Sionaidh Douglas-Scott

This article discusses the early stages of the Art 50 TEU process, and those aspects that relate most clearly to British constitutional law. Its overarching theme is that the Brexit process is rendered highly problematic by the lack of any coherent conception of the British Constitution. Different parties settle on interpretations of constitutional law that support their case, but often there is no determinative answer. Three broad issues are examined in order to substantiate this claim: the EU Referendum, the triggering of Article 50, and the Devolution aspect of Brexit. I argue that each of these issues reveals tensions and competing constitutional interpretations that suggest that the British Constitution is ill-equipped to deal with Brexit.

Only recently, in September 2014, the UK survived one of the most serious threats to its constitutional existence – a very closely run Scottish referendum on independence. That this was indeed perceived as a huge risk to the continuance of the UK is illustrated by the almost desperate nature of the last minute ‘Vow’ made by all three party leaders to accord greater powers to Scotland in an effort to maintain the Union.
Therefore, the risk of further such constitutional instability should be taken seriously. Yet this is not happening, given the neglect of the impact on the devolution settlement of any future UK exit from the EU. The consequences on devolution tend to be the least discussed aspect of any ‘Brexit’.
This article considers the impact of a UK exit from the EU on the UK devolutionary settlement, as well as considering its effects on Ireland. It considers whether it would be possible for the devolved nations to set a threshhold for withdrawal from the EU that required a majority of votes in each of the UK's compoonent parts in the event of a Westminster mandated EU in-out referendum. It also considers the concept of sovereignty from the perspectives of other parts of the UK, in contrast to an orthodox, Diceyan view of parliamentary sovereignty.
Finally, it looks to the longer term, assessing the prospect for more radical constitutional change in the UK, brought about by different attitudes to the EU among the UK's component parts. Is a federal UK likely in the longer term? And would it ever be possible for England to exit the EU within a UK in which Scotland, Wales and Northern Ireland remained EU members?

There is some agreement that the human rights framework in Europe is complex and unsatisfactory. One of the elements rendering it so is the current relationship between the EU and the ECHR. This chapter focusses on that relationship, concentrating on the following topics:

I. Accession of the EU to the ECHR
II. With or without accession, what EU cases might we expect to see litigated in Strasbourg?
III. A comparison of existing different caselaw approaches of the CJEU and ECtHR.
IV. The growth of a body of autonomous EU fundamental rights law (including discussion of the fact that the CJEU does not always take ECtHR caselaw into account despite Art 52(3) Charter).

This paper has been edited to take account of ECJ Opinion 2/13 decided on 18 December 2014.

Should the UK Human Rights Act be repealed, another European Human Rights Charter would still remain in force in the UK - the EU Charter of Fundamental Rights. This instrument has also come under attack – for example, by the 2014 recommendation of the House of Commons European Scrutiny Committee that legislation be passed by the UK Parliament disapplying the Charter in the UK.

However, we should be clear that the adoption of such legislation would place the UK in breach of its obligations under EU law, and open to financial penalties. This article considers the impact of the Charter in the UK, arguing that the European Scrutiny Committee is misguided in its call for its disapplication. Much of the Committee’s report targets a lack of clarity in certain aspects of the Charter, including a fear that it could be used to extend EU competences. The report also expresses some frustration that the UK’s so-called ‘opt-out’, in Protocol 30 Lisbon treaty, is in fact incapable of operating as such, despite the great claims made for it by some politicians at the time of its drafting.

However, I argue that, while there are some uncertainties in the Charter’s application, these are no greater than those applying in human rights law generally, and CJEU caselaw is in any case clarifying this law. On the other hand, we should be clear that the alternative of disapplying the Charter in the UK would lead to far greater legal uncertainty and also expose the UK to large fines for breaching EU law. But crucially, what the Committee report also ignores is the important protections and safeguards that the Charter offers against an overreaching EU – safeguards which have become visible in cases such as Digital Rights Ireland, in which the CJEU invalidated a whole EU measure for its failure to comply with the Charter. The last section of this article considers the Committee’s recommendation as a part of a broader euroscepticsm about fundamental rights, both within the UK and in the EU more generally.

Modern analytical jurisprudence has tended to accentuate an institutional distinctiveness of law from other areas of society, portraying law as a discrete, autonomous, discipline, which may be identified without recourse to moral, value-laden principles.

