European Union (Withdrawal) Bill: Paving the way towards a very uncertain future

Phil Syrpis

Professor of EU law, University of Bristol

(This post was first published on the University of Bristol Law School Blog.  It is reproduced here with kind permission of the author.)

The stated aim of the, then Great, Repeal Bill was to provide clarity and certainty for citizens and businesses, and to ensure a functioning statute book on exit from the EU. The key statement of principle in the White Paper was as follows: ‘In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once we have left the EU. This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before’ (for analysis, see here).

However, the continuity provided by what is now the European Union (Withdrawal) Bill, published last week, must be seen in the context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame (see here). After all, the Government’s aim is that, as a result of Brexit, the UK will be able to decide which parts of EU-derived law to keep, and which to amend or repeal. A number of Brexit Bills, which will change the law in relation to, among others, immigration, trade, customs, agriculture and fisheries, were promised in the Queen’s speech. The clarity and certainty promised in the White Paper, which at first glance appear to provide comfort to citizens and businesses concerned over the effects of Brexit, are more elusive than ever. Continue reading

Brexit: a separate citizens’ rights agreement under Article 50 TEU

Stijn Smismans, Professor of EU Law, Cardiff University

Why a separate citizens’ rights agreement under article 50 is required

The European Council Guidelines for the Brexit negotiation adopted on 29th April 2017 (further referred to as Negotiation Guidelines), as well as the Council Directives for the negotiation adopted on 22nd May 2017 (further referred to as Negotiation Directives), show a clear EU commitment to defend the rights of the nearly five million people whose lives are most directly affected by Brexit, namely the EU citizens residing in the UK, and British citizens residing in the EU.  The Negotiation Directives clearly state that the withdrawal negotiations should ensure  ‘the necessary effective, enforceable, non-discriminatory and comprehensive guarantees’ and they favor a rather maximalist defense of the rights of these citizens (including judicial protection by the CJEU). The UK’s promises to protect the rights of these citizens are comparatively vague.  However, both the EU and the UK have agreed that dealing with the rights of these citizens is the first priority of negotiations. However, there is no procedural guarantee that these citizens would not end up as a bargaining chip.

The Negotiation Guidelines and Directives provide for a phased approach to the negotiations.  However, this phased approach aims primarily at separating the negotiation of the withdrawal settlement under Article 50TEU (phase 1) from the negotiation of an agreement on the future relationship between the UK and the EU (phase 2).  In addition to that, it provides for a second stage within the first phase (Article 50 withdrawal settlement).  In that second stage, the withdrawal negotiation can start to reflect on the potential scenarios for the future UK-EU relationship.  Article 50 requires ‘taking account of the framework for its [withdrawing Member State’s] future relationship with the Union’ when dealing with the withdrawal agreement.  However, the Guidelines state clearly that this second stage of the first phase will only start when the European Council has decided that there is ‘sufficient progress’ on the issues identified as priorities of the first phase.

Citizens’ rights have been identified as the first item on the agenda of the first phase of the negotiation process.   The proposed ‘phasing’ thus gives some level of separating citizens’ rights from other parts of the negotiation.  However, this is far from ring-fencing. The EU has taken the approach that as far as the withdrawal issues (phase 1) are concerned ‘nothing is agreed until everything is agreed’. This at least means that citizens’ rights issues might be traded off against other topics of the first phase of negotiation, such as the financial settlement and the Ireland-Northern Ireland border issue.  Moreover, they may even be influenced by the reflections about the future UK-EU relationship which will appear on the negotiation table as issues ‘to be taken into account’ prior to the finalisation of the Article 50 withdrawal agreement.  Hence, EU citizens in the UK and British in the EU remain fully at risk of becoming bargaining chips.

The proposed negotiation procedure entails two additional dramatic consequences for the 4.5 million citizens directly affected.  The principle ‘nothing is agreed until everything is agreed’ unnecessarily prolongs the uncertainty these people are living in.   Moreover, in the case that the withdrawal agreement fails, citizens will find themselves in a legal limbo with dramatic consequences.

