Who exactly will ‘take back control’? Parliament vs executive after Brexit and the ‘Great Repeal Bill’

Steve Peers

A key issue in the Brexit referendum campaign was the case for British democracy: that rules applying to the UK should be adopted by the UK parliament (or, as the case may be, devolved bodies and local governments; I’ll come back to devolution issues in a later blog post). But since the referendum result, it’s striking that many on the Leave side seem reluctant to give Parliament much of a role in practice. Having made a strong case for Parliament to make decisions affecting the British people, they suddenly find this argument less compelling when contemplating that Parliament might make decisions that they may not agree with. A bit like St. Augustine, they pray for the virtues of parliamentary sovereignty – but not yet.

While a lot of debate has focussed on whether Parliament should have a role in triggering Article 50 (the clause on the process of UK withdrawal from the EU), that’s actually one of four related issues: Who should trigger Article 50? Who should determine the form of Brexit? How accountable should the Brexit negotiations be? And who should control what happens after Brexit?  I’ll discuss each of these issues in turn, including a broader analysis of the ‘Great Repeal Bill’ just announced by the government as part of the fourth point.

1 Who should trigger Article 50?

As many readers will know, there are pending court cases on this issue. It’s clear that the referendum itself is not legally binding, since unlike previous cases like the 2011 referendum on voting rules, the European Union Referendum Act 2015 does not specify what happens in the event of a vote to Leave.  The government made a political promise to implement the result, but that is not a legal obligation.

The core legal argument is whether the official notification that the UK will withdraw from the EU is governed by the ‘Royal Prerogative’, which gives the UK executive the power to negotiate treaties and conduct foreign relations, or subject to Parliamentary approval, since Brexit will inevitably impact upon the European Communities Act (which is the main law giving effect to EU law in the UK) and other UK statutes. You can find the skeleton arguments tabled by both sides here; and see Mark Elliot’s analysis of the government’s pleadings.

Whatever view the courts finally take of the law, there’s an overwhelming political argument that Parliament ought to decide, given the huge impact upon the laws of the United Kingdom. If it comes to this, I don’t expect many MPs would actually vote to block Brexit, since the majority of UK constituencies voted to Leave, and they will be concerned about their re-election chances. Moreover, many of them likely believe it would be politically illegitimate not to respect the result of the referendum. Frankly, it’s unfortunate that many Remain supporters are unwilling to accept this political reality, and expend their energy on overturning the result, rather than engaging in a constructive debate about the least bad form of Brexit. Time to face facts: Bobby Ewing will not be back from the dead in your shower tomorrow morning.

So the more significant impact of any parliamentary vote on Brexit would be its potential impact on the next issue: who should decide what form of Brexit to take?

2 Who should determine the form of Brexit?

A majority of votes were cast to ‘Leave’ the EU. No other question was on the ballot paper. Various arguments were made in favour of Leaving the EU, some of them contradictory (ie from opposite sides of the political spectrum). It’s sometimes asserted that the Leave vote is a mandate to reduce immigration from the EU and to withdraw from the free movement of people to this end, but at least some senior Brexiteers used to argue that it is not a mandate to this effect.

So while the vote is a political mandate to leave the EU, it’s not a mandate for any particular form of leaving the EU. For instance, if the UK sought to leave the EU and retain membership in the European Economic Area (EEA), in order to keep full participation in the EU’s single market, at least on an interim basis (as discussed here) this would in no way contradict the referendum result. EEA members like Norway are not members of the EU, and do not participate in many aspects of EU law: fisheries, taxation, trade with non-EU countries, agriculture, the single currency, and many more.

Of course, some people object to the idea of the UK staying in the EEA. But they need to base their arguments on the perceived flaws of the EEA – and, if they are intellectually honest, on the comparative perceived strengths of any other form of Brexit. The argument that the British public ‘voted against staying in the single market’ is quite simply false.

This brings us to the question of who should make the final decision on what form of Brexit to pursue: the UK parliament or the executive? (Not forgetting, of course, that the EU side must also agree to the terms). The question of whether to stay in the single market has a huge impact upon the UK economy (see, for instance, the estimates of the Institute of Fiscal Studies on this point: Brexit on the basis only of participating as a WTO member would shrink the economy 4% as compared to staying in the single market). Moreover, it will have a huge impact on British law. Refusing to let parliament decide this issue is incompatible with its underlying role.

Of course, I would expect the executive to draft a proposed motion for Parliament to approve. But if Parliament is only willing to approve that motion subject to amendments, the executive should consider itself politically bound by the amended motion.  I’m not suggesting that Parliament should get the power to agree every word in the text of future UK/EU treaties before negotiations start, as if those treaties were Acts of Parliament. But it should have the power to approve the main thrust of the government’s negotiating position. If Parliament votes that the UK ought to negotiate to remain a full participant in the single market, the government must consider itself bound by that result. A clear statement of the government’s negotiation objectives, approved by Parliament, would also supply a degree of legal certainty to those doing business in or investing in the UK.

