Thursday, December 15, 2016

Ruling on acquired rights

From Hansard, here.

The EU Justice Committee has publishes a report on Brexit "acquired rights."

Key findings

The Justice Sub-Committee's report, "Brexit: acquired rights" concerns EU citizenship rights. These are fundamental rights under EU law to live, work, study, and raise a family in an EU Member State of one’s own choosing.

There was much talk before the referendum that these rights would somehow be protected as "acquired rights". This was misleading. If the UK wants to preserve certain EU rights on withdrawal, it will have to ensure they are safeguarded in the withdrawal agreement.

The majority of the safeguarded rights are likely to be reciprocal with EU rights. The report recommends that a mechanism be established to ensure that UK law can take account of relevant developments in EU law, and, importantly, that EU law can take account of relevant developments in UK law. The report points to a precedent for this type of judicial cooperation.
  • If EU citizenship rights are not safeguarded the consequences will be severe: EU nationals in the UK and UK nationals in other EU Member States could lose their right to live and work in their country of choice.
  • EU nationals in the UK and UK nationals in other EU Member States are, unsurprisingly, deeply anxious about their futures. The Government should give a unilateral guarantee now that it will safeguard the EU citizenship rights of EU nationals in the UK when the UK withdraws from the EU. The overwhelming weight of the evidence the Sub-Committee received points to this as morally the right thing to do.
  • Failing this, there is a strong case for agreeing EU citizenship rights as a preliminary and separate element of the negotiations as soon as Article 50 is triggered.
The Sub-Committee received evidence suggesting that many EU nationals who have been in the UK for over five years - the minimum requirement for permanent resident under EU citizenship rules - may not be able to prove that they meet the criteria for permanent residence as an EU citizen. The report asks the Government to explain whether this consideration will influence the decision it makes on the cut-off point for deciding which EU nationals in the UK are given a permanent right to reside after Brexit.


Jim said...

" If the UK wants to preserve certain EU rights on withdrawal, it will have to ensure they are safeguarded in the withdrawal agreement."

That's exactly it. That's the whole point. There is still a lot of misunderstanding around article 50 and what it is, and what it means. hense this case and the one about needing an act of parliament to activate article 50 (no one has challenged the desion to leave, only the triggering of Art 50)

Look the EU Citizen ship rights are something that must be negotiated during the article 50 negotiations, and there has already been a vote in parliament about the governments right to trigger article 50, and that resulted in a law (an act of parliament) namely the European Communities Act 1972

Jim said...

lets have a look and try and clear article 50 up.

(50 - 1) "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

this section, part 1, is nothing more than a statement of fact, its not granting anyone the right to leave, its just stating for the record that this right exists, and always has done. Hence upon independence and before Lisbon, Greenland was allowed to leave. Article 50 is not about granting the right to leave, its about how to go about exercising the right to leave. Lets say you take a new job, You have the right to leave and from day 1 you can exercise that right. Now there may be something in your contract that says you must send a letter to HR stating you are leaving, and it may state terms as well, for example you must work 1 paid period of 'notice', usually a month. But no contract ever grants you the right to resign, only the procedure telling you how to do so.

(50 - 2) "A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament."

ok so here we find the first instructions and the procedure is outlined, first of all that on deciding to leave we "shall" (MUST, NONE NEGOTIABLE, WE MUST) give the EU council formal notice of our intention to leave (the EU want our letter of resignation in other words, and we agreed to that, just like we agreed to tell our company a month in advance before we leave, and we agree in our employment contracts). In exchage for our notice, we are then told that "the Union shall negotiate and conclude an agreement with that State" in other words the EU cant ignore us and leave us out in the cold, they have to negotiate with us 'the union "shall"' (MUST, NONE NEGOTIABLE, THEY MUST) negotiate a withdrawl agreement. and it gives us guidance on how it "shall" be negotiated (art 218-3 TFEU), it also tells us that our negotiations "shall" be with the EU Council.

Cont below (i hate bloggers character limit)

Jim said...

(50 - 3) "The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

This is the bit that gives us our famous 2 years limit, interestingly though it also says that it can be extended, but there is nothing stopping that extension being the first thing we negotiate, though this a bit a bit of a tangent lets just carry on with the assumption we have 2 years to come up with something workable or thats it.

(50 - 4) "For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it."

This bit is often jumped on due to misunderstanding, but its pretty simple and straightforward, and it makes perfect sense. You see at the moment the UK has a seat on the EU Council, and will do until the day of Brexit. of course we are negotiating Brexit and life there after with the EU Council, so in effect its saying you cant sit on both sides of the table and negotiate Brexit with yourselves, and you cant come into our private discussions between negotiating periods and listen in, go to your own discussions instead.

(50 - 5)"If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49."

this section outlines the fact that leaving the EU is not irreversible, It is categorically stating its not, its saying that we have the right to apply to re-join, and if we want to do that then we do so under the procedure that anyone else who wants to join undertakes.

Jim said...

so we see that the negotiations are there to be negotiated, so we have to arrange things like EU citizen rights and things with the EU during these negotiations.

Article 50, is part of the TEU (as amended by lisbon) and the ECA 1972 says we must follow the treaties. the act gives the "vote in parliament" as a postitve to follow the treaties in all cases, in fact it tells us we must.

the treaty tells us that if we decide to leave we must give notice

Remember I said that no one has challenged the desision to leave, only the activation of article 50, in other words only the act of posting our resignation letter.

Yet the treaty tells us we must post it and the act of parliament tells us we must obey the treaty.

so you see there is no logical reason why a vote in parliament is needed in order to obey an act of parliament and follow the rules of the treaty, the act of parliament already gives us that vote.

Jim said...

^that was a challenge, I had to type it into notepad, then break it down into sections, then copy and paste from notepad to blogger in sections to fit the character limit. still its all good.

Chris Whiteside said...

Thanks for that Jim.

Yes, I agree with you and the fuss some normally sensible people have made about this is really quite extraordinary. Mike Smithson, the host of "Political Betting" wrote the other day that it would be unacceptable to trigger Article 50 without knowing whether it is reversible or not.

For one thing, it would have been a good idea to ask that question before the referendum. For another, the rules clearly allow us to apply to rejoin. But I just cannot see it happening within decades.

Jim said...

That's ok you are welcome Chris.

Yes, misunderstandings are rife really....