May’s Brexit setup denies remaining EU states what she wants to recover for Britain: sovereignty over their nation(als)

As the Brexiteers slogan “take back control” clearly shows, the taking back of government control not only over your own territory, but also over the whole of your population, nation, (in short: “national sovereignty”)  is a central plank in the whole, over-ambitious and under-estimated, undertaking that is Brexit.

But in Theresa May’s proposed treatment of EU citizens in the UK, she in two ways denies the governments of the continental states who, very sensibly, choose to remain in the EU (and, conversely, some British citizens) what she herself wants to “take back from Brussels’ clutches”: national sovereignty.

She does that first by insisting that the fate of EU inhabitants of the UK will exclusively be decided by British courts (and authorities), and that London will (negotiating with  Brussels) co-decide the cutoff date of the 5 year term you need to get a “settled status” in the UK.

And, because she and Brussels agree that it will be a mirror image operation, the fate of UK citizens in continental EU states is thus left to their respective national courts. Well, the courts in Poland and Hungary are being transformed into the servants of regimes that have heavy prejudices against fundamental West European and British values like the Trias Politica of separate powers, liberal democratic values, western education (George Soros’s university) and women’s rights (work beside family life, abortion). The less agents, carriers of western ideals and freedoms living in Poland and Hungary, the better, is the way Orban and Kaczyński think about guarding what they call the sacred “National Identity” of their “embattled” nations. See the way they marginalized liberal opposition amongst their own citizens, and how Kaczynski’s people humiliated Tusk (and Orban the professors/students of Soros).

In handing to British courts/authorities the decision about whether (and to what degree) EU citizens in Britain get similar rights as native Britons,  May amputates or usurps the sovereignty and responsibility of continental EU governments over all their citizens, especially those in the UK. And by implicating that the fate of UK citizens in continental EU states could be decided by the national, native (if not: nativist) courts, she gives foreign  judges say over British citizens about something as fundamental as continuing to live and work in families, neighborhoods, communities, in EU countries they’ve come to know, love and trust.

Let’s get back to first principles:

  • don’t do unto others what you don’t want to be done to yourselve(s), and
  • give all European expats: both the EU citizens in the UK, and the British in continental Europe, exactly the same treatment in judging whether they’ll be allowed to stay where they have chosen to live and work.

The simplest way to do and guarantee that equal treatment and equality of judicial (and social) position:

  • let the European Court of Justice judge both groups of cases simultaneously.

 

* Bernard Aris is a Dutch historian (university of Leiden), and Documentation assistant to the D66 parliamentary Party. He is a member of the Brussels/EU branch of the LibDems.

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37 Comments

  • Is it not a generally accepted principle that if you go to another country (either temporarily or permanently), you put yourself under their laws and their courts?

    Imagine if I went to the USA, was arrested, and tried to defend myself on the grounds that what I had done would not be a crime in the UK! Would anyone think that was reasonable?

  • George Lund 28th Jun '17 - 6:25pm

    Despite desperately hoping that this country stays in the EU, I can’t see how ECJ jurisdiction is tenable should we leave.

    EU citizens should have the same rights as British citizens – but not more.

    The simplest way to achieve that equality would be to offer British citizenship, at no cost other than that of a passport, to anyone that applies and has met the residency criteria.

  • Yes, Dav, it is a generally accepted principle. If I went to live in India, or Australia, I would not be protected by UK (or indeed EU) law there, as I would be outside the jurisdiction. I would be subject to Indian or Australian law [delete as appropriate]. When in Rome, as they say.
    Bernard has gone wrong in his first paragraph, where he wrongly stated that a central plank of Brexit was about getting sovereignty back not only over our territory but also the population, or nation. But this is incorrect. It was always and only about taking control of the laws that take effect in this jurisdiction, and this one alone: it was never about controlling anyone beyond these shores, wherever they are in the world.
    Maybe the proposed reciprocity deal has muddied the waters a bit. There is no question of the UK “denying” other European governments “control” over their citizens here – Brexit is merely a recognition that when their citizens are here, they are under British law only, and when UK citizens are in eg Poland, they are under Polish and EU law. Just like Americans or Canadians would be.
    Hope that’s cleared that up.

  • Bernard, I’m not sure what point you are trying to make.

