are now celebrating and singing ‘Rule Britannia’ in the streets. They are still dreaming. When they will wake up, they will have to face the facts: there is no Empire, and Brexit will not solve their economic problems. Immigrants will not be deported, and if foreigners decide to leave, this will not solve their problems either. One day, they will wake up to discover that the Kingdom is dis-United.
Continue reading >>
Scotland Can Veto Brexit (sort of …).
Scotland's First Minister Nicola Sturgeon has announced that she would veto any attempt by a future British government to effect the withdrawal of the UK from the EU following the referendum result. This has raised a flurry of questioning of whether this is actually constitutionally permissible. In this blogpost I will argue why I think it is; that is that the Scottish Parliament does, constitutionally, have the power to use the constitution to attempt to veto an attempt by a British government to take the United Kingdom out of the European Union.
Continue reading >>Brexit im europäischen Verfassungsverbund
Wer jetzt auf den raschen Vollzug der „Entscheidung“ vom 23. Juni drängt, tut dies im besten Interesse der Stabilität und der Sicherheit. Wer dagegen Zeit gibt, zur Besinnung zu kommen und richtige Konsequenzen zu ziehen, könnte dem langfristigen Interesse Europas besser dienen.
Continue reading >>A Disunited Kingdom: two Nations in, two Nations out
The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing. England and Wales voted to leave, but Scotland and Northern Ireland voted to remain. Recognising that split is not a matter of shifting the goalposts after the fact. It is about respecting an established, indeed a compelling constitutional order.
Continue reading >>
Zwei Jahre sind nicht immer gleich zwei Jahre: wann beginnt der Brexit-Countdown?
Zwei Jahre gibt der EU-Vertrag einem austrittswilligen Land Zeit, mit der EU einen Austrittsvertrag auszuhandeln. Doch wann beginnt diese Frist? Und was, wenn das Land diesen Zeitpunkt mutwillig hinauszögert? Die Antwort lässt sich nicht allein formaljuristisch geben. Gefragt ist auch politische Klugheit.
Continue reading >>A European Future for Scotland?
The fact that Scotland voted with 62% for the UK to remain a member of the EU whereas the majority of the overall UK electorate opted to leave the EU, raises important political and legal questions. Scotland’s First Minister Nicola Sturgeon has announced that a second referendum on Scottish independence is on the table. What are the options for a continued EU membership of an independent Scotland?
Continue reading >>Five Questions on Brexit to LAURENT PECH
Middlesex Law Professor Laurent Pech on the limits if not perils of direct democracy when citizens to are asked to decide complex policy choices in the absence of a clear understanding of the available options and potential consequences of their vote.
Continue reading >>Five Questions on Brexit to NTINA TZOUVALA
Young international law scholar Ntina Tzouvala on the difference between the "will of the people" and a manouevre of the political elite, and on the danger for Europe to carry around a constitutional corpse.
Continue reading >>
Five Questions on Brexit to KENNETH ARMSTRONG
... and five very succinct answers by Cambridge EU law professor Kenneth Armstrong,
Continue reading >>
Five Questions on Brexit to JO SHAW
Edinburgh EU citizenship law expert Jo Shaw's answers to my set of questions on the occasion of the Brexit referendum.
Continue reading >>
Five Questions on Brexit to GERTRUDE LÜBBE-WOLFF
Former Constitutional Court Judge Gertrude Lübbe-Wolff on why she deeply regrets to see the British go, on the reversibility of the Brexit decision, and on an independent Scotland's prospects to continued EU membership.
Continue reading >>
Nach dem Brexit-Referendum: ein Fast Track zur deutschen Staatsbürgerschaft für bedrohte Unionsbürger!
Viele Britinnen und Briten verzweifeln regelrecht angesichts der Aussicht, ihren "grundlegenden Status" (EuGH) als Unionsbürger ohne ihr Zutun und Verschulden einbüßen zu müssen. Da die Unionsbürgerschaft an die Staatsangehörigkeit in einem EU-Mitgliedsstaat geknüpft ist, wäre es ein starkes Zeichen für die europäische Integration, für Mit-Unionsbürger, die vom Verlust dieses Status akut bedroht sind, einen eigens auf sie zugeschnittenen Tatbestand in § 10 StAG zu schaffen.
Continue reading >>Brexit and the Argentinisation of British citizenship: Taking care not to overstay your 90 days in Rome, Amsterdam or Paris
What are the likely consequences of Brexit for the status and rights of British citizenship? Is it possible to mitigate the overwhelming negative consequences of the UK’s withdrawal from the EU on the plane of the rights enjoyed by the citizens of the UK? The Brexit referendum result will most likely mark one of the most radical losses in the value of a particular nationality in recent history.
Continue reading >>Transformation of EU Constitutionalism
The EU constitutionalism has been transformed. For the worse. The causes for that are well known. They are the sum of consecutive, unresolved financial, economic, political, humanitarian and security crises. This post is not interested into causal relationship between the crises. It centers instead on their aggregate negative outcome and the possible way ahead. It asks what exactly the EU constitutionalism, as a dominant narrative of European integration, has (d)evolved into and what can be done to fix its fissures?
Continue reading >>
The referendum of the UK’s EU membership: No legal salve for its disenfranchised non-resident citizens
On Thursday 23rd June 2016, pursuant to the European Union Referendum Act 2015, a UK-wide referendum will be held on the question: ‘should the UK remain a member of the EU or leave the EU’. Hitherto, much of the referendum debate has concerned immigration (to the UK) by EU citizens, exercising their mobility rights, with rather unsavoury rhetoric concerning deportation of criminals and ‘warnings’ about future arrivals from candidate accession states. Alongside immigration, leading campaigners have argued that the referendum is, at heart, a about questions of sovereignty and democracy.
Continue reading >>Brexit, Identity, and the Rise of the Euro-Celts
EU law not only protect fundamental rights and freedoms, but also the national identities of the Member States. Perhaps for “Little England”, that is not enough. But after Brexit, who would protect the national identities of the other nations of the UK?
