Archive for the ‘UK and European law’ Category

How the European Council can break the impasse and give EU citizens certainty

ruvi zieglerbrad blitzThe way that EU27 citizens in the UK have been used as bargaining chips in the Brexit negotiations is woeful. Unfortunately, write Ruvi Ziegler (University of Reading) (left) and Brad Blitz (Middlesex University and LSE), the EU has not helped matters by conceding that the rights of UK citizens living in the rest of the EU were negotiable, too. This undermines the principle of freedom of movement, which is a fundamental tenet of the EU. When it meets on 14 December, the European Council should end this deplorable state of affairs and guarantee the rights of UK citizens in the EU, thereby putting the ball squarely in Britain’s court.

Do EU citizenship rights matter? This is the question the European Council needs to answer when it meets this month.  The answer is vital not only to the Brexit negotiations, but to the future of the European Union itself.

Since the Maastricht treaty, signed just over 25 years ago, the right to the free movement of persons has formed the basis for substantive EU citizenship rights. Today, EU citizenship means much more than allowing EU nationals to work in another Member State.  In addition to a series of political rights, the scope of EU citizenship applies to dependents of EU citizens, and under certain circumstances to other family members as well.

Millions of people have moved across EU Member States where they have built careers, founded families, and established a social identity as EU citizens. As the European Parliament affirmed in October, EU citizens who took up residence in another EU Member State did so on the basis of rights under EU law and on the understanding that they would continue to enjoy those rights throughout their lives.

maria sharapova

Maria Sharapova serves at Wimbledon, 2009. Photo: Justin Smith via a CC-BY-SA 2.0 licence

That presumption is no longer secure.  As negotiations over the UK’s withdrawal gather pace, citizenship rights are also up for grabs.

Many blame Britain for this state of affairs. They have good reason to do so. In June, the UK government published a policy paper which suggested that the future rights of EU27 citizens currently in the UK depended on reciprocal commitments agreed with the EU institutions.  In her Florence speech in September, Theresa May offered to give protections for EU27 citizens living in the UK in the withdrawal agreement. What she did not say was that her government has inserted a clause into the UK’s EU (Withdrawal) Bill which, if passed unamended by the Westminster Parliament, would give a minister – not Parliament – free rein to limit or remove the rights that domestic law presently grants to EU27 citizens.

After eight months of negotiations, it is still difficult to divine the UK’s intentions. Theresa May’s cabinet have repeatedly contradicted her – and each other. When pressed in a radio interview last month she was unable to unequivocally assure EU27 citizens in the UK that, in the event of a ‘no deal’, their rights will be maintained.

Unfortunately, the UK is not alone. When the European Council agreed in April to enter into Brexit negotiations with the UK government, both sides conceded that citizenship rights were negotiable. The rights of EU citizens on both sides of the Channel were put on the table alongside the question of the UK-Irish border and the financial settlement of the UK’s obligations. As a result, rights are treated like tradable commodities. In its guidelines of 28 April 2017 authorising the withdrawal negotiations, the Council outlined the principle that ‘nothing is agreed until everything is agreed’ and that individual items including citizenship rights could not be settled separately.

By continuing with the current mandate, both the European Council and the UK government are potentially violating the rights of millions of EU citizens. As Dimitrios Giannopoulous has argued before the House of Lords’ EU (Justice) sub-committee, the creation of prolonged uncertainty and distress as a result of the Brexit negotiations may itself be a violation of the right to family and private life in Article 8 of the European Convention on Human Rights.

The way in which the negotiating mandate is implemented also conflicts with the European Parliament resolutions, which have repeatedly stated that any withdrawal agreement must incorporate the full set of rights citizens currently enjoy, on both sides of the Channel. The Parliament insists that the final agreement must ensure reciprocity, equity, symmetry and non-discrimination, for EU27 citizens in the UK and UK citizens in the EU27. The European Parliament has a veto: it can reject the Withdrawal Agreement.

This situation risks creating further long-lasting harm. Beyond the distress caused to some three million EU27 citizens in the UK and over a million UK citizens in the EU27, and beyond conflict between the EU’s institutions, the Brexit negotiations are damaging the EU as whole. Specifically, the conduct of the Brexit negotiations now imperils the right to free movement, one of the four fundamental pillars upon which the Union rests. If European Union institutions cannot guarantee the rights of EU citizens, then the costs of relocation and settlement in another Member State increase dramatically.  Why would you choose to make your life elsewhere, only to build a house on shifting sands?

There is still one chance left. The European Council, convening in December, can revise the mandate given to its chief negotiator Michel Barnier.  It can provide unilateral guarantees that the rights of UK citizens in the EU27 will be protected. Such a strategy would at least unblock the uncertainty and put the ball squarely in the UK’s court. A game that should never have been played may then be brought to an end.

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

Brad Blitz is Professor of International Politics at Middlesex University, Visiting Professor at the Institute of Global Affairs at the LSE and author of Migration and Freedom: Mobility, Citizenship and Exclusion.

Reuven (Ruvi) Ziegler is Associate Professor in International Refugee Law at the University of Reading, Academic Fellow of Inner Temple, and author of Voting Rights of Refugees. They advise New Europeans.

Logically flawed, morally indefensible: EU citizens in the UK are bargaining chips

This Brexit juncture is a critical moment for the Good Friday Agreement

In this blog, Katy Hayward and David Phinnemore (Queen’s University Belfast) highlight their current report on Brexit and the Good Friday Agreement, which they presented today at the European Parliament. They argue that thanks to Brexit the political trajectories of the UK and Ireland will increasingly diverge and that the current negotiation juncture, in particular, is a critical moment for the Good Friday Agreement and the future of British-Irish relations.

