28 March 2017

Policy Briefing Papers: Brexit Special

On the 29th March, Theresa May has triggered Article 50 TEU to start the UK’s withdrawal from the EU. This process is marred with uncertainty, both in terms of how the negotiations take place, and in terms of the impact of Brexit on diverse policy domains which are currently governed by the EU. In light of this topical and extremely important discussion, LSE Law is happy to announce a special issue of its Policy Briefing Series. Seven members of LSE Law – all specialists in their field – explain the process of negotiating Brexit as well as the impact of Brexit on UK constitutional law, trade relationships with the EU, financial services, competition law, privacy laws and the institutions of the EU. LSE Law wishes you happy reading.

To read the briefings, please click here


Patrick O'Brien

All for Want of a Metaphor: Miller and the Nature of EU Law [UK Constitutional Law Association blog]

"The judgments in Miller highlight the fact that the common law has never managed to arrive at a satisfactory intellectual framework for European law. I will focus first on Lord Reed’s dissent. On Lord Reed’s account, the situation is simpler than anyone who had observed UK and EU law for the past 45 years could have imagined. The UK takes a dualist approach to international law, and EU law is international law. Once this characterisation is accepted the case is over."

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

Niamh Moloney / Edmund Schuster

Brexit and Financial Services

Niamh Moloney

Prof Niamh Moloney further considers the impact of Brexit on financial governance in her recent article “International Financial Governance, the EU, and Brexit: the ‘Agencification’ of EU Financial Governance and the Implications” (2016 (17) European Business Organization Law Review pp.451-480) in which she speculates as to the potential impact of Brexit on the governance of the international financial market. In a forthcoming article “EU Financial Governance and Brexit: Institutional Change or Business as Usual?” (forthcoming (2017) European Law Review, she examines the EU-specific implications and considers how Brexit may shape the rules and also the institutional/supervisory structures of EU financial governance.

Professor Moloney also recently gave evidence to the House of Commons International Trade Select Committee for its Inquiry on UK Trade Options Beyond 2019. Issues discussed included the access of the UK financial services industry to the EU after Brexit and international competition in regulation. Information on the session is available here.

Professor Niamh Moloney and Dr Edmund Schuster also recently presented their research at an LSE event in Brussels on 'Britain and Europe: Towards Brexit?' Professor Moloney discussed her research on the issues raised for the UK financial market by Brexit, including in relation to ‘passporting’ and ‘equivalence’ and Dr Schuster presented his recent research for the European Commission (DJ Justice) on company law harmonization and the mobility of companies. Slides and podcasts from the event are available here.

Thomas Poole

Losing our Religion? Public Law and Brexit

Tom Poole

"Prerogative is the enemy of the people. This has been settled as matter of law for a very long time. The constitutional settlement of 1688 made a decision for responsible and representative government. We have had no constitutional moment of similar magnitude since. All constitutional changes – some very significant – have taken place within that foundational structure. The Bill of Rights treats prerogative as the antithesis of good government. Its primary target is a range of extra-legal powers hitherto asserted by the King, pride of place being given to the power to dispense with laws and the power to suspend Acts of Parliament. ...

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David Kershaw

Brexit: The Meaning of Votes and Mandates amid the Inadequacies of the British Constitution

David Kershaw

"Brexit means Brexit. We are told. But what does Brexit mean? Brexit means that the United Kingdom will not at some point be a member of the European Union. But apart from that truism, Brexit is meaningless. The vote of 52% of the UK electorate who chose to vote in favour of leaving the Union has no meaning, apart only from the fact that they wish to leave ..."

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Damian Chalmers

Losing citizenship and democratic authority in Europe

"The EU will continue to be perceived as authoritarian until it reforms its relationship with national citizenship and political community. ..."

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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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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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Simon Witney, guest teacher and lawyer at King Wood & Mallesons, has commented in the FT on private equity, noting that there would be opportunities for non-sterling denominated private equity funds.

Dr Jo Murkens has appeared on LBC to point out that MPs would still have to vote on Brexit. Dr Murkens has also blogged about the potential constitutional crisis with Scotland and Northern Ireland rejecting the vote; possible ways to remain in the union, and appeared on CNN, CBC, VRT (Belgium), Deadline on DR TV (Denmark), Deutsche Welle (Germany) and Bloomberg TV. In his article for the Evening Standard, he argues Brexit will not proceed, as no prime minister will willingly break up the UK. He has also been quoted in the Independent, Scottish Herald, and appeared on Good Morning Scotland. Dr Murkens appeared before the House of Commons Scottish Affairs Committee on 7 September 2016 giving evidence on Scotland's future relationship with Europe.

Dr Jo Murkens and guest teacher Sarah Trotter were also rapporteurs for 'The Implications of Brexit for Fundamental Rights Protection in the UK', part of the LSE Commission on the Future of Britain in Europe.

Professor Damian Chalmers discussed the triggering of Article 50, Brexit negotiations and the future of Europe in Newsweek. Along with Jo Murkens, he was also extensively quoted in a recent Evening Standard article on the government's Supreme Court Article 50 challenge.