European Union Withdrawal Research Articles

UKIMA as red flag symptom of constitutional ill-health: devolved autonomy and legislative consent

Devolution is a fundamental principle of the United Kingdom (UK) constitution – a ‘new settlement’, as Tony Blair put it, that at once responded to the democratic demand to ‘[bring] decision-making … closer to the people who felt a strong sense of identity’ and also, in so doing, ‘to ward off the bigger threat of secession’. At the heart of that principle is respect for devolved autonomy; that, within the devolved sphere, it is the devolved authorities who are best placed to wield primary and secondary law-making powers free from interference from the centre. The constitutional safeguard for devolved autonomy is a political rule: that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the relevant devolved legislature(s). Until the process to withdraw the UK from the European Union (EU) began, the convention was well defined, well understood and well respected. However, the UK Government’s centripetal approach to EU withdrawal and to the resulting realignment of the UK constitution has marked a significant step change. In this article I take seriously the claim made by the Institute for Government that the UK Internal Market Act 2020 is the most contentious example – a red flag symptom – of damaging new constitutional dynamics: the increased willingness of the UK Parliament and UK Government to intervene in devolved matters without devolved consent. At stake as a result is not only the efficient operation of the UK internal market but, recalling Blair, the very survival of the union itself.

Post-Brexit challenges to the UK machinery of government in an ‘Age of Fiasco’: the dangers of muddling through?

ABSTRACT This article analyses the existing and potential effects of EU withdrawal on the UK machinery of government (MoG) in an ‘age of fiasco’. Brexit has been a system-wide shock that has the potential to fundamentally alter British domestic policy and politics. Above all, departing from the European Union (EU) represents an unprecedented ‘stress test’ for the government machinery. Brexit has been the greatest challenge confronting the MoG since the Second World War. Yet its impact on the UK state’s structures and processes has thus far been modest. The pattern of change indicates gradual adaptation and modification of institutions rather than transformation of the governing machinery through De-Europeanisation and dismantling. That said, EU withdrawal is aggravating pathologies in the Westminster Model (WM) that contribute towards the erosion of UK policymaking. This article contends that the capacity of UK government was weakening before Brexit, while withdrawal from Europe imposes additional burdens. The governing approach of incrementalism and ‘muddling through’ has come under severe strain.

Sub-states in transition: changing patterns of EU paradiplomacy in Scotland and Wales, 1992–2021

ABSTRACT This article sheds new light on the dynamics of Scottish and Welsh relations with the European Union (EU). We analyse the development of Scotland and Wales’s ‘paradiplomacy’ over a 30-year period (1992–2021), offering the first comprehensive analysis of the EU-focused activities of sub-states transitioning out of the EU. We identify the significance of the interplay between a territory’s formal constitutional position and differences in party politics across levels of government in shaping paradiplomacy. Increasing tensions between the UK and devolved governments regarding the UK’s EU withdrawal have reinforced conflict dynamics, including in the context of growing protodiplomacy from the Scottish Nationalist Party (SNP) government.

The European Union's withdrawal of trade preferences for Cambodia

AbstractFollowing Cambodia's violation of human and labour rights, the European Union (EU) decided in February 2020 to withdraw trade preferences for the country temporarily from August 2020. This paper estimates the short‐run impact of preference withdrawal on EU imports from Cambodia. As the EU withdrew preferential tariffs only for certain products and maintained duty‐free quota‐free access for others, I adopt a difference‐in‐differences regression framework and provide supporting evidence for the parallel trend assumption. The results show that preference withdrawal has a significantly positive impact on EU import of affected goods from Cambodia in July 2020, consistent with a last‐minute shipment effect to avoid tariff increases. Subsequently, tariff increases have a significantly negative impact on the EU import of affected goods. These effects are heterogeneous across knitted garments, woven garments, and footwear products.

The UK Government’s Covid-19 Response and Article 2 of the ECHR (Title I Dignity; Right to Life, Charter of Fundamental Rights of the EU)

The purpose of this article is to assess the impact of the UK government’s response to the Covid-19 outbreak from a human rights perspective, particularly its apparent tension with Article 2 of the European Convention on Human Rights (ECHR) in relation to non-Covid-19 patients whose lives were put at risk by not being able to attend appointments and treatments for pre-existing conditions and illnesses. The UK has also rejected the application of the Charter of Fundamental Rights of the European Union with the European Union Withdrawal Act 2018, which will leave the population even more exposed to potential human rights violations. This seems to be a direct consequence of the narrative and slogan employed by the government: “Stay Home; Protect the NHS; Save Lives”. Other potentially threatened categories, the NHS staff and prisoners are also mentioned in the same context. The latter have already launched a judicial review application along the same lines: Article 2 of the ECHR and the due regard duty stemming from the Equality Act 2010. The NHS staff were directly at risk, and evidence was emerging almost on a daily basis that implied authorities’ responsibility for the shortage of personal protective equipment and testing kits. While there have been a number of discussions on other issues in relation to the lockdown and the strategy directly or indirectly impacting human rights, it appears that no discussion on the impact of the strategy for non-Covid-19 patients and other categories from a human rights perspective has taken place. This gap in analyses and literature merits the present analysis.

