The EU’s attempts to crowbar the ECJ into the deal on citizens’ rights will wreck the negotiations

The EU’s attempts to crowbar the ECJ into the deal on citizens’ rights will wreck the negotiations

The almighty row over the Juncker dinner leaks followed by the unceremonious slinging of the €100 billion euro ‘bill’ onto the table for good measure have, if anything, served to mask what may turn out to be an altogether nastier spat over how EU citizens’ rights in the UK, and vice versa, are resolved after Brexit.

The most concerning thing about Barnier’s press conference on Wednesday was not so much his insistence on Britain signing up to an “uncontestable” Brexit bill, his talk of “illusions” that the talks could be “quick and painless”, nor even awkward hiking metaphors (presumably made in good faith), but instead the number of times he mentioned the words “European Court of Justice”.

Any slim hopes that this might be a repeated slip of the tongue were firmly put to rest by the accompanying negotiating directives published by the European Commission, which repeatedly name the Court of Justice of the European Union (i.e. the ECJ and its sister ‘General Court’) as the EU’s desired legal authority to enforce the exit agreement. However, it is not only mentioned in terms of enforcing Britain’s payment of its ‘Brexit bill’ – which I looked at in detail yesterday – but far more problematically, as the legal arbiter of the continued rights of EU citizens in the UK after Brexit.

Why is this such a problem?

The ECJ is not like other international courts. It has unprecedented power to make legally binding judgements across the 28 current member states of the EU, overruling national laws whenever they come into conflict with EU law. Indeed, it is the legal supremacy of the ECJ over British courts, deriving from the European Communities Act 1972, which has arguably been the most fundamental source of rational opposition to the EU over the decades. As long as the ECJ is in control, the UK is not.

And, unlike other supreme courts, neither is the ECJ bound to uphold long-standing constitutional principles, whether developed through centuries of common law as in the UK or politically neutral constitutions as in Germany or the USA. Rather, the ECJ’s fundamental raison d’être is to uphold the EU Treaties – treaties which even the most blinkered euro-federalist would surely acknowledge are not politically neutral entities. In this regard, the ECJ often functions as little more than an offshoot of the European Commission, essentially engaging in judicial activism on its behalf.

Taking the EU’s expectable but otherwise unconvincing attempts to claim that the size of the Brexit bill will be an immutable fait accompli with a healthy-sized pinch of salt, the magnitude of Britain’s final exit payment will naturally be a variable quantity up for negotiation, whether one is of the opinion that it ought to be zero, negative, or even a zillion euros (would the EU brandishing an entirely made-up number this week really have made any difference?)

The jurisdiction of the ECJ, on the other hand, is not a variable quantity like this – either it continues or it doesn’t. Theresa May has made the latter option a red line and rightly so. The EU has demanded no ‘cherry-picking’ and no sector-by-sector access to the single market, so why would it make sense to accept some sort of sector-by-sector jurisdiction of the European Court? The Great Repeal Bill will accordingly end the supremacy of EU law over British law – that is, assuming that the UK is not forced to resubmit to the ECJ by any elements of the withdrawal treaty as the EU is now calling for.

This would be a difficult enough problem to resolve if this dispute over ECJ competence was confined to payment of the Brexit bill. The fact that the EU is demanding a major role for the ECJ in the preservation of existing rights for EU citizens currently living in the UK has the potential to blow up into something altogether uglier.

This was meant to be the easiest issue of the negotiations to resolve. Both sides have an overwhelming political and human imperative to do so. Reaching a straightforward reciprocal agreement was expected to be little more than a formality once the talks officially got underway. Theresa May made numerous offers to bilaterally settle the issue many months ago in advance of the negotiations, but was repeatedly rebuffed by Angela Merkel and other individual EU leaders parrotting their trite “no negotiation before notification” line.

Now, we perhaps have a much clearer indication of precisely why they were unwilling to agree to an early guarantee – the EU will not accept any agreement about the rights of citizens, British or European, unless it is allowed to crowbar its pernicious legal arm back into the picture.

Whether out of sheer arrogance, contempt for the British legal system or simply as a result of thinking which is unable to escape the euro-institutional box, the EU is actively turning almost 5 million people into ‘bargaining chips’ in the negotiations. Theresa May has been abundantly clear for months that Britain will not be attempting to remain inside the single market or the jurisdiction of the European Court of Justice, precisely to avoid the mass of legal complications that would ensue on both sides from a highly convoluted and messy agreement that ended up ‘cherry-picking’ different aspects of EU law.

By explicitly demanding that ECJ jurisdiction is maintained over citizens’ rights, this essentially amounts to a wrecking demand from the EU, and one which is completely at odds with their own policy of implementing a clean break. If the EU are so desperate to preserve the integrity of their Union and single market, then why are they so determined to keep the UK within its legal structures?

We should perhaps give the EU the benefit of the doubt that their thinking may simply be muddled on the issue. If not, then it is hard to deny that they are knowingly creating an impasse from which no guarantees on citizens’ rights can be secured.

Let us look at what the EU’s negotiating directives specifically say (emphasis added):

  1. The Agreement should safeguard the status and rights derived from Union law at the withdrawal date, including those the enjoyment of which will intervene at a later date (e.g. rights related to old age pensions) both for EU27 citizens residing (or having resided) and/or working (or having worked) in the United Kingdom and for United Kingdom citizens residing (or having resided) and/or working (or having worked) in one of the Member States of the EU27. Guarantees to that effect in the Agreement should be reciprocal and should be based on the principle of equal treatment amongst EU27 citizens and equal treatment of EU27 citizens as compared to United Kingdom citizens, as set out in the relevant Union acquis. Those rights should be protected as directly enforceable vested rights for the life time of those concerned.

