Archive for the ‘Europe’ Category

UK growth likely to rise above 1.5% next year, says thinktank

Plans to ease austerity slightly over next five years are not believable, according to NIESR

Britain’s growth rate will bounce back above 1.5% next year as ministers exceed existing public spending budgets to cope with an ageing population, a leading thinktank has said.

The National Institute for Social & Economic Research (NIESR) said plans to ease austerity only slightly over the next five years were “unbelievable”. It added that government spending would almost certainly need to increase by more than expected in the next few years, increasing the UK’s GDP growth.

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Farage: Brexit party will use EU poll to oust ‘remain parliament’

Former Ukip leader outlines ambition to take control of Brexit process at rally in Clacton

Nigel Farage has returned to the seaside town where Ukip had its first MP elected five years ago, promising at a rally in Clacton that his new Brexit party will use the momentum of European elections to oust a “remain parliament”.

Railing against a “political class” who he said had betrayed the people of Britain, Farage claimed to hundreds of supporters on Clacton pier that what was at stake was not just Brexit, but whether or not Britain was a democratic country.

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Stephanie Reynolds: Brexit and the (Not Quite) Constitutionalised Status of EU Citizenship

Since its formal introduction in the Maastricht Treaty, EU citizenship has laid claim to a constitutional status. The Union Treaties – long described by the Court of Justice as the EU’s constitutional texts – explicitly confer the status of Union citizenship on all nationals of the Member States. The asserted significance of this was subsequently confirmed in the seminal Grzelczyk judgment, in which the Court famously declared that EU citizenship was ‘destined to be the fundamental status of nationals of the Member States’.

UK withdrawal from the EU – and the consequent uncertainty surrounding the residence rights of the Union citizens living there – has, however, thrown into sharp relief the weakness of Union citizenship’s claims to a fundamental, constitutionalised status. As the Joint Parliamentary Committee on Human Rights recently highlighted, almost three years after the Leave vote those EU citizens already living in the UK are still at risk of being denied the residence and equal treatment entitlements that were likely to have been central to their decision to exercise their free movement rights during the UK’s EU membership.

In truth, however, the disconnection between EU citizenship’s promises and its delivery far pre-dates the referendum. At the Union-level the ongoing links between free movement rights and economic activity mean that they have never been enjoyed equally across the EU citizenry. On the domestic side, national legislation, as well as administrative implementation, rarely reflect the ambition of ‘financial solidarity between nationals of a host State and nationals of other Member States’, visible in the Grzelczyk decision.

Interestingly, beyond the important question of the loss of residence rights post-withdrawal, it is Brexit itself that has exposed the long-term, ongoing internal weaknesses in EU citizenship’s purportedly protective rights offering. In the specific context of securing the rights of those already living in the UK, it is the UK’s political constitution and not Union citizenship that has offered some (albeit limited) protection. For this to suffice, however, a much closer scrutiny of post-Brexit residence security mechanisms is needed, particularly as regards their administrative implementation.

Post-Brexit residence insecurity: exposing the long-term gaps in the EU citizenship framework

Article 21 TFEU confers free movement rights on all nationals of the Member States by virtue of their personal status as EU citizens, rather than as a by-product of their activity as workers. And yet, this provision is also explicitly ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’. This raised questions, when EU citizenship was first introduced, about whether there would be a continuing distinction between the free movement rights of workers and non-economically active EU citizens. Article 7 of the Citizens’ Rights Directive (CRD) confers extended residence rights on workers by virtue of this economic activity. By contrast, non-economically active Union citizens must be self-sufficient and have comprehensive sickness insurance to access this entitlement. This has a knock-on effect for accessing the social assistance that can make a personal right to free movement possible in practice. While workers automatically reside legally under the CRD and so also trigger equal treatment provisions, an application for social assistance by a non-economically active Union citizen could suggest that they are not self-sufficient, not residing legally under the Directive and so not entitled to equal access to social assistance.