Continue reading >>
Brexit and Citizenship
What are the likely consequences of Brexit for the status and rights of British citizenship? Can the fact that every British national is an EU citizen mitigate the possible negative consequences of the UK’s withdrawal from the EU on the plane of the rights enjoyed by the citizens of the UK? These questions are not purely hypothetical, as the referendum on June 23 can potentially mark one of the most radical losses in the value of a particular nationality in recent history.
Continue reading >>Britain’s Neverendum on Europe
The UK Prime Minister has told us that the June 23rd vote will settle ‘once and for all’ Britain’s vexed relationship with Europe. I wouldn’t count on it. The current marathon is only beginning. The upcoming referendum has all the hallmarks of a ‘neverendum’: a campaign that tries to resolve an issue yet only succeeds in polarizing opinion yet further, guaranteeing its presence on the political agenda for years, if not decades, to come.
Continue reading >>
The Brexit Vote: The Wrong Question for Britain and Europe
Referendums are supposed to provide decisive interventions in the affairs of state. Yet the referendum theory is in fact deeply flawed. European ‘membership’ for a country of Britain’s size, influence and location should be less a matter of ‘yes or no’ than one of ‘more or less’. The reduction of a complex and graduated choice to a basic dichotomy simply does not reflect the position or serve the interests of the vast majority who will be affected by the outcome. What is more, and worse, the crude logic of either-or plebiscitary politics threatens to become a self-fulfilling prophecy.
Continue reading >>“Wir sollten sagen: Wer nicht will, der hat schon”
Christoph Möllers im Verfassungsblog-Interview über das bevorstehende Brexit-Referendum, und warum die EU die Briten selbstbewusst ziehen lassen sollte, wenn diese das wollen.
Continue reading >>A Tale of Two Exits: Scotland and Brexit
The EU referendum has become is a form of displacement activity, a chance for the English voters to affirm their Englishness. If England votes for Brexit and Scotland to stay in the EU, the question will be whether the other EU Member States would accept Scotland – perhaps in a confederation with Northern Ireland – as a new or continuing EU Member State or even as the continuing UK.
Continue reading >>Sovereignty Safeguards in the UK-EU Settlement
The U.K.-EU settlement, despite being legally binding and only amendable with the U.K.’s consent, does little to reaffirm British sovereignty. It is primarily a set of restatements and interpretations of existing EU law with new proposals primarily in the area of social policy.
Continue reading >>On the new Legal Settlement of the UK with the EU
In this brief comment I discuss some of the legal questions that arise out of the proposals for a new settlement between the UK and the EU.[1] As I will show, the precise nature of the draft agreement is unclear. This legal instrument raises difficult issues of both EU and public international law and could potentially cause serious uncertainty or even a constitutional crisis. Press reports have missed this legal complexity. Ministerial statements have been silent about it.
Continue reading >>
Why Tusk’s Proposal is not so Bad
Should the other EU member states rebuff the UK’s reform demands and seize the opportunity to amend the Constitutional treaties instead? Unlike Federico Fabbrini, who in his post of the 3rd of February proposed they should, I will argue that European integration doesn’t follow a linear path, and it may therefore be necessary to give in to some requests. This would not lead to EU disintegration.
Continue reading >>President Tusk’s Proposal for a New Settlement for the UK in the EU: Fueling – not Taming – EU Disintegration
The European Union is at the crossroad. On 17 February […]
Continue reading >>David Cameron’s EU reform claims: If not ‘ever closer union’, what?
UK Prime Minister David Cameron claims that the reforms he seeks for Britain will be good for the European Union as a whole. That proposition deserves examination. Here we focus on only one, but the most totemic of his demands – namely that the UK wins a ‘formal, legally-binding and irreversible’ exemption from the EU’s historic mission of ‘ever closer union of the peoples of Europe’. Jobs and immigration might stir the masses in the referendum campaign, but it is the issue of ‘ever closer union’ that divides most sharply the sovereignists from the federalists and could, if mishandled, do severe collateral damage to the rest of the EU.
Continue reading >>
The Conservatives’ 2015 Fiscal Charter: A Wanting Desire for Constitutional Change
The UK Conservatives’ "Charter for Budget Responsibility" has, with the aid of a number of Labour MPs, passed the House of Commons. The charter's intention is that of committing the current and future Governments into running a permanent budget surplus – a sinister attempt to bind future governments as regards fiscal policy. Its inconsistency with the opposition against the EU Fiscal Compact in 2011/12 exposes, though, how much the Conservative's desire to constitutionalize fiscal surplus policy in the UK is wanting.
Continue reading >>
How to make the Brexit deal formal, legally-binding and irreversible
Whatever one thinks (and one does) about the British renegotiation of its terms of EU membership, one can only marvel at the prime minister’s bravado when he insists on the changes being ‘formal, legally-binding and irreversible’. Nobody expected David Cameron to be so categorical when he embarked on his long-anticipated speech and ‘Dear Donald’ letter, eventually delivered on 10 November. Surely somebody warned him that to demand something so trenchant would pose huge legal problems?
Continue reading >>David Cameron is not a visionary, he is an illusionist
The UK Prime Minister proclaims EU reforms. But the reform steps he demands address none of the actual problems of the EU. Neither on the sovereign debt crisis nor on the refugee and migration crisis any proposals or solutions from Cameron are forthcoming. Instead, he focuses on comparatively insignificant issues that affect the UK. This explains the largely ‘open-minded’ response by most European leaders after the speech.
Continue reading >>Brexit, Voice and Loyalty: What ‘New Settlement’ for the UK in the EU?
The UK Prime Minister, David Cameron has finally found time to write a letter to the European Council President Donald Tusk setting out the basis for the UK’s renegotiated membership of the EU. Although in recent weeks, European leaders have complained that they lacked clarity as to what it was that Mr Cameron would seek in these negotiations – despite his recent tour of European capitals – in the end, the themes contained in the letter have been well rehearsed both by the Prime Minister, and more recently by the UK Chancellor in his speech to the BDI in Germany. There are four pillars to the ‘new settlement’ sought by the UK government: economic governance, competitiveness, sovereignty and immigration. The Prime Minister’s stated aim is – through voice – for the UK to remain a member of the EU, albeit an EU with differentiated membership obligations. As he reiterated in a speech at Chatham House to trail the letter to Donald Tusk, if he succeeds in his negotiations, the Prime Minister will campaign for the UK to remain in the EU. He also made clear that a vote for Brexit would be just that, with no second referendum to seek a better deal. So what then are the key policy planks supporting the four-pillars?
