��Ī - Constitutional Law

Syria airstrikes add another ‘exception’ to beleaguered parliamentary convention, say experts

fpjl2 — Mon, 30 Apr 2018 08:46:57 +0000

The recent intervention in Syria may add airstrikes to the expanding list of exceptions to the convention established to provide democratic oversight of UK military action through a parliamentary vote, say experts in international and constitutional law.

During research for a new book, launched today, the legal academics found that, in addition to broadly-defined ‘emergency’ or ‘secrecy’ exceptions, two specific types of military activity – the deployment of embedded Special Forces and unmanned drone strikes – had already been exempted from the convention.

Now, by unilaterally authorising the recent intervention in Syria, and justifying the action using language that further narrows the convention’s purview, the current government may have created a further exception for airstrikes – a cornerstone of modern warfare.

Drs Veronika Fikfak and Hayley J. Hooper, who conducted the research for their book at ��Ī’s Faculty of Law, say that “if the War Powers Convention continues to exist, we question whether it exists in any meaningful sense”.

They argue that increasing exemptions from the convention, combined with a flourishing “information asymmetry” between government and parliament, creates a real risk of another ‘Iraq moment’ in the near future.

The book Parliament’s Secret War traces the last century of Westminster decision-making during the build up to hostilities, with a focus on the legal debates following the establishment of the War Power Convention in the wake of the Iraq war.

Published by Bloomsbury, the book will be launched at Homerton College, ��Ī, this evening (30 April) with a Q and A session with both authors as part of the College’s 250 anniversary series of events.

“The idea that the War Powers Convention gives parliament political control over whether the UK goes to war has now been hollowed out to the point where any claim that elected MPs have a say on military action is essentially a deception of British civil society,” says Fikfak, a Fellow of Homerton College.

“The War Powers Convention initially looked like it might level the playing field between parliament and government. However, our analysis reveals repeated exceptions created by successive governments even prior to the recent unilateral strikes in Syria.”

The convention has its origins in the House of Commons vote sanctioning the Iraq invasion in 2003, although some argue this was a fait accompli given the thousands of troops already in the region.

Nevertheless, a convention requiring parliamentary support for armed conflict was solidified through a series of votes in the years following Iraq – most significantly with 2013’s decisive vote on Syria, when the government was defeated.

Heralded by the media as a milestone in British democracy, the convention sees a “yes or no vote” put to MPs, rather than the government of the day invoking Royal Prerogative: the traditional legal right to declare war in the name of the Crown.

Plans to enshrine the convention in law were shelved in 2016, although Labour leader Jeremy Corbyn has renewed discussions of a possible War Power Act since the recent Syria airstrikes.

The convention has, however, been a fixture of the Cabinet Manual – an official guide to the UK’s uncodified constitution – since 2011, with successive Defence Ministers recommitting to it both in principle and, to some extent, in practice.

Yet the recent circumvention of this potential check on power is arguably only the latest, as the convention has already been subject to “a myriad of exceptions” controlled by government – explored in depth by the new book.

For example, in 2015 a British member of Da’esh was killed by drones in Syria, despite parliament making it clear on two previous occasions that it did not support use of force in Syrian territory.

Justified by the then government as a ‘new departure’, and couched in language of ‘immediacy’ and ‘direct threat’, this was interpreted “generously” by the Joint Committee on Human Rights as an ‘emergency’ that didn’t breach convention – a precedent for the exception of drone warfare.

Also in 2015, British military took part in ground raids on Syrian territory with US forces. The government response was to state that the convention apparently “does not apply [to those] embedded in the armed forces of other nations”, despite the non-emergency situation.

The researchers argue that undermining of the convention is compounded by “selective disclosure” of vital information to parliament, often under the guise of state secrecy. This was the current government’s primary justification for disregarding the convention with the recent Syrian strikes.

“In the wake of Iraq, the position that ‘Whitehall knows best’ is constitutionally untenable,” says Hooper, now a Fellow at Christ Church College, Oxford. “Sources of intelligence should never be revealed, but reports of the Joint Intelligence Committee could be considered by parliamentarians in secure premises.”

The researchers argue that the nature of war has changed, now limited for the most part to drone and air strikes. “To exclude the majority of military interventions from parliamentary scrutiny risks undermining the accountability of government,” says Hooper.

