The problems associated with associate citizenship of the EU

Dr Adrienne Yongyong

It is fair to say that since June 23, 2016 – the day the UK voted to leave the EU –the 48.1% of the electorate that voted to remain have voiced some concerns. Indeed, many of the concerns expressed by this minority are shared by EU citizens residing in the UK who were unable to vote in the referendum, with none more important than the idea of rights to free movement within the EU. The concept which grants rights such as residency, entry and exit from the territory of EU Member States without prejudice is EU citizenship. Article 45 TFEU also encompasses some of these same rights, but applies only to workers. In contrast, EU citizenship status, enshrined in Article 20 TFEU, is granted to all Member State nationals by virtue of their Member State nationality. As made clear in that provision, EU citizenship does not replace nationality but is additional to it. This status was first introduced 24 years ago, in the Maastricht Treaty 1992. The most recent study in 2012 showed that a third of the population of foreign citizens in EU Member States are individuals from other EU Member States, indicative of large volume of people who have made use of their rights to free movement.

Associate citizenship of the EU

With the vote to leave the EU and the subsequent process of withdrawal that the UK must now undergo, it is clear that EU citizenship will no longer be a status accorded to British nationals. Though nothing is set in stone as yet, this much is fairly clear. However, this would mean British nationals can no longer enjoy the rights to free movement and residency that are currently enjoyed by all EU citizens. Plainly, this is one of the consequences that Britain must be prepared to accept as it negotiates its exit in the coming years. Unsurprisingly, there have been voices of discontent from sections of the “Remain” electorate about the unilateral “stripping” of their EU citizenship and calls for some consideration of a voluntary citizenship of the EU for British citizens. Most recently, this has crystallised in the form of Amendment 882, brought before the European Parliament by MEP Charles Goerens, to offer citizens from a former Member State what would be known as “associate citizenship”. The Amendment offers a new regime for discussion amongst high level EU officials. This is the most thoroughly considered of all the suggestions thus far on any alternative arrangement for British citizens post-Brexit. In contrast, other suggestions concerning the retention of citizenship rights after Brexit have not been as formal as Amendment 882 and are also less specific about solutions to the problem of losing of EU citizenship status after Brexit. The proposal here is for an opt-in with payment of a membership fee; in return, individuals would have some of the rights guaranteed by the Treaty under Articles 21-22 TFEU: to free movement, to residency, and to vote and stand for election in the European Parliament. The right to consular protection, petitioning the European Parliament, recourse to the Ombudsman and right to communication from EU institutions in the citizens’ own language are not included. The effect therefore, would be retention of a form of citizenship of the EU.

It is clear where this sentiment is coming from. While the referendum was won by “Leave”, over 16 million people in the UK did vote to remain in the EU. It is assumed that these voters would have wanted to retain the benefits of being part of the supranational entity, including EU citizenship and its associated rights. Furthermore, EU citizenship has been granted to the entire British population and these individuals feel that they did not choose for it to be taken away from them. Indeed, as a right that impacts the majority of the population in the EU, its loss will be felt by many. Speculation is already rife about the visa requirements for British citizens in the EU after Brexit. Therefore, the outcry arguing in favour of a way to retain EU citizenship and its requisite rights is unsurprising. However, there is equal outcry about associate citizenship of the EU as a solution.

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The Miller judgment: Why the Government should argue that Article 50 is reversible

Prof Phil Syrpissyrpis

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.

This strong statement of the rights of Parliament ought, in a rational world, to appeal to the instincts of leave supporters. At least part of the point of voting to leave the European Union was to ‘take back control’ from unelected bureaucrats in Brussels, and to return that power to the UK. In the same way as ‘we’ want to have control over the decision-making process in the EU, ‘we’ might also want to have some control over the actions of our (at least arguably, in this instance, also unelected) Government. The High Court’s judgment amounts to the simple assertion that, according to our Constitution, ‘we’ exercise this control via Parliament (and not, for example, via a ‘mandate’ given to the Crown by the result of the referendum (see [105]-[106])). The reaction of many on the leave side – and the Daily Mail deserves a particular mention for Friday’s front page – is a sad indictment of the state of debate in this country.

Unless the Government changes its argument when the decision is appealed (and the hearing is due in early December), the Supreme Court, too, is likely to decide that, according to the UK’s own constitutional requirements, the decision to trigger Article 50 is for Parliament, not the Government. Already, there is fevered speculation surrounding the likely reactions in Government, in the Commons and the Lords, and the devolved assemblies.