Continue reading >>
Cameron’s EU reforms: political feasibility and legal implications
David Cameron, the UK’s Prime Minister, has set out his objectives for EU reforms in a speech at Chatham House on 10 November 2015 – objectives which he later clarified in a letter to the President of the European Council Donald Tusk. Cameron’s demands fall in four categories – i) safeguarding Britain’s position in the Union’s ‘variable geometry’; ii) strengthening the competitiveness of the Union’s internal market; iii) bolstering the democratic authority of the EU by strengthening the role of national parliaments in the EU’s decision-making process; and iv) ensure changes to the principles of free movement and equal treatment of Union citizens in access to welfare systems in the host state. The political feasibility and legal implications of these objectives differ quite significantly. More crucially, each of the stated objectives can be interpreted and implemented in different ways. Generally, it seems, Cameron’s success seems to depend on presenting reforms that at the same time address British domestic issues as well as strengthen the EU’s functioning.
Continue reading >>
Cameron’s bid for irreversible guarantee means constitutional chaos
The UK Conservative government’s attempt to renegotiate the UK’s terms of membership of the European Union continues to distress Britain’s pro-Europeans, antagonise its anti-Europeans and bamboozle its EU partners.
Continue reading >>
The ‘Brexit’ Referendum: We Need to Talk about the (General Election) Franchise
The franchise for the ,Brexit' referendum will mostly follow eligibility for voting in a UK general election. This invites serious reflection on the anomalies of the current general election franchise in the UK: Citizens living abroad are not allowed to vote, and neither are EU citizens from other countries – unless they are Irish, Cypriots or Maltese who are enfranchised as citizens of member states of the Commonwealth. Could this be challenged under EU or ECHR law?
Continue reading >>
Luxemburg rüttelt an Wohnsitzauflage für Flüchtlinge
Bürgerkriegsflüchtlingen, die internationalen Schutz genießen und Sozialhilfe beziehen, wird in Deutschland von den Behörden ein verbindlicher Wohnsitz zugewiesen. Das, so Generalanwalt Cruz Villalón in seiner wohl letzten Amtshandlung, dürfte so pauschal europarechtswidrig sein: Flüchtlinge dürfen nicht nach ihrem Rechtsstatus diskriminiert werden, und das bloße Ziel, die Belastung der Kommunen besser zu verteilen, rechtfertige eine solche Ungleichbehandlung nicht. Und das ist im Schatten des epochalen "Schrems"-Urteils nur eine von vielen weit reichenden Luxemburger Neuigkeiten dieses denkwürdigen Tages.
Continue reading >>Rechtsgebrauch oder Rechtsfortbildung? Die jüngsten Anti-Terror-Einsätze des Vereinigten Königreichs und das Völkerrecht
Am 7. September 2015 hat sich der britische Premierminister David Cameron u.a. zum jüngsten Vorgehen des Vereinigten Königreichs im Rahmen der Terrorismusbekämpfung öffentlich geäußert. Cameron sah sich diesmal womöglich zu einer Stellungnahme verpflichtet, weil es sich bei den getöteten Kämpfern um britische Staatsbürger handelte. Dieser Umstand hat allerdings bemerkenswerte Begleiterscheinungen ausgelöst, die einen tiefen Einblick in die völkerrechtliche Bewertung des britischen Anti-Terror-Kampfes gegen den „IS“ gewährt.
Continue reading >>Tausche Britannien gegen Schottland, oder: Volkssouveränität mal ganz anders
Ein Austritt des Vereinigten Königreichs aus der EU ist zur realen Möglichkeit geworden. Dies sollte eine Frage in den Fokus rücken, die sowohl im politischen als auch im rechtswissenschaftlichen Diskurs bislang keine große Rolle spielt: Was wird eigentlich aus den (Unions-) Bürgern? Mit Vollzug des Austritts leben Unionsbürger aus fremden Staaten, die sich in dem austretenden Staat niedergelassen haben, plötzlich außerhalb des Unionsgebiets, womit ihre Unionsbürgerrechte hier keine Geltung mehr finden. Umgekehrt mutieren die Bürger des Austrittsstaates im Verhältnis zu Rest-Union eo ipso zu Drittstaatsangehörigen, was zum Verlust des Unionsbürgerstatus überhaupt führt.Diese ungeheuerliche Konsequenz ist weder theoretisch noch dogmatisch hinreichend reflektiert. Im Fall eines „Brexits“ wird sie sich aber unmittelbar stellen. Dies könnte Anlass sein, das Verhältnis zwischen nationaler (Volks-) Souveränität und den Rechten der Unionsbürger zu neu zu denken. Ist der Unionsbürger nicht am Ende (auch) ein Souverän?
Continue reading >>Damned if you do, Damned if you don’t: Reflections on Brexit and Grexit
Greece might leave the Euro zone, the UK might leave the European Union, Scotland might leave the UK. The naif belief that the market will fix inequality and take care of political unity will have to face reality: Equality and solidarity are not provided by the market, nor are they to be expected without governing institutions. Either there is a clear vision that binds together countries by providing safety nets and solidarity. Or the union will break apart.
Continue reading >>
Legal implications of human rights reform in the UK
The return of a majority Conservative government in last week’s general election in the UK has made the Conservative Party’s plans for reforming human rights law in the United Kingdom a likely prospect. It is recalled that on 3 October 2014, the Conservative Party published its policy document ‘Protecting Human Rights in the UK’ which sets out its proposal to repeal the Human Rights Act 1998 (HRA) and replace it with a new British Bill of Rights. In addition, the policy document also raised the prospect that the UK might withdraw from the European Convention on Human Rights (ECHR). But none of that is as easy as it sounds.