Adds Fikfak: “In addition to the non-application of the convention to Special Forces deployments, the embedding of British forces in foreign countries’ armies, and the use of drones, there is now room for significant doubt as to whether the War Powers Convention applies to air strikes.”

A new book launching in ��Ī today explores the parliamentary convention intended to allow MPs a vote on military action. The authors say that the intervention in Syria provides just the latest of several ‘exceptions’ – chipping away further at a convention that may no longer meaningfully exist.

Our analysis reveals repeated exceptions created by successive governments even prior to the recent unilateral strikes in Syria

Veronika Fikfak

Justine Rho/RAF Mildenhall

Royal Air Force Tornado GR4 receives fuel

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Yes

Listen: ��Ī experts talk post-Brexit options for the UK

fpjl2 — Tue, 04 Apr 2017 13:02:30 +0000

The one day workshop was run by the Centre For Business Research (CBR) and the ��Ī Public Policy Strategic Research Initiative. On the day, the CBR's Boni Sones sat down with some of the experts to get their take on the major issues facing Brexit Britain. You can listen to their conversations below:

Prof Simon Deakin: Social policy post Brexit and workers’ rights

Simon Deakin is a Professor of Law and the Director of the Centre For Business Research. He specialises in labour law, private law, company law and EU law. His research is concerned, more generally, with the relationship between law and the social sciences.

To what extent we remain outside the Single Market is going to be a matter of degree. The current government’s decision for a deep and comprehensive trade agreement actually takes us back in to much of the single market, and we will be bound going forward to single market rules.”
Simon Deakin

Dr Kirsty Hughes: The right to remain of EU nationals

Kirsty Hughes is a University Lecturer in Law specialising in Human Rights and Public Law. She lectures on Civil Liberties, European Human Rights Law and Constitutional Law among other areas, and has a forthcoming book on Privacy Theory.

The suggestion that residency can be used in withdrawal negotiations does seem to be overstating matters given that residency is preserved under human rights law. It will be unlawful for us to expel EU nationals, and given therefore that it would be unlawful it seems particularly insensitive and unfair for EU nationals to be living in a state of uncertainty which is completely unnecessary.
Kirsty Hughes

You can read Dr Hughes's paper on the right to remain of EU nationals in full here.

Dr Michael Waibel: The financial cost to the UK of leaving the EU

Michael Waibel is a University Lecturer and Deputy-Director of the Lauterpacht Centre for International Law. He researches economic law with a particular focus on finance and the settlement of international disputes.

The House of Lords’ assessment as a backdrop to these Brexit negotiations is that there is no legal liability. In purely legal terms I think the House of Lords has got it wrong. The UK is in principle liable for a share of the EU’s budget commitments that the UK made as a member of the EU.
Michael Waibel

You can read Dr Waibel's paper on the financial cost of leaving the EU in full here.

Dr Lorand Bartels: The WTO option

Lorand Bartels is a Reader in International Law, and teaches international law, WTO law and EU law. He was appointed as a Specialist Adviser to the House of Commons Select Committee on International Trade at the end of last year.

I think legally nothing changes, in terms of the underlying rules and rights and obligations. At the moment the government’s position, and I think it is absolutely correct, is that the UK has existing rights and obligations in the WTO but you don’t see them at the moment because it is exercised via the EU.
Lorand Bartels

Dr Graham Gudgin: A critique of treasury estimates of the impact of Brexit

Graham Gudgin is currently Research Associate at ��Ī's Centre For Business Research and part-time Senior Economic Advisor with Oxford Economics. He has been a Special Adviser to the Northern Ireland First Minister on economic policy.

Over the past 15 years we have created about 3 million extra jobs in the UK, but that has been associated with a rise of about 85 per cent of people born from abroad, and a high proportion of these work on or at the minimum wage. That is not great for productivity...
Graham Gudgin

Prof David Howarth: The UK Constitution, the White Paper and the proposed Repeal Act

David Howarth is a Professor of Law and Public Policy in the Department of Land Economy. He served as the Member of Parliament for ��Ī between 2005 and 2010.

A lot of this process is far too short. Designing and drafting new law is not easy. It can’t be done by amateurs, it can’t be done by politicians on the hoof on the floor of the House of Commons. It needs to be thought through and there is just not enough time to think it through.
David Howarth

Dr Martin Steinfeld: The Free Movement of People and EU law

Martin Steinfeld is an Affiliated Lecturer in EU law. He was previously a barrister at the Chancery Bar and worked at both the European Parliament and the Court of Justice of the European Union.