And yet, the judgment proceeds on the basis of ‘common ground’ between the parties that ‘a notice under Article 50(2) cannot be withdrawn, once it is given’ [10]. This, it turns out, is significant for the High Court. The reason why the Crown cannot give notice under Article 50, is that domestic law rights will, inexorably, be affected by the decision. In various parts of the judgment, the decision to give notice under Article 50 is treated as equivalent to the decision to withdraw from the EU.

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High Court Brexit judgment: do all roads lead to Luxembourg?

Albert Sanchez Graellsbalanced-scale

This is a lightly edited version of a post that first appeared on the How to Crack a Nut blog. 

The High Court has now issued its Judgment in the dispute about the UK Parliament’s necessary approval of a Brexit notification–see R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). It has ruled that such Parliamentary approval is indeed required as a matter of UK constitutional and public law. The Government has already announced that it will appeal this decision to the UK Supreme Court (UKSC). The implications of such an appeal are important and need to be carefully considered. One such possible consequence is that the appeal (indirectly) brings the case to the docket of the  Court of Justice of the European Union (CJEU).

In my view, an appeal of the High Court’s Judgment before the UKSC will indeed trigger a legal requirement under EU law for the UKSC to send a reference for a preliminary ruling to the CJEU. I have rehearsed most of my arguments on twitter earlier (see here and here) and this posts brings them together.

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The remarkable Government case in the Art 50 litigation

Prof. Piet Eeckhoutpiet-eeckhout

[This piece was originally posted on the London-Brussels One-Way or Return blog and is re-posted here with kind permission.]

It is now about a week since the hearings concluded in the litigation, before the High Court, on whether the UK Government can trigger Art 50 TEU, or whether instead an Act of Parliament is required. The transcript of the hearing makes for fascinating reading. We will have to see what the judges decide, but I cannot refrain from making the point that the Government’s case is weak. Government lawyers are of course confined in what they can argue, and what not, by what their client, i.e. politics, wants. It seems like the client has not dealt them a good hand. For the Government’s case is built around a set of propositions which are in huge tension with one another. They are:

  • The 2015 Referendum Act, which organised the referendum, did not confer on the Government the power to trigger Art 50. At most, it did not disturb a pre-existing power (the Royal Prerogative).
  • The Art 50 notification cannot be revoked. In the words of Lord Pannick QC, once the bullet has left the gun it will definitely hit the target: exit after 2 years, or at such time as the withdrawal agreement enters into force.
  • The Government can make treaties and withdraw from them. But for there to be effect in domestic law of either the making a treaty, or withdrawing from it, Parliament must be involved. This last proposition is confirmed in the following, fascinating exchange.

“THE LORD CHIEF JUSTICE: I think, sorry, if I understood my Lord’s question, you accept that if the government wanted to amend the treaties or withdraw from them so that effect was given to withdrawal in domestic law, there would have to be an Act of Parliament.

THE ATTORNEY-GENERAL: Yes.

THE LORD CHIEF JUSTICE: Whether it is amending or withdrawing, it doesn’t make any difference.

         THE ATTORNEY-GENERAL: Yes.

THE LORD CHIEF JUSTICE: I think that was the point. It is the effectiveness in domestic law. There is no difference between amending and withdrawing, you have to have a statute?

THE ATTORNEY-GENERAL: Yes, in order for there to be an effect in domestic law we accept that Parliament’s involvement would be necessary.”

At the end of this exchange the Attorney-General confirms that Parliament’s involvement would be necessary to give domestic effect to Brexit. In other words, the Government could negotiate a withdrawal agreement, but such an agreement could take effect in UK law (much like the conclusion of a new treaty) only if Parliament legislated to such effect. But this is contradicted by proposition (2). That proposition accepts that, once the trigger has been pulled, withdrawal is outside the Government’s control. It will happen, whether the Parliament legislates or not. Crucially, this includes the effect in domestic law. The UK cannot, in its domestic law, keep all extinguished EU membership rights and obligations alive. That is so, quite simply, because at least some of those rights and obligations require membership, and the cooperation of the EU institutions and other Member States. Just one example: UK citizens will no longer be able to vote for the European Parliament, after withdrawal, and it is wholly irrelevant whether the UK Parliament leaves such a right on its statute book or not.

In the Government’s case withdrawal is therefore completely different from the law and practice of negotiating and approving new EU Treaties (or amendments to them) – contrary to what it claims. That law and practice is such that a new Treaty cannot enter into force unless it has been ratified by each member State in accordance with its constitutional requirements (i.e. approved by its parliament): see Art 48 TEU (there is a simplified revision procedure, but even that allows national parliaments to block). The logic is that the EU does not finally agree new rights and obligations until all national parliaments have approved them, and incorporated them into domestic law. So the logic of the prerogative not interfering with domestic legislation is fully respected for the negotiation of new treaties. But for withdrawal the Attorney General effectively argues the reverse: the UK Government can decide on withdrawal, including its inescapable domestic effect, and it doesn’t need Parliament’s approval.