Admittedly, in its early post-Maastricht case-law, the Court of Justice held that, given Union citizenship’s basis in the Treaties, these requirements were subject to the principle of proportionality, and that a ‘certain degree of financial solidarity’ was expected between Member State nationals ‘particularly if the difficulties are temporary’. However, the Court has nevertheless long accepted that an application for social assistance can indicate that a non-economically active Union citizen is no longer residing legally in their host State, which would mean that she/he is also not entitled to equal access to social assistance. This already casts doubt on EU citizenship’s constitutionalised ‘fundamental status’. As O’Brien argues Union citizenship instead offers, at best, ‘a right to have restrictions applied proportionately’. And, as she notes, even this has crumbled in the Court’s more recent case-law, in which it has prioritised the requirements of Article 7 CRD over the once overarching free movement rights contained in the Treaties. Member States, including the UK, have been permitted to impose ‘right to reside’ tests, whereby Union citizens must reside in accordance with the CRD in order to access social assistance. The Court has then increasingly found individualised proportionality assessments to be unnecessary.

The UK has long taken advantage of these gaps in the EU citizenship framework, exposing Union citizens to residence insecurity far before the Brexit vote. Its Immigration (European Economic Area) Regulations largely confer residence rights on ‘qualified persons’, namely EU citizens who reside in accordance with the CRD, while the Social Security (Persons from Abroad) Amendment Regulations also make access to benefits contingent on a ‘right to reside’ in line with that Directive. In 2014, the UK government announced a minimum earnings threshold, which introduced an administrative presumption that anyone working for fewer than 24 hours a week at minimum wage should not be categorised as a ‘worker’ and so would not be able to access social assistance. Meanwhile, the Court of Appeal held that applications for permanent residence by non-economically active EU citizens could be refused where they could not provide evidence of fully comprehensive sickness insurance [FK (Kenya) [2010] EWCA Civ 1302].

Ultimately, then, far before the referendum there was a disconnection between the promises of Union citizenship and their delivery, both at the EU and the domestic levels. The ongoing distinction between the rights of workers and those of non-economically active Union citizens exposed groups of individuals – children, unpaid carers, the homeless, and those in precarious work to the risk of losing residence and equal treatment rights. Yet much of this was masked by the overarching constitutional claims of Union citizenship. This was particularly the case because, prior to the referendum it was commonly only those citizens who sought social assistance or to avoid removal who were confronted with these issues.

Following the referendum, in the absence of unilateral commitments to Union citizens’ residence security from either the UK or the EU, a high volume of EU citizens living in the UK began, understandably, to make applications for permanent residence under the CRD despite the fact that this entitlement is itself contingent on the continuing application of EU law. Now, Union citizens who had previously enjoyed more secure residence in the UK and not had to interact with the Home Office – for instance, those in permanent, well-paid work – found themselves facing challenges that had in fact existed for some time. For example, an application for permanent residence by a doctor who had worked continuously in the UK for the past 3 years could be rejected on the basis that she hadn’t provided evidence of comprehensive sickness insurance during the prior 2 years, when she was a student. This situation, and the issuing of ‘please leave’ letters (seemingly in error) by the Home Office garnered the attention of both the press and social media.

The UK parliament then turned its attention to the residence security of EU citizens living in the UK. Several amendments to the EU (Notification of Withdrawal) Act 2017 on the issue were proposed. However, by replicating the existing Union citizenship framework, these amendments were unlikely to have addressed the core risks to residence security and, ultimately, were not passed in any case. Nevertheless, as is common within the UK’s political constitution, the consequent pressure on Government was of greater significance. The Government subsequently announced that its EU Settlement Scheme would confer settled status on EU citizens who had been factually resident in the UK for 5 years, without it being necessary to demonstrate legal residence in accordance with the CRD. Accordingly, non-economically active EU citizens – or those who had been so in the past – would no longer have to provide evidence of comprehensive sickness insurance. This would seemingly also reduce the administrative burden on those who had had several employers to provide evidence of each job and of retention of worker status or sufficient resources and comprehensive sickness insurance for the periods in between employment. Indeed, the Government committed to using its own HMRC data to provide automatic proof of residence.

