Weekly round-up of events

This week’s event announcements include:

  1. ‘Justice, Injustice and Brexit’ workshop, City Law School, 19 October 2018
  2. ‘Constitutional Supremacy and Judicial Reasoning: Doctrinal Difficulties in Canada and Abroad’, Policy Exchange, 18 October 2018

~~~

Workshop at City Law School: Justice, Injustice and Brexit

Friday 19th October 2018, 10.15am – 4.00pm

Organisers: 
Tawhida Ahmed and Elaine Fahey, City Law School

Participants:
Tawhida Ahmed, City Law School, City, University of London
Samo Bardutzky, University of Ljubljana, Slovenia
David Collins, City Law School, City University of London
Joseph Corkin, Middlesex University, London
Elaine Fahey City Law School, City, University of London
Joelle Grogan, Middlesex University, London
Sabrina Germain, City Law School, City, University of London
Dora Koskakopolou, University of Warwick
Mazen Masri, City Law School, City, University of London
Eva Nanopoulos, Queen Mary, University of London
Paul O’ Connell, SOAS
Samantha VellutiSussex European Institute, University of Sussex
Gabriel Siles-Brugge, University of Warwick
David Seymour, City Law School, City, University of London
Ermioni Xanthapoulou, Brunel Law School, Brunel University, London
Adrienne Yong,  City Law School,  City, University of London

Event Outline
The UK electorate’s referendum vote in favour of leaving the European Union has provoked heated debates on just what kind of impacts Brexit has had, could have, and will further have, for our perspectives on justice and injustice. For some, the calling of a referendum itself was democratically unjust; to others the referendum epitomised the very essence of a just democratic process for both the UK and the European Union more widely.

Likewise, extensive discussions and views continue to be espoused on the pouring of resources into the EU and how this hinders or furthers justice in terms of allocation and redistribution of resources. Relatedly, the justice and injustice of the sharing of these and other resources, amongst British citizens, EU citizens, and others in the UK territory, brings up questions concerning what kind of British, European and indeed global society we want, envisage and, is most just. It brings to the fore, questions about the value and structure of the state, in a world which has, of recent decades, been more vividly constructed as globalist, interconnected, and as being of ‘beyond the state’. It explores the consequences of global governance for justice at national and international levels, as well as vice-versa, the effects of national level ideals of justice on global governance.

This workshop and project undertakes an exploration of ideas of justice and injustice in the context of Brexit. We ask, whose justice is affected by Brexit? What justice is affected by Brexit? What does a just society look like?  Whether Brexit is perceived as one of justice or injustice is related strongly to our perspective on the kind of British, European and global society we want and envisage. The project offers critical reflections upon gender, race, ethnicity, governance, trade, migrants, culture and constitutional law, in the context of Brexit and reflects upon the role of national and international authorities, as well as civil societies. It considers: justices and injustices of Brexit pervade national, European and global spaces, and, being extraordinarily multifaceted in nature, call for pause and renewed reflection on the ways in which models of ‘united in diversity’ can be achieved, if indeed they can be achieved. The event and project also consider concerns around how a ‘just’ Brexit is to be evaluated, including what objective analytical tools are appropriate to evaluate this. It reflects upon the need for objective methodological tools to rigorously analyse and question our understanding of whether and how national and global governance affect the pursuance of a just society.

A programme for the event can be found here.

The website for the event can be found here.

Places are strictly limited and those interested must register interest first with Stephen Hitchcox (S.M.Hitchcox@city.ac.uk) and await confirmation.

