New Papers on Brexit and Good Faith (for Francophiles)

I have recently made two forthcoming papers available on SSRN. Both are in French*. Both originated as talks given at the Université de Montréal, one in 2016 and the other more recently. The English abstracts are below.

First, Reprendre le contrôle : ennuis et ironies (the Ironies of ‘Taking Back Control’):

This text is based on the keynote address for a conference held at the Université de Montréal on March 29, 2018 to mark the first anniversary of the notification by the UK government of its intention to leave the European Union pursuant to Article 50 TEU.

Taking as my theme the notion that Britain is ‘taking back control’, I identify several ironies about the ‘control’ that has supposedly been ‘taken back’ and the way in which it will be distributed between the organs of government.

First, the referendum result exerts significant gravitational force, such that in matters Brexit it can be said that popular sovereignty trumps parliamentary sovereignty. Indeed, having now given the executive a legislative basis for sending the Article 50 notification, the nominally all-powerful Parliament has few legislative means at its disposal for influencing the course of Brexit.

Second, having ‘taken back control’, the UK proposes to promptly return control to the institutions of the EU, adopting norms of EU law wholesale through the European Union (Withdrawal Bill) and agreeing to remain bound by EU law during a transition period of ‘around two years’.

Third, Parliament will be obliged, in order to preserve the coherence of the British legal system, to accord sweeping powers to the executive to implement the Article 50 agreement, essentially allowing ministers the competence to legislate without passing through ordinary parliamentary procedures.

Fourth, a significant proportion of the ‘control’ that has been ‘taken back’ from Europe will end up in the hands of British judges, who will determine the relationship between pre-Brexit EU-law norms and post-Brexit developments, and set limits on ministerial powers to legislate by regulation. Indeed, the judges have already, in the seminal decision in Miller v Secretary of State for Exiting the European Union, developed British constitutional law in a novel way to take account of Brexit.

Fifth, the devolved parts of the UK are exercising significant influence over the course of Brexit, though the likely outcome of negotiations between central and devolved government is shrouded in doubt because the UK government has yet to develop a coherent vision as to the level — Westminster, Holyrood, Cardiff, Stormont — at which powers repatriated from Europe should be exercised.

My goal is not to question the outcome of the referendum, or even to suggest that prior warning of these ironies would have convinced a majority of voters to REMAIN in the EU. Nonetheless, ‘taking back control’ is proving very difficult in practice, a lesson that other nationalist, populist and isolationist political movements would do well to learn.

Download the text here. Thanks to Stephane Beaulac and David Pavot for the invitation.

Second, La bonne foi et la common law : L’arrêt Bhasin c. Hrynew (Good Faith and the Common Law: The Supreme Court of Canada’s Decision in Bhasin v Hrynew):

In this comment, I place the Supreme Court of Canada’s 2014 decision in Bhasin v Hrynew on good faith in contract law in the broad context of common law thinking on the role of the courts.

Properly understood, Bhasin does not represent a radical break with the past. Rather, it represents a principled development of the common law, in an incremental fashion.

Indeed, it would be more accurate to see Bhasin as developing a negative obligation not to act in bad faith rather than a positive obligation to act in good faith. The reluctance in Bhasin to impose positive obligations is entirely consistent with the long-standing reluctance of common-law courts to require individuals to act in a particular way.

Accordingly, it would be quite wrong to see in Bhasin a drift towards civilian modes of thinking about contractual obligations — the law of Quebec is relied upon only to support the conclusion that the proposed development of the law would not upset the settled understandings of parties to commercial relationships. Instead, Bhasin should be seen for what it is: a masterpiece of principled, incrementalist common-law reasoning which seeks to avoid radical change in the law.

Download the text here. Thanks to Benoit Moore — now, the Honourable Justice Moore of the Superior Court of Quebec — for the invitation. Not quite our usual fare on the blog, but a reminder that I do occasionally take an interest in private law!

I’ve also been working on papers on Irish administrative law and a comparison between English and Canadian administrative law. These are to appear in an edited collection and I cannot upload them to SSRN. If you would like a copy, do get in touch.

* I’ve had some difficulty in the past in making French-language papers available on SSRN, so please get in touch if you would like me to send you a copy directly.


This content has been updated on May 2, 2018 at 10:43.