The critique of legal autonomy asserts that it is problematic to distinguish laws from other normative elements in society and that ‘law’ is a much broader phenomenon than is often admitted. Such a roomier domain for law has for some time been asserted by pluralists. One immediate way in which the multidimensionality, complexity and lack of unity of laws can be identified is to look at law beyond state boundaries. If we do so, law becomes very hard to systematize. Undeniably, the contemporary legal landscape is challenging.

In the face of this somewhat nebulous, indeterminate prospect, how to conceptualize law? As a first step legal pluralism (namely, a state of affairs, for any social field, in which behaviour pursuant to more than one legal order occurs) should now be seen as the most relevant and apposite theory of law, most capable of capturing the complexities of contemporary law.

Yet, legal pluralism is not itself uncomplicated. Many pluralists also include the further and distinct claim that not all law-like phenomena have their source in institutionalized law, which leads to the problems of ‘expansive’ legal pluralism, considered in this paper. Legal pluralism is also usually taken to imply more than just a plurality of laws, but rather a situation in which two or more legal ‘systems’ coexist in the same societal field, sometimes in a contradictory way, in which each may have equally plausible claims to authority.

Unlike some contemporary theorists, I do not believe that legal pluralism presents itself as an ethically preferable position (as opposed to more descriptively accurate) to those monist, or dualist accounts which cleave to notions of a more unified legal space. On the contrary, it is important to be aware that legal pluralism brings with it increased risks of a lack of accountability, or of self-regulating institutions or localised laws being captured by special interests.

Yet legal pluralism has not paid a great deal of attention to such questions. The social fact of multiple legal orders says nothing as to their moral worthiness or capacity for justice. I therefore would argue that justice becomes a key issue for law in the era of legal pluralism. Rather than, or at least in addition to, questions of ordering or interpreting pluralism, we should ask how is justice achievable, given this complexity. Recognition of the complexity of the contemporary landscape, and unwillingness to categorize and simplify, is only the starting point for the project of present day legal theory.

It is not commonplace for works of legal scholarship to use images to aid and clarify their analysis of law. Yet, law is a cultural entity, as much an art as a science. It is rooted in images as firmly as in rules.

However, law’s relationship to the image is complicated. Law may itself be interpreted as an art form, one of the liberal arts, but that is not all that it is. Law makes use of images, but is not reducible to images. Nor can art be straightforwardly compared to law. There exists no unambiguous analogy between art and law, and there are of course many points of difference between them. Peter Fitzpatrick suggests the relationship between law and culture is an uneasy one, with an ‘edgy quality’, and the same might be said of the relationship of law and image.

In this article, I argue that, while law’s own management of images must be scrutinised with care, law itself may be illuminated, enhanced or undermined by the work that images do, and our own understanding of law thus enriched, or even destabilised. To understand it through the medium of images adds a density and a complexity to our comprehension of law, and reveals tacit assumptions, incongruities and solecisms in the workings of the law. I use a selection of images and art works to make these points.

There is some agreement that the human rights framework in Europe is complex and unsatisfactory. One of the elements rendering it so is the current relationship between the EU and the ECHR. This chapter focusses on that relationship, concentrating on the following topics:
• I. Accession of the EU to the ECHR
• II. Post accession, what EU cases might we expect to see litigated in Strasbourg?
• III. A further comparison of existing different caselaw approaches of the CJEU and ECtHR. Will accession have any impact on this?
• IV. The growth of a body of autonomous EU fundamental rights law (including discussion of the fact that the CJEU does not always take ECtHR caselaw into account despite Art 52(3) Charter).

The prospect of an independent Scotland raises many issues. This paper focusses on just one of them - the question of an independent Scotland’s EU membership. While it may have taken longer for this issue to reach the bubbling and boiling point that other issues of Scottish independence have attained - such as ownership of North Sea oil rights, or whether an independent Scotland might maintain sterling as its currency. Scotland’s EU membership has become no less contested and polarised than these other issues.

This paper maintains that despite assertions to the contrary from UK lawyers, EU lawyers and EU officials, any future independent Scotland’s EU membership should be assured, and its transition from EU membership qua part of the UK, to EU membership qua independent Scotland relatively smooth and straightforward. In other words, it would take the form of an internal enlargement of the EU using the procedure for treaty amendment in Article 48 TEU. These arguments are made on the basis of EU law itself, which, it is argued, provide all the resources necessary to assure an independent Scotland’s EU membership through EU treaty amendment, and not through a cumbersome accession process as a new member state. In particular, the values, norms and ‘special ethos’ of the EU, expressed in concepts such as EU citizenship, fundamental rights and duties of loyalty, combine to provide a reasoned justification for such internal enlargement.

