Archive for the ‘UK and European law’ Category

The Powers of the House of Lords in Brexit are substantial but unlikely to be used to full effect

The Prime Minister suffered a big defeat in the House of Lords yesterday as peers endorsed requiring ministers to consider customs union membership post-Brexit. While this shows that the powers of the House of Lords in the Brexit process are substantial, they are unlikely to be used to full effect, explains Richard Reid (Oxford).

Yesterday (Wednesday) the House of Lords moved to the Report stage on the European Union (Withdrawal) Bill. Public interest has begun to focus on the potential amendments for which divisions may be called, and the possibility of government defeats. This contribution will not seek to add to the commentary on the likely success of such amendments but rather seeks to outline the power of the Lords in the Brexit process.

As the European Union (Withdrawal) Bill has not been designated by the Speaker of the House of Commons as a ‘Money bill’, the House of Lords retains substantial powers of delay. Through the Parliament Acts 1911 and 1949 the House of Lords has the power to delay the Withdrawal Bill for up to one year, after which time the Bill can be presented for Royal Assent without the approval of the House of Lords. Some difficulties have been raised about the potential use of the Parliament Acts in this case, as the bill would need to be reintroduced in a second session for the provisions to apply. Therefore, to pass the Withdrawal Bill and bypass the House of Lords the government would need to shorten the session, as it has currently been extended to two years ruling out the use of the Parliament Acts in time to meet the government’s withdrawal timetable.

However, it is not these formal powers which are of most interest to those seeking to understand the power of the House of Lords in the Brexit process. The real power of the Lords, as it is unlikely to push this bill to the Parliament Acts, is in its ability to draw attention to the substantial weaknesses in the Withdrawal Bill. Amendments moved by such respected figures as Lord Judge, Lord Pannick, and Lord Kerr of Kinlochard, are building pressure on the government in areas where is it most vulnerable. In addition, amendments with cross-chamber support further press the need for compromise. The marshalled list provides the amendments to be moved at Report.

Chamber of the House of Lords, Author UK ParliamentCreative Commons Attribution 3.0 Unported.

The House of Lords is unlikely to force passage of the Withdrawal Bill through use of the Parliament Acts. Rather the House of Lords has, is, and will bring significant pressure on the government through amendments moved this week. Whilst most peers remain conscious of the limitations of their authority, this will not preclude the House of Lords exercising its powers of scrutiny and revision.

The article gives the views of the author, and not the position of LSE Brexit, nor of the London School of Economics.

Dr Richard Reid is Associate Member, Gwilym Gibbon Centre for Public Policy, Nuffield College, University of Oxford and Europa Visiting Fellow, European Studies Centre, Ausątralian National University.

Majority (mis)rule and the problem with naturalisation for UK citizens in the EU

dora kostapoulouWill Britons living in other EU member states have the opportunity to naturalise? Dora Kostakopoulou says this would be a potentially fraught and divisive policy option, particularly for those living in states that do not allow joint citizenship. Instead, she argues, we should reconsider the legitimacy of a narrow majority vote that deprived millions of EU citizens, UK and non-UK, of fundamental rights and freedoms.

Would naturalisation in their country of residence be a suitable policy option for UK nationals who are living in EU member states? In answering the question, I make a basic assumption: that the principle of majority rule in public policy formation and law making is only one of the main conditions of democracy. The other two are respect for the rule of law and the protection of fundamental rights and freedoms, which are often constitutionally enshrined. In fact, the latter two conditions guide, shape and circumscribe electoral majoritarianism.

In this respect, making the latter the only and/or the overriding consideration makes it harder, not easier, to provide an adequate justification that a decision or a policy is democratic. To put it differently, the principle of majority rule does not have an unlimited scope in constitutional democracies: it excludes the power to alter rights and fundamental freedoms, or to deprive numerical minorities of their rights.

dutch naturalisation ceremony

Dutch naturalisation ceremony in Amsterdam, 2011. Photo: Kennisland via a CC-BY-SA 2.0 licence

This thinking applies to the Leave vote in the EU referendum outcome, and the Prime Minister’s decision to make it an authoritative mandate for Brexit. For the (slim) majority’s preference for the UK to ‘take back control’ – whatever this might mean – and thus leave the EU was not properly weighed against the loss of citizenship and residence rights by millions of EU citizens. Nor was the possible diminution in rights protection for all UK citizens and residents post-Brexit at the forefront of any concerns before and after the referendum.