So far, so straightforward – up until the last sentence. The bulk of this clause simply spells out the what the reciprocal continuation of existing rights will look like. The harbinger of trouble ahead lies in the phrase “directly enforceable”, with the ‘direct enforcement’ to be done by the EU, via the ECJ.

  1. (a) Definition of the persons to be covered: the personal scope should be the same as that of Directive 2004/38 (both economically active, i.e. workers and self-employed, and inactive persons, who have resided in the UK or EU27 before the withdrawal date, and their family members who accompany or join them at any point in time before or after the withdrawal date)…

This is likely to be a major crunch point in itself, quite apart from the broader legal issues. On the face of it, it may seem excessive that a guarantee which is meant to cover EU citizens who are already resident should also be extended to their families who are not. Yet it is undeniable that their current rights under EU law, whether the UK likes them or not, do extend freedom of movement to their whole families. A thorny issue all round, but not intractable.

(b) i) … any document to be issued in relation to the residence rights (for example, registration certificates, residence cards or certifying documents) should have a declaratory nature and be issued under a simple and swift procedure either free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents.

This clause is essentially a backhanded dig at the reported administrative difficulties EU citizens have been confronted with when applying for permanent residency in the UK – as they are already entitled to do under existing legal provisions. Promptly addressing this issue is frankly an easy win-win for the UK – it prevents any potential damage to the UK’s image abroad, it simplifies the process for something which is going to happen anyway, and happen many times – and it reduces the administrative burden on Whitehall in doing so.

ii) the rights and obligations set out in Regulation 883/2004 on the coordination of social security systems

No attempts to cut existing levels of benefits for EU citizens, just in case you were thinking about it.

  1. The Agreement should include provisions ensuring the settlement of disputes and the enforcement of the Agreement. In particular, these should cover disputes in relation to the following matters:
  • continued application of Union law;
  • citizens’ rights;
  • application and interpretation of the other provisions of the Agreement, such as the financial settlement or measures adopted by the institutional structure to deal with unforeseen situations.
  1. In these matters, the jurisdiction of the Court of Justice of the European Union (and the supervisory role of the Commission) should be maintained.

So here it is in black and white. The EU will only agree to guarantee existing EU and UK citizens’ rights if the UK continues to accept the direct legal authority of the European Court of Justice and the European Commission.

This immediately throws up a huge number of difficult and unprecedented problems simply in terms of the basic jurisprudence of the matter, quite apart from whether the UK is prepared to enter into such an agreement or not.

First, it would essentially be creating two distinct legal classes of citizen in the UK – citizens who would be subject to UK law, and citizens for whom elements of EU law would take precedence over UK law. This could conceivably lead to situations where two people in Britain could break the same law but only one could actually be prosecuted for it, due to one being protected by a contradictory EU law. This would clearly be an absurdity.

There is also the issue of how the European Court of Justice itself could be expected to adjudicate in any consistent manner if EU law itself changed. It is all very well talking of a guarantee of legal rights as they exist now, but what is the ECJ meant to do if an existing relevant regulation or directive is repealed or amended by the EU in the future, not to mention the EU Treaties themselves?

Does the ECJ create a legal snapshot in time of exactly what the entire corpus of EU law, its own case law, and EU treaty law is on the 30th March 2019, to be referred back to in the event of a case in Britain arising, but which would be completely defunct and irrelevant in all other circumstances? Such an arrangement is also clearly a nonsense. Or will the UK simply end up in a position where it is forced to accept every new change in these EU laws in perpetuity, as Brussels continues to churn them out?

This also raises the issue of what the overall duration of this hotchpotch legal arrangement is liable to be. If current EU law is to apply to all current EU citizens and their families for their entire lifetimes, this agreement could easily extend for over 100 years given typical current life expectancies. Is the UK seriously expected to still be submitting to a 2019 version of EU law in 2119, assuming the European Court of Justice even continues to exist that far in the future? If the rest of the EU collapsed, would a rump ECJ need to set up camp in Calais in order to pop up every few months whenever a matter of EU law concerning them arose across the Channel?

In light of all this, it is extremely difficult to see how any sensible agreement can involve the ECJ in the way that the EU is demanding.

One possible, if somewhat radical, solution would simply be for the UK to grant British citizenship to all EU citizens living in the UK on the day of Brexit, and for all EU nations to do the same to Brits living there.

This would doubtless prove controversial, but it would, in theory, satisfy all the principal requirements of both sides. The EU citizens here would have all the same rights as British citizens by definition, by virtue of actually being British citizens, so this would instantly fulfil the EU’s insistence on a status which does not discriminate between EU and UK citizens after Brexit.

Alongside this, it would bring those EU citizens entirely within the British legal system, and vice versa, eliminating any justification for setting up impossibly convoluted legal arrangements between competing jurisdictions.

The EU’s decision to include the European Court of Justice in its demands over citizens’ rights make them both unacceptable and fundamentally unworkable as they stand. There may well be other possible solutions which can be reached, but they are far from obvious if the EU is not prepared to rein in its legal ambitions. It must do so urgently if it is not to turn five million people into bargaining chips.