brexit rule of law issues November 6, 2016Posted by Bradley in : brexit , add a comment
Thursday’s judgment in R (Miller) v Secretary of State for Exiting the EU is beautiful, a model of a judicial opinion, elegant and parsimonious, and also very careful not to trespass on political decision-making. It’s a judgment all law students in the UK should be required to read. But just as Mark Carney’s good faith implementation of his statutory mandate for financial stability has been critiqued as impinging on politics, so this good faith exercise of legal judgment has been impugned by people who should know better. And the Justice Minister stands by. How can a recognition of the fundamental principle of the British Constitution that sovereignty belongs to the Queen in Parliament be seen as anything other than pro-democracy? Meanwhile it looks as though the EU Commission is looking onto another (possible?) failure of the UK Government to respect the law – this time with respect to EU state aids rules and whatever promises have been made to Nissan. And surely this will attract just as much unthinking hostility as the other developments. And to think that the UK celebrated the 800th anniversary of Magna Carta last year.
a prime minister of pretences? October 30, 2016Posted by Bradley in : governance , add a comment
The final paragraph of this piece by Nick Cohen raises some quite fundamental questions about transparency in government:
Now she is a prime minister of pretences, running a government where feelings matter more than fact. She pretends that we should leave the EU, even though she knows we should remain a member of the single market. She offers us the illusion that we are taking back control, even as we lose our freedom to act. She cuts deals in secret, in the hope that the public will never realise that her land of make-believe is an expensive place to live.
Meanwhile, other news stories suggest that Mark Carney may choose to step down after much public criticism. Whether or not the stepping down would really be for personal reasons, there’s a deep irony here: a person who seems to have tried, in good faith, to carry out his statutory mandate is threatened for not going along with the fantasies the people in power choose to tell the public.
non-uk citizens not allowed to help with uk brexit work: more isolation (but it’s the opposite of splendid) October 7, 2016Posted by Bradley in : britishness , add a comment
This is a shocking development from a country that claims it wants its universities to carry on being centres of excellence:
It is understood up to nine LSE academics specialising in EU affairs have been briefing the Foreign Office on Brexit issues, but the school was informed by a senior FCO official that submissions from non-UK citizens would no longer be accepted. Notes were subsequently sent to those in the group telling them of the instruction.
consequences of financial sector misconduct September 28, 2016Posted by Bradley in : financial regulation , add a comment
John Chiang, California State Treasurer, announced sanctions against Wells Fargo for a period of one year from today including the suspension of investments by the Treasurer’s Office in all Wells Fargo securities, suspension of the use of Wells Fargo as a broker-dealer for purchasing of investments by his office and suspension of Wells Fargo as a managing underwriter on negotiated sales of California state bonds where the Treasurer appoints the underwriter. The letter announcing the sanctions to Wells Fargo states:
In the case of Wells Fargo, how can I continue to entrust the public’s money to an organization which has shown such little regard for the legions of Californians who have placed their financial well-being in its care? I have a responsibility as a leader in the financial marketplace to take action aimed at helping you understand that integrity and trust matter.
Meanwhile the UK’s Financial Conduct Authority published a raft of consultation and other documents collected together under the rubric “new measures to maintain firms’ focus on culture”, including a Policy Statement on regulatory references, a Consultation Paper on Duty of Responsibility, a Consultation Paper on non-executive directors, a Discussion Paper on the legal function, a Consultation Paper on whistleblowing in foreign branches and a Consultation Paper on remuneration in CRD IV firms. The announcement notes that the Senior Managers’ and Certification Regime has been functioning for 6 months and today’s publications give information about the Regime and move to strengthen it.
asil international economic law interest group biennial conference September 28, 2016Posted by Bradley in : events , add a comment
I am going to the ASIL International Economic Law Interest Group Biennial Conference this week. The program is here. I am going to be talking about Financial Stability, Regulation and Politics (August 2016).
what is international law? September 28, 2016Posted by Bradley in : um , add a comment
I gave an orientation talk to our LLM students on this topic and have written up my notes: What is International Law?.
what hope of suing the troika over austerity? September 21, 2016Posted by Bradley in : eu, financial regulation , add a comment
In an article with the title Austerity-hit citizens allowed to sue troika, ECJ rules, which discusses the implications of the decision in Ledra Advertising v Commission and ECB (Judgment)  EUECJ C-8/15 (20 September 2016), Nicole Sagener writes:
Green MEP Sven Giegold said it was a “breakthrough for the protection of fundamental rights” and announced that he would endeavour to support any citizens looking to seek compensation from the troika. Giegold added that people who have been affected in countries like Greece, Portugal, Ireland and Cyprus finally have legal means by which to have their cases heard.
The article does note some caveats expressed by Andreas Fischer-Lescano: it’s not a “blank check” and will only apply in “extreme cases.”
To me the decision is another example of the Court nodding in the direction of the protection of human rights while emphasizing that they are not absolute. The Court states (in para 70, but this is not new):
restrictions may be imposed on the exercise of the right to property, provided that the restrictions genuinely meet objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed
The need to protect financial stability, the Court says, is an objective of general interest for the EU:
Indeed, financial services play a central role in the economy of the European Union. Banks and credit institutions are an essential source of funding for businesses that are active in the various markets. In addition, the banks are often interconnected and certain of their number operate internationally. That is why the failure of one or more banks is liable to spread rapidly to other banks, either in the Member State concerned or in other Member States. That is liable, in turn, to produce negative spill-over effects in other sectors of the economy…In view of the objective of ensuring the stability of the banking system in the euro area, and having regard to the imminent risk of financial losses to which depositors with the two banks concerned would have been exposed if the latter had failed, such measures do not constitute a disproportionate and intolerable interference impairing the very substance of the appellants’ right to property. Consequently, they cannot be regarded as unjustified restrictions on that right.
Imagining circumstances in which EU institutions stated they needed to take urgent action to protect financial stability and the court said that the action was an unjustified interference with fundamental rights is. I think, difficult.
um iclr article cited in the financial times September 14, 2016Posted by Bradley in : um , add a comment
An article in the FT by Hudson Lockett, China extends tariff on EU potato starch imports refers to an article published in our International and Comparative Law Review (which is about the celebrate its 25th anniversary) by Adam Soliman.
juncker on the state of the eu September 14, 2016Posted by Bradley in : eu , add a comment
The EU’s landing page for the State of the Union 2016 seems pretty upbeat:
President Juncker today addressed the European Parliament in his annual State of the European Union speech. He highlighted: Europe must invest strongly in its youth, jobseekers, and start-ups. An ambitious Investment Plan for Africa – a lifeline for those who might risk dangerous journeys for a better life. We propose free wireless for every European village and city by 2020. Journalists, publishers and authors should be paid fairly for their work, wherever it’s made and shared. We will defend our borders with the new European Border and Coast Guard.
The speech itself begins with some entirely appropriate gloom:
I stood here a year ago and I told you that the State of our Union was not good. I told you that there is not enough Europe in this Union. And that there is not enough Union in this Union. I am not going to stand here today and tell you that everything is now fine. It is not. Let us all be very honest in our diagnosis. Our European Union is, at least in part, in an existential crisis…we should admit that we have many unresolved problems in Europe. There can be no doubt about this. From high unemployment and social inequality, to mountains of public debt, to the huge challenge of integrating refugees, to the very real threats to our security at home and abroad – every one of Europe’s Member States has been affected by the continuing crises of our times. We are even faced with the unhappy prospect of a member leaving our ranks
There’s a lot of uplifting material in the speech too, however, about European values (like fairness and solidarity). The “highlights” referred to above are in there but appear in a very different way from the list on the landing page, because they are bound up and embedded in this discussion of EU values. It’s a shame UK citizens weren’t given something like this speech to read as they prepared to vote in the referendum in June.
jacques delors on the future of the eu September 12, 2016Posted by Bradley in : eu , add a comment
Here is the full article, in which Delors endorses a Common statement by 177 European and national Civil Society Organisations and Trade Unions, and here is a Delors highlight:
In this time of crisis for European identity, it is essential for the EU to show that it is not paralysed but ready to act as a leading force in the many challenges we face: the fight against climate change, increasing inequality, the need to ensure sustainable and inclusive development, promoting human rights and ensuring that nobody is left behind.
Here’s the challenge set out in the Common Statement (which argues for working for better, rather than less, Europe):
We must all –leaders,media and individuals – actively and at every opportunity speak out and act against division, marginalisation of different groups in society and those that play on fears for their own political ends.