Proposition (1) is relevant because it means that the Government is not arguing that the 2015 Referendum Act conferred a power on it to give effect to a negative referendum result, by triggering Art 50. So Parliament never authorised the triggering, and it cannot, once the bullet has left, undo withdrawal, either at the international plane or at the domestic level.

I cannot see how these three propositions could be reconciled. The most remarkable one, from the perspective of the Government’s case, is the second. If the Government argued that the Brexit bullet can be pulled back to the gun – in other words that the UK Government could always revoke the notification – there would be a much stronger case for the exercise of the prerogative, as many have noted. Parliament could then, at any stage of the negotiations, force the Government to withdraw from withdrawal. But for political reasons the Government doesn’t argue this. The big question looming over the litigation is whether the courts can simply assume that the Art 50 notification is irrevocable, when that point is so critical.

Arguments in the referendum challenge now available

Rosalind English

This post originally appeared on the UK Human Rights Blog, and is reproduced here with permission and thanks.

The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.

Government

Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control. Continue reading

The TTIP Negotiations Innovations: On Legal Reasons for Cheer

Elaine FaheyDr Elaine Fahey

By now, the Transatlantic Trade and Investment (TTIP) negotiations have undergone a marathon 14 rounds of negotiations after 36 months of talks, despite Brexit and the tumultuous US presidential elections standing in the back drop. The political mood on either side of the Atlantic is still challenging to say the least. And after EU-Canada Comprehensive Economic Trade Agreement (CETA) being proposed for recently as a mixed agreement meaning that many national parliaments will vote on it (not being an exclusive EU only agreement as anticipated), the legal context of free trade with Europe just got trickier.

The TTIP negotiations have generated fears about the transfer of authority to a new living entity as a form of global governance. Yet by opting for public institutions and institutionalisation within TTIP, there is a shift towards transparency and the ‘governability’ of global governance. Even if it fails – and there is a reasonable chance that it may not survive the US elections – there are a whole host of positives to be found within the TTIP negotiations. They can be viewed as innovative attempts to right the wrongs of global governance. They may well inspire future developments and are worthy of a brief analysis.

This post focusses upon the latest developments as to TTIP’s institutions in the latest texts released in mid-July.

On the institutional side of things, the EU’s most recent proposal of 14 July 2016 has undergone some considerable changes to appease European critics. The latest TTIP EU-proposed text still features a Joint Committee, comprised of the US Trade Representative and an EU Commission at the apex of TTIPS’s Regulatory Cooperation. The Committee would possess considerable supervisory and legally salient interpretive powers about TTIP’s proposed 30 chapters. But is more executive than supranational in nature and this matters to the US. The executive dominance of the EU’s proposed Institutional chapter as of July 2016  is apparent (Article X. 2) – because it would provide for powers to supervise and guide activities, adopt rules, adopt interpretations about the agreement and act subject to transparency and openness principles- between levels of Government essentially. The Joint Committee would principally work with Specialised Committees (e.g. market access, services …) and Working Groups but can be perceived as a great empowerment of the European Commission, arguably moving far beyond its institutional and constitutional functions.

However, it is importantly now heavily ‘tempered’ by a number of other bodies, actors and entities that align with more European than American ideals.  Above all, binding duties of cooperation and participation along wide transparency and equal access are ‘latecomers’ to the negotiations – and heavily Americanised ideas of Administrative law (e.g. ‘notice and comment’). They are important in so far as they mitigate critique of earlier drafts as to closed-decision-making practices. Thus firstly, the Joint Committee is ‘tempered’ by a Regulators Forum which would discuss regulatory cooperation between regulators, holding public sessions. The Transatlantic Legislators Dialogue (TLD) next envisaged within the new text would be comprised of EU and US parliamentarians and has already been part of several decades of EU-US relations. Nonetheless, although lacking any significant powers, as has always been the case with the TLD, it could further foster the parliamentary dimension of cooperation. In the text, the Civil Society forum would also be provided for to ensure a balance number of interests is displayed, along with a Domestic Advisory Body independent representatives of civil society, whose participation is to be facilitated. Although a lot of functional overlap is apparent from this version of the text, it is an important state of affairs. For example, ironically, the harshest criticism of the latest draft of institutional set up is that it contains too much participation or too many bodies and actors – and this criticism comes directly from the TTIP’s institutionalised Advisory Body, itself supposed to represent civil society. Previous version of the text failed to provide adequate assurances concerning the place of parliamentary sovereignty and civil society. And so on balance, on can see its virtues emerging as a broadly open and truly participatory idea of transnational cooperation with considerable control and input given to elected representatives. Continue reading

INIS Free ?

