In light of the ongoing legal hearing on the triggering of Article 50, Piet Eeckhout, Professor of EU Law at UCL, examines Article 50 from an EU law perspective. He explores what the UK’s ‘constitutional requirements’ for leaving the EU entail, noting that Parliament has a role to play in any withdrawal decision.
The litigation concerning the triggering of Art 50 TEU is under way, with hearings this week and next. It is the constitutional case of the century. The government’s skeleton argument has been published. This reveals that one of the pillars of its defence is that the decision to withdraw from the EU has already been taken. Consequently, all that is in issue is the authority to notify the EU of that decision, and to start the two-year negotiation period provided for in Art 50. That, the government’s case goes, is a decision of high policy which is rightly in the government’s hands, and not in those of parliament.
Ronan McCrea, Barrister and Senior Lecturer in Law at UCL, argues that the UK could be under the jurisidction of the European Court of Justice for longer than many Brexiteers may care to imagine. Any withdrawal agreement negotiated under Article 50 has to comply with the basic constitutional norms of the EU legal order, including fundamental rights. This could have significant implications for the UK’s negotiating position, as well as the status of EU citizens living in the UK.
Those concerned with protecting human rights have been vocal in their concern that the Brexit process will lead to a reduction in human rights protection in the UK. Indeed, part of the case presented to voters in favour of Brexit was that leaving the EU would allow the UK to be free of the duty to comply with the EU fundamental rights norms, including Charter of Fundamental Rights and the possibly expansionist interpretation of that Charter by the Court of Justice of the EU. As with so many elements of the impossibly multifaceted and tangled process of Brexit, the reality may be less clear cut. It is in fact likely that any deal concluded under Article 50 will be subject to a degree of obligation to comply with the rights contained in the Charter and the fundamental elements of EU law, and indeed, and obligation to satisfy the Court of Justice that such compliance has occurred.
Ronan McCrea, Barrister and Senior Lecturer in Law at UCL, draws parallels between the political structure of the UK and the European Union and argues that, with the growth of independence movements in Scotland and Wales, the UK increasingly resembles a loose collection of sovereign nations.
The United Kingdom is to leave the European Union, partly in order to protect the right to self-government of the UK as a nation state as expressed through the sovereignty of the Westminster Parliament. Interestingly, the reaction to the decision to leave the EU reveals the degree to which through a combination of devolution with increased recourse to referendums, the United Kingdom has drifted into being a kind of voluntary grouping of sovereign nations that bears significant similarities to the European Union. Continue reading
Virginia Mantouvalou, Reader in Human Rights and Labour Law and Co-Director of the UCL Institute for Human Rights, looks at the implications for Brexit on the rights of EU citizens living in the UK in relation to the European Convention on Human Rights.
A few days after the referendum on EU membership of the European Union, Theresa May stated that she would not guarantee the rights of EU citizens in the UK. Her statements were supported by Philip Hammond, then the Foreign Secretary, who said that it would be ‘unwise’ or ‘absurd’ to guarantee rights of EU citizens to stay in the UK before negotiating with other Member States, and were also repeated in Parliament by James Brokenshire, the junior Home Office Minister. Mr Brokenshire was prepared to be slightly more reassuring, but only went so far as to say that there will be ‘no immediate change’ in the legal status of EU citizens in the UK. Many condemned this position as morally repulsive and politically problematic. In this piece I argue that the stance of the UK Government on the status of EU citizens in the UK may violate the European Convention on Human Rights (ECHR). European human rights law does not permit the treatment of people as bargaining chips. Continue reading
In parliamentary democracies referendums generate alternative, competing sources of legitimacy. This has been clearly demonstrated by the EU referendum result, with the public voting to Leave despite a clear parliamentary majority for continued membership. Nat le Roux, Strategy Director of The Constitution Society, discusses this paradox and suggests that it would not be unreasonable for some MPs to choose to vote against the invocation of Article 50.
In a parliamentary democracy, referendums are potentially destabilising because they generate alternative, competing, sources of democratic legitimacy. A majority of elected representatives may hold one view on a matter of major national importance. If a referendum demonstrates that a majority of the public hold the opposite view, which manifestation of democratic legitimacy should trump the other? Continue reading