Papering over the cracks: ongoing issues with the EU Settlement Scheme and the Withdrawal Agreement

Of course, it might be argued that EU citizenship has therefore had a more subtle constitutionalising effect on proceedings. The practical consequence of EU free movement law is the residence of around 3 million Union citizens in the UK – who moved here in reliance on a legal framework that will cease to have effect on Brexit day – the residence security of whom the Government has come under political pressure to protect. More significantly, the Government has committed, in its White Paper on Legislating for the Withdrawal Agreement, that should any future UK parliament decide to repeal the citizens’ rights part of the Withdrawal Agreement (should this be adopted), ‘Parliament must activate an additional procedural step’. Whilst clearly not going as far as to entrench EU citizens’ rights, this commitment arguably seeks to find a compromise between their importance and the sovereignty of Parliament.

On the EU side, citizens’ rights were one of the Union’s three negotiating priorities on which sufficient progress had to be made before it would proceed to the second phase of negotiations. As well as the ongoing supremacy and direct effect of relevant Union norms under Article 4 of the Withdrawal Agreement, it also contains additional commitments on citizens’ rights. For example, pursuant to Article 158, UK courts could continue to refer questions on the citizens’ rights part of the Agreement to the Court of Justice in the eight years following the end of the transitional period.

Yet the specifics of EU citizenship, as a fundamental status conferring free movement rights on all nationals of the Member States, has not been the decisive factor here. Article 50 TEU does not contain any explicit instruction to the European Council to include citizens’ rights within the negotiating guidelines. Moreover, the Withdrawal Agreement itself largely replicates the rights – and therefore the ongoing problems – operating under the CRD. Indeed, when the Commission was asked about the fact that the UK’s commitment to waive the comprehensive sickness insurance requirement was unilateral and non-binding, the Commission stated that ‘we seek to protect the rights as they stand under current EU law, nothing more, nothing less’. And of course, Article 50 explicitly allows for a ‘no deal’, an ongoing possibility, which would mean the UK would be under no international obligation to provide even the problematic residence entitlements available under the Withdrawal Agreement.

As the Joint Committee on Human Rights has highlighted, the UK government would also face no domestic obligations. Any Legislating for the Withdrawal Agreement Bill, and the primary legislation on citizens’ rights that it would introduce, would become irrelevant upon ‘no deal’. While the Government has said this is not a problem since it is committed to the EU Settlement Scheme, the scheme is implemented through statutory instrument as an appendix to national immigration rules and so does not benefit from the level of protection offered by an Act of Parliament. Meanwhile, as the Joint Committee rightly points out, the Immigration and Social Security Coordination (EU Withdrawal) Bill ends free movement rights in the UK into the future whilst making no reference to the rights of already resident EU citizens, leaving them at risk. Consequently, the Committee proposes an amendment to the Bill whereby any exercise of powers under the Bill by the Secretary of State must ‘protect the acquired rights of those persons who, prior to Exit Day, benefitted in the UK, from right of free movement of persons under EU law’.

And yet, deal or no deal, both the Legislating for the Withdrawal Agreement White Paper and the Committee’s suggested amendment to the ISSC Bill overlook the real issue: that of administrative implementation.

The need for greater scrutiny of administrative implementation of EU citizens’ rights

The key issues for citizens’ residence security in the UK post-Brexit largely mirror those already in play before the vote, namely the need to demonstrate legal residence in line with the CRD. The additional step outlined in the White Paper only conditions Parliamentary repeal of the residence rights contained in the Withdrawal Agreement, not the more generous approach to residence security offered by the EU Settlement Scheme. Similarly, the Joint Committee’s proposed amendment to the ISSC Bill simply refers to free movement rights ‘under EU law’. Should Government decide, once more, to require legal residence rather than factual residence, neither of these mechanisms would stop it.