Aidan O’Neill

In his poem The Second Coming written in 1919 at a time of political and social ferment across Europe and an earlier constitutional breakdown within the United Kingdom, WB Yeats (that great Anglo-Irishman, a descendant and representative of “no petty people”) wrote the following lines:

… Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

Surely some revelation is at hand ….

Against that apocalyptic vision, it is of some interest to note a recent op-ed piece in the Irish Times, in which the Irish writer Fintan O’Toole has made the intriguing suggestion that one possible political response to the further break-down of our constitutional order which the Brexit vote heralds, might be for a complete re-configuration of the nations within the Anglo Celtic Archipelago/Atlantic Isles.  He suggests that Scotland and Northern Ireland might leave (and so dissolve) the United Kingdom, and join Ireland in some form of, a yet to be worked out, union.

Historic precedent for a Scots-Irish union ?

It is sometimes said to be a characteristic of the Scots and Irish that (like the Bourbons) that they have learned nothing and forgotten nothing.   Their role in a Tolkien saga might be that of “The Grudge Bearers”.

In that spirit, and taking the approach of la longue durée to Fintan O’Toole’s suggestion, we might find some historic precedent for setting up a Scottish-Irish Union (sans et contre l’Angleterre) in the campaign of Edward Bruce, younger brother of and then heir to Robert Bruce, who in the year after his brother’s 1314 victory at Bannockburn, sailed to Ireland from Scotland with a sizeable fighting force and there allied with native Irish fighting against Anglo-Norman magnates owing fealty to the English crown, and had himself proclaimed High King of Ireland.

This is attested to in a remarkable document of 1317 which the native Irish princes (led by Donal O’Neill, king of Cenel Eoghain or Tyrone) addressed to the Avignon Pope John XXII through two of his papal nuncios who were then in England attempting to broker a post-Bannockburn peace between Edward II of England and Robert Bruce, King of Scots.   This Remonstrance notes in part as follows:

“[O]n account of the injustice of the kings of England and their wicked ministers and the constant treachery of the English of mixed race, who, by the ordinance of the Roman curia, were bound to rule our nation with justice and moderation and have set themselves wickedly to destroy it; and in order to shake off the hard and intolerable yoke of their slavery and to recover our native liberty, which for a time through them we lost, we are compelled to wage deadly war with them, aforesaid, preferring under stress of necessity to put ourselves like men to the trial of war in defence of our right, rather than to bear like women their atrocious outrages.

And that we may be able to attain our purpose more speedily and fitly in this respect, we call to our help and assistance Edward Bruce, illustrious earl of Carrick, brother of Robert by the grace of God most illustrious king of the Scots, who is sprung from our noblest ancestors.

And as it is free to anyone to renounce his right and transfer it to another, all the right which is publicly known to pertain to us in the said kingdom as its true heirs, we have given and granted to him by our letters patent, and in order that he may do therein judgment and justice and equity which through default of the prince Edward II the King of England have utterly failed therein, we have unanimously established and set Edward Bruce up as our king and lord in our kingdom aforesaid, for in our judgment and the common judgment of men he is pious and prudent, humble and chaste, exceedingly temperate, in all things sedate and moderate, and possessing power (God on high be praised) to snatch us mightily from the house of bondage with the help of God and our own justice, and very willing to render to everyone what is due to him of right, and above all is ready to restore entirely to the Church in Ireland the possessions and liberties of which she was damnably despoiled, and he intends to grant greater liberties than ever otherwise she has been wont to have.

May it please you therefore, most Holy Father, for the sake of justice and general peace mercifully to approve what we have done as regards our said lord and king Edward Bruce, forbidding the King of England and our aforesaid adversaries henceforward to molest us, or at least be pleased to render us with fitting favour our due complement of justice in respect of them.

For know, our revered Father, that besides the kings of lesser Scotia who all drew the source of their blood from our greater Scotia, retaining to some extent our language and habits, a hundred and ninety seven kings of our blood have reigned over the whole island of Ireland.”

The Avignon Papacy neither recognised Edward Bruce’s claim to the High Kingship of Ireland, nor did it respond favourably to the Irish princes’ Remonstrance.  In October 1318 the Scots-Irish army under Edward Bruce was defeated by the Anglo-Norman forces of Edward II.   Edward Bruce was killed, his body quartered and sent throughout Ireland and his head delivered to King Edward II. Continue reading

BrEXIT AND BreUK-UP

Aidan O’Neill

Looking back on the result of the Brexit vote, future historians may well conclude that the post-WW II United Kingdom of Great Britain and Northern Ireland was, like Belgium, held together by the European Union.

