̽��ֱ�� of Cambridge - European law

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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Yes

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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: Brexit and workers' rights

ag236 — Wed, 18 Jan 2017 08:58:38 +0000

Perhaps the best news for workers in Theresa May’s Brexit speech is that she committed herself to ensuring that ‘workers rights are fully protected and maintained’. She indicated this before in the speech she gave at the Conservative party conference in October. So the Working Time and Agency Work Regulations are safe - for now.

But, as always, the devil is in the detail (or lack of it).

She said:

'Indeed, under my leadership, not only will the government protect the rights of workers set out in European legislation, we will build on them. Because under this government, we will make sure legal protection for workers keeps pace with the changing labour market – and that the voices of workers are heard by the boards of publicly-listed companies for the first time.'

So the UK government will build on the rights in European legislation. Does that mean she will update UK rights derived from EU law in line with changes introduced by the EU? Will ECJ case law interpreting EU law continue to be applied, even if only as persuasive authority?

̽��ֱ��reference to legal protection for workers keeping pace with ‘the changing labour market’ is more perplexing. On the one hand, the reference to worker protection on boards suggests a progressive direction (although this proposal has already run into difficulties), as does the subsequent reference to ‘Enhancing rights for workers’. But what if the economy goes into recession following Brexit? Do such changes in the labour market mean in fact deregulation of workers’ rights?

And then there is the threat. If the negotiations lead to a ‘punitive deal’ that ‘punishes Britain’, Theresa May said ‘no deal for Britain is better than a bad deal for Britain’, freeing the UK ‘to set the competitive tax rates and embrace the policies that would attract the world’s best companies and biggest investors to Britain’.

Her Chancellor was more explicit. In his interview with Die Welt, he said that ‘We are now objectively a European-style economy … with a social model that is recognizably the European social model that is recognizably in the mainstream of European norms, not U.S. norms’. He concluded: ‘I personally hope we will be able to remain in the mainstream of European economic and social thinking. But if we are forced to be something different, then we will have to become something different.’ Workers' rights may be less secure than first appears.

Catherine Barnard is Professor of European Union Law and Jean Monnet Chair of EU Law at the ̽��ֱ�� of Cambridge. She is also Senior Tutor of Trinity College. She specializes in European Union law, labour and discrimination law, and competition law.

Cambridge's Professor of European Union Law offers her initial reaction to the Prime Minister's Brexit speech

̽��ֱ��UK government will build on the rights in European legislation. Does that mean it will update UK rights derived from EU law in line with changes introduced by the EU?

Catherine Barnard

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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

New report on macro-economic impact of Brexit questions Treasury forecasts

fpjl2 — Fri, 06 Jan 2017 10:01:28 +0000

̽��ֱ��economists have also been working with lawyers at the CBR to explore the possible impact of Brexit. They warn that the UK is in danger of remaining a low wage, low skill country unless it can create the conditions for a reorientation of its economic model post-Brexit.

In a new podcast for the CBR, based at the Cambridge Judge Business School, Graham Gudgin, one of the authors of the new report: ̽��ֱ��Macro-Economic Impact of Brexit: Using the CBR Macro-Economic Model of the UK Economy (UKMOD), and Simon Deakin, Director of the CBR and Professor of Law at the ̽��ֱ�� of Cambridge, discuss how the UK economy is likely to perform in 2017 and what would be the best model for leaving the EU.

Gudgin says that, according to ̽��ֱ��Treasury, we should have been in recession by now, but we are not. "Things are maybe a bit delayed but the whole succession of investment announcements we have had from Nissan, Microsoft and others suggests that companies are taking a much more sanguine view of this than the Treasury and others have suggested," he says.

Possible options: from the EEA to bespoke trade deals

Deakin explains the four possible options the UK government could pursue for leaving the EU: re-joining (or remaining in) the EEA (European Economic Area); becoming a member of the EU’s customs union; undertaking a series of bespoke trade deals, such as Switzerland has; or, if none of the above apply, defaulting to the rules of the World Trade Organization. ̽��ֱ��first two of these would mean accepting the free movement of persons, which the current policy of the British government appears to rule out.