The only solution to solve the uncertainty of 4.5 million people is to adopt an agreement on citizen’s rights at the start of the Article 50 negotiation, independently from other withdrawal issues.

So why has it not happened so far?

One can understand the EU’s reluctance to negotiate on citizens’ rights PRIOR to the triggering of Article 50.   The UK referendum was merely an internal affair as long as Article 50 had not been triggered.   Moreover, if negotiating a citizens’ rights agreement prior to Article 50 had been attempted, it would not have profited from the decision-making procedure of Article 50 (which allows for the agreement to be adopted via Qualified Majority in Council and consent by the EP, and thus not requiring ratification by national parliaments in the EU 27). Negotiation outside Article 50 would be more cumbersome since it may require ratification by all national parliaments.  Hence the ‘time advantage’ of starting negotiation prior to triggering Article 50 would immediately have been lost as the procedure itself would slow down the process.  Finally, the EU feared that negotiation on partial issues prior to the triggering of Article 50 would undermine the unity of the EU 27.

However, now that Article 50 has been triggered, there is no reason why a separate agreement on citizens’ rights cannot be negotiated prior to all other issues.

The moral argument in favor of that remains as strong as ever before.  The strategic argument of the EU that it would encourage ‘cherry-picking’ is also hardly convincing.  The EU has by now set out  its institutional framework, priorities and strategy for the negotiations.  It is no longer unprepared, and has the institutional mechanism in place to ensure unity in response to the UK in negotiations.  Moreover, arguments that a separate citizens’ rights agreement opens the way for cherry-picking are based on the wrong assumption.  Accepting ring-fencing for citizens’ rights does not create any obligation to do the same for other issues.  There is a strong moral argument to state: ‘a separate agreement will only be done on citizens’ rights given the human costs involved’.  As will be shown below that does not create any legal precedent for the EU to accept separate agreements on other issues.

The only remaining question then is whether it is legally possible. More precisely, the question is whether the rights of post-Brexit EU citizens can be legally ring-fenced from other negotiation topics and be safeguarded prior to the end of the withdrawal negotiation, and in a way that it stands even in failure of the latter.

To show whether ring-fencing is legally possible we need to address three questions:

  • Is it possible to adopt a separate agreement on citizens rights signed under Article 50?
  • How to ensure procedurally that the negotiation of these citizens’ rights, and of this separate agreement, is not mixed up with other Brexit negotiation issues (ring-fencing in the strict sense).
  • How to ensure that the agreement comes into force even if other aspects of the Brexit negotiation fail (safeguarding)

Is a separate agreement legally possible under Article 50 TEU?

As confirmed in Article 5 of the Negotiation Guidelines, Article 50 TEU confers on the Union an ‘exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal. This exceptional competence is of a one-off nature and strictly for the purposes of arranging the withdrawal from the Union.’ There is no doubt that addressing the rights of the 4.5 million is inherently an issue of withdrawal, and can thus be dealt with via Article 50.  These are issues on which the EU has been able to act on behalf on the Member States so far, and this competence extends (thanks to Article 50) to dealing with all withdrawal aspects related to it.

However, Article 50 TEU talks about a withdrawal agreement in the singular. The question is then whether a separate agreement on citizens’ right under Article 50 is possible.  I will argue that the use of the singular in relation to ‘agreement’ does not exclude legally that the withdrawal could be composed of several agreements, as long as the objectives and spirit of Article 50 TEU are respected. Continue reading

Brexit Round-Up

On Friday 17th February, Tony Blair, launched his campaign for Bremain, declaring it his “mission” to persuade Britons to “rise up” and change their minds on Brexit and find  “a way out from the present rush over the cliff’s edge”. Speaking in the City of London, the former prime minister claimed that people voted in the referendum “without knowledge of the true terms of Brexit”. Debate continues to rage over the true cost of Brexit, as a result of Camerons commitment to fund the whole current EU spending cycle from 2014 to 2020. The time lag between commitment and expenditure – the “Reste à Liquider” (RAL) – may see Britain making payments to Brussels until at least 2023. The true costs of the referendum are now coming to light, as the Electoral Commission declares it the most expensive referendum in British political history.