Some are concerned that Parliament would be tying the government’s hands too much, since there is a risk that some aspect of the government’s negotiating position will be unattainable. In such a case, the government could come back to Parliament and ask it to revise the motion, or failing that, to explain its inability to achieve all those negotiation objectives when it comes time for Parliament to approve post-Brexit treaties.  And that point brings us neatly to the process of negotiating and approving those treaties.

3 How accountable should the Brexit negotiations be?

Usually, it’s an executive power to negotiate international treaties. Parliament is involved at the end, if it’s necessary to amend an Act of Parliament, or adopt a new one, to give effect to a treaty. Since 2010, it also has the ability in effect to block the government’s ratification of a treaty, under the Constitutional Reform and Governance Act 2010. The government has made clear its unwillingness to be accountable during the negotiations, arguing that it will not be giving a ‘running commentary’.

However, there are important reasons why the Brexit talks should not be regarded as any ordinary treaty negotiation. Firstly, as noted already, EU law has a huge effect on UK law; it follows that Brexit will do also. Refusing to disclose any information to Parliament in that process would be to divest it (and public opinion) of any effective role in the debate about the negotiations.

In fact, there’s a relevant precedent for a bigger role for Parliament. Due to the important role of EU law in UK law, the House of Lords and House of Commons already have Scrutiny Committees examining the government’s negotiation of draft EU laws. In particular, the government reports back regularly to the latter committee on how negotiations over important EU laws are going. One might almost call it a ‘running commentary’.

Secondly, there’s a particular well-known feature of the Brexit negotiation process: the two-year deadline that applies once Article 50 is triggered. This means that Parliament does not face the ordinary choice between approving a treaty or the status quo; rather the choice will be between leaving the EU on the Brexit terms negotiated by the government and leaving the EU without any terms at all, which will also cause major transitional problems. For instance, would the UK have to release from prison, or refrain from arresting, fugitives who were the subject of a European Arrest Warrant issued by an EU Member State on Brexit Day?

Thirdly, there is no reason for secrecy on ‘negotiation tactics’ grounds once a text has been tabled to the other side. In effect, those cards are on the table already. On the other hand, it would damage the UK’s negotiation position to release notes which give the government’s fallback position: those cards are still face down. There will, inevitably, be some embarrassment if the UK government doesn’t obtain its initial negotiation position. But this is normal in any treaty negotiation, and the government simply has to prepare public opinion for this.

Fourthly, it would be odd if the UK parliament had any less a role than the European Parliament, which not only (like the UK Parliament) has to approve any final Brexit deal, but must be ‘immediately and fully informed at all stages of the procedure’ (Article 218 TFEU). As a recent post on this blog pointed out, there is EU case law clarifying these rights, as well as a ‘closed door’ procedure for MEPs to review texts.

4         Who should control what happens after Brexit?

This issue has come to the fore with the government’s announcement of a ‘Great Repeal Bill’, to replace the European Communities Act. First of all, some general points about this Bill. It won’t take effect until Brexit Day, so the UK will still be in compliance with its EU law obligations beforehand.  An interesting point is how the Act will deal with any EU laws adopted after it obtains Royal Assent, but before Brexit Day: logically, it should at least cover those which fall due for the UK to apply in the meantime. (My thanks to Graham Smith for raising this point).

Secondly, despite the title, the Act won’t actually repeal any substantive EU law, but just the opposite: it will keep all pre-Brexit EU law in force in the UK. But it’s not therefore a meaningless gesture, as some have suggested, as it will do several things: a) prevent post-Brexit EU law from applying to the UK; b) limit the legal effect of EU law in the UK’s legal systems (ie, EU law would presumably no longer have primacy over all other national laws in principle); and c) remove the role of the EU courts in interpreting that law. This raises some key questions: would the UK want a legal mechanism for adapting easily to post-Brexit EU laws that it wishes to apply? What would be the impact of pre-Brexit, and post-Brexit, case law of the CJEU on interpreting this law? How will the UK match the EU regulatory bodies referred to in EU legislation?  Despite those questions, though, the plan for the Bill does offer a great degree of legal certainty, as businesses and others know that there will not suddenly be a legislative vacuum as regards a big chunk of the law on intellectual property, data protection, environmental protection, and so on.

