Foreign fighters' helpers excluded from refugee status: the ECJ clarifies the law

Professor Steve Peers

What if a person claiming to be a refugee is an alleged terrorist, or at least giving assistance to alleged terrorists? Can they still claim to be a refugee – and if not, how should we define ‘terrorism’ for the purposes of rejecting their claim to be one? Today’s judgment of the EU Court of Justice in the Lounani case usefully clarifies some aspects of this controversial and legally complex issue, but inevitably leaves some difficult questions open.

Legal framework

The starting point for this issue is the wording of the UN Refugee Convention, known by the EU as the ‘Geneva Convention’, which contains an ‘exclusion’ clause in Article 1.F:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The UN rules (which all EU Member States have signed up to) have been transposed, but with variations, in the EU’s Qualification Directive, which applies to every Member State except Denmark. (Technically the UK and Ireland are bound only by the first version of this Directive, but the rules on exclusion haven’t changed).  Article 12(3) of that Directive reads as follows:

2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

3. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.

It can be seen that the EU rules differ from the UN rules to the extent that: they add some wording on the timing and nature of ‘serious non-political crimes’; they clarify the reference to acts contrary to UN ‘purposes and principles’; and they apply the exclusion to those who ‘incite or otherwise participate’ in all three categories of acts leading to exclusion.

Despite this attempt at clarification, there will always be issues of interpreting these rules. The EU Court has ruled on them once before, in its judgment in B and D, when it stated that first of all that the second and third exclusion clauses can apply to terrorist offences.  However, exclusion must be assessed in each individual case, meaning that membership of a group listed as ‘terrorist’ in EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause, although it is a ‘factor’ to consider. Participating in a terrorist group, as defined by EU criminal law on terrorism, does not automatically trigger the exclusion clause either. Instead, there must be direct involvement by the person concerned in such offences, as further explained by the Court. Furthermore, there is no additional ‘proportionality’ or ‘present danger’ test for exclusion. Finally, the exclusion clause is mandatory: ie Member States cannot assert a right to apply higher standards and give someone refugee status if they fall within the exclusion criteria.

The judgment

What does today’s judgment add? The person concerned was convicted of participating in a terrorist group, but not of carrying out any terrorist acts as such. So is such a conviction sufficient to trigger the exclusion clause?

The EU court ruled that it was. First of all, the preamble to the EU Directive referred to UN Resolutions on ‘financing, planning and inciting’ terrorism; so the third exclusion clause goes beyond terrorist acts as such. Secondly, the EU legislature had not intended to match the exclusion clause in asylum law with the narrower definition of terrorism in (current) EU criminal law legislation.

Next, the EU court ruled that following a later UN Security Council Resolution, assisting with recruitment, organisation or transport of ‘foreign fighters’ could also fall within the scope of the exclusion clause. So could ‘participation’ in such activities, pursuant to Article 12(3) of the EU Directive. It was relevant that the group in question was listed as terrorist by the UN Security Council, and particularly relevant that the person concerned had been convicted of terrorist offences in Belgium.

Comments

The Court’s judgment asserts a broad scope of the exclusion clause, meaning that a degree of support for ‘foreign fighters’ will also result in exclusion from refugee status. In doing so, it answers the claims of those who believe that many refugees are ‘jihadists’. Simply put, anyone who has been directly involved in terrorist acts (B and D) or in facilitating the activities of ‘foreign fighters’ (today’s judgment) is not entitled to refugee status. Although the judgment does not mention it, this aligns the interpretation of the exclusion clause to some extent with recent developments in criminal law, namely the 2015 Protocol to the Council of Europe Convention on the prevention of terrorism, and the agreed revision of the EU’s anti-terrorism laws.

But the judgment cannot help leaving some difficult questions open. What if the asylum-seeker has not been convicted of terrorist offences anywhere, but there are allegations of such action? Since a conviction is particularly relevant to applying the exclusion clause, would a lack of such conviction conversely be particularly relevant in determining that the clause should not apply? Would that assessment be different if the person had been acquitted, or if an investigation or trial was pending? If the criminal law process was pending, should the asylum determination process be put on hold? What if the authorities had claimed to have information supplied from the security services, and were reluctant to bring criminal proceedings in order to preserve their sources and intelligence capability? 

What if there is a criminal conviction for terrorism from another country – particularly in the asylum-seeker’s country of origin, which might define criticism of the government as ‘terrorism’? Similarly what about ‘provocation’ to terrorism, which might include ‘glorification’ of terrorist acts, according to the revised EU criminal law? Here the question is to what extent freedom of expression, not directly connected to violent acts, might justify a refusal of refugee status. Recent acts remind us that as far as criminal law is concerned, terrorist acts – and the climate of hatred that surrounds them – are not confined to Islamist extremists, but stem also from those who fanatically hate minority groups as well.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:5

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The UK Brexits Euratom: Legal Framework and Future Developments

Professor Steve Peers

The UK government’s draft bill on triggering Article 50 TEU, the EU withdrawal clause (the ‘Article 50 Bill’) had a surprise for some. Tucked away in the explanatory memorandum of the bill was a note explaining that the UK intended not only to leave the EU but also the separate (but linked) European Atomic Energy Community – Euratom for short.

Many are concerned that this will have a negative impact on the UK energy industry and related research. In particular, as discussed here, it raises issues as regards safety checks, the ownership of nuclear material, the processing of fuel, and fusion research. While it is obviously possible for a non-EU country to have a nuclear power industry, walking away from the Euratom cooperation framework will create complications for a state which is already in it.

Some have even questioned if the UK actually has to leave Euratom just because it is leaving the EU. However, in practice leaving Euratom is an inevitable consequence of Brexit. This blog post explains why – and points to the way forward to continue UK/EU cooperation in this field after Brexit.

Legal Framework

The Euratom treaty is a separate treaty from the treaty which initially created what was the European Economic Community (EEC) – now known as the European Union (EU). Equally, Euratom is a separate international organisation from the EU. But there have always been close links between the two. The founding treaties were negotiated together, and they have always had the same membership. They shared some institutions from the outset in 1958, and all institutions from 1967, when the ‘Merger Treaty’ brought together the separate Councils and Commissions which the three Communities (the EEC, Euratom and the European Coal and Steel Community) had until then.

Since that point, the provisions on the institutions in the Euratom Treaty have been updated every time the corresponding rules in the EEC Treaty were amended. Those institutional rules are now split between the Treaty on the Functioning of the European Union (TFEU) – as the EEC Treaty is now called – and the Treaty on European Union (TEU). The link between the latter two treaties, which are the legal basis for the EU, and the Euratom Treaty, is now set out in Article 106a of the Euratom Treaty, which was inserted by the Treaty of Lisbon:

1.   Article 7, Articles 13 to 19, Article 48(2) to (5), and Articles 49 and 50 of the Treaty on European Union, and Article 15, Articles 223 to 236, Articles 237 to 244, Article 245, Articles 246 to 270, Article 272, 273 and 274, Articles 277 to 281, Articles 285 to 304, Articles 310 to 320, Articles 322 to 325 and Articles 336, 342 and 344 of the Treaty on the Functioning of the European Union, and the Protocol on Transitional Provisions, shall apply to this Treaty.