More importantly, even if the EU Settlement Scheme remains in place in its current form, there is a real need for scrutiny of its administrative implementation. Though the Scheme claims to focus on factual residence, the means by which Union citizens can demonstrate this fact still largely relate to economic activity. For instance, applicants are able to link their application to HMRC data, which will provide evidence of their residence. While this might work for those in permanent work, unpaid carers, for example, will not benefit. Though the Government has said applicants will also be able to rely on DWP records, the operation of the ‘right to reside’ test means that those not categorised as workers are unlikely to have been able to access the benefits that would generate this data. Those in precarious work will also face a heavier administrative burden, since they will have to provide evidence of residence during gaps in their HMRC profile. Much of this additional evidence is also linked to economic activity: P60s, P45s, mortgage or rental payments and utility bills. This will present problems for victims of domestic abuse, who are less likely to have control over domestic finances, not to mention for children, who by simple virtue of their age will lack an economic paper trail. Though the Scheme foresees some other forms of evidence, such as GP letters, these are limited, and only cover the month of the appointment, which, needless to say, raises the evidential challenge when trying to demonstrate 5 years’ residence. While the Government says this is unproblematic because affected individuals will be offered ‘temporary settled status’ until they accumulate the necessary years, these ongoing requirements risk making ‘temporary settled status’ a perpetual one.

Worryingly, there is the real possibility that much of this will go unnoticed. Political pressure to bring about change to longstanding issues with EU citizenship rights only came about after the referendum when more privileged categories of Union citizen began to be affected and voice their experiences. At present, ongoing problems with the use of HMRC data, amongst other things, are continuing to affect high-profile applicants, raising awareness of current problems with the Scheme. However, these cases concern applicants with good access to societal voice whose long-term residence in permanent work highlight issues with what should be relatively straightforward aspects of the Scheme. Ongoing scrutiny of application outcomes, once these more high-profile problems have been ironed out, is essential. Of course, EU citizens in the UK have also become mobilised by the referendum result, with campaigns groups such as the3million paying attention to the cliff edges for a wider range of Union citizens that are created by a Settlement Scheme that still largely focuses on economic activity as proof of residence. It is crucial that these additional stories are heard.

Thus, though the legislative safeguarding of EU citizens’ residence security is important, proper scrutiny of administrative implementation is even more vital. Of course, pursuant to Article 159, the Withdrawal Agreement requires the UK to establish an Independent Monitoring Authority that would be empowered to conduct inquiries concerning alleged breaches of the Citizens’ Rights part of the Withdrawal Agreement. Once again, however, since that Authority would be established under the Withdrawal Agreement, it would presumably only have the power to consider strict adherence to the rights available under the Agreement itself and not the more generous entitlements that appear available, on paper, under the EU Settlement Scheme. If these additional rights turn out to be restrictive in practice, it appears there is little about the fundamental status of Union citizenship that can resolve the problem. Political focus on the Scheme is therefore critical.

With thanks to Eleanor Drywood, Mike Gordon and Thomas Horsley for their comments on this post.

Stephanie Reynolds, Senior Lecturer, School of Law and Social Justice, University of Liverpool

(Suggested citation: S. Reynolds, ‘Brexit and the (Not Quite) Constitutionalised Status of EU Citizenship’, U.K. Const. L. Blog (24th Apr. 2019) (available at https://ukconstitutionallaw.org/))

UK’s biggest fishing trawler sails up Thames in Brexit warning

Kirkella owners concerned that UK fleet could lose access to waters off non-EU states

The biggest whitefish trawler in the UK fleet sailed up the Thames on Tuesday to highlight the threats facing the fishing industry if Brexit negotiations fail to deliver a deal.

The Kirkella, based at Hull, can catch 2.3 million fish on every two-month voyage, plying the seas of the Arctic, Greenland, Norway and the north-east Atlantic. Built last year, it has travelled to the Arctic five times so far, and on Wednesday it will be officially named and launched by the Princess Royal at Greenwich in London. Spectators will be treated to 3,000 free portions of fish and chips.

