Temporary Protection for Ukrainians in the EU? Q and A

 

 

Professor Steve Peers, University of Essex

*updated March 2 2022 to include the Commission proposal for use of the temporary protection Directive, and guidance for applying EU external borders law.  Updated March 3 to refer to the Council agreeing on the decision. Updated March 4 to discuss the text of the decision. Updated March 28 to refer to guidance on and discussion of implementation. Updated 12 June 2024 to include later extensions of temporary protection.

**For assistance on seeking temporary protection in the EU, and guidance on implementation, see the links at the end of the blog post 

Among the many big developments over the last few days in response to the Russian invasion of Ukraine, there was an important potential asylum law measure – the decision to trigger the EU’s temporary protection Directive, a legal framework for mass influxes of people needing protection dating back to 2001 but never previously used.

Member States indicated 'broad support' for use of the Directive at the EU Council meeting of February 27. The Commission duly proposed a Decision to give effect to this on March 2, alongside guidance for applying EU external borders law. The Council agreed on the  Decision on March 3, and formally adopted it on March 4. It applied from the same day. So to fully understand the legal rules now applying to those fleeing the invasion, it's necessary to discuss both the 2001 Directive and the 2022 Decision to give effect to it. What do these new rules mean for the hundreds of thousands – if not millions – of people now fleeing Ukraine?

 

Which Member States does it apply to?

EU asylum law in principle applies to all Member States, except for the UK, Ireland and Denmark, which had an opt out from the Directive. The UK chose to opt in – although obviously this is now moot in light of Brexit. Ireland initially opted out, then opted in to the Directive in 2003. Denmark remains outside the scope of the Directive, but can choose to adopt its own rules on temporary protection if it wishes.

The parallel guidance on applying EU external borders law applies to all Member States except Ireland (because the other EU Member States that do not apply Schengen fully apply EU external borders rules in the meantime), and Schengen associates (Norway, Iceland, Switzerland and Liechtenstein). 

Note that EU Member States waived short-term visa requirements for Ukrainians back in 2017 already. This law applies to all Member States (and Schengen associates) except Ireland; and Ireland has recently waived short-term visa requirements for Ukrainians unilaterally.

 

Who is covered by temporary protection?

The Directive applies to a ‘mass influx’ of ‘displaced persons’. A ‘mass influx’ is defined as:

 …arrival in the [EU] of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the [EU] was spontaneous or aided, for example through an evacuation programme;

‘Displaced persons’ are defined as:

…third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular:

(i) persons who have fled areas of armed conflict or endemic violence;

(ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights;

‘Article 1A of the Geneva Convention’ refers to the definition of ‘refugee’ under the UN Refugee Convention – ie a well-founded fear of persecution on grounds of race, religion, political opinion, nationality or particular social group – although note that the Directive does not necessarily apply only to those who fall within that refugee definition (‘who may fall within’). Those fleeing Ukraine can point to the ‘armed conflict’ ground of the ‘displaced persons’ definition in this Directive – although note that the list of the two groups who are covered by the Directive is not exhaustive (‘in particular’), meaning that other groups of people might meet the definition too.

Note also that the Directive only applies to those leaving ‘their country or region of origin’. This ought to cover both Ukrainian citizens and non-Ukrainians who can argue that their ‘origin’ is in Ukraine (‘origin’ is not further defined). That scope is broader than the Refugee Convention, which applies where a person is: ‘outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country’ (or, if stateless, of their country of habitual residence).

Conversely, this means that the Directive does not apply to those whose ‘origin’ is not Ukraine. This might mean that it is interpreted to exclude non-Ukrainian citizens who have moved to Ukraine in recent years. But many of them still need to flee the invasion – and hopefully their need to flee and immediate humanitarian requirements will be recognised even if they technically fall outside the scope of the Directive.  

However, the scope of temporary protection is further defined in the Council decision, given that, according to the Directive, the decision must specify the groups of persons covered, although Member States can extend the regime to other groups displaced for the same reasons and from the same country or region of origin. But if they do so, the financial support provided for in the Directive will not apply to such groups.

According to the Decision, those covered by temporary protection are: 'the following categories of persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date':  

(a) Ukrainian nationals residing in Ukraine before 24 February 2022;

(b) stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022; and,

(c) family members of the persons referred to in points (a) and (b).

The Decision applies in a different way to another category of people: 

...stateless persons, and nationals of third countries other than Ukraine, who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.

For this group, 'Member States shall apply either this Decision or adequate protection under their national law'. Adequate protection is not further defined; the preamble adds only that it is 'to be decided upon by each Member State'. The preamble also refers vaguely to the procedure which would apply to this group:

Those seeking to benefit from the protection should be able to prove that they fulfil these eligibility criteria by presenting the relevant documents to the competent authorities in the Member State concerned. If they are unable to present the relevant documents, Member States should redirect them to the appropriate procedure.

Furthermore, the decision notes that, as referred to in the Directive:

Member States may also apply this Decision to other persons, including to stateless persons and to nationals of third countries other than Ukraine, who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin. 

The preamble gives an indication of who might fall within the scope of this option: 

Such persons could include third-country nationals who were studying or working in Ukraine on a short-term basis at the time of the events leading to the mass influx of displaced persons. 

And the preamble indicates that 'in any event' this group of fleeing people 'should...be admitted into the Union on humanitarian grounds without requiring, in particular, possession of a valid visa or sufficient means of subsistence or valid travel documents, to ensure safe passage with a view to returning to their country or region of origin'. This reflects the Commission's guidance on how to apply external borders law in light of the mass influx. 

This does not exhaust the list of further groups of people who might be optionally covered, as the preamble goes on to say: 

...Member States should be encouraged to consider extending temporary protection to those persons who fled Ukraine not long before 24 February 2022 as tensions increased or who found themselves in the territory of the Union (e.g. on holidays or for work reasons) just before that date and who, as a result of the armed conflict, cannot return to Ukraine.

Next, the Decision gives a definition of family members covered by temporary protection, 'in so far as the family was already present and residing in Ukraine before 24 February 2022': 

(a) the spouse of a person referred to in paragraph 1, point (a) or (b), or the unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its national law relating to aliens; 

 

(b) the minor unmarried children of a person referred to in paragraph 1, point (a) or (b), or of his or her spouse, without distinction as to whether they were born in or out wedlock or adopted;

(c) other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx of displaced persons, and who were wholly or mainly dependent on a person referred to in paragraph 1, point (a) or (b) at the time. 

How was temporary protection set up?

The Directive is just a framework for a possible temporary protection system. So the temporary protection regime was not established automatically, but only because the Council (ie Member States’ home affairs ministers), acting by a qualified majority on a proposal from the Commission, agreed that there is a mass influx of displaced persons. (In fact the vote in favour was unanimous).

According to the Directive, the Decision setting up temporary protection had to be based on:

(a) an examination of the situation and the scale of the movements of displaced persons;

(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures;

(c) information received from the Member States, the Commission, UNHCR and other relevant international organisations.

