Some reflections on the practical implications of Miller (the Brexit case)

Like many others, I have been thinking about and discussing Miller (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768) with colleagues today. This is the decision from the High Court that the Government cannot trigger Article 50 in order to begin the process of withdrawal from the EU without getting Parliamentary authorisation first.

Put very shortly (and without wanting to get too far into the details of the reasoning per se), this is because the Court found that, as a constitutional statute and one that created domestic rights and anchored EU rights, the European Communities Act 1972 could not be turned to naught by the Executive. The prerogative power had been constrained by this Act, and it was not within the royal prerogative to make even international treaty decisions (such as withdrawing from the EU) that would disturb this domestic statute. In other words, parliamentary authorisation is required before Article 50 is triggered and the formal process of leaving the EU can begin.

There are already, and will in the coming days, be lots of analyses on the reasoning per se from a constitutional law perspective (see, for example, the reflections of Paul Daly, Kenneth Armstrong and Aileen McHarg). My purpose here is to offer a few reflections more broadly on the implications of the judgment, especially for those more interested in its practical meaning for Brexit than in its (unquestioned) broad constitutional significance per se. Continue reading “Some reflections on the practical implications of Miller (the Brexit case)”

Public Lecture in Hong Kong: A Rule of Law Crisis in Europe?

EDIT (1.9.16): It seems there is quite a bit of interest in this topic, so the location of the lecture has been changed to Room 724 & 725, 7/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong. Registration is still open!

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I will spend next week as a visitor at the Centre for Comparative and Public Law at the University of Hong Kong. While there, I will be participating in a workshop and collaborating with colleagues in the CCPL, meeting with doctoral researchers and discussing their work with them, and also giving a public lecture on Friday, September 3rd.

The lecture, “Is there a Rule of Law Crisis in Europe?”, will take place at 5:30pm on the Centennial Campus of HKU (Small Moot Court, Room 723 Room 724 & 725, 7/F Cheng Yu Tung Tower). Registration is free but encouraged, as there is a registration limit of 50. If you are in Hong Kong at the time you can register here. Continue reading “Public Lecture in Hong Kong: A Rule of Law Crisis in Europe?”

Defending academic freedom in Turkey

In the wake of last week’s failed coup, President Erdoğan of Turkey has been taking ‘decisive’ steps against those he claims or suspects were involved in the organisation of the coup or otherwise supported it. This has included people involved in the education sector: 21,000 teachers have had their licences revoked, over 1.5 thousand university deans have been instructed to resign, and a ban on international travel for professional purposes has been placed on all university academics.

There is, of course, concern that these activities are not only oriented towards removing ‘plotters’ from public life, but also quietening all opposition to the Erdoğan regime and, thus, greatly undermining critical democratic spaces represented by universities and other educational settings. I spoke about this yesterday on the Russia Today news channel and the interview and associated news story is available here.

I have also started a petition, which so far has over 600 signatures, directed specifically towards expressing solidarity to our academic colleagues in Turkey and asking President Erdoğan to rethink and revoke the travel ban. Please do consider signing it and share it widely.

There is also an open letter here, condemning the purge in Turkish universities, which I would also encourage people to sign.

The more support our colleagues in Turkey get from their international colleagues, the better.

Brexit: A Personal Reaction

I am still reeling from the result of the UK’s referendum on whether to leave the EU. When the vote came in I was in Mauritius, where I am an examiner for some of the law programmes of the University of Mauritius. There, as here, the result sent a shockwave, with people commiserating with me over breakfast and colleagues in the University wondering why any polity would ‘throw away’ the great benefits of movement, trade, social rights, and liberalism that have come with membership of what is, for them, an aspirational project of regional governance and integration. While I am of course conscious of the failing of the EU, and of the cruelty of its approach to austerity in many member states, I must admit to wondering much the same, including about fellow denizens of my home city of Birmingham who voted (narrowly) to leave.

Of course, the pathway towards actual Brexit following the referendum is complex, involving (likely disputatious) engagement with the devolved governments, almost certainly a parliamentary trigger on Article 50, and then (at least?) two years of negotiations of the agreement to govern the relationship between the UK and the EU into the future. There has already been much coverage in the legal blogs of the whole range of possible scenarios: Colin Murray outlines the possibilities well here, and there is a range of excellent posts on the UK Constitutional Law blog here. I also weighted in (briefly) on the complexity of the Article 50 negotiations here, the key point for me being that there are 28 veto holders on the possible agreement and only one (Ireland) is likely to be predisposed (for self-interested reasons) to hyper-generosity to the UK.

