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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).

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.

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.