As you can see, Article 50 of the TEU applies to the Euratom Treaty. That could be interpreted one of two ways. First of all, it could mean that a Member State is free to leave the EU but not Euratom (or the other way around), if it chooses. Article 50 is the exit route for leaving either body separately, or both of them together, as that Member State desires. Alternatively, it could mean that if a Member State wants to leave the EU, it must also leave Euratom.  

Which view is correct? In my view, the answer is clear if Article 106a is read as a whole. For it does not only refer to Article 50 TEU, but also to ten other Articles in the TEU, and 85 Articles in the TFEU. A large number of these Articles refer to the EU institutions. For instance, Article 13 TEU describes the institutional framework as a whole; Article 14 sets out the basic rules on the European Parliament; Article 15 the European Council; Article 16 the Council; Article 17 the Commission; Article 18 the Foreign Policy High Representative; and Article 19 the EU Court. Equally, the TFEU Articles which apply to the Euratom Treaty make up most of Part Six of the TFEU (Articles 223-334 of that Treaty), which is the ‘Institutional and Financial Provisions’. They go into more detail about issues like determining the number of Members of the European Parliament and the jurisdiction of the EU courts.

In practical terms, this would mean that if the UK left the EU but not Euratom, it would still have Members of the European Parliament, a Commissioner, a role on the Council, judges on the EU courts, and so on. From a legal perspective, it’s hard to believe this odd scenario was intended by the drafters of the Treaties; from a political perspective, this prospect would surely dismay those who voted to Leave.

This could be addressed if the Euratom Treaty were amended to suit the UK’s intention (if it wished) to stay in Euratom but not the EU, but without such institutional complications. But it’s hard to imagine the remaining Member States being willing to do that. So the best interpretation of the current law is that a Member State must also leave Euratom if it wants to leave the EU. And even if that legal interpretation is wrong, the UK government would want to leave the two bodies at the same time, to avoid continued participation in those EU institutions that give Leave voters such graphic nightmares.

The post-Brexit scenario

The Article 50 agreement between the UK and the EU can address the details of ending the UK’s participation in Euratom, which could perhaps wind down over several years after Brexit Day. But what if the UK wanted to continue with some or all of its current participation in Euratom?

This would still be possible (if the remaining EU also agreed to it). There are two main means by which Euratom enters into treaties with non-EU countries. Article 101 of the Euratom Treaty says that the Euratom Community (as legally distinct from its Member States) may enter into ‘agreements’ with non-Euratom countries. Article 206 of the same Treaty says that Euratom may enter into association agreements.

A list of such treaties, with links to the texts, can be found here. In addition to general association agreements between non-EU countries and the EU and Euratom, there are several treaties just on atomic energy cooperation. These are with Switzerland, South Africa, India, Korea, and the United States.

The best course forward is therefore for the UK to seek to negotiate such a treaty. Since it might take some time to negotiate, it’s best for the government to consult as soon as possible widely and openly with the industry and research community, as well as groups concerned about nuclear safety, to determine what its objectives should be in these negotiations.

* Further reading: for a more detailed overview of the legal framework of Euratom, with references to further literature, see pages 66-73 of my article on EU Treaty Amendments, published in the Yearbook of European Law.

Barnard & Peers: chapter 27

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Brexit and the Safeguard of EU Transnational Rights - Act II The Supreme Court’s Position

Francesca Strumia, Lecturer in Law, University of Sheffield

This post is a follow-up to the post on the High Court’s position in Miller on the safeguard of EU Law transnational rights. It considers what the Supreme Court judgment makes of the High Court position in this respect, and what EU law questions it implies as a result. The question of transnational rights has not lost momentum for two reasons. First, beyond the immediate implications for the few million EU nationals in the UK, and UK nationals in the EU, whose lives stand to be disrupted by Brexit, it points to the very fabric of the citizens’ individual rights in the EU and thus to the nature of EU law. Withdrawal of a Member State, whilst expressly provided for in the Treaties and whilst a legitimate sovereign decision under international law, risks pitting two fundamental values underpinning the European Union order one against the other: democracy (as expressed by the will of majorities or arguable majorities at the national level) and individual rights that cut across borders. Second, and relatedly, it is a question that the CJEU will likely have to address if the quandaries surrounding withdrawal ultimately reach its docket, as is expected through the planned litigation in Irish courts.

The High Court in November flirted with the question of the safeguard of transnational rights, as I analyzed in the previous post. The Supreme Court judgment does not address the question directly, let alone answer it. Its central point is that withdrawal of the UK from the EU, by resulting in removal of EU law as a source of law, will induce a fundamental change in the UK’s constitutional arrangements. Such a momentous change cannot be triggered by prerogative and requires an act of Parliament. In weaving this argument, the Supreme Court judgment bears on the problem of EU transnational rights in two respects. First, directly, because other than the High Court, it suggests that safeguard of EU law’s transnational rights is not necessarily within the remit of Parliament. Second, indirectly, because it engages with the special nature of the EU Treaties and uses such specialty as a foundation for its argument. I will consider each aspect in turn.

From the first perspective, the Supreme Court recuperates the High Court’s analysis of the EU law rights that have gained domestic law status and that withdrawal will affect: rights capable of replication in UK domestic law, rights derived by UK nationals in other Member States, and ‘club membership rights’ such as rights of participation in EU institutions (par. 69-73). The High Court had suggested that even rights in the second category, albeit harder to characterize as domestic law, were intended by Parliament as ‘wider rights of British citizens’, and hence could not be removed by ministers exercising the prerogative. 

The Supreme Court focuses on the first category and eschews the other two. Its argument in this respect is that if the claimants cannot rely on loss of rights in the first category – that best fit the notion of domestic law – to support their argument against the use of the prerogative, even less can they rely on loss of rights in the other two – that rather embrace a set of transnational rights –. And if they can rely on loss of rights in the first category, then there is no need to engage the other two. So transnational rights, with which the High Court had timidly engaged, are gently pushed out of the way of the constitutional question at the heart of the judgment.

The gist of the argument through which the Supreme Court solves that constitutional question is in the specialty of the EU Treaties. And here comes the second aspect. In the normal course of things – the judgment recalls – the royal prerogative covers the making and unmaking of treaties. This is on the assumption that the power to make and unmake treaties does not affect domestic law. 

That assumption rests in turn on two propositions: that treaties take effect in international law and are not governed by domestic law; and that they do not create or alter domestic law and rights. (par. 54-56). However the EU Treaties are exceptional. They do not only concern international relations, but they are a source of domestic law and of domestic legal rights (par. 86); their nature is ‘unusual’ (par. 88); and they are ‘unique in their legislative and constitutional implications’ (par. 90). This Supreme Court argument on the exceptionalism of the EU Treaties, whilst remaining in part undefined as Professor Elliott notes in his post, echoes one of the landmark arguments of the CJEU. The specialty of the EU Treaties, according to the CJEU, is in that they constitute a ‘new legal order of international law’. The subjects of this order comprise ‘not only member states but also their nationals’. And ‘community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage’. (Van Gend en Loos). 