This information can be found in the preamble. 

The European Parliament has to be informed of the decision, but did not have a vote beforehand.

Also, the Council decision had to set out when temporary protection takes effect (in practice, as of March 4 2022); ‘information received from Member States on their reception capacity’; and ‘information from the Commission, UNHCR and other relevant international organisations’. Again, such information can be found in the preamble. 

 

How many people does it apply to?

The numbers covered by temporary protection are not necessarily unlimited. Member States had to ‘indicate - in figures or in general terms - their capacity to receive’ displaced persons. The Council decision setting up temporary protection had to set out these numbers. In practice, there is only a brief mention of this point in the preamble: 'over and above the absorption capacity of the Ukranian [sic] diaspora residing in the Union' a few Member States have indicated that they have capacity exceeding 310 000 places  Later on Member States ‘may’ declare that they have more reception capacity. 

If the numbers who are ‘eligible for temporary protection’ is higher than the numbers that Member States have said they can accept, ‘the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected’. It will remain to be seen what happens on this point.

If the numbers are exceeded, then (implicitly) Ukrainians not covered by temporary protection can still make asylum applications – but one could imagine that in this scenario, Member States would struggle to manage the numbers concerned.

 

How long will it last?

The starting point is that temporary protection is one year long, although it can be terminated early if the Council decides to end it, on a qualified majority vote on a proposal from the Commission, if the Council has established that conditions in the country of origin have improved sufficiently so ‘as to permit the safe and durable return’ of the beneficiaries.

After the initial year, temporary protection is automatically extended for further periods of six months to a two-year maximum. A further extension for up to a third year is possible, again on a qualified majority vote on a proposal from the Commission.

[update: in practice temporary protection was extended automatically for a second year. The Council then decided to extend it for another year. In June 2024 the Commission proposed to extend it for a fourth year, which is legally controversial].

 

What rights do people covered by temporary protection have?

Member States must issue residence permits for the duration of temporary protection. For those not yet on the territory, they must issue visas to ensure that they can enter. 

Also, Member States must permit temporary protection beneficiaries to take up employment or self-employment, but they may give priority to EU citizens and EEA nationals, as well as legally resident third-country nationals receiving unemployment benefit. The ‘general law’ regarding remuneration, social security, and other conditions of employment in each Member State applies.

As for social welfare and housing, Member States must ‘ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing’, and ‘shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care’ – which ‘shall include at least emergency care and essential treatment of illness’. Member States must also ‘provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence.’

For education, Member States must give ‘access to the education system under the same conditions as nationals of the host Member State’ for those under 18, but may confine this to the state education system. Admission of adults to the general education system is optional.

According to the Directive, Member States have to authorize entry of family members, ‘in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx’. But this only applies to ‘core’ family members: 

(a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted;

The Directive states that admission of a broader group of family members is only optional, ‘taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place’: 

(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time.

However, the rules on family members in the Directive have in effect been superseded by the Decision implementing it, which places both these categories of family members within the mandatory scope of temporary protection as such - without needing to take 'extreme hardship' into account. (The Decision does require that 'the family was already present and residing in Ukraine before 24 February 2022') 

Note that the Directive clarifies that Member States may adopt more favourable rules for persons covered by temporary protection. On this point, the preamble elaborates further: 

This Decision is compatible with, and can be applied in complementarity with, national temporary protection schemes, which can be considered as implementing Directive 2001/55/EC. If the Member State has a national scheme that is more favourable than the arrangements set out in Directive 2001/55/EC, the Member State should be able to continue applying it, since that Directive provides that Member States may adopt or retain more favourable conditions for persons covered by temporary protection. However, should the national scheme be less favourable, the Member State should ensure the additional rights provided for in Directive 2001/55/EC.

Finally, there is a right to ‘mount a legal challenge’ to exclusion from temporary protection or family reunion. CJEU case law on other EU migration law makes clear that this means access to the courts. 

Can temporary protection beneficiaries move between Member States?

There are two dimensions to this issue: before and after obtaining temporary protection. 

Before obtaining temporary protection, the preamble to the Directive states that: 

Ukrainian nationals, as visa-free travellers, have the right to move freely within the Union after being admitted into the territory for a 90-day period. On this basis, they are able to choose the Member State in which they want to enjoy the rights attached to temporary protection and to join their family and friends across the significant diaspora networks that currently exist across the Union. This will in practice facilitate a balance of efforts between Member States, thereby reducing the pressure on national reception systems.

So the Member States have explicitly agreed to 'applicants' choice' as regards seeking temporary protection, facilitated by the short-term free movement of Ukrainians after their visa-free entry . (The preamble is silent about the position of non-Ukrainians covered by the Decision in this respect). This is a Copernican revolution from the way in which the EU's Dublin system treats the allocation of responsibility for asylum applicants - although Syrians, Eritreans and other asylum seekers have diasporas too. Moreover, most asylum seekers are from countries whose nationals do not benefit from a visa waiver. 

After obtaining temporary protection, the Directive states that if a person with temporary protection from one Member State remains on or seeks to enter (without authorisation) the territory of another Member State without authorization during the temporary protection period, the Member State which granted temporary protection must take them back. This is similar to the EU's Dublin system on responsibility for asylum seekers (on which, more below). However, the Directive provides that Member States may agree bilaterally that this rule does not apply.

In fact, during negotiations on the 2022 Decision, all Member States decided to apply this option of not applying the take-back rule, adopting a statement (not yet published in the EU Official Journal, but referred to in the preamble to the Decision) agreeing not to apply this rule in order to support frontline Member States, unless Member States agreed bilaterally that the rule would apply after all. This is very much a 'gentlemens' agreement', given that it is opposite to the default rule in the Directive: in other words, it is a political commitment which is arguably not legally enforceable.

Note, though, that if a person with temporary protection from one Member State decides to move to another Member State, they have no right to insist that their temporary protection status is transferred. So they have no rights as such in that Member State, even though it has made a commitment not to request the first Member State to take them back. The preamble makes this point explicit: 

Once a Member State has issued a residence permit in accordance with Directive 2001/55/EC, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision. 

 

How does temporary protection relate to asylum applications?

The point of a temporary protection regime is to reduce pressure on asylum systems, as the preamble to the Decision reiterates: 

Introducing temporary protection is also expected to benefit the Member States, as the rights accompanying temporary protection limit the need for displaced persons to immediately seek international protection and thus the risk of overwhelming their asylum systems, as they reduce formalities to a minimum because of the urgency of the situation.

Indeed, it may well be the case in practice that most people with temporary protection will not feel the need to apply for asylum, as least as long as temporary protection is applicable. But the Directive nonetheless addresses what happens if they do apply for asylum.

According to the Directive, temporary protection ‘shall not prejudge’ refugee recognition under the Refugee Convention. It will be possible to apply for asylum ‘at any time’.* Any asylum application not processed by the end of the temporary protection period has to be processed afterwards.