Gudgin suggests that, since the policy of migration control is likely to be maintained, the UK will try to negotiate a new trade deal with the EU, perhaps along the lines of the recent EU-Canada agreement. Some argue that this could take a decade or more to achieve, but Gudgin takes the view that since we are starting from an existing free-trade situation, the task is much easier.

No quick agreement is however likely and whether the EU and the UK can negotiate transitional arrangements to bridge that gap remains to be seen. Any new trade deal will also have to be conducted within the framework of WTO rules, says Gudgin, which will add to the complexity of the negotiations.

Deakin explains: “Nearly every European country is either in the single market or in the customs union. For example, Norway, via the EEA, is in the single market but not the customs union; Turkey is in the customs union but not the single market. There are a number of other options. Switzerland is not part of the European Economic Area, but has a number of bilateral trade deals with the EU.

"These are conditional on Switzerland allowing free movement of labour (which a recent Swiss referendum vetoed) and capital. Countries in the single market, including those in the EEA, must conform to EU rules and regulations regarding product standards, labour laws and environmental protection, among other things.

"Customs union membership implies internal free trade and a single external tariff, but countries outside the EU which are in that position, such as Turkey, cannot make their own trade deals with third countries. If we went for that option post-Brexit, we would not be bound by all the rules of the single market but we couldn’t do our own trade deals with third countries.

̽��ֱ��WTO also have rules on how migrant workers may be treated in host states which are not that dissimilar to those operating in the EU’s single market
Simon Deakin

“If we were in the EEA we couldn’t avoid rules on free movement of labour or capital. You either accept the four freedoms, the movement of goods, services, people and capital over borders, or you don’t; you can’t cherry pick. ̽��ֱ��UK could try for a Swiss style option where you try to have free movement but then modify it somewhat, but the Swiss have had to sign up to most aspects of free movement in order to get access to the single market. To get around the rules of free movement of labour and capital it is highly likely the UK would have to be outside the EEA.

"We could still sign up to the customs union, Turkey isn’t subject to the rules on free movement of labour, for example, nor is the EU required to accept free movement of persons from Turkey into the EU, but then we wouldn’t have the freedom to do trade deals with third countries, which the UK has said it wants to have; that is why the International Trade Department was brought back.

“WTO rules do not require member states to accept free movement of labour, they do, however, contain some rules on issues like state aids, to prevent distortions of international trade. ̽��ֱ��WTO also have rules on how migrant workers may be treated in host states which are not that dissimilar to those operating in the EU’s single market, and are highly contentious for the same reasons. WTO rules on these issues are generally not as strict as EU laws and do not form part of UK domestic law. International law obligations cannot be enforced in the same way as EU laws can be. However, the WTO option is not a blank slate for the UK.”

Trade deal within two years – unlikely

Deakin goes on to say that as things stand there is uncertainty over what Brexit might mean, even if it is possible to identify some of the main features of each of the principal options: “Lawyers can say what the general framework is for each of these four options, EEA, customs union, Swiss option, WTO, but until we know more about how the government will wish to conduct its negotiations with the EU and about the EU’s position going forward it is hard to make predictions. There are many issues we don’t have a clear answer to.

“We can sketch out broadly what happens for each of these main options but I think there is a case for more research to be done. It is most unlikely that there will be a trade deal negotiated within two years of triggering Article 50, and as the process of negotiation and deliberation unfolds new issues will arise. These may crop up at sector level, particular industries may have issues that need to be worked through, and individual companies may raise points about their position and if they receive guarantees from government there will be issues of state aids to consider under both EU and WTO law. At the moment we just don’t have a good set of answers to these questions.”

