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Chapter

Cover Foster on EU Law

11. The Changing Relations of the UK with the EU  

The history of the relationship between the United Kingdom and the European Union from its beginning has been, if nothing else, a very vacillating one, and even at the beginning, the UK was a ‘reluctant’ partner in the European project. This chapter will outline the changing legal and political relationship before, during, and after ‘Brexit’, as the negotiations for the UK’s withdrawal from the European Union (EU) came to be known. The departure, on 31 January 2020, and complete separation on 31 December 2020, placed the UK as a third country to the EU as regards its new trading relationship, is also considered.

Chapter

Cover EU Law Directions

15. The relationship of the UK with the European Union and Brexit  

This chapter charts the long association of the UK with the EU. It considers all aspects of this relationship including pre-membership, entry to the EC (EU), the first UK EU referendum in 1975, and the relationship over five decades. It considers how EU law was granted supremacy over UK law and how the courts viewed this. The chapter looks at the period up to and beyond the 2016 UK EU referendum on exiting or remaining in the EU. The immediate consequences of the result and the negotiations which were concluded following this to enable the UK to legally exit the EU on 31 January 2020 are also considered. The role of Article 50 of the Treaty on European Union (TEU) is discussed and particular attention is focused on the Northern Ireland Protocol. The chapter concludes with a fairly detailed look at the 2020 EU–UK Trade and Cooperation Agreement.

Chapter

Cover Human Rights Law Directions

25. Article 3 of the First Protocol: right to free elections  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter deals with Article 3 of the First Protocol which imposes on states a duty to hold elections. At the heart of Article 3 is the view that the best way to uphold human rights is through upholding an ‘effective political democracy’. Human rights require states to respect various rights and freedoms that are necessary for any system if it is to be democratic. Though Article 3 of the First Protocol appears to provide only a collective right to fair elections, it has been interpreted to also provide for individual rights to vote, to stand, and to sit, if elected. Article 3 does not, however, provide wide rights to participate in political processes. Its scope is confined to elections for ‘the legislature’, which do not include local elections or referendums. The controversy over prisoners’ voting rights is discussed in this chapter.

Chapter

Cover EU Law Directions

15. The relationship of the UK with the European Union and Brexit  

This chapter charts the long association of the UK with the EU. It considers all aspects of this relationship including pre membership, entry to the EC (EU), the first UK EU referendum in 1975 and the relationship over five decades. It considers how EU law was granted supremacy over UK law and how the courts viewed this. It considers the period up to and, including the 2016 UK EU referendum on exiting or remaining in the EU and the immediate consequences of that. Finally, and now most importantly, it looks at the negotiations and means by which the UK legally exited the EU on 31 January and the movement into the next stage of that relationship: the future trade relationship with the EU.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

22. A Revolution by Due Process of Law?  

Leaving the European Union

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

2. The Legislative Sovereignty of Parliament  

This chapter deals with the doctrine of the legislative sovereignty of Parliament. First, the nature of parliamentary sovereignty is considered. Next, the question of whether Parliament can limit the powers of its successors is explored, addressing possible substantive and procedural limits on legislative sovereignty. The chapter then assesses a range of modern challenges to parliamentary sovereignty: those posed by membership of and exit from the EU (including the process and impact of Brexit), human rights, the decision of the House of Lords in Jackson, common law rights and principles, and referendums.

Chapter

Cover Public Law Directions

5. Brexit  

This chapter discusses UK membership of the European Union and the Brexit process. On 1 January 1973, the UK became a member of the European Economic Community, and the UK Parliament passed the European Communities Act 1972, allowing directly applicable European laws to take effect as part of UK domestic law which had an impact on parliamentary sovereignty. In the 2016 Brexit referendum, a narrow majority of the public voted in favour of leaving the European Union and the European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972 on exit day when the UK left the European Union. Brexit has made significant changes to the UK constitution including the creation of a new body of retained EU law in UK domestic law, an impact on devolution, and raising the question of whether it has been a sufficient constitutional moment to trigger a codified UK constitution.

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

8. Devolution  

This chapter focuses on devolution. The nature of the asymmetrical devolution of legislative and executive power to Scotland, Wales, and Northern Ireland is outlined, along with the position in England, with the ongoing change to these arrangements analysed. Some issues related to devolution which have been raised in the UK courts are then considered, with the chapter using a range of examples in Scotland, Wales and Northern Ireland to discuss the extent to which the devolution settlement is dynamic and continuing to change. It concludes by exploring the impact of Brexit on devolution in particular.