~~~

Policy Exchange invites you to hear from

The Hon Justice Bradley W Miller
Court of Appeal for Ontario

on

Constitutional Supremacy and Judicial Reasoning:
Doctrinal Difficulties in Canada and Abroad

with a Vote of Thanks by

The Rt Hon Lord Sumption
Justice of the Supreme Court

Time & Date: Thursday 18th October 2018

12.30 – Registration

13.00 – Event start

14.00 – Event close

Venue: Policy Exchange, 8-10 Great George Street, Westminster, London SW1P 3AE

Judicial reasoning often takes place in circumstances of uncertainty, in which the acts of law-making that are to guide judgment – case law, statutes – are underdetermined. The problem can be particularly acute in constitutional adjudication, where the settlement achieved in constitutional texts may be only partial, and stated at a high level of generality and abstractness that perhaps papered over profound underlying disagreement.  Keeping the constitution supreme is a challenge in the difficult circumstances of incomplete constitutional settlement.

Courts play an important role in taking the commitments that a political community has made through the constitution making process, and using them to craft legal rules that can be applied to particular disputes.  But some constitutional doctrines created by courts, in Canada and elsewhere, are prone to misapplication and provide unintentional support for an outsized role for judges in making constitutional law. This lecture considers two doctrines that have become close to constitutional bedrock but which warrant a closer look: (1) the practice of interpreting a constitutional or quasi-constitutional text as a “living” instrument; and (2) the two-stage structure of constitutional rights, which defines rights broadly and invites states to justify their “violation”.

The Hon Justice Bradley W. Miller was appointed to the Superior Court of Justice in Ontario in January 2015 and was elevated to the Court of Appeal for Ontario in June 2015.  He holds a DPhil from the University of Oxford and practiced commercial and constitutional litigation in Canada with Lerners LLP and Miller Thomson LLP in Toronto.  From 2005-2015, he was a law professor at the University of Western Ontario and  His published work includes the collections The Challenge of Originalism (2011) and Proportionality and the Rule of Law (2014), as well as the co-authored monograph Legislated Rights (2018).

To apply for a place please fill in the form here. You will receive an email if we are able to offer you a place.

Delegated Powers CommitteeOver the next six months of the Brexit process, the UK Parliament will make a number of decisions that will have a profound impact on the UK’s constitution and its legal systems. In a Bingham Centre for the Rule Law Report published this week, The Withdrawal Agreement and the Political Declaration: A Preliminary Rule of Law Analysis, we argue that the next six months represents a major test for the Rule of Law in the UK.

The Rule of Law does not itself provide answers to the question of what form Brexit should take. The Rule of Law does though supply a set of standards that Government and Parliament can and should use to ensure that Brexit is compatible with the UK’s own constitutional values. The parliamentary process provides an opportunity for MPs and Peers to use those standards to scrutinise the details of the legal arrangements proposed by the Government.

This post highlights a number of the Rule of Law issues that are likely to arise during Parliament’s scrutiny of the legal implications of the Withdrawal Agreement, the Political Declaration and the EU (Withdrawal Agreement) Bill.

Parliamentary scrutiny and the Rule of Law

The basic conditions of Parliament’s role in the final months of Brexit are set out in legislation. Section 13 of the EU (Withdrawal) Act 2018 requires that the Withdrawal Agreement and the Political Declaration are approved by a Commons resolution and that the European Union (Withdrawal Agreement) Bill is enacted by Parliament before exit day.

These basic rights do not guarantee that Parliament will be able to effectively scrutinise the legal implications of these proposals. There will be huge political pressure on parliamentarians to approve what is presented by the Government with minimum fuss, and with exit day fast-approaching, there is a clear risk that in practice the opportunities for scrutinising the detail will be limited. Effective parliamentary scrutiny not only enhances the accessibility of the law, it also enables parliamentarians to determine whether the substance of the proposed changes conforms to the Rule of Law and other constitutional values.

The Bingham Centre’s report outlines three steps that could maximise the ability of Parliament to examine the legal implications of Brexit ahead of these far-reaching constitutional decisions. The first would be to publish the European Union (Withdrawal Agreement) Bill in draft form alongside the Withdrawal Agreement and the Political Declaration. The basic principle being that MPs should be able to evaluate the potential domestic legislative effect of the Withdrawal Agreement before the decision on approval in principle is taken.

