̽��ֱ�� of Cambridge - Kenneth Armstrong

Brexit: the three transition options open to the UK

fpjl2 — Thu, 25 Oct 2018 10:45:09 +0000

For some time now, both the United Kingdom and European Union have agreed that once the UK ceases to be a Member State on 29 March 2019, it will enter into a ‘stand-still’ period – during which the UK will continue to be bound by its existing EU obligations.

̽��ֱ��rationale behind this is to avoid a ‘cliff-edge’ departure that would see tariffs and regulatory controls imposed on cross-border trade between the UK and the EU.

To the extent there has been disagreement between the two sides it has been on terminology – the EU refers to this as a ‘transition period’ while the UK insists on calling it an ‘implementation period’ – and duration – the UK sought a two-year period whereas the EU was only willing to agree a transition that would end on 31 December 2020 (coinciding with the end of the current budgetary ‘multi-annual framework’). ̽��ֱ��UK agreed to the EU’s offer of a transition ending in December 2020.

However, the duration of the transition period has come back to the fore of the negotiations for two reasons.

̽��ֱ��UK believes that the issue of how to avoid a hard border on the island of Ireland can only properly be resolved in the context of the negotiations on the future economic relationship. ̽��ֱ��UK had hoped that this might be negotiated in parallel with the withdrawal arrangements.

However, the EU has insisted that it is only the framework for future cooperation that can be discussed in the context of the withdrawal negotiations, meaning that the terms of a future economic relationship can only be agreed once the UK leaves. As long as the UK is in transition, the issue of frontier controls on the island of Ireland does not arise.

But with the transitional period ending at the end of 2020, EU negotiators have insisted on the need for a ‘backstop’ to ensure that, if transition ends without a deal that meets the commitments made in the 2017 Joint Report, a ‘hard border’ in Ireland will be avoided. It is the failure to reach agreement on a backstop which is making negotiators on both sides reconsider a time-limited transition period.

̽��ֱ��second reason is that the pace of negotiations, coupled with deep disagreement over the UK Government’s ‘Chequers Plan’, suggest that the transition period as currently conceived will be too short to allow for negotiations on a future relationship to be concluded. Taken together with the backstop issue, minds have turned to whether it would be prudent to extend transition.

In a recent European Policy Centre paper, Tobias Lock and Fabian Zuleeg make a strong case for the extension of transition, suggesting that a one-time one-year option to extend transition would be a workable solution.

In a new Research Paper, I have looked at three potential models for an extended transition:

A one-off option to extend transition for a year following the end of the initial transition period (the Lock and Zuleeg model)
A rolling or open-ended transition with an exit mechanism
An extended transition and implementation facility.

While Lock and Zuleeg make a good case, their proposal still risks a ‘second cliff-edge’ at the end of an extended transitional period if there is no agreement on a future relationship. A one-year optional extension may not give negotiators enough time to reach an agreement, and might not create sufficient confidence to avoid the need to negotiate a backstop.

̽��ֱ��most obvious way to avoid a backstop would be to keep the UK in transition unless and until a new economic partnership between the UK and the EU was agreed (provided also that this met the commitments on the Irish border agreed in the 2017 Joint Report).

However, a perpetual transition would be politically unacceptable, difficult to manage in budgetary terms, and conflict with EU law. It would, therefore, need an exit mechanism. This could be modelled on Article 50 itself and allow either the UK or the EU to notify the other of their intention to end the transition period.

A compromise solution draws on the existing draft Agreement, and would allow transition to end once new agreements on customs and trade, foreign, security and defence policy are agreed and became applicable. Unlike an open transition, this facility would need a defined endpoint, and a proposed deadline of 31 December 2022 is suggested.

̽��ֱ��aim would be to give negotiators the flexibility to agree new partnership arrangements, but with incentives to reach agreements early – avoiding the continued use of the transition and implementation facility. ̽��ֱ��UK and EU could depart transition well before the facility expired.

Kenneth Armstrong is Professor of European law and holds a Leverhulme Trust Major Research Fellowship for the project ̽��ֱ��Brexit Effect – Convergence, Divergence and Variation in UK Regulatory Policy.

̽��ֱ��full Faculty of Law working paper can be viewed here.

Will the UK agree to an extended transition period, keeping it bound by EU rules for longer after exiting the EU? Here, Professor Kenneth Armstrong outlines three “potential models” to extend the transition period, as explored in his new research paper published today.