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Former communist standing as MEP for Farage’s Brexit party

Libertarian Claire Fox is one of five new candidates announced for European elections

Nigel Farage’s Brexit party has unveiled a former revolutionary communist who once supported Irish republicanism and opposed the Good Friday peace deal as one of five new candidates for the European elections.

Claire Fox, who now styles herself as a libertarian and is a panellist on BBC Radio 4’s Moral Maze programme, told the launch event she most likely only agreed with Farage on one issue – Brexit.

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Alison Young: Taking (Back) Control?

In his insightful post, David Howarth set out a conflict between two visions of democracy: Westminster and Whitehall. The Westminster vision favours Parliament (particularly the House of Commons), drawing on Parliament’s democratic credentials, the sovereignty of Parliament and the ultimate constitutional convention that a Government only holds power to the extent that it enjoys the confidence of the House of Commons. The Whitehall vision favours a strong executive and efficient government, democratically backed by the mandate on which it was elected, focusing on Standing Order 14 which prioritises Governmental business in the House. This post will ask how far these visions are supported, or rejected, by the European Union (Withdrawal) Act 2019. It will argue that, in one sense, the Act is a pyrrhic victory. It did little to modify the relative powers of the House of Commons and the Government and, if anything, its long-term consequence may transfer power from the Commons to the Government. Although it marks a potential transition in the role of the House of Commons, moving from its traditional role as the epitome of a reactive or arena legislature to a more active role, the Bill also demonstrates the precarious position of Parliament. The House of Commons may be unable to capitalise on its potential transition from a passive to an active legislature.

A Pyrrhic Victory?

When introducing the European Union (Withdrawal)(No 5) Bill at its second reading in the House of Commons, Yvette Cooper explained that the purpose of the Bill was to ‘avert no deal on 12 April’. This has indeed been averted. Moreover, the Bill obtained cross-party support, and was added to the agenda through a business motion of the House to disapply Standing Order 14 , enabling the first, second and third readings of the Bill, and the Committee stage in the House of Commons, to take place in one day. This process by-passed the usual mechanisms for Private Members Bills, which normally succeed in practice only when supported by the Government. It is hard to see this as anything other than a victory for Parliament over the Government; for the Westminster over the Whitehall view of democracy.

In addition, we can regard the Bill’s process through Parliament as the culmination of a series of measures through which the Commons appears to have wrested control from the Government. The process was started by section 13 of the European Union (Withdrawal) Act 2018, creating the so-called ‘meaningful vote’. By placing conditions on the ratification of the Withdrawal Agreement, as well as initiating a series of ‘motions in neutral terms’, the Act transferred power from Whitehall to Westminster. Without section 13, the Withdrawal Agreement could have been ratified through the negative resolution process found in section 20 of the Constitutional Reform and Governance Act 2010. The motions in neutral terms laid the foundations for a series of business motions of the House: enabling motions on neutral terms to be amendable (on 4 December); suspending Standing Order 14 (on 25 March and 1 April), enabling a series of indicative votes on 27 March and 1 April), in addition to the business motions on 1 April and 3 April suspending Order 14 in order to provide for the enactment of the Bill. If further proof were needed, section 13 was also instrumental in the decision of Wightman which granted permission for an Art. 267 reference to the CJEU, ultimately leading to the CJEU’s conclusion that it was legally possible for the UK to unilaterally revoke Article 50. It seems hard to conclude anything other than that the the Westminster view of democracy is now compelling, with the Whitehall model in full retreat.

However, the Bill’s progression through the Commons and the Lords, and its final form, tell a different story. Flaws in the Bill’s first draft (on which see Mark Elliott, and the report of the Select Committee on the Constitution of the House of Lords) led to amendments in both the Commons and the Lords. It was not clear that the Bill, in its initial form, would achieve its objective. Whilst the original version of the Bill  required the Prime Minister to move an initial motion shortly after the Bill received royal assent, there were no dates set as to when the Prime Minister should approach the European Council to seek an extension, or as to when she should lay a motion before the Commons should the European Council propose a different extension date to the one proposed by the Prime Minister, or one with conditions attached.