Nothing new for anyone remotely acquainted with EU law. The novelty is in the new shades that these arguments take when indirectly recalled by the UK Supreme Court in the context of withdrawal of a Member State. How are the rights and obligations of the Member States that the EU Treaties enshrine on the international level – including the right to withdraw from the Treaties – to be reconciled with the rights that this new legal order has made part of the citizens’ legal heritage even ‘independently of the legislation of the Member States’ (in the words of the CJEU)? That, is a question of EU law. And some of those rights – by the way- are not domestic law rights. As Lord Reed makes clear in his dissent (par. 218), there are elements of EU law that depend on reciprocal arrangements with other Member States or on the participation of EU institutions. Transnational rights come back through the side door.

This underlying EU law question that the Supreme Court judgment just hints to did not make it to the CJEU on this occasion. However a version of it may still make it to Luxembourg in the twists and turns of the other planned proceedings. The question has systemic, theoretical and practical nuances. Systemic, because it calls for identifying the checks and balances that may safeguard, in the new legal order that is EU law, the competing interests of national majorities and transnational minorities. Theoretical, because on its answer depend the chances of ever taking transnational rights seriously again. And practical, in terms of the identification of the legal frames that may safeguard transnational rights in the context of EU withdrawal, both within EU law (duty of sincere cooperation?) and beyond (does a host Member State ever become, for instance, one’s ‘own country’ within the meaning of article 12 of the International Covenant on Civil and Political Rights?). 

Ultimately, the potential question for the CJEU addresses the conundrum that was exposed at the beginning and that explains the discomfort that Brexit causes beyond its own contingencies: how to square domestic democratic choices underpinning the exercise of Member States’ rights and obligations at the international level with individual transnational rights that the EU special legal order has long promised. At stake are the prospects of the most special creature that the 20th century international legal order has bred.

Barnard & Peers: chapter 27

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The judgment in Miller: Representative Democracy Strikes Back

Professor Steve Peers

Yesterday the UK’s Supreme Court gave its long-awaited judgment in the case of Miller (and a parallel Northern Ireland case), concerning the process of the UK leaving the EU. There’s already a detailed analysis of the constitutional law aspects by Professor Mark Elliott here. So my post will summarise the key elements of the judgment, and put it into the broader context of the Brexit process and the role of Parliament.

There are two main issues in the case: the role of Parliament in triggering the Article 50 process, and the role of devolved legislatures. Like the Supreme Court, I’ll take these two points in turn.

Role of Parliament

The Supreme Court, like the High Court ruling in Miller, began by pointing out that it was not ruling on the merits of Brexit, or on any the substantive details of how it would take place. It was only ruling on which political bodies in the UK have the power to send the Article 50 notice to the European Union, thereby starting the clock ticking on the timetable for Brexit. The central question in the case was whether the government could start the process, by means of the ancient ‘Royal prerogative’, or whether some action by Parliament was also necessary.

While the Royal prerogative traditionally gives the British executive power to decide (among other things) on the negotiation and ratification of treaties, and the withdrawal from such treaties, international treaties have no effect in domestic law without an Act of Parliament to give them effect.  In general, the royal prerogative cannot be used to confer rights or remove rights of individuals. Given that the UK’s EU membership is largely regulated by an Act of Parliament – namely the European Communities Act – does it therefore follow that an Act of Parliament (or some other form of consent by Parliament) is necessary to authorise the government to begin the process of removing those rights?

The Supreme Court ruled by a majority (8-3) that Parliamentary consent was indeed necessary. It did so by pointing to the particular nature of EU law – a ‘dynamic’ process of new law-making by EU institutions, which takes effect as part of the domestic law of the UK by means of (primarily) the European Communities Act.  

In reaching this conclusion, the Supreme Court touched on a number of important points. Most significantly, it expressly stated that the judges were not deciding the question of whether an Article 50 notice could be revoked after it was sent, or whether any conditions could be attached to it (para 26). This compares to the High Court, which had accepted the agreement between the parties that the notice to withdraw from the EU could not be revoked.  

This is significant because some would like Parliament or the public to consider whether to withdraw the Article 50 notice, with the result that the UK remains in the EU, when the terms of the final agreement to leave are known. That objective is obviously not feasible in principle unless Article 50 is indeed revocable – although there might be another route to the same end: an indefinite suspension of the two-year time limit for leaving the EU.

A case will soon be brought before the Irish courts on this point, seeking to obtain a reference to the ECJ to clarify the issue. The Irish courts – or the courts of any other Member State – now need not be concerned by any possible awkwardness stemming from taking a different view from the UK courts on this issue. Furthermore, if the revocability issue is somehow brought before a UK court, any lower court can see that the Supreme Court has deliberately left the issue open, and so can consider the issue afresh.  

Next, the Supreme Court provided a neat – if belated – answer to the argument that EU law membership has rescinded parliamentary sovereignty. It observes (paras 60 and 66) that EU law only applies in the UK as a matter of domestic law because Parliament had agreed to this in the European Communities Act. It followed that Parliament could always curtail or abolish this domestic effect of EU law, if it chose.

The Supreme Court also ruled that Parliamentary involvement in converting EU law into British law, by replacing the European Communities Act with a planned ‘Great Repeal Act’, was not sufficient to substitute for the role it should have in triggering the Article 50 process (para 94). Its discussion of the European Union Act 2011 (para 111) does not address head on the argument some have made that this act requires a further referendum before leaving the EU. For a number of reasons, the judges confirm that the referendum result is not legally binding – although they also acknowledge its political significance (leading up to para 125). Finally, it makes clear that legislation (ie an Act of Parliament) is required to trigger Article 50 (para 123). A parliamentary motion won’t do – meaning that parliament will have more chance to influence the result.

       

Devolved legislatures

What about the position of the UK’s devolved legislatures, in Scotland, Northern Ireland and Wales? First, the Supreme Court ruled that those provisions of the Westminster legislation setting up these bodies which require them to act in accordance with EU law do not require those legislatures’ consent to the UK withdrawing from the EU. Secondly, it ruled that the ‘Sewel Convention’ – the informal constitutional rule that Westminster will not normally legislate in areas of devolved powers without devolved legislatures’ approval – was not a legally binding rule. Finally, it also ruled that the Good Friday Agreement did not address the Brexit issue.

Comments

What does the judgment mean for the Brexit process, and for parliamentary democracy more generally? On Brexit, it means that the government needs Parliament to adopt an Act to trigger Article 50, and it intends to propose a bill to this end very soon. Before becoming an Act of Parliament, a bill needs majority support from both Houses of Parliament. While, in light of the referendum result, there is no prospect that a majority of MPs will reject triggering Article 50, the bill is potentially subject to amendments – although the government may try to argue that amendments to its short, highly focussed bill are inadmissible.