A perpetual transition would be politically unacceptable... and conflict with EU law. It would, therefore, need an exit mechanism

Kenneth Armstrong

Number 10

PM and (then) Brexit Secretary sign commemorative copies of EU (Withdrawal) Act

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Opinion: Brexit, Euratom and Article 50

ag236 — Mon, 10 Jul 2017 13:30:50 +0000

̽��ֱ��European Atomic Energy Community (Euratom) has become a focal point for the Brexit debate in the UK. ̽��ֱ��UK’s departure from this organisation does not simply raise important questions about the future supply and use of radioactive materials in hospitals. It also dramatises wider debates about the need for transitional arrangements when the withdrawal negotiations are completed, and whether the UK’s ‘Article 50’ withdrawal letter can be revoked.

̽��ֱ��United Kingdom is withdrawing not just from the treaties that establish the European Union, but also the 1957 treaty establishing the European Atomic Energy Community (Euratom). Euratom provides the legal framework for the European nuclear energy industry on issues like the handling of nuclear waste and the decommissioning of nuclear power plants, as well as promoting international cooperation on nuclear issues with the USA, Canada and Japan. But Euratom also regulates the wider use of radioactive materials, including their use by the medical profession for the diagnosis and treatment of medical conditions such as cancer.

Although Euratom is governed by a separate treaty, it is EU institutions and EU agencies that provide the administrative and judicial framework for its application and enforcement.

In her March ‘Article 50’ letter to European Council President, Donald Tusk, the Prime Minister Theresa May notified the EU of the UK’s intention to withdraw not just from the treaties establishing the EU, but also from Euratom. That leaves open not just the issue of how the nuclear industry will be regulated in the UK in the future, but also how European and international cooperation for the safe movement, supply and use of radioactive material will be secured. Understandably, some worry about the UK leaving the EU without an appropriate replacement legal framework in place and there have been calls from different quarters for transitional arrangements to be in place. Rather late in the day, there now seems to be an acceptance within government that transitional frameworks will be needed to secure an orderly Brexit.

Yet for some Brexit supporters, the risk of a transitional framework is that it might be a way of avoiding Brexit, or at least prolonging the jurisdiction of the European Court of Justice –a ‘red line’ for many. It is worth noting that the Court has delivered only a handful of rulings involving Euratom and the UK, relating primarily to its implementation of directives to protect workers against exposure to radiation. After Brexit, regulation and enforcement activities will be transferred to national institutions.

However, there have been calls for the UK to remain within Euratom, with the UK Parliament set to debate the issue on 12 July. ̽��ֱ��problem is that the UK has already notified its intention to withdraw from the Euratom Treaty. Any attempt to remain in Euratom would beg the question whether the Article 50 letter can be subsequently amended or indeed, revoked.

̽��ֱ��wording of Article 50 does not tell us whether amendment or revocation is possible. A European Commission Press Release does state that notification is a ‘point of no return’ and does not provide for ‘unilateral withdrawal of notification’. This is simply the opinion of the Commission and has no binding legal quality. Only the Court of Justice can decide this question. And there is legal opinion which considers that notification is open to revocation, including without the consent of the other EU governments.

̽��ֱ��important point is that if it is possible for the UK to change its mind on Euratom, it can change its mind on Brexit. ̽��ֱ��same Article 50 process applies to both. But beyond the legal questions, the difficulties thrown up by withdrawal from Euratom are not any different from those of leaving the EU more generally. ̽��ֱ��debate about leaving Euratom may become a catalyst for a wider reflection on the real costs and benefits of Brexit.

Kenneth Armstrong’s book, Brexit Time – Leaving the EU: Why, How and When? published by Cambridge ̽��ֱ�� Press is out now.

Kenneth Armstrong, Professor of EU law, explains why discussions about UK membership of Euratom are a bellwether for wider Brexit negotiations

Any attempt to remain in Euratom would beg the question whether the Article 50 letter can be subsequently amended or, indeed, revoked.

Kenneth Armstrong

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Yes

Opinion: Parliament needs to load the Article 50 gun before Prime Minister triggers Brexit

ag236 — Tue, 24 Jan 2017 10:29:38 +0000

In a landmark constitutional judgment handed down today, the Supreme Court has ruled by 8-3 that Prime Minister Theresa May has no legal power to trigger Article 50 of the Lisbon Treaty, and must seek statutory authorisation from Parliament.