There are many rights that EU citizens exercising their rights to free movement have had for many years. That is a matter for huge discussion on a domestic level in terms of what pieces of legislation may or may not flow to replicate the rights they already have.
Martin Steinfeld

Prof Catherine Barnard, Prof John Bell and Prof Brendan Simms: The White Paper; Brexit and Devolution; the Geopolitics of Brexit

Catherine Barnard is a Professor of European Union Law and Fellow of the UK in a Changing Europe programme.
John Bell is a Professor of Law and Director of the Centre for Public Law.
Brendan Simms is Professor in the History of International Relations in the Department of Politics and International Studies.

The actual logistics of disentangling ourselves from the EU are incredibly large and it will take a considerable period of time – certainly more than the two years the government thinks it can be done in.
Catherine Barnard

Dr Julian Ghosh: Brexit and our tax laws

Julian Ghosh is a QC and Bye-Fellow at Peterhouse, ��Ī. His practice covers all areas of taxation. He is particularly well known for his corporate work and that involving European taxation issues.

[Business] could say you said we were subject to EU law previous to this date but this post two year date decision tells us what that law actually is, so see you in court. It is hopeless for the government and business.
Julian Ghosh

On 30 March, the day after the 'triggering' of Article 50 began the official Brexit process, a group of ��Ī lawyers, economists, historians and tax experts gathered in Peterhouse.

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Yes

Opinion: The Great Repeal Bill White Paper in 20 tweets

fpjl2 — Fri, 31 Mar 2017 09:17:59 +0000

The tweets have been collected below. A longer piece from Prof Elliott on the White Paper and the key areas of constitutional law and politics it engages, is available on his blog site Public Law for Everyone.

The White Paper

The Great Repeal Bill White Paper has been published. It is available here: https://www.gov.uk/government/publications/the-great-repeal-bill-white-paper

— Mark Elliott (@ProfMarkElliott) March 30, 2017

General approach

No major changes beyond what's necessary, but will accommodate possibility of functioning statute book if no deal. Hard circle to square. pic.twitter.com/8rifGZpsoe

— Mark Elliott (@ProfMarkElliott) March 30, 2017

The three key elements of the Great Repeal Bill:

Repeal ECA

Convert EU law

'Correct' the statute book. pic.twitter.com/pJjOpbJqrN

— Mark Elliott (@ProfMarkElliott) March 30, 2017

EU law and UK law

Directly applicable EU law will be converted into domestic law.

Domestic law that already gives effect to EU law will be preserved. pic.twitter.com/jz6b023ivU

— Mark Elliott (@ProfMarkElliott) March 30, 2017

The case law of the Court of Justice of the EU

UK courts interpreting domesticated EU law will be required to do so 'by reference to ' CJEU case law as it stands on Brexit Day. pic.twitter.com/bauQZDeKn9

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Pre-Brexit Day CJEU case law will have same domestic status in terms of precedent as UK Supreme Court judgments. Music to Brexiters' ears. pic.twitter.com/ViHATAB5qL

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Supremacy of EU law

'General supremacy' of EU law to be ended: new UK legislation will take priority over EU-derived law that is preserved by Great Repeal Bill. pic.twitter.com/yTwKlYjr5h

— Mark Elliott (@ProfMarkElliott) March 30, 2017

But EU-derived law will continue to take priority over pre-Brexit Day UK law, including Acts of Parliament. More music to Brexiters' ears. pic.twitter.com/GQ2MlwDbFt

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Delegated powers

'Very significant proportion' of EU-derived law contains provisions that will not be workable post-Brexit. The solution? Delegated powers. pic.twitter.com/OLHIA4KHnZ

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Delegated powers will enable statute book to be 'corrected'; for problems to be 'rectified'. Devil is in detail of what those terms mean. pic.twitter.com/o1mMJ7D5bD

— Mark Elliott (@ProfMarkElliott) March 30, 2017

These are circumstances in which Government says secondary legislation will be justified. In combination, these circumstances are very broad pic.twitter.com/ZOaLr0bCzH

