Category: Europe

Blair on Europe – almost right, but not quite

Tony Blair’s speech on Europe seemed to me to confuse two quite separate issues.  The first issue, on which he is absolutely right, is that  “the people voted without knowledge of the terms of Brexit”, and that “The road we’re going down is not simply Hard Brexit. It is Brexit At Any Cost.”  Accepting the (questionable) legitimacy of the Brexit vote is not equivalent to accepting the Government’s recipe for implementation.  The second issue, on which he is not right, is to assume that the alternative is to vote again and this time to vote the other way.   The main alternative is surely to address the terms of exit differently, including the extension of rights to EU nationals in Britain, membership of the EEA, and – probably most important – democratic deliberation at every stage of the process.   As Blair himself says,

it isn’t a question of just ‘getting on with it’. This is not a decision that once made is then a mere matter of mechanics to implement. It is a decision which then begets many other decisions. Every part of this negotiation from money to access to post Brexit arrangements is itself an immense decision with consequence.

There are however points on which I would part company from Blair altogether. One is his acceptance of the view that “Immigration is the issue. ”  It is for Theresa May, but this wasn’t a vote on immigration – it was only a vote where that played a part.  The other is his dismissal of the relevance of the ECJ, where he says:  “I would defy anyone to be able to recall any decisions which they might have heard of. ”    Try  Rüffert v Niedersachsen, 2008 C‑346/06, where the ECJ judged that national governments could not use contracts to  enforce collective wage agreements; or  Bundesdruckerei v Stadt Dortmund 2014 C549/13, which stopped German authorities from insisting that the minimum wage should be paid.  These decisions were appalling – quite as bad as the Lochner v New York in the USA, where dissenting judge Justice Holmes was moved to comment that the Constitution of the United States “does not enact Mr. Herbert Spencer’s Social Statics.” I wouldn’t expect most critics of the EU to be able to cite the specifics either, but they understand the general tenor.  The ECJ has been part of the neo-liberal domination of the EU, that has done so much to undermine the European ideal.   

A petition to the European Parliament

My petition to the European Parliament has at last, after more than six months, been approved for public view, and is now open to supporters.  The text is as follows:

As citizens of the European Union, the status of British nationals is protected by the Charter of Fundamental Rights. Citizenship is the right to have rights. If European citizenship is truly fundamental, not just a conditional privilege, no European citizen should have it withdrawn without consent or treated as if it never existed. When the UK ceases to be a Member State, the Parliament, as the guardian of Fundamental Rights, should ensure that European citizens of British nationality who wish to preserve their fundamental rights are able to retain their citizenship.

The petition, reference number 0922/2016, can be found here. To support a petition to the European Parliament – which is one of the basic rights of European citizens – you will need to register on the portal.

Brexit: the UK government alluringly takes off the first veil

The Government’s White Paper on Brexit has appeared, too late for the vote in the House of Commons but at least in time before the committee stage.   It has a few surprises; the biggest one to my mind was to discover that Ireland is no longer really part of the EU.  Here is one of the graphs that leaves out Ireland:

Here’s another:

The document explains that Britain has ‘historic ties’ with Ireland as well as the free movement of “goods, utilities, services and people”.  It will be intriguing to find out how that works without implying the movement of goods, utilities and services from Ireland to the rest of the EU.

It also seems that Britain already has a unique relationship with the EU, which looks like this:

The Government claims that “It is in the interests of both the UK and the EU to have a mutually beneficial customs arrangement to ensure goods trade between the UK and EU can continue as much as possible as it does now. ”  Other stakeholders in the EU have already made it pretty clear that this is not their view, and it’s not going to happen.