Deakin says a transitional agreement with the EU would need to be a one-off bespoke arrangement as there is no provision for such an agreement within EU treaties: “We are bound by EU law until we leave, we are bound by international law to maintain the treaties that we have signed up to until we withdraw from them. Until the European Communities Act is repealed we must apply EU law domestically and even after the so called Great Repeal Act, which the government has promised to bring in, is implemented, many of the same provisions will be replicated within UK law.

Transitional agreement?

“There is talk of a so-called transitional agreement and that could involve staying in the EEA, while things are worked out, but there is no obligation on the side of the EU to offer us a transitional deal. This would have to be a bespoke arrangement as it is not provided for at the moment under the EU treaties. It remains to be seen if that sort of soft landing is possible, let’s see what is put on the table after negotiations between the UK and the EU begin. Whatever happens, we need to understand the institutional impact of Brexit in order to get a better understanding of what its economic effects will be.

“We do need independent research to be carried out on this question because so far most of the research that has been done on this has been by one or other side of the Brexit argument. ̽��ֱ��government has its own researchers in the civil service and of course this is objective, high quality research; the OBR is doing independent economic forecasting. However, there is a public demand for independent, non-partisan research, conducted outside government and the political arena. Thus there is an important role for ̽��ֱ��-based research; this should feed into the process of deliberation as Brexit unfolds”.

We have looked very carefully at what the Treasury has said about this and we find its work very flawed and very partisan
Graham Gudgin

Gudgin agrees with Deakin that better research and economic forecasting models are needed. He thinks that in reality the only option for the UK to leave the EU, other than the WTO fall-back, is under the terms of the so called Canadian model.

“There are probably only two practical options. One is a free trade agreement along the lines of the one Canada has just signed, or else no agreement on trade in which case you fall back on WTO rules. ̽��ֱ��impact of both of those is pretty uncertain. We have looked very carefully at what the Treasury has said about this and we find its work very flawed and very partisan. It is not objective. I agree with Deakin that we need some more objective economic work on this, the whole debate has been coloured by a lot of hyperbolic discussion.

̽��ֱ��Treasury: four quarters of recession?

“ ̽��ֱ��Treasury said there would be four quarters of recession, we have had six months since the Brexit vote, we should have been in recession by now, but we are not. Things are maybe a bit delayed but the whole succession of investment announcements we have had from Nissan, Microsoft and others suggests that companies are taking a much more sanguine view of this than the Treasury and others have suggested.

“We have looked at the Nissan deal in terms of what degree of currency depreciation you would need to offset the 10 per cent tariff that motor manufacturers could face under WTO rules, and the answer to us is that it looks like a 15 per cent depreciation of sterling would offset a 10 per cent tariff. We have already had a 12 per cent depreciation so we are pretty well there. This may have been what the government was relying upon: it is the currency depreciation that bridges that gap."

Gudgin says that the EU has not been very good at agreeing free trade deals with third countries: “Theresa May has said very clearly that there will be control over migration and she rightly recognises that was the key point in the referendum. ̽��ֱ��EEA and Swiss bilateral treaties all depend on free movement of labour. It shows just how difficult even the Swiss approach is.

" ̽��ֱ��Canadian model is a free trade agreement which any country can have with the EU, but historically the EU has not been good at having free trade agreements with others. It doesn’t have a free trade agreement with China or the US, and some people such as the Economists For Brexit see the EU as being a highly protectionist organisation. If the EU has a free trade agreement with Canada, good heavens, they surely can have one with the UK.”

Gudgin explains these predictions in the podcast:

“2017 won’t be a great year but growth of GDP will be between 1.0 and 1.5 per cent rather than the 2 per cent it would have been without Brexit. It could even be 2 per cent but we don’t yet really know much about company investment intentions. GDP growth is slowing but will not be too bad.
" ̽��ֱ��sterling depreciation of 10 to 12 per cent will mean inflation will rise to about 3 per cent by the end of 2017. It will be higher than it has been for some years. ̽��ֱ��big question is will inflation get out of hand and we don’t think it will. Remember most countries have been trying to increase their inflation up to 2 per cent to get their exchange rates down. ̽��ֱ��UK has done it in one bound.
" ̽��ֱ��UKMOD equations tell us wages will start to rise as prices rise. We are pretty close to full employment, so workers have bargaining power. ̽��ֱ��Bank of England published its forecast for wages recently and we agree wages will rise to something like 3 per cent by the end of 2017."