This week also saw the start of the journey of the Brexit Bill through the House of Lords under the steely, somewhat sneering gaze of the Prime Minister and a warning that Britain will be plunged into its biggest turmoil in over a century if peers attempt to thwart Brexit’.  The attempt to intimidate was lost on Liberal Democrat Baroness Kramer who called for voters to have “the final word” on the Brexit deal in a referendum.

Stephen Sedley commented on the curious language used in the Brexit Bill, calling the ‘petulant and ungrammatical wording, alongside the use of an acronym rather than the name of the European Union’ a ‘curiosity’ that raised the question of whether the Bill ‘was copied from the back of a ministerial envelope.’ He also agrees with those who think that the CJEU may yet have to determine whether Article 50 TFEU once triggered can be revoked:

‘…if, after two years of negotiation, no acceptable deal has been reached with the other member states, either the prime minister’s notice under Article 50 will expire and our membership of the EU will lapse with no deal in place, or the notice will have to be extended or withdrawn. Who has authority to decide whether this can be done? The Court of Justice of the European Union, that’s who.’

Businesses begin to make Brexit plans – Barclays Bank announced an expansion of operations in Ireland and Germany, although apparently the bulk of operations will stay in London after Brexit even if the UK loses access to the single market. Farmers also delivered a warning over the consequence of losing EU seasonal workers: according to figures released this week, more than 100,000 EU citizens left Britain in the three months after the EU referendum. New worker registrations from Poland, Hungary and Slovakia are down from 16% – 20% prompting fears of a recruitment crisis.

Meanwhile, fraud investigations spread from the father to the daughter: this week French police raided the FN Headquarters of Marine Le Pen as part of an official investigation into “fake” jobs involving the misuse of European Union funds to pay for a bodyguard and an assistant in Paris. OLAF has demanded that she repay €340,000 and in the face of her refusal, is currently deducting this from her MEP’s salary.

Finally, as Labour clung onto Stoke and the Conservatives took Copeland, questions have been raised concerning the future of UKIP – having lost ‘Brexit capital’ is UKIP now a spent force? In Stoke, UKIP finished more than 12 points behind Labour. Can the end of the insurgency party in the UK fortell the end of the insurgent in the White House? Continue reading

Law and Politics in the Supreme Court

Phil Syrpis, University of Bristol Law Schoolsyrpis

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill, authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit. It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion.

Continue reading

Miller Judgment breaches UKSC duties under EU law in disservice of UK Parliament

ASG smallDr Albert Sanchez-Graells

The UK Supreme Court (UKSC) has today handed down its Judgment. It has done so in a way that both infringes its duties under EU law and does a disservice to the UK Parliament.

Breach of UKSC’s duties under EU law

One of the difficult legal issues on which the Brexit litigation hinged concerned the interpretation of Art 50 TEU and, in particular, the revocability of a notice given under Art 50(2) TEU. The interpretation of this point of law falls within the exclusive competence of the European Court of Justice (ECJ) under Art 263 TFEU. Interestingly, the UKSC stressed this monopoly of interpretation as a key element of EU law at para [64]. However, the UKSC has violated the ECJ’s monopoly of interpretation of the EU Treaties by accepting the parties’ commonly agreed position on the irrevocability of an Art 50(2) TEU notice at [26] of the Miller Judgment.

In doing so, the UKSC has infringed its obligation under Art 267(3) TFEU to engage in a preliminary reference to the ECJ concerning the interpretation of Art 50 TEU (for legal background see here and here). This cannot be saved by an argument that, under domestic procedural rules (or conventions), the UKSC had the possibility of taking this approach–and effectively dodging one of the most complex and unpredictable legal issues on which the litigation rested.

