Category: Europe

Six million people have signed the petition to revoke

The petition to revoke Article 50 has now passed six million signatures.   It is by some margin the largest petition in the UK’s history.  A petition is not proof that the ‘will of the people’ has changed, but it does prove that the ‘will of the people’ was not  represented by the result of the referendum; all that referendum could do was to represent the decision of a majority.

Majority rule is not democracy.  In what circumstances do the rights of 17.4 million voters override the rights of six million? Think about that question, because it comes with its own answer.

 

The clock has run down. Revocation is the best option left.

Time’s up.  Our MPs may be tempted to think that the two-week extension from the EU leaves it open to them to negotiate further about Britain’s future with the EU; it doesn’t.   There are only three options left.  One of them expires next Friday, another expires two weeks after that.

The three options that are available are

  • May’s deal – the Withdrawal Agreement negotiated with the EU, which the EU still hopes to be agreed;
  • no deal, which despite the MPs’ rejection in principle is the legal default, and
  • revocation of the article 50 notice.  The legal option to do this expires at the end of next Friday.  (The latest communique from the EU suggests that they would be open to revocation for two weeks after that – but they have not said either that revocation would be on the same terms as Britain’s existing membership, or that there will be no cost.)

The options that are no longer eligible available include

  • a second referendum, because there is no time to hold it;
  • Norway plus, Canada Plus, or any other trade-plus-cooperation type of deal – any of them will take months to negotiate;
  • Labour’s plan for a renegotiated settlement – no renegotiation is actually on offer, and we are out of time.

It’s time to get real.  Given that there are only three options, parliamentarians have to make a choice.  Two of those three options have already been rejected by the House of Commons.  Agreeing the Withdrawal Agreement is still possible, but it has been rejected twice by a huge majority, it is unbalanced, and it is incomplete: and it leaves unresolved  problems that will take years to negotiate.

The truth is that there is only one eligible option left: revocation.  Yesterday, I drew attention to a parliamentary petition which has put revocation back on the political agenda. It has, as they say, “gone viral”.  By this morning there were well over 2.5 million signatures on it, despite the site’s continual crashing and the lack of any pointers to it.   Andrew Adonis has said he will move revocation in the Lords on Monday.  It is our best, and possibly our only, hope.

Britain has lost sight of democracy, but it is the European Union that has abandoned its citizens.

We’re hearing a great deal from people who feel that someone or other is ‘betraying’ people about Brexit.  There are around 750,000 references on Google to the phrase ‘Brexit betrayal’, including extensive coverage in the right-wing press, and nearly all of them seem to come from one side of the argument – the same side whose preferences or ‘Will’ have been slavishly, and impractically, followed by the UK government.

I, too, feel a sense of betrayal.  It is a betrayal both by the UK government and by the European Union. The European Union made a solemn declaration that all citizens of the European Union had fundamental rights.  The UK, and every other member state, pledged to protect those rights; the primary mechanisms for that protection was to be the action of the member state.  Both parties have reneged on that commitment, and as part of the same process: they have treated the negotiation just as if it was about a member giving notice to a club, rather than secession from a union.

Article 50 may have been new, but there was a precedent for secession.  When Greenland left the European Union, its citizens were given individually the option of deciding whether or not they wanted to continue as European citizens.  Before the referendum, I had vaguely supposed that something of the kind would be arranged for citizens of the UK – it was only as the arguments developed that I could see it wasn’t going to happen, and tried to raise the issue.  Departing the EU stands to create devastating problems for families, for workers and for people resident abroad in either bloc.  That is why  hundreds of thousands of UK citizens have taken up citizenship of other EU countries to avoid the consequences.

It wasn’t supposed to happen this way.  Rights that are conditional on governments paying a membership subscription are not ‘fundamental’ rights.  But it has become clear that states are the members of the European Union.  Despite the fine words and the formal declarations, the people who live in those states are not its citizens. Brexit stands to strip every European – both those who are citizens of the United Kingdom, and those who are citizens of other member states – of the protections they were faithfully promised.  There is a clear message in the negotiations, one that goes to every citizen of every member state:  the only citizenship you have that matters is the citizenship of your home country. European citizenship has been degraded to the status of a junk bond: a promise that will never be kept.

Throughout the process, too, both the EU and the UK have treated the negotiations as if they were a matter of international relations, a negotiation between the British Government and the Commission.  That is why the EU made no direct appeal to its British citizens during the referendum, and did nothing to safeguard their interests.

Compounding the problems, the process followed in the UK has been profoundly undemocratic. Democracy is not the rule of the majority. Majority voting is only a convention for resolving disputes. The referendum itself had some claim to democratic legitimacy, even if this was questionable; it excluded millions of people directly affected by the decision, including Britons living in the EU and citizens from other EU countries living in Britain.  But voting is not everything.   One of the tests is that people should have been engaged in a discursive deliberation; that has not happened, because the government was determined to keep its stance a secret (ostensibly, in case the people they were negotiating with found out about it; more probably because they didn’t know what their stance was).   More basically, democracy is supposed to be  a system that defends the rights of minorities.  That is something that this process has signally failed to do.