However, Member States can deter applications for asylum by providing that a person cannot hold temporary protection status simultaneously with the status of asylum-seeker (the reason that this would deter applications is that asylum-seekers usually have fewer rights than temporary protection beneficiaries would have). But if an application for asylum or other protection status fails, a Member State must continue to extend temporary protection status to the beneficiary.

Member States may exclude a person from the benefit of temporary protection on grounds identical to the Refugee Convention exclusion clauses (ie war crimes/crimes against humanity, serious non-political crimes, or acts against the principles and purposes of the UN), or the Refugee Convention clauses on exclusion from non-refoulement (ie ‘there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State’). Exclusions ‘shall be based solely on the personal conduct of the person concerned’, and must be ‘based on the principle of proportionality’.

As for which Member State would be responsible for considering an asylum application, the EU’s Dublin rules will determine in which Member State an application is made. In most cases, this will mean that the Member State that granted temporary protection is responsible for considering the application, because that entails issuing a residence permit, and the Dublin rules assign responsibility to a Member State which issued a residence permit. (This takes precedence, under the Dublin rules, over the responsibility of the Member State of first entry).  

Unfortunately, the temporary protection Directive could muddy the waters somewhat, as it refers to the Member State which has accepted the transfer of the person onto its territory being responsible. It is not clear if that is a different issue from being the Member State which issued the residence permit. Also the commitment not to send back temporary protection beneficiaries to the Member State which granted temporary protection overlaps awkwardly with the Dublin rules which would normally require this to take place for asylum seekers. 

  

What happens once temporary protection expires?

Once the temporary protection regime ends, the ‘general laws’ on protection and on foreigners apply, ‘without prejudice’ to certain specific provisions in the Directive. Arguably the reference to the ‘general laws’ must now be understood as a reference not only to the relevant national legislation, but also to EU rules on asylum and the EU’s Returns Directive, which were adopted after the temporary protection Directive. However, the Returns Directive explicitly gives way to more favourable rules in other EU immigration or asylum law - which includes those in the temporary protection Directive. 

For those applying for asylum, that means that the definitions of refugee and subsidiary protection in the EU’s qualification Directive will apply, along with the procedural rules in the procedures Directive and the rules on the status of asylum seekers in the reception conditions directive. The EU’s Dublin rules will determine in which Member State an application is made, although the temporary protection Directive includes some (unclear) additional rules on that issue.  

It’s also possible that Ukrainians could obtain another form of legal status, under the national or EU laws on legal migration (EU law has partly harmonised national laws on this issue).

Those who do not obtain legal status via an immigration or asylum route will in principle have to leave. The specific rules in the temporary protection Directive concerning return first of all provide for rules on voluntary return. Many (but not all) Ukrainians would likely wish to return voluntarily anyway, if the situation improves; but it’s anyone’s guess if it will do.

There is an express possibility of enforced return of persons after the regime has ended, but such return must be ‘conducted with due respect for human dignity’, and Member States ‘shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases’. They must also ‘take the necessary measures concerning’ residence status of former beneficiaries of temporary protection ‘who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted’. Specifically, those persons ‘shall not be expelled so long as that situation continues.’ Finally on the issue of return, Member States have discretion over whether to let children complete their school year.

 

Comments

When the Directive was adopted back in 2001, there was concern among asylum specialists that it might undercut the Refugee Convention, in particular providing a possibility for Member States to set up a system with a lower standard of protection instead of considering asylum applications. In practice, the EU has since adopted two phases of asylum laws, modestly enhancing the level of protection when adopting the second phase. 

But following an initial welcome of people fleeing the Syrian civil war at the outset of the 2015-16 'refugee crisis', EU asylum law took a dystopian turn in practice. Pushbacks from the territory.  Collaboration with dubious non-EU countries like Libya, to keep asylum-seekers from reaching the EU in the first place - even if it meant they remained subject to appalling treatment in that country.  Detention of asylum seekers in unpleasant conditions. A questionable, but legally unaccountable, quasi-agreement with Turkey. Informal - and again unaccountable - readmission arrangements. A border agency subject to increasing concerns about the legality and morality of its behaviour. 

The descent of asylum law in practice into this moral abyss has shown the EU and its Member States at their worst. But today's temporary protection decision shows the EU at its best - precisely because it waives so many of the basic precepts of its usual asylum rules (visa requirements, detention, procedural rules, the Dublin system, family reunion conditions, limits on employment).  This can only be welcome, but it raises obvious questions about the double standards which apply to others fleeing war or persecution.

Assistance with and guidance on temporary protection 

Commission guidance on implementation of the temporary protection decision

Council discussion paper on coordination of implementation

ECRE compilation of information from different Member States

Luxembourg government

NGO in Luxembourg 

Austrian government hotline for those needing humanitarian assistance and legal aid

(section added March 4 2022, updated March 28 2022)

Further reading

2016 report on the implementation of the Directive in Member States' national law in 2016. Note that now the temporary protection Directive has been activated in practice, Member States might decide to revise their implementing measures. 

UK Statutory Instrument 2005/1379 implementing the Directive; UK Statutory Instrument 2019/745 repealing SI 2005/1379 in light of Brexit (see reg 52). 

(section added March 2 2022)

 

Photo credit: Leonhard Lenz, via Wikimedia Commons

*Corrected on Feb 28 2022 to drop the statement that 'Member States may delay consideration of an application for Convention refugee status until the temporary protection has ended'. In fact the Directive does not explicitly provide for this as such - although as noted, if a Member State chooses not to permit the status of asylum seeker concurrently with that of temporary protection, in practice this is likely to deter asylum applications as long as temporary protection applies. 

Brexit means Brexit for UK nationals and EU citizenship: analysis of an Advocate-General’s opinion

 

Professor Steve Peers, University of Essex

Did British citizens retain their EU citizenship after Brexit? The EU and the UK government assume not, but some Brits have begged to differ.

The issue has reached the EU courts in several ways. Three cases went directly to the EU General Court, challenging the EU Council’s decision to conclude the withdrawal agreement, on the grounds that the agreement (in the applicants’ view) wrongly removed their EU citizenship. Last August, the EU General Court rejected all these cases for lack of standing; the applicants have all appealed to the CJEU. (See my compilation of Brexit litigation for further details).

Two cases reached the CJEU via national courts sending questions about the interpretation of EU law and the validity of the decision to conclude the withdrawal agreement. This route does not raise standing problems. The first of these cases (Case C-673/20 EP) has led to an opinion of an Advocate-General of the CJEU yesterday – which argued that British nationals have lost their EU citizenship as a result of Brexit, and the decision concluding the withdrawal agreement was valid.  