    Fundamentally the issue of non-UK EU national’s living in the UK and UK nationals living in EU countries can be resolved in one of two ways:
    1. Do nothing and wait until the UK leaves the EU, at which point there is no such thing as “non-UK EU national’s living in the UK”, there will only be French, German, Dutch, Polish etc nationals living in the UK. Similarly, UK nationals currently living in the EU will lose their ‘EU’ status and become UK nationals living in France, Germany, Spain etc. Thus the status of individuals living outside of their home nation will be subject to agreements between the UK and the 27 (sovereign) national governments of the remaining EU members – note the absence of EU involvement in these agreements.
    2. Negotiate an agreement with the EU, which is binding on the 27 members.

    From your post, it would seem the UK is trying to negotiate an agreement with the EU (option 2) concerning those non-UK EU nationals currently living in the UK, whilst recognising the post-Brexit reality that option 1 represents.

    Given the obsession with ‘sovereignty’, I can’t see T.May et al. agreeing to anything that gives any EU institution any remit that could be seen as overiding Westminster…

  • Arnold Kiel 28th Jun '17 - 8:41pm

    I am with Bernard here, because foreign residents need long-term stability which is guaranteed by ongoing reciprocity. If peoples’ fate is quickly subject to legal and political volatility in 28 independent jurisdictions, this goal is being missed. If there is a long-term contract between the 28, ECJ-supervision would be a logical consequence.

  • Great to hear a Dutch perspective.

    Bernard, I should like to ask you why the EU is not doing more to stand up for the rights of EU citizens, i.e. us Britons at the moment?

    Here we have a Government acting in unacceptable and unconstitutional manner, mounting a referendum involving international treaties without consulting the other European countries are party to those treaties and who will be profoundly affected by the result.

    And then, when Vote Leave loses the referendum (by only gaining 37% of the electorate, far short of the accepted international standard of 60% for constitutional change), carrying on as if they won? Brexit is proceeding on false premises, so why is the EU colluding with this felony by negotiating with us?

  • A joint body is the only equitable solution as no single party to an agreement should get to unanimously decide whether the terms of that agreement has been met.

  • Mark Goodrich 29th Jun '17 - 1:43am

    Bernard is right about the best approach but one of the (foolish) things that May committed to in her Lancaster House speech was no ECJ. Hence, abandoning Brits to foreign courts is seen as necessary sacrifice to ensure this.

    It’s an interesting test of whether the EU is going to compromise by allowing another supranational body to do this (no chance of UK courts). If they don’t, UK is going to have to buckle or go for really hard Brexit. And this should be one of the easiest issues….

  • Mark Goodrich 29th Jun '17 - 1:46am

    @ John King – I don’t think the EU can refuse to recognise an Article 50 notification. But I am not sure that they see it really as a negotiation exactly …next weeks and months will be interesting.

  • Andrew Tampion 29th Jun '17 - 5:21am

    If the only fair and equitable way of protecting rights of EU citizens in the UK after Brexit is to grant jurisdiction to the ECJ over any dispute then it follows that the UK courts should have jurisdiction to resolve disputes over the rights of UK citizens living in the EU?

  • The writer and John King’s comments seem neither liberal nor democratic. Democracy involves asking people in a straightforward, non-manipulative way, what they would like to have done on their behalf. Liberals should accept peoples’ points of view. The people have spoken.

  • You can see the battle lines being set. Hard Brexit it is then unless a lot more give and take develops. How long before the Tory paymaster’s start to squeal and will the squealing make any difference to the brave Brexiteers.

  • The article seems to be placing unnecessary layers of complexity to this issue of ‘which law applies to me’. If I step off a plane somewhere in the world, the law of that place applies to me. If I’m wrong, can someone tell me where in the world I can go and pack my UK legal jurisdiction alongside my clothes and sunscreen?
    A case in point. Could a lady who moves from Scunthorpe to Belfast demand her rights to an abortion in Northern Ireland because she is technically English and therefore English law should apply to her, despite the anti-abortion laws that apply to everyone else in N.I.?

  • far short of the accepted international standard of 60% for constitutional change

    Where does this standard come from? Where is it accepted? Where is it written down? I don’t recall any such standard being applied to the 2011 referendum on changing the constitutional voting system to AV; should it have been? Should it be applied to any future referendums on Scottish independence or Northern Ireland Border Polls (it’s not mentioned in the Good Friday Agreement; do you think this makes the Good Friday Agreement illegal)?