For the Prime Minister to meet her own self-imposed deadline of triggering Article 50 before the end of March, Parliament will need to adopt legislation quickly to put the Brexit bullet in the Article 50 barrel.

Nothing in today’s Supreme Court ruling can ultimately prevent the UK Government from triggering Article 50. Once Parliament has legislated, Brexit will begin.

But the decision of the majority of the Supreme Court judges is controversial. Voters will be astonished that they voted in a referendum without the Government having the legal power to implement their wishes if the country voted to leave the EU.

̽��ֱ��case was brought by Gina Miller, an investment manager (the ‘lead claimant’), together with Mr Deir Dos Santos, a hairdresser, both UK citizens resident in the UK. Their claim was supported by a crowd-funded claim – the so-called ‘People’s Challenge’ – in the name of Graeme Pigney and other UK citizens resident in different parts of the UK and in other EU states.

̽��ֱ��Scottish Government will be disappointed with the ruling because, unanimously, the Supreme Court did not accept that the Scottish Parliament must give its consent before Westminster legislates on Brexit.

SNP MPs may seek to add amendments to the Brexit Bill to be passed by Parliament. These amendments may include a requirement that Holyrood gives its consent to the triggering of Article 50, or may even go so far as to provide a legal basis for a second independence referendum. Although any such amendment would have no hope of being passed, their rejection by Westminster might be used as evidence by the SNP that Scotland’s future lies inside the EU, but outside the UK.

In her Lancaster House speech last week, the Prime Minister accepted that both Houses of Parliament will be given a vote on the withdrawal agreement once the Brexit negotiations have ended.

Any risk of Parliament derailing Brexit will come at the end of the Article 50 process, rather than the beginning. And that could lead the UK into an early General Election, throwing the whole withdrawal from the EU into chaos.

Kenneth Armstrong is Professor of European Law at the ̽��ֱ�� of Cambridge. His new book, Brexit Time, will be published by Cambridge ̽��ֱ�� Press in the Spring.

Cambridge’s Professor of European Law reacts to the Supreme Court’s landmark ruling

Voters will be astonished that they voted in a referendum without the Government having the legal power to implement their wishes if the country voted to leave the EU.

Kenneth Armstrong

Supreme Court Library ceiling

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Yes

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

Brexit: High Court ruling on Article 50 explained

fpjl2 — Thu, 03 Nov 2016 13:41:38 +0000

"For some, today’s ruling is a victory for parliamentary democracy. For others, unelected judges stand in the way of the UK’s withdrawal from the EU. If the Supreme Court gets the final say, voters may still wonder whether their voice matters at all," says Kenneth Armstrong, Professor of European Law from Cambridge's CELS.

For Armstrong, the key aspects of the judgment are:

It is impermissible for the Prime Minister to invoke the Royal Prerogative[i] as legal authority for a notification to be sent under Article 50 of the Treaty on European Union, to begin the process of withdrawing the UK from the EU.
̽��ֱ��effect of withdrawal will be to remove or limit the rights created by EU law and which are given effect in UK law via the European Communities Act 1972.
Neither as an interpretation of the European Communities Act, nor of constitutional principle can the Executive by Royal Prerogative alone remove or limit rights protected in domestic law.
̽��ֱ��Referendum Act 2015 – in formal legal terms – only made provision for an advisory referendum. It did not give statutory authority for the triggering of Article 50.

" ̽��ֱ��High Court was asked by the claimants to limit the power of Theresa May to begin the Article 50 withdrawal process. Requiring the Prime Minister to obtain legislative authorisation from Parliament was contested by the Government on the basis that the electorate had given the Government a clear instruction to leave the EU in the referendum held on 23 June 2016," says Armstrong.

"However, while the outcome of the referendum has given the Government a political mandate to withdraw from the EU, the legal power to notify must be exercised within legal limits. ̽��ֱ��High Court has concluded that where an exercise of the Royal Prerogative would remove legal rights, derived from EU law but made available in domestic law by Parliament through the European Communities Act, only Parliament can legislate for such rights to be removed."