‘Unchartered’ waters: fundamental rights, Brexit and the (re)constitution of the employment law hierarchy of norms

The decision of the British people to leave the European Union (EU) raises foundational questions for many legal fields. The effects are especially likely to be felt within domestic employment law, which now has a strong basis in EU law. Of particular concern is the removal of the nascent EU fundamental employment rights influence over domestic legislation. Employment lawyers have long relied on fundamental rights as a means of preserving the autonomy of their subject from general private law. One manifestation of this turn to fundamental rights concepts has been the ‘constitutionalisation’ of employment rights. EU law, notably the Charter of Fundamental Rights, has become a key underpinning of this constitutionalisation process. This article considers the effects of the constitutionalisation in the United Kingdom employment sphere of some of the rights found in the Charter’s Solidarity Title, through its role in the emergence of a hierarchy of sources or ‘norms’ in the employment field. In order to address the question of the Charter’s influence on the hierarchy of sources in the employment context, three interrelated processes are examined. The article begins by exploring the ‘constitutionalisation’ process, by setting out the nature of the Charter and the effects of its employment rights on the hierarchy of sources. This is followed by a consideration of the ‘deconstitutionalisation’ process brought about by Brexit, before finally examining whether a potential ‘reconstitutionalisation’ process might be underway by looking at key terms of the EU (Withdrawal) Act 2018 and the potential to replicate the Charter in domestic law.

Interpreting retained EU private law post-Brexit: Can commonwealth comparisons help us determine the future relevance of CJEU case law?

In June 2016, the United Kingdom voted in a referendum to leave the European Union (EU). The consequences of Brexit are wide-ranging, but, from a legal perspective, it will entail the repeal of the European Communities Act 1972. The UK government does not intend to repeal EU law which is in existence on exit day, but, in terms of the interpretation of retained law, decisions of the Court of Justice of the European Union (CJEU) will no longer be binding after Brexit. Nevertheless, s. 6(2) of the EU (Withdrawal) Act 2018 does allow the UK courts to continue to pay regard to EU law and decisions of the CJEU ‘so far as it is relevant to any matter before the court’. This article will consider the meaning of the phrase ‘ may have regard to anything…so far as it is relevant’. In empowering the courts to consider post-Brexit CJEU authority subject to the undefined criterion of relevancy, how is this power likely to be exercised? A comparison will be drawn with the treatment of Privy Council and the UK case law in Commonwealth courts following the abolition of the right of appeal to the Privy Council, with particular reference to the example of Australia. It will be argued that guidance may be obtained from the common law legal family which can help us predict the future relevance and persuasiveness of CJEU case law in the interpretation of retained EU private law.

EU Clinical Trials Regulation 2014: Fetter or facilitator?

European Union (EU) Clinical Trials Regulation 536/2014, expected to come into force in 2019, provides for a streamlined single EU application for cross-border clinical trials and enhanced transparency of results. The status of the Regulation in post-Brexit UK is uncertain. Matters of regulatory alignment will be covered by agreements on the future EU-UK relationship. In the short term, implementation of the Regulation in the United Kingdom depends on the Brexit model and timing of the Regulation’s implementation. The EU (Withdrawal) Act will convert EU law into UK law, including the vast array of EU life sciences regulation. However, the Regulation is likely to be implemented after the United Kingdom leaves the EU, but within the transition period. If the United Kingdom is not part of the legal framework governing clinical trials in the EU, then the United Kingdom will still need to comply with the global framework set out in the International Council on Harmonisation if it wants to be part of trials of medicinal products for which marketing authorization will be sought for licensing in the European Economic Area. This article extols the virtues of harmonization with the EU and attempts to counter some of the media focus on the advantages of a deregulated bespoke approach.

How do we make sense of chaos? Navigating health research regulation through the liminality of the Brexit process.

This article examines the Brexit process through the anthropological lens of liminality. As a concept that explains the impact of change and transformation on human experience, it is argued that liminality is an especially valuable perspective to understand better the phenomenon of Brexit, particularly as to how this might impact on the regulation of human health research. A central feature of liminality is its attention to process; that is, the identification of milestone thresholds within a series of events involving change. More particularly, liminality has a degree of predictive power about certain influencing factors on transformational processes and their outcomes. In this regard, the pivotal role of law is subjected to close scrutiny in the period leading up to March 29, 2018: one year before the so-called Brexit Day. The European Union (EU) (Notification of Withdrawal) Act 2017 was the threshold trigger for the Brexit process, while the EU Withdrawal Bill 2017–2019 has as its objective the shepherding through of the United Kingdom in its departure from the EU. The argument is made that these events are liminal moments in European legal and human history; moreover, lessons from history are used to identify the specific implications for human health research as an area of human activity that will be profoundly impacted by the Brexit process. This analysis also provides a means to reflect on the broader implications of what a disruptive process such as Brexit means for law generally.

Amending the EU Withdrawal Bill: a safeguard for health

Detailed analyses of the health consequences of Brexit have focused on its negative effects on the UK's National Health Service, food security, international cooperation to combat threats to health, medicines regulation, and medical research.1 Faced with this depressing picture, it is natural to seek any glimmer of hope. Could there be any opportunities to improve health? The answer, invariably, is that leaving the European Union (EU) could allow the UK to go beyond existing European policies to strengthen protection in public health—eg, by introducing traffic light labelling on food or implementing stricter environmental standards.

Sanctions under the EU Generalised System of Preferences and foreign policy: coherence by accident?

This article investigates the relationship between the European Union's withdrawal of trade benefits for developing countries under the Generalised System of Preferences (GSP) and its sanctions under the Common Foreign and Security Policy (CFSP). Our expectation is that GSP withdrawals and CFSP sanctions will not cohere. However, our research reveals that GSP suspension has been coherent with CFSP sanctions when the latter exist prior to the decision-making process on GSP sanctions and when the International Labour Organisation has set up a Commission of Inquiry condemning the country, as with Myanmar/Burma and Belarus. The presence of separate institutional frameworks explains the GSP suspension towards Sri Lanka in the absence of CFSP sanctions.