This article will focus on the issue of justice in the EU. Latterly, the notion of justice has tended to be overshadowed by other concepts. For example, human rights, democracy or accountability tend to be relied on far more frequently than justice as conceptual tools for diagnosing and treating EU problems. Yet perhaps we should remember the plea for the priority of justice as articulated by John Rawls: ‘Justice is the first virtue of social institutions, as truth is to thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.’ While I will not argue for the application of Rawls’ actual theory of justice to EU law, I do argue that justice, or perhaps rather injustice, raises especially salient issues for the contemporary EU. Analyzing the EU’s actions in terms of justice highlights their impact on its peoples, and accentuates its imbalances of power. In attempting to deal with some particularly pressing 21st century issues, the EU has not added value but caused injustice. This paper will give some particular examples. However, the solutions to these instances of injustice are not readily apparent, nor may answers easily be found in other concepts such as human rights, democracy or accountability. I believe that some of these concerns are attributable in particular to the sui generis nature of the EU, in its existence neither as purely state, international law, nor federal body. In its form as ‘unidentified political object’ the EU presents singular challenges for justice.

In the earlier, more descriptive part of this article, I do not attempt to define the notion of justice, nor argue that it should be understood in any particular sense – for example, as a thick or thin concept, or in a substantive or procedural sense. Rather, I proceed on the basis that it is a value whose importance is immediately recognizable in some sort of Dworkinian ‘pre-interpretive’ sense, and should surely be acknowledged by an EU that wishes to proclaim its values. In the later sections of the article, however, I turn to the concept of justice in more detail. My argument is that a partial solution to the problem of justice may be found in the particular relation of justice to law, in a concept I name Critical Legal Justice, bearing in mind the crucial role that legal integration has played for the development of the EU. However, justice is not confined to legal justice. Here, my suggestion is that, while justice in a broader sense may be so elusive as to be an ideal or utopian, that it is the diagnosis of injustice which is itself crucial, as justice is more likely to move people in its absence, rather than as an academic or rhetorical exercise that fails to convince. It is injustice that motivates and propels action, and the highlighting of injustice does its own work.

Abstract:     
This chapter seeks to analyse and interrogate the varying regimes and processes which exist regarding human rights protection across the European continent, to highlight the problem spots and fault-lines and to suggest mechanisms whereby the worst outcomes may be avoided. In order to do this, I proceed by way of three different analyses. First, what does it mean to have a ‘European’ human rights regime? This enquiry questions whether, in presenting such a regime as ‘European’, we thereby render incoherent and dilute in value different human rights protections which are too diverse to be grouped together in this way. Secondly, this chapter asks whether the increasing use of the term ‘constitutional’ in this context is justified? And if so, what added value does it lend to human rights protection in Europe? Thirdly, if we acknowledge a European ‘mosaic’ in this context, as a means of capturing this diverse and complex state of affairs, what then emerges from such a reading – from acknowledgment of juxtaposition, contrast, overlap – an overall picture capable of coherence, or a situation verging towards chaos and entropy?

This article considers the state of human rights protection in the European Union (EU) after the Treaty of Lisbon. The Lisbon Treaty introduced significant changes to human rights protection in the EU, the most significant of which lie in the amendments to Article 6 of the Treaty on European Union. These provide that the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law, and that the EU ‘shall accede’ to the European Convention on Human Rights (ECHR). In the two years since the Lisbon Treaty came into force, the Charter has been referred to on many occasions by the European Court of Justice, and now operates as the primary source of human rights in the EU. This article examines the import of this case law, some of it ground-breaking and controversial, as well how the higher profile for human rights under the Charter is likely to change the nature of the EU’s relationship with the ECHR.

The article also examines the complex procedure for the EU’s accession to the ECHR, which is now underway, highlighting particularly significant aspects of this. The article concludes with some general reflections about the status of human rights protection in the EU, suggesting that this has become one of the most significant areas of EU law which has had, and continues to have, a crucial impact on the EU’s relationships with its Member States, the EU and international law.

