European citizenship: a broken promise

I had accepted, eighteen months, that European citizenship was ‘a promise that will never be kept”.  I’m disappointed, but not surprised, by a judgment in the French Cours de Cassation   that dismisses the rights of British expatriates in France as “inopérants” – ceasing to apply on the UK’s departure from the EU.  Steve Peers, a Professor of EU Law at the University of Essex,  has consistently argued that this would be the case.

Why did I think differently?  I’d point to four reasons, none of which has been persuasive to lawyers.  First, there was the Charter of Fundamental Rights of the European Union, the promise by the EU to its citizens that their rights were ‘fundamental’.  ‘Fundamental’ rights don’t disappear because a member state removes itself from the consideration; only membership rights do that.  Second, there was precedent – when Greenland left the European Community, the rights of its citizens were preserved on request.  Third, there was what I had understood about the nature of European citizenship. This comes from Wheare’s classic work on Federal government (OUP, 1946).  A federation, he explains, is:

“an association of states so organised that powers are divided between a general government which in certain matters … is independent of the governments of the associated states, and on the other hand, state governments which in certain matters are, in their turn, independent of the general government. This involves, as a necessary consequence, that general and regional governments both operate directly upon the people; each citizen is subject to two governments.”

That describes the structure of the European Union precisely – apart, it now seems,  from the last seven words.

Lastly, there was the description of European citizenship in the Treaties, which said that EU citizenship was ‘additional’ to citizenship in a member state, and does not replace it.  There is an ambiguity here.  In the French version of the treaties, the wording is this:

Est citoyen de l’Union toute personne ayant la nationalité d’un État membre. La citoyenneté de l’Union s’ajoute à la citoyenneté nationale et ne la remplace pas.

S’ajouter can be read here as ‘attached’ or ‘supplementary to’, and that, it seems, is how it’s been read in France. A “supplementary” citizenship seems to me to offer much less than an “additional” one.

I think there’s room to cavil about this, because if the term ‘supplementary’ was intended, it could have been said – and if the clause meant that European citizenship was supplementary, the last part, that it would not replace nationality of a member state, clarifies nothing, and could have no meaning or effect.  The caveat only makes sense if European citizenship was being considered as a form of citizenship in its own right.  I have no choice but to bow to the decision, but I persist in thinking of this as a promise broken.

‘Sovereignty’ doesn’t mean that a state can do whatever its government pleases

Arguments for ‘sovereignty’ are prominent in several disputes, around the world.  For many of the governments using the word, notably China and the UK, ‘sovereignty’ seems to be about independence and the absence of foreign interference.  The term has been used for centuries in international law, apparently going back to the Peace of Westphalia in 1648, which ended the Thirty Years War.  In that narrow context, a sovereign state has exclusive authority within its territory.  But sovereignty means much more than that.    A study of the Westphalian peace (D Croxton, 1999, The Peace of Westphalia of 1648 and the Origins of Sovereignty, International History Review 21(3)) brings together some helpful explanations of the term: sovereignty is

‘the idea that there is a final and absolute political authority in the political community … and no final and absolute authority exists elsewhere’ … By this definition, ‘sovereignty is not a fact. Authority and power are facts …[Sovereignty] is an assumption about authority.’ Hence, as John Ruggie states, sovereignty ‘signifies a form of legitimation’.

Exactly the same principle applies to domestic law.  The legal theorist John Austin argued that

Every positive law, or every law strictly so called, is set by a sovereign person, or sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme.

There are reservations to make about both these presentations, but it is important to draw out what they have in common.  All of these explanations of sovereignty are concerned with legitimacy.   The ‘sovereign’, whoever or whatever that may be, is the source of legitimate authority.   If legitimate authority springs from a particular source, it follows that

    • a sovereign government can make laws
    • a sovereign government can make treaties, and
    • a sovereign government can act collectively to exercise authority within its legitimate sphere of influence.