Summary of the opinion

The opinion begins by quoting Article 9 TEU: “Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship” – and noting that Article 20(1) TFEU is nearly identical. It then summarises the specific issue in this case: the loss of local election voting rights of a UK citizen in France, due to her loss of the status of EU citizen (which entails such voting rights) as a consequence of Brexit. Interpreting these Articles in the context of the Treaties as a whole, the Advocate-General states that:

Article 9 TEU and Article 20(1) TFEU provide that Union citizens must be nationals of a Member State. Union citizenship is additional to, and does not replace, nationality conferred by the Member States. In that context, it is important to acknowledge that the Member States could have decided to pool their competences and to confer on the European Union the power to determine who is entitled to become a Union citizen. That explicit choice by the Member States not only renders the European Union powerless to create Union citizenship independently from nationality as conferred by the Member States, but also raises a constitutional barrier to such a power being implied under Union law. [para 22]

This is an answer to those who argue that the EU could confer EU citizenship as such on Brits, Russians or any other nationals of non-EU countries. It leads to his next point, dismissing the relevance of the previous CJEU judgments on the limits of the loss of EU citizenship which were referred to by the applicant (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here) on the grounds that they all concern the loss of EU citizenship via means of loss of nationality of a Member State.

By comparison, the UK’s withdrawal from the EU took place on the basis of Article 50 TEU, which had the consequence of the UK ceasing to be a Member State. Article 50(3) TEU states explicitly that ‘the Treaties shall cease to apply’ to a State that leaves the EU when a withdrawal agreement enters into force, or ‘failing that’ two years after its notification to leave (unless that time frame is extended by mutual agreement). The opinion interprets this to mean that:

…In consequence, the United Kingdom no longer resolved, inter alia, to establish a citizenship common to that of the nationals of EU Member States or to create an ever closer union among the peoples of Europe. Since the existence of Union citizenship depends upon the acquisition and possession of the nationality of a Member State, and the United Kingdom voluntarily abandoned that status in the manner prescribed by Union law, British nationals ceased to be Union citizens. [para 28]

He then examined – and dismissed – the specific arguments made by the applicant. First, she argued that she retained her EU citizenship despite the UK leaving the EU. In his view, since the EU ‘has freely determined that acquisition of citizenship of a Member State is a condition precedent for the conferral of Union citizenship’, her argument that links to a State ground a claim to that State’s nationality fail. Equally, in his view, her argument that her links with France prevent deprivation of her EU citizenship must fail, as she could always claim French nationality (and therefore EU citizenship): “[w]ithout her possession of the nationality of a Member State, France cannot recognise EP as a Union citizen.”

Although EU citizenship, according to case law, aims to integrate EU citizens into the society of the host State, this did not mean, in the Advocate-General’s view, that the history of such integration in an individual case prevented the loss of EU citizenship:

…In addition to the objection that EP, like all other British nationals, ceased to meet the essential precondition for the enjoyment of the status and benefits of Union citizenship, namely Member State nationality, as a direct consequence of the United Kingdom’s sovereign decision to withdraw from the European Union, it may further be observed that the integration of third-country nationals into the societies of the Member States is not among the goals furthered by Union citizenship. [para 34]

A brief reference in the Rottmann opinion to the independence of EU citizenship from Member State nationality was not relevant either, as that opinion also made it clear that nationality of a Member State was a condition to have the status of EU citizen: “far from supporting the proposition advanced by EP, point 23 of the Opinion of Advocate General Poiares Maduro in Rottmann entirely undermines it” [footnote omitted].

…It describes the rationale for Union citizenship being contingent upon holding the nationality of a Member State as the Member States’ mutual commitment to construct a new form of civic and political allegiance on a European scale. By its sovereign decision to leave the European Union, the United Kingdom signalled its clear determination to repudiate that commitment. In the context of that act by a sovereign State, an individual cannot seek to rely upon his or her British nationality to assert a claim either to Union citizenship or to its benefits. [para 37]

A technical argument about the scope of the transition period in the withdrawal agreement (discussed here) failed too: the opinion concludes that only some EU law continued to apply to Member States as regards UK nationals during that period, and this did not include voting rights in local elections.

The opinion then returns to the argument that the judgments in Rottmann, Tjebbes and Wiener Landesregierung – which require that the loss of EU citizenship via the loss of Member State nationality require an individual decision subject to proportionality, legitimate expectations, and the right to be heard – apply to Brexit. Here, the Advocate-General reiterates more fully that the earlier rulings do not apply by analogy to a State withdrawing from the EU:  

…The principle of proportionality requires that a competent authority balance conflicting rights and norms before taking a decision affecting an individual. The circumstances of this case require no balancing by the deciding authority that would take account of EP’s personal circumstances. As a direct result of the sovereign decision of the United Kingdom to withdraw from the European Union, a person in EP’s position lost the right to vote and to stand as a candidate in municipal elections in France, her Member State of residence. It is that sovereign decision, not that of a Member State or any authority thereof, that caused EP to lose the benefit of those rights. [para 42]

The applicant could not compare herself to a stateless person, as she remains a national of the UK:

…She can address any issue that she may have concerning her status or rights as a British national to the United Kingdom authorities. France or the European Union are incapable of playing any role in such a dispute. [para 43]

The same applied to her argument based on legitimate expectations:

…Any breach of legitimate expectations that EP may wish to ventilate concerning her status as a Union citizen is to be addressed to the United Kingdom, which has withdrawn from the European Union, and not to either the French authorities or to the European Union. [para 44]

And also to the argument that ‘the French authorities stripped her of the right to vote and to stand as a candidate in municipal elections, thereby depriving her of the right to participate in the democratic process’:

…Any deprivation of her right to participate in the democratic process as a British national arises exclusively as a consequence of United Kingdom law. [para 45]

Nor could she rely upon the principle of non-discrimination on grounds of nationality, in Article 18 TFEU, because although that principle applied to UK citizens during the transition period in general, the specific issue of voting rights was excluded from it by the withdrawal agreement, and non-EU citizens are in a different position than EU citizens. However, it remains to Member States, if they so choose, to allow non-EU citizens to vote in local elections.

Finally, in light of his analysis, the Advocate-General answers the specific questions referred by the national court to the effect that:

-          due to the UK’s decision to leave the EU and the withdrawal agreement, UK nationals are no longer EU citizens; any legal questions arising from this are a matter for the UK, outside the CJEU’s jurisdiction;

-          various Treaty articles and the withdrawal agreement do not preserve EU citizenship rights for UK nationals, because the UK has ceased to be a Member State and ‘the exercise of rights conferred by Union law does not furnish any legal basis upon which an individual’s status as a Union citizen falls to be determined’; and

-          the decision concluding the withdrawal agreement is valid, because the loss of voting rights follows from the UK’s decision to leave the EU, considering that the EU (according to prior case law) has a wide discretion in external relations and did not exceed the margins of that discretion.