̽��ֱ��above text was originally posted as a blog on the Judge Business School website.

Economists at the Centre for Business Research (CBR) have challenged the assumptions of the Treasury in their new forecast for the UK economy and the impact of Brexit in 2017.

There is a public demand for independent, non-partisan research, conducted outside government and the political arena. There is an important role for ̽��ֱ��-based research; this should feed into the process of deliberation as Brexit unfolds

Simon Deakin

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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

̽��ֱ��text in this work is licensed under a Creative Commons Attribution 4.0 International License. For image use please see separate credits above.

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Brexit: Listen to experts from Cambridge and beyond discuss how, why and what next for Brexit Britain

fpjl2 — Wed, 02 Nov 2016 12:40:50 +0000

̽��ֱ�� ̽��ֱ�� of Cambridge recently held a week-long series of Brexit talks and discussions, featuring senior experts in law, politics, history, science and economics from Cambridge and beyond.

̽��ֱ��aim was to engage both ̽��ֱ�� students and the local community in debates on how Britain moves towards departure from the European Union in the wake of June’s referendum.

You can listen to some of the talks below, or download from iTunesU here.

How Did We Get Here?

Tuesday 18th October

Robert Tombs, Professor of Modern European History at Cambridge's Faculty of History

Robert Tombs is the author of a recent epic history of England, and a renowned expert on nineteenth-century French political history and the relationship between the French and the British. During the EU Referendum campaign, he was a signatory on a letter produced by ‘Historians for Britain’, which supported a Leave vote, and has written about the future of the UK post-Brexit.

Dr Victoria Bateman, Fellow and College Lecturer in Economics at Gonville & Caius College, Cambridge

Victoria Bateman is an economic historian at Cambridge, and a Fellow at the Legatum Institute think tank. Her current research focuses on the European economy from early-modern times to the present. Victoria has called for a sexual revolution in economics due to a lack of women in the discipline, and wrote articles in favour of a Remain vote in the run-up to the EU Referendum. She tweets at @vnbateman.

Dr Chris Bickerton, ̽��ֱ�� Lecturer in Politics at POLIS and Official Fellow at Queens’ College, Cambridge

Chris Bickerton’s research focuses on the dynamics of state transformation and the challenges facing representative democracy in Europe. He has written a recently published book called ̽��ֱ��European Union: A Citizen’s Guide. During the run-up to the EU Referendum, Chris wrote in favour of a Leave vote, making the left-wing case for Brexit. He tweets at @cjbickerton.

Key Issues for the UK and EU Post-Brexit

Wednesday 19th October

Coen Teulings, Professor of Labour Economics and Industrial Relations at Cambridge’s Faculty of Economics

As well as holding the Montague Burton Chair at Cambridge, Coen Teulings is a Professor of Economics at the ̽��ֱ�� of Amsterdam. He has written extensively about wages and income inequality, and spent seven years as the Director of the Central Planning Bureau — the Netherlands’ official economic forecasting agency. He has talked publicly about the risks posed by Brexit to free trade.

Athene Donald, Professor of Experimental Physics at Cambridge’s Cavendish Laboratory and Master of Churchill College

Athene Donald has served on the ̽��ֱ��’s Council and as its gender equality champion. She was appointed a Dame Commander of the British Empire in 2010, and Master of Churchill College in 2013. Athene wrote and talked extensively on the dangers that a Leave vote posed for UK science during the run-up to the EU Referendum. She is a regular blogger, and tweets at @AtheneDonald.

