̽��ֱ�� of Cambridge - Centre for European Legal Studies

Opinion: ̽��ֱ��Full Brexit

fpjl2 — Tue, 17 Jan 2017 14:51:15 +0000

̽��ֱ��Prime Minister’s much-anticipated speech on her Government’s objectives for the UK’s withdrawal from the European Union confirms what was increasing likely to be the political direction of travel. ̽��ֱ��UK will not be seeking a relationship with the EU like that giving rise to the European Economic Area agreement between the EU and three EFTA states.

Indeed, it will not seek any type of ‘association agreement’; helpful, given that such agreements require the unanimous consent of all Member States’ governments as well as ratification in all EU states. Instead what the Prime Minister wants is something ‘bespoke’ and British and which is in tune with her central theme of building a truly ‘global Britain’.

What is noteworthy about the speech is that it purports to map an exciting new future for the UK that encompasses not just its future trading relationship with the EU, but also the Commonwealth, the Gulf states and – inspired by the recent words of President-elect Trump – the United States. And a stronger Britain is not to be at the expense of the EU, with the UK wanting the EU to be a success, just not with the UK as a member. All of which is remarkably resonant of UK policy in the 1950s when the UK decided not to join the fledgling EEC because it sought the bigger prize of global trade rather than a compromise of regional economic integration. In respects it is distinctly Churchillian: happy to let true Europeans forge an economic, and maybe even political, union just as long as the UK looks on rather than participates.

Important details remain to be settled including what type of customs arrangements would reduce customs barriers while still permitting the UK to enter into its own free trade deals with non-EU countries. ̽��ֱ��type, scope and duration of any transitional arrangements seems likely to form a key strand of future negotiations.

̽��ֱ��Prime Minister made clear that the final deal will be presented to both Houses of Parliament and will be voted upon. This engagement with Parliament is important in seeking to restore the authority of Parliament as the body to whom government accounts. This is especially significant given calls by some for a second referendum to endorse the final deal. By rejecting another referendum, and by giving Parliament a vote at the end of the process, Theresa May is trying to bring domestic political institutions back to the centre of decision-making and, in so doing, to try and put the populist genie back in the referendum bottle.

What is also striking about the speech is Theresa May’s clear intention of steadying the ship with the iron grip of Unionism. Indeed, her speech started with the pledge to put ‘the preservation of our precious Union at the heart of everything we do’. So no special deal for Scotland and no differentiated Brexit. All that is on the menu is the Full British Brexit, complete with HP sauce and a solid 1950s Formica table.

Kenneth Armstrong is a Professor of European Law and heads up the Centre for European Legal Studies. He writes a blog: Brexit Time.

̽��ֱ��Director of Cambridge's Centre for European Legal Studies offers his initial reaction to the Prime Minister's address

Her speech started with the pledge to put ‘the preservation of our precious Union at the heart of everything we do’. So no special deal for Scotland and no differentiated Brexit.

Kenneth Armstrong

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Yes

Opinion: Latest Brexit legal challenge will not be ‘back door’ to Single Market

fpjl2 — Mon, 28 Nov 2016 15:33:47 +0000

̽��ֱ��think-tank British Influence is said to be contemplating a judicial review arguing that the UK remains a contracting party to the European Economic Area (EEA) agreement and so will retain membership of the Single Market even after Brexit.

British Influence suggest that only if the UK notifies its intention to withdraw from the EEA agreement in terms of Article 127 of that agreement would the UK ‘leave’ the Single Market.

“ ̽��ֱ��UK’s obligations under the EEA agreement may not lapse when the UK leaves the EU. But the UK only has limited obligations arising under that agreement. For all aspects relating to customs and compliance with the Single Market rules, it is the EU, not the UK, that exercises rights and duties under the agreement,” says Kenneth Armstrong, Professor of European Law and the Director of the Centre for European Legal Studies at the ̽��ֱ�� of Cambridge.