More fundamentally, as to whether the withdrawal agreement ‘infringes certain principles underlying EU identity and is disproportionate since it contains no exception to the rule that British nationals lose the rights attaching to Union citizenship’, the opinion argues:

…Since the United Kingdom’s sovereign choice to leave the European Union amounts to a rejection of the principles underlying the European Union, and the Withdrawal Agreement is an agreement between the European Union and the United Kingdom to facilitate the latter’s orderly withdrawal from the former, the European Union was in no position to insist that the United Kingdom fully adhere to any of the European Union’s founding principles. Nor could the European Union secure rights that, in any event, it was not bound to assert on behalf of persons who are nationals of a State that has left the European Union and who are therefore no longer Union citizens. Finally, since Union citizenship depends upon the possession of Member State citizenship, no response other than the exclusion of British nationals from the definition of Union citizens was possible whilst remaining within the scope of the Treaties. [para 75]

Comments

Advocate-General’s opinions are not binding on the CJEU judges, so this is not the final word on the legal issues yet. But let’s examine what the opinion would mean if the judges follow it.

The opinion is, first and foremost, a complete rejection of the argument that UK citizens retain EU citizenship after Brexit. It explicitly applies whether those UK citizens have exercised free movement rights or not; and although it is focussed on voting rights (the subject-matter of the case) there is no logical reason to limit its effect to voting rights only. So the free movement rights of EU citizenship have also been lost – after the end of the transition period. (The applicant’s technical arguments about whether the transition period exceptions applied to Member States – even if those arguments had been successful – would anyway be moot now, following the end of that period).

The Advocate-General mentions the prospect of the applicant obtaining French citizenship (therefore EU citizenship), but not all UK citizens would find that route so easy. However, this is not crucial to the main logic of his legal argument, which is simply that EU citizenship depends on holding the nationality of a Member State – and the UK is no longer a Member State.

Moreover, in the view of the Advocate-General, the responsibility for the UK no longer being a Member State is solely that of the UK, given that the UK took a unilateral decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed here and here). It follows implicitly that this case was not about whether Brexit itself was legally valid, since that was a matter for UK law (and that issue was not even raised by the national court). This is apparently sufficient in itself to defeat the argument relating to legitimate expectations, without needing to examine whether the EU created such expectations.

The Advocate-General does not discuss the common line of argument that ‘there is no provision explicitly detailing what happens to EU citizenship when a Member State leaves the EU’, presumably because he considers his conclusion as to the requirement of a link to the nationality of a Member State sufficient. If necessary, though, the response to that argument is simply that (as the opinion points out), Article 50 states that the Treaties cease to apply to the withdrawing Member State; and the Treaties create the concept of EU citizenship.

As for the analogy which the applicant sought to draw between Brexit and the prior CJEU judgments on the loss of EU citizenship, the opinion convincingly argues that the prior judgments confirm the link between Member State nationality and EU citizenship, not weaken it. For if EU citizenship could exist independently of holding Member State nationality, on the basis that the person concerned had once held the nationality of a Member State, then those judgments would have reached their conclusions on an entirely different basis. The whole point of the prior judgments is that the loss of Member State nationality fell within the scope of EU law because it led to the loss of EU citizenship.

The applicant’s argument turns on an assumption that EU citizenship is a status linked to individuals, not a status linked to a state’s membership of the European Union. But while there could well be an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the opinion confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

A further argument, not discussed by the Advocate-General, is that a comparison with the means of acquisition of EU citizenship is unhelpful to the applicant too. Brexit is a collective loss of EU citizenship, not an individual loss; so the better analogy is not with the case law on individual loss, but with the mechanism of collective acquisition. And the means by which nationals of the last 16 Member States to join the EU collectively obtained EU citizenship was those States’ accession to the EU on the basis of Article 49 TEU. It logically follows that the collective loss of EU citizenship follows logically from the parallel process of leaving the EU set out in Article 50.  

Photo: Garry Knight, via Wikimedia commons

Barnard & Peers: chapter 26

Hunting the Benefits of Brexit

 

 

Stephen Weatherill, Jacques Delors Professor of European Law (Emeritus), Faculty of Law and Somerville College, University of Oxford.

 

Introduction

Two reports published on the same day, 31 January 2022, appear likely to help us to understand what are the consequences of the decision to leave the European Union taken by the people of the United Kingdom in June 2016, over five and a half years ago. At last, one might suppose, we can reckon with what Brexit truly entails, beyond the vacuous slogan "Take back control!" and the dismal evasion of policy detail captured by "Brexit means Brexit!". And yet …

"The Benefits of Brexit: how the UK is taking advantage of leaving the EU" is a report published by the UK government - hereafter Benefits of Brexit. "Doing Things Differently? Policy after Brexit" is a report published by UK in a Changing Europe, an ESRC-funded body based at King's College London - hereafter Doing Things Differently?. And, to declare an interest, I wrote the short comment on Consumer Protection in this report.

Both reports aim to chart the trajectory of Brexit Britain's new found regulatory freedoms. Both reveal how little has been done so far in the two years since the UK left the EU. Doing Things Differently? Is sober, detailed and thoughtful on why this is and on what may be expected in future. Benefits of Brexit is, in stark contrast, disingenuous in its misdescriptions of the consequences of Brexit and shameless in its inflated claims about joys to come in future.

 

Benefits of Brexit: four strands

Benefits of Brexit offers a glossy 105 pages of exultation about having taken back control. It careers widely and wildly across the terrain of Brexit, shouting about what to do with this new regulatory freedom. But anyone hoping for detail - costed, impact-assessed, granular detail - will be disappointed. It is not supported by cost-benefit analysis: in fact it is full of claims about benefits, but it is rare to find even a hint that there may be costs too.

The report is wearyingly unsystematic, repetitive and rambling. This is probably deliberate. It appears to be designed to conceal the need for detailed inquiry beneath a splurge of performative energy and a blizzard of misdirection. But there are lurking within it four distinct strands to its zeal to identify "Benefits of Brexit". The four share the common feature that none of them truly counts as a Benefit of Brexit. The list of four comprises, first, changes that the UK could make today which could have been readily made as a member of the EU; second, changes which are a consequence of Brexit but which entail disadvantages for the UK not advantages; third, changes which are highly unlikely to be made for good economic, political and legal reasons; fourth, changes which are little more than pie in the sky - they are vague appeals to an imagined future world of bounty.

Strand one: Changes that the UK could make today which could have been readily made as a member of the EU.

Scattered through Benefits of Brexit are claimed benefits of Brexit which are at best only marginally facilitated by Brexit and at worst of no relevance at all to Brexit. Some are familiar tropes. Page 6 promises a review of "the EU ban on imperial markings and sales", and page 7 advises that it will be possible once again to use the crown stamp on pint glasses. But there was no EU ban on imperial markings and sales, nor on use of the crown stamp on pint glasses. EU law requires only that metric measurements be used, and does not preclude that they be accompanied by imperial measures. Similarly it requires a CE mark on pint glasses but does not preclude the addition of a crown stamp.  (Whether such trivial matters deserve any place on a checklist of governmental policymaking is another question, as is the claim at page 6 that imperial units "are a core part of many people's British identity"). Much play is made of the Turing student educational exchange scheme (pages 13, 80) which, we are told, will engage mobility worldwide in over 150 destinations. But although the ERASMUS scheme funded through the EU was focused on Europe nothing prevents an EU Member State putting in place its own global version. The Turing Scheme could have been created as a self-standing supplement to ERASMUS while the UK was a member of the EU. And - of course - no celebration of Brexit would be complete without welcome for the return of blue passports, and page 6 of Benefits of Brexit dutifully cites their reintroduction. But EU law never stopped the UK from preferring blue passports. In similarly deceitful vein page 9 cheers the opportunity to reduce taxes on alcohol but the UK's relatively high taxes on alcohol are a domestic choice not an EU obligation. Why else were UK consumers so eager to buy their booze in the hypermarkets of Calais and points South, where - in the EU - prices were so much lower than in the UK largely because of the local disinclination to tax wine heavily or at all?