Flanders and Wallonia dare not split into independent countries (despite decades of mutual antipathy and non-co-operation) because neither wishes to lose Brussels as its capital.   But London does not hold the UK together. The Brexit vote revealed the vast gulf in social attitudes and political aspirations between London and the rest of England. The encircling M25 haloes and isolates London, just as the medieval palisade separated pre-Tudor Dublin from “Irish” Ireland.   L’Angleterre profonde now lies beyond the Pale, and London as an international city state in waiting is profoundly out of sympathy and out of step with it.

Meanwhile, north of Hadrian’s Wall, a different politics flourishes in which London, and the rest of England, appear increasingly irrelevant.   The SNP now run a minority administration from Edinburgh, largely as a result of the remarkable resurrection of the Tory vote under the leadership of Ruth Davidson MSP and the continued collapse of the Labour vote under the leadership of Kezia Dugdale MSP. But the Scottish Tories keep their distance from their sister party to the south and contemplate, as part of their on-going de-toxification, dropping the label “Conservative” and returning to their pre-1965 designation as the Scottish Unionists.   And Scottish Labour sinks into yet deeper irrelevance, while flirting with talk of a post-Brexit complete federalisation of the UK.

In his speech on 14 September 2014 following the result of the Scottish independence referendum (in which one of the claims made by those advocating the status quo was that only by voting to stay in the UK could Scotland ensure that it remained within the EU) the then UK Prime Minister David Cameron proclaimed that he was “a passionate believer in our United Kingdom” and that he “wanted more than anything that our Union stay together”.   And in her 13 July 2016 acceptance speech on succeeding him as UK Prime Minister Theresa May noted that

“The full title of my party is the Conservative and Unionist Party. And that word unionist is very important to me. It means we believe in the union, the precious, precious bond between England, Scotland, Wales and Northern Ireland.”

But just what makes this bond so doubly “precious” and why it should be the object of “passionate belief” has not been further developed.   It is not clear that this is, in any event, a sentiment that is shared in l’Angleterre profonde by whose votes the Conservative party won its unexpected majority in the House of Commons in May 2015.   The Conservative successful general election campaign was marked by dog-whistle anti-Caledonian insinuations that a vote for the Labour Party meant a vote for the SNP in coalition with it, putting “sad Ed” Miliband into the pockets of “smart Alec” Salmond and “tricky Nicky” Sturgeon.

As the distinct polities which make up the still nominally United Kingdom grow ever further apart, the only solution which appears to be offered is the delegation – but never the complete transfer – of more powers to the English regions and to the non-English nations.  This might be termed disintegrative devolution.

But the shibboleth of sovereignty means that power is never unequivocally divested from Westminster.   Powers devolved are powers retained.   Thus when it comes to the (Brexit) crunch from a Westminster perspective, while the devolved legislatures and executives may properly expect to be consulted on and advised of negotiations, they cannot expect to participate in them.   And they are certainly not regarded as having any power to prevent either the UK as a whole, or any of its constituent parts, from leaving the EU, notwithstanding that in the Brexit referendum (in which UK resident Commonwealth and Irish citizens, but not other EU citizens, had a vote) Scotland voted 62% in favour of remaining in the EU against 38% for leaving it, while the vote in Northern Ireland was 56% for remain and 42% for leave.

Unlike Westminster, the devolved legislatures are elected on the basis of a franchise which gives the vote to citizens of other EU member states lawfully resident in their territories.   The devolved executives may therefore properly claim to have obtained a democratic mandate from, and be democratically accountable, to these EU citizens; and may plausibly claim to have the constitutional duty to represent and give voice to those individuals’ concerns and claims.   But the fact that EU citizens currently lawfully resident in the UK are mentioned both by the Prime Minister and by her newly appointed Secretary of State for Exiting the European Union, David Davis MP, only in the context of their possible use as human shields or bargaining counters in the Brexit negotiations rather indicates that the little Englander politics of the “nasty party” have not been wholly abandoned under this new UK premiership. Continue reading

10 (pro-EU) reasons to be cheerful after Brexit

Cormac Mac Amhlaigh

As the dust continues to swirl around the momentous Brexit referendum result a month ago (and doesn’t show any signs of settling anytime soon) I suspect many EU sympathisers will be somewhere in the middle of the various stages of the Kübler-Ross Grief cycle: denial, anger, bargaining, depression, acceptance. So, somewhat incongruosly, are the ‘leavers’. Whereas there are almost as many emotions being experienced on all sides as there are potential options on what will happen next both in terms of the UK’s future relationship with the EU as well as the future of the EU itself, in this post I want to set out a number of (pro-EU) reasons – some obvious, some optimistic, others wildly speculative – to be cheerful amidst the uncertainty created by the Brexit vote.