The second would be for the Government to publish explanatory material that outlines the legal implications of the Withdrawal Agreement, the Political Declaration and the EU (Withdrawal Agreement) Bill. Each of these three elements of the Brexit process will raise complex legal questions and any explanatory material which outlines their legal implications in a politically neutral manner could be instrumental in supporting effective scrutiny.

The third would be to ensure that parliamentary committees can report before the major parliamentary decisions are taken. The UK Parliament’s constitutional and legal expertise is concentrated in its committees (for example the Procedure Committee and the Exiting the EU Committee in the Commons and the Constitution Committee and the Delegated Powers Committee in the Lords). If parliamentary committees were able to report on the Withdrawal Agreement, the Political Declaration and the European Union (Withdrawal Agreement) Bill this would enhance parliamentarians’ ability to identify the major legal implications of approving the Government’s proposals.

The Withdrawal Agreement and the EU (Withdrawal Agreement) Bill

The Withdrawal Agreement and the EU (Withdrawal Agreement) Bill will both address a number of significant constitutional issues, including: Citizens’ Rights, transition, the Protocol on Ireland and Northern Ireland, and dispute resolution.

The Withdrawal Agreement is a treaty which can deliver a degree of legal certainty, a core value of the Rule of Law, for the UK after exit day. The parliamentary process, set out in Section 13, enables the Commons to approve or reject the Withdrawal Agreement, it does not allow the text of the Withdrawal Agreement to be changed. However, approving the Withdrawal Agreement will raise a number of legal questions about how the treaty should be implemented by the EU (Withdrawal Agreement) Bill, including:

  • How will the EU (Withdrawal Agreement) Bill seek to provide constitutional protection for Citizens’ Rights?
  • How will the EU (Withdrawal Agreement) Bill change the legal effect of the EU (Withdrawal) Act 2018?
  • How will the Protocol on Ireland and Northern Ireland be implemented by the EU (Withdrawal Agreement) Bill?
  • How much weight will domestic courts be instructed to give the judgments of the Court of Justice when interpreting and enforcing the provisions in the Withdrawal Agreement?

At this stage it is not possible to know the answers to these questions. The more important point is to recognise the important role of Parliament in scrutinising the answers that are eventually provided by the Government when the EU (Withdrawal Agreement) Bill is introduced. All of the above questions raise complex constitutional issues that could have far-reaching consequences for the Rule of Law.

Even if there is political agreement on the content of the Withdrawal Agreement as negotiated by the UK and the EU, it is important from a Rule of Law perspective that parliamentarians carefully examine the constitutional and legislative tools used to implement the treaty’s contents. On issues such as Citizens’ Rights and the Ireland and Northern Ireland Protocol, the devil will be in the domestic legislative detail.

The Political Declaration

The Political Declaration (the Framework on the Future Relationship) poses the most risks for Parliament’s ability to scrutinise the Rule of Law implications of Brexit. The Political Declaration is a political agreement rather than a legal treaty, and yet under the terms of section 13 of the EU (Withdrawal) Act 2018 and Article 50 TEU, the Commons is being asked to the approve the terms of departure without sight of the detailed legal text that will govern the long term economic relationship between the EU and the UK.

While the Political Declaration may not be legally binding, it could still have significant legal implications. For example, the substance of the Political Declaration could influence how the Government uses the delegated powers already enacted by Parliament to prepare for Brexit, by modifying the extent to which retained EU law contains deficiencies. It will also provide vital context to inform how the legal provisions in the Withdrawal Agreement, such as the Protocol on Ireland and Northern Ireland, could work in practice.

To minimise the risk of legal confusion arising during the debate on the Political Declaration, the Government should outline, when it is presented to Parliament, the potential legal implications of its approval. The Government should also explain what role Parliament will play in the process of approving and implementing the Treaty on the Future Relation between exit day and the end of transition on 31 December 2020.

Conclusion

Parliament has two main roles in the final months before exit day. The first is to take the big political decisions that will shape the UK’s relationship with the EU after exit day. The second is to supervise a process of constitutional and legal change through the legislative process. To ensure that the Brexit process does not damage the Rule of Law, Parliament must give equal attention to both.