“Although the UK is a contracting party to the EEA agreement alongside the EU, it is only a party for those aspects of the agreement that fall within the legal powers of the UK. EU membership means that the legal powers of the UK are limited, especially in respect of customs and Single Market rules which have been taken over from the Member States and are exercised on their behalf by the EU.”

If the litigants were, nonetheless, successful in persuading a court that the UK was entitled to exercise the rights of a contracting party, Professor Armstrong suggests they may not be enforceable against the EU27 but only against the three European Free Trade Association (EFTA) states:

“ ̽��ֱ��agreement is between the EU and the Member States on one side, and Norway, Iceland and Liechtenstein on the other side. This means that the UK was a contracting party as a Member State and only in relation to the three EFTA states. It would be contrary to the purpose of the agreement for it to regulate relations between the UK and the EU27. It is for the EU treaties alone to regulate that relationship subject to the supervision of the European Court of Justice.”

̽��ֱ��EEA Agreement is an “association agreement” that comprehensively deals with a wide range of issues of cooperation between the EU and EFTA, says Armstrong. It is not limited to the Single Market.

“Because they have such a wide scope, association agreements must be signed not just by the EU as a legal entity but also by its Member States for those areas of the agreement where Member States retain their own sovereign powers. But as regards customs duties and the common rulebook of the Single Market, these powers have been transferred to the EU and are exercised collectively at EU level.

“It is not enough to say that the UK is a ‘contracting party’ and then draw the inference that this gives the UK continuing access to the Single Market. It is only a contracting party for certain purposes and within the legal limits of its powers at the time the agreement was reached. At that time, the UK was an EU Member State and the EU had taken over responsibilities for customs and the Single Market rulebook,” concludes Armstrong.

“I would be very surprised if this litigation changed the political course of Brexit."

̽��ֱ��EEA Agreement was signed by the EU, its Member States and three EFTA states (without Switzerland) on 17 March 1993, and ratified by the UK on 15 November 1993.

Article 127 of the EEA Agreement states:

Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months' notice in writing to the other Contracting Parties.

Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.

Failure to invoke Article 127 of the EEA Agreement will not keep the UK in a Single Market by the back door after Brexit. ̽��ֱ��UK is only a contracting party to that agreement for limited purposes, says Cambridge professor of European Law.

It would be contrary to the purpose of the agreement for it to regulate relations between the UK and the EU27

Kenneth Armstrong

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Yes

Article 50 is ‘only credible way’ for Brexit, says leading EU law expert

fpjl2 — Tue, 21 Jun 2016 08:43:00 +0000

̽��ֱ��‘roadmap’ released by Vote Leave last week claims that triggering Article 50, the formal mechanism for leaving the EU, would not be the only legal option in the event of a Brexit vote, citing alternatives of the ‘Greenland example’ or use of international law.

An analysis of the roadmap by Kenneth Armstrong, Cambridge Professor of European Law, questions the credibility of these claims, which he describes as either “legally implausible” or “politically less attractive” than Article 50.

He also argues that Vote Leave’s proposed legislation to diminish EU laws within the UK during withdrawal negotiations may actually weaken the sovereignty of the Westminster Parliament, as it would provoke direct constitutional challenges from the UK’s devolved governments as well as UK courts.

̽��ֱ��analysis is published as a working paper on the ̽��ֱ��’s Centre for European Legal Studies website.

Under Article 50, as set out in the Lisbon Treaty, the UK would remain an EU member state for two years while negotiations take place. There is a possibility for the timescale for negotiations to be extended, says Armstrong, but any EU state could veto any extension forcing the UK into a take-it or leave-it dilemma as the clock runs down.

Vote Leave argue that Brexit could utilise alternative legal procedures to extricate the UK from the EU, citing the example of Greenland’s EU withdrawal, or using the Vienna Convention of international treaty law.