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Delegated power not to be used for policy changes unconnected by deficiencies in EU-derived law. Implies some policy changes *will* be made. pic.twitter.com/3A2RUGs05C

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Up to 1,000 statutory instruments (piece of delegated legislation made by Ministers) will be needed to make EU-derived law work post-Brexit. pic.twitter.com/KW4Lib2Emy

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Parliamentary scrutiny

'Right balance' must be struck between need to 'speed' & 'scrutiny'. Existing processes to be used. No plan for super-affirmative procedure pic.twitter.com/VkthcjCSxW

— Mark Elliott (@ProfMarkElliott) March 30, 2017

White Paper is 'beginning of a discussion' about approach to scrutiny of delegated powers. Govt's thinking looks extremely undeveloped here. pic.twitter.com/7tbXD3XpFL

— Mark Elliott (@ProfMarkElliott) March 30, 2017

White Paper fails to engage in meaningful way with HL Constitution Committee's detailed proposals for scrutiny. See https://publiclawforeveryone.com/2017/03/07/the-great-repeal-bill-and-delegated-powers/

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Devolution

Just over one page in the White Paper on 'interaction with the devolution settlements'. pic.twitter.com/D9AiGF0xWZ

— Mark Elliott (@ProfMarkElliott) March 30, 2017

No guarantee that repatriated EU powers will go to devolved institutions, even in relation to subject-areas that are currently devolved. pic.twitter.com/i1ZxCpN1No

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Implication seems to be *new* reserved matters will be carved out of existing devolution settlements. Raises some Qs of const'l politics.

— Mark Elliott (@ProfMarkElliott) March 30, 2017

On other hand, even if there are some new reservations to devolved competence, Govt anticipates overall net expansion of devolved competence pic.twitter.com/QMPP24b3yk

— Mark Elliott (@ProfMarkElliott) March 30, 2017

Mark Elliott, Professor of Public Law, posted a number of tweets yesterday extracting key paragraphs from the Government’s White Paper on the Great Repeal Bill and offering some preliminary thoughts.

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Yes

Opinion: The Full Brexit

fpjl2 — Tue, 17 Jan 2017 14:51:15 +0000

The Prime Minister’s much-anticipated speech on her Government’s objectives for the UK’s withdrawal from the European Union confirms what was increasing likely to be the political direction of travel. The UK will not be seeking a relationship with the EU like that giving rise to the European Economic Area agreement between the EU and three EFTA states.

Indeed, it will not seek any type of ‘association agreement’; helpful, given that such agreements require the unanimous consent of all Member States’ governments as well as ratification in all EU states. Instead what the Prime Minister wants is something ‘bespoke’ and British and which is in tune with her central theme of building a truly ‘global Britain’.

What is noteworthy about the speech is that it purports to map an exciting new future for the UK that encompasses not just its future trading relationship with the EU, but also the Commonwealth, the Gulf states and – inspired by the recent words of President-elect Trump – the United States. And a stronger Britain is not to be at the expense of the EU, with the UK wanting the EU to be a success, just not with the UK as a member. All of which is remarkably resonant of UK policy in the 1950s when the UK decided not to join the fledgling EEC because it sought the bigger prize of global trade rather than a compromise of regional economic integration. In respects it is distinctly Churchillian: happy to let true Europeans forge an economic, and maybe even political, union just as long as the UK looks on rather than participates.

Important details remain to be settled including what type of customs arrangements would reduce customs barriers while still permitting the UK to enter into its own free trade deals with non-EU countries. The type, scope and duration of any transitional arrangements seems likely to form a key strand of future negotiations.

The Prime Minister made clear that the final deal will be presented to both Houses of Parliament and will be voted upon. This engagement with Parliament is important in seeking to restore the authority of Parliament as the body to whom government accounts. This is especially significant given calls by some for a second referendum to endorse the final deal. By rejecting another referendum, and by giving Parliament a vote at the end of the process, Theresa May is trying to bring domestic political institutions back to the centre of decision-making and, in so doing, to try and put the populist genie back in the referendum bottle.

What is also striking about the speech is Theresa May’s clear intention of steadying the ship with the iron grip of Unionism. Indeed, her speech started with the pledge to put ‘the preservation of our precious Union at the heart of everything we do’. So no special deal for Scotland and no differentiated Brexit. All that is on the menu is the Full British Brexit, complete with HP sauce and a solid 1950s Formica table.

