In terms of Brexit

Many political and constitutional steps are needed in order for the UK to leave the European Union, after 45 years as a full member. Cumulatively they form one of the biggest constitutional changes in British history, and one dogged by intense controversy and disputes. Joelle Grogan examines how far the Brexit process can meet democratic criteria for such a momentous transition, or may fall short of these standard

Three fast lessons and three slow lessons for UK democracy in 2019 [Blog post]

The Brexit process has exposed serious flaws to the UK’s democratic institutions. In this post, based on a speech given at the launch of The UK’s Changing Democracy: The 2018 Democratic Audit, Joelle Grogan outlines six democratic lessons we should learn in 2019. The book is published by LSE Press, and can be downloaded for free here

The limited role of the European Union in the management and governance of the COVID-19 pandemic

Building on two global Symposia hosted by the erfassungsblog and convened by the author, the 2020 “covid-19 and States of Emergency” and the 2021 “Power and the covid-19 Pandemic”, in addition to the findings of the Democracy Reporting International ‘Rule of Law Stress Test’ which surveyed EU Member States’ responses to the pandemic, this article investigates the impact of the pandemic on governance and legal systems within the EU, and evaluates the actions taken by EU institutions and national governments in response to the health crisis against the standards of the rule of law

The only certainty is uncertainty - risk to rights in the Brexit process

This chapter exposes the uncertain future of rights in the UK following the Brexit process, adopting a taxonomy of risk that the Brexit process will pose to the framework of rights protection. It provides an overview of the envisioned Brexit process as it impacts rights and concomitant remedies for their infringement, and links this to the core question of whether there is an inherent ‘injustice’ in uncertainty. It outlines those rights which will be lost; those which are critically at risk; those which are vulnerable; and considers whether there are alternative means of protecting rights. It concludes on the argument of the injustice in the ‘knowable’ consequence of uncertainty and risk to rights which will arise as a direct consequence of the planned legal process by which the UK will withdraw from the EU

[Introductory note to] Joined Cases A. K. v. Krajowa Rada Sądownictwa (C-585/18) and CP (C-624/18), DO (C-625/18) v. Sąd Najwyższy (C.J.E.U.)

Joined Cases C-585/18, C-624/18, and C-625/18 concerning the independence of the Disciplinary Chamber of the Sąd Najwyższy (Polish SupremeCourt) is the latest in a series of EuropeanUnion (EU) Member States requesting the Court of Justice of the EU (CJEU) to rule on the independence of their judicial systems. While the organization of justice systems within Member States is a competence of Member States (and thus not for the EU to determine or decide), the CJEU has held that Member States are nevertheless required to comply with obligations under EU law to ensure effective judicial protection and, as a necessary corollary, judicial independence. The significance of the current case lies in the formulation by the CJEU of a “European” standard of judicial independence, and its finding that national judges may set aside the jurisdiction of courts found not to be independent against that standard and to disapply any national measure (in accordance with the principle of the primacy of EU law over national law) that gives jurisdiction to a non-independent court

In terms of Brexit

Many political and constitutional steps are needed in order to for the UK to leave the European Union, after 44 years as a full member. Cumulatively they form one of the biggest constitutional changes in British history, and one dogged by intense controversy and disputes. As part of our 2017 Audit of UK Democracy, Joelle Grogan examines how far the Brexit process meets democratic criteria for such a momentous transition, or falls short of these standards

Rights and remedies at risk: Implications of the Brexit process on the future of rights in the UK

This article provides a taxonomy of the impact of the Brexit on human rights, categorised by the degree of risk posed by the process of separation and legal reform during and following withdrawal from the European Union. First providing an overview of the envisioned Brexit legal process, it outlines what will be lost, critically at risk, vulnerable to repeal, and at low risk of removal. It considers the loss of effective remedies; the (avoidable) uncertainty of EU and UK citizens’ rights; the exclusion of the EU Charter of Fundamental Rights from incorporation as retained EU law; the implications of extensive delegated powers to amend retained EU law; and the systematic removal of executive and state accountability mechanisms under the European Union (Withdrawal) Act 2018. It assesses the potential impact of removing the foundation of equality, worker and consumer rights, and the acute vulnerability of ‘new’ rights. It argues that even where protections are not lost, they are critically at risk or significantly and substantially weakened. It questions whether common law and domestic remedies could fill the gap left in rights protection, exploring the complexities and contradictions arising from the new constitutional (un)settlement of powers. By categorising the impact of the Brexit process on rights by risk, this Article establishes the acute vulnerability of the UK’s framework of rights protection during and after the Brexit Process