Leaving aside my uneasiness about the existence of a democratic deficit if a slim majority can make authoritative decisions which can injure significantly a portion of the community and deprive it of their rights, including citizenship rights, by referendums – thereby evading the channels of accountability before representative assemblies – I would like to counsel caution to those who think that a gesture of allowing the naturalisation of all those citizens affected by Brexit could provide an adequate compensatory mechanism for the cancellation of EU citizenship and residency rights.

First, naturalisation laws in the 28 Member States vary, which would result in divergence and inequalities in the treatment of EU citizens. So do processing times and naturalisation rates across the Union.

Secondly, in those member states that do not permit dual or multiple nationality, the voluntary acquisition of the nationality of that state will result in the loss of their original member state nationality, thereby placing certain EU citizens in an invidious position. In an interconnected and mobile world, EU citizens tend to maintain their attachment to their country of origin where they have close family members and/or property. Interestingly, in the EU, 22 member states permit multiple nationality, while Denmark, Norway, Estonia and Lithuania require the renunciation of the former nationality upon the voluntary acquisition of their nationalities – without exceptions.

Thirdly, it would be difficult to justify the conversion of EU citizens into nationals through tests, classes, oaths and citizenship ceremonies. The new taxonomy of citizenship consisting of the ‘ins’ and ‘outs’ will be seen to be an unnecessary and costly imposition on all those citizens affected by Brexit who have been incorporated into host societies, and have been treated as rightful participants until now.

It is also likely to damage societal relations and create narratives of ‘othering’, since current members would be seen as unworthy of membership unless they naturalise. Creating hierarchical relations which treat existing members having a secure residence and free movement rights as non-members – and thus as inferior – entails a denial of recognition and respect. In addition, by creating a new positional relativity which would invite executive discretion, that is, the rejection of naturalisation applications from EU citizens who are deemed to be ‘undesirable’ or ‘not yet ready for full inclusion and citizenship’, the evolutionary sequence of naturalisation may look at first sight incorporative –  but, in reality, is founded on distancing, separation and, quite likely, on discrimination.

Exempting UK nationals from the normal naturalisation procedures and facilitating their automatic or semi-automatic naturalisation by registration or by declaration of option are certainly preferable. This would require an application for citizenship, but the process would be quick, more inclusive and non-discretionary. The EU member states could in theory still require residency requirements and the absence of a criminal record. They could also differentiate among periods of residence. For instance, residence for a period exceeding ten years could prompt automatic naturalisation, while shorter periods of residence would activate semi-automatic naturalisation. Naturalisation by declaration of option, on the other hand, would grant EU citizens the possibility of opting out from national citizenship if they wish to retain or not to compromise in any other way their national citizenship.

Although there are important differences among the policy options mentioned above, the latter is more normatively defensible -bearing in mind EU citizens’ existing rights and effective links with the societies of residence. However, even this option does not answer adequately the question why national citizenship should be superimposed on EU citizenship, thereby (re-)making nationality the basis of political membership and identity in contemporary Europe.

Let me conclude by returning to the difficulty I identified in the opening paragraphs of this post: namely, that the unrestrained operation of the principle of majority rule subverts, rather than advances, democratic political processes. Certainly, when a ‘pro-Leave’ majoritarian decision leads to millions of people being deprived of their rights, effectively undermining their life worlds and the future of their families, then there is no reason for thinking that it deserves to be respected by all those who believe in the value and the rights-affirming nature of constitutional democracy.

The domestic electoral cost of aborting Brexit cannot outweigh the political costs of damaging democratic constitutionalism and cancelling rights. Nor can it compensate for the unnecessary hardship inflicted upon millions of individuals, including 1.2m British nationals living in the European Union. It would be highly imprudent to consent to, or accept, such a (slim) majority misrule.

This post represents the views of the author, who is writing in a personal capacity, and not those of the Brexit blog, not the LSE.

Dora Kostakopoulou is Professor of European Law, European Integration and Public Policy at the University of Warwick.

EFTA’s model of compliance would struggle to accommodate the UK

morten kinanderWould the Norway model mean the UK was subject to the rulings of a foreign court? Morten Kinander (Norwegian Business School) responds to Øyvind Bø’s recent post for LSE Brexit. Yes, EFTA states are subject to the decisions of their Surveillance Authorities, but they are not formally bound by them in the sense that the state is subject to sanctions. This is an important distinction because it shows why the EFTA system is able to accommodate the sovereignty of its members. Yet EFTA was not designed for an ever more powerful supervisory structure, and it would struggle to incorporate the UK. This presents a welcome opportunity to refurbish the whole EFTA-pillar.