There are several reasons for this, but the primary one is that, as matter of EU law, a preliminary reference by the highest court of an EU Member State is unavoidable where the interpretation of EU law is necessary to enable it to give judgement–or, in other words, where the judgment relies on a given interpretation of EU law. In my view, it is beyond doubt that the UKSC Miller Judgment is based on the interpretation that an Art 50(2) TEU notice is irrevocable, and that this represents the legally binding view of the majority judgment, regardless of the attempt to save the UKSC’s view on this point in para [26] — or, in other words, it is not (logically, legally) true that the UKSC’s Miller Judgment operates ‘without expressing any view of our own on either point‘ (ie regarding the revocability or not of the Art 50(2) TEU notice). There are explicit indications of this interpretation in paras [59], [81] and [92] (see here for more detailed analysis of the latter).

In view of the relevance of the points of irrevocability of the Art 50(2) TEU notice, it is clear to me that the UKSC had an obligation to seek the interpretation of this provision by the ECJ and that, in not doing so, it has breached EU law. Moreover, beyond what some may consider a highly technical or academic point, by not seeking this clarification the UKSC has also done a disservice to the UK Parliament. Continue reading

Miller – A Decision in Defence of the UK Constitution

Prof Iyiola SolankeBlogPhoto

The UKSC has spoken. And as many had expected (perhaps in their more sanguine moments even the Government legal team) it has upheld the decision of the High Court that legislation is required prior to the triggering of Article 50 TEU. The judgement should become compulsory reading in Constitutional Law, especially because it sets out clearly the separation of powers between the government and parliament, in particular the law making powers of each and most significantly the reach of those laws made using institution specific law-making powers.

The UKSC remind that the basis of the prerogative power asserted by the government is in the principle of dualism – that international law and domestic law operate in independent spheres [55]. Thus although treaties signed under international  law are binding on the UK in international law, such treaties are not part of UK law and give rise to no legal rights or obligations in domestic law. Therefore just as treaties made by Ministers are not governed by domestic law, domestic law made to give national effect to those treaties cannot be governed by Ministers. As put in JH Rayner by Lord Oliver of Aylmerton:

“As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation…” [56].

Hence, as put by the UKSC ‘…the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers’ [57]. In coming to this conclusion the UKSC should be seen not as ‘enemies of the people’ but on the contrary their friends: by protecting parliament, they also protect the people, ensuring that governments do not undermine the citizenry by imposing decisions upon them which have not been put before them or their representatives (ie Parliament). This may be of especial resonance to the 28% who did not use their vote in the EU referendum.

The ECA 1972, passed by Parliament to incorporate the Treaty of Rome into domestic law, is uncontroversially described as more than an ordinary statute. This assertion of the constitutional character of the 1972 Act is not new – it was set out in Thoburn and R (Buckinghamshire County Council) v Secretary of State for Transport. Importantly, the Court highlights the crucial distinction in relation to its dual impact – first it provided that ‘rights, duties and rules derived from EU law should apply in the United Kingdom as part of its domestic law’ and secondly created a ‘new constitutional process for making law in the United Kingdom.’ The former is described as ‘exclusively a question of EU law’; the latter ‘exclusively a question of domestic law’ [62].

From here it requires only reiteration of traditional reasoning to conclude that oversight over the domestic constitutional process remains with Parliament not government. As such, Parliament can legislate to alter the domestic constitutional process, the status of EU institutions or even the status EU law. This is not constrained by the primacy of EU law, or any rule of EU law because this is a question of the domestic constitution for Parliament. Parliamentary sovereignty is in 2017 as it was in 1972 and ‘…EU law can only enjoy a status in domestic law which that principle allows. It will therefore have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament’ [67].

Thus just as Parliament decided in the 20th century when the Treaty of Rome should have domestic impact, it is for Parliament to decide in the 21st century when that ceases to apply; then as now this remains a question for Parliament, not the Government. The Court rejects the argument asserting that the 1972 Act foresees use of prerogative powers – without prior Parliamentary authorisation – to break the constitutional legal tie made by Parliament between EU law and the UK. On the contrary, it concludes that,

“… by the 1972 Act, Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties.”

Given the long-standing principle of parliamentary sovereignty, one may again wonder why the EU referendum was necessary. The judgment can be read as adding weight to assertions that the EU referendum was a response to party political and not national interests.