However, both of these supposed options predate Article 50, which would now override them, says Armstrong. In addition, the Greenland example doesn’t hold up, as it was not a Member State in its own right, but a ‘constituent territory’ of Denmark. It would also mean invoking Article 48, which would require the unanimous agreement of every member state (unlike Article 50), and so create veto opportunities.

“It is simply not obvious why Vote Leave would consider this to be a viable or useful alternative to the Article 50 process itself,” said Armstrong.

̽��ֱ��1969 Vienna Convention of international law sets out a framework for negotiation and termination of treaties across the globe, and Vote Leave argue that this earlier international agreement also makes it possible to leave the EU.

However, the Vienna Convention only applies to treaties of other international organisations, such as the EU, “without prejudice to any relevant rules of the organisation”, such as Article 50.

“There is simply no way that the European Court of Justice would permit the autonomous legal order of the EU and its established mechanism of Article 50 to bend to international law in this manner,” said Armstrong.

“ ̽��ֱ��clear conclusion is that Article 50 is the correct legal basis for the conduct of a withdrawal process. Neither the experience of Greenland nor the Vienna Convention casts any doubt on that conclusion,” he said.

Vote Leave’s roadmap also includes a proposed Bill to deviate from EU laws during withdrawal negotiations, to be enacted by 2020. ̽��ֱ��proposed Bill includes the power to remove EU citizens deemed to be “not conducive to the public good”, and a reigning in of the EU Charter of Fundamental Rights: the section of EU law that concerns human rights.

Armstrong points out that any proposal to introduce a version of this Bill in the current parliamentary session would not just encounter significant obstacles in both the Commons and the Lords, but, if enacted, would create constitutional conflicts between the devolved governments of the UK and the Westminster Parliament.

“It is at least arguable - and one would expect the Scottish government, for example, to argue - that any attempt to limit the EU Charter of Fundamental Rights would require the consent of the devolved parliaments, as otherwise possible legal action against ministers in devolved governments could occur for acting in breach of EU law,” said Armstrong.

He also points out that, while the UK remains an EU member state, which it will do for at least two years following Brexit, the UK courts will be bound by EU laws. Any amendment to the European Communities Act, which establishes the supremacy of EU law, would bring UK courts into a constitutional conflict between obligations under EU law with those under domestic law.

“It is simply not obvious how any given judge, or any given court, would seek to resolve that conflict. Either way, it would antagonise and politicise the judiciary in a manner that many would find unacceptable and could, paradoxically, give rise to judicial challenges to parliamentary sovereignty,” said Armstrong.

“Far from restoring the sovereignty of parliament, its sovereignty could be brought into direct constitutional challenge.”

More videos featuring experts from the Cambridge Centre for European Legal Studies on key EU Referendum questions can be viewed here.

Cambridge law professor says Article 50 is the only legal mechanism for Brexit, countering assertions by Vote Leave ‘roadmap’ that Article 50 is “not the sole lawful means”. He says the roadmap’s proposals for ‘emergency’ legislation during exit negotiations could actually diminish rather than restore Westminster’s sovereignty.

Far from restoring the sovereignty of parliament, its sovereignty could be brought into direct constitutional challenge

Kenneth Armstrong

Abi Begum

Poll Card EU referendum

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Why the latest EU referendum question is worse than the original

cjb250 — Thu, 03 Sep 2015 15:52:50 +0000

̽��ֱ��meaning of ̽��ֱ��Clash song Should I Stay or Should I Go is probably sufficiently clear for most people who listen to it. Getting a referendum question right is a more complex affair. ̽��ֱ��British Electoral Commission has shown us as much by advising that the wording of the question for the forthcoming vote on the UK’s membership of the EU should be changed.

̽��ֱ��Council of Europe code of practice on referendums suggests referendum questions should avoid leading the voter to one choice or another. And the Electoral Commission is obliged to give its view on the wording of referendum questions in the UK. But I fear the commission has made matters worse in its quest for neutrality in this case.

