Foreword

It is a pleasure to write a foreword for this special issue, which comprises an outstanding selection of submissions arising from the proceedings of the UCL Postgraduate and Early Careers Conference 2017. Having once been involved in the organization of the conference and editing of the UCL Journal of Law and Jurisprudence myself, and indeed having had the honour of participating as a discussant in this conference, I could not be happier to see the fruitful coming together of these activities. Yet the rigour displayed in this issue leaves no room for partiality. The silver thread that connects the five articles that make up this publication is the overarching theme of the 2017 conference: ‘The art of balancing and the role of law in the reconciling of competing interests.’ The contributions provide a new lens through which to approach this perennial debate in law and philosophy. Each in its own way,they offer thoughtful accounts of balancing between civic life, the public interest, and individual rights. Without losing sight of the broader theme, though, the submissions succeed in taking the reader through a variety of legal problems, in line with the generalist outlook that has characterized the journal since its creation

A ‘right to have rights’ in the EU public sphere? An Arendtian justification for the application of the EU Charter of Fundamental Rights

This paper discusses the Court’s reasoning in interpreting the EU Charter, using recent case law on horizontal effect as a case study. It identifies two possible means of interpreting the provisions of the Charter: firstly, an approach based on common values (e.g. equality or solidarity) and, secondly, an approach based on access to the public sphere. It argues in favour of the latter. Whereas an approach based on common values is more consonant with the development of the case law so far, it is conceptually problematic: it involves subjective assessments of the importance and degree of ‘sharedness’ of the value in question, which can undermine the equal constitutional status of different Charter provisions. Furthermore, it marginalises the Charter’s overall politically constructional character, which distinguishes it from other sources of rights protection listed in Art 6 TEU. The paper argues that, as the Charter’s provisions concretise the notion of political status in the EU, they have a primarily constitutional, rather than ethical, basis. Interpreting the Charter based on the very commitment to a process of sharing, drawing on Hannah Arendt’s idea of the ‘right to have rights’ (a right to access a political community on equal terms), is therefore preferable. This approach retains the pluralistic, post-national fabric of the EU polity, as it accommodates multiple narratives about its underlying values, while also having an inclusionary impact on previously underrepresented groups (e.g. non-market-active citizens or the sans-papiers) by recognising their equal political disposition

Brexit Transitional Period: The solution is Article 50. CEPS Commentary, 9 September 2017

As the Brexit negotiations labour on, the complexity of what lies ahead is finally, painfully, becoming clear to the UK government. Some Brexiteers, including Secretary of State for Exiting the European Union, David Davis, now seem to accept the idea that, although the United Kingdom is due to leave the EU on 29 March 2019, some sort of a transitional phase will be necessar

The Horizontal Effect of Human Rights after Brexit: A Matter of Renewed Constitutional Significance

This article examines the implications of Brexit for the application of human rights to disputes between private actors (‘horizontal effect’). The presence of EU law within the domestic legal system had created a remedially more favourable environment for addressing human rights violations by private actors than the Human Rights Act, as it allowed the direct reliance on human rights against private actors in situations coming within the scope of EU law. Section 5(4) and Schedule 1(3) of the EU (Withdrawal) Act 2018 removed the added benefits of relying on EU law in horizontal disputes, thus raising the question of how domestic case law might now develop. This article puts forward a two-fold argument in this regard: first, in light of the Withdrawal Act’s overarching purpose of continuity with the status quo until further repeal, it propounds a narrow reading of the aforementioned provisions. Secondly, it shows that there is an intricate, but so far under-appreciated, relationship between the unavailability of EU remedies and the development of indirect horizontal effect under sections 3 and 6 HRA, which could trigger a broader revival of horizontality in domestic human rights law

Case C-176/12 Association de Médiation Sociale

On 15 January 2014, the Court of Justice (hereafter ‘the Court’) delivered its judgment in Association de Médiation Sociale (hereafter ‘AMS’). AMS brought for the first time before the Court the issue of horizontal applicability in relation to a provision of the EU Charter of Fundamental Rights (hereafter ‘Charter’), namely Article 27 thereof, which enshrines the right of workers to information and consultation within the undertaking. The case therefore raised questions of ‘undeniable constitutional significance’, as Advocate-General Cruz Villalón had put it in his Opinion, regarding the post-Lisbon enforcement and interpretation of the Charter and, in particular, its application to disputes between private parties