Kenneth Armstrong is a Professor of European Law and heads up the Centre for European Legal Studies. He writes a blog: Brexit Time.

The Director of ��Ī's Centre for European Legal Studies offers his initial reaction to the Prime Minister's address

Her speech started with the pledge to put ‘the preservation of our precious Union at the heart of everything we do’. So no special deal for Scotland and no differentiated Brexit.

Kenneth Armstrong

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Yes

Brexit: High Court ruling on Article 50 explained

fpjl2 — Thu, 03 Nov 2016 13:41:38 +0000

"For some, today’s ruling is a victory for parliamentary democracy. For others, unelected judges stand in the way of the UK’s withdrawal from the EU. If the Supreme Court gets the final say, voters may still wonder whether their voice matters at all," says Kenneth Armstrong, Professor of European Law from ��Ī's CELS.

For Armstrong, the key aspects of the judgment are:

It is impermissible for the Prime Minister to invoke the Royal Prerogative[i] as legal authority for a notification to be sent under Article 50 of the Treaty on European Union, to begin the process of withdrawing the UK from the EU.
The effect of withdrawal will be to remove or limit the rights created by EU law and which are given effect in UK law via the European Communities Act 1972.
Neither as an interpretation of the European Communities Act, nor of constitutional principle can the Executive by Royal Prerogative alone remove or limit rights protected in domestic law.
The Referendum Act 2015 – in formal legal terms – only made provision for an advisory referendum. It did not give statutory authority for the triggering of Article 50.

"The High Court was asked by the claimants to limit the power of Theresa May to begin the Article 50 withdrawal process. Requiring the Prime Minister to obtain legislative authorisation from Parliament was contested by the Government on the basis that the electorate had given the Government a clear instruction to leave the EU in the referendum held on 23 June 2016," says Armstrong.

"However, while the outcome of the referendum has given the Government a political mandate to withdraw from the EU, the legal power to notify must be exercised within legal limits. The High Court has concluded that where an exercise of the Royal Prerogative would remove legal rights, derived from EU law but made available in domestic law by Parliament through the European Communities Act, only Parliament can legislate for such rights to be removed."

The case was brought by Gina Miller, an investment manager (the ‘lead claimant’) together with Mr Deir Dos Santos, a hairdresser, both UK citizens resident in the UK. Their claim was supported by a crowd-funded claim – the so-called ‘People’s Challenge’ – in the name of Graeme Pigney and other UK citizens resident in different parts of the UK and in other EU states.

An appeal by the Government to the UK Supreme Court is likely, says Armstrong. Following the recent ruling of the High Court in Belfast dismissing claims that the Prime Minister’s power to trigger Article 50 was limited by the terms of the Northern Ireland Act 1998 and the Belfast ‘Good Friday’ Agreement, the solicitor for Raymond McCord – whose son was murdered by paramilitaries and who is one of the claimants – has also indicated that his case will be appealed to the UK Supreme Court.

"Before today’s ruling there had been some suggestion that if the judgment had gone against the Government it may not have continued with an appeal to the Supreme Court," says Armstrong. "Today’s judgment and the decision to appeal the Belfast High Court judgment has made it more likely that the Supreme Court will have the final say."

The claimants argued that the Article 50 process once triggered was irrevocable. In a recent interview with the BBC, Lord Kerr of Kinlochard – credited with authoring the text of what is now Article 50 – said that the process was revocable. As a question of EU law this could require an authoritative interpretation by the EU’s top court, the European Court of Justice.

"The High Court seems to have accepted the idea – widely contested by others – that the Article 50 process is irrevocable. As a question of the interpretation of EU law, this could give rise to a request for an interpretation of Article 50 from the Court of Justice," says Armstrong.

"But the Supreme Court may try and avoid asking the European Court for a ruling, not just because it will delay matters, but also because some will object to the idea that a European court will have a say."

The Prime Minister had already conceded that there would be a parliamentary debate without a vote. And Parliament will have to give its approval at the end of the negotiations before any formal agreement between the EU and the UK can be ratified. Following the High Court’s ruling, Parliament will have a vote on authorising the Prime Minister to trigger Article 50.