Right restriction or restricting rights? The UK acts to address COVID-19

The UK was initially slow to adopt measures to address the COVID-19 pandemic. However on 23 March 2020 and following escalating infection and mortality rates, the government introduced the most restrictive measures on movement in modern UK history. These lockdown measures which introduced sweeping limitation on movement outside the home were introduced through statutory legislation: regulations which were made by the government and not debated nor legislated by Parliament. This paper considers the issues the UK’s legal responses to address the COVID-19 raises in terms of democracy, human rights and the rule of law

COVID‑19, the rule of law and democracy. Analysis of legal responses to a global health crisis

The COVID-19 pandemic caused a severe strain on health systems globally, while simultaneously presenting a social, economic, legal, political, and regulatory challenge. Where the efficacy of pandemic laws adopted by governments are a matter of life and death, the urgency with which action needs to be taken during a pandemic creates a law-making environment which incentivises rapid action without scrutiny and the use of power without restraint. Under such conditions, adherence to the foundational values of democracy and the rule of law come under increased pressure if not threat. The demands of emergency provide a convenient guise and means of justification for the use of power which only serves to consolidate power within the executive to the detriment of the separation of powers and weakening of the institutions of liberal democracy. This article provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the specific examples are drawn from across the globe to highlight common trends and concerns, specific highlight is given to the EU and its Member States. It offers an outlook on how to prepare for future emergencies by building on the lessons of the current one

States of emergency

From 6 April to 26 May 2020, the Verfassungsblog and Democracy Reporting International Symposium reported on states of emergency and measures taken in response to COVID-19 in 74 countries, analysing legal measures and the use of emergency powers which impact nearly 80% of global population.The fifty days of the Symposium covered the height of the global legal reaction to the pandemic, offering a snapshot of countries in collective crisis. It began with a call for a global conversation on the kind of legal norms which should govern the situation of worldwide pandemic. This final contribution aims to trace the central themes, questions and issues raised by the Symposium. It considers constitutional safeguards on a ‘state of emergency’, and whether this is preferable to the use of ordinary legislation in managing a crisis. It examines the dangers of executive action, and whether countries have been successful in limiting the potential for abuse, as well as preventing or sanctioning it. It examines how states have struggled to maintain some degree of legislative and judicial normality, while other states have given it up entirely. It considers the relevance of trust and transparency of government action, and the concerns related to an approach driven by surveillance and sanction. Finally, it identifies the most successful approaches adopted, and the most detrimental. In doing so, it aims to form part of that global conversation which seeks to identify the most concerning legal developments in a global emergency, but also to advocate for the best practices emerging worldwide. Analysis is drawn from country reports and commentaries available at Verfassungsblog. The countries reports cover: Albania, Argentina, Australia, Austria, Bangladesh, Belarus, Belgium, Botswana, Brazil, Bulgaria, Cameroon, Canada, Chile, China, Colombia, Croatia, Cyprus, Czechia, Denmark, Ecuador, Egypt, Estonia, European Union, Finland, France, Georgia, Germany, Ghana, Greece, Guatemala, Hong Kong, Hungary, Iceland, India, Indonesia, Iran, Ireland, Israel, Italy, Japan, Kenya, Latvia, Lithuania, Luxembourg, Malaysia, Malta, Mauritius, Mexico, Nepal, Netherlands, New Zealand, Nigeria, Norway, Peru, Philippines, Poland, Portugal, Romania, Russia, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, Thailand, Turkey, United Kingdom, Ukraine, United States of America, Venezuela, Vietna