The first reservation to make is that sovereign authority is not ‘final’.  Sovereignty is where authority starts, not necessarily where it finishes.  We know, when a sovereign body makes laws, that they are laws – that they satisfy what Hart called “rules of recognition” (how we know that a rule counts as law) and “rules of change” (how we know that new rules have been created, or abolished, or added to).  But after the sovereign has acted as the fount of authority, others may draw on that legitimate authority in their turn – e.g., the laws passed by devolved administrations, or the extensive use of statutory instruments in social security.   The second reservation is that sovereign authority is not “supreme” authority, because it may well be subject to other authority in turn.  The US constitution divides authority between a range of actors.  Parliament is sovereign, but Parliament can be voted out. In modern states, the courts usually have the power to review whether actions are legitimate.  Nor is sovereignty necessarily ‘exclusive’.  Many states share sovereignty internally – in federations,  between states and the federal government – or externally, which is the position of the European Union.

And so to the dispute between the UK and the European Union.  The EU is not simply the product of a set of treaties: it is a body that makes laws, independently of the legal systems of the Member States.  That means that every member of the European Union shares sovereignty with the Union.  There have been some legal challenges to this principle – most recently in Germany, where it was successfully argued that German Basic Law takes priority  – but the central premise, that EU law has a direct effect on governments and citizens within the EU’s areas of exclusive competence, has been established for nearly sixty years.   It is correct, then, to say that the members of the EU have given up some sovereignty to become part of the Union; and it is also correct to say that the UK, on leaving the EU, will be able to act as a sovereign state.

Clause 38 of the UK Act on the agreement states:

It is recognised that the Parliament of the United Kingdom is sovereign.  … nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.

Nothing in that was incompatible with the Withdrawal Agreement, or likely to give the EU pause.  It is simply a statement that the Parliament of the United Kingdom is the primary source of legitimate authority for UK legislation: to which the obvious response is, of course it is.  The EU was relying on that legitimate authority to be used to resolve the terms of withdrawal.

What the clause doesn’t say is that the EU has no authority to act.  It doesn’t say, either directly or indirectly, that the EU can have no influence in decisions made by the UK government.  It does not say that the UK is not to be bound by the Withdrawal Agreement, its most recent treaty with the EU.  In short, the assertion of sovereignty simply doesn’t mean what some of the most ardent Brexiters wish it to mean.

Enfin, le passport français

I have, at long last, my French passport.  As I explained last year, I started the process of acquiring the information to obtain it in November 2016, five months after the referendum, and it has taken until now to get the thing into my hand.  The importance is more than symbolic; it’s a European passport, and it carries the right to live and work in the EU.  I had hoped, for example, that I might be able to work again in Poland.  My state of health makes that unlikely, and in due course the suspension of reciprocal medical cover will present me with another hurdle to overcome.  I am no less shocked by the loss of fundamental rights than I was four years ago, but my attempt to petition the European Parliament was waved aside, and I regret that I  have only been able to mitigate this for myself.

The European Union and the new social policy

The Journal of European Social Policy has launched a blog, intending to consider some of the implications of the coronavirus pandemic for Europe.  The first entry is a dialogue between some leading scholars about the prospects for the EU, in what Frank Vandenbroucke calls an ‘existential moment’.  Unfortunately, the editors haven’t quite grasped yet two of the most basic principles of blogging: put the blog where people can find it, and keep things short. The link to the site is here , and as that link is 379 characters long, here is a shortened form to pass on: https://bit.ly/3eNzEge

The dialogue did set me  thinking about the role of the EU in this crisis, and that of course is its purpose.  I think it’s fair to say that the experience of Brexit has shifted my view of the EU, and the answers I might give to several key questions are different from those I would have given in the 1990s (my 1996 article on “Social Policy in a Federal Europe” is accessible here).

First: what is the EU?  25 years ago, I would have said that it was a set of political institutions aiming to establish common laws and principles across nations.  The EU had asserted ‘exclusive competence’ in a range of areas, and its member states had acceded to the general principle that some things were beyond their power or capacity.  Now, I would describe the EU as little more than an association of states, where every joint action, regardless of the nominal powers of the Union, has to be negotiated and is liable to be locked in limbo.

Second: what responsibility does the EU have to its citizens?  In the 1990s, the answer seemed clear: the EU had made a commitment to offer to each and every citizen of the Union a set of rights and statuses that were distinct from, and not dependent on, the actions of its member states.  That is what the European Charter of Fundamental Rights said.  It has become clear, from the process of Brexit, that this guarantee was worthless: the EU has simply abandoned its commitments to sixty million European citizens.    The Union, it seems, is nothing more than a club, and if a member state doesn’t wish to subscribe to the rules of the club, the citizens who live there can’t expect to have access to the facilities.