Dr Jack Simson Caird, Senior Research Fellow in Parliaments and the Rule of Law, Bingham Centre for the Rule of Law

(Suggested citation: J. Simson Caird, ‘Taking Back Control: Brexit, Parliament and the Rule of Law’, U.K. Const. L. Blog (10th Oct. 2018) (available at https://ukconstitutionallaw.org/))

Weekly round-up of events

University of London Dora Koskakopolou

This week’s event announcements include:

  1. ‘Justice, Injustice and Brexit’ workshop, City Law School, 19 October 2018
  2. ‘Constitutional Supremacy and Judicial Reasoning: Doctrinal Difficulties in Canada and Abroad’, Policy Exchange, 18 October 2018

~~~

Workshop at City Law School: Justice, Injustice and Brexit

Friday 19th October 2018, 10.15am – 4.00pm

Organisers:
Tawhida Ahmed and Elaine Fahey, City Law School

Participants:
Tawhida Ahmed, City Law School, City, University of London
Samo Bardutzky, University of Ljubljana, Slovenia
David Collins, City Law School, City University of London
Joseph Corkin, Middlesex University, London
Elaine Fahey City Law School, City, University of London
Joelle Grogan, Middlesex University, London
Sabrina Germain, City Law School, City, University of London
Dora Koskakopolou, University of Warwick
Mazen Masri, City Law School, City, University of London
Eva Nanopoulos, Queen Mary, University of London
Paul O’ Connell, SOAS
Samantha Velluti, Sussex European Institute, University of Sussex
Gabriel Siles-Brugge, University of Warwick
David Seymour, City Law School, City, University of London
Ermioni Xanthapoulou, Brunel Law School, Brunel University, London
Adrienne Yong, City Law School, City, University of London

Event Outline
The UK electorate’s referendum vote in favour of leaving the European Union has provoked heated debates on just what kind of impacts Brexit has had, could have, and will further have, for our perspectives on justice and injustice. For some, the calling of a referendum itself was democratically unjust; to others the referendum epitomised the very essence of a just democratic process for both the UK and the European Union more widely.

Likewise, extensive discussions and views continue to be espoused on the pouring of resources into the EU and how this hinders or furthers justice in terms of allocation and redistribution of resources. Relatedly, the justice and injustice of the sharing of these and other resources, amongst British citizens, EU citizens, and others in the UK territory, brings up questions concerning what kind of British, European and indeed global society we want, envisage and, is most just. It brings to the fore, questions about the value and structure of the state, in a world which has, of recent decades, been more vividly constructed as globalist, interconnected, and as being of ‘beyond the state’. It explores the consequences of global governance for justice at national and international levels, as well as vice-versa, the effects of national level ideals of justice on global governance.

This workshop and project undertakes an exploration of ideas of justice and injustice in the context of Brexit. We ask, whose justice is affected by Brexit? What justice is …read more

Source:: from ukconstitutionallaw.org

Bingham Centre

Over the next six months of the Brexit process, the UK Parliament will make a number of decisions that will have a profound impact on the UK’s constitution and its legal systems. In a Bingham Centre for the Rule Law Report published this week, The Withdrawal Agreement and the Political Declaration: A Preliminary Rule of Law Analysis, we argue that the next six months represents a major test for the Rule of Law in the UK.

The Rule of Law does not itself provide answers to the question of what form Brexit should take. The Rule of Law does though supply a set of standards that Government and Parliament can and should use to ensure that Brexit is compatible with the UK’s own constitutional values. The parliamentary process provides an opportunity for MPs and Peers to use those standards to scrutinise the details of the legal arrangements proposed by the Government.

This post highlights a number of the Rule of Law issues that are likely to arise during Parliament’s scrutiny of the legal implications of the Withdrawal Agreement, the Political Declaration and the EU (Withdrawal Agreement) Bill.

Parliamentary scrutiny and the Rule of Law

The basic conditions of Parliament’s role in the final months of Brexit are set out in legislation. Section 13 of the EU (Withdrawal) Act 2018 requires that the Withdrawal Agreement and the Political Declaration are approved by a Commons resolution and that the European Union (Withdrawal Agreement) Bill is enacted by Parliament before exit day.