Causes, Aftermath, and Future: The Three Stages of Brexit

Jo Eric Kushahl Murkens*

A friend of mine, who is French and lives in London, returned from holiday the day after the referendum. In an email to me, she wondered why she had bothered: she felt as though her home had been “vandalised” by half the people in the country. Most people I spoke to reported feelings of anger, shock, and disbelief in the immediate aftermath. These strong emotional reactions were entirely understandable given that their future right to work and live in the UK as EU citizens had just been put into question.

On second thoughts, however, why were we shocked? The Brexiters had run a very effective campaign, with slogans along the lines of “We want our country back” and “Let’s take back control”. The Remain camp had no response to this. David Cameron and George Osborne were simply not the right people to remind voters of this straightforward fact: it was not uncontrolled immigration from the EU that was responsible for the decline in public services throughout the country, but the austerity politics driven by Conservative Party ideology since 2010. The Brexiters had won the campaign effortlessly.

More importantly, we are not talking about mendacities, myths, and misinformation that were spread over the course of a two-month long referendum campaign. We are talking about the wilful and sustained distortion of the European project by British politicians and journalists from the very beginning, and especially since the date of accession in 1973. Could a referendum on EU membership ever have been won in the last 20 years, I ask myself? And should we not be positively surprised that almost half the British voters elected to remain in the EU?

Anger and irritation soon gave way to analysis and interpretation. The referendum was clearly not about the European Union. It revealed something significant about the United Kingdom. The United Kingdom was not unanimous, but split down the middle: Scotland and Northern Ireland voted to remain, England and Wales voted to leave. The two main political parties were not putting forward helpful proposals regarding Britain’s future relationship, but were in open meltdown over the Europe question. Embarrassingly, Britain had once again set itself up to fail over a serious policy choice. In 2003, Britain went to war upon the basis of unreliable information and without an exit strategy. In 2016, it conducted a referendum upon the basis of false promises and without a Brexit strategy. This is not a good time to be British, and it certainly is not a good time for Britain.

Constitutional analysis proved to be my pathway to hope and optimism. There is no way the UK can withdraw from the EU and expect to survive politically. European law is woven into the Belfast Agreement of 1998, which stands testament to a rare and recent British diplomatic achievement. It has brought peace to Northern Ireland and improved the relations between the Republic of Ireland and the UK. It is, of course, possible for the UK to leave the EU. But to begin that process without second thoughts for the Irish peace process is borderline criminal. Something similar needs to be said in relation to Scotland. The governing SNP have been quietly waiting for an excuse to hold a second independence referendum, and David Cameron has single-handedly given them a reason.

Few countries display much enthusiasm for the European Union. British people are certainly amongst the least knowledgeable in this respect. Ignorance about European institutions is one matter, but ignorance about one’s own constitution (and yes, the UK has a constitution) is unforgivable. At the very least, the 52 per cent should stop claiming that their slim majority should in any way be decisive.

As a state, the UK is neither centralised nor unified. It is de-centralised and fragmented. Scotland and Northern Ireland reveal the UK constitution at its most fragile. The new Prime Minister will need to tread very carefully. So far, only the homes of the 48 per cent have been vandalised. Pretty soon the UK, the home of 100 per cent, could cease to exist. No one voted for that in June 2016.

* This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2871428). The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.

Brexit, Post-Truth Politics and the Triumph of a Messy Vision of Democracy over Technocracy

Sandra Marco Colino*

As I watched the last US presidential debate of the 2016 election live over breakfast a few weeks ago, I recalled the last time I had spent an entire morning glued to the television screen watching political developments unfold. It was on 24 June, when the results of the referendum on the UK’s membership of the European Union were announced live on the BBC (a perk of living in Hong Kong and being 7 hours ahead of the UK is that I can watch British election results in real time without having to pull an all-nighter). It was 11:40 am here when David Dimbleby confirmed what felt like the “chronicle of a death foretold” soon after the vote counts began to trickle in: the UK had chosen to leave the EU.