Third:  what does it mean to say the EU works on a principle of solidarity?  The idea of solidarity is central to the arguments made by the contributors to the JESP dialogue –  Bea Cantillon, for example, complains that “The lack of solidarity is a shameful mockery of all the great principles enshrined in the Treaties.”  The European view of solidarity was always, I think, more nuanced than this.  European solidarity would be built, not by the adoption of universal European rights and policies, but through the establishment of networks of mutual responsibility, both within and across national borders; generalisation happens slowly and incrementally.  In the context of the current crisis, however, Vandenbroucke argues, I think rightly, that the EU already has the powers it needs to act.

 In the current context, solidarity requires large-scale ‘disaster relief’. The European treaties not only make this possible, they even demand it: Art. 222 TFEU stipulate that the Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the victim of a natural or man-made disaster; Art. 122 TFEU makes financial assistance to members states threatened with severe difficulties caused by natural disasters….

If this is not happening, it is only another mark of the unwillingness of the EU to accept direct responsibility for the welfare of its citizens.   The contributors to the dialogue are fearful that the EU may not survive this crisis, if it remains inactive.  If it does nothing, it may not deserve to survive.

 

Universalising French pensions

It’s not the first time that a French government has tried to inject a greater element of universality into its arcane system of welfare provision.  The Juppé plan, in 1995, tried to curb rising costs partly by imposing spending limits, and by trying to bring the pension rights of miners and railway workers into line with other groups.  It also proposed universal rights to health care and guaranteed access. One prominent trade unionist called that idea “the biggest rip-off in the history of the French Republic. … the end of the Sécurité Sociale.”

The current system of pensions is costly – it’s long been the case that pensioners in France are on average better off than workers.  Clearly, part of the government’s agenda over time has been to cut the cost, and that is the source of many of the protests.   If cost was all it was about, there are other things that the government could have done – raise the pension age, increase contributions, increase the number of contribution periods required, and so on.  But there are lots of other problems in the system.  The shift to precarious labour and the problems of switching between different pensions rules can shut people out. With 42 distinct pensions regimes, the system is horrendously complicated.  It takes years (literally) to work  out what someone’s pension is going to be; often the calculations begin long before a person reaches 60 and are not finished until after the person retires.   As the government plan says,

personne ne sait exactement ce à quoi il a droit. Le système est illisible, complexe, et crée de la défiance.

[Nobody knows exactly what they’re entitled to.  The system is incomprehensible, complex and it creates distrust. ]

The proposed alternative is outlined in the government plan (the link is in French). The main elements are:

  • a universal scheme for everyone – one of the principal aims is to remove inequities between people currently under different regimes
  • a points system, in place of contribution periods, to determine entitlement
  • an increased minimum pension
  • retention of retirement at 62 (that is early by European standards, but  worse than some French regimes currently offer)
  • credit for every hour for which contributions are paid  (seriously!)
  • improved protection for people whose contributions have been interrupted through care, unemployment or sickness
  • full transparency, through a personalised record of contributions and linked entitlements
  • a commitment to balance the books – the current system runs perennially in deficit
  • transitional arrangements for current workers
  • a new system of governance.  There is a commitment to consult about the value of points, but overall the new system will reduce the role of the ‘social partners’ including trades unions.

Something that isn’t explicit in the plan is the distributive element.  It’s been reported that the proposals are regressive:  the contributions required of very high paid people will be 2.8% above 120,000 Euros a year, whereas under that level the contribution will be 28%.  However, the 2.8% is purely redistributive; it will yield no benefits for the contributions.

Both sides of the argument are right.  On one hand, the government is proposing a scheme that should be less complex, fairer and  more inclusive.  On the other, the objectors will be trying to defend a scheme which, for all its irrationality and complexity, has delivered far better benefits than  a more orderly set of schemes could ever have offered.  There will, of course, be vehement protests  – it’s the French national sport, and they do it so well. But the protestors, mainly from the left and the trades unions, are  protesting against the idea of universality and state welfare, and from a British perspective, that’s a difficult position to hold.