Charles Clarke, former Home Secretary

Charles Clarke is a Visiting Professor at the Policy Institute of Kings College London. He was MP for Norwich South from 1997 to 2010, and served as Home Secretary between 2004 and 2006 in Tony Blair’s Labour Government. During the run-up to the EU Referendum, Charles co-authored a report warning that intelligence relationships would be damaged by a Leave vote.

Process and Politics of the UK Leaving the EU

Thursday 20th October

David Runciman, Professor of Politics and Head of Department at POLIS and Fellow at Trinity Hall, Cambridge

David Runciman’s current research projects include the Leverhulme-funded Conspiracy and Democracy project and Future of Intelligence centre. In 2013, he published the book ̽��ֱ��Confidence Trap, a history of democratic crises since WWI. David hosts the weekly podcast Talking Politics from his Cambridge office, and has written that the Referendum vote shone a light on the education divide in democracy.

Mark Elliott, Professor of Public Law at the Faculty of Law, and Fellow at St Catharine’s College, Cambridge

Mark Elliott has written a number of books on public law, and is Legal Adviser to the House of Lords Constitution Committee. Mark writes a highly regarded blog called Public Law for Everyone, on which he analyses many of the legal issues surrounding the triggering of Article 50 and Theresa May’s Great Repeal Bill. Mark tweets at @ProfMarkElliott, and the slides from this talk are available at his blog.

Global Britain? ̽��ֱ��Future of British Trade after Brexit

Thursday 20th October

̽��ֱ��Rt. Hon. Greg Hands MP, Minister of State in the Department for International Trade, delivered this year’s Alcuin Lecture at Cambridge’s Department of Politics and International Studies (POLIS). Greg was appointed to his current position by Theresa May in July 2016, where he serves as number two to Secretary of State Liam Fox. He tweets at @GregHands.

̽��ֱ��UK and Brexit: How, Why and Where Now?

Friday 21st October

Matthew Elliott, Head of Vote Leave

Matthew Elliott is the former Chief Executive of the Vote Leave campaign. He is now Editor-at-Large of BrexitCentral, recently launched with the aim of “promoting a positive vision of Britain after Brexit”. He was a founder and former Chief Executive of the political think tank ̽��ֱ��TaxPayers’ Alliance. Matthew tweets at @matthew_elliott.

Catherine Barnard, Professor of European Union Law and Employment Law at the Faculty of Law, and Fellow of Trinity College, Cambridge

Catherine Barnard is a leading expert on EU internal markets and employment law, publishing extensively in these fields. She is a Senior Fellow of the ESRC’s UK in a Changing Europe initiative, and is jointly leading the EU Migrant Worker research project. Catherine regularly commented in the media during and after the EU Referendum. She has recently written that there could be free movement of workers in any Brexit deal. Catherine tweets at @CSBarnard24.

Jonathan Portes, Principal Research Fellow at the National Institute of Economic and Social Research

In addition to his role at the NIESR, Jonathan Portes is also a Senior Fellow of the UK in a Changing Europe initiative. Previously, he served as Chief Economist at the Cabinet Office. Jonathan’s new book, 50 Capitalism Ideas You Really Need to Know, has just been published. During the run-up to the EU Referendum, he wrote on the misrepresentation of migration by sections of the media. Jonathan tweets at @jdportes.

Anand Menon, Professor of European Politics and Foreign Affairs at King’s College London

Anand Menon is the Director of the UK in a Changing Europe initiative, and has written widely on many aspects of EU politics and policy and on UK-EU relations. As part of the initiative, he recently led on a report suggesting that “Brexit has the potential to test the UK’s constitutional settlement, legal framework, political process and bureaucratic capacities to their limits”. Anand tweets at @anandMenon1.

Listen to some of the talks that were given as part of the ̽��ֱ��'s 'Brexit Week' series, which took place from 18 - 22 October.

Ed Everett

̽��ֱ��text in this work is licensed under a Creative Commons Attribution 4.0 International License. For image use please see separate credits above.

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