Continue reading >>“Brexit/Scot-in”: could a non-independent Scotland stay in the European Union in case of a Brexit?
If the UK will leave the European Union after a Brexit referendum in 2017, Scotland will either have to secede or, unwillingly, leave the EU along with the rest of the Kingdom. Or so goes conventional wisdom. Is the prospect of a non-independent Scotland remaining part of the EU while the UK leaves really totally inconceivable? Not entirely.
Continue reading >>Vielleicht ist ein Brexit-Referendum gar nicht das Schlechteste
Die Engländer_, Schott_, Waliser_ und Nordir_innen haben gewählt, und es ist Gewissheit: In zweieinhalb Jahren wird es ein Referendum über die Mitgliedschaft des Vereinigten Königreichs in der Europäischen Union geben. It's In or Out. Und das finde ich jetzt, wo das geklärt ist, gar nicht unbedingt so übel. Ist dies vielleicht nicht sogar eine einmalige Gelegenheit, eine Reihe von Vertragsänderungen durchzuführen, die wir für die Bewältigung der immer noch ungelösten Probleme der Währungsunion dringend brauchen?
Continue reading >>The UK’s general election: a fundamental change to UK/EU relations?
The result of the current British election campaign could be crucial for the future of the UK’s relations with the European Union. Every UK-wide election party which is likely to win seats in the election has now released its election manifesto, namely: the Conservatives;Labour; Liberal Democrats; UKIP; and the Greens. It’s therefore a good time to examine what the parties are saying about the EU, and what the various post-election scenarios would mean for the UK’s relations with the EU.
Continue reading >>
Prinz Charles macht sich um das britische Verfassungsrecht verdient …
... wenn auch eher mittelbar. In seinem heutigen Urteil "Evans", in dem es um die Veröffentlichung von Briefen des Prinzen an Minister der Regierung geht, zimmert der UK Supreme Court eine prekäre Balance zwischen den Verfassungsprinzipien der Rechtsstaatlichkeit und der Parlamentssouveränität.
Continue reading >>A referendum on Britain’s EU membership is a sure fire way to encourage the breakup of the UK
David Cameron has pledged to hold a referendum on the UK’s EU membership if his Conservative party wins a majority at the British general election in May. Jo Murkens writes on the impact an EU referendum would have on the UK’s place in Europe and on the UK as a whole. He argues that the EU referendum debate highlights the extent to which the UK has failed to contribute to the EU’s political goals in key areas like the Ukraine crisis, and that the net effect of the referendum could be to weaken the unity of the United Kingdom itself.
Continue reading >>A Tale of Two States: Rule of Law in the Age of Terrorism
As a reaction to the recent terrorist attacks in France, several EU member states as well as the EU itself have announced significant anti-terrorism measures. To fear, which is the first result of terrorism, the state has to respond with the wisdom of a legislator, which should not act under the pressure of understandable emotional feelings. The State of Terror wants to spread chilling fear and make people feel alone and without protection by the State of Law. The State of Law should respond by educating its community to the values of legality, tolerance and solidarity. Its duty, in times of fear, is an ethical rather than a police one; it has to make the people leave their isolation and facilitate their social and political inclusion. This action requires concrete actions by political decision-makers.
Continue reading >>
The UK’s Potential Withdrawal from the European Convention on Human Rights – Just a Flash in the Pan or a Real Threat?
The ruling Conservative party of Prime Minister David Cameron published […]
Continue reading >>Torture, Human Rights and the Northern Ireland Conflict
At what point does harsh treatment of detainees amount to torture? With the US Senate report on CIA interrogation practices dominating all the headlines, this question is very much on our minds right now. That the European Court of Human Rights will have to consider this question, is a mere coincidence, though. The Irish Government has decided to reopen a decades old case from the darkest days of the Northern Ireland conflict (Ireland v United Kingdom). The case will raise once again the ugly spectre of the systematic abuse of prisoners in Northern Ireland. Moreover, the litigation has the potential to have far-reaching effects in the relationship between the European Court and the United Kingdom, and in the constitutional settlement within the United Kingdom itself.
Continue reading >>
Verantwortlichkeiten ausbürgern – Entzug der Staatsbürgerschaft zur Terrorismusbekämpfung in Großbritannien
Großbritannien entzieht schon seit dem letzten Jahr verstärkt bestimmten Personen die britische Staatsangehörigkeit und hat nun die Voraussetzungen dafür weiter gelockert. Die Regierung stellt die Ausbürgerung als notwendig dar, um die Sicherheit der – restlichen – Bevölkerung zu gewährleisten. Der Entzug der Staatsbürgerschaft – in Hannah Arendts Worten das „Recht, Rechte zu haben“ – kann aber auch vor dem Hintergrund aktueller Gefährdungslagen nicht die beste Verteidigungsstrategie des Rechtsstaats sein. Sie schafft es nicht, die Sicherheitslage effektiv zu verbessern. Vielmehr bedroht sie sogar selbst den Rechtsstaat.
Continue reading >>Straßburg: Lebenslang kann durchaus lebenslang sein
Die britischen Konservativen überlegen bekanntlich zurzeit, sich von der Europäischen Menschenrechtskonvention loszusagen. Einer der Gründe dafür ist die angeblich übergriffige Rechtsprechung des EGMR und darin ganz besonders die zur lebenslangen Haftstrafe. In dem Papier, das die Tories vor einigen Wochen dazu verabschiedet haben, heißt es: "In 2013 the Strasbourg Court ruled that murderers cannot be sentenced to prison for life, as to do so was contrary to Art. 3 of the Convention." Das hat noch nie gestimmt. Eine heute veröffentlichte Kammerentscheidung zur Rechtslage in Frankreich stellt das noch mal unmissverständlich klar.
Continue reading >>
The UK House of Lords
The UK does not have a supreme court with power to strike down laws that are contrary to the constitution, human rights and so on. Instead the system relies heavily on intra-parliamentary mechanisms, operating in the House of Lords. While the current unelected composition of the Lords is controversial and difficult to justify rationally, it is widely agreed across the political spectrum that the Chamber discharges its functions in legislative scrutiny and examination of public polices well.