The EU Withdrawal Agreement Bill

I should forbear to comment on a piece of legislation which I’ve only skimmed through and can’t claim to understand, but the European Union (Withdrawal Agreement) Bill 2019-20 ascends dizzying heights of incomprehensibility. Every page is packed with cross-references to other clauses or legislation, and following the threads through the labyrinth would take me rather more than the three days the Commons is supposed to have for the whole process.

Some things are apparent, however.  There are going to be lots of problems and snags, and the government’s answer to most of the complexities is to say: leave it to the discretion of Ministers to sort them out.  (Where there are issues relating to devolution, the same trust doesn’t extend: the standard answer seems to be that Ministers will have to consent to anything that’s being proposed.)  There are liberal references to the steps that the Minister “considers appropriate”, and to the resolution of any “matters arising” from any issue – a phrase which is loose enough to mean that almost anything the government decides to do in those areas will be fair game.   There’s a clause, for example, about social security coordination, but what’s going to happen about pensions and medical treatment for UK citizens living in the EU?  As far as I can see, the answer is that there’ll be regulations passed on this as necessary: the responsible agency will  sort something out.

It follows that the Bill represents a major transfer of power to the government.  Did ‘take back control’ really mean ‘leave it all to HM Government’?  And even if one trusts this government, would the same apply if a different government came to power?  I think Parliament needs to consider whether this kind of blanket delegation to the executive is the sort of legislation they would ever want to pass.

Further note, 26th October:  There is a superb critical analysis of the Bill by barrister Anneli Howard.  She points in particular to

  • the Bill’s complex cross-referencing to other legislation
  • the extensive ‘Henry VIII’ powers being granted to ministers, and
  • the reduction in Parliamentary scrutiny that would follow from passage of the Bill in this form.

Brexit: there are two parties to any relationship breakdown

There is no prospect of a deal being agreed between Britain and the EU before 31 October; any deal has to be agreed by the UK Parliament, the Council and the European Parliament, and there simply isn’t time.  That leaves only two options: delay or no deal.

It is easy to see the faults of the British governments, but the failures of EU diplomacy are just as strong.  The British position has been arrived at through a series of blunders:

  • giving notice without even having developed a negotiating position;
  • treating the negotiation as a question of government prerogative, rather than something subject to parliamentary scrutiny;
  • failing to engage all interested parties, and especially the political opposition;
  • establishing ‘red lines’ on immigration and trade relationships that were not part of or integral to the referendum decision
  • after the rejection of the proposed withdrawal agreement, failing to develop any other position for several months.

The problems created by the European Union, however, are no less important.  They include

  • specifying a two-stage process, when there was no time in the negotiating period to cover both stages;
  • insisting, in consequence, on a ‘backstop’ arrangement which could only have been removed by the resolution of the second stage;
  • treating the Withdrawal Agreement as if was a treaty that had been agreed, after it had been manifestly rejected;
  • refusing, despite its treaty obligations, to provide a position on the future relationship;
  • refusing to consider any arrangement when trading with the UK as a third party, that would not apply to all goods and services  – anything else was dismissed as ‘cherry picking’, when selection is in the nature of all negotiated settlements; and
  • failing to take any action relating to its declared priority – or ‘red line’ – of protecting European citizens.

The result is a shambles.  Neither party can hope to come out of this with any of the outcomes they wanted to achieve.

Is a Brexit deal on offer? I think it might be.

It’s been widely reported in the press that Boris Johnston has been given 30 days to come back with a solution to the Irish backstop.  This morning I was in a fascinating session, led by Mark Diffley and Steve Richards, which assumed that this was the case. I think Angela Merkel was saying something significantly different – but if the offer is not understood and acted on right away, the opportunity may be lost.

The Withdrawal Agreement is, and has always been, incomplete. It represents only the first stage of a negotiated settlement.  The backstop is an insurance policy – a red line, if you will – to cover the eventuality that there is no agreement on the second stage.  That raises the obvious  the question – why not get on with the second stage?