̽��ֱ��case was brought by Gina Miller, an investment manager (the ‘lead claimant’) together with Mr Deir Dos Santos, a hairdresser, both UK citizens resident in the UK. Their claim was supported by a crowd-funded claim – the so-called ‘People’s Challenge’ – in the name of Graeme Pigney and other UK citizens resident in different parts of the UK and in other EU states.

An appeal by the Government to the UK Supreme Court is likely, says Armstrong. Following the recent ruling of the High Court in Belfast dismissing claims that the Prime Minister’s power to trigger Article 50 was limited by the terms of the Northern Ireland Act 1998 and the Belfast ‘Good Friday’ Agreement, the solicitor for Raymond McCord – whose son was murdered by paramilitaries and who is one of the claimants – has also indicated that his case will be appealed to the UK Supreme Court.

"Before today’s ruling there had been some suggestion that if the judgment had gone against the Government it may not have continued with an appeal to the Supreme Court," says Armstrong. "Today’s judgment and the decision to appeal the Belfast High Court judgment has made it more likely that the Supreme Court will have the final say."

̽��ֱ��claimants argued that the Article 50 process once triggered was irrevocable. In a recent interview with the BBC, Lord Kerr of Kinlochard – credited with authoring the text of what is now Article 50 – said that the process was revocable. As a question of EU law this could require an authoritative interpretation by the EU’s top court, the European Court of Justice.

" ̽��ֱ��High Court seems to have accepted the idea – widely contested by others – that the Article 50 process is irrevocable. As a question of the interpretation of EU law, this could give rise to a request for an interpretation of Article 50 from the Court of Justice," says Armstrong.

"But the Supreme Court may try and avoid asking the European Court for a ruling, not just because it will delay matters, but also because some will object to the idea that a European court will have a say."

̽��ֱ��Prime Minister had already conceded that there would be a parliamentary debate without a vote. And Parliament will have to give its approval at the end of the negotiations before any formal agreement between the EU and the UK can be ratified. Following the High Court’s ruling, Parliament will have a vote on authorising the Prime Minister to trigger Article 50.

Adds Armstrong: " ̽��ֱ��problem for the Government is that it will want the legislative authorisation from Parliament to be quick and wholly procedural. For MPs and Lords, however, this is a chance to try and get the Government to reveal more of its Brexit negotiating position. It would be a constitutional crisis for Parliament to refuse to authorise notification and to ignore the result of the referendum. This limits how far Parliamentarians can push their demands."

[i] ̽��ֱ��Royal Prerogative refers to one of the sources of legal authority accepted by the courts through which the Crown and Ministers of the Crown may take decisions. In modern times, these prerogative powers are typically exercised by government ministers but over time, they have been removed or limited by Acts of Parliament which instead provide the legal authority for ministers to act. ̽��ֱ��power to make and ratify treaties falls within the Royal Prerogative.

In a landmark constitutional judgment handed down today, the High Court has put a stumbling block in the way of the Prime Minister’s plan to trigger Article 50 by the end of March 2017. Professor Kenneth Armstrong from the Centre for European Legal Studies goes through the ruling.

For MPs and Lords, this is a chance to try and get the Government to reveal more of its Brexit negotiating position

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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Opinion: Fact Check: are 60% of UK laws really imposed by the EU?

Anonymous — Wed, 27 Apr 2016 14:31:31 +0000

Today it is a tragedy that the European Union – that body long ago established with the high and noble motive of making another war impossible – is itself beginning to stifle democracy, in this country and around Europe. If you include both primary and secondary legislation, the EU now generates 60% of all the laws that pass through Westminster.

Boris Johnson, writing in ̽��ֱ��Sun, April 21

Among the headline-grabbing claims repeatedly made by campaigners for the UK to leave the EU is that a substantial majority of British law is now imposed by Brussels – providing crucial “evidence” to back up their core arguments about a loss of sovereignty and an assault on democracy.

Bluster, bluster. Surrey County Council News, CC BY-SA

This particular claim varies as regards both the alleged figure and its supposed source. UKIP has again and again asserted that Brussels makes 75% of UK law – a figure that appears based on nothing more than some unsubstantiated press remarks from EU Commissioner Viviane Reding. Appearing before the House of Commons Treasury Committee in March, Boris Johnson cited what he called new evidence that put the true number at 60%. This turned out to be a gross misrepresentation of House of Commons Library research dating from 2014, though as can be seen from the quote at the beginning, he is still repeating it.