Even if Prime Ministerial inertia could lead to judicial review (potentially on Padfield grounds should she fail to seek an extension from the European Council in time so as to thwart the aims of the Act to avert ‘no deal’ on 12 April) it was not clear whether the court could grant a mandatory order to require the Prime Minister to move a motion in the House, or to hold her in contempt of court should she fail to do so. Moreover, any legal action would potentially be too late – the 12 April deadline would have passed and we would have left the EU without a deal.

The Bill could also lead to a potential ‘Parliamentary Mulberry Bush’, as dates were proposed by the Prime Minister, rejected, modified by the Council, to be proposed, rejected and modified by the House of Commons on almost a continuing basis. The Bill was amended in the House of Lords to prevent this problem, with the Act providing for just one motion. The Prime Minister chooses the date of any possible extension, with the possibility of the Commons voting to amend her chosen date. The Prime Minister chose 30 June, in line with the letter written to Donald Tusk prior to the deliberations on the Bill. The motion was approved by 420 votes to 110. Whitehall’s vision of democracy hovers back into view.

The Bill as proposed in the Commons also potentially restricted the Prime Minister’s prerogative powers, giving rise to fears of potential litigation should the Prime Minister agree to another extension after 12 April using the prerogative. But section 6 of the Act expressly preserves the prerogative power of the Prime Minister to seek and agree to an extension of Article 50, provided that this is for an extension that ends no earlier than 22 May 2019.  The Whitehall vision of democracy seems far from dead in such a scenario.

Moreover, the Government was successful in proposing a further amendment in the House of Commons. The procedure for accepting delegated legislation to modify the definition of ‘exit day’ no longer requires an affirmative resolution by the Commons and the Lords. It now uses the negative resolution procedure (section 2). This amendment survived in the House of Lords, despite the recommendation of the House of Lords Delegated Powers and Regulatory Reform Committee to reject it. Expediency won out: the maintenance of the affirmative resolution procedure might lead to the frustration of the Bill’s purpose, there perhaps being no time to obtain votes in order to avoid the UK leaving the EU with no deal on 12 April. Yet, the modification of ‘exit day’ does not prevent the avoidance of no deal. It provides clarity by preventing delegated legislation designed to facilitate ‘no deal’, or to deal with deficiencies in retained EU law, from coming in to force. Yet, as a matter of EU law, whilst we remain a member of the EU, directly effective provisions of EU law would override this delegated legislation, even if it were to have come in to force on 12 April. Moreover, the move to negative resolution is not just for the one-off motion to prevent no deal on 12 April. It applies to all future amendments to ‘exit day’: 22 May (leaving with a Withdrawal Agreement and no European Parliamentary elections); 11 June (leaving with no deal having failed to hold European Parliamentary elections); 31 October (with or without the ratification of the Withdrawal Agreement); or the first of July, August, September or October, the Withdrawal Agreement having been ratifed before the end of June, July, August or September – not to mention the possibility of a further extension request. The Whitehall view of democracy becomes more dominant.

From Reactive to Active?

The enactment of the European Union (Withdrawal) Act 2019 sets a precedent which could see Westminster becoming more active. It illustrates that it is possible for a cross-party group of backbench MPs to initiate and enact legislation, suspending Standing Orders to command parliamentary time for debate. However, it also illustrates the difficulties of this process. The Act is the fifth such Bill to be proposed by Yvette Cooper. Previous attempts to suspend Standing Order 14 to enact similar Bills failed to gain majority support in the House of Commons. The Act is short, dealing with one issue. It was enacted during a unique set of circumstances questioning the assumptions on which the Westminster Parliament traditionally operates. The snap general election of 1997 failed to deliver a clear majority Government, despite the UK’s continued adherance to first-past-the-post. Brexit cuts across party lines. This gives rise to odd juxtapositions of large Governmental defeats, followed the next day by a vote of confidence in the Government.

