06 November 2016
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 >>
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06 November 2016
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 >>
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06 November 2016
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 >>04 November 2016
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 >>04 November 2016
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 >>03 November 2016
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 >>
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03 November 2016
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 >>
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03 November 2016
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 >>02 November 2016
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 >>
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22 October 2016