Some reflections on the Supreme Court judgment in Miller: European law is not foreign law

After a little delay, I’ve now read the Supreme Court judgement in Miller.  It’s different from other Supreme Court judgments I’ve viewed, because it doesn’t report the views of each judge separately, (with the exception of Lord Hughes’ muddled couple of pages), and it’s a better judgment for not doing so.  I was disconcerted, however, to find that none of the arguments, either from the the majority or the minority, referred directly to European law.  Both sides seem to construe EU law as a matter of obligations arising  under the treaties, and consequently refer only to UK decisions to establish the necessary principles.  However, as the majority recognises, the EU is in itself a source of law.  The central point about the European Union is surely that it is a union, and that within it citizens are directly subject to two legislatures.  Citizens are bound by the laws of  the EU  (Van  Gend en  Loos, European  Court of Justice  Case  26/2).   In cases of conflict of laws, European law is paramount (Costa  v.  ENEL,  6/64).  Those principles were established clearly before the UK joined.

Lord Reid, for the minority, argues:

In so far as the Miller claimants place reliance on rights under EU law as given effect in the legal systems of other member states, such as the right of UK citizens to live and work in Greece, there is no rule which  prevents prerogative powers being exercised in a way which alters rights arising under foreign law.

There is such a rule: it is explicitly stated in the Charter of Fundamental Rights of the European Union, which declares that “Every citizen of the Union has the right to move and reside freely within the territory of the Member States.”   Member states are further obliged by European law to “respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.” The UK has no authority to change this law – which is why secession is necessary before it can be done.

The central problem here is a conceptual one: it lies in the word  “foreign”.   Lord Reid locates all authority for the recognition of EU law solely in the authority contained in the 1972 Act.  He refers to the rule of recognition, but he does not go on to consider Hart’s other rules – rules of change, and rules of adjudication – which at that point passed, along with the rule of recognition, to the European Community.  The 1972 Act was necessary to extend recognition, but as it did not establish the rules of change or adjudication it is not the source of all the subsequent law.  Britain joined a union, if not in 1972, then in 1986 with the passage of the Single European Act, which has been part of European and therefore British law for thirty years. European law is not a foreign matter; it is a domestic one.

There are many examples of states forming unions with other countries.  In most cases  the relevant legislation referred to is not the legislation of the state that is joining but the legislation passed by the body it joins – for example, the UK for Scotland, or the USA for Hawaii.   (I say ‘in most cases’ because there are also examples where the relevant legislation is made by other states again – the union of Newfoundland and Canada, for example, was passed in the UK parliament.)  Equally, there are examples of states leaving unions – for example, Ireland, Slovakia, Croatia.  If Scotland was to become independent, would that mean that the law of the UK was cancelled as part of an obsolete treaty obligation?  Of course it wouldn’t.  When states secede, the law of the preceding union isn’t presumed to have no further effect – that would leave a gaping hole in the laws.  Law continues to have effect until it is changed.  When the UK leaves the EU, Parliament will probably want to pass legislation forestalling the application of precedents based on existing EU  law.  Good luck with that.

Planning Brexit: the government’s assault on democracy

The Brexit process has been marked throughout by a thoroughgoing disregard for democratic principles and political legitimacy.

First, the referendum vote excluded more than a million British citizens with a direct interest in the issue.  That decision was upheld in court, which meant that it was legal, but it meant at the outset that the process was neither democratic nor legitimate.

Second, the process to date has overridden the rights of the minority.   James Madison argued, in the Federalist Papers, that every majority had to be understood as a coalition of minorities, and the convention of majority rule was based on respect for the rights of the minorities that remained.  That principle is fundamental to liberal democracy.  The government has a duty to find a resolution of the vote that will maintain the fundamental rights of the citizens who it is bound by law to protect.  However, nothing in the debates, and nothing in the government’s current plans, has given any attention to the issue.

Third, the government is proceeding without respecting its previous undertakings to consult directly with devolved governments.  This, again, is not about the legal point; it’s about legitimacy.  Ms May’s administration has been messing around for six months, and now they have the gall to claim that there isn’t time.   A decision to consult is not a commitment to agree.  It is disturbing that the consultation has not taken place.