Adds Armstrong: "The problem for the Government is that it will want the legislative authorisation from Parliament to be quick and wholly procedural. For MPs and Lords, however, this is a chance to try and get the Government to reveal more of its Brexit negotiating position. It would be a constitutional crisis for Parliament to refuse to authorise notification and to ignore the result of the referendum. This limits how far Parliamentarians can push their demands."

[i] The Royal Prerogative refers to one of the sources of legal authority accepted by the courts through which the Crown and Ministers of the Crown may take decisions. In modern times, these prerogative powers are typically exercised by government ministers but over time, they have been removed or limited by Acts of Parliament which instead provide the legal authority for ministers to act. The power to make and ratify treaties falls within the Royal Prerogative.

In a landmark constitutional judgment handed down today, the High Court has put a stumbling block in the way of the Prime Minister’s plan to trigger Article 50 by the end of March 2017. Professor Kenneth Armstrong from the Centre for European Legal Studies goes through the ruling.

For MPs and Lords, this is a chance to try and get the Government to reveal more of its Brexit negotiating position

Kenneth Armstrong

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Yes

Brexit: Listen to experts from ��Ī and beyond discuss how, why and what next for Brexit Britain

fpjl2 — Wed, 02 Nov 2016 12:40:50 +0000

The ��Ī recently held a week-long series of Brexit talks and discussions, featuring senior experts in law, politics, history, science and economics from ��Ī and beyond.

The aim was to engage both University students and the local community in debates on how Britain moves towards departure from the European Union in the wake of June’s referendum.

You can listen to some of the talks below, or download from iTunesU here.

How Did We Get Here?

Tuesday 18th October

Robert Tombs, Professor of Modern European History at ��Ī's Faculty of History

Robert Tombs is the author of a recent epic history of England, and a renowned expert on nineteenth-century French political history and the relationship between the French and the British. During the EU Referendum campaign, he was a signatory on a letter produced by ‘Historians for Britain’, which supported a Leave vote, and has written about the future of the UK post-Brexit.

Dr Victoria Bateman, Fellow and College Lecturer in Economics at Gonville & Caius College, ��Ī

Victoria Bateman is an economic historian at ��Ī, and a Fellow at the Legatum Institute think tank. Her current research focuses on the European economy from early-modern times to the present. Victoria has called for a sexual revolution in economics due to a lack of women in the discipline, and wrote articles in favour of a Remain vote in the run-up to the EU Referendum. She tweets at @vnbateman.

Dr Chris Bickerton, University Lecturer in Politics at POLIS and Official Fellow at Queens’ College, ��Ī

Chris Bickerton’s research focuses on the dynamics of state transformation and the challenges facing representative democracy in Europe. He has written a recently published book called The European Union: A Citizen’s Guide. During the run-up to the EU Referendum, Chris wrote in favour of a Leave vote, making the left-wing case for Brexit. He tweets at @cjbickerton.

Key Issues for the UK and EU Post-Brexit

Wednesday 19th October

Coen Teulings, Professor of Labour Economics and Industrial Relations at ��Ī’s Faculty of Economics

As well as holding the Montague Burton Chair at ��Ī, Coen Teulings is a Professor of Economics at the University of Amsterdam. He has written extensively about wages and income inequality, and spent seven years as the Director of the Central Planning Bureau — the Netherlands’ official economic forecasting agency. He has talked publicly about the risks posed by Brexit to free trade.

Athene Donald, Professor of Experimental Physics at ��Ī’s Cavendish Laboratory and Master of Churchill College

Athene Donald has served on the University’s Council and as its gender equality champion. She was appointed a Dame Commander of the British Empire in 2010, and Master of Churchill College in 2013. Athene wrote and talked extensively on the dangers that a Leave vote posed for UK science during the run-up to the EU Referendum. She is a regular blogger, and tweets at @AtheneDonald.

Charles Clarke, former Home Secretary

Charles Clarke is a Visiting Professor at the Policy Institute of Kings College London. He was MP for Norwich South from 1997 to 2010, and served as Home Secretary between 2004 and 2006 in Tony Blair’s Labour Government. During the run-up to the EU Referendum, Charles co-authored a report warning that intelligence relationships would be damaged by a Leave vote.