Justice is as much an issue for the EU as it is for any state or social institution. According to John Rawls: ‘Justice is the first virtue of social institutions, as truth is to thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.’ While I do not argue for the application of Rawls’ actual theory of justice to EU law, I do argue that justice, or perhaps rather injustice, raises especially salient issues for the contemporary EU. In some recent actions dealing with particularly pressing issues, the EU has not added value but caused injustice. This chapter will give some particular examples. Unfortunately, however, the resolution of these injustices is not readily apparent. In particular it may be that some of these states of affairs are specifically attributable to the sui generis nature of the EU - to its complex actuality as neither purely sovereign state, creature of international law, nor federal or confederal body. The inchoate status of the EU presents singular challenges for justice.

The earlier sections of this chapter are mainly descriptive in nature, and set out some examples of injustices caused by EU actions. Later in the chapter, however, I consider the concept of justice in greater detail. In that context, I argue that some limited solution to the problem of justice may be found in the specific relation of justice to law, in a concept I name Critical Legal Justice.

However, I also argue that justice should not be conceived only as legal justice. In the concluding parts of the chapter I argue that, while, on broader reflection the concept of justice may appear to be so elusive as to be an ideal or utopian, that it is the diagnosis of injustice that is itself crucial. Indeed, justice is more likely to move people in its absence, in its antithesis of injustice, rather than as an academic, abstract exercise that ultimately fails to convince. I analyse the notion of injustice in some detail, drawing on philosophical literature, more specifically the works of Adam Smith, David Hume and Amartya Sen, arguing that it is injustice that motivates and propels action, and the highlighting of injustice does its own work. Such an approach is of relevance to the EU and its present predicaments.

Achieving justice in the EU is problematic. The many differences between Member State legal systems, and their varied attitudes towards, for example, redistribution of wealth, render an overarching concept of justice for the EU seemingly unattainable. Indeed, the complex, pluralist landscape of EU law and governance, with its fragmented lines of authority and near invisible accountabilities, seems to render injustice all the more likely. Further, it might seem that the concept of justice itself is pluralist, capable of many understandings and interpretations. How is justice achievable, given this complexity? Yet EU law must seek to promote justice – what would we say of a legal system that did not seek to do so? In this chapter, I argue for justice as a value to be promoted by the EU. In order to aid its realisation, I argue for the recasting and reimagining of the rule of law as Critical Legal Justice - a vibrant concept of justice able to span the Byzantine complexities of the EU.

This article seeks to explore the human rights jurisdiction of the Court of Human Rights and European Court of Justice, and most particularly to study how they interact with each other. How do they acknowledge each other’s existence; how often do they cite each other’s case law; how, if at all, does their human rights jurisprudence differ from each other; how, if at all, does the bringing of a case in one court rather than the other affect its outcome; how does the courts’ use of each other’s materials differ from traditional comparative law usages; how does the close development of two near, but not identical, human rights jurisdictions in Europe affect the development of human rights in the European legal space?

SUMMARY: ... Recent attempts by German authorities to impose state censorship on the Internet, by pressurizing commercial providers to block access to material considered illegal under German law, have received considerable attention. ... Apart from the emotive ...

Although Advocate General Maduro asserted in the Centro Europa 7 case that ‘Protection of the common code of fundamental rights accordingly constitutes an existential requirement for the EU legal order’, this author does not share a faith in human rights as occupying a central role in the EU order, however desirable such a role might be.
This chapter will explore some ways in which human rights have not been granted as much ‘respect’ as they should under EU law. It will focus in particular on that area of EU law known as the Area of Freedom, Security and Justice, and on the role which the European Court of Justice has played.

Since Maastricht, EU law has been full of the rhetoric of citizenship, partly in an attempt to ensure a greater sense of belonging and participation of the individual. Yet European citizenship is a fragmented concept, difficult to present coherently, as well as not yet fully actualized. The relevant provisions in EU law lack transparency as they are spread throughout the treaties, secondary legislation, and case law, like a scattering of jigsaw pieces which at first glance do not seem capable of fitting together into any articulated notion of citizenship.

This wider range of provisions will be examined in the light of distinct conceptions of citizenship. In the myriad of definitions of citizenship, three in particular stand out and will be examined in detail: first, a private or passive conception, which focuses on individual rights and the ability to state preferences; secondly, on the other hand, the notion of active citizenship, a republican conception with its roots in Aristotle; thirdly, a more recent conception of social citizenship, which is currently seen by many as an essential element of European citizenship, although this may be the most difficult of the three to realize.