As an Irish person I am particularly worried about the possible implications for the island of Ireland; the likely reemergence of a ‘hard border’ between Northern Ireland and the Republic of Ireland, the impact on Irish trade which is heavily dependent on our economic relationship with the UK, implications for the many many thousands of Irish people who live here in the UK, and the historical and culturally important ease of travel between the two islands (not least for women who need to come to the UK to access abortion).

As a resident of the UK I am worried about the sour and damaging xenophobia and racism that underpin much of the pre- and post-vote narrative of control, sovereignty and ‘Englishness’ in the debate; about the apparently gaping leadership vacuum in much of the country (with the exception of the truly excellent Nicola Sturgeon who, regardless of your views on Scottish Independence, has to be universally acknowledged as leading effectively over this weekend); about the tanking economy and currency; about the seemingly deep divisions that lie across our country–divisions of place, age, education, attainment, and economic status as well as of nation, party and nationality. I wonder–as many of us do–about how we can restore ourselves to a polity of aspiration and internationalism, of togetherness and hope, and of fact and rationality balanced with emotion, affinity and–yes–even nationalism. I am acutely aware of the possibilities that my Irish passport and my wife’s Canadian passport open up for us should we need them; possibilities that so many friends and colleagues will not, now, so easily be able to avail of.

As an academic I am also worried; the excellent Women are Boring gathered short pieces from twelve women academics at different points in our careers to discuss the impact of the vote on us and on our disciplines. The whole piece is really worth reading, and here is my contribution which sums up, in many ways, how I feel about the implications for me of the Brexit vote:

All of my university education was in Ireland. In fact, all of it was in UCC where I studied law for seven very happy years. And so, it was a (not unwelcome) shock to the system when I moved first to a chair in Durham and then to my current post as Professor of Global Legal Studies in the University of Birmingham to discover, be challenged by, and ultimately relish in the intellectually diverse and internationally-oriented world of UK higher education. While international and European law had been important in my education and work in Ireland, the richness that Europeanism brought to the student body, my academic community, and the vision and ambition in legal research of the institutions in which I have worked in the UK was energising, challenging and enthralling. That is the first way in which the EU has impacted my career in the UK. It has been a force for diversification of the people, ideas, institutions and challenges with which I try to pursue the key question in which I am interested: what happens to power, law and politico-legal institutions when crises put them under pressure?

For much of my career I have explored this question in the very particular context or counter-terrorism and security, including leading a major cross-national, inter-disciplinary and empirical project entitled SECILE (Securing Europe through Counter-Terrorism: Impact, legitimacy, and effectiveness). With generous funding from the EU’s Seventh Framework Programme I led a consortium of researchers, NGOs and SMEs in the UK, Ireland, Norway and Latvia in a project that both mapped and analysed EU counter-terrorism and, through interviews with major stakeholders in the EU’s institutions and the member states, tried to understand their real world impact on everyday operations and the experience of living in the European Union. This could not have been achieved without EU membership: that created the opportunity to secure the funding, the relationships that underpinned and made possible our consortium, and the access to high level officials in Europe that helped us both access information and gain traction for our findings.

Trying to understand security and counter-terrorism on a national level alone has value, but misses so much of what happens to shape the national story as a result of transnational dynamics and institutions such as the EU. If Brexit brings us out of these funding structures our ability to ask ‘big questions’ in ‘big contexts’ will be sharply constrained. And what, then, will incentivise the very best researchers who have other possibilities through EU or other citizenship, to remain with the UK’s universities? Will national funding structures, already so stretched, step in to compensate? Will the UK retain sufficient influence in Europe to secure access to these key actors and institutions? Will our colleagues from other EU countries, whose impact on law schools all over this country has been such a key part in diversifying our enquiries and deepening our intellectual ambitions, move on? Will possibilities for staff and student exchange shrink, impoverishing our everyday intellectual environment? And if so, what will be the motivation for people who, like me, have Irish citizenship to stay?

For now many, like me, will be committed to staying and to contributing to the task of thinking our way out of the corner Brexit has placed higher education and legal research in, but one suspects we will also remain deeply aware of the Irish passport that leaves open possibilities for mobility that we may, reluctantly, find ourselves exercising in coming years.