Fourth, the government has proceeded in a way which is inimical to democratic conventions.  It is disgraceful that they should have tried to go ahead without parliamentary debate, and no less disgraceful that it should have taken a citizens’ challenge to establish the obvious principle that they do not have the power to wipe out existing laws or citizens’ rights by fiat.   The most surprising thing about the Supreme Court’s decision in Miller is that it should have to be said at all.

Remaining in the EEA was held up as a prospect in the referendum.

It’s being widely reported that Theresa May is going for the “hard’ Brexit, arguing that in the referendum people made a clear decision to  leave the EU behind altogether.  That’s not how I remember the debates. While the EU referendum was going on, we were constantly being told that leaving the institutions of the EU would not mean that the UK didn’t have access to the European single market.   For example, the pro-leave Bruges Group put out a video, fronted by Norman Tebbit, arguing for Britain to work through the European Economic Area.  A spokesman for the Bruges Group argued on that video:

“Britain could still remain a member of the single market, which is the European Economic Area, or EEA, which allows for free movement of goods, services, capital and people.  And that means that as far as business is concerned, businesses will trade as they have before.  But the difference will be that regulations will no longer apply to 100% of the UK, but only, if you want, the 9% that are directly involved with export.”

Michael Gove – remember him? – argued, in The Telegraph on 22nd June:

There is no trade-off between any of this and greater prosperity; in fact, the very opposite is true. The premises of Project Fear – that Brexit would trigger economic dislocation, a trade war and a recession – are utterly bogus. We would join the European Economic Area in the short-term, like Norway, retaining access to the single market, before negotiating our own, à la carte deal with the EU …

A YouGov poll, shortly before the vote, claimed that most people in Britain favoured the Norway option.   Now, of course, none of this is equivalent to an election manifesto, and there is nothing here that today’s politicians should need to feel bound by.  But it does reflect on the mantra that we’re hearing that people voted to get out and so the route is all very clear.

Stopping in-work benefits for EU workers

It’s been widely reported (for example, in the Times, the Mail and the Sun) that Theresa May has plans to restrict in-work benefits to EU workers, putting them on the same footing as non-EU claimants.  I’ve been puzzling about what this means.  The only benefits specifically mentioned in the reported briefings are Tax Credits, which in any case are supposed to be being replaced by Universal Credit.  In most cases non-EU migrants are entitled to benefits as long as they meet the various tests – residence, presence or habitual residence,  depending on which benefit we’re talking about.  So, for example, to be entitled to Child Tax Credit, Working Tax Credit or Child Benefit a non-EEA migrant is expected to have lived in the UK for three months.  Refugees and family members don’t have the three month test; but both EU and UK citizens returning from abroad, who are not working, are subject to the  test.  If Ms May was saying only that there’s to be a three-month residence requirement for everyone, she wouldn’t need to wait for Brexit; it would be compatible with EU law now.

The main restriction that actively affects non-EU migrants is something quite different:  the restriction of the terms of entry on their visa, where they undertake not to be dependent on public funds and are threatened with deportation if they do.    Treating EU migrants in the same way could only happen after Brexit.  It would mean that the issue is not mainly about benefit law at all, but about the way that Britain deals with foreign citizens.  It’s only workable if we have a straightforward way of identifying who is, and who is not, a migrant, and a clear record of the terms of entry.  That could affect millions of people.

Amendment 882: preserving the fundamental rights of European citizens

The petition I submitted to the European Parliament in July has not yet been approved  for public view, but an interesting proposal has been made by a Luxembourg MEP, Charles Goerens.  The Constitutional Affairs committee is considering  the EU’s institutional arrangements, and Goerens has proposed the following amendment to their report:

Motion for a resolution, Paragraph 37a (new)

37a Advocates to insert in the Treaties a European associate citizenship for those who feel and wish to be part of the European project but are nationals of a former Member State; offers these associate citizens the rights of freedom of movement and to reside on its territory as well as being represented in the Parliament through a vote in the European elections on the European lists.