These basic rights do not guarantee that Parliament will be able to effectively scrutinise the legal implications of these proposals. There will be huge political pressure on parliamentarians to approve what is presented by the Government with minimum fuss, and with exit day fast-approaching, there is a clear risk that in practice the opportunities for scrutinising the detail will be limited. Effective parliamentary scrutiny not only enhances the accessibility of the law, it also enables parliamentarians to determine whether the substance of the proposed changes conforms to the Rule of Law and other constitutional values.

The Bingham Centre’s report outlines three steps that could maximise the ability of Parliament to examine the legal implications of Brexit ahead of these far-reaching constitutional decisions. The first would be to publish the European Union (Withdrawal Agreement) Bill in draft form alongside the Withdrawal Agreement and the Political Declaration. The basic principle being that MPs should be …read more

Source:: from ukconstitutionallaw.org

Korea Information

Faisal Islam

Faisal Islam, Political Editor at Sky News, today reported that the Trade Secretary Liam Fox is visiting Korea, a key trade partner of the UK.

I noticed that Islam tweeted what has long been suspected regarding the possible rollover of the EU-Korea FTA, namely that “the EU has not and will not write key letter to Seoul and the other dozens of trade partners asking them to treat UK as a continuing EU member in transition for purposes of trade until Withdrawal Deal done. Limbo.”

A little background: the EU has an FTA in force with Korea. As a matter of law, that will cease to apply to the UK when it leaves the EU on 29 March 2019. Earlier in the year the EU agreed to write a letter to Korea, and its other FTA partners, requesting that the UK is treated as a continuing member of the EU during the transition period into which the UK will move, assuming that a Withdrawal Agreement can be finalised before 29 March 2019 (which despite recent blips I think is still probable, if not certain). If they all say yes, this prevents the scenario under which the UK is effectively treated as a member of the EU by the EU and itself until 1 January 2021, but it falls out of the FTAs, third countries not being bound by the Withdrawal Agreement.

A Withdrawal Agreement is unlikely to be finalised until next month at the earliest. At that point, the EU will ask Korea whether the FTA can still apply to the UK. Korea may say yes, it may say no, or it may say yes subject to conditions/concessions. It may not assent, if it assents at all, before 29 March 2019.

Many UK businesses consider that if the UK enters into transition, nothing will change until 1 January 2021. That may largely be true, although no business should assume that the UK will enter into a transition period and avoid a cliff-edge Brexit next year, and businesses should have advanced “no deal” plans by now. But the EU-third country FTA issue could be a problem for some businesses even if the UK goes into transition.

Any UK business that trades with Korea, or any other country with which the EU has an FTA, needs to consider what might happen if that FTA ceases to apply in March 2019. So does any business in a …read more

Source:: from brexitlegal.com

Seoul Trader

Faisal Islam

Faisal Islam, Political Editor at Sky News, today reported that the Trade Secretary Liam Fox is visiting Korea, a key trade partner of the UK.

I noticed that Islam tweeted what has long been suspected regarding the possible rollover of the EU-Korea FTA, namely that “the EU has not and will not write key letter to Seoul and the other dozens of trade partners asking them to treat UK as a continuing EU member in transition for purposes of trade until Withdrawal Deal done. Limbo.”

A little background: the EU has an FTA in force with Korea. As a matter of law, that will cease to apply to the UK when it leaves the EU on 29 March 2019. Earlier in the year the EU agreed to write a letter to Korea, and its other FTA partners, requesting that the UK is treated as a continuing member of the EU during the transition period into which the UK will move, assuming that a Withdrawal Agreement can be finalised before 29 March 2019 (which despite recent blips I think is still probable, if not certain). If they all say yes, this prevents the scenario under which the UK is effectively treated as a member of the EU by the EU and itself until 1 January 2021, but it falls out of the FTAs, third countries not being bound by the Withdrawal Agreement.

