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english high court: prorogation not justiciable September 11, 2019

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In contrast with the Court of Session, the English High Court held today that the prorogation is not justiciable. At para. 42 the court stated:

The criteria adopted by the courts for identifying non-justiciable exercises of prerogative power are whether they involve matters of “high policy” or are “political”.

And, at para. 47, :

the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action.

hong kong stock exchange offer for london stock exchange September 11, 2019

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After weeks of civil unrest in Hong Kong, raising questions about the extent to which Hong Kong is, and may continue to be,  run under a separate regime from that of mainland China, the Hong Kong Stock Exchange announced a planned offer for the London Stock Exchange. This week Brexit got even more complicated (today the Court of Session held that the prorogation of Parliament until October 14th was unlawful), and the offer raises some interesting questions about what financial market activity in the UK might look like after Brexit.  

uk parliament and brexit August 28, 2019

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If I could I would be protesting outside Parliament today. The number of actual sitting days lost may be small, but the intention is to prorogue Parliament to enable a no-deal Brexit. The idea of violating constitutional traditions (if not law) to achieve a no-deal Brexit that no-one voted for is shameful and wrong. And it makes me wonder what comes next if they get away with this.

And if I weren’t resident outside the UK and deprived of the ability to vote I would sign the petition.

consultations and timing August 20, 2019

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The UK’s Department for Environment, Food and Rural Affairs is consulting on a National Food Strategy. The Terms of Reference state:

The National Food Strategy will build on the work underway in the Agriculture Bill, the Environment Bill, the Fisheries Bill, the Industrial Strategy and the Childhood Obesity Plan. It is intended to be an overarching strategy for government, designed to ensure that our food system:

But the stated closing date for submission of evidence is October 25th, before the UK looks to be crashing out of the EU. And the Terms of Reference do say that “the strategy will consider our relationships with the devolved administrations, the European Union and our other trading partners.” As with every other policy issue the UK faces at the moment the details of the future relationship of the UK with the EU, and of the various components of the UK with each other matter enormously.  Access to high quality and affordable food is one of the issues the Call for Evidence is interested in,  so having some idea how Brexit actually affects access to food is surely important. Asking people about these issues now to make policy to be implemented in an uncertain future makes no sense at all.

brexit podcast January 14, 2019

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This week, in anticipation of tomorrow’s vote in Parliament: The Chaos of Brexit (Miami Explainer Season 2, Episode 1).

brexit insanities October 24, 2018

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As the House of Lords prepares to debate a People’s Vote on Brexit tomorrow, Dominic Raab declines to appear before the House of Lords’ EU Committee until a deal with the EU has been finalised. The Committee notes that this:

inhibits the Committee in fulfilling its obligations in scrutinising the progress of Brexit negotiations at this vital stage, and flies in the face of the commitment in your letter of 17 July, “to give evidence on a regular basis.”

Meanwhile the EU Energy and Environment Sub-Committee wrote to Michael Gove, with some questions about what might happen in a no deal scenario (including questions about how long after Brexit it might take for the UK to be able to export animals and waste to the EU, issues with respect to the safety of chemicals and about when the UK might reclaim jurisdiction to make decisions about fishing in UK waters).
Parliament seems to have been doing a decent job of trying to focus on a lot of the technical problems associated with Brexit, but the ultimate shape of the withdrawal seems to be pretty much up in the air.

implications of brexit for innovation in private law September 25, 2018

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I have reviewed Horst Eidenmueller, Collateral Damage: Brexit’s Negative Effects on Regulatory Competition and Legal Innovation in Private Law (May 7, 2018) at Jotwell here.

eu statement on the 25th anniversary of the single market March 20, 2018

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A joint statement from Antonio Tajani, President of the European Parliament, Jean-Claude Juncker, President of the European Commission, and Boyko Borissov, holder of the rotating Council Presidency and Prime Minister of Bulgaria with the title, One Market- One Europe highlights a positive view of what the UK is seeking to leave behind (as it moves from being an internal (but perhaps not completely reliable) source of strength for the EU to being an external source of potential risk):

Over the past 25 years, the integration of our economies throughout the Single Market has generated millions of jobs, and made the EU the world’s largest economy. The Single Market is the jewel in the crown of our integration and this domestic market of 500 million people is the foundation for Europe’s strength, at home and abroad.
The Single Market provides Europe’s citizens with the freedoms and opportunities that were only a dream for our parents and grandparents, and our social market economy benefits us all. There are no second-class Europeans in our Single Market and so there is no room for second-class products or for second-class workers; meaning, the same pay for the same work in the same place, the same quality of food and the same safety of toys and other products….
The European Single Market is 25 years young. A generation of Europeans has grown up with it and benefitted from it. We will keep making it stronger so that the next generation will benefit even more.

art 50 notification withdrawal case to proceed March 20, 2018

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The Court of Session (Inner House) addressed a challenge to the rejection of a petition for a preliminary reference on the issue of withdrawal of the Art. 50 notification. The case should proceed to a full hearing. The Court said:

if this petition were shorn of its rhetoric and extraneous and irrelevant material and were reduced, after adjustment, to a manageable size which conformed to Lord Hope’s guidance in Somerville v Scottish Ministers … a case of substance, albeit not necessarily one which is likely to succeed, can be discovered. The issue of whether it is legally possible to revoke the notice of withdrawal is, as already stated, one of great importance. On one view, authoritative guidance on whether it is legally possible to do so may have the capacity to influence Members of Parliament in deciding what steps to take in advance of, and at the time of, a debate and vote on the European Union (Withdrawal) Bill. After all, if Parliament is to be regarded as sovereign, the Government’s position on the legality of revoking the notice may not be decisive. Whether such guidance falls within the proper scope of judicial review aises yet another issue. However, that scope is wide and … the law is always developing and, in certain areas,it can do so quickly and dramatically.The scope of judicial review of Government policy may be one such area, at least where no issue of questioning what is said in Parliament arises.

my article on european (dis)union published February 27, 2018

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European (Dis)union: Dis)union: From the 1992 Single Market to Brexit, 25 U. Miami Int’l & Comp. L. Rev. 1 (2017).