At least in these instances the matters cited have some connection of sorts with EU law and practice. In other areas Benefits of Brexit makes claims to regulatory changeability as a result of Brexit which are simply false because EU law has little or nothing to say about the matter, in some circumstances because the matter lies beyond the reach of the EU's competence. Consider selling heritage products like Burberry, Northampton handmade men's welted shoes, and Harris Tweed (page 58), a new independent regulator for English football (page 64), safer streets (page 65), allowing people to get married at sea (page 75) and Community Forests (87). Good things? Quite possibly. Things now feasible only as a result of Brexit? Absolutely not.

There are still more egregious claims to be found in Benefits of Brexit: consider deploying HMS Queen Elizabeth to the Bay of Bengal (page 18), hosting COP26 and working through NATO (page 99). These have no legitimate place in a report which purports to catalogue consequences of Brexit.

There would be value in a report which pins down what really is changeable as a result of Brexit. (Even more value had it been prepared before June 2016). Benefits of Brexit is not that report. It lacks rigour. Actual or potential changes which are opened up by Brexit are not separated from actual or potential changes that could have been made as a Member State of the EU. The result is analytical mush.

 

Strand Two: Changes which are a consequence of Brexit but which entail disadvantages for the UK not advantages

The most spectacular example of this second type of misdescription is found in Benefits of Brexit's claims about action taken to reduce friction at the UK's (more precisely, GB's) borders. Technical work is underway to make export health certificates operate digitally, and this involves discussions with EU partners (page 10). Digitisation more generally is presented as a means to reduce trade barriers (pages 42-43, 94-95). Page 74 commits to reducing frictions in supply chains.

This is desirable, but as far as trade with the EU-27 is concerned this is about reducing the costs of the frictions introduced as the direct consequence of Brexit. Withdrawal from the EU, especially when accompanied by abandonment of its customs union and the ecosystem of its internal market, guarantees exposure to the barriers to trade which, inside the EU, membership has consigned to history. That is not a benefit of Brexit - it is a cost of Brexit. Benefits of Brexit is a title to be taken scrupulously literally: it does not even acknowledge that there may be consequences of Brexit which are not benefits.

There are other manifestations of this sly attempt to depict attempts to reduce the harm flowing from Brexit as benefits, and they are equally unconvincing. Page 11 heralds the creation of a domestic scheme to protect geographical indications, but leaves unmentioned that UK producers used to enjoy EU-wide protection guaranteed by EU rules. Duty free shopping is welcomed at page 14, but that is a poor substitute for the rights enjoyed by a consumer in the EU to bring home from another Member State unlimited amounts of goods for personal consumption without the need to pay any difference in taxation between that levied in state of purchase and state of residence.

 

Strand Three: Changes which are highly unlikely to be made for good economic, political and legal reasons.

Much of Benefits of Brexit is devoted to bite-sized summaries of gleefully bright horizons across a number of sectors of the economy, but the reality is that the UK is likely to find that departing from the EU model is costly, even if possible in principle. There is barely any recognition in Benefits of Brexit that regulatory changes which are in principle possible after Brexit may be opposed by interest groups, contradict economic rationality or even violate international legal norms. The report presents a vision of a UK unshackled from EU obligations, as if there are no other sources of influence which constrain regulatory freedom. It is here that Doing Things Differently? is particularly helpful in offering a more sober narrative.

Take procurement. At page 79 of Benefits of Brexit we are told that the regime will be made simpler, allowing the £300 billion spent annually on public procurement "to generate social value and unleash opportunities". How did EU rules restrain this? We are not told. How much is lost as a result of the impediments created by Brexit to ability to compete in EU markets and to have EU suppliers compete in the UK? This is ignored. Sanchez-Graells, writing on the subject in Doing Things Differently?, acknowledges the play made of loosening procurement rules in the Leave campaign during the referendum, including promises to use Brexit as a means to "Buy British". But a chapter in the Trade and Co-Operation Agreement which sets the terms for the UK's future relationship with the EU commits the UK to a set of rules which largely replicate the market access commitments which apply within the EU, and the UK has also assumed obligations which applied to it via the EU when it was a member state found in the Government Procurement Agreement of the World Trade Organisation. Consequently, as Sanchez-Graells notes, the UK government issued a notice in February 2021 which explains the high level of continuity in obligations, Brexit notwithstanding. Such changes as have been made, such as a fresh approach to assessing social value in government contracting, are described as "modest" by Sanchez-Graells, and "most, if not all, would have been possible before Brexit". It means that "there is virtually no scope for a Buy British policy", and so he concludes that "not much has changed and, rhetoric apart, there is limited scope for further change", especially given the density of existing international commitments.

Freedman and Loutzenhiser make similar points about tax in Doing Things Differently?. The extent of existing international treaty obligations combined with the domestic pressure to legislate to curtail tax avoidance make it unlikely that Brexit will herald major changes even if in principle the obligations of EU membership are now at an end. In fact, far from reducing taxes, the Finance Act 2021 raised corporation tax from 19% to 25% with effect from April 2023 - which, as they point out, could have been done as a member of the EU. In similar vein scope for freeports is widened by the ending of the application of EU state aid rules in the UK (subject to Article 10 of the Ireland/Northern Ireland Protocol) but there are persisting international obligations which circumscribe UK regulatory autonomy in the field. They point out that the UK has chosen to remove VAT on women's sanitary products but at a more general level with Brexit comes complexity for traders selling into the EU who need to find a way through the VAT registration process. Benefits there may be - costs there certainly are. Overall Freedman and Loutzenhiser predict only modest changes in the field of tax.

Energy is another sector in which, according to the contribution of Watson and Drummond in Doing Things Differently?, the UK has not chosen to pursue any significant deviation from EU rules. Nor do they predict any such shifts. In the case of eco-design regulations and the development of the broader circular economy, they find that UK government proposals published in November 2021 have a "similar focus" to the EU's, and that maintaining "market access for regulated products may constrain future divergence." Kassim makes similar observations about aviation, which is "a sector where international regulation is extensive and detailed, leaving little scope for independent lawmaking, regulatory divergence or policy experimentation"". It means for example that safety standards set by the International Civil  Aviation Organisation are now implemented in the UK by the Civil Aviation Authority rather than the European Air Safety Agency (EASA) "but since the UK has little discretion over the substance of the rules, regulatory autonomy is an empty shell".