Continue reading >>Großbritannien auf dem Weg ins verfassungsrechtliche Irrsal?
Aus deutscher Perspektive könnte man leicht den Eindruck gewinnen, als sei das gar nichts Besonderes, was die Tories in Großbritannien alles an konstitutionellen Umwälzungen planen. Einen nationalen Grundrechtekatalog neben der EU-Menschenrechtskonvention? Autonomie und regionale Selbstbestimmung für alle Teile des Vereinigten Königreichs, England eingeschlossen? Da zucken wir an Föderalismus und Grundgesetz gewöhnten Deutschen nur mit den Achseln. Ist doch normal, oder nicht? Aber der Eindruck täuscht. Was der britische Regierungschef und seine Partei da so alles im Schilde führen, deutet mitnichten in eine Richtung, die uns Kontinentalkonstitutionalisten vertraut und heimelig vorkommen sollte.
Continue reading >>“Ultimately, the member states decide” – interview with Andrew Moravcsik on the Scottish referendum and European Union politics
One week after the Scottish vote, has life for the […]
Continue reading >>
For a Constitutional Convention for the United Kingdom
If one thing became clear from the referendum, it was the idea that the Westminster Parliamentary system was ‘broken’, so much so that Alex Salmond took to using the ‘Westminster establishment’ as a term of derision in the week before the vote. Yet what we are seeing in the pre-referendum ‘Vow’ as well as Cameron’s post-referendum speech is more of the same; constitutional reform being jealously fought over by the exclusive club of the three main Westminster parties where each party tries to promote or prevent a proposal which will promote or prevent them from getting into power sooner or promote or prevent them from holding onto it for as long as possible. This is precisely what has caused political disengagement and voter disaffection not just in Scotland but right across the United Kingdom.
Continue reading >>
The First Conference on Public Law in the Common Law World: Some Impressions of an Outsider
Apparently, public law in common law jurisdictions is coming of age. From Monday, 15th September, until Wednesday, 17th September 2014, the first major conference assembling public lawyers from common law jurisdictions around the world took place at Cambridge. I found the conference to be highly stimulating, and felt that it provided me with a rough idea of the current struggles public lawyers in common law jurisdictions are facing up to.
Continue reading >>
“There was truth in what the independence sectors objected to”
Ist das Thema Unabhängigkeit Schottlands nach dem erfolglosen Referendum jetzt erledigt? Welchen Anteil hat die Global City London an der Entstehung einer schottischen Unabhängigkeitsbewegung? Fünf Fragen an die Soziologin Saskia Sassen.
Continue reading >>
Am Tag des Referendums: Notizen aus Edinburgh/Schottland
Alle Welt schaut auf Schottland, das sich heute für oder gegen seinen Verbleib im Vereinigten Königreich entscheidet. Nelly Traxler war vor Ort, in Edinburgh, und berichtet, wie sie den Tag der Entscheidung erlebt hat.
Continue reading >>
Warum die Schotten vor London Angst haben, aber die Bayern nicht vor Berlin
Morgen stimmen die Schotten über ihre nationale Zukunft inner- oder außerhalb des Vereinigten Königreichs ab. Darüber haben wir hier schon viel geschrieben, und alle Zeitungen sind voll davon. Was mich erstaunt, ist, dass kein Mensch eine eigentlich ziemlich naheliegende Frage stellt: Warum sind in UK, Frankreich, Spanien, Italien und Belgien so viele Menschen der festen Überzeugung, das Joch der nationalen Zentralregierung keinen Tag länger aushalten zu können, und in Deutschland kein Mensch? Mehr noch: Warum sehen wir nicht nur keinen Drang zu mehr regionaler Eigenständigkeit, sondern im Gegenteil: eigentlich sogar zu immer weniger?
Continue reading >>Scotland and the EU: Eleventh hour thoughts on a contested subject
Is the ‘spectre of disintegration’ haunting Europe? Joseph Weiler fears that it is, and that, were an independent Scotland to be admitted as an EU state, this would lead to a domino effect whereby others would demand independence within the EU – testimony of an atavistic, retrogressive mentality, and adverse to the EU’s raison d’etre. This is a strongly put view, and not all will agree with it. Nonetheless, most of the papers in this highly stimulating symposium address, albeit in very different ways, the concern that lies at the base of Weiler’s argument – namely, the character of the EU, the nature of its values, its very reason for being. They also address the more workaday, but nonetheless critical, legal and practical issues that an independent Scotland’s membership pose.
Continue reading >>Scotland and the EU: Comment by CARLOS CLOSA
No one disagrees that an independent Scotland qualifies for EU membership and that it would no doubt become an EU member state. Why then is there so much normative argument around “seamless transition”? It may or may not happen and, should it come it pass, I believe that it may be a good thing, albeit that I fail to see a “normative” case which supports it. Why should third parties guarantee to a self-determining self that its constitutive decision will be costless regardless of any other consideration? This would deprive citizenship of an essential responsibility for decisions taken which I consider indispensable to democracy.
Continue reading >>Scotland and the EU: Comment by NEIL WALKER
The presence of the EU both offers a spur to new projects of national sovereignty but also, and in my view more emphatically, it supplies a set of considerations which makes the project of new statehood less pressing, less consequential, and provided we can trust in continuing UK membership of a continuing EU (both of which statuses, of course, need careful attention) less relevant and ultimately unnecessary.
Continue reading >>
Scotland and the EU: Comment by STEPHEN TIERNEY
I agree with Sionaidh that the accession of an independent Scotland to the European Union is not in any serious doubt. I develop this point in a paper written with Katie Boyle here. In this blog I argue that although accession will no doubt take time, there is unlikely to be any period within which Scotland is effectively cast out of the EU. More speculatively I would like to ask whether there might in fact a duty on the part of the EU to negotiate Scotland’s membership, and whether the Secession Reference to the Supreme Court of Canada may provide an interesting analogy supportive of this argument.
