Suchergebnisse

The impact of EU membership on the UK constitution has been profound. In the Miller (Article 50) case, the Supreme Court described the effect of the European Communities Act 1972 (ECA) – the means by which EU membership was given effect within the UK – as being unprecedented in constitutional terms. Not only did it provide for a new source of law, and a new constitutional process for making law in the UK, it also fundamentally changed the UK's system of government and the way in which we think about the location and exercise of public power.

Although two out of the three founding treaties of what is now the European Union (EU) – the 1951 European Coal and Steel Community Treaty (which expired in 2002) and the 1957 European Atomic Energy Community (Euratom) Treaty – had energy at their heart, EU energy law was limited in its scope and impact until the 1990s, with early interventions largely focused on (nuclear) safety and maintaining security of supply. In general, with energy security being regarded as closely linked to national security, Member States jealously guarded their sovereignty in relation to energy policy, and energy industries were mostly organised on national lines, often as publicly-owned monopolies. Things began to change in the late 1980s and 1990s as a result of two pressures. First, the desire to complete the EU internal market, by addressing indirect distortions to competition such as energy costs, coincided with a worldwide shift in energy policy away from public ownership and monopolisation towards privatisation and liberalisation. Relying on general competition law and free movement powers, the Commission moved to liberalise downstream gas and electricity markets, initially via a litigation strategy and subsequently through three successive waves of legislation (in 1996/98, 2003, and 2009).

Scotland is a quasi-autonomous territory within the United Kingdom. It has its own legal system and extensive powers of self-government under a system of legislative devolution. In other words, the powers of the Scottish Government and Scottish Parliament derive from an Act of the United Kingdom (UK) Parliament – the Scotland Act 1998 (as amended) – and are not constitutionally entrenched. Within the UK, there are also systems of legislative devolution in Wales and Northern Ireland, but not in England – the largest, by some measure, of the four UK territories.1 The UK Government and Parliament therefore govern in some respects for the whole of the UK, but in other respects for England only. The response to the Covid-19 pandemic in Scotland has largely mirrored that elsewhere in the UK, reflecting the enmeshed legal competences of Scottish and UK governmental institutions, the fact that the four UK administrations were, at least to begin with, receiving the same expert advice, and the desire, again at least initially, for a common UK-wide approach to a common public health threat that does not respect jurisdictional boundaries. However, there have from the outset been differences in the legal basis of some measures taken to tackle the pandemic in Scotland, and differences of detail and emphasis. Those differences have increased over time. While there remains significant commonality in the types of measures taken in response to the pandemic in all four UK territories, more differences in the detail, timing and tone of the response have emerged. Indeed, it has been claimed that the four-nation approach to the pandemic has effectively been abandoned.2

In the 2016 Brexit referendum, Scotland voted decisively to Remain in the EU, while a UK-wide majority voted to Leave. This article discusses responses to the constitutional significance of a territorially divided result, both prior to and following the referendum, including in litigation over the 'constitutional requirements' necessary to trigger the United Kingdom's withdrawal from the EU under Article 50 TEU ( R (Miller) v Secretary of State for Exiting the European Union). It considers what these debates reveal about the uncertain and contested nature of the UK's territorial constitution, focusing on issues of constitutional security for devolved institutions and competences, and constitutional voice for the devolved territories in handling issues of intertwined competence. It argues that the Brexit episode reveals major weaknesses in the dominant reliance on political mechanisms to give recognition to the constitutional significance of devolution, which do not adequately displace continued legal adherence to the assumptions of a unitary constitution.

Klappentext: "The United Kingdom's departure from the European Union on 31 January 2020 ran counter to recent trends of European history. Since the 1950s, European integration has included ever more countries with ever-softening borders between them. Progress was intermittent; the final destination both unclear and contested. But the direction of travel was set. In its apparent reversal of integration and its recreation of borders, Brexit is first and foremost a territorial event. The EU has lost one of its most powerful Member States. The future relationship between the UK and the EU, while still unclear at the time of writing, will be markedly different from what has pertained hereto; the movement of people, goods, services, and capital (the four freedoms of the European Single Market) across borders will be considerably more difficult"--