Additional note:  A petition to parliament to revoke Article 50 has picked up nearly 900,000 signatures in less than a day – 10,000 of them just while I was adding this note.   Find it here.

 

How to bring the Brexit negotiations to a conclusion

There are several possible conclusions of the Brexit negotiations.  This could all could finish with no deal, or with acceptance of the deal that Parliament has already objected to.  A second referendum might even finish with the UK deciding to stay in the EU, but that is unlikely.

The fundamental problem with the existing offer is a simple one:  it is incomplete.  Article 50 made provision for both a withdrawal agreement and an agreement about the future relationship.  The second part is missing.  There is a “political declaration”, but there isn’t a legally binding agreement about the future.  And that’s why the withdrawal agreement had to come with a ‘backstop’.  The backstop is only necessary because nothing has been firmly decided about the future.

We arrived at this situation through a combination of ill-considered procedural decisions.   The EU should not have insisted on postponing discussion of the future relationship until after the withdrawal agreement had been negotiated; that was inconsistent with its treaty obligations.  The UK government should not have consented to the timetable.  Nevertheless, that is what happened.  The way out of the dilemma now is to conclude the unfinished decisions about the future – in other words, negotiating the trade agreement that should have been on the table two years ago.

It might not be possible to make this agreement in the remaining time; that argues for an extension of the notice period.   But a final agreement would not require anyone to revisit the withdrawal agreement, it would have the advantage of saving face for both the EU and the UK government, and it would avoid a situation which none of the parties wants.

Brexit is set to deprive UK citizens of basic rights

I’ve repeatedly argued in this blog that trade with the EU is not the main issue: social rights are.  I wrote before the referendum that

If the UK leaves, UK citizens will lose their rights as European citizens. Those rights include rights to representation within the EU, the right to move and live freely throughout the EU, reciprocal rights to public services, and consular and diplomatic protection from other EU countries when outside Europe. There is something deeply flawed about a process that claims to be democratic but implies that a majority decision would deprive a minority of their rights.

Last March, the House of Commons passed this motion:

this House supports the maintenance of European Union citizenship rights for Welsh, Scottish, Northern Irish and English citizens, notes that the range of rights and protections afforded to individuals as European Union citizens are integral to a person’s European identity; further notes that many of those rights are closely linked to the UK’s membership of the Single Market; and calls on the UK Government to ensure that the UK’s membership of the Single Market and UK citizens’ right to European Union citizenship are retained in the event that the UK leaves the EU.

Yesterday, despite that, it emerged that if Britain leaves the EU without an agreement, reciprocal arrangements for  health insurance will be withdrawn from UK citizens living in other European countries.  None of the main protagonists in the Brexit debate is focusing on the things that really matter.

 

The Brexit agreement is not great, but it’s all we’re going to get.

The Brexit agreement is  largely a pragmatic document which tries to steady the ship, rather than a major breakthrough in any direction.  Fisheries, for example, are not resolved – they’re simply put into abeyance before the next round.  The whole document looks like a draft, with loads of white space around sections – when a Labour spokesman talked yesterday about it being 600 pages and ‘tightly spaced’, it was clear he’d not even looked at it, because he couldn’t have said that if he had.

Some elements in it are disappointing, but to my mind the sections which most prompt concern almost certainly reflect the negotiating position of the British Government.  I’d point in particular to

  • Article 15(1), which gives people a right of residence only after they’ve been in athe host country for five years.  That is an abdication of responsibility both by the EU (which guaranteed movement as a fundamental right) and the UK (which made the same guarantee to its own citizens).
  • Article 92(5) and Protocol IV.7, which bind the UK not to offer state aid to business; and
  • Protocols V.17 and 18, which void elements of contracts which have non-commercial justification, a principle used to negate local minimum wages and agreements with labour unions.

It’s also important to note what’s not there: protection for the rights of citizens who might reasonably expect to live and work abroad but have the misfortune to be domiciled in their home country  at the moment, cross-border families in the same situations, or derogations from EU law relating to internal management of the British economy.

These are not, I know, the issues that most excite our politicians.  I’m sure someone will notice that the protocol with Northern Ireland stresses the importance of  access to the UK for goods from the province (pp 304 and 313), but not vice-versa.  It’s possible that the whole agreement will founder on that.

The agreement could have been better.  It would have been better if the government had thought through its position at the start; if it had consulted with interest groups, rather than keeping negotiations secret; and if it had used EU law to hold the EU to its treaty obligations.  It probably would not, however, look a lot different from the document we have now.  Ultimately I expect Parliament to fold, but even if we were to go through another election, any commitment to implement the referendum decision as it stands will end up looking something like this.

Brexit should be stopped, but I’m not convinced that the way to do it is by a second referendum.