    The second Irish referendum that ratified the Treaty of Lisbon only did so only got 39.6% of the electorate — does that mean the Treaty of Lisbon is illegal and the EU has itself been operating entirely illegally these past eight years or so?

  • David Evershed 29th Jun '17 - 10:31am

    Bernard Aris has set up a straw man (That the UK is trying to apply UK law to UK citizens overseas) and then shot it down.

  • Bernard Aris has set up a straw man (That the UK is trying to apply UK law to UK citizens overseas)

    It’s weirder than that — he seems to be saying that not that the UK is trying this but that the UK ought to be trying to apply UK law to citizens in Poland and Hungary because he doesn’t like the governments the people of Poland and Hungary have chosen.

    But if you go to another country, you voluntarily put yourself under the authority of the government chosen by the people of that country.

    And then he’s saying that because the UK ought (he thinks) to do this weird thing, that he admits it’s not trying to do and that nobody else is suggesting and that no other country in the world would do, ie, declare that it is overriding another country’s lawful authority with regards to its citizens, then it should allow the EU to do the same to it.

    It’s quite bizarre.

  • I wonder, does Mr Aris think that the UK should similarly declare that its citizens living in Saudi Arabia, or Iran, or Russia, should not be subject to the jurisdiction of their courts?

  • `Well, the courts in Poland and Hungary are being transformed into the servants of regimes that have heavy prejudices against fundamental West European and British values like the Trias Politica of separate powers, liberal democratic values, western education (George Soros’s university) and women’s rights (work beside family life, abortion). The less agents, carriers of western ideals and freedoms living in Poland and Hungary, the better, is the way Orban and Kaczyński think about guarding what they call the sacred “National Identity” of their “embattled” nations. See the way they marginalized liberal opposition amongst their own citizens, and how Kaczynski’s people humiliated Tusk (and Orban the professors/students of Soros).`

    interesting – so why are they still in the EU if they’re not carrying out fundamental human rights as you see it? Also, if people in those countries elect a government that has these things as its options what does that say about free movement and liberal values here?

  • Dav & James – What Bernard is leaving unsaid, but is clearly implied by his reference to national courts and the situation in Poland and Hungary, is that he does not trust the Dutch courts to determine “the fate of UK citizens” living in the Netherlands post-Brexit…

    Personally, I’m more concerned about the situation regarding free movement of labour (ie. visits of days/weeks/months) post-Brexit, as I have clients in the EU and currently, I can visit them just as easily as I can with my UK-based clients. However, visiting the US, putting the travel time to one side, I am never certain as to whether I will be able to enter the US and how much time I will be permitted to remain on each visit.

  • Bernard Aris 29th Jun '17 - 3:55pm

    I did NOT say that UK courts all of a sudden should be in charge of UK citizens living on the continent.
    I only say: if you want to treat expats on both sides of the Channel equally, both should be adjudicated in their living and residence rights bij the ECJ,
    #) not the EU citizens by the UK courts (of which they don’t know the ways and laws), #) NOR the UK citizens here in continental EU countries by those foreign courts (They likewise do’nt know the laws and jurisdiction, ways of doing justice in their host country neither).
    When both the UK and the continental EU countries transfer both kinds of cases to the ECJ, you get equality, one similar treatment instead of all different kinds of treatments by 27 + 1 courts.

    And Orban and Kaczinsky stay in the EU for the same single reason why Farage stays in the European Parliament: for the money, the euro’s… and for the perks that go with it. Nothing else.
    The difference is that Farage made certain that his EP stays ends in 2019; and Orban cum suis want to keep scrounging on the EU they verbally despise so loudly. At least Farage put his money where his mouth is, I can respect that more.

    By the way, every time Dutch news programs talk about the Brits after brexit, they present new Britons in the Netherlands, or Germany, or elsewhere in te EU who are taking out the passport of their country of residence, to be able to continue to travel, work and study freely everywhere in the EU.
    And when they talk about (and show) EU citizens in the UK, you hear and see despair at losing those free-moving privileges if, for certainty’s sake, they take out British citizenship. If they remain citizens of their country, they need some assurance after having been treated differently by the Home office from their British neighbours or even partners, spouses for the past year.