But certainly the opposition parties will try. The Labour party has announced plans to table a number of amendments; the Scottish National Party says it will table 50 amendments; and the Liberal Democrats will propose holding a referendum on the final agreement reached by the UK and EU. In the House of Commons, the combined opposition would need around ten Conservatives to join them to pass any amendment. The House of Lords has to pass the bill too.

For a good overview of possible amendments, see this post by Professor Jeff King. In my view, one particular key amendment is essential: ensuring that an Act of Parliament must be passed to approve the UK/EU Brexit deal. That will give Parliament, in 2019, the full power to decide what to do then, from the range of possibilities available.

Anticipating one popular amendment, the government conceded already today that it will publish a White Paper on Brexit. However, rather cynically it seems that the White Paper will only be published after much of the parliamentary scrutiny has taken place. And it has been rightly suggested that an impact assessment would be much more useful.

While the Miller judgment means that arguments over Brexit primarily shift from the courts to parliament, it is not quite the end of legal proceedings. As noted already, the Irish case about the possible revocability of Article 50 will soon be launched, and the Miller ruling is expressly neutral on this point.

Furthermore, the ruling arguably strengthens the contention in a planned case (Wilding and others) that Parliament must also vote on whether the UK should leave the European Economic Area (EEA), a separate treaty that extends the EU single market to some non-EU countries.  I’ve previously blogged on that planned case here, and I can update the status of the case, thanks to Chelvan of No5 chambers, who is acting for one of the claimants (led by Ramby de Mello, for the second Claimants). The permission hearing in the case is due 3 February, and these claimants are arguing that (1) as with the European Communities Act, the royal prerogative does not give the executive power to issue an notice under Article 127 of the EEA; and (2) following the Miller judgment, the exercise of the prerogative without authority of an Act of Parliament will lead to a destruction of fundamental rights and freedoms conferred to UK and EEA nationals living and residing in the UK. As Miller confirmed, the referendum result is advisory; and in any event, it was an expression of political will with respect to leaving the EU and not the EEA.

What about the broader impact of the judgment? It is striking that in every respect, the judgment places the Westminster Parliament at the centre of the Brexit debate. By rejecting use of the royal prerogative to trigger Article 50, the ruling gives Parliament the power to set conditions upon the executive’s conduct of Brexit talks, and ensures that a broader public debate takes place. By affirming that the referendum result was not legally binding, it guarantees that legal authority remains with elected Members of Parliament – buttressed with unelected Lords – rather than the general public. And by asserting that devolved assemblies do not have a veto over Brexit, it entrenches Westminster’s decisive role in the national political debate. Miller raised deep questions about a number of developing tensions in the fabric of British constitutional law: between direct and representative democracy; between Parliament and executive; and between devolved powers and UK-wide government. To every question, the answer was, in effect: the Westminster Parliament.

Of course, there are practical limits to Westminster’s legal authority; and the judgment expressly recognises them. The outcome of the referendum vote is an unavoidable political reality. And so is the convention of seeking seeking the views of devolved assemblies – even though the government has already rejected their views, and intends to proceed against the opposition of the majority of voters in Scotland and Northern Ireland, and (as regards ‘hard Brexit’ at least) against the opposition of the government of Wales and the Plaid Cymru party (see their recent position paper). Furthermore, the executive has many ways to influence the conduct of Parliament’s business.

But for all these caveats, the judgment has certainly returned a degree of power over Brexit to the mother of Parliaments. The outcome of the debate over the Article 50 bill, in conjunction with the battle to come over the ‘Great Repeal Bill’, will determine how important Parliament remains as Brexit unfolds.

Despite many constitutional lawyers’ criticism of the technicalities of the judgment, in my view it at least fully expresses the traditional spirit of the UK constitution – and Parliament’s historic role in British political life. I’m an infrequent visitor to the Houses of Parliament, but I’ve experienced Ian Paisley push rudely in front of me in a queue, Dennis Skinner swear randomly at me in a lift, and Liam Fox glare angrily at me in a corridor. (Reader, I glared back at him). It’s the birthplace of boundless political dreams – yet also the graveyard of countless political careers.

Westminster's position may not last. Many have legitimate concerns about Parliament: the Hogarth cartoons displayed on its walls remind us that concerns about its scandals stretch back through the centuries.  There are valid arguments for further decentralisation of power to the regions, cities and devolved assemblies; for direct democracy; and for the efficiency of executive power. But for now, its pivotal role in the deciding the key aspects of Brexit can only be welcomed.

Barnard and Peers: chapter 27

Photo credit: the Telegraph

When is Facebook liable for illegal content under the E-commerce Directive? CG v. Facebook in the Northern Ireland courts

Lorna Woods, Professor of Internet Law, University of Essex

Introduction

The ubiquity of social media platforms and their significance in disseminating information (true or false) to potentially wide groups of people was highly unlikely to have been in the minds of the European legislators when they agreed, in 2000, the e-Commerce Directive (Directive 2000/31/EC) (ECD). Facebook itself was launched only in 2004. Despite the changing times and technological capabilities, the Commission has decided not to revise the ECD, specifically its safe harbour provisions for intermediaries, in its current single digital market programme.  Although the ECD seems set to remain unchanged, the application of the safe harbour provisions raises many difficult questions which have not yet been fully answered at EU level by the Court of Justice. CG v. Facebook ([2016] NICA 54), a decision of the Northern Irish Court of Appeal, illustrates some of these difficulties and certainly raises questions about the proper interpretation of the ECD and its relationship with the Data Protection Directive.

Intermediary Immunity - Legal Framework

The ECD provides immunity from liability for certain ‘information society service providers’ (ISS providers) on certain conditions.  To gain immunity, the ISS provider must

-          be an ISS provider within the terms of the ECD; and

-          one of the following applies:

-          the provider is a ‘mere conduit’ (Art. 12 ECD);

-          provides caching services (Art. 13 ECD); or

-          provides hosting services (Art. 14 ECD).

Each one of these three categories provides for a different level of immunity, which seems connected with the level of knowledge the ISS provider is assumed to have of the problematic content. Here Article 14, which deals with hosting, is the relevant provision. It provides:

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.

The recitals to the ECD give more detail as to the scope of services protected by Article 14 and there is a certain amount of case law on this point, notably Google Adwords (Case C-236/08) and the Grand Chamber decision in L’Oreal v. eBay (Case C-324/09). Recital 42 has been pointed to by the Court in these cases as relevant for understanding the sorts of activities protected by the immunity. Recital 42 refers to services of a

mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.

The ECJ in Google Adwords referred to this as being ‘neutral’ (para 113-4). The Grand Chamber in its subsequent L’Oreal decision suggested that advice in optimising presentation would mean a provider was no longer neutral (para 114).

The provision protects relevant ISS providers from liability in relation to illegal content, provided they have no knowledge (actual or constructive) of the illegal activity or information, and that if they have such knowledge, they have acted expeditiously to remove it. In L'Oreal v eBay the Court of Justice provided a standard or test by which one can measure whether or not a website operator could be said to have acquired an 'awareness' of an illegal activity of illegal information in connection with its services, that is whether "a diligent economic operator would have identified the illegality and acted expeditiously".   The CJEU also held that an awareness of illegal activities or information may become apparent as the result of an investigation by the operator itself or where the operator receives notification of such activity.  Article 14 does not protect ISS providers from injunctions, or the costs associated with any such injunctions (see Recital 45).

