Brexit and the Challenges of a ‘Post-Sovereign’ Legal Landscape

2020 ◽  
pp. 381-396
Author(s):  
Sionaidh Douglas Scott
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Legal Theory ◽  
State Level ◽  
The State ◽  
Legal Order ◽  
Constitutional Theory ◽  
Eu Law ◽  
The European Union ◽  
The United Kingdom

This chapter explores issues of law and governance at state level, and at levels above and below the state. It focuses on the European Union as a striking example of supranational law, as well as on the issue of sovereignty in a post-Brexit world. It argues that neither a retreat into a nostalgic Brexiter vision of sovereignty, nor the EU’s ‘new legal order’ can provide conclusive sovereignty and constitutional arrangements, because both systems are ‘unsettled’ (Neil Walker’s term). Neither law, constitutional theory, nor legal theory has settled the issue of sovereignty. EU law overlaps and intermingles with national law. The United Kingdom will lack constitutional stability, whether it remains in the European Union or not.

Preservative or Transformative? Theorizing the U.K. Constitution Using Comparative Method

2020 ◽  
Vol 68 (2) ◽  
pp. 412-440
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Comparative Method ◽  
The State ◽  
Power Sharing ◽  
The European Union ◽  
Multilevel Systems ◽  
The United Kingdom ◽  
Comparative Constitutional Law ◽  
The Stability

Abstract The complexities of the United Kingdom’s decision to withdraw from the European Union while simultaneously honoring its prior commitments to its decentralized, autonomous, and constituent regions have put constitutional questions back on the map. The dominant approach analyzes these questions premised on the “preservative” view of the constitution. This view prioritizes the stability and continuity of the institutions in Westminster (Parliament) and Whitehall (central executive). However, the preservative view of the constitution is theoretically and practically deficient as it cannot give an account of the multipolar and decentralized developments of the past twenty years. Another interpretation regards the legal and political changes to the constitution as “transformative.” This view accentuates the fragility of the U.K. constitution due to a plurality of constitutional rules and the ongoing processes of devolution of powers within multilevel systems of government. This Article discusses that evolution of the U.K. constitution through the prism of comparative constitutional law and its appropriate methodology. The preservative model of the constitution favors a universalist method, whereas the transformative model requires a contextualist method. I argue that the experience of supranational (European Union) and infranational (devolution) power sharing has fundamentally altered the United Kingdom’s central constitutional concepts. To stabilize its fragmentary forces, the United Kingdom needs to adopt concepts that reflect the state as divided, the constitution as transitional, sovereignty as an attribute of the state rather than Parliament, and democracy as conflicted. Nothing less than the future of the United Kingdom as a state is at stake.

scholarly journals Brexit and Acquired Rights

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 440-444 ◽  
Author(s):  
Michael Waibel
Keyword(s):  
European Union ◽  
United Kingdom ◽  
International Law ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Public International Law ◽  
The United Kingdom ◽  
Article 50

On March 29, 2017, the U.K. Government triggered Article 50 of the Treaty on European Union (TEU) on withdrawal from the European Union following a referendum on June 23, 2016 in which 51.89 percent voted for the United Kingdom to leave the European Union. As a hybrid provision, the much-discussed withdrawal provision in Article 50 TEU is part of EU law yet also anchored in public international law. Although the European Union is a unique, supranational organization that creates rights for individuals that are directly effective in national law, its member states created the European Union based on traditional treaties under international law.

4. International Sources of Law

2017 ◽  
Author(s):  
Alisdair Gillespie ◽  
Siobhan Weare
Keyword(s):  
European Union ◽  
United Kingdom ◽  
International Law ◽  
Primary Sources ◽  
Eu Law ◽  
The European Union ◽  
The United Kingdom ◽  
The Uk ◽  
International Conventions ◽  
The Eu

This chapter discusses international sources of law. Conventions and treaties are the primary sources of international law. International law also relies on custom, that is to say informal rules that have been commonly agreed over a period of time. The United Kingdom joined the (then) European Economic Community (EEC) in 1972. As part of the conditions for joining the UK agreed that EEC (now EU) law would become automatically part of the law of the United Kingdom. The principal treaties governing the EU are the Treaty on the European Union and the Treaty on the Functioning of the European Union. Disputes are adjudicated by the Court of Justice of the European Union. Whilst the UK has recently voted to leave the EU, it will not do so for at least two years, meaning EU law will remain part of UK law. The United Kingdom is also a member of the Council of Europe, which has issued a number of international Conventions that impact the English Legal System.