As published, the EU Referendum Bill stated that the referendum question would be “Should the United Kingdom remain a member of the European Union?”. Voters would be given a simple Yes/No choice on the ballot to answer that question.

This was actually the wording originally proposed by the Electoral Commission in 2013.

But after testing this wording, the commission has expressed concern that it might create a bias towards a “Yes” answer. It also wondered whether an alternative question might better grasp the complexities involved in making a choice about the UK’s future relationship with the EU.

It sought to refine the question around two alternative statements rather than a question with a simple Yes/No answer. It has now proposed changing the question to: "Should the United Kingdom remain a member of the European Union or leave the European Union?"

Voters will be asked to select either “remain a member of the European Union” or “leave the European Union”. It has been widely reported that David Cameron has accepted this new wording.

Cameron has promised to hold the election before the end of 2017. www.shutterstock.com

Are you really leaving?

̽��ֱ��concept of “remaining” in the EU is reasonably clear. ̽��ֱ��problem with this new formulation lies in what is actually meant by “leave the European Union”.

Article 50 of the Treaty on European Union – the provision governing the exit of a member state – uses the term “withdraw” and it might be better to use this term rather than a less precise “leave”.

More importantly, a “withdrawal” from the EU must be a negotiated process that ends in an agreement between the EU and the withdrawing state. That agreement will govern the future relationship between the EU and its former member and is likely to result in EU rules continuing to apply to the withdrawing state in areas like access to the European single market.

If by selecting “leave the EU” a voter believed that they were voting for the UK to have a clean break with the EU, they may well feel disappointed with the outcome. ̽��ֱ��UK may have ceased to be a member of the EU but without having left the EU in any meaningful sense. To turn from ̽��ֱ��Clash to ̽��ֱ��Eagles, like Hotel California, you can check out any time you like, but you can never really “leave”.

̽��ֱ��serious point is that if a Yes/No question risks bias, this new iteration of the question only introduces a different problem: namely that the alternative statements do not quite depict the consequences that they purport to capture.

Whatever the problems of a polarising binary Yes/No question, they are not solved by giving voters a choice between one relatively clear answer – remain a member of the EU – and one wholly ambiguous response – leave the EU.

A straight question?

There remains quite a lot of merit in the original proposal to ask electors to vote Yes/No on whether the UK should remain a member of the European Union.

This at least reflects a legal reality. ̽��ֱ��UK is currently a member of the EU and therefore the choice is whether or not that status should continue. It avoids speculation about what the alternative to being a member might entail. Though of course, for some, the problem is the status quo of EU membership and a question which apparently reflects that is itself an impediment to change.

An issue that has not been discussed is whether the wording of the question should really strive towards a kind of agnostic neutrality or whether it should seek to reflect political realities by starting with the world as it is now – that the UK is a member of the EU – and then ask voters whether that should change. This would imply not a bias but a certain onus on those who wish to seek change.

̽��ֱ��haste with which David Cameron has endorsed the Electoral Commission’s proposal has pre-empted a debate on the wording of the referendum question and there is still time for further change. Amendments to the EU Referendum Bill can be made in the House of Commons at the Report Stage, scheduled for September 7. This will give an opportunity for further reflection on the wisdom of this proposed change. And that reflection is greatly needed.

This article also appears on the UK in a Changing Europe website

Kenneth Armstrong is Professor of European Law and Director of the Centre for European Legal Studies at ̽��ֱ�� of Cambridge

This article was originally published on ̽��ֱ��Conversation. Read the original article.

̽��ֱ��opinions expressed in this article are those of the individual author(s) and do not represent the views of the ̽��ֱ�� of Cambridge.

David Cameron has been widely reported to have agreed to amend the wording on the forthcoming referendum about the UK's position in the EU. But the new wording may not be any better, writes Professor Kenneth Armstrong, Director of the Centre for European Legal Studies.

evan p. cordes

Make No Distinctions

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