Brexit should be stopped.  We can debate what the duties of a government are, but I’m fairly sure that it doesn’t include a direction to drive the bus over the edge of a cliff.

However, I’m not convinced that the way to do this is by another referendum.  That would imply that if the referendum was to confirm the original decision, we should abide by the majority’s decision, and I do not accept that we should.

There were three obvious problems with the referendum in 2016, and all of those problems are still there.  The first problem was that several million people were directly and immediately barred from voting.   Those people included British citizens living in Europe, and European citizens living in Britain. There is no possible revision to the electorate which will not lead to one side or another crying ‘foul’.

The second problem was, as we now know, the combination of illegality and downright lies that characterised the campaign to Leave.  There is no reason to suppose that the next campaign would be any cleaner.

The third problem would be true of any referendum.  It is democratic to encourage people to express their views, and we have a convention that decisions are decided by majority rule.  However, it is not democratic for any majority, ever, to deny rights to minorities.  We should not tolerate a situation where half the population votes to extinguish the rights of the other half – and that, in effect, is what has happened.

When the government accepted the brief to negotiate exit from the European Union, their first responsibility – and the first responsibility of EU authorities on the other side – was to defend the fundamental rights of citizens.  Both sides have a clear, unequivocal, treaty-based legal obligation to safeguard individual rights.  Both sides have failed to do so.

A Citizens’ Initiative on European citizenship

I’ve raised the question of European citizenship several times on this blog, and have previously both raised a petition and supported a crowdfunded legal case to argue against British citizens being stripped of fundamental rights.  There is a new citizens’ initiative with the same objective and I’d urge those who wish to maintain European citizenship to support it.

 

The Brexit White Paper is out

The Brexit White Paper is strong on aspirations but weak on the detail of how to achieve them.  The paper refers repeatedly to “cooperation” (226 times) and to “new” arrangements (153).  There’s a long shopping list of fields of activity which will require specific negotiation.   The main proposal for mechanisms is to create an institutional framework, a governing body, a joint committee, and then sub-branches dealing with the specifics such as fishing, security, data protection and so forth.

While it’s fine to propose cooperation, every one of the areas considered is going to need negotiation and agreement of terms.  In most cases, the document does not say what those terms should be, only that the issue has to be discussed.   For example,

 the Government’s vision is for an economic partnership that includes:

  • … a new Facilitated Customs Arrangement
  • … new arrangements on services and digital
  • …  new economic and regulatory arrangements for financial services
  • … a new framework that respects the UK’s control of its borders …

The White Paper is blunt, however, on at least two points.  One concerns mobility, and the civil rights of EU citizens.  The UK is happy enough for Brits to live abroad but EU citizens will be restricted, with the main exception of easy-going tourist visas.  The other is fisheries, where the document states baldly that access to UK waters will have to be licensed and negotiated annually.

There is of course hardly anything the issues that matter most to ordinary people, such as residence or family law, where the most that is said is that something will have to be agreed.

What the UK government wants, and what the EU will agree to

There is very little practical difference between the position recently agreed by the UK Cabinet and the position adopted by the EU.  Putting the positions side by side, we find this.  (Everything in the table is a quotation from a public statement.)

UK Government position EU negotiating position
A common rulebook for all goods including agri-food, with the UK making an upfront choice to commit by treaty to ongoing harmonisation with EU rules on goods A framework for voluntary regulatory cooperation to encourage convergence of rules
Different arrangements for services, where it is in our interests to have regulatory flexibility, recognising the UK and the EU will not have current levels of access to each other’s markets. An open market for services, where companies from the other party have the right of establishment and market access to provide services under host state rules
A common rulebook on state aid, and establish cooperative arrangements between regulators on competition. Common ground on competition and state aid.
A joint institutional framework to provide for the consistent interpretation and application of UK-EU agreements by both parties. This would be done in the UK by UK courts, and in the EU by EU courts Adequate enforcement and dispute settlement mechanisms.
The phased introduction of a new Facilitated Customs Arrangement that would remove the need for customs checks and controls between the UK and the EU as if a combined customs territory Customs cooperation to facilitate goods crossing the border

 

The main area of disagreement in that list concerns access for services, where it is almost certain that the UK government will give way – they cannot get UK access for financial services otherwise.

The high level of agreement does not, however, imply an easy resolution of the issues, because – yet again – the UK has largely failed to engage with the issues. The recent statement from the EU’s negotiating team identifies a host of priority issues where the UK has still not identified a position. They include:

  • access to public procurement markets
  • investments
  • intellectual property rights
  • coordination of social security
  • recognition of professional qualifications
  • guarantees against tax dumping
  • an air transport agreement, combined with aviation safety and security agreements.
  • participation in EU programmes, for instance in the field of research and innovation
  • rules on data protection and
  • social and environmental standards.

One might hope that the forthcoming White Paper will have something to say about these issues; but frankly, it should all have been laid out two years ago.