Additionally, Article 15 specifies that, for those falling within Articles 12-14, Member States cannot impose a ‘general obligation’ to monitor content to determine whether content is illegal. There has been a considerable amount of dispute as to the relationship between this provision and the scope of immunity, especially given the requirements in L’Oreal.  Recital 40 notes that ‘service providers have a duty to act, under certain circumstances, with a view to preventing or stopping illegal activities’ and that the immunity provisions ‘should not preclude the development and effective operation, by the different interested parties, of technical systems of protection and identification and of technical surveillance instruments made possible by digital technology’. The Recitals also state:

(47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.

(48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.

The distinction between general monitoring and specific monitoring has yet to be fully elaborated, and is an issued much discussed in the context of intellectual property enforcement, especially as regards keeping pirated copies of materials down after taking it down in the first place.

Facts of CG

McCloskey opened a Facebook page in August 2012 entitled ‘Keeping Our Kids Safe from Predators’ in which he published details of individuals who had criminal convictions relating to sexual offences involving children.  This page was not subject to any privacy settings.  One individual who was so named brought action against Facebook and an interim injunction was issued requiring Facebook to remove the page and related comments, on the basis that the comments responding to the posting were threatening, intimidatory, inflammatory, provocative, reckless and irresponsible. This was the XY litigation. Immediately after the page was removed, McCloskey set up a new page, Predators 2. CG was identified on this page on 22 April 2013; his photograph was published and there were discussions about where he lived. Comments included abusive language, violent language – including support for those who would commit violence against CG and for the exclusion of CG from the community in which he lived.  The disclosure of CG’s residence was contrary to the position taken by the Public Protection Arrangements in Northern Ireland (PPANI), which took the view that such disclosure interferes with the rehabilitation process.

On 26th April 2013, CG’s solicitors wrote to Facebook and its solicitors in Northern Ireland, claiming the material was defamatory and that CG’s life was at risk. A hardcopy of Predators 2 page was enclosed. Facebook’s response was that CG should use the online reporting tool, but CG expressed a desire not to have to engage with Facebook. By 22 May 2013 Facebook removed all postings on Predators 2, but on 28 May, CG issued proceedings. Subsequently, CG’s solicitors wrote to Facebook complaining that the photograph had been shared 1622 times and that other Facebook users had included comments threatening violence. They identified the main URL, but not all such instances which Facebook then requested. This information was provided on 3rd and 4th December and removed on 4th or 5th December. A further reposting of the photographed by RS occurred on 23 December, stating that this was what a “pedo” looked like. A letter of claim was send to Facebook on 8th January 2014, identifying the relevant URLs and the page was taken down on 22 January 2014.  While CG accepted that the defamation claim was without merit, it was accepted that he was extremely concerned about potential violence as well as the effect on his family.

Judgment at First Instance

The trial judge had to deal with claims against McCloskey, as well as claims against Facebook.  The trial judge, having reviewed the evidence, concluded that McCloskey’s conduct constituted harassment of CG. The case against Facebook was based on the tort of misuse of private information. To find that there had been such misuse, there had to be a reasonable expectation of privacy in relation to the relevant information  which should take into account all the circumstances (relying on JR38 [2015] UKSC 42 and Murray v. Express Newspapers [2008] EWCA Civ 446). The judge also accepted the submission that the Data Protection Act, and specifically the category of ‘sensitive data’, provided a useful touchstone as to what information could be seen as private (see Green Corns Ltd v. Claverly Group Limited [2005] EWHC 958). The judge concluded that the use of a photograph or name in conjunction with information which could identify where CG lived and any information about his family members were private information. The judge considered that Facebook was put on notice of the problematic nature of the material by the XY litigation (which mentioned the Predator 2 page) and that simple searches would reveal the page, as it had an almost identical name with identical purposes. The trial judge concluded that it was apparent on the face of the posts that consideration of the lawfulness of the posts was needed. As regards the Electronic Commerce (EC Directive) Regulations 2002, which implement the ECD in the UK, the judge rejected the contention that there was an obligation to give Facebook notice in a particular form. So, neither the ECD nor the 2002 Regulations protected Facebook from the claim of misuse of private information.

A further claim under the Data Protection Act was added late in the day. The judge concluded that –in the absence of relevant discovery - CG had not established this proposition. Facebook appealed. CG also appealed as regards the data protection point, but did not pursue this point.

Court of Appeal Judgment

The Court noted that there was agreement that McCloskey’s behaviour was unreasonable conduct sufficient to give rise to criminal liability (R v Curtis [2010] EWCA 123), and that the 2002 Regulations do not cover injunctions. The Court agreed that this was an appropriate case in which to make an order taking to down the material to protect CG from continued intimidation [para 40]. The Court noted that the tort of misuse of private information and harassment, while complementary, are not the same and that a finding of harassment did not automatically mean that there had been a misuse of private information.

As regards the tort, the Court noted that there was no dispute between the parties that this case was about an intrusion, but that the tort would come into play only if there was a reasonable expectation of privacy in the information, which is a fact sensitive determination.  The Court of Appeal noted the public interest in knowing about criminal convictions; it also disagreed with the trial court judge about the reading across of the categories of sensitive information in the DPA. It held:

The fact that the information is regulated for that purpose does not necessarily make it private’ [para 45].

Reviewing the material, the Court held that the context of harassment was determinative to the finding that CG has a reasonable expectation of privacy in the material [para 49]. By contrast, RS was protected by principles of open justice which allow citizens ‘to communicate the decisions of the criminal justice systems to others’ and therefore CG did not have a reasonable expectation of privacy in relation to that posting [para 51].

The Court then considered whether Facebook could rely on the safe harbour provisions of the ECD and the 2002 Regulations. It held that the 2002 Regulations need to be understood in the light of Art 15 ECD even though it is not formally implemented in the UK. According to the Court, Article 15 ‘clearly’ applied to Facebook [para 52]. While not expressly stated, the Court’s approach is based on the assumption that Article 14 (safe harbour provisions for those providing hosting services) and Regulation 19 of the 2002 Regulations, which implement it, also apply.

The Court then considered the issue of notice. Facebook argued that CG had not given proper notice, on the basis that CG had not used Facebook’s online submission process. The Court of Appeal agreed with the trial court’s dismissal of this argument, stating, ‘[a]ctual knowledge is sufficient however acquired’ [para 58]. Facebook challenged the approach taken at first instance, that Facebook had the resources to find the material and assess it [High Court, para 61].  It was also argued that the way the High Court approached the question of constructive knowledge also implied a monitoring obligation. The trial judge referred to the XY litigation; that litigation plus the letters of CG’s solicitors; and the litigation together with some elementary investigation of the profile. The Court of Appeal agreed with these concerns.  It stated the question as being:

Whether Facebook had actual knowledge of the misuse of private information … or knowledge of facts and circumstances which made it apparent that the publication of the information was private

before commenting that

[t]he task would, of course, have been different if there had been a viable claim in harassment made against Facebook [para 62].

It did not elaborate the basis or extent of the difference.

The Court concluded that the XY litigation did not fix Facebook with sufficient notice; that it only could do so if Facebook was subject to a monitoring obligation. In any event, knowledge of a propensity to harass did not fix Facebook with notice about the private information. As regards the correspondence, the Court held that this too was insufficient to fix Facebook with notice. While it referred to the problematic content, it did not refer to misuse of privacy. ‘The correspondence did not, therefore, provide actual notice of the basis of claim which is now advanced’ [para 64]. The Court also considered that there was nothing in the letters to indicate that the information was private. So, while ‘the omission of the correct form of legal characterisation of the claim ought not to be determinative of the knowledge and facts and circumstances which fix social networking sites such as Facebook with liability’, it is necessary to identify ‘a substantive complaint in respect of which the relevant unlawful activity is apparent’. 

Here, since there was no indication in the letter of claim that the address was the issue, the Court did not ‘consider that the correspondence raised any question of privacy in respect of the material published’. [para 69] By contrast, in the letter of 26th November, CG referred to the general identification of where CG was living and the threat from paramilitaries. This was sufficient to establish knowledge of facts and circumstances in relation to that particular post. Referring to the Court of Justice in L’Oreal, the Court noted that Facebook is obliged to act as a diligent economic operator. This point was not argued; Facebook was found to be liable in respect of that post for the period 26th November-4/5 December.

The burden of proof is in the first instance on the claimant to show knowledge; thereafter the ISS must prove it did not.

As regards the DPA, it was agreed that Predators contained personal data and sensitive personal data, the issue was whether Facebook Ireland could be seen as subject to the UK DPA.  The ECJ rulings in Google Spain (Case C-131/12) and Weltimmo (Case C-230/14) were argued before the Court. The Court did not accept the submission that Google Spain was limited to its particular facts and the concern that the protection offered by the Data Protection Directive would be undermined if it excluded out of EU data controllers. The Court here noted that Weltimmo in fact built on the approach in GoogleSpain. It concluded that Facebook is a data controller established in the UK for the purposes of the DPA.  Although the Court accepted that the ECD does not cover data protection, and this is reflected in Regulation 3 of the 2002 Regulations, the Court held at para 95:

The starting point has to be the matter covered by the e-Commerce Directive which is the exemption for information society services from the liability to pay damages in certain circumstances …We do not consider that this is a question relating to information society services covered by the earlier Data Protection Directive and accordingly do not accept that the scope of the exemption from damages is affected by those Directives.’

Comment

This case is one of a number coming through the Northern Irish court system regarding different types of problematic content and the responsibility of social media platforms to take action against such content.  Shortly before this case was handed down, the High Court handed down its decision in J20 v Facebook Ireland Ltd ([2016] NIQB 98). Other cases are working their way through the system: AY v Facebook (Ireland) Ltd ([2016] NIQB 76), concerning naked images of a school girl on a ‘shame page’; MM v BC, RS and Facebook ([2016] NIQB 60), concerning revenge porn; and Galloway v Frazer and Google t/a YouTube ([2016] NIQB 7) concerning defamatory and harassing videos.  While this case is based in the particular cultural and legal context of Northern Ireland, and raises questions on the meaning of private information, it also leads of questions about the interpretation of EU laws, notably the ECD and DPD.

The first point to note is that the Court does not directly address the question of the applicability of Articles 14 and 15 ECD, beyond stating the Article 15 clearly applies. Article 15 is dependent on the ISS provider providing services that fall within one of Article 12, 13 or 14 ECD, with Article 14 being relevant here. So the question is whether Article 14 ECD (and consequently Regulation 19 of the 2002 Regulations) applies here. While the text of Article 14 ECD refers to ‘the storage of information provided by a recipient of the service’, the case law makes it clear that not any storage will do. Rather, the service provider must be neutral as regards the content, technical and passive.  In this regard, services Facebook provide regarding information of interest to Facebook users (News Feed algorithm and content recommendation algorithm, as well as Ad Match services), may mean that the question of neutrality and passivity here is at least worthy of investigation, in that Facebook may promote certain content (in the term of L’Oreal, para 114). Of course in Netlog (Case C-360/10), the Court of Justice held that a social media platform could benefit from Article 14, but this does not mean that all will – much will depend on the facts (see eg Commission 2012 Working Paper on trust in the digital single market (SEC(2011) 1641 final, accompanying COM(2011) 942 final).

Assuming Article 14 (and its UK equivalent, Regulation 19) applies, the next question is whether Facebook was on notice.  The ECD is silent on the nature of any formalities, leaving it to Member States and industry (via self-regulation per Recital 40) to fill in the detail.  In its 2012 Working Paper, the Commission acknowledged that there were diverging views as to what notice required, ranging from those who argued that nothing less than a court order should be accepted (seemingly thereby focussing on just actual knowledge) through to those who suggested that general awareness of the use of the site for illegal content was sufficient (which covers constructive knowledge) (p. 33-34). It seems there are three main issues here:

- Whether notice has to be given in any particular format;

- Whether notice has to identify the illegality or whether identifying the problematic content will do; and

- The relationship between constructive notice and Article 15, also bearing in mind the obligations of the diligent economic operator.

Facebook argued of course that a person complaining about content should use the tools provided by Facebook and provide rather precise information.  The Court, rightly, held that to require a particular format to be used but run counter to the aim (particularly with reference to the 2002 Regulations) of facilitating the ability of users to make complaints. It is less clear the position of the Court with regard to the need to provide URLs. The need to provide specific URLs makes it difficult for claimants especially those who seek orders for content to be taken down and to stay down (seen particularly in the field of intellectual property enforcement, for example even in L’Oreal). In this case, where the Court found Facebook liable CG had provided specific URLs, but the Court is silent on whether the lack of specific URLs was a determinative factor in the other instances.  It is submitted that, provided sufficient identifying information about the content is provided, precise URLs should not be required especially for a diligent economic operator (discussed below).

The Court focussed on the question of whether CG sufficiently identified the reason why the content is illegal. In this, the Court observes that the omission of the correct legal characterisation is not determinative; to have held to the contrary would undermine the ability of claimants without lawyers to have material taken down. The Court moves on to suggest that the relevant unlawful activity has to be apparent. It does not consider to whom such unlawfulness must be apparent, or indeed the prior question of whether the ECD requires just notification of content or activity perceived as illegal by the complainant, rather than a justification of why the complainant thinks that. While on the facts of this case there are concerns that CG referred to causes of action that were clearly wrong (e.g, defamation), it is arguable that the Court’s position needs further refinement. Certainly the Court’s approach on this aspect seems generous to Facebook in terms of what it needs to be told.

In this regard a number of comments can be made.  While, an operator would need to make an assessment about the legitimacy of a take down request, that is a separate issue from the fact of being notified that someone thinks some content is problematic. Further, there may a world of difference between what a man on the street might so recognise and that which the diligent economic operator should recognise and the detail required for that. Indeed, in L’Oreal, the ECJ held:

although  such  a  notification  admittedly  cannot  automatically  preclude  the  exemption  from  liability  provided  for  in  Article  14  of  Directive  2000/31,  given  that  notifications  of  allegedly  illegal  activities  or  information  may  turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification  represents,  as  a  general  rule,  a  factor  of  which  the  national  court  must  take  account  when  determining,  in  the  light  of  the  information  so  transmitted  to  the  operator,  whether  the  latter  was  actually  aware  of  facts  or  circumstances  on  the  basis  of  which  a  diligent economic operator should have identified the illegality (para 121-2).

This suggests that a diligent economic operator may not just rely on what a complainant said, but may have to take steps to fill in the blanks.  As the Commission reported in 2012, it has been suggested by some that the degree to which it is obvious that the activity or information is illegal should play a role in this assessment.  Some content is more obviously problematic than others. This position is not incompatible with the approach of the Court here: the problem for CG is that an address is not usually that problematic in privacy terms, it was the context (not apparent on the face of it) that made it so [para 69].  This distinction may have relevance for the AY litigation, if not the revenge porn case – depending on the nature of the images.

The final point of concern relates to general monitoring. The rejection by the Court of the possibility becoming aware of a particular type of content (as from the XY litigation) and being on notice as a consequence deserves further examination. This depends on what is meant by ‘general monitoring’ as opposed to a ‘specific’ monitoring obligation, accepted by recital 47 ECD, and recognised by the Commission in its 2012 Working Paper (p. 26).  It is unfortunate that the Court did not give this more attention. While case law has made clear that filtering of all content, for example, constitutes general monitoring (SABAM v Scarlet (Case C-70/10)), it has been argued- principally in the context of IP enforcement -that searching for a particular instance of content (re-occurring) is not.  Such a broad view of general monitoring as the Court here adopted also seems to decrease the space in which the diligent economic operator acts, raising questions about the meaning of L’Oreal.  Note also that the Commission in its recent review noted ‘there are important areas such as incitement to terrorism, child sexual abuse and hate speech on which all types of online platforms must be encouraged to take more effective voluntary action to curtail exposure to illegal or harmful content’ (COM/2016/0288 final).  This suggests that the Commission may expect such platforms to be proactive and not merely reactive. 

Perhaps the most significant point, and one on which a reference should perhaps have been made, is the relationship between the ECD and DPD, a point yet not dealt with in English law (see Mosley v Google [2015] EWHC 59 (QB)).  The Court accepted fairly readily that Facebook (Ireland) falls under the UK DPA, but then insists that despite the fact that data protection is excluded from the field of application of the ECD, that Facebook pages and comments fell within the “matter covered by the e-Commerce Directive” which provide a “tailored solution for the liability of [ISS providers] in the particular circumstances” set out in the ECD. It did not explain why, beyond asserting that the ECD safe harbour provisions do ‘not interfere with any of the principles in relation to the processing of personal data, the protection individuals ... or the free movement of data’ [para 95]. In this assessment, the Court overlooked the fact that under the DPD a remedy must be provided to individuals, so as to make effective their rights and, that the protection awarded to data subjects should not vary depending on the mechanism used for that processing.  Furthermore, Recital 14 to the ECD elaborates that

The protection of individuals with regard to the processing of personal data is solely governed by Directive 95/46/EC …..the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data.

Whilst a Member State was free to provide more far-reaching to protection to intermediaries, this freedom reaches its limit when it conflicts with another harmonised area of EU law, such as data protection. The Court’s position on this point, and especially its reasoning, in the light of the terms of both directives, is not convincing.

In sum, the outcome – liability for Facebook on one aspect of the content posted – sounds on the face of it a narrowing of immunity.  The reality points in a different direction. While there are a number of problematic issues with which the court had to deal, the impact of this judgment lies in the statements of general principle which the Court made. Significantly, these fell into areas ultimately governed by EU law, rather than purely domestic matters.  It is far from certain that those issues are clearly determined at EU level, nor that the Court’s assessment here is free from doubt.

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Brexit: the Prime Minister sets the wrong course

Steve Peers

Today’s speech by Prime Minister Theresa May gave a number of indications as to the government’s intentions as regards implementing Brexit. Overall, while the speech contained some welcome parts, it made fundamentally the wrong decision about the country’s future.

Welcome parts of the speech

The welcome parts of the speech include the argument that it ‘remains overwhelmingly and compellingly in Britain’s national interest that the EU should succeed’. Indeed, any ‘unravelling’ of the Union between these neighbouring states is not in the economic or security interests of the UK. Her suggestions about what the EU should do next contain much common sense – although it is doubtful that the remaining EU is very interesting in listening to the leader of a country that is intending to leave. In particularly, her complaints about too much ‘uniformity’ and not enough ‘diversity’ will strike some as bizarre – coming from a country with opt-outs on the single currency, Schengen, justice and home affairs (and previously social policy) plus a budget rebate.

The commitment to retain status for EU citizens in the UK is not new, but still welcome. It is disappointing however that there was no commitment to entrench their rights unilaterally, as recently proposed by a group of Leave and Remain supporters in a British Future report. There could be compromise ways to address this: publishing a draft Bill to this effect, or entrenching the rights in law conditional on EU reciprocity. One can only hope that the issue will be addressed at an early stage of the negotiations.

The interest in continued collaboration on research, police cooperation and foreign policy is also welcome, since the UK still has joint interests with other Member States in these fields. But it is content-free: what exactly would the UK like to participate in? How does this square with her assertion that the UK will not be involved with ‘bits’ of the EU?

Single market and customs union

The Prime Minister declared her opposition to ‘partial membership of the European Union, associate membership of the European Union, or anything that leaves us half-in, half-out.’ But there is no such thing as ‘partial’ or ‘associate’ membership of the EU. May is slaying straw dragons in her own imagination here.

She goes on to confirm her opposition to single market membership (as distinct from single market access) for the UK, for several reasons. It is striking that she makes no assertion that the UK will be better off out of the single market economically. Indeed, the IFS has estimated that the UK will lose 4% of GDP if it leaves the single market without a free trade deal, due to the loss of market access that this entails. While May goes on to say that she seeks a free trade deal, this is bound to entail less trade between the UK and the EU than single market membership, as free trade deals do not remove as many non-tariff barriers as the single market rules.

So what are her reasons? One is control of immigration – and free movement of persons is a non-negotiable condition of the EU for participation in the single market.  Here she fails to consider that the European Economic Area (EEA) treaty includes a safeguard on free movement which could be invoked in order to control it. May’s description of free movement includes overstated claims about its effect on public services, ignoring the impact of limited government funding of health and education in recent years – while she cannot bring herself to mention the overall economic benefit derived from EU migrants.

Another is budget contributions. She rules out any budget contributions except for participation in individual programmes. There is no consideration of whether the EEA option – giving money directly to poorer EU countries, with more control over the spending by the contributor – would be desirable in return for increased market access.

