Brexit | On why, as a matter of law, triggering Article 50 does not require Parliament to legislate

In his resignation statement, David Cameron took it to be the case that triggering the UK’s formal withdrawal from the EU under Article 50 of the Treaty on European Union is a matter for the Prime Minister (or, more specifically, the next Prime Minister). Article 50, about which I have written in another post, provides that once a Member State has decided to withdraw from the EU, it must communicate its intention to leave to the European Council, thereby triggering a two-year negotiation period. A great deal has been written recently about when — and even whether — the UK should … Continue reading Brexit | On why, as a matter of law, triggering Article 50 does not require Parliament to legislate

Brexit | Can the EU force the UK to trigger the two-year Brexit process?

There has been a great deal of discussion over the last couple of days about whether the European Union can force the United Kingdom to begin the two-year exit process set out in Article 50 of the Treaty on European Union. So: can the EU make the UK do that? The short answer is “no”. Below is a slightly longer answer, and an explanation of why the UK Government – legally, at least – is in the driving seat on this matter. Although there is more than one legal basis on which Brexit could be accomplished, the most likely mechanism … Continue reading Brexit | Can the EU force the UK to trigger the two-year Brexit process?

Brexit | A new Prime Minister, or a snap election?

The Prime Minister’s failure to secure a vote in favour of continued EU membership raises obvious questions about both his future and his Government’s. Can the Prime Minister be changed without a general election? And in what circumstances would an early election be possible? Changing the Prime Minister independently of a general election is a straightforward matter — it happened, in decidedly less dramatic circumstances, when Gordon Brown took over from Tony Blair in 2007. Now that we know David Cameron is going to resign, the appointment of a new Prime Minister will be a matter for the Conservative Party and … Continue reading Brexit | A new Prime Minister, or a snap election?

Brexit | Legally and constitutionally, what now?

Roughly half of the country is reeling this morning from the  news that the people of United Kingdom have voted — by a narrow but clear majority — to leave the European Union. There is a great deal to be said about what might happen next, and I expect to post regularly as events unfold about the legal and constitutional aspects of the Brexit saga. (And it will be a saga.) But, for now, I will confine myself to five brief thoughts. First, the markets may be in freefall, but the UK remains a member of the EU this morning. It is therefore … Continue reading Brexit | Legally and constitutionally, what now?

Brexit | “Vote leave, take control”? Sovereignty and the Brexit debate

The following article was published — on the day of the UK’s EU referendum — in German in the print and online editions of the Frankfurter Allgemeine Zeitung. It is reproduced here in English, in a lightly amended form, with permission. I am very grateful indeed to Alexander Schafer for his work on the German translation of the piece. The debate about the UK’s membership of the European Union has turned in large part upon the notion of control, “vote leave, take control” being the pro-Brexit campaign’s mantra. The idea that there has been a loss of control, and that the UK is increasingly governed from Brussels … Continue reading Brexit | “Vote leave, take control”? Sovereignty and the Brexit debate

The 2016 Queen’s Speech and the Constitution

This year’s Queen’s Speech touches on two possible constitutional reform measures. (I pass over the Wales Bill, which was published in draft in October 2015.) The first concerns the replacement of the Human Rights Act 1998 with a “British Bill of Rights”, while second concerns the sovereignty of Parliament and the “primacy” of the House of Commons. If implemented, these measures would be highly significant. But the signs are that, for the time being anyway, they may amount to very little in practice — not least because the Government’s thinking in relation to them appears to be undeveloped to say … Continue reading The 2016 Queen’s Speech and the Constitution

Judicial Power’s 50 “problematic” cases and the limits of the judicial role

The Judicial Power Project has published a list of 50 “problematic” cases. It makes for interesting reading. The aim of the Judicial Power Project is to address the “problem” of “judicial overreach” which, it is said, “increasingly threatens the rule of law and effective, democratic government”. It is odd, therefore, to find on Judicial Power’s list of 50 “problematic” cases Liversidge v Anderson — which is criticised by the editors of the list as showing “excessive deference to the executive’s wide discretionary powers in wartime” and for “giving no effect to a statutory provision requiring the Home Secretary to have … Continue reading Judicial Power’s 50 “problematic” cases and the limits of the judicial role