  1. It is worth reminding ourselves that (a version of) the EU existed before the UK joined in 1972 (with Denmark and Ireland) and it will survive its withdrawal. Brexit will not have the same effect as one of the founding six, and particularly say Germany or France, leaving the bloc.
  1. The feared domino effect of other Member States agitating to leave has not transpired. Indeed post-Brexit opinion polls have shown a bounce in support for the EU in other EU Member states since Brexit.
  1. Even were an in/out referendum to be held in another EU Member state, there are good reasons to believe (barring unforeseeable ‘exogenous shocks’) that a majority would not vote to leave. No other EU Member State has a national media so relentlessly hostile to the EU as the UK. The UK’s top-two selling national newspapers (with a combined circulation as much as the next three put together) are rabidly anti-EU and a study released during the referendum campaign found that even the UK’s supposedly ‘neutral’ state broadcaster, the BBC, had been overwhelmingly negative about the EU over the past fifteen years. Against this heavily Eurosceptic background, there was still only 3% difference between leave and remain in the referendum result. This augurs well for an EU referendum in an EU Member state with a less hostile media.
  1. The referendum and its aftermath has increased curiosity, interest and knowledge about the EU and what it does among many previously disinterested EU citizens. Most obviously in the UK where google reported a sharp rise in searches asking was ‘What is the EU?’, albeit that this was after the polls had closed. Admittedly, much of this knowledge and information is starting from a pretty low base but any improvement has to be a good thing for the EU.
  1. Ever since the last British government passed the EU Act 2011, which requires referendums in the UK on certain future reforms at EU level, future EU reform would have been considerably hamstrung by the UK through the floating of a ‘referendum veto’ at every turn in negotiations.   An actual referendum on future EU reform, even reform which would have been disproportionality advantageous to the UK, would have been very unlikely to succeed given the general eurosceptic feeling in the UK as exemplified in the Brexit referendum result. Future negotiations would therefore have involved even more protracted wrangling over EU reform than is usually the case, with increasingly less patience with the UK among other EU Member States. In the Brexit result, future EU reform has dodged a considerably large UK-shaped bullet allowing for better reform at the EU level at a time when it needs to be efficient and decisive in the face of the many issues it currently faces.
  1. The Brexit vote has put EU legitimacy back on the agenda (again!). It provides a useful time to reflect on the broader legitimacy of the EU, particularly from the viewpoint of citizen knowledge about, and engagement with, the EU. Vital lessons can be learned from the way in which the EU was presented as well as misrepresented in the Brexit campaign debates and the extent to which EU questions tend to be dominated by domestic political concerns. This should feed into analysis and reflection on the never-ending project that is the enhancement of the EU’s legitimacy. Furthermore, unlike the high-stakes, pressure-cooker atmosphere of the eurocrisis, the Brexit vote has been followed by an important ‘cooling down’ period (helped considerably by Cameron’s decision not to push the Art. 50 button on his resignation) which allows for more probing and searching analysis into these big questions and better solutions to be developed.

Continue reading

An analysis of the EU law questions surrounding Article 50 TEU: Part Two

Dr Philip Syrpis

This is the second and final part of this series; the first is available here.

7. What is the status of the UK during the negotiation process?

As discussed above, subject to application of paragraph 4, which deals with participation in discussion in the European Council and Council relating to the withdrawal process, the withdrawing State remains a Member State of the EU, with rights and obligations intact.[1]

As regards the rights of the withdrawing State, certain interpretive difficulties may arise in any attempt to delineate the situations in which the withdrawing State may, and may not, be involved in European Council and Council decision-making. Once again, this is an area in relation to which the guidelines provided by the European Council may provide clarity. In practice it seems almost inevitable that the role and influence of the withdrawing State will inevitably diminish. It is unclear whether the State will have an interest in influencing the making of decisions at EU level which might well never concern it; and arguable that it is not legitimate to afford it such a role. The power of the argument against involvement will of course depend on the extent to which it is envisaged that the withdrawing State aspires to continue to have a relationship with the EU.

As regards obligations, the UK will continue to be bound by EU law rules until the withdrawal agreement enters into force.[2] This includes new EU legislation adopted after Article 50 is triggered, but before the withdrawal agreement enters into force.[3] While the UK is due to assume the Presidency of the Council in the second half of 2017, it is anticipated that alternative arrangements will be made in order to ensure the efficient functioning of the Union.[4] The principle of sincere cooperation enshrined in Article 4(3) TEU would continue to apply, and there are suggestions that it might be used in relation to the conduct of the withdrawing State during the process of withdrawal.[5]

8. How is the withdrawal agreement concluded?

Finally, there are significant uncertainties relating to the conclusion of the withdrawal agreement, both by the EU and the withdrawing State.