Thirdly, there are two other things that the ‘Great Repeal Act’ won’t do: a) it won’t affect EU laws that form part of UK law due to other statutes (such as the Extradition Act), although they will equally stay in force in much the same way as the EU law preserved by the Repeal Act; and b) it won’t bind the European Union (or, where relevant, non-EU states). Any EU law kept in force in UK form which relates to trade with the EU, or other UK relations with the EU (recognition of judgments, or return of asylum-seekers, for instance) will only have practical effect to the extent that the UK and the EU have reached an agreement to this effect.

Fourthly – and this is my main focus for now – the ‘Great Repeal Act’ will set out a process for repealing or amending that EU law retained by that Act as and when the UK wishes to do so. The key issue here is: will the government decide that, or Parliament? The government’s announcement makes clear that it wants Parliament to confer power upon it to make at least some of the decisions on repealing EU law.

Let’s be clear what’s at stake here. Acts of Parliament need to be approved by both the House of Commons and the House of Lords, following a process of several readings where there is a chance for public input and amendments. In comparison, ‘secondary legislation’ adopted by government (usually in the form of ‘Statutory Instruments’ or ‘Orders in Council’) cannot usually be amended by Parliament, and there’s little time for public discussion or parliamentary scrutiny that could influence amendments. Either of the two Houses of Parliament could veto draft secondary legislation, but this is rare.

Secondary legislation is used in other fields, and it was very frequently used to give effect to EU law in the UK.  So what’s the problem using it for repealing EU law? First of all, the very fact that secondary legislation was used so much to put EU law into place was a problem. It removed Parliament from having the role it would usually have over the adoption of the substantive laws in question. That was indeed one reason why Eurosceptics were critical of the EU for years. So using secondary legislation to overturn or amend those EU laws doesn’t solve that problem: it continues, even exacerbates it. Remember, as noted above, that the government’s negotiation of EU laws was always scrutinised by Parliament; this ameliorated the impact of the big transfer of power to the executive. But in principle, there would be no such mechanism to ameliorate the executive power to repeal EU laws after Brexit – unless a new form of parliamentary control of secondary legislation, involving some form of effective scrutiny and amendment, were developed.

Some might argue that the EU origin of these laws is inherently tainted, and so therefore a fast-track procedure to repeal them is justified. That argument is based on a fatuous misunderstanding of EU law propagated during the referendum campaign: that the UK is the passive recipient of laws adopted by ‘unelected bureaucrats’. In fact, as I pointed out in detail here, EU laws are adopted by elected ministers of Member States and elected Members of the European Parliament, and the UK government voted for them a huge majority of the time.  

Secondly, the government may well seek the power not only to fast-track repeal of EU laws which apply in the form of secondary legislation, but also those which are implemented by means of Acts of Parliament. Such powers are known as ‘Henry VIII clauses’, and are particularly controversial because they effectively overturn the role of parliament that led to the adoption of those Acts in the first place. In my view, such clauses should be rejected for the post-Brexit process as a matter of principle. If an EU law issue was deemed important enough while the UK was a member to enshrine in an Act of Parliament, it should be for Parliament to repeal or amend it.

On the other hand, it is probably not feasible to entirely rule out the use of secondary law-making to amend or repeal existing secondary legislation derived from EU membership. But Parliament should not give the government a blank cheque, for the reasons explained above. Rather, such powers should be subject to strict limits, either by means of a positive list (‘secondary legislation is only allowed in the following areas’) or a negative list (‘secondary legislation is allowed, except for the following areas’). In either case, there should be a ‘carve out’ for laws on workers’ rights and the environment, given their particular importance, as well as other issues where Parliament usually plays the main role.  

Conclusions

There’s no plausible argument that we need to destroy parliamentary democracy in order to save it. The Leave side argued for British parliamentary supremacy – not for ‘handing back control’ to our ‘unelected bureaucrats’. Parliamentary sovereignty doesn’t need fair-weather friends: it needs supporters who will take the opportunity of Brexit to strengthen it for reasons of principle, not undermine it for reasons of tactical advantage.

Photo credit: RadioTimes

What next after the UK vote to leave the EU?

Professor Steve Peers

Many of the consequences of the UK’s vote to leave the EU will not be clear for some time. However, here’s my initial take on some of the key issues, in their broader political context.

1 Is the referendum vote binding?

Legally, no. But it is politically unthinkable that it will be ignored, in particular by MPs whose constituency voted to leave.

2 Could the UK simply renegotiate its EU membership again, and then hold a referendum on those results, rather than actually Leave the EU?

This is technically possible, and some on the Leave side hinted at this as a possibility. However, a lot of Leave voters might resent this idea, as they probably thought that they were actually voting to leave the EU – although they would of course have the chance to confirm that position in the second referendum.

This option would also require the remaining EU to be willing to offer such a re-renegotiation, and it might also be difficult to put into effect, since it would probably need a Treaty amendment (limiting the free movement of people, for instance) ratified by all Member States.