There are two distinct genres of language that are currently circulating around the topic of Northern Ireland/Ireland and the Brexit negotiations. The first is that of solutions: ‘flexible and imaginative’, ‘creative’, ‘unique’, ‘specific’, ‘unprecedented’. The second is that of cynical game-playing: ‘blackmail’, ‘hijack’, ‘ruse’, ‘bluff’, ‘reckless’, ‘veto’, ‘ransom’.

Perhaps this is to be expected in a process of negotiation – especially one that looks set to drastically alter a whole realm of close connections between two states with such a complex shared history. The stakes are high and political sensitivities (and rhetoric) have been cranked up accordingly.

But language matters, and there is a danger that the scope for those ‘flexible and imaginative solutions’ to address ‘unique circumstances’ will dissipate as a consequence of the misplaced framing of this debate as an age-old British/Irish dispute over the constitutional status of Northern Ireland.

The 1998 Good Friday (Belfast) Agreement did not ‘settle’ that dispute but it created strong grounds for accord between the UK and Ireland. It did so by recognising that political stability and peace in Northern Ireland can only come about through cooperation – not competition – between unionists and nationalists, both parts of the island of Ireland, and the British and Irish states.

UK withdrawal from the EU means that the trajectories of the UK and Ireland will now diverge

It is indisputable that common EU membership for the UK and Ireland provided an essential context for this arrangement and its effective implementation. The Agreement was premised on the assumption of common policies and interests across a wide range of policy areas. UK withdrawal from the EU means that the trajectories of the UK and Ireland will now diverge. This divergence will be wide-ranging and will happen in law, trade, security, rights, policies and politics.

LicenseAttribution Some rights reserved by robertpaulyoung, (Flickr).

The question immediately arises: what will happen to Northern Ireland? Early on in the Brexit process, all the main political parties in Northern Ireland recognised that change to the status quo poses significant risks for the region and each have on record their demand that the specific needs of Northern Ireland (particularly, but not exclusively, arising from the land border) be addressed in the withdrawal process.

This has to be addressed in Phase 1 of the withdrawal negotiations because the border is not simply a matter of customs controls and trade flows, important as they are for the economic stability that is (as the UK government acknowledges) vital to the peace process. Northern Ireland is but a small region; from agriculture and animal health to tourism and waterways – prosperity and efficiency are best secured and supported through frameworks of cross-border cooperation and interdependence. There really can be no ‘all or nothing’, UK versus Ireland choice that suits Northern Ireland’s interests.

Yet it is possible to keep to an absolute minimum the disruption that UK withdrawal will have in the context of interdependence so vital for the Agreement’s implementation. The model of differentiated integration within the EU, coupled with the precedent of territorial differentiation within the UK (evidenced both in the Agreement itself and the very fact of devolution), is key here. It provides a valuable departure point for the type of arrangements that would best reflect and protect the unique needs of Northern Ireland in the Brexit process.

From this, we see a range of options for maintaining the conditions necessary to uphold the Agreement. Based on maintaining properly secured and sustained regulatory convergence, it is possible to enable the continued operation of all-island markets and of cross-border supply chains. It is also possible to secure access to different forms of EU cooperation for both jurisdictions on the island of Ireland. It is even possible to retain the free movement of goods, services, capital and people on the island of Ireland. None of these options need to weaken or contravene the integrity of the UK or Northern Ireland’s place within it.

post-Brexit arrangements for the island of Ireland will be dependent not on technical solutions but on political will

Establishing the post-Brexit arrangements for the island of Ireland will be a process of negotiation. This process is entirely dependent not on technical solutions but on political will. The time has come for all parties in the Brexit negotiations to demonstrate that that will exists. The European Council in December is a critical moment. All eyes are on the UK and watching to see how far it is willing ‘to present and commit to flexible and imaginative solutions called for by the unique situation of Ireland’ and on how far it is willing to sign up to ‘principles and objectives regarding protection of the Good Friday Agreement’ of which it is co-guarantor.

It if fails to convince the EU27 – and especially the Irish government – of its flexibility, imagination and commitment on Northern Ireland, then the UK government runs the serious risk of the EU27 declaring once again that insufficient progress has been made for a move to the second phase and talks on the future UK-EU relationship. The time to complete the Article 50 negotiations is rapidly running out. The UK government can ill-afford further delays.

The best way to proceed is to present Northern Ireland not as a place of division but as a place of deep connection and integration between the UK and Ireland. This is the fundamental principle upon which the Good Friday (Belfast) Agreement is founded and upon which it stands or falls. Although this principle has been heretofore supported by the context of shared EU membership, Brexit need not mean its ruin.

Twenty years ago, Northern Ireland faced a similarly critical juncture. Now, as then, the language of solutions – ‘cooperation’, ‘creativity’, ‘partnership’, ‘flexibility’, ‘good faith’, ‘imagination’, ‘mutual respect’, and ‘concord’ – must come to the fore.

This article is based on our study for the European Parliament’s Committee on Constitutional Affairs, UK Withdrawal (‘Brexit’) and the Good Friday Agreement. It is available to view/download from the European Parliament website and from the Queen’s on Brexit website.

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

Katy Hayward is Reader in Sociology & Senior Research Fellow, Senator George J. Mitchell Institute for Global Peace, Security and Justice at Queen’s University Belfast.

David Phinnemore is Professor of European Politics in the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast.

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