A Withdrawal Agreement is unlikely to be finalised until next month at the earliest. At that point, the EU will ask Korea whether the FTA can still apply to the UK. Korea may say yes, it may say no, or it may say yes subject to conditions/concessions. It may not assent, if it assents at all, before 29 March 2019.

Many UK businesses consider that if the UK enters into transition, nothing will change until 1 January 2021. That may largely be true, although no business should assume that the UK will enter into a transition period and avoid a cliff-edge Brexit next year, and businesses should have advanced “no deal” plans by now. But the EU-third country FTA issue could be a problem for some businesses even if the UK goes into transition.

Any UK business that trades with Korea, or any other country with which the EU has an FTA, needs to consider what might happen if that FTA ceases to apply in March 2019. So does any business in a …read more

Source:: from brexitlegal.com

Yesterday at the Labour Party Conference, the cat was finally let out of the bag. Labour’s Shadow Brexit Secretary, Keir Starmer, confirmed that Labour were not “ruling out Remain as an option” as he backed a second referendum. His repeated promises to respect the referendum result lie in tatters.

We now know Labour have no intention of delivering Brexit and want to take us back to square one.

The Labour Party Conference kicked off with Jeremy Corbyn saying he would back whatever position his party members voted for on a second referendum. Then Corbyn’s right-hand man, the Shadow Chancellor John McDonnell, said the second referendum would not offer an option to Remain in the EU.

But only hours later the Shadow Chancellor was unceremoniously slapped down by Labour’s Shadow Brexit Secretary, Keir Starmer, who said “nobody was ruling out” the option of staying in the EU.

The next day Keir Starmer refused to rule out delaying Brexit, refused to confirm Labour would end freedom of movement and opened the door to staying in the EU with a second referendum.

Labour’s promise to respect the result of the referendum has unravelled.

The Labour Party made a promise to voters in their manifesto to respect the result – and now they are tearing up that pledge. They have shown they are determined to reject a deal with the EU out of hand, delay Brexit and, ultimately, re-run the referendum.

They’ve shown themselves to be more interested in playing political games and frustrating the Brexit process than delivering on the will of the British people.

Labour’s promises on Brexit are not worth the paper they’re written on.

Whilst Labour have been putting up blocks every step of the way, we have been negotiating for a Brexit plan that takes back control of our laws, borders and money.

We have known for some time that Labour want to frustrate the will of the British people, which is why we launched the Respect the Result campaign. This campaign has been encouraging voters in Leave constituencies to tell their MPs they want them to back Brexit. We cannot allow Labour to betray the millions of people who voted in good faith to leave the EU.

The vote on 23rd June 2016 was the largest democratic exercise this country has every undergone. The Conservative Government are delivering on the decision made by the country – to leave the EU and take back control of our money, laws …read more

Source::

general election

Heather Stewart considers whether support for a possible public vote marks a real policy shift

The nub of the party’s conference motion, thrashed out over five gruelling hours late on Sunday, is that if Theresa May’s Brexit deal is rejected (assuming she gets one at all), Labour will seek a general election – but failing that, a referendum should not be ruled out.

Continue reading… …read more

Source:: from www.theguardian.com

Brexit Shadow Brexit secretary

Shadow Brexit secretary applauded after saying ‘nobody is ruling out remain’

Labour conference delegates overwhelmingly backed the party’s Brexit policy on Tuesday after Keir Starmer sparked a burst of sustained applause for dropping into his conference speech the line that “nobody is ruling out remain as an option”.

Brexit has been among the most contentious issues in Liverpool. Labour’s members are overwhelmingly pro-remain; but some MPs from leave seats in the party’s traditional heartlands are concerned about any shift that might smack of trying to reverse the 2016 referendum.

Continue reading… …read more

Source:: from www.theguardian.com




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