scholarly journals The process of British integration with European Union

2017 ◽  
pp. 161-170
Author(s):  
Olha Samoilova
Keyword(s):  
European Union ◽  
United Kingdom ◽  
European Community ◽  
The State ◽  
The European Union ◽  
The United Kingdom ◽  
Leading Position ◽  
State Of Affairs ◽  
The Uk ◽  
The Eu

The relations with the United Kingdom of Great Britain and Northern Ireland are of the great importance for the European Union as well as for the United Kingdom, since the latter is dependent on the EU policies to some extent. As British nation has formally started the process of leaving the organization, it is important to investigate the process that led to the current state of affairs. To understand the current problem between sides, the history and process of establishing the relations should be studied. The problems appearing throughout the time still remain unresolved and prove the mutual interdependence and importance of their addressing for both the United Kingdom and the European Union. The article researches the main stages of British integration with the EU and their influence on the international relations within the European community. Since the first failed application to join the EEC in 1961 and later accession in 1973, the UK managed to occupy the leading position in the European Community with a number of beneficial rights. However, within the state the European integration provoked conflicts, i.e. between those who believe that Britain's future lies with Europe and those who believe it does not. In 1980-s the UK politicians stressed that the state paid a lot more into the EC budget than other members due to its relative lack of farms. The situation was worsened by J. Delors’ policy towards a more federal Europe and a single currency. T. Blair’s government was more European in its outlook than its predecessor, as he actively advocated the expansion of the European Union. However, Blair’s desire to get closer with the US dissatisfied Europeans. In 2011 D. Cameron became the first UK prime minister to veto a EU treaty. After winning reelection in May 2015, D. Cameron started the process of renegotiating the UK-EU relationship, putting on the list such issues as changes in migrant welfare payments, financial safeguards and easier ways for Britain to block EU regulations. On 23 June 2016 UK voters, inspired by Cameron, elected to withdraw from the European Union. The consequences of Brexit caused serious challenges the UK has to overcome in the nearest future.

The portability of social rights of the United Kingdom with the European Union: Facts, issues, and prospects

2018 ◽  
Vol 20 (4) ◽  
pp. 325-340
Author(s):  
Robert Holzmann ◽  
Jacques Wels
Keyword(s):  
European Union ◽  
United Kingdom ◽  
National Level ◽  
The State ◽  
European Economic Area ◽  
The European Union ◽  
The United Kingdom ◽  
Child Allowances ◽  
The Uk ◽  
State Pension

The portability of social benefits – such as the state pension, child allowances and unemployment benefits – for international migrants is regulated by social security agreements concluded between countries or at supra-national level, such as within the European Economic Area (EEA). Focusing on the United Kingdom, this article aims at capturing the main issues that have been recently raised by such agreements, with particular emphasis on the case of migration between the UK and Europe. The first part of the paper summarises the main consideration researchers and policy makers should bear in mind in looking at portability. Using data from the 2013 World Bank migration matrix, the second part of the paper compares the stock of British migrants residing abroad and the stock of foreigners living in the United Kingdom. The third part of the paper summarises the main issues that were raised in relation to the EEA multilateral agreement including the notion of residence, the state pension, family allowances, and the portability of health care benefits. The conclusions highlight the main concerns and options that lie ahead following the withdrawal of the UK from the European Union.