Perhaps the most important and influential backing for the Leave campaign’s claims comes from a Business for Britain report of March 2015. Touting itself as “definitive”, it decreed that between 1993 and 2014, 64.7% of UK law was EU-influenced, and EU regulations accounted for 59.3% of all UK law.

But closer analysis reveals that this report is utterly flawed and misleading. BfB included in its calculations all EU regulations without distinguishing between legislative regulations and non-legislative ones.

EU legislative regulations are comparable to primary legislation in the UK, but they are relatively few in number. Certain EU non-legislative regulations are comparable to statutory instruments in the UK – such as many of the “delegated regulations” adopted under Article 290 of the Treaty on the Functioning of the European Union – so they too could in principle be included in any attempt to quantify the domestic impact of EU law.

But the great bulk of non-legislative regulations are adopted by member states to implement technical, administrative decisions at the EU level. This includes things such as updating the scientific registers of chemicals and food additives; adjusting specific anti-dumping duties on cheap imports from third countries; confirming the regular continuance of UN sanctions on named individuals suspected of involvement in terrorism; and entering specific foodstuffs in the register of protected designations of origin.

Pears are from Mars … Yulia Koshchiy

It is simply not credible to include such measures in any purported calculation of the volume of UK law which derives from the EU. Or at least: if BfB counted those EU regulations in its sums, it should also include their proper domestic comparators – the vast numbers of UK decisions taken by public officials in a wide range of public bodies across the entire country. This would surely render the EU component of any statistics on the volume of “UK law” virtually negligible. As it stands, this is comparing apples with pears.

To be fair, any competent legal scholar would confirm that attempts to quantify the amount of “UK law”, or the amount of “EU law”, let alone the statistical relationship between the two, could never be anything more than an inaccurate guess guided by contestable research methods.

But there is a broader and more fundamental point here. This is far from the only example of the Leave campaign relying on and then reiterating claims which have proven upon closer inspection to be partially or even wholly false.

Think of Michael Gove’s rosy but entirely spurious vision for the UK’s post-withdrawal trade relationship with the EU. Or watch the fantastical claims of Vote Leave’s Dominic Cummings falling apart under the slightest scrutiny by the Treasury Committee. Those following the referendum debate from a perspective of informed expertise may rightly feel frustrated and dismayed by such blatant skulduggery.

Verdict

̽��ֱ��only way to produce a figure anywhere approaching 60% for the amount of British law that comes from the EU is to follow a seriously flawed methodology. If this sort of work were submitted for academic peer review, it would be rejected at the first hurdle as manifestly unscientific. ̽��ֱ��real worry is that substituting the dissemination of misleading propaganda for honest evidence-based argument, on an issue of fundamental importance for the future of this country, risks further undermining public trust in our political institutions as well as inflicting serious damage upon the quality of our national democracy.

Review

Kenneth Armstrong, Professor of European Law, ̽��ֱ�� of Cambridge

Fans of ̽��ֱ��Big Bang Theory will be familiar with Sheldon Cooper’s webcast Fun with Flags. ̽��ֱ��EU referendum campaign has brought us Fun with Fractions with Boris Johnson suggesting that the percentage of UK law that emanates from the EU is “60%”.

̽��ֱ��60% figure derives from a methodology reported by the House of Commons Research Library, and as the report’s author admits “it is impossible to achieve an accurate measure”. ̽��ֱ��methodology includes EU “regulations” which can have immediate effect in UK law without being implemented by Westminster, the idea being that a methodology which only focused on directives and decisions that require formal adoption into national rules would underestimate EU influence. But as our commentator notes, this also risks including a large number of technical regulations and amendments.

As Sheldon would claim, methodology matters. ̽��ֱ��mere fact that methodologies are contestable does not mean that any given one is wrong, unless it is wrong in terms of the question asked. Is it a narrow question of how much EU law is implemented or are we evaluating broader EU influence? Does volume equate with significance? And how do we factor in change over time? Does anyone really care? Distractions with fractions.

Michael Dougan, Professor of European Law and Jean Monnet Chair in EU Law, ̽��ֱ�� of Liverpool

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.

Kenneth Armstrong (Centre for European Legal Studies) and Michael Dougan ( ̽��ֱ�� of Liverpool) discuss the volume of UK law which derives from the EU.

Leon Yaakov

European Union Quarter in Brussels

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