Damian Chalmers

Losing citizenship and democratic authority in Europe

Robert Craig

Triggering Article 50 does not require fresh legislation

"Considerable public interest has recently been focused on the ‘trigger’ mechanism for exit from the EU which is set out in Article 50 of the Lisbon Treaty. Expert opinion has divided between those who believe that the power to trigger Article 50 rests with the Executive using the legal authority of the royal prerogative from the Crown with no further parliamentary involvement necessary and those who argue that fresh legislation is required to confer statutory authorisation on the Executive to do something which could render nugatory rights under the European Communities Act 1972 ('ECA'). An ingenious third way involving the Henry VIII clause in section 2(2) of the ECA has also been suggested. This note suggests that no fresh legislation is required and that the power to trigger Article 50 rests with the Executive but for very different reasons to those suggested by what might be termed the 'prerogative' camp ..."

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Insa Koch

A vote of no confidence in the people in power: we need local control!

When British citizens voted to leave the EU, the country changed forever. Overnight, Britain’s economic, legal and political life, governed by a supranational framework, was thrown up in the air. Much of the commentary has hurried to look into the future, asking what the referendum results will mean. Insa Koch argues that unless the focus can be redirected to the present and past, there is a danger that the Brexit vote will be misunderstood.

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Niamh Moloney

Financial Services, the EU, and Brexit: An Uncertain Future for the City? [German Law Journal Brexit supplement]

"The financial services sector is one of the most heavily regulated sectors of the modern economy, reflecting the need to protect the public interest in a strong and stable financial sector. The EU has, up to now, provided the framework within which UK regulation of the financial sector has been designed, applied, and supervised. The nature of the UK’s relationship with the EU following its exit from the EU has yet to be determined. But the consequences of the extraction of the UK from EU financial governance are likely to be disruptive in nature and long term in duration. This short note highlights some of the many implications from a regulatory perspective. ..."

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Jo Murkens

The High Court judgment on Article 50 is a proper drubbing for the government

The High Court has ruled that Parliament must be consulted before Article 50 is triggered and Britain begins the process of leaving the EU. Jo Murkens says the judgment was exemplary in its clarity and reasoning, and amounts to a major setback for Theresa May’s plans.

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The Great ‘Repeal’ Act will leave Parliament sidelined and disempowered

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Brexit against the wishes of Scotland and Northern Ireland would violate the UK’s constitutional settlement  [EUROPP blog, LSE]

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Westminster must choose between leaving the EU and retaining the UK

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Patrick O'Brien

The Democratic Legitimacy of Changing Your Mind: A Response to Richard Ekins [UK Constitutional Law Association blog]

"In his post of last week, Richard Ekins argues that political and legal elites should resist the urge to ‘treat other voters as fools or monsters or deny the outcome of the fair and legitimate decision-making process which they did not otherwise contest’. The many and varied legal and political arguments offering ways to soften, reverse or ignore the vote to leave the EU cannot avoid the central political fact that the result now has a huge weight of political legitimacy behind it. I want to sound a note of caution about the idea that in a democracy voters cannot change their minds. I think it is unlikely that a decision to remain could have democratic or political legitimacy after the referendum result, but for the reasons I offer here I believe that that is not quite the same as saying that it is impossible, or that debate to that end is improper."

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Jonathan Rickford and Robert Ayling

Brexit Referendum and Article 50 of the Treaty on European Union: A Legal Trap: the Need for Legislation

"Article 50 provides the only means for the UK to withdraw from the Union by agreement under the Treaty. But it is also a trap. A correct understanding of its meaning and implications is therefore of vital importance. The two-year 'drop dead' timeline which requires unanimity of the 27 Member States (MSs) for any extension of the period for negotiations between the UK and the EU, and the fact that there is no provision for withdrawing from the notification process once started. leaves the UK completely exposed in its negotiating position. The UK is bound to forfeit its Treaty rights irrevocably in advance of negotiations under the article: the Union is then completely free to give nothing in return."

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Michael Wilkinson

The Brexit Referendum and the Crisis of "Extreme Centrism" [German Law Journal Brexit supplement]

"Brexit exposes cleavages that will continue to pose problems not only for the political and constitutional future of the UK and the European Union but also for maintaining the entire edifice of liberal democracy. Careful dissection of the fissures that connect and disconnect national, European, material and ideological fault-lines will be required in due course. Many different meanings can and will be attributed to this event ..."

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