23 November 2021
On A Road to Nowhere
On Wednesday 24 November the Polish Constitutional Tribunal will, once again, review the extent to which existing international legal obligations, that were freely entered into by the Republic of Poland, are actually compatible with the Polish Constitution. Continue reading >>
0 
24 June 2021
The Northern Ireland Protocol “Sausage Wars”
Five years after the Brexit referendum, the legal stalemate on the Protocol on Ireland and Northern Ireland the impasse between the UK and the EU continues, despite the conclusion of the Withdrawal Agreement and the Trade and Cooperation Agreement. While the concept of “state civil disobedience” could be applied to the UK government’s actions since, this is an inappropriate means to conceptualise the conflict. Instead, the more familiar concept of legally justified exceptions to obligations would have been a more appropriate means of pre-empting the dispute during the creation of the Protocol. Continue reading >>22 May 2020
Squaring the PSPP Circle
The PSPP judgment made a core problem of the European Union painfully visible as the supremacy of EU law clashed with national constitutional identity. There is, however, a possibility to square this circle: national apex courts could be empowered to issue ‘declarations of incompatibility’ under Article 4(2) TEU as an alternative to the disapplication of EU law. Continue reading >>24 September 2019
Why the UK’s Government’s Demands on the Irish Backstop Would Violate the Sovereignty of the EU-27
Prime Minister Boris Johnson has asked the European Council President in a letter for reciprocal ‘binding legal guarantees’ not to put in place infrastructure, checks, or controls at the border between Northern Ireland and Ireland. The significance of this has been amplified by the European Parliament’s resolution that it will not consent to any Withdrawal Agreement without an Irish Backstop, in direct contravention to the UK’s position. This post will argue that the EU legal order places constraints on this option. Ireland would be in breach of EU law if it followed this course, and the EU institutions have no discretion to suspend these legal obligations. Continue reading >>
0
28 January 2019
EU Citizenship as an Autonomous Status of Constituent Power
I would argue, however, that Kostakopolou’s argument for a “co-determined Eurozenship” would not go far enough in realising the potential of the status. This post develops this argument first by grounding the normative appeal of autonomous EU citizenship in the context of Member State withdrawal. Next, it is suggested that the co-determination of the status by Member States and the EU institutions would be incompatible with the current legitimacy foundation of the EU. The post concludes by considering the more radical alternative of EU citizenship being made autonomous so that individuals can exercise constituent power to re-establish these foundations of the European Union constitutional order. Continue reading >>
0
24 March 2017
After Article 50 and Before Withdrawal: Does Constitutional Theory Require a General Election in the United Kingdom Before Brexit?
On March 29th, Theresa May will notify the EU Council of the withdrawal of the United Kingdom from the EU. This is the result of the Brexit referendum which, for the first time in the United Kingdom’s constitutional history, has opened up a powerful new source of popular sovereignty as a social fact. It is necessary for the constitutional integrity of the United Kingdom that this new stream of popular social legitimacy is realigned with the existing stream of Parliamentary Sovereignty. The most effective and desirable way in which to achieve this would be for a General Election to take place. Continue reading >>02 December 2016
After Fragmentation: The Constitution of a Core European Citizenry?
Core European Citizenship as an individual choice: Europeans who were granted the embryonic status of ‘EU citizenship’ with the Treaty of Maastricht, and who rely on this status and these rights for their pursuit of fulfilment throughout the European Union’s territory, should be given the choice to establish themselves in a real European constitutional polity. Continue reading >>02 November 2016
Why all Member States should clarify their Constitutional Requirements for Withdrawing from the EU
The UK’s ‘chaotic Brexit’ may perhaps be the inevitable result of being the first state to even contemplate withdrawal from the European Union. Regardless, the other Member States can now look to this uncertainty as something to avoid. By contrast to the United Kingdom’s current situation, they should look to the clarity of procedure for legitimate secession in Canada and seek to provide a similarly exhaustive statement of how the ‘constitutional requirements’ of Article 50 would be fulfilled in their own constitutional orders. Continue reading >>
0