4. International Sources of Law

2019 ◽  
pp. 96-154
Author(s):  
Alisdair A. Gillespie ◽  
Siobhan Weare
Keyword(s):  
European Union ◽  
United Kingdom ◽  
International Law ◽  
Primary Sources ◽  
Eu Law ◽  
The European Union ◽  
European Economic ◽  
The United Kingdom ◽  
The Uk ◽  
The Eu

This chapter discusses international sources of law. Conventions and treaties are the primary sources of international law. International law also relies on custom, that is to say informal rules that have been commonly agreed over a period of time. The United Kingdom joined the (then) European Economic Community (EEC) in 1972. As part of the conditions for joining, the UK agreed that EEC (now EU) law would become automatically part of the law of the United Kingdom. The principal treaties governing the EU are the Treaty on European Union and the Treaty on the Functioning of European Union. Disputes are adjudicated by the Court of Justice of the European Union. Although the UK voted to leave the EU, it is not known when this will happen, meaning EU law will remain part of UK law for the time being.

The Eu Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom And International Law

2006 ◽  
Vol 55 (1) ◽  
pp. 161-192 ◽  
Author(s):  
HéLène Lambert
Keyword(s):  
European Union ◽  
United Kingdom ◽  
International Law ◽  
Legal Order ◽  
Official Journal ◽  
The European Union ◽  
International Protection ◽  
Minimum Standards ◽  
The United Kingdom ◽  
The Eu

The new legal order in European asylum is being shaped by a key document: the Directive on minimum standards for the qualification and status of third-country nationals as refugees and persons otherwise in need of international protection and the content of the protection granted (hereinafter the Qualification Directive). The Qualification Directive was adopted by the Council of the European Union on 29 April 2004.2 It entered into force on 20 October 2004, that is 20 days after its publication in the Official Journal.3 The Member States have until 10 October 2006 to implement its provisions into national legislation.4 Meanwhile, they have a duty not to adopt measures contrary to it.5 For those countries that have already implemented the Qualification Directive, such as France,6 the judiciary will need to ensure compliance with it.7

scholarly journals Agreeing to Disagree: The European Union and the United Kingdom after Brexit

2020 ◽  
Vol 16 (3) ◽  
pp. 379-416
Author(s):  
Kieran Bradley
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Dispute Settlement ◽  
Transition Period ◽  
Legal Order ◽  
The European Union ◽  
Agreeing To Disagree ◽  
The United Kingdom ◽  
Article 50 ◽  
Legal Character

Brexit – Withdrawal Agreement – Article 50 TEU – Negotiations – Legal character of agreement – Transition period – ‘New legal order’ – ‘Due regard’ – ECJ jurisdiction – Governance – Enforcement and supervision – Dispute settlement – Future relations

Euratom and Brexit: Could the United Kingdom Maintain One Foot in the European Union? Current Scenarios and Future Prospects of British withdrawal from the EAEC

2018 ◽  
Vol 18 (2) ◽  
pp. 134-151
Author(s):  
Andrea Circolo ◽  
Ondrej Hamuľák
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Independent Solution ◽  
Legal Regulation ◽  
The European Union ◽  
The United Kingdom ◽  
The Status ◽  
Long Time ◽  
Energy Community ◽  
The Impact

Abstract The paper focuses on the very topical issue of conclusion of the membership of the State, namely the United Kingdom, in European integration structures. The ques­tion of termination of membership in European Communities and European Union has not been tackled for a long time in the sources of European law. With the adop­tion of the Treaty of Lisbon (2009), the institute of 'unilateral' withdrawal was intro­duced. It´s worth to say that exit clause was intended as symbolic in its nature, in fact underlining the status of Member States as sovereign entities. That is why this institute is very general and the legal regulation of the exercise of withdrawal contains many gaps. One of them is a question of absolute or relative nature of exiting from integration structures. Today’s “exit clause” (Art. 50 of Treaty on European Union) regulates only the termination of membership in the European Union and is silent on the impact of such a step on membership in the European Atomic Energy Community. The presented paper offers an analysis of different variations of the interpretation and solution of the problem. It´s based on the independent solution thesis and therefore rejects an automa­tism approach. The paper and topic is important and original especially because in the multitude of scholarly writings devoted to Brexit questions, vast majority of them deals with institutional questions, the interpretation of Art. 50 of Treaty on European Union; the constitutional matters at national UK level; future relation between EU and UK and political bargaining behind such as all that. The question of impact on withdrawal on Euratom membership is somehow underrepresented. Present paper attempts to fill this gap and accelerate the scholarly debate on this matter globally, because all consequences of Brexit already have and will definitely give rise to more world-wide effects.

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