All three of these conceptions already have some recognition within the broader spectrum of citizenship in EU law. Their suitability for a Union citizenship of the twenty-first century will also be examined in the light of further requirements, namely: the realization that recognition of an equal membership of a culturally diverse community requires more than formal equality as well as the potential for multiple identities and citizenship in the EU. In order to satisfy the conditions of postnational membership it will be argued that the EU must shift from too great a reliance on the first, market conception of citizenship, already strongly realized in the body of EU law, to greater actualization of participatory and social citizenship. A vision of citizenship which conceives of individuals only as instruments of the market will not capture the hearts and minds of Europeans. Clearly, however, the political and social aspects of citizenship are difficult to resolve in the EU and raise threats to national sovereignty. This will take time to manage.

This article contains three premises. The first is that the EU already has some sort of Constitution, albeit not one in the traditional sense. The second is that the existing constitutional order in Europe is now problematic and unsatisfactory. It is in a state of flux, and best seen as a plurality of overlapping orders, as characterised by MacCormick and others. This being the case, there will inevitably be problems regarding the relationship of these orders, and the question of ultimate authority, which cannot be resolved by recourse to the traditional hierarchical legal order posed by legal theory. This European polity is also unsatisfactory — even if the State is not taken as a model for constitutionalism, the EU is too undemocratic, too chaotic, too impenetrable to be meaningful to today's Europeans, to capture their hearts and minds, their imagination and their respect new solutions have to be found for this new constitutional age.

The third and major question is therefore how can we do better? What issues should a reforming European constitutionalism address? How may it resolve them? This last question involves issues of law and politics, political theory and philosophy. My conclusion on these issues will be the (perhaps unfashionable) contention that Europe needs a remodelled, clearly principled constitutional framework, built on a foundation of shared values, and that although Europeans may engage in mutual conversations over their legal and political order, a new constitutional architecture will be as significant for the developing European polity as a flourishing discursive democracy.

This essay explores links between the environment and human rights, and responds to the growing debate among activists, lawyers, academics and policy-makers on the legal status of environmental rights in both international and domestic law, and on the proposals for a human right to a satisfactory environment, focusing on the particular context of the EC.

This essay addresses some of the problems posed by the attempt to take a rights-based approach to environmental protection. First, it critiques the basis of reasoning involved in two distinct approaches to environmental rights. The first approach argues for a human centred right to the environment, and the second takes a holistic approach, claiming rights on behalf of the non-human world, on behalf of animals and rocks and trees. This essay argues that neither of these views is coherent, although there may be some value in seeking to extend due process rights.

However, the essay also goes on to argue that, regardless of the internal contradictions associated with each of the views, these two different concepts of rights are in any case mutually irreconcilable and that it may be damaging to the environment to proceed on the basis of such radically different reasoning about rights. In brief, current reasoning about rights does not take the environment seriously.

Since the 1997 Treaty of Amsterdam came into force, the EU has had an 'Area of Freedom, Security and Justice'. While the scope of this 'area' is not clear conceptually, at the very least, its subject matter covers the ambit of Justice and Home Affairs, formerly the domain of the EU’s Third Pillar. Freedom, Security and Justice have their own Directorate-General within the European Commisssion. The 'Area of Freedom, Security and Justice' (AFSJ) is thus a hugely important area covering criminal law, terrorism, immigration, visa control, civil justice, as well as the massive area of free movement of persons.

One of the motivations for the concept of the Area of Freedom Security and Justice was an attempt to bring the EU closer to its citizens. This new paradigm might represent a bold and noble aspiration, if a somewhat nebulous one. What is clear, however, is that measures which fall within its scope have the capacity to alienate EU citizens rather than making them feel positively aware of their European identity. This article examines some of the measures taken by the EU in this broad field which cause particular concern.

The Bosphorus case raised the critical question of the relationship between the EU and the European Court of Human Rights, where an applicant claims that an EU measure has infringed their rights under the European Convention on Human Rights. The case arose out of the troubled situation in the former Yugoslavia in the early 1990s and the sanctions imposed to deal with it, and finally ended with the judgment of the Court of Human Rights in June 2005.

The article discusses the case in detail and concludes that, as well as raising issues of comity where different courts and legal systems interact, Bosphorus is yet another illustration of the singular nature of a multidimensional European legal space, in which there exists no straightforward hierarchical relationship in human rights cases. In Bosphorus, the Court of Human Rights seemed to be following in the footsteps of the Bundesverfassungsgericht in its "Solange" jurisprudence, whereby EU law is not reviewed as long as it does not fall below the level of the Basic law (or in this case the European Convention). However, the Bundesverfassungsgericht tends to find such cases inadmissible, whereas it would seem that the European Court of Human Rights has chosen a halfway house, a typically European compromise, in which jurisdiction may be accepted, but a full review not undertaken. This still leaves room for future development and it seems that Bosphorus is not the last we will see of such interactions between the EU and the European Court of Human Rights.