Judge Øyvind Bø’s competent response to my piece about Brexit, financial markets, and the Norwegian model seems to express relative agreement with my main point: that the UK has little hope of bargaining its way into passporting rights and special deals. Gaining access to the EU financial markets is a question of fitting into a supervisory system that has evolved into a semi-constitutional structure, with necessary supranational elements. In such a system, special exceptions make little sense.

He has, however, two issues with my article, one concerning the EFTA Court and the other concerning the EFTA Surveillance Authority.

aalesund norway

Aalesund, Norway. Photo: Les Haines via a CC BY 2.0 licence

Concerning the EFTA Court’s and the binding effect on Norwegian law, Bø is right to point out that I may have underplayed the function of the EFTA Court’s decisions in Norwegian law. Decisions that are not merely advisory according to the Article 34 of the Surveillance and Court Agreement (SCA) (which make up the majority of the decisions), are binding in the sense that the EFTA States are required to take all “necessary measures” in complying with the judgments of the Court, cf SCA Art 33. However, the Court itself lacks sanctioning capacity, and compliance is more a question of political choice than a legal obligation. Yes, the EFTA Court has in one sense binding effect in Norway, but surely, from a sovereignty perspective, being subject to the EFTA Court is a far cry from being subjected to the CJEU, even though the EFTA Court is set up to imitate the CJEU.

Concerning the EFTA Surveillance Authority, Bø claims that the EU ESAs’ opinions are essentially binding. As he says:

“Annex IX to the EEA Agreement states that whenever the ESAs issue draft decisions to the EFTA Surveillance Authority, the latter ‘shall, without undue delay’ adopt the relevant decision. The wording clearly suggests that the EFTA Surveillance Authority is under a legal duty to adopt a decision whenever the ESAs issue a draft. Arguably, the role of the EFTA Surveillance Authority is to adapt the draft, which has been drafted within the framework of the EU, to the framework of the EEA Agreement, and not to reconsider the underlying substance of the decision.”

The crucial point here is the phrase “under a legal duty”, which reveals a disagreement between Bø and myself: The claim that the EFTA Surveillance Authority is legally obligated to make certain decisions overlooks the centrality of the formal aspect in making the whole structure work from a sovereignty perspective. As the Norwegian Ministry of Finance said when presenting the arrangement: “EFTA’s Surveillance Authority will, however, have no legal or in any way formal duty to make a decision with a certain specific content when a draft has been received” (Prop 100 S (2015-2016), p. 14, emphasis mine). Obviously, if the EFTA Surveillance Authority or any of the EFTA States do not make a corresponding decision, the whole structure will likely fall apart, and with it potentially the EEA Agreement. So yes, in a sense the EEA EFTA States are bound by decisions of the ESAs, but this binding is a political and not a legal one, although the distinction is formal to the point of absurdity.

My main point, however, is that this hyper-formality performs a central task: The EEA EFTA States are not formally bound by the EU ESAs (and at least not by the CJEU) and as they get to influence the rules to a far greater extent than is the case for non-EEA EFTA States. That formality achieves, in other words, the crucial “selling case” of the structure, and provides a model of less subjection, although not as little when viewed from a purely formal perspective.

In a broader sense this precarious structure simultaneously presents an opportunity to rebuild the system, since it is far from ready to include an independent-minded and sophisticated player such as the UK. For example, as was (part of) my point; non-compliance does not carry a legal stick, as compliance turns on political risk of disagreement in the Joint EEA Committee, where the EU has the heaviest hand. In other words, the decisions of the EFTA Court have such a high degree of compliance in the EEA EFTA States due to the politically asymmetric status of the current EEA EFTA States.

Underlying this is the fact that the whole system was not designed for its current modus operandi with a supranational and ever more powerful supervisory structure, making decisions directly applicable in the Member States. The EU pillar seems to manage this, as the much-needed powers and regulations drafted by the EU ESAs are formally enacted by the Commission – thus complying with the conditions of delegation according to the Meroni-doctrine, with the CJEU being a true court of justice at the apex. The EFTA pillar, on the other hand, and along with it, the EFTA Court, is not designed to carry this weight, especially with an ever more powerful supervisory system that depends upon direct effect in the national markets.

The fact that the system is unfit for the direct and unchanged inclusion of a player like the UK gives Britain an opportunity to focus on remodelling the two-pillar structure according to its own preferences.

This post represents the views of the author and not those of the Brexit blog, nor the LSE.

Morten Kinander is Professor, dr.juris at the Norwegian Business School, BI, and Director of the Center for Financial Regulation.

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