Bailey and Rajic tell a similar story of constrains imposed by international agreements in relation to autonomous vehicles, and caution too of the economic costs of diverging from EU practice as it emerges. Jordan tells a story of "policy parallelism" between the UK and the EU in relation to climate change, an area where international action is plainly required and where moreover the EU-UK Trade and Co-operation Agreement is relatively robust in the nature of its commitments. Treatment of genetically modified organisms and gene editing have been areas where it has been suggested the UK could be bolder than the EU, but Ely's essay in Doing Things Differently? concludes cautiously that "the government is coming to understand the complexities of reconfiguring a tightly interwoven set of technical, legal, and institutional arrangements, and the political challenges of balancing public opinion, strategic industries, and different trade interests". Freeguard notes that the UK has not yet moved from general EU data protection rules to specific UK ones, "suggesting reform may be more difficult than it looks" and he thinks it "tough for the UK to develop a distinct direction" given the clout of China, the EU and the US as dominant regulators in the field of data systems.

Financial services is a sector in which the UK has chosen to prioritise regulatory autonomy over alignment with the EU's rules. The contribution of Hall and Heneghan to Doing Things Differently? spells out the consequences. Reduced market access has so far led to some 7,400 jobs and 1 trillion euros worth of capital moving from London to financial centres in the EU-27. This, they note, is only the start: numbers will rise once COVID-related restrictions are lifted and EU rules become still more restrictive. The UK's aim is to improve the global appeal of London as a place to do business in financial services, but Hall and Heneghan cite research which shows it is highly unlikely that trade with countries more geographically distant than the EU can compensate for the losses.

Doing Things Differently? therefore tells a story of relatively modest substantive changes in most sectors, for good and carefully explained reasons associated with continuing legal obligations and economic connection and geographical proximity to the EU. Most of all the UK is simply not big enough to become a dominant regulator. Benefits of Brexit is hopelessly incomplete in its account, for it fails to engage with evidence and detail which would challenge its portrayal of Brexit as a new dawn for the UK's regulatory freedom.

 

Strand Four: Changes which are little more than pie in the sky - vague appeals to an imagined future world of bounty.

The tone of Benefits of Brexit is bright and breezy. A charitable interpretation would treat it as sunnily optimistic, eager to please and to inspire. A grumpier verdict would condemn it as fatuously uncritical. Everything, it seems on page after page after page, is for the best in this best of all possible Brexit worlds: the newly unshackled UK is about to soar to success on a wave of fresh and energetic regulatory reform.

This covers both the changed regulatory techniques which the post-Brexit UK intends to deploy and the particular sectors in which it proposes to unleash this new dynamism. This is truly the heart of any plausibly successful Brexit. The UK needs to show how it will do things differently, now that it no longer subject to the obligations of EU membership, and it needs to present some kind of case to underpin claims that doing things differently will mean doing things better.

Benefits of Brexit is rich in its glowingly positive vocabulary, but much less persuasive in its substance.

Pages 20 - 33 chart the intended approach to regulatory strategy, and the sub-section carries the title "The Best Regulated Economy in the World". Modesty and caution have no place in Brexit Britain! Let the opening paragraph on page 20 speak for itself:

"Our regulatory system is recognised globally. We want to raise the bar even higher as we embrace our new found freedoms outside of the EU and position ourselves as a global hub for innovation and a science and technology superpower".

The British are coming!

The pages that follow take vainglory to towering heights. One can expect a "supercharge" in sectors where the UK has competitive advantage (page 21); cutting-edge technologies will be unlocked (page 22). Five stated regulatory principles burst the banks of banality. There will be a "sovereign approach", the UK will lead from the front; proportionality will reign; there shall be recognition of what works; and there shall be high standards set at home and globally. It will be strategic! Holistic! Efficient!

Digging too deep into this mire of verbiage invites misery. Let page 26 capture the mood:

"Outcome-focussed, experimental regulators. We will encourage bold, outcome focused and experimental activity from regulators, who will work collaboratively with businesses, for example using test -beds and sandboxes to support innovation and the co-creation of future industries."

It's regulatory reform the David Brent way.

There is nothing wrong with identifying organising regulatory principles, and the five chosen by Benefits of Brexit are mostly well-intentioned if vague, even if one might wonder whether any other country appreciates or even cares that the UK is planning to "lead from the front". What really counts is how the principles are put into practice. Sector by sector, how is Brexit going to be exploited to improve the shape of UK regulation and consequently the performance of its economy?

Benefits of Brexit sweeps its gaze across a number of sectors. It is a "World of Future Opportunities", as the title on page 34 claims.  The UK will be "a science superpower by 2030" and "a global hub for innovation by 2035" (page 36). How? By creating a "research and development ecosystem" which will - of course - be "world class", and by establishing a new agency which will operate "with minimal bureaucracy". Top scientists will be encouraged to move to the UK. It is not explained how. As for quantum technologies, the UK has a "unique global position" (page 38), though no explanation is offered of what is unique about it. But a new strategy and a "top class environment" for quantum technology is promised. The digital economy, we learn, is thriving, and is to be supercharged, and data flows underpin exports worth over £83 billion to 2022 priority countries, which are the USA, Australia, Dubai, Korea, Singapore and Colombia. How the gravity model of trade has been refuted is not explained. A "pro-innovation" approach is promised, which will be more agile and lighter-touch than the EU's (page 40), and the next page, 41, claims the UK approach will be "more flexible and targeted" than the EU's. Details come there none.

A UK data protection regime will be created which will be "ambitious, pro-growth and innovation-friendly". (Who would promise the opposite?) This is important enough for the exact same phrase to be used twice in the space of eight lines on page 40. In new technologies the UK "can become a world leader" (page 41), and the same phrase and claim attaches to digital trade (page 43), where, we learn, the UK recently "spearheaded" the adoption of a set of G7 digital trade principles. This barrage of jubilation is exhausting, yet it goes on and on, a cascade of unverifiable claims to current superiority and future pre-eminence. Financial services will be "at the forefront of the major global trends … over the coming decade" (page 48), backed by "nimble policymaking and agile regulation" (page 49); a "first in class regulatory landscape for professions" will be created (page 50); a "progressive regulatory and business environment for new aviation technology" will be developed, which will be (in some undefined) way) "less prescriptive" than the EU's (page 56). In the field of agriculture, surely a place for concrete post-CAP ideas, we are offered the desire that "we want people around the world to be lining up to buy British" (61) and a promise to "do even more to supercharge our burgeoning English and Welsh wine industry" (page 62).