Next, there is the role of the ECJ. May states that single market membership ‘would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country.’ Let’s not mince words: this is not true. The EEA states are not subject to the ECJ at all, but to the separate EFTA Court. That court has less jurisdiction than the ECJ, and a large number of its rulings are not binding at all. It is only obliged to follow ECJ rulings delivered before 1991.

More broadly, May states that this ‘would to all intents and purposes mean not leaving the EU at all.’ Again, this is not really true. EEA members are not subject to EU rules on agriculture, foreign policy, fisheries, justice and home affairs (except via separate treaties, in part) or trade with non-EU countries – the very issue which May devotes a large part of her speech to.

This brings me to a false dichotomy on which her speech rests: that there is some sort of choice to be made between EU membership and ‘Global Britain’. In fact, barriers to trade with non-EU countries have been coming down, both due to EU membership of the WTO and due to bilateral trade deals between the EU and non-EU countries. The share of UK trade with non-EU countries has therefore been rising – as Leavers are often quick to point out. Many other EU countries trade more that the UK does with non-EU states – as May herself pointed out last year. So it’s not EU membership that significantly holds back trade with non-EU states.

It is true that inside the EU’s customs union, the UK cannot sign its own trade deals with non-EU states. But the UK could seek to remain in the single market (like Norway) but leave the customs union. Indeed, Norway and other EEA countries have a number of their own trade agreements. In effect, this would be the best of both worlds – maintaining the maximum possible access to the EU’s internal market via means of full participation, while simultaneously having the freedom to sign additional trade deals with non-EU countries.

She also argues that both sides in the referendum made clear it was about the single market. But the single market was not on the ballot paper and was not often mentioned. When it was mentioned, some Leavers, like Dan Hannan, expressly declared that single market membership would not be affected. I recall well a common cut-and-paste statement from Leave supporters in Facebook posts beginning ‘The UK will not be leaving the EEA…’. Although David Cameron stated that leaving the EU meant leaving the single market, why should anyone be bound by his falsehood? And why should one claim made during the campaign be treated as politically binding, while others – notably those which appeared on the side of a bus – are not?

As for the customs union, May proposes a ‘have your cake and eat it’ version – a special deal simplifying border crossings, while being free to sign the UK’s separate international trade deals. Time will tell if this idea interests the EU.

A transitional deal

The Prime Minister accepts that the UK cannot switch immediately to a new arrangement, but cannot bring herself to support a transitional deal, saying ‘[i]nstead, I want us to have reached an agreement about our future partnership by the time the 2-year Article 50 process has concluded’. Such an arrangement would then be phased in. This time frame is unlikely, given that she wants a bespoke deal, involving special arrangements on customs and comprehensive free trade.  So what happens if the Brexit Fairy does not deliver by this deadline?

The role of parliament

Early on in the speech, May states that ‘the principle of Parliamentary Sovereignty is the basis of our unwritten constitutional settlement’. Unfortunately, these are empty words. A Martian reading this would assume that she had gone to court to try to ensure parliamentary involvement in the triggering of Article 50 – rather than to block it.

Furthermore, her speech comes in place of any white paper or any other public consultation on the best course to follow after Brexit. She ‘concedes’ that parliament will vote on the final deal, but this is not much of a choice – a free trade deal or nothing – unless there is an option to negotiate a different deal (not enough time) or to stay in the EU on the basis of another referendum on the exit terms (ruled out by the government).  In any event, it’s not a real concession: the Constitutional Reform and Governance Act of 2010 makes a form of parliamentary control a legal requirement in principle for most treaties. She made no commitment for a full Act of Parliament to approve the final deal – even though one is required for even minor changes to EU Treaties, and even for the approval of some EU legislation.

So May seeks credit for doing something she was anyway legally required to do. In fact, she deserves blame for previously threatening to ignore the law, and even now involving Parliament as little as possible and planning to offer it a fait accompli.

As for EU legislation converted to UK law, by the future Great Repeal Bill, she states that it will only be changed ‘after full scrutiny and proper Parliamentary debate’. This sounds nice superficially, but falls short of a commitment to use Acts of Parliament on key issues. Rather it sounds like an intention to use Statutory Instruments, which can’t usually be amended by Parliament and are rarely blocked. Without a commitment to use Acts of Parliament, her guarantee to uphold workers’ rights derived from EU law is worth rather less than she suggests; and there is no such commitment as regards environmental law.

The devolved administrations

The Prime Minister states that ‘we will put the preservation of our precious Union at the heart of everything we do’ and that she will ‘strengthen our precious Union’. However, her plan necessarily rejects the detailed suggestions of the Scottish government from December (discussed here) for the future EU/UK trade relationship.  So not only is the Scottish (and Northern Irish) public’s view on the desirability of Brexit is overridden, but also the Scottish government’s later views on how Brexit should take place are ignored. The Scottish government paper can hardly be ‘considered’ if it has already been overruled.

There’s a pledge not to weaken existing powers of devolved bodies, but there will surely be battles ahead over which level of government should exercise powers over devolved competences returned from the EU.  Conversely, there’s no suggestion of any granting any additional devolved powers, which might have been appropriate to address the obviously highly divergent views of Scotland, Northern Ireland and the rest of the UK. There’s another pledge to maintain the Common Travel Area between Northern Ireland and the Republic of Ireland, but this is content-free.

In short, there’s nothing here to ‘strengthen’ the Union at all. Its ‘preservation’ depends solely upon the continued argument that Scotland would be worse off outside the UK’s economic union – while simultaneously maintaining that the UK is better off outside the European version of the same.

Unity and Brexit

The Prime Minister declares that the referendum ‘victors have the responsibility to act magnanimously’, and the losers to accept the result. But she has not shown the slightest magnanimity in her speech today. She dismisses the arguments for staying in the single market made by those – like the Scottish government – who sought to remain in the EU but who believe that single market membership would be a reasonable compromise for a badly divided country.

More broadly, her emollient tone today cannot erase the memory of her conference speech in October – full of sneering references to ‘citizens of the world’ and the dreaded ‘liberal elites’ (cue the Star Wars Imperial March music). It’s a strange world in which Alexander Boris de Pfeffel Johnson – graduate of Eton and Balliol College – dismisses people like me – the grandson of a miner, the son and stepson of factory workers – as part of the ‘elite’.

Still less can her speech erase the memory of her Lord Chancellor failing in her statutory duty to defend the independence of the judiciary from screeching headlines about the ‘Enemies of the People’. And if she really believed in magnanimity in concrete terms, she could have announced a unilateral decision to let EU citizens stay in the UK.

Conclusion

Some of the Prime Minister’s speech is valuable – setting the right overall tone on relations with the EU, implicitly rejecting the more harmful 'WTO-only' option, and eschewing (hopefully genuinely) future derision of the 48% who took a different point of view in the referendum. But ultimately she has made the wrong decision on single market participation, putting politics ahead of the country’s economic interests. And key parts of the speech are vague, incorrect, misleading, hypocritical or fantasist. Perhaps we were better off with ‘Brexit means Brexit’.

Barnard & Peers: chapter 27

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