This article examines the activities of the EU under the former Third Pillar of the TEU -- Police and Judicial Co-operation in Criminal Matters -- most particularly those taken by the EU in response to the terrorist attacks of September 11. It considers the European arrest warrant, the EU definition of terrorism and EU measures concerning the financing of terrorism, as well as the activities of Europol and Eurojust. The article assesses these EU actions with reference to concerns of democratic accountability, judicial control and fundamental rights, but also highlights the growth of an EU criminal law jurisdiction which is both substantive and procedural, legislative and operational and suggests that, in the post-September 11 haste to pass security measures, the other elements of the area of freedom, security and justice -- freedom and justice -- have been ignored.

How can we characterise law and legal theory in the twenty-first century? Law After Modernity argues that we live in an age 'after Modernity' and that legal theory must take account of this fact. The book presents a dynamic analysis of law, which focusses on the richness and pluralism of law, on its historical embeddedness, its cultural contingencies, as well as acknowledging contemporary law's global and transnational dimensions.

However, Law After Modernity also warns that the complexity, fragmentation, pluralism and globalisation of contemporary law may all too easily perpetuate injustice. In this respect, the book departs from many postmodern and pluralist accounts of law. Indeed, it asserts that the quest for justice becomes a crucial issue for law in the era of legal pluralism, and it investigates how it may be achieved.

The approach is fresh, contextual and interdisciplinary, and, unusually for a legal theory work, is illustrated throughout with works of art and visual representations, which serve to re-enforce the messages of the book.

Constitutional Law of the European Union offers a clear, new introduction to the constitutional and institutional law of the European Union. It takes a critical, contextual approach to European integration, looking to political theory, philosophy, international relations, as well as to law. In this way, it provides a clearer understanding of the often complex EU processes and is thus a more intelligible and interesting guide to EU law, locating it in its dynamic historical and political context. The book deals with vital changes which are crucial for the understanding of contemporary Europe.

At present, we cannot know what might be negotiated in a Withdrawal Agreement, nor what the UK Government’s withdrawal strategy might be, nor indeed if the EU would be a hard bargainer, leading to negative economic effects for the UK. What should be clear is that, absent a Withdrawal Agreement which gives give clear protection of acquired rights, existing national, EU and international law does not offer a great deal of protection. So the content of the Withdrawal Agreement would be crucial. And in order to protect British citizens’ acquired rights in such an Agreement, reciprocity would be necessary (i.e. the UK would have to offer similar protections to those from other EU states). Otherwise UK citizens may sacrifice their current rights under EU law in the cause of British isolation.

During the referendum campaign there was much talk about sovereignty, but little clarity on what it actually means. Sionaidh Douglas-Scott explains that there are at least three notions of sovereignty that are relevant in the context of Brexit which are often confused – parliamentary sovereignty, popular sovereignty and external sovereignty. The immediate aftermath of last week’s vote has shown how these can come into conflict.

In a previous blog post Sionaidh Douglas-Scott wrote about how the consent of the devolved assemblies would be required to remove references to EU law from the devolution legislation in the event of Brexit. Here, she considers what would happen if, fearing the constitutional crisis that may result, the UK government simply left the devolution legislation untouched. For the sake of simplicity and space, this blog restricts discussion to Scotland, although similar issues will pertain to Wales and Northern Ireland.

In the event of Brexit, there will be pressing devolutionary matters to be addressed. One of these concerns the issue of the legislative consent of the devolved nations to the amendment of devolution legislation in order to remove references to EU law. If such consent is not forthcoming, this could prompt a constitutional crisis. In this post Sionaidh Douglas-Scott discusses this. For the sake of simplicity and space this blog restricts discussion to Scotland, although similar issues will pertain to legislative consent in Wales and Northern Ireland.

Theresa May has famously stated that ‘Brexit means Brexit’, but what does this actually mean (if anything)? Sionaidh Douglas-Scott examines the legal implications of triggering Art. 50. The position of referendums in UK constitutional law is very hazy, she notes, and previous UK-EU negotiations on crucial matters have often been shrouded in secrecy, with the key negotiators withholding information even from the Parliament. Paradoxically, Brexit may therefore not mean ‘taking back control’ by the Parliament, but rather a dominance by the executive for its political purposes.