Tagged: Brexit

Is the Irish dilemma beyond a solution?

The problem for the UK government seems to rest in a choice between two unacceptable options.  On one hand, they can treat Northern Ireland wholly as part of the mainland, implying the return of a hard border.  On the other, they can treat  Northern Ireland is treated differently from Great Britain, allowing for regualtory alignment with the Republic of Ireland.  The UK government seemed posed to accept the latter, but it has been resolutely rejected by the DUP:

“We have been very clear. Northern Ireland must leave the EU on the same terms as the rest of the United Kingdom. We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom.”

There is a third option.  The United Kingdom has three devolved governments, each of which already has partial derogations from laws and rules which apply in England.  If the British government accepted that there could be a derogation of rules for all three devolved governments, it would no longer be the case that Northern Ireland was being treated differently from the other parts of the United Kingdom.    The precise scope of that derogation has to be considered, but the terms and management of the derogation could be delegated to Scotland, Wales and Northern Ireland to resolve.  It’s called ‘devolution’.

The negotiations about Brexit aren’t addressing key issues

Although the EU has been behaving badly about the Brexit negotiations, they have reason to complain about Britain, too.   They’re right, first, to say that Britain’s position papers are too vague to be any use.  Britain offered 16 pages on trade, for example, recently supplemented by another 11 pages on continuity.  It’s not difficult to know what a successful trade agreement looks like.  The agreement with Canada, CETA, runs to nearly 1600 pages.  What  the UK had to do – and it’s had 15 months to do it in – was to begin with those 1600 pages, identify which terms are acceptable to Britain (they are all, after all, already acceptable to the EU), and then work on the differences.  That would still be a lot of work, but at least there’d be a meal on the table rather than a bowl of twiglets.  Britain can hardly complain that trade is  not being discussed if they’ve not offered any points for discussion.

The EU negotiators are right, too, to identify key issues besides trade: citizens’ rights, Ireland and treaty obligations.  The UK’s concerns are difficult to decipher; the latest position paper relates to the confidentiality of official documents, which suggests that government ministers are more concerned with covering their backs than they are with getting on with the business. Where the Commission is behaving badly is to say that nothing else gets discussed.  The EU also has treaty obligations.  Article 50(2) states that

the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

Whatever happens about the bill, the EU has no right to refuse to discuss the future relationship.

Two of the three items the EU is starting with are, in fact, about that relationship: Ireland, and citizens’ rights.  The Irish border is difficult, but not intractable, because different elements can be separated out and dealt with differently:  for example, Switzerland is not part of the customs union or the EU but is part of Schengen.  Citizens’ rights is much the more complex problem, and neither of the parties has shown any inclination to acknowledge that UK citizens resident in the UK are also currently citizens of the EU, and many will face the same sort of problems with split families, cross-border care, pension rights or interrupted periods of residence that people now in Europe or other nationals now in the UK will face.

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.

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.

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.

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.