3 What is the process to leave the EU?

The official process is set out in Article 50 of the Treaty of European Union. I’ve blogged about that in detail here, and there’s a shorter version of my analysis here.

It would also be possible to leave the EU by amending the Treaties, although it is hard to see why that would be an attractive option to the UK, since it would require long ratification periods and unanimous voting on the EU side.

Some on the Leave side have hinted that they think there is some alternative mystery process to leave, although they have not defined why they think this or what that would entail. The likelihood is therefore that Article 50 will be used. Any alternative approach would likely face a successful legal challenge.

4 What does Article 50 say?

The UK notifies a withdrawal decision to the EU. That triggers a two-year period at the end of which the UK is no longer an EU member. That time can be shorter (if an EU/UK withdrawal treaty provides for this). It could also be longer if all Member States and the UK agree.

It is up to the UK when exactly to notify the withdrawal decision. It could delay making the notification, although a very long delay could possibly increase economic uncertainty and fuel distrust by Leave voters.

The negotiation concerns a withdrawal agreement. It is not clear if this is a technical agreement limited to the fiddly details of the UK leaving, or whether it would also govern the EU-UK future relationship. The point is relevant since otherwise the EU-UK relationship would have to be negotiated separately, and different rules would apply. While the withdrawal agreement is subject to majority voting among the remaining EU Member States, it is more likely that a separate deal would be subject to unanimous voting and national ratification.

It is also not clear if a notification to leave the EU can be withdrawn after it is made. That would be relevant if the plan were to negotiate the future UK/EU relationship, then ask the public in another referendum whether they wanted to leave on those terms or not.

5 Can the UK amend laws relating to EU membership already?

Can the UK change its law to contradict EU law – repealing the European Communities Act, restricting the entry of EU citizens – while still an EU member? As a matter of domestic law, the answer is yes: the UK courts will accept and apply any Act of Parliament as the law of the land, regardless of whether it contradicts EU or other international law.

However, this approach would indeed contradict EU and international law, as Professor Kenneth Armstrong has pointed out here. The question is whether that might prompt a retaliatory response from the rest of the EU as regards EU business, or complicate the withdrawal negotiations.

6 What will be the future relationship between the EU and the UK?

What is the best model for a future UK/EU relationship? The Vote Leave side seemed to prefer a new treaty not based on the model of previous treaties with non-EU countries. This would of course require the consent of the EU, and would likely take longer to negotiate than using an existing model.

Looking at existing models, the EU/Turkey arrangement is unsuitable since it is a customs union, meaning that the UK cannot negotiate its own trade deals with third countries. The EU/Swiss deal does not give full access to EU services, including financial markets, although this is a key UK export. Equally the EU’s various free trade agreements do not give such access either.

The most attractive option is, for at least a temporary period, for the UK to continue with the ‘Norway option’, which means continuing to remain part of the European Economic Area (EEA), the association agreement between the EU, Norway, Iceland and Liechtenstein.

There are a number of reasons to prefer this approach. It would provide legal security for exports of most goods and all services exports from the UK to the EU (and vice versa). A deal on this could be done quickly, thus reducing the damaging effects of uncertainty about the UK and EU economies, since the UK is already a part of the EEA, and so arguably does not need to go through any process to join it. (There could be a legal dispute on this point, though, since there is no express rule in the EEA treaty on what happens if the UK leaves the EEA: see the comments on this blog post). The EEA option is clearly the simplest way to leave the EU sooner, rather than later – which should appeal to opponents of the EU.

EEA membership would leave the UK free to sign its own trade deals with other countries. The UK would not be bound by the EU’s fisheries or agriculture or VAT policy, so could change its law in those areas too. The EEA doesn’t cover foreign policy or criminal law or policing issues, although the UK could seek to negotiate a separate deal with the EU on those issues (on this aspect of Brexit, see my discussion here).

The EEA does cover most EU laws on workers’ rights and the environment – so signing up to the EEA would guarantee the continued application of those laws in the UK. That's a big advantage for those who support such laws.

There are limitations to the EEA option, although they could be addressed. First of all, staying in the EEA does entail continued free movement of people, and that is one of the key reasons for the Leave vote. However, unlike between EU members there is a special safeguard. A Member State can disapply part of the EEA ‘If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising.’

This decision is unilateral, although an arbitrator can rule on the ‘scope and duration’ of the safeguard. Also, the EEA specifies remaining EU could retaliate against any such UK decision (limiting UK car exports or financial services exports), although again an arbitrator can rule on the scope of this retaliation.

In short, the UK could invoke a safeguard clause to limit the free movement of persons under the EEA – but it would not be cost-free. Having said that the EEA option would probably only be politically viable in the UK if the government announced its immediate intention to trigger immediