Michael Dougan Profile picture
Professor of European Law, University of Liverpool Joint Editor, Common Market Law Review Second Violin / Viola, Liverpool Mozart Orchestra All views personal.
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23 Jul
Time for regular charade of UK talking up prospects of some great EU trade deal; while EU itself criticises British for not seriously engaging over obstacles to new (but actually pretty bog-standard) treaty. So time also to recall basic calculation by Johnson that led us here:
Underlying problem? UK "red lines" should mean only distant future EU-UK relationship in trade, security etc. But also means a) serious disruption to existing relations with EU, obviously with greater impacts on UK as junior partner + b) problem of how to avoid hard Irish border
May Government's calculation? Keep paying lip service to own "red lines"... but in practice, sign up for deal that would keep UK more closely tied to EU for foreseeable future = minimise economic / security disruption + avoid Irish border without cutting Norn Iron off from GB
Read 5 tweets
22 Jul
I used to be relatively cautious about need for major constitutional reform. But as existing system falls apart under pressure from unprincipled, power-greedy charlatans, we see full dangers of unwritten constitution that relies on shared values, good faith and self-restraint...
... so I'm increasingly converted to need for full-scale revision of UK fundamentals: written constitution, no more FPTP, proper separation of powers, effective checks and balances, protected basic rights of citizens, protected powers of national and regional governments...
... especially since Brexit has now taken way, or at least seriously weakened, many of the basic safeguards EU membership once provided for a whole range of our political, civil, social and economic rights. We are now sitting ducks for a government willing to abuse its power...
Read 5 tweets
20 Jul
Was thinking of submitting response to White Paper on UK Internal Market but decided not to do so. Why? White Paper poses 4 questions for consultation. But those questions = entirely marginal to actual content. No point focusing on few details, when real problem is overall scheme
Basic challenge of "UK Internal Market" is how to find legal framework that reconciles (on one hand) meaningful scope for devolved autonomy with (on other hand) empirical and constitutional fact of English dominance within UK
In effect: need to find tools that will help "tame" natural power of English economy (conducted according to English regulatory preferences) to suppress Scottish / Welsh ability to pursue different paths - without own producers being penalised / own choices being swamped out
Read 9 tweets
17 Jul
Few observations about reaction to one of most important fall-outs from Brexit so far & for future:
1) so many Leavers just totally dismiss it
2) so much of "national" media appears disinterested
3) so many Tories have infantile grasp of trade concepts & even worse of devolution
In fact: some Tories are effectively arguing for a "UK internal market" that is rigidly centralised, intolerant of difference & antagonistic to devolution. But I thought we were against superstates that crush local freedom? By comparison, "Brussels" looks like a cuddly kitten.
Though to be fair: also surprised by number of sensible people who think this is just some special interest issue, only relevant to Scotland or Wales. This is a major constitutional innovation for entire UK, being done by Johnson in a total rush, with little debate or scrutiny...
Read 3 tweets
17 Jul
What questions would I be asking, about UK Internal Market White Paper, if I were working for Scottish or Welsh Governments?

Certainly something to think about over coming days / weeks, but for now, a few ideas for reflection:
1) This whole issue has been rushed because of Johnson's refusal to extend transition. It's a fundamental, complex and sensitive issue. Needs negotiation, careful thought and consensus. Instead: Johnson has made it "urgent" & risks imposing London solution against others' will
2) White Paper lacks sufficient detail to be amenable to rigorous analysis: some major issues are sketched out only roughly; other major issues are virtually glossed over entirely. May be because Johnson has artificially made it "urgent". But not good, for something so important
Read 10 tweets
17 Jul
Internal Market White Paper: been asked for worked out egs... OK, but bear in mind: only proposals, not legal text!

Will use two hypothetical egs
1) Scotland enacts minimum price for alcohol
2) Scotland bans single use plastics
Q = can they be enforced against English imports?
1) minimum price for alcohol is generally regarded as form of product requirement directly relating to lawful sale of relevant goods - much like composition or packaging or labelling. I.e. this isn't some mere ancillary trading rule like method of transport or advertising.
Under White Paper, mutual recognition applies to all product requirements - so English alcohol shouldn't have to comply with Scottish minimum pricing, even in Scottish shops. So far, much like EU law. But here's the crucial difference: EU rule = only presumption, not absolute...
Read 8 tweets
16 Jul
Important proposals contained in White Paper on UK Internal Market – fundamental for entire future economic and democratic governance of UK: assets.publishing.service.gov.uk/government/upl… .

Serious proposals that deserve detailed analysis. Some initial thoughts from me in this short thread:
1) UKGov accepts obvious: leaving EU creates situation in which new regulatory barriers to trade will arise across UK; & existing project on “common frameworks” is not enough to address issue. Need more general understanding of challenge and more horizontal model to address it.
2) For that purpose UKGov adopts crucial starting assumption. Any regulatory divergence that creates barrier to intra-UK trade = inherently problematic: economically undesirable; might affect foreign trade deals. “Essential” goal = to maintain “frictionless trade” across whole UK
Read 16 tweets
12 Jun
Quick summary of where we've got to today with Brexit:

1) We're currently in the middle of the post-withdrawal, status quo transition period as requested by UK: latter has left EU, but not much has changed on the ground (apart from UK being excluded from all EU decision making)
2) also at UK's request: Withdrawal Agreement contains a one-off facility to extend transition period beyond current date of expiry on 31 Dec 2020. This was meant to offer more time for trade etc negotiations. But that extension decision needs to be taken by end of this June.
3) there is currently legal debate about whether it would still be possible to extend / recreate the status quo transition even after June deadline has passed... but the general view is that such power is very unclear (at best) and simply not possible (at worst)
Read 7 tweets
25 May
Good to laugh at post-truth populists. But as myself & incomparable @CR_OBrien wrote of their Brexit tactics: goal isn't to convince anyone to *believe* their lies; it's to make people feel there is no such thing as "truth" anymore = even more dangerous

papers.ssrn.com/sol3/papers.cf…
Today's antics fit that bill perfectly. Cummings tells obvious pack of lies. Johnson says it's all perfectly plausible. Tory minions bleat that it's a media witchhunt. Reality is made to feel blurry. Facts are less important than feelings. "They're all as bad as each other."
Subjectivising fact and evidence, blurring the boundary between truth and lies, making the population cynical and disengaged: that's how the Trumps, Orbans, Bolsonaros and Johnsons wield their power. It's good for a laugh. But it's also a serious threat to our liberal democracy.
Read 3 tweets
25 May
I've been to lovely Barnard Castle many times and can't think of a better place to visit if I want to test whether I'm fit to drive: winding country roads, single lane bridges, busy high street, dispensable locals, extra points for child in tow - proper Krypton Factor stuff...
But just by coincidence, it's also great for a relaxing day out with family or friends - pretty old centre, amazing Bowes Museum, great half-ruined castle, impressive river views... oh... EXCEPT DURING THE LOCKDOWN WHEN YOU'RE NOT MEANT TO BLOODY GO.
Though possibly more amusing than Cummings' Mea No-waya Culpa? All the brainwashed rightwing numpties falling over themselves to crown his innocent head with a garland of bluebells picked from daddy's woodland estate while denouncing elitist-lefties for their fake-news witchhunt.
Read 3 tweets
20 May
UK proposals for implementing Protocol on Ireland / Northern Ireland deserve detailed scrutiny. No doubt the Commission will soon oblige! Below = some first thoughts from me (moving from the general to the specific) pending more critical reading & cross-checking:
1) UK redefines purpose of Protocol in selective & self-serving manner. Apparently main purpose = to protect UK customs territory & UK internal market. Really? That only emerged under Johnson. Before, main purposes = to prevent hard border, safeguard peace & protect EU market
2) Moreover, UK provides own definition of what a “customs territory” actually means (as opposed to an “international border” apparently) – basically just making stuff up & then claiming that that’s the basis on which the Protocol *must* now be interpreted and applied. Oh really?
Read 14 tweets
19 May
Let me tell you how sovereignty works, Gove: take what's on offer, or bargain better, or lump it. But stop crying like a brat about how the world won't just give you what you want. Take back control in haste, now learn your place & repent at leisure...

theguardian.com/politics/2020/…
Funny how remoaner-sc*m like me=on top of idea that UK is now just a third country (albeit one still waiting to discover what that fully means after transition). But High Priests of Brexit just can't get heads around idea: you're on your own now, like you wanted, so lap - it - up
Except many Leave-Arch-Druids *do* get it. They just need to continue painting EU as satanic-scapegoat, so that when transition ends they can run like cowards from any responsibility/accountability for consequences of their beloved Brexit. Virus helps out. Meteor? Icing on cake!
Read 4 tweets
19 May
OK, so My Boss @academicbarzo nominated me for a "my life in 7 pictures - no words, no explanations". Am but a humble employee and shall obey, though working with only what's saved on this phone. Voila... 1/7
2/7
3/7
Read 7 tweets
18 May
As UK prepares to publish its oh-so-reasonable detailed proposals on future EU relations, in apparent effort to pressurise the stubborn foreigners into abandoning their own interests and objectives... let’s just recall a few key facts and considerations:
1) Before Brexit, UK and EU27 agreed joint statement of their negotiating objectives / outline terms. But as soon as UK had left, Johnson Government ripped up significant parts of that mutual understanding. Such duplicity may be rewarded at home, but elsewhere... it has a cost
2) UK asked for & was granted possibility to extend transition period beyond 31 Dec 2020. But Johnson then ruled out doing so, regardless of circumstances, including impact of unforeseen global health & economic crises. The extra time to talk is there - the UK just won’t use it
Read 11 tweets
17 May
Do I think Johnson Government is cynical & dishonest enough, to be deliberately planning to evade responsibility for inevitable damage of own "no deal Brexit", by mixing it all up with economic havoc wrought by pandemic? Of course. How could any sentient being think otherwise...
Remember: us awful experts have been saying since "Florence speech" in Sept 17 that UK's "status quo" transition period isn't just about giving more time for UK to make essential preparations. Is also about creating time & space between act of Brexit & its actual consequences...
For Brexitists seeking to establish "plausible deniability", in order to shift own culpability & evade proper accountability, coincidence of transition period + pandemic + "Yellowhammer Brexit" on steroids = even more convenient "get out of jail free" card than they planned for
Read 7 tweets
15 May
Here they come, the Brexitists in their usual state of fury... Let me spare you the effort, dearhearts, by anticipating a few of your standard heckles:

1) "bumboy" - as the Prime Minister of the United Kingdom of Great Britain and Northern Ireland would say
2) "EU funded traitor" - well, if you want to know what I spend all my non-existent funding on, please see 1) above
3) "ivory tower academic" - because if you want to know about constitutional law, do make sure you don't ask a constitutional lawyer..
Read 5 tweets
15 May
Poor Brexitists. 1st EU didn't collapse. Then EU didn't beg for sweet prosecco deal. Now virus hasn't "strengthened UK hand". So time for full-scale "blame evil EU for no deal disaster". Even though UK unilaterally rejected agreed negotiating terms & rules out more time for talks
What a refined level of hypocrisy, for Brexitists to denounce EU as "ideological", given their own extraordinary detachment from objective reality. The same sort that promises Parliament must be "at heart" of EU trade talks - until Johnson wins election, then promise is scrapped
& as for UK announcing that it plans to publish negotiating documents with EU, in exact same week as Government is reported to have promised Trump it would keep all his talks top secret... Only thing more laughable=how stubbornly Brexiters cling to their farce of "Global Britain"
Read 4 tweets
14 May
I sympathise: still haven't fully recovered from the mental (more than physical) trauma of having to perform home dental surgery, using medium-grade sandpaper from the DIY toolbox, after I broke a tooth in half, right at the start of lockdown... yukky

theguardian.com/society/2020/m…
Awh - very kind! I did enjoy doing Smeagol impressions for a couple of days, but eventually, the lacerated tongue and bloody mouth drove me to conclude that rapid-erosion treatment was probably better. Yet the bad memory (grate, grate, grate) has proven more stubborn to erase...
Of course, acting strictly under medical advice and instruction! And not Dentist Trump either: no gargling with domestos, thanks very much
Read 3 tweets
12 May
Looking again at Government's own "Yellowhammer" assessment of likely consequences of "no deal". Given that ending transition on 01/01 with no proper replacement= basically same as "no deal", surely begs question: what is Government's revised assessment of those exact same risks?
One hand: might have expected transition to give more time to make preparations / mitigate worst risks. Other hand: surely pandemic has disrupted those preparations / magnified certain risks / created new or supplementary problems that were not foreseen by original Yellowhammer.
But how do we know, unless Johnson shows us results of necessary studies & updates? There *must be* fresh studies: surely no Gov would take such major decision, with potentially disastrous consequences, without careful investigation & evaluation compared to own previous plans?
Read 6 tweets
7 May
I'm perplexed by some of the "commentary" on the German Federal Constitutional Court's recent "Eurozone PSPP" ruling - evidently by people who haven't even read the judgment. Law colleagues will offer more detailed and expert analysis in due course, but a few thoughts for now:
1) does the FCC lay down new constitutional principles governing the relationship between EU law and the German legal system? Not really: this is essentially the application of existing principles (on scrutiny of EU action against limits of EU power) to a new factual situation.
2) So is FCC's application of existing constitutional principles to particular context of PSPP dispute legally persuasive? Again, not really. FCC says: we'll respect ECJ having different understanding of relevant legal principles, so long as it's not arbitrary or incomprehensible
Read 11 tweets
7 May
You've got to gawp at the Europhobes' barefaced hypocrisy. One minute, EU = Germany's Fourth Reich by stealth, the next = our brave German judges fight back against the Brussels machine. & how fast do judges go from "enemies of the people" to "defenders of liberty" when it suits?
UK Supreme Court: throughout time in EU, UK remained sovereign state & UK Parliament was sovereign lawmaking authority

German Constitutional Court: Member States remain "Masters of Treaties" & EU has not evolved into federal state

Brexiters: SMASH THE EVIL EU SUPERSTATE NOW!
Though remember: if you even imply they are somewhat lacking in godlike intelligence and insight... theyst shall surely cast theirst most thunderous and righteous anger upon thee, withe much gnashing of denthtures and screeching of unhev'nly profanitees...
Read 3 tweets