Let me begin with the position as regards the EU. The withdrawal agreement itself is negotiated as an EU external agreement, as is made clear by the reference to Article 218(3) in Article 50. Paragraph 2 provides that the agreement is to be concluded ‘on behalf of the Union by the Council acting by qualified majority after obtaining the consent of the European Parliament’.[6] Thus, it is possible for an agreement to be reached without the approval of all 27 Member States; and, unlike in the case of accession, for the scope of the Union to be altered notwithstanding the lack of the unanimous consent of the Member States. Equally, it is possible for an agreement not to be concluded notwithstanding the fact that it is approved by the governments of all the Member States. No agreement can be concluded if a majority in the European Parliament vote against it. It is also possible, as discussed in e) above, that alongside any withdrawal agreement, there will be another agreement, or set of agreements, dealing with the future relationship between the withdrawing State and the Union. To the extent that any such agreements are mixed agreements, they require ratification by all Member States, a process which will inevitably slow down the conclusion of the negotiation process.[7]

On the side of the UK, the withdrawal agreement would require ratification in Parliament, in accordance with the UK’s constitutional requirements.

How might these questions be settled?

The discussion so far indicates that many of the EU law questions relating to the process of withdrawal from the EU are unresolved. Nevertheless, given the uncertainty inherent in Article 50, it is contended here that it is possible, perhaps probable, that there will be litigation in relation to the process. There is the potential for such litigation to occur at both the national and the European level. It is difficult, at this stage, to predict the form which such litigation might take, but there are a range of claims which it is possible to envisage.

Claims may come before the European Court of Justice in the following ways. The most obvious basis for legal action will be in relation to the content and scope of any withdrawal agreement. Such an action might relate both to the procedures through which the withdrawal agreement was reached, and the substantive terms of any such agreement; and might come before the Court either directly in an Article 263 TFEU judicial review action, or indirectly, via a preliminary reference from a national court under Article 267 TFEU. It may, in addition, be possible to seek an advisory opinion from the Court via Article 218(11) TFEU as to whether the agreement is compatible with the Treaties. Actions may also be brought at earlier stages in the process, for example in relation to whether the negotiation process is compatible with EU law. As has been mentioned above, it is possible to envisage the making of claims against the withdrawing State, not only by the Commission under Articles 258 and 260 TFEU, but also, potentially, by the European Council and Council under Article 7 TEU.

There is already discussion of legal action in the UK on the basis of the conduct of the referendum campaign, and over the constitutionality of any decision to pull the Article 50 trigger.[8] Such litigation is likely to raise questions relating to the interpretation of EU law (most obviously, in relation to the interpretation of Article 50, perhaps based on the points discussed above), which the UK courts may decide to refer to the Court of Justice. At each stage of the process, legal action is possible – for example in relation to the conduct of the negotiations, and of course, in relation to the scope and substantive content of the withdrawal agreement(s).

This paper suggests that, in order to avoid the risk of litigation, the rules of the process should be clarified via the guidelines to be provided by the European Council. So as to be able to fulfil this function, the guidelines must be provided prior to any decision by the UK to trigger A50, and should provide as much clarity as possible in relation to the key questions discussed above, including in particular in relation to the ability of the UK to rescind the notification process, the scope of the withdrawal agreement(s), the status of the UK during the withdrawal process, and the mechanisms through which the withdrawal agreement(s) may be concluded. It is recommended that the UK government be fully involved in the drawing up of these guidelines. It may, of course, be that agreement is impossible to attain, or that the European Council refuses to provide guidelines before the decision to trigger Article 50. In such circumstances, it may be that there is litigation in relation to the Article 50 process, with courts playing a key role in shaping the process of withdrawal.

A suggested way forward

It hardly needs to be said that this is a crisis situation for the European Union. The prospect of the withdrawal of the UK from the EU is fraught with economic and political risk. Article 50 is intended to provide for the orderly exit of States from the Union. Whether or not this goal is achieved will largely depend on the conduct of the withdrawing State and the process of negotiation. Nevertheless, the legal framework in which the negotiations take place is also significant, as it determines the parameters within which the range of political actors involved will frame their strategies. The text of Article 50 provides very few answers. Nevertheless it envisages the provision of guidelines by the European Council. These may operate as the vehicle through which the answers to the legal questions identified in this paper are developed. In order to be able to play this role, they should, in the wake of the referendum outcome, be provided in advance of any decision by the UK to trigger Article 50. And, to the extent that this is possible, they should, notwithstanding the wording of Article 50(4), be agreed in negotiation with the UK, in order to minimise the risk of what may prove to be complex litigation, across more than one jurisdiction, in relation to the conduct of the withdrawal process.