    As a good Liberal, I want 100% equal and similar treatment (and thus: equal chances and rules) for everybody, UK expats here and EU expats in the UK; who or what you are shouldn’t make adifference.

  • if you want to treat expats on both sides of the Channel equally, both should be adjudicated in their living and residence rights bij the ECJ,
    #) not the EU citizens by the UK courts (of which they don’t know the ways and laws), #) NOR the UK citizens here in continental EU countries by those foreign courts (They likewise do’nt know the laws and jurisdiction, ways of doing justice in their host country neither).

    But surely, anyone who moves to a foreign country should expect to be under the jurisdiction of that country’s courts, and should make it their business to learn the ways and laws of their country of residence — or accept the consequences if they don’t?

    Which courts would you expect to have jurisdiction over a citizen of the UK, or of France, in the USA? The UK courts, the French courts, the ECJ, or the American courts?

    I think you’d be laughed at, and rightly, if you suggested any answer but the last.

    The equal treatment for everybody is: everybody is equally subject to the jurisdiction of the lawful authorities wherever they are.

  • Joseph Bourke 29th Jun '17 - 4:31pm

    I think this article rather misses the point. EU nationals will go wherever they please regardless of what the UK or ECJ does or doesn’t do. The big problem for the UK is keeping them here, so that the financial services economy and construction sector in particular are not left scrambling for the skilled labour they need as this article notes http://www.cityam.com/267505/one-six-london-workers-eu-nationals-employers-warily-eye#r3z-addoor .

  • David Allen 29th Jun '17 - 6:43pm

    “Surely, anyone who moves to a foreign country should expect to be under the jurisdiction of that country’s courts?”

    Broadly yes – But – When millions of people made use of the EU free movement provisions to migrate into or out of Britain, they trusted governments who told them they had both the right to settle and the right to return. That’s rather different from moving to a “foreign” country, knowing that your rights to settle may be restricted unless you apply for naturalisation, and that if you do that, your rights to return may instead be restricted.

    Britain, and the EU, could now both turn around and say “Tough luck, we’re not going to maintain your rights.” But that would just needlessly harm the lives of millions of British and continental Europeans. So we should agree a reciprocal deal to avoid doing that.

    The question is how that deal shall be guaranteed. Here, I can’t help feeling that the Dutch OP is being rather disingenuous in raising as his primary concern the supposed risks to Britons in Hungary or Poland. I’m sure that the real concern on the EU side is that Britain will agree an offer to continental European citizens as part of the Brexit deal, and will then tear it up (or gradually weaken it) once Brexit has been completed.

    That is not an unreasonable fear. However, telling Britain that a European Court must have all the power, and the British courts none, is not a reasonable answer!

    This deal (if it has to happen) should be guaranteed by a supranational body. If it isn’t, it won’t be trusted. If itn isn’t trusted, it will break down. It might indeed kick off with the Hungarians being beastly to some of their Britons. Then our brave Brexiteers will retaliate. Then the EU will persuade the Spanish to make life very difficult for the Brits on the Costas. Then there will be racial conflict on our streets and mass emigration of EU nationals from Britain. That’s how much it matters.

  • The main issue I have is the settler status. EU people in UK should be given indefinite leave to remain and a fast track to dual British nationality if they want it and if their state allows dual nationality.

  • David Allen – yes, you are right in part but the question of guaranteed status is simpler than you suggest. If a French or Dutch (i.e. EU citizen) married a Canadian, say, and went to live in Canada, they would be living under Canadian law and the ECJ would have no say in their position at all. The EU citizen’s rights to live in Canada would be a matter for the Canadian authorities. I am sure most EU countries and their citizens trust the Canadian courts. When the UK is outside the EU, the UK will be in an equivalent position.
    Obviously because we are moving towards this set-up from within the EU, where all citizens had free movement rights and there are EU people who have made their homes here and vice versa, it is only right that their special position should be protected as far as is reasonable. The Leave campaign made crystal clear before the vote that people already here would allowed to stay, as Brexit is about law to apply from March 2019 on, not before. So those people are to get special concessions to stay on, in a way that new arrivals won’t. The aim is for UK citizens already living in France, Spain etc to be given equivalent special dispensation.
    There is no question of the UK reneging on whatever is agreed, or simply changing the law when it suits. Whatever is agreed will be in a treaty. Although the UK may terminate its treaties, it does not breach them, and such a breach would in any event see the UK before the international courts. There is no need for a new supranational court to oversee it.
    The suggestion that the UK courts cannot be trusted is, frankly, outrageous, in the same way that a similar suggestion about the Canadian or NZ courts would be – or, indeed, if Canada suggested that a supranational court should have power to oversee the interest of its citizens living in an EU country, because it does not trust the ECJ.