Process and Politics of the UK Leaving the EU

Thursday 20th October

David Runciman, Professor of Politics and Head of Department at POLIS and Fellow at Trinity Hall, ��Ī

David Runciman’s current research projects include the Leverhulme-funded Conspiracy and Democracy project and Future of Intelligence centre. In 2013, he published the book The Confidence Trap, a history of democratic crises since WWI. David hosts the weekly podcast Talking Politics from his ��Ī office, and has written that the Referendum vote shone a light on the education divide in democracy.

Mark Elliott, Professor of Public Law at the Faculty of Law, and Fellow at St Catharine’s College, ��Ī

Mark Elliott has written a number of books on public law, and is Legal Adviser to the House of Lords Constitution Committee. Mark writes a highly regarded blog called Public Law for Everyone, on which he analyses many of the legal issues surrounding the triggering of Article 50 and Theresa May’s Great Repeal Bill. Mark tweets at @ProfMarkElliott, and the slides from this talk are available at his blog.

Global Britain? The Future of British Trade after Brexit

Thursday 20th October

The Rt. Hon. Greg Hands MP, Minister of State in the Department for International Trade, delivered this year’s Alcuin Lecture at ��Ī’s Department of Politics and International Studies (POLIS). Greg was appointed to his current position by Theresa May in July 2016, where he serves as number two to Secretary of State Liam Fox. He tweets at @GregHands.

The UK and Brexit: How, Why and Where Now?

Friday 21st October

Matthew Elliott, Head of Vote Leave

Matthew Elliott is the former Chief Executive of the Vote Leave campaign. He is now Editor-at-Large of BrexitCentral, recently launched with the aim of “promoting a positive vision of Britain after Brexit”. He was a founder and former Chief Executive of the political think tank The TaxPayers’ Alliance. Matthew tweets at @matthew_elliott.

Catherine Barnard, Professor of European Union Law and Employment Law at the Faculty of Law, and Fellow of Trinity College, ��Ī

Catherine Barnard is a leading expert on EU internal markets and employment law, publishing extensively in these fields. She is a Senior Fellow of the ESRC’s UK in a Changing Europe initiative, and is jointly leading the EU Migrant Worker research project. Catherine regularly commented in the media during and after the EU Referendum. She has recently written that there could be free movement of workers in any Brexit deal. Catherine tweets at @CSBarnard24.

Jonathan Portes, Principal Research Fellow at the National Institute of Economic and Social Research

In addition to his role at the NIESR, Jonathan Portes is also a Senior Fellow of the UK in a Changing Europe initiative. Previously, he served as Chief Economist at the Cabinet Office. Jonathan’s new book, 50 Capitalism Ideas You Really Need to Know, has just been published. During the run-up to the EU Referendum, he wrote on the misrepresentation of migration by sections of the media. Jonathan tweets at @jdportes.

Anand Menon, Professor of European Politics and Foreign Affairs at King’s College London

Anand Menon is the Director of the UK in a Changing Europe initiative, and has written widely on many aspects of EU politics and policy and on UK-EU relations. As part of the initiative, he recently led on a report suggesting that “Brexit has the potential to test the UK’s constitutional settlement, legal framework, political process and bureaucratic capacities to their limits”. Anand tweets at @anandMenon1.

Listen to some of the talks that were given as part of the University's 'Brexit Week' series, which took place from 18 - 22 October.

Ed Everett

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Yes

Licence type:

Attribution

Law in Focus: 'Brexit: Legally and constitutionally, what now?'

fpjl2 — Fri, 24 Jun 2016 15:52:32 +0000

In the early hours of 24 June 2016, the result of the UK referendum on EU membership was announced. By a narrow but clear majority the vote was to leave the European Union. This result has begun a chain of seismic political consequences in UK and the EU, and will have widespread consequences for the law and constitution in the UK.

In this video, Mark Elliott assess the immediate impact of the result.

Professor Mark Elliott is a Professor of Public Law at the ��Ī and a Fellow of St Catharine's College. His main research interests are in the fields of constitutional and administrative law. He writes a blog: Public Law for Everyone. This video was based on a recent post.

In this video, Professor Mark Elliott from the Faculty of Law discusses some of the key legal points that will be critical in the Brexit process.

Brexit: Legally and constitutionally, what now?

Prof Mark Elliott

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Yes

Article 50 is ‘only credible way’ for Brexit, says leading EU law expert

fpjl2 — Tue, 21 Jun 2016 08:43:00 +0000

The ‘roadmap’ released by Vote Leave last week claims that triggering Article 50, the formal mechanism for leaving the EU, would not be the only legal option in the event of a Brexit vote, citing alternatives of the ‘Greenland example’ or use of international law.