Throughout Benefits of Brexit it is not enough to be good, nor even to be better, the UK must be best. The UK is to become "the safest place in the world to be online" (page 44). There are no prizes for guessing which country will "set the global standard for a risk-based proportionate regulatory framework" for online safety (page 44). The UK has "taken the lead globally" in cybersecurity (page 45) and is to be a "Life Sciences superpower in the next ten years" (page 46). One wouldn't know how this will be achieved from Benefits of Brexit but the report asserts that Brexit "gives us the opportunity to design a world-class sovereign regulatory environment for clinical trials" (page 46) and "a world-leading regulatory framework for medical devices" (page 47). So too the UK will be "world leading when it comes to road safety" (page 74). There will be a "world leading approach to green finance" (page 84), and the Environment Act 2021 is - wait for it - "world-leading" (page 86). Anyone with any awareness of the series of Home Office blunders and scandals in recent years, let alone those actually on the wrong end of policy horrors such as Windrush, will gasp at the effrontery of the claim that in matters of immigration "We intend to be global leaders in providing a streamlined and seamless experience " (page 96), and that at the UK border there will be contactless solutions to create "a world class customer experience" (page 97).

It's easy to mock this puppy dog enthusiasm. It's impossible not to, in truth. Benefits of Brexit is world leading in flim flam and shiny enthusiasm. Use the search function: "innovation" appears on 79 occasions; global/ globalised/ globally - 126; transform/ transforming/ transformation - 16; "world leading" - 8; "world-leading" - 11; "world class" - 2; "world-class" - 4; "leadership" - 10; "ambitious" - 17; "superpower" - 8. The relentless buoyancy is numbing, and robs the narrative of any depth or persuasiveness. How one longs for an admission that in this or that sector the UK will do no more than pull its weight or seek humbly to follow leads from elsewhere. But that is not the mood of Benefits of Brexit. Its golden thread is unpersuasively inflated claims about Britain's actual and potential role as a regulatory leader or, at least, best in class performer. Its claims are not simply vulnerable to the charge made above that it neglects the good economic, political and legal reasons which explain why the UK's departure from the EU's regulatory model is unlikely to be radical in many sectors. More than that it makes claims about the UK's future pre-eminence which are frankly implausible.

Benefits of Brexit claims that new-found regulatory freedom will permit UK-specific choices, both in the design of domestic regulation and in the shape of trade deals with third countries. But the assumption that these choices will deliver superior outcomes to those achieved and achievable through EU membership, though one that animates Brexit generally, needs to be demonstrated not simply asserted. Benefits of Brexit adds no flesh to the bones. One of its few attempts to lend concrete detail to its case is found at page 27 where we are told of a target to "cut £1 billion of business costs from retained EU red tape". This is evidently a figure which is plucked from the sky. It strengthens the impression that Benefits of Brexit is written to advertise the government's deregulatory credentials rather to offer a clear-sighted list of options which are realistically available.

It is here that Doing Things Differently? is helpful. It looks at detail. Yes, Brexit permits UK-specific choices, but what really might that mean? And will whatever benefits might be found really exceed the costs of departing from the EU model, most of all the trade friction introduced with a bloc to which almost half of UK exports are routed? More generally is there any traction in the idea that the UK can lead as a regulator - if it can't, it is simply creating trade barriers between itself and every other jurisdiction across the planet by choosing to regulate differently. Doing Things Differently? tracks these questions across a number of important sectors, and, as explained above, it comes to conclusions about economic, political and legal obstacles to reform in the UK which in their detailed caution serve as a sharp rebuke to the exaggerations and lack of balance which litter Benefits of Brexit.

 

Conclusion

In any normal world identifying the Benefits of Brexit in a carefully costed and realistic manner would have preceded a referendum on whether to pursue Brexit. But that milk has been spilled. Brexit is done, and Brexit entails significant change. Free movement is ended, EU state aid rules are no longer applicable (subject to the Ireland/ Northern Ireland Protocol), the Common Agricultural Policy is now a stranger to the UK, management of fisheries has been profoundly altered, and so on. How much of this is a benefit is open to discussion. So, for example, the UK is no longer bound by EU free movement rules which entails also that UK nationals are no longer able to rely on those rules in order to live and work in the EU-27. Taking back control entails also losing control - the UK has chosen to shake off the disciplines of EU membership but the disciplines of EU membership to which all Member States are subject are no longer available to benefit citizens of the UK. This is what leaving the EU means. One might agree this is a benefit, one might think the benefits, such as they are, are outweighed by the loss of influence and participation in the EU network of reciprocal obligations. But it isn't 2016 any more. Those dice have been rolled.

Equally it is depressing to read in Benefits of Brexit that withdrawal from the EU restores the UK's status as an independent sovereign country (page 5) and that EU membership entailed giving up sovereignty (page 30) - it didn't: entering into an international treaty is an exercise of state sovereignty, not its abdication, just as withdrawing from a treaty is an exercise of state sovereignty - and one can only regret that the 2017 White Paper's sober explanation that 'Whilst parliament has remained sovereign throughout our membership of the EU, it has not always felt like that"     is now regarded by the UK government as a concession too far to reality. But sovereignty talk too is just 2016 on repeat. It's over. What matters now - and what Benefits of Brexit purports to demonstrate - is what will be done with these supposed new-found freedoms. That is the agenda needed in 2022.

Benefits of Brexit reveals a feeble menu. It fails to distinguish between opportunities presented by Brexit and changes that could have been made by the UK as a member of the EU; it claims as advantages of Brexit things that are truly simply attempts to reduce the disadvantages of Brexit; it ignores good economic, political and legal reasons for scepticism about the UK's scope to diverge from EU rules and practice; and it offers a wildly optimistic flurry of claims about the UK's world-beating future which are sorely lacking evidence base or plausibility.

Doing Things Differently? begins with a brutally detailed essay by Winters and Morita-Jaeger making clear that Brexit-induced trade losses with the EU far exceed possible gains from new trade deals with third countries (as they point out, the government's own published figures admit this) and their contribution is rich in detailed scepticism about post-Brexit UK trade policy and potential. Benefits of Brexit does nothing to counter this, because (as its title promises) it literally refuses to consider costs that are a consequence of Brexit. Energetic divergence from EU rules carries the price tag of increased friction to economic activity. This is a trade-off the addressing of which must lie at the heart of any realistic plan for Brexit. Benefits of Brexit - in sorry mimicry of the Leave campaign back in 2016 - refuses even to acknowledge the issue.

The Prime Minister's Foreword to Benefits of Brexit cries that "the act of Brexit was not an end in itself but the means by which our country will achieve great things". He adds "the bolder we are, the greater the gains will be for all of us". Yet more than five and a half years on from the fateful referendum we are still dealing in a Brexit that is painted in the colours of imperial units, the crown on pint glasses, and - of course - blue passports.

Benefits of Brexit's most striking feature is its needy tone. It has the feel of a country hectoring the world about its qualities, and hoping it has an audience. It is alarmingly light on detail, evidence and concrete proposals that are realistically capable of fulfilment. In that respect the voice of the UK government in 2022 still has a loud echo of 2016's Vote Leave campaign. The strong message of Benefits of Brexit is that the government's plan for Brexit is to say stridently that there is a plan for Brexit. A world-leading ambitious best in class transformative plan for Brexit. The strong message of Doing Things Differently? is that reality is a great deal more obstructive and complicated.

Barnard & Peers: chapter 26

Photo credit: Khayri R.R. Woulfe via Wikimedia Commons