My petition, provisionally numbered 0922/2016,  had stated

As citizens of the European Union, the status of British nationals is protected by the Charter of Fundamental Rights. Citizenship is the right to have rights. If European citizenship is truly fundamental, not just a conditional privilege, no European citizen should have it withdrawn without consent or treated as if it never existed. When the UK ceases to be a Member State, the Parliament, as the guardian of Fundamental Rights, should ensure that European citizens of British nationality who wish to preserve their fundamental rights are able to retain their citizenship.

Goerens’ amendment, though it does not refer to the EU’s obligations under the Charter, is a substantive response to that.    As the amendment is framed, however, it asks for Treaty change, and it does so in relation to a document which seeks nothing less than a fundamental review of the Lisbon Treaty.  This is likely to be a slow and difficult process, if it happens at all.  In so far as the Charter of Fundamental Rights is already part of the constitution of the EU, Treaty change should not be necessary.  The EU should do what it has already undertaken to do.

Italy proposes a European Unemployment Benefit Scheme

The Italian Government has proposed the introduction of a European Unemployment Benefit Scheme, applicable to all the members of the Eurozone.  The benefit would provide 40% of previous salary for 6-8 months.  The purpose of the benefit scheme would be to provide solidarity when countries experience a surge of unemployment; the amount of benefit payable in a country would be limited to 200% of its contribution to the scheme.

I suspect the scheme is a non-starter.  The Italians have shrewdly put the proposal in a way which is not subject to treaty change or isolated vetoes, but it will be hard to get this past the presumption of subsidiarity.  Some of current arrangements within the Eurozone are based on independent and non-governmental arrangements – the Ghent system, based on trades unions, is used in Denmark, Sweden and Finland  (see this link by Clasen and Viebrock), and  the French scheme, Unédic, is administered by a ‘convention’ of employers and trades unions.   The Italian scheme is noteworthy, however, in three ways.  It shows that there is still continued interest in promoting the idea of a Social Europe.  It  reinforces the view that there is now a two-speed Europe, the Eurozone and the rest.  And it shows how very far the UK is out of step with the rest of the European Union, both in the objectives and in the level of benefit offered.

 

A petition to the European Parliament

I have prepared a petition on change.org, as the first step to presenting a petition to the European Parliament.  Here is the text.

Our European citizenship is a fundamental right. Please defend it.

We are citizens of the European Union. In the Charter of Fundamental Rights of the EU, the Union committed itself to the principle that each and every citizen has basic rights. However, the treaties did not directly create distinct legal protections of the status of a citizen, which were considered to be sufficiently protected by the actions of Member States, and Protocol 30 specifically reserves judicial processes relating to such rights to the United Kingdom. If the United Kingdom ceases to be a Member State, British nationals may no longer additionally become European citizens.  It does not follow that the fundamental rights currently held by British nationals should be treated as if they never existed.

The EU needs now to consider how to deal both with the rights acquired by UK citizens and those acquired in the UK by citizens of other countries. Citizenship has been described as ‘the right to have rights’. If the rights of citizenship are truly fundamental, no person who currently enjoys the status of a European citizen should have their citizenship removed. No process which denies European citizens the right to have rights can be considered consistent with the Charter.

The consent of the European Parliament is required before any agreement with the departing member state can be concluded. We therefore petition the European Parliament, as the guarantor of EU citizenship, to safeguard the fundamental rights flowing from EU citizenship both for us and for those elsewhere in the EU. We ask the Parliament and the institutions of the EU to ensure that British citizens who are currently citizens of the European Community, and who wish to preserve that status, should on application be able to retain European citizenship after the UK ceases to be a Member State.

Please sign the petition by following this link.

I have had the advantage of comments and phrases from Tony Venables and Richard Upson.  The next stage will be, after signatures are in, to present this to the online petitions web-page fo the European Parliament.  It is difficult for people to register their support (it took me a day to get my first log in), which is why this is starting on change.org instead.

I’ve been asked – why start another petition, when others were off the blocks first?  The answer is (a) because this is going somewhere different – the European Parliament – and is the only one currently aimed there and (b) it refers to European principles.