  • “When both the UK and the continental EU countries transfer both kinds of cases to the ECJ, you get equality, one similar treatment instead of all different kinds of treatments by 27 + 1 courts.”

    It is not equality because one side controls the make up, membership, and charter of the ECJ the other is merely a recipient of their decisions. A joint EU – UK body would be the answer.

  • Bernard Aris 30th Jun '17 - 11:03am

    @Steve Way

    it is NOT True that one side fixes the rule and the Britons have to wait outside the door; you seem to forget that legally you are FULL EU member at least until March 2019 (I strongly suspect the exit will need even more time and an extension will be agreed).
    As long as you are full member (and one of the big 5 or 7 among the 27) you have every opportunity to alter the rules if necessary, and to monitor how the present rules are applied.

    The only people who couldn’t do a thing about the change in their situation are for example the 80.000 Dutch people in Britain who could not vote in the Referendum; and they still bitterly resent that, as an interview with four of them last Friday in the big Dutch daily De Telegraaf tells us.

  • As long as you are full member (and one of the big 5 or 7 among the 27) you have every opportunity to alter the rules if necessary, and to monitor how the present rules are applied

    And after that?

    It simply doesn’t make sense to have the referee playing for one of the teams, which is effectively what you’d have once the UK is independent, if the ECJ were to be the court of final appeal.

    Once again: do you not think you’d be laughed at if you suggested that a French citizen in the USA should be able to get the ECJ to overrule the American courts when they rule on her status?

    How is that different from this case?

  • “The suggestion that the UK courts cannot be trusted is, frankly, outrageous”

    The UK courts can be trusted to uphold UK law, which can be changed from time to time by UK governments.

    “Whatever is agreed will be in a treaty. Although the UK may terminate its treaties, it does not breach them, and such a breach would in any event see the UK before the international courts.”

    True insofar as a treaty would cover the relevant points. A treaty would no doubt enshrine the “settled status” of EU nationals in the UK, but would it stop a future government changing all the detailed provisions (rights to work, study, travel, etc) which would apply? It could not do that. Any treaty would have to allow future UK governments to make rational changes to things like workers’ rights – if it didn’t, then we would have signed away a lot of “sovereignty” to a Brexit Treaty! And, given that a treaty would have to allow reasonable latitude to a reasonable government, it would inevitably allow similar latitude to an unreasonable government which had decided to make life so tough for EU nationals that most would have to leave the country.

    “It is NOT True that one side fixes the rule and the Britons have to wait outside the door; you seem to forget that legally you are FULL EU member at least until March 2019 … As long as you are full member … you have every opportunity to alter the rules if necessary”

    Er yes, and after March 2019 all that falls apart, doesn’t it?

    Come on guys, admit it. Brexit, if it happens, must be governed by a supranational body!

  • And, given that a treaty would have to allow reasonable latitude to a reasonable government, it would inevitably allow similar latitude to an unreasonable government which had decided to make life so tough for EU nationals that most would have to leave the country

    Is that not just a risk you always take when you move to a foreign country? I mean, if you moved to the USA, what is to stop them electing an unreasonable government which decides to make life so tough for UK nationals that most would leave the country?

    There are issues to do with what’s a reasonable and what’s an unreasonable change, but fundamentally, just like every back account or utility contract includes a clause about terms and conditions being subject to change (with notice and with the option to cancel), so does every contract between you and a foreign country you move to.