The news refused to sink in, even as I stared at the headline flashing across the screen. The outcome had a much more intense emotional impact on me than I had anticipated. On Brexit, I am both biased and non-biased: biased, as a Spaniard brought up in the UK, who has extensively exercised her rights as an EU citizen; and non-biased, for having made a career and a profession of the study of EU law for over two decades. And in my two capacities, my feelings were unanimous: my heart said remain, and my head said remain. More accurately, my head said “remain and revolt”, as I believe that the UK could have used its solid position within the EU to push for a superior process of integration. But remain nonetheless.

I have undoubtedly been shaped both as an individual and as a professional by the opportunities offered to me by my UK residency. My family moved to London when I was just 11 years old. Since then, I have spent a total of 12 crucial years living in Britain. My first job was at the University of Glasgow. Although I have retained my Spanish nationality and citizenship, and the UK may not be part of my DNA, it is most certainly a vital part of my inner fabric, and I deeply care about the country’s future, whether in or out of the EU. But equally important, I am an EU national, and I have extensively taken advantage of the myriad of privileges that this entails. I am one of the 3 million undergraduate students who have experienced what it is like to live and study in another European country (in my case, Germany) thanks to the EU’s Erasmus university exchange programme. I wrote my Ph.D. at the European University Institute in Florence with a grant partly funded by the EU. I have been a trainee at the European Commission, where I had the chance to witness EU law enforcement and policy-making as it happened. I have extensively exercised my free movement rights, having resided and/or worked in six different EU Member States. As a female and as an employee, I have benefited from gender equality protection and working conditions guaranteed by EU law. Unsurprisingly, I find it regrettable that the continuity of all of these life-changing benefits has now been compromised for UK citizens. The result of the referendum is often portrayed as a popular uprising against technocracy and élitism. However, it is unclear whether the potential loss of such privileges, even if seemingly by the will of the beneficiaries, is really a win for the British people or more of an own goal. The idea that citizens’ rights would be at the forefront of the concerns when deciding to call for a nationwide reflection on EU membership is debatable. After all, the referendum was propelled by the same political leadership that put a heavy price tag on tertiary education in some parts of the country; the very one that has pushed Britain into an age of austerity and growing inequality which the United Nations recently declared to be in breach of international human rights.

Continue reading

A World After Brexit?

Michelle Everson*

Brexit has befallen us. The world is a very different place, especially on the streets of London, where the sense of disbelief is palpable, and the insecurity (even fear) is tangible, as our so recently lived-dream of non-national, culturally-disregarding, globally-cosmopolitan community finds itself under a very present threat. Yet, life goes on and, barring any further surprises, the academic world must begin to deal with the consequences of Brexit, both with regard to retrospective explanation, and with a view to opening up perspectives for the world to come.

Citizenship in Movement

“[I]t would be neither satisfactory nor true to the development of the case law to reduce freedom of movement to a mere standard of promotion of trade between member states. It is important that the freedoms of movement fit into the broader framework of the objectives of the internal market and European citizenship. At present, freedoms of movement must be understood to be one of the essential elements of the ‘fundamental status of nationals of the member states’. They represent the cross-border dimension of the economic and social status conferred on European citizens.”

[Opinion of AG Poiares Maduro in Cases C-158 & 159/04, Alfa Vita Vassilopoulos AE v Greece, 2006 E.C.R. I-8135, paragraph 192.]

In my world of (economic and constitutional) European Law, it has long been an unthinking commonplace that the legal freedoms of the Single Market coalesce seamlessly with and reinforce the character of the individual living across the space of Europe, as a European Citizen; a citizen who is made so, by virtue of their movement within, or as an ancillary to the European market. This blind collapse of the civic and social into the economic is, nevertheless, a far more incendiary one than the dry formulations of an Advocate General of the European Court of Justice might anticipate.

Writing in the European Law Review in 2004, Hans Lindahl sought to remind European lawyers of the continuing currency of boundaries and barriers to movement in notions of exclusionary belonging, of the on-going relevance of Hannah Arendt’s concept of “spatiality”. Investigating the consequences of an emergent European “securitisation” discourse, Lindahl noted that spatiality is:

“[N]ot merely a geographical term. It relates not so much, and not primarily, to a piece of land as to the space between individuals in a group whose members are bound to, and at the same time separated and protected from each other by all kinds of relationships, based on a common language, religion, a common history, customs, and laws.”