All of this is taking place against a backdrop of a politically advisory referendum, exacerbating tensions between the sovereignty of Parliament and the sovereignty of the people, and a constantly ticking clock of exit days set by EU law, which can only be pushed forward when there is unanimous agreement from the European Council. As much as the House of Commons can repeatedly vote against a no deal Brexit, the only way to stop a no deal exit on a particular exit day is to agree the Withdrawal Agreement, revoke article 50, or seek and obtain a further extension. It is not just, as Lord Judge pointed out in the House of Lords, that a precedent set need not be followed; the precedent arose from a set of circumstances that may not be easy to replicate outside of Brexit.

There are further potential problems when assessing the impact of the European Union (Withdrawal) Act 2019. The assessment of Westminster as a reactive legislature derives from an analysis of the extent to which non-Governmental members of the legislature can successfully initiate or amend legislation. It fails to take account of how those in Government may themselves propose amendments to legislation in the face of anticipated reaction in the Commons; or through adopting and supporting amendments that were originally proposed by non-Governmental MPs. The Government also reacts to public pressure and reports of Select Committees. These may prompt legislation and influence the content of both draft and proposed Bills. These mechanisms provide a means of facilitating deliberation. But deliberation often takes place behind the scenes, hidden by the ‘show’ of adversarial politics on the floor of the House. Would section 13 of the European Union (Withdrawal) Act 2018 have been enacted without these pressures in the background? Would the Prime Minister have written to Donald Tusk on 5 April without the events of 1  and 3 April? These are questions to which it is hard to provide any definitive answer.

Perhaps the best way to read the Act is to realise its unique status. To recognise the very particular set of facts that prompted its initiation and enactment. If it sets a precedent, let it set one of illustrating that, when the limited mechanisms for effective deliberation fail, it is still possible for the Commons to ensure that its views are not silenced. It is what Nick Barber and I call a ‘constitutional self-defence mechanism’ ([2003] Public Law 113). A means for the Commons to protect its constitutional powers in times of, or to even help resolve, a potential crisis. It can also indirectly help to facilitate deliberation – failing to take account of the views of the Commons, or enabling the Commons to influence the content of legislation, could lead to the Commons taking control. The Westminster view comes back into focus, reminding Whitehall that it only has power to the extent that it holds the confidence of the House. In short, neither the Westminster nor the Whitehall view of democracy is fully accurate. Both also have strengths and weaknesses as a potential model of democracy. The tension betweeen these two views is needed to ensure that neither Westminster nor Whitehall become so strong as to undermine the legitimate democratic credentials of the other.

Is Westminster v Whitehall the only game in town?

This assessment of the European Union (Withdrawal) Act 2019 has focused on competing conceptions or views of democracy. The UK constitution has evolved through a series of potential crises – of which Brexit is merely the latest. It is at these moments that competing conceptions of democracy come to the fore. The crisis pushes this conflict to centre-stage; when normally different constitutional theories are able to work side by side, responding to particular situations, alternating in their dominance in the background. However, this battle between Whitehall and Westminster overlooks other views of democracy. By pushing the current situation to levels of constitutional crisis, seeking a solution where one side wins, we push deliberative democracy to the background. If we are to move on, politics needs to find a means of deliberating and reaching an acceptable compromise. These deliberations should not just include the Commons. If we are to regain trust in politics, they need to engage more fully with the people as well.

Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge

(Suggested citation: A. Young, ‘Taking (Back) Control?’, U.K. Const. L. Blog (23rd Apr. 2019) (available at https://ukconstitutionallaw.org/))

Ukip MEP candidate blamed feminists for rise in misogyny

Carl Benjamin said feminism was driving men to violence after 2014 murder of six women in US

A leading Ukip candidate for the European elections argued that feminism is responsible for a rise in the number of men carrying out mass murders, because the killers feel disenfranchised and “out of options”, it has emerged.

Carl Benjamin, a social media activist who previously tweeted, “I wouldn’t even rape you” to Labour MP Jess Phillips, argued in a now-deleted YouTube video that feminism had caused male mental health to deteriorate, prompting more mass killings.

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