Continue reading >>Scotland in the EU: Comment by DIMITRY KOCHENOV
the Union cannot be possibly expected to throw its weight behind ensuring that there is no choice for the nations seeking independence within Europe – it is not the Union’s realm. The contrary would amount to turning the EU into an instrument of blackmail of the emerging states by the existing state entities which is radically deprived of any purpose and is in strong contradiction with the values of democracy and the rule of law which the Union espouses.
Continue reading >>
Scotland and the EU: Comment by BRUNO DE WITTE
Whereas the Article 48 route has major advantages over the Article 49 route, and would be feasible – in my view at least – as a matter of legal principle, it would create many complications all the same, both for the Scots and for the rest of Europe.
Continue reading >>Scotland and the EU: Comment by MICHAEL KEATING
To suggest that a nation that has followed the Scottish route should not be allowed into the European family while others with more dubious pedigrees are, would violate basic democratic principles. Effectively, Scotland would be expelled from the union for exercising a widely-recognized democratic right.
Continue reading >>Scotland and the EU: Comment by KALYPSO NICOLAIDIS
With the Treaty of Lisbon, the EU formalised and entrenched a right of exit (article 50) which is at the heart of its nature as a polity: the peoples of Europe have come together and will remain together by choice, not under duress. In the same way as the exit clause proclaims loudly and clearly that EU member states and their citizens remain in the EU by choice, leaving the EU should be a collective choice too. It should not be a choice inferred from another choice, that of one part of a country to leave the whole.
Continue reading >>Scotland and the EU: Comment by PIET EECKHOUT
Constitutional, doctrinal and practical reasons why the EU has to negotiate after a Yes referendum.
Continue reading >>
Scotland and the EU: Comment by JO MURKENS
Sionaidh Douglas-Scott’s reliance on Article 48 is far from persuasive on technical legal grounds (is it the correct legal basis to accommodate a new Member State?) as well as for strategic reasons (the negotiation process may well be dominated by the UK’s negotiating team pursuing its own agenda). But even if an independent Scotland’s continued membership in the EU were ‘smooth and straightforward’, Douglas-Scott provides no answer to the question as to what kind of member an independent Scotland would be.
Continue reading >>Scotland and the EU: a Comment by JOSEPH H.H. WEILER
It would be hugely ironic if the prospect of Membership in the Union ended up providing an incentive for an ethos of political disintegration. In seeking separation Scotland would be betraying the very ideals of solidarity and human integration for which Europe stands.
Continue reading >>Why the EU should welcome an independent Scotland
The comments below focus on the importance of an EU perspective on an independent Scotland’s EU membership, highlighting the EU as a distinctive, sui generis and new type of legal organisation. They argue that a strong case can be made for Scotland’s continued EU membership on the basis of EU law itself.
Continue reading >>Wird ein unabhängiges Schottland EU-Mitglied bleiben?
In weniger als zwei Wochen wird sich herausstellen, ob Schottland Teil des Vereinigten Königreichs von Großbritannien und Nordirland bleiben wird oder nicht. In den Umfragen liegen die Gegner der Unabhängigkeit zwar noch vorne, aber nur noch knapp und ihr Vorsprung schrumpft. Es könnte also wirklich passieren, was es bisher noch nie gab: Aus einem EU-Mitgliedsstaat werden zwei. Oder, werden sie?
Continue reading >>Der britische Odysseus und der Sirenengesang der Souveränität
Freiheitsgewinn durch Selbstbindung – wenn es das ist, was Verfassungen leisten, wie ist es dann um die Verfassung Großbritanniens bestellt? Die Frage stellt sich gerade jetzt, weil die britische Regierung offenbar ihr Maß an konstitutioneller Bindung als ein Zuviel empfindet.
Continue reading >>Demokratieprinzip versus Rechtsstaatsprinzip? UK strebt nach “democratic override” des EGMR
m Vereinigten Königreich spitzt sich die Auseinandersetzung um den EGMR, so scheint es, immer mehr zu. Nach der jüngsten Kabinettsumbildung scheinen die Konservativen entschlossen, dem Parlament von Westminster das letzte Wort darüber zu geben, ob ein Urteil des EGMR im Vereinigten Königreich umgesetzt wird oder nicht. Man reibt sich verwundert die Augen und möchte sich frei nach Asterix fragen: Ja spinnen die denn, die Briten?! Ich meine, ganz so einfach ist es nicht.
Continue reading >>Arbeitslohn illegaler Einwanderer als „Proceeds of Crime“: ein zauderhaftes Urteil aus Straßburg
Wer illegal nach Europa einwandert, kann offenbar nichts richtig machen: Bezieht man Sozialhilfe, bekommt man Ärger – aber wenn man ehrlich arbeitet, womöglich auch. So ist es dem Ivorer Didier Pierre Paulet in Großbritannien ergangen: Weil er mit einem gefälschten französischen Pass eingereist war, zogen die Behörden sein ganzes, in jahrelanger harter Arbeit verdientes Geld als „Einkünfte aus krimineller Tätigkeit“ ein. Dagegen zog Paulet vor dem Europäischen Gerichtshof für Menschenrechte. Jetzt ist das Urteil ergangen – und die Lösung, die Straßburg für diesen Fall findet, dürfte niemanden so richtig zufrieden stellen.
Continue reading >>Imagining judges in a written UK Constitution
The tide of interest (among those who care about these […]
Continue reading >>
Schottland auf dem Weg in die EU – oder aus ihr heraus?
Ein unabhängiges Schottland als 29. EU Mitgliedsstaat im Jahr 2016. Schnell, unkompliziert, ohne Brüche. Das ist der Plan von Alex Salmond, dem Ministerpräsidenten Schottlands. Wie wahrscheinlich ist dieser Zeitplan? Eine Frage, die für die Abstimmung über die Unabhängigkeit Schottlands am 18. September 2014 entscheidend ist und sich schwer juristisch lösen lässt. Antworten darauf liegen nicht in Edinburgh sondern in London, Brüssel und Madrid.