 For all of its roots in a putative act of post-national liberal constitution, the old European continent was and is still prey to pre-political expressions of belonging; a communitarian impulse, then silently evinced in the binary distinction between those who were and those who were not “legally-resident” within the European space, and now explicitly re-asserted within myriad acts of individual brutality in the holding camps of Turkey and of Greece – our new EU colonial “protectorate”. Neither Libyans, Ghanaians, Congolese nor Pakistanis, it seems, may simply seek their citizenship within the movements of the European market.

Continue reading

“I want my Country Back!”: Equality, Discrimination and Xenophobia after the Referendum

Diamond Ashiagbor*

We’ve been asked to offer some personal reflections, hopefully mediated by scholarly insight, on the UK referendum vote on EU membership. The quotation in my title comes from the rallying cry of the “Leave” campaign. The resonance of that slogan with the claim of Donald Trump to “Make America Great Again” is telling, as both imply a nostalgia, or rather a fantasy, for a lost state: one which is fully “sovereign”, unfettered by international or supranational obligations, freed from the constraints of a liberalised global trading regime whose rules it had been responsible for crafting, and – most significantly – almost entirely free from migrants.

Before the Vote

I voted “Remain” in the UK referendum for all the obvious reasons. Because I believe the EU, for all its faults and its challenges to the “embedded liberal bargain” which many Member States had been able to strike within their national economies, represents the best chance for cross-national solidarity and some defence against unfettered global capital. Because I didn’t want to see the most openly racist political campaign that I can recall since coming to the UK in 1975 as – yes – a migrant, succeed. Because I think the UK’s social and economic ills (the housing crisis, with housing-cost inflation outstripping stagnant wages, the lack of investment in social housing, the prevalence of a high-cost, high-turnover private rented sector; the underfunding of the National Health Service; vicious austerity policies; and the failure to alleviate the devastating social costs of the post-industrial decline) are the fault of elected national politicians not the fault of the EU or of immigrants. Because I would like to hope that the UK could remain a (relatively) open, reflective, socially progressive country.

 False Statements and First Impressions

 The key legislation governing eligibility to vote and the conduct of elections in the UK, consolidating and replacing earlier statutes, is the Representation of the People Act (RPA) 1983. The European Referendum Act 2015, in Section 4, made provision to incorporate most aspects of electoral law from the RPA 1983 into the referendum process. However, whilst Section 106 of the RPA makes it an offence to make false statements “for the purpose of affecting the return of any candidate at the election”, there was no attempt to introduce a false statement offence tailored to the different circumstances of a referendum vote – i.e., where voters are not choosing between candidates, but between different answers to a question.

Opinions vary as to the merits of attempting legislatively to compel a form of “truth in political advertising” – e.g., the risks to freedom of speech and the risk of the judicialisation of politics versus the reality of the weakness of political sanctions and the weakness of the media role in generating informed debate. But it is certainly the case that the absence of any real guidance to voters during a febrile referendum campaign left voters, as Claus Offe notes in this paper, to their own individual means of will formation.

As it was, the Leave campaign blatantly lied about an imminent accession to the EU of Turkey, about the UK’s net contribution, about eurozone bailouts, about the mechanics of trade, about the NHS, about threats to national security, and, of course, about immigration. It was relatively silent about, or downplayed, the impact of a “Leave” vote on the markets, Sterling, the union and the retention of Scotland within that union, the border with the Republic of Ireland, the Gibraltar/Spain border, the frontier at Calais, the need to continue compliance with all EU regulations in order to retain membership of the single market, the ease and impact of negotiating trade deals with non-EU states, the status of UK citizens in other EU states, EU citizens in the UK, acquired rights, and the status of legislation transposed from EU law under the authority of the European Communities Act 1972. They were also dismissive of “experts”: economists, foreign policy analysts, legal scholars and practitioners, historians, other Europeans, and world leaders.

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