  • Bernard Aris 30th Jun '17 - 11:35am

    The fundamental difference between
    #) moving inside what is UNTIL 2019 the EU and
    #) moving to countries outside the EU
    is and renmains that as long as you stayed inside the EU you expected on very good legal grounds to be treated equally. Thatcher, no Europhile by any means, accepted that as part of the Common Market.
    If you want to see the difference, look at Trump with his travel bans, his Big Wall rhetoric, and his razzia’s of illegal Latino’s. NAFTA law doesn’t imply equality as inhabitants; EU law does.

    And the four Dutch women interviewed by De Telegraaf (see my response above) all say that since the Brexit Referendum they had no say in, they all feel being treated differently both by the Home Office (85 page forms to fill in) and by British people standing in the same queue in banks or supermarkets.

  • The fundamental difference between
    #) moving inside what is UNTIL 2019 the EU and
    #) moving to countries outside the EU
    is and renmains that as long as you stayed inside the EU you expected on very good legal grounds to be treated equally

    Fundamentally, though, you were still moving to a foreign country, weren’t you? And therefore accepted the risks inherent in moving to any foreign country. Including the risk that that country might cease to be a member of the EU — and it’s not as if that was an unforeseeable risk, the idea of Britain leaving the EU has been floating about for decades.

    It’s no different from moving to the USA, or Canada, and the government there changing.

  • Bernard “As long as you are a full member (and one of the big 5 or 7 among the 27) you have every opportunity to alter the rules if necessary, and to monitor how the present rules are applied.”

    The problem is that for many Brexiteers, our membership of the EU is not seen as an “opportunity to alter the rules”, but as a transfer of “sovereignty” to Brussels… Similarly, any external body that is seen to possess powers that can overrule Westminster will also not go down well.

  • “Fundamentally, though, you were still moving to a foreign country, weren’t you? And therefore accepted the risks inherent in moving to any foreign country. Including the risk that that country might cease to be a member of the EU — and it’s not as if that was an unforeseeable risk…”

    In formal logic, there is a partial truth in this argument. If Brexiteers who hate foreigners decide that they want to make use of their (projected) new-found capabilities to make life tough for them, they can do so. Though they might find themselves laughing on the other side of their faces when Britain is invaded by an army of disgruntled pensioners moving back from Marbella to Margate, and opening up a new anti-Brexit front within the UK!

    Then again, we could pursue a reasonably civilised Brexit, in which we don’t cause unnecessary problems either for British or for continental European expatriates. If, that is, a civilised Brexit is what Brexiteers want.

  • Bernard Aris 30th Jun '17 - 12:39pm

    The big difference is that for example, the EU in the 1990’s/’00’s incorprated the European Convention on Human Rights (from the Council of Europe, an wholly distinct European institution) in the EU treaty infrastructure; that has not happened with any other group of states anywhere in the world.

    And it remains to be seen if a wobbly coalition government (they are so scared of Corbyn they won’t dare hold a second election for years) will be able to extricate the UK from all EU bonds Mrs. “No Deal better than Bad Deal” May all of a sudden so abhors, after playing the Remainer until the morning after the Brexit Referendum…

    And if hunderds of thousands British pensionados repatriate from the Spanish costa’s to the UK, wehere in de world can they be housed? They have to take the “Road to Wigan Pier” which as we all know never existed…

  • The big difference is that for example, the EU in the 1990’s/’00’s incorprated the European Convention on Human Rights (from the Council of Europe, an wholly distinct European institution) in the EU treaty infrastructure

    You’ll have to explain the relevance of that. Lots of states outside the EU are also signed up to the ECHR. It doesn’t, for example, prevent Switzerland, which is signed up the the EHCR, from changing its rules. Why would it prevent the UK, or any other state which leaves the EU in the future, doing so?

  • `As long as you are full member (and one of the big 5 or 7 among the 27) you have every opportunity to alter the rules if necessary, and to monitor how the present rules are applied.` I heard a comprehensive view of this on migration on DP today. Essentially an EU citizen could have to gain employment within 6 months OR there could be an emergency brake on employment sector by sector basis. The real issue is not whether or not EU citizens find employment it’s that there are not enough unskilled jobs to go round for those whom are British. The welfare system needs root and branch reform to fast track people into work whom are newly unemployed yet that provides very difficult questions on putting British citizens first, persuading employers to give people a chance and work coaches getting off their arses from the JCP and matching unemployed people with jobs with perhaps 3 month contracts and ongoing training so that they meet their potential.

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