And that, as far as I can make it out, is the position just put by Ms Merkel.  She is well known for being careful with her words.  What she said in the recent press conference was not that she is looking for an alternative to the backstop, but that she is open to a resolution on the future relationship that would mean that the backstop will never come into effect.  This is the summary from the Guardian:

She said that the backstop had always been a “fallback position” and would only come into effect if no other solution could be agreed that would protect the “integrity of the single market”. She went on:

“If one is able to solve this conundrum, if one finds this solution, we said we would probably find it in the next two years to come but we can also maybe find it in the next 30 days to come. Then we are one step further in the right direction and we have to obviously put our all into this.”

She is not saying that Boris Johnson must offer an alternative to the backstop – if that was what she meant, she could have said so.  She is saying that the backstop is there because no other resolution has been made about the future relationship.  That is the solution which would have to be arrived at before Britain leaves.

There are three obvious problems here.  First, this is not a line agreed with the rest of the EU; it is in particular somewhat different from the line being taken by President Macron, who if I read the runes rightly just wants it all to end. Second, there is a lot to do.  But third, if the British government continues to play with alternatives to the backstop, this is not going to happen; what they need is a comprehensive agreement that will make the backstop redundant.  That could be done at speed – but for as long as the attention of the government is elsewhere, the time is being frittered away.

My own private Brexit

I have received today le Certificat de nationalité française, confirming that  I am a French citizen. I have no intention of renouncing my rights as a British citizen, but I have no intention of surrendering my rights as a European citizen either; and I do not think it reasonable to require any person to give up  the rights of citizenship, or democratic to suppose that their rights can be extinguished by the will of a majority.  My father and grandparents were refugees from France, my first wife was French and my children are dual nationals, but as we were all members of the European Union it didn’t seem important for me to do anything about my own status.  In November 2016, I realised I would have to. I obtained the necessary documents, arranged for formal translation of English documents and completed an application for the  in January 2017.  The process has taken most of three years, and I still don’t have the carte d’identité or a passport, but the question of legal status has been sorted.

I’m far from alone in taking such a step:  hundreds of thousands of British citizens have applied for citizenship from various EU countries, many from Ireland or Germany. It will protect my rights to live, work and travel in the EU – I’m more likely to work in Poland than I am in France – but the issues go much deeper than that.  I wrote this in March 2017:

There have been demonstrations over the weekend.  They’re not about tariffs. They’re about movement, contact, travel, education, work and family life.  The loss of European citizenship means that you won’t have the right to live or work across Europe without a permit, to study where you will, or to marry a European with the assurance that you’ll be able to live together.  And that directly and immediately affects the lives of millions of people – not just the 4 million already identified by Michel Barnier (that is, EU citizens in the UK and UK citizens in the EU), but anyone in a mixed family, and anyone who might be. People like me; quite possibly, people like you.

Before the referendum, I tried to flag the issue when it wasn’t on the agenda; since the referendum, I’ve raised petitions on Change.org and in the European Parliament.  This is about the right to live in Europe.  We were told that right was fundamental, not just to what the European Union was all about, but to us; and for many of us, it is.

 

 

Postscript: This was my 1000th post on this blog.

 

Brexit: there is a way to an agreement, but no-one seems ready to take it.

I dislike repeating myself, which is why I haven’t had much to say recently, but there is a way out of the current impasse – if only the UK government and the EU will take it.  The backstop protecting Ireland appears to be the primary source of contention.  It is only needed because the UK and the EU have not yet formed any agreement about Britain’s future relationship with the EU.  Indeed, in more than two years, thanks to an absurd initial decision about the sequence of the negotiating process, they’ve not agreed a single binding clause about that relationship.  An agreement on the future relationship would finalise Britain’s departure, and then there would be no need for any provisional arrangement to cover the particular circumstances of Ireland in the interim.   Yes, trade deals are complicated; but substantial existing deals are there as models, many of the points already in the withdrawal agreement are uncontentious, and Britain currently meets the acquis communautaire.  It could be done, if people wanted it to be done.

Unfortunately, I see no evidence either that the new UK government is interested in engaging in any kind of negotiation on that basis, or that the EU understands that there is a way out of the mess that doesn’t involve brinkmanship or a game of ‘chicken’.  Everyone has packed up for the summer.  In those circumstances, Brexit will happen without a deal.