01 October 2019
The Rule of Law, not the Rule of Politics
On 24 September 2019, just two weeks after Parliament had been controversially prorogued by Prime Minister, Boris Johnson, the UK Supreme Court handed down a unanimous judgment holding that such prorogation was ‘unlawful, null, and of no effect’. Parliament was not and had never been prorogued. But this is not likely to be the end of such questioning of the fundamentals of the constitution and – in particular – the limits of executive power. Continue reading >>
0 
30 September 2019
An Alternative to the Brexit Backstop: An All-Ireland “Common No-Custom Area” under Art. 24 GATT
In order to resolve the current stalemate in the brexit negotiations, we propose to establish a “Common No-Custom Area” in Ireland applicable only to products originating in either part of the island. This special regime conforms to the Frontier Traffic exception of Art. 24 of the General Agreement on Tariffs and Trade (GATT/WTO) and builds on the “precedent” of Cyprus where a similar regime has been in place since 2004. This practical solution takes into account that a major part of intra-Ireland trade is made up of products originating in either part of the island. Continue reading >>29 September 2019
Is Brexit a Game?
Can Boris Johnson's and Dominic Cumming's Brexit strategy be made plausible by means of game theory? I think not. It seems too simple to present the current situation as a two-party game, with the UK (or Boris Johnson) on one side and the EU on the other. In reality, Johnson faces two opposite players—one being the EU, the other the hard Brexit opponents and the Supreme Court at home. Continue reading >>27 September 2019
Without the Benefit of Hindsight
On history being written by the winner and other myths of constitutional and unconstitutional nature. Continue reading >>24 September 2019
Boris Johnson’s Strategy of Assured Mutual Destruction: Crazy but not Irrational
One of the frequent equivocal “courtesy” titles that has been awarded to Boris Johnson these days is that of plunger or reckless gambler. Boris Johnson may be many things — his language coarse, his behavior ruthless — but if you analyze his behavior in the current Brexit affair from a decision theoretic angle there is a rational interpretation for his seemingly irrational approach. 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
21 September 2019
Justiciable but not Necessarily Illegal
The UK Supreme Court is about to decide the fate of the UK Government’s decision to prorogue Parliament. Two are the main issues: First, justiciability – whether the Government’s decision can be subject to judicial scrutiny or whether it lies beyond the Judiciary’s remit. Second, if judicial review is available, whether the Government’s decision is lawful. Although the two issues prima facie appear to be distinct, in this case they are intertwined. I believe that the issue of prorogation in this case is justiciable and that the Government’s decision to prorogue falls within the legal boundaries of the Constitution. Continue reading >>14 September 2019
The UK Constitution and Brexit – Five Brief External Observations
As a constitutional lawyer one therefore cannot help but ask: What is happening to the British Constitution? What is going on with the political and parliamentary culture of a nation so proud of its parliamentary history? And what about the Queen? In the following, I would therefore like to share five very brief and somewhat unsystematic observations of these recent developments from a German perspective. Continue reading >>06 September 2019
A Matter of Confidence
On lying without expecting belief and other harbingers of constitutional doom. Continue reading >>
0
04 September 2019