I have argued above for Article 50 to be interpreted in a way which ensures that the UK is best able to maintain a working relationship with the UK, and achieve a settlement in which the interests of citizens of the EU are best protected. This suggests that the European Council guidelines should provide not only for a withdrawal agreement, but also for an agreement which defines the future relationship between the UK and the EU. To the extent that this objective is not achievable within two years, the European Council should commit to extending the time period. Most importantly, it should be made clear it is possible for the UK to rescind its notification, together with any procedural steps to be taken in order to stop the process.

Once there is more clarity, the UK will be able to consider its response. The calls to refuse to pull the Article 50 trigger are increasing, with legal efforts within the UK directed to imposing pressure on Parliament, either as a result of the conduct of the referendum campaign, or a result of the rights affected by the withdrawal process, not to trigger Article 50. While this option might be constitutional as a matter of UK law, it would carry with it a multitude of social risks, furthering poisoning relationships between the political elite and the people, who may feel that the result of the referendum has been ignored.[9]

It would be far better for Parliament to accede to the will of the people, and trigger Article 50; but only once the Article 50 process has been clarified; and it is argued here that this should be via European Council guidelines relating to the process of negotiation. Parliament has a role in scrutinising these guidelines, and in providing full guidance to the government and the people in relation to the substantive content and scope of the negotiations, the negotiation timetable, and the steps to be taken in relation to the conclusion and ratification of the resulting agreement(s).

As has been argued above, it should be made clear that it is possible for the UK to rescind the Article 50 notification. The European Council should commit to negotiations with the UK in relation not only to a narrow withdrawal agreement, but also to a broader agreement on the future relationship between the UK and the EU. It is only if these two conditions are met – and it may be possible for the UK to exert not only political but also legal pressure on the European Council in relation to the content of the guidelines – that it is possible to envisage a legitimate outcome to this crisis.

The clarification of the uncertainty surrounding the Article 50 process will enable the UK to make an informed decision in relation to the pulling of the Article 50 trigger. The UK government must then work on its negotiating strategy, and seek to reach an agreement with the EU27 which deals with withdrawal and the future relationship between the UK and the EU. It is only during the process of negotiation that it will become clear what leaving the EU will actually entail. There will, presumably, be a range of difficult decisions, for example in relation to the UK’s desire to control immigration, and to retain access to the single market (and we will all learn a lot about the operation of the EEA, and Switzerland’s relationship with the EU); and about the acquired rights of EU citizens in the UK, and UK citizens in the EU. In the time period in which negotiations will occur, there will no doubt be significant economic and political change within both the EU and the UK. Towards the end of the negotiation period, it will be possible for the UK to make an informed choice; either a) to rescind its notification and remain within the EU, b) to accept the negotiated deal, or c) to exit the EU without a deal. That decision will be for the UK, in accordance with its constitutional requirements. Parliament will of course be involved, and consideration will no doubt be given to allowing the people to have a further say, either via a general election or indeed a second referendum.

The process of withdrawal is not going to be easy. The EU law framework surrounding the operation is very unclear, with the provision of guidelines by the European Council representing a key moment in which it is possible to contribute towards the legitimacy of that process. This paper offers a number of recommendations. It is to be hoped that it prompts careful consideration of the options ahead, so that it is possible to arrive at a legitimate outcome, in which the interests of citizens of the EU are, as far as possible protected.


[1] Nationals of the withdrawing State will, in principle, retain their positions in the EU institutions pending the entry into force of the withdrawal agreement. It is interesting in this regard that there seem to be no plans to replace Lord Hill, the UK Commissioner who resigned in the wake of the referendum result.

[2] It should noted that there may be complications in relation to the enforcement of EU law against the withdrawing Member State; whether before the Court of Justice, under Article 258-260, or before the national courts. See further below.

[3] House of Lords European Committee Report, n7 above at [58].

[4] It seems that Estonia, due to hold the Presidency in the first half of 2018, will assume the Presidency in the second half of 2017; see https://euobserver.com/political/134109.

[5] See Hillion, n4 above at 139-40.

[6] On the possibility of a turf war between the EU institutions, see Duff, n4 above.

[7] See Lazowski, n4 above at 528.

[8] See https://www.theguardian.com/law/2016/jul/03/parliament-must-decide-whether-or-not-to-leave-the-eu-say-lawyers and http://www.theguardian.com/politics/2016/jul/05/deadline-approaches-government-response-brexit-legal-challenge-article-50.  

[9] See also R Ekins, ‘The Legitimacy of the Brexit Referendum’, UK Constitutional Law Association Blog, available at https://ukconstitutionallaw.org/2016/06/29/richard-ekins-the-legitimacy-of-the-brexit-referendum/.