An analysis of the roadmap by Kenneth Armstrong, ��Ī Professor of European Law, questions the credibility of these claims, which he describes as either “legally implausible” or “politically less attractive” than Article 50.

He also argues that Vote Leave’s proposed legislation to diminish EU laws within the UK during withdrawal negotiations may actually weaken the sovereignty of the Westminster Parliament, as it would provoke direct constitutional challenges from the UK’s devolved governments as well as UK courts.

The analysis is published as a working paper on the University’s Centre for European Legal Studies website.

Under Article 50, as set out in the Lisbon Treaty, the UK would remain an EU member state for two years while negotiations take place. There is a possibility for the timescale for negotiations to be extended, says Armstrong, but any EU state could veto any extension forcing the UK into a take-it or leave-it dilemma as the clock runs down.

Vote Leave argue that Brexit could utilise alternative legal procedures to extricate the UK from the EU, citing the example of Greenland’s EU withdrawal, or using the Vienna Convention of international treaty law.

However, both of these supposed options predate Article 50, which would now override them, says Armstrong. In addition, the Greenland example doesn’t hold up, as it was not a Member State in its own right, but a ‘constituent territory’ of Denmark. It would also mean invoking Article 48, which would require the unanimous agreement of every member state (unlike Article 50), and so create veto opportunities.

“It is simply not obvious why Vote Leave would consider this to be a viable or useful alternative to the Article 50 process itself,” said Armstrong.

The 1969 Vienna Convention of international law sets out a framework for negotiation and termination of treaties across the globe, and Vote Leave argue that this earlier international agreement also makes it possible to leave the EU.

However, the Vienna Convention only applies to treaties of other international organisations, such as the EU, “without prejudice to any relevant rules of the organisation”, such as Article 50.

“There is simply no way that the European Court of Justice would permit the autonomous legal order of the EU and its established mechanism of Article 50 to bend to international law in this manner,” said Armstrong.

“The clear conclusion is that Article 50 is the correct legal basis for the conduct of a withdrawal process. Neither the experience of Greenland nor the Vienna Convention casts any doubt on that conclusion,” he said.

Vote Leave’s roadmap also includes a proposed Bill to deviate from EU laws during withdrawal negotiations, to be enacted by 2020. The proposed Bill includes the power to remove EU citizens deemed to be “not conducive to the public good”, and a reigning in of the EU Charter of Fundamental Rights: the section of EU law that concerns human rights.

Armstrong points out that any proposal to introduce a version of this Bill in the current parliamentary session would not just encounter significant obstacles in both the Commons and the Lords, but, if enacted, would create constitutional conflicts between the devolved governments of the UK and the Westminster Parliament.

“It is at least arguable - and one would expect the Scottish government, for example, to argue - that any attempt to limit the EU Charter of Fundamental Rights would require the consent of the devolved parliaments, as otherwise possible legal action against ministers in devolved governments could occur for acting in breach of EU law,” said Armstrong.

He also points out that, while the UK remains an EU member state, which it will do for at least two years following Brexit, the UK courts will be bound by EU laws. Any amendment to the European Communities Act, which establishes the supremacy of EU law, would bring UK courts into a constitutional conflict between obligations under EU law with those under domestic law.

“It is simply not obvious how any given judge, or any given court, would seek to resolve that conflict. Either way, it would antagonise and politicise the judiciary in a manner that many would find unacceptable and could, paradoxically, give rise to judicial challenges to parliamentary sovereignty,” said Armstrong.

“Far from restoring the sovereignty of parliament, its sovereignty could be brought into direct constitutional challenge.”

More videos featuring experts from the ��Ī Centre for European Legal Studies on key EU Referendum questions can be viewed here.

��Ī law professor says Article 50 is the only legal mechanism for Brexit, countering assertions by Vote Leave ‘roadmap’ that Article 50 is “not the sole lawful means”. He says the roadmap’s proposals for ‘emergency’ legislation during exit negotiations could actually diminish rather than restore Westminster’s sovereignty.

Far from restoring the sovereignty of parliament, its sovereignty could be brought into direct constitutional challenge

Kenneth Armstrong

Abi Begum

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