Category: Politics and economics

Brexit: The opposition still hasn’t got it. Trade is not the main issue. Our social rights are.

According to the Guardian, Labour will tomorrow announce a ‘tough’ new position on Brexit, insisting on the “exact same benefits” for trade and commerce.  They won’t get that, because EU negotiators have already made it clear that we can’t have membership of the single market without respecting the four freedoms.   Leaving that aside, however, the usual shopping list – trade, security, the economy – misses the point.

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.

Update, 6th April.  I didn’t know it when I wrote this, but a legal case on this point has been lodged in the Republic of Ireland by Jolyon Maugham, an English QC.  Maugham’s case is largely about the timing and import of the Article 50 notice, and that’s been covered in the press; but the other part is about the legal status of UK citizens as citizens of the European Union.  More to come. 

Deciding the date for the referendum is not just a ‘game’

Theresa May has described the request for a referendum on Scotland before a final decision about Brexit as a ‘game’.  There’s rather more to it than that.  If Scotland votes for independence before the exit agreement is concluded it will materially affect the terms on which Scotland could become a member of the European Union.  It would make it possible for Scotland’s status to be negotiated as part of the exit agreement; the precedent is the division of Denmark from Greenland, where part of a country left and part continued within the EU.  That would also mean, under the terms of Article 50, that Scotland’s status was subject to majority voting rather than unanimous agreement within the Council.  (We’ve been hearing a lot about the need for the EU to get the consent of all member states to agreement on the UK’s departure; that’s not actually required by the Article 50 process.)  Delaying the timing of the referendum would have the effect of closing down both of those options, and while the situation could be resolved in other ways, a delay now could obstruct Scotland’s consideration for membership for several years.

The date is however a matter of politics, and if May wanted to scuttle Scottish independence, she has another option: which is, to offer an immediate referendum within the next two months, rather than one in 18 months to two years.  The precedent is the short period permitted for the Brexit referendum; the Government’s rationale would be that this would clear the ground before the exit negotiations, Brexit in 2019 and the 2020 General Election; but the political calculation would be that a short time span would make it very difficult for the Nationalists to build enough support to win.  The longer the delay, the more likely it becomes that the vote will be for independence.

The future of the EU is not going to be for its citizens

The EU Commission’s White Paper on The Future of Europe  was published on 1st March.  It covers five scenarios:

  • carrying on as things are
  • nothing but the single market
  • allowing those who want to do more to develop initiatives
  • doing less
  • strengthening the EU on issues such as trade, foreign policy and defence

It’s striking what this is missing.  The problems faced by the EU are crisply stated:

many Europeans consider the Union as either too distant or too interfering in their day-to-day lives. Others question its added-value and ask how Europe improves their standard of living. And for
too many, the EU fell short of their expectations as it struggled with its worst financial, economic and social crisis in post-war history.

If the problem is that people think the EU is remote and irrelevant, then proposals to make it still more remote and less valuable to citizens make no sense at all.  In September Juncker was talking about developing a “European Pillar of Social Rights” – but there are only eighteen words about social rights in the White Paper, and those are confined to the world of work.  The idea that the EU should be there for its citizens seems to have been forgotten.

 

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 Reed, 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 Reed 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.

Why the Brexit bill should be opposed

I’ve not commented before on the woes of Her Majesty’s Opposition, and I don’t want to get distracted by their internal politics now. But the Government’s proposed bill to prepare for Brexit is sinister, and regardless of what people think about article 50, all good parliamentarians should oppose it.

The Government had intended to act by virtue of prerogative powers, and the Supreme Court has told them it’s illegitimate. The Bill does not say that article 50 will be invoked, or that Parliament wishes to give notice to the EU. Instead, it invests the power to decide in one person, the PM. The aim of the Bill is to forestall Parliamentary debate and to restore the government’s decisions to the realm of the prerogative. This is clearly designed to nullify the force of the Supreme Court’s judgment. The diminution of Parliament is inconsistent with parliamentary democracy.

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.

Additional note:  This video, linked to on the Guardian website, offers clips of Carswell, Farage, Daniel Hannan and Ruth Lea making contradictory statements about whether we would be in or out of the EEA and the customs union.  There was never, as people are now claiming, a clear agenda to leave all these arrangements behind.