Continue reading >>
Warum EU und Mitgliedsstaaten verpflichtet sind, eine schottische EU-Mitgliedschaft zu fördern
Ein mögliches eigenständiges Schottland stellt die EU vor rechtliche Herausforderungen. Denn die europäischen Verträge enthalten keine speziellen Regelungen für den Fall, dass ein Teil eines EU-Mitgliedsstaates unabhängig wird. Allerdings folgt aus dem Demokratieprinzip in Verbindung mit der Unionsbürgerschaft eine Rechtspflicht der EU, die schottische EU-Mitgliedschaft zu fördern. Auch die Mitgliedsstaaten unterliegen aufgrund der Unionstreue dieser Pflicht. Ein unabhängiges Schottland muss daher auch Mitglied der EU werden können.The possibility of an independent Scotland poses legal challenges for the EU. The European Treaties do not contain specific rules for the case of a part of a EU Member State becoming independent. But from the principle of democracy and EU citizenship follows a legal obligation for the EU to support a EU membership for Scotland. Further, due to their duty of cooperation (Unionstreue), the Member States are under this legal obligation as well. An independent Scotland therefore has to be able to become a EU Member State.
Continue reading >>
Risikofaktor Cameron: die gewagte Datenschutz-Klage vor dem EGMR
Gegen Einladungen, die man lieber nicht erhalten hätte, hilft es regelmäßig, Krankheit, die Unverfügbarkeit des Babysitters oder Handwerkerbesuch vorzuschützen. Gegen Klagen, über die man lieber nicht entscheiden würde, hilft Gerichten bestenfalls der Einwand der Unzulässigkeit, der aber mit deutlich höherem Begründungsaufwand verbunden ist. Datenschützer haben jetzt beim Europäischen Gerichtshof für Menschenrechte (EGMR) Klage gegen die Überwachung durch den britischen Geheimdienst GCHQ eingereicht - eine Einladung zur Auseinandersetzung mit der Regierung Cameron, für die man dem Gericht eine gute Ausrede wünschen möchte: Wenn es sich darauf einlässt, könnte es viel verlieren.
Continue reading >>
Von der Währungsunion wollte Francis Mann nichts wissen
Das Manuskript, das der emigrierte deutsche Jurist Francis Mann Anfang […]
Continue reading >>
UK Supreme Court: Kein Recht auf Diskriminierung aus Glaubensgründen
Britische Hotelbesitzer dürfen schwulen und lesbischen Paaren kein Doppelbett verweigern, […]
Continue reading >>
Mit Europarecht gegen die amerikanischen und britischen Abhöraktionen? Teil 2: GCHQ
Anders als bei den USA erscheint im Fall des britischen Geheimdienstes GCHQ der Konnex zum Europarecht nicht sonderlich fernliegend. Großbritannien ist seit 1973 Mitglied der EWG bzw. heute der EU. Die verdeckte, systematische, großflächige und anlasslose Sammlung von personenbezogenen Daten von Unionsbürgern durch einen Mitgliedstaat berührt Garantien, wie sie in Art. 8 Charta der Grundrechte sowie in Art. 16 AEUV und im geltenden Sekundärrecht niedergelegt sind. Dass hier Kerngewährleistungen des Unionsrechts berührt sind ergibt sich bereits aus folgender Testfrage: Würde man einen Beitrittskandidaten in die EU aufnehmen, der einen solchen Datenstaubsauger wie die GCHQ betreibt? Die Antwort ist ziemlich klar: Nein. Die Mitgliedschaft in der EU setzt das Einhalten bestimmter Grundrechtsschutz- und Rechtsstaatsstandards voraus.
Continue reading >>Das Crowdsourcing-Verfassungsexperiment der LSE: “We, the People” im 21. Jahrhundert
Großbritannien hat bekanntlich keine Verfassung. Soll es eine bekommen, und wenn ja welche? Conor Gearty und seine Mitstreiter_innen an der London School of Economics wollen in den nächsten Monaten einen Prozess entwerfen, in dem Experten und Öffentlichkeit eine "Crowdsourcing"-Verfassung für das Vereinigte Königreich schreiben. Am 8. Oktober soll das Projekt starten. Wir haben ihn über seine Ziele, Motive und Ideen befragt.
Continue reading >>
“Der Guardian wirkt nicht eingeschüchtert”: Über die Pressefreiheit in Großbritannien
In Deutschland waren viele sehr schockiert über die Nachricht letzte Woche, dass die britische Regierung den Guardian unter Druck gesetzt hat, die Festplatten mit den Snowden-Daten zu zerstören. Das sah nach einem unverhohlenen Angriff auf die Pressefreiheit aus, vielleicht sogar mehr noch als die Festnahme von David Miranda. Einige Kommentatoren verglichen den Fall sogar mit der deutschen Spiegel-Affäre in den 60er Jahren. Gibt es Anlass, sich über den Zustand der Pressefreiheit im Vereinigten Königreich Sorgen zu machen? Gavin Phillipson, Verfassungsrechtler aus Durham, erklärt, warum die Regierung vor der Presse in Großbritannien viel mehr Angst hat als umgekehrt.
Continue reading >>Miranda’s Rights: A Guide for the Perplexed Citizen
Nach der Verhaftung des Partners eines Enthüllungsjournalisten am Flughafen Heathrow stellen viele besorgte Bürger sich die Frage, ob die britische Anti-Terror-Gesetzgebung der Regierung tatsächlich solche Aktionen erlaubt. Jeff King, Verfassungsrechtler am University College London, kommt in einer ausführlichen Analyse zu dem Schluss: Nein, das tut sie nach gegenwärtigem Stand der Erkenntnisse nicht. David Miranda könnte auf Entschädigung klagen und hätte gute Aussichten zu gewinnen - sofern es der Regierung nicht gelingt, ihre neuen Befugnisse auszuspielen, Beweismittel im nationalen Sicherheitsinteresse geheim zu halten.
Continue reading >>The Constitutional Inheritance of the Royal Baby: A Speculation
The UK in the year of 2075: The former "Royal Baby" is finally to ascend the Throne. What will have changed, constitutionally, by then? Nick Barber gives free rein to his fantasy.
Continue reading >>
“Wegsperren für immer” ist in ganz Europa verboten
Ich kann nicht alles nachholen, was während meines Urlaubs alles an Bloggenswerten aufgelaufen ist. Das ist eine ganze Menge, allem voran natürlich die NSA-Affäre, die uns ja wohl hoffentlich noch eine Weile erhalten bleiben wird. Eine letzte Woche ergangen Entscheidung des Europäischen Gerichtshofs für Menschenrechte finde ich aber doch so aufregend, dass ich hier doch kurz auf sie hinweisen möchte.
Continue reading >>“Wir haben viele Fehler gemacht. Sie passieren. Und dann korrigiert man sie.”
Menschenrechte hatten es schwer in Europa in letzter Zeit. In […]
Continue reading >>“Secret Courts” in Großbritannien: Ab jetzt Realität
Während wir uns hier, zuletzt mit gelegentlich leicht überschnappender Stimme, […]
Continue reading >>Verbot politischer Fernsehwerbung: Straßburg will keinen Ärger mit Westminster
Airtime für politische Forderungen ist auch weiterhin nichts, was man […]
Continue reading >>
Schizophrene Terrorverdächtige darf man nicht an die USA ausliefern
Die in den USA üblichen Haftbedingungen können also doch ein […]
Continue reading >>Schottland sieht Island als Modell bei Verfassungsgebung
300.000 Isländer können sich kollektiv eine Verfassung geben; das hat […]
Continue reading >>
“Most People See That The UK Is A Lot Better Off Within The EU”
Do you think the EU and the United Kingdom will […]
Continue reading >>
Religion am Arbeitsplatz: EGMR hat für alle ein bisschen was
Airlines dürfen ihren Angestellten nicht das Tragen von Kruzifixen verbieten, […]
Continue reading >>Ein komplett neues Set von Grundrechten für die Briten?
Ist das permanente öffentliche Herumgemecker an einem Verfassungsgesetz, mit dem […]
Continue reading >>Darf man einen Nazi feuern?
Diese Frage hatten in den letzten Tagen gleich zwei Gerichte […]
Continue reading >>Ja oder Nein zu einem unabhängigen Schottland
Die Schotten werden abstimmen, ob sie Briten bleiben wollen oder nicht. Das Abkommen dazu ist fertig.
Continue reading >>Menschenrechte als potenzielles Antisemiten-Tool?
Extreme Positionen wie die des Kölner Landgerichts in punkto Kriminalisierung […]
Continue reading >>Caring for the soul: authority, ethics and knowledge practices in British sharia councils
In Recht im Kontext’s Rechtskulturen Colloquium this Monday, 18 June […]
Continue reading >>
Prisoners’ Votes (Again) and the ‘Constitutional Illegitimacy’ of the ECHR
By COLM O’CINNEIDE The relationship between the UK and the […]
Continue reading >>
Wahlrecht für Gefangene: EGMR will die Wogen glätten
Der EGMR liegt, wie hier und anderenorts schon ad nauseam […]
Continue reading >>Executing the Laws
By DOUGLAS EDLIN Lethal Force and Legal Process According to […]
Continue reading >>
Reforming the European Court of Human Rights: The Draft Brighton Declaration
By NOREEN O’MEARA Efforts to reform of the European Court […]
Continue reading >>EGMR: Großbritannien zieht die Handschuhe aus
Die britische Regierung macht Ernst mit ihrer Ankündigung, ihren gegenwärtigen […]
Continue reading >>Watching “Sharia Business” At Close Quarter
By JULIE BILLAUD A global mega-city with a colonial past […]
Continue reading >>“Europe’s War on British Justice”
Mit dieser Schlagzeile warb gestern die Daily Mail um Leser […]
Continue reading >>Cameron, der Verfassungszocker
David Cameron hat in letzter Zeit nicht gerade Cincinnati-Kid-Qualitäten bewiesen: […]
Continue reading >>Es gibt in Edinburgh keine englische Königin
Schottland schickt sich an, über die Loslösung von Großbritannien abzustimmen. […]
Continue reading >>EGMR sendet Friedenssignal nach London
Die Briten haben es nicht einfach zur Zeit an der […]
Continue reading >>Letting the British go
We had this coming for a long time. At times, […]
Continue reading >>It takes a Brit…
… to tell off the British. Der neue Präsident des […]
Continue reading >>Was die Eurokrise und die Zukunft der EMRK miteinander zu tun haben
Ich komme gerade von einer sehr hochkarätig besetzten Konferenz des […]
Continue reading >>Wird Schottland das 28. EU-Mitglied?
Nächste Woche fahre ich für drei Tage nach Edinburgh, um […]
Continue reading >>Warum die britische “Bill of Rights”-Diskussion uns alle angeht
Die Briten haben in diesen Tagen Gelegenheit, sich zu einer […]
Continue reading >>Sticht Demokratie Menschenrechte?
Irre ich mich oder häufen sich in letzter Zeit die […]
Continue reading >>London brennt. Ist das politisch? Aber hallo
Man sieht die Bilder von den in den Himmel schlagenden […]
Continue reading >>Das Würgen der Briten an der Menschenrechtskonvention
Dass die Briten ihre Schwierigkeiten mit der Europäischen Menschenrechtskonvention haben, […]
Continue reading >>Zerfällt der nächste EU-Staat (und wäre das so schlimm)?
Gestern war nicht nur das Referendum über die britische Wahlrechtsreform, […]
Continue reading >>Großbritannien macht gerade einen großen Fehler
Im Guardian erleidet Timothy Garton Ash einen lesenswerten Tobsuchtsanfall angesichts […]
Continue reading >>Ein moderne(re)s Wahlrecht für die Briten
Apropos Großbritannien: Dort wird am Donnerstag per Referendum darüber entschieden, […]
Continue reading >>Großbritannien lehnt sich gegen EGMR auf
Wir haben ja unseren eigenen Ärger mit dem Europäischen Gerichtshof […]
Continue reading >>Großbritannien generalsaniert seine Verfassung
Kann man etwas reformieren, was es gar nicht gibt? Man […]
Continue reading >>UK Supreme Court: Wer ist Jude und wer nicht?
Der britische Supreme Court hat gestern ein Urteil gefällt, das […]
Continue reading >>
