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johnson on brexit:”the great liberal project of the age” February 14, 2018

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The web page where the speech appears states “Delivered on:14 February 2018 (Transcript of the speech, exactly as it was delivered).” But I imagine that the Foreign Secretary did not in fact say “[political content removed].” I wonder what that political content was that is omitted from this “exactly as it was delivered” transcript. And this makes me wonder (as if I didn’t already) how much of what is left in is to be trusted. It’s mostly more careful than I expected, but it’s also all political rhetoric and magical thinking.

uk “technical note” on international agreements: let’s all eat cake February 8, 2018

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According to the technical note:

The UK proposes that these third country agreements which apply to the UK in its capacity as an EU Member State (as referred to at paragraph 15 of the EU’s negotiating directives of 29 January) should continue to apply to the UK in the same way for the duration of the implementation period. In other words, the UK would continue to be bound by the rights and obligations flowing from the agreements for this period. Multilateral agreements to which the EU is a party raise different considerations and are not covered by this note.

I don’t see what is “technical” about pretending that the UK has a status it will not have. This seems the opposite of technical. I.e. fantastical. But, of course, that is now par for the course.

do uk citizens lose eu citizenship rights after brexit? February 8, 2018

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The Court of Justice is to be asked to answer this question on the basis of a preliminary reference by the Amsterdam District Court (the decision linked to by this post proposes two questions to be referred). Unfortunately this does not seem to be a hypothetical question.

emmeline February 7, 2018

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Suffragette or character in Hot Chocolate song?

court of session rejects petition for preliminary reference on withdrawal of art. 50 notification February 6, 2018

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The judgment is here. The petition is rejected because the issue raised is “hypothetical and academic.”

Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide – whether the UK could unilaterally withdraw the Article 50(2) notification – is hypothetical and academic. In those circumstances it is not a matter which this court, or the CJEU, require to adjudicate upon.

Of course, if a hard Brexit comes to seem inevitable and there is interest in exploring withdrawal of the notification it will be too late, as the proponents of this litigation suggest:

It is also impossible sensibly to pretend that the question can be asked later.

Generally it may make sense for courts to decline to address hypothetical issues, but this issue isn’t the usual sort of hypothetical issue.

financial markets and fishing February 5, 2018

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Good speech by Andrew Bailey of the Financial Conduct Authority here. And a nice contrast to the general dithering going on in other parts of government (for example the (in)decision to put off the publication of a white paper on immigration until the fall). Bailey discusses the importance of getting the technical details of any transition right and argues that it should be done by means of an agreement between the EU and the UK to avoid glitches. And he points out that it ought to be possible to imagine an agreement:

if it is possible to envisage a partnership agreement on fishing based on convergence of regimes, of course it is possible to have open financial markets and mutual recognition of regulatory regimes… The principles for mutual recognition would look a lot like the ones we already use to authorise the branches of banks from outside the European Economic Area, namely broad equivalence of regulation in terms of outcomes, supervisory co-operation and good information sharing. We would need to add on a robust dispute resolution arrangement, but this could be done. We are used to working very closely with other regulators, it is a big part of our job given London’s international role.
And let me comment on the negative arguments – ie the arguments against not having mutual recognition. First, it is not sensible to imagine material regulatory divergence, especially in wholesale financial markets. It is a false concept. Markets are global and we cannot in practice diverge much in terms of regulatory outcomes, and regulatory arbitrage is not an allowable ground for competition.

climate change and financial regulation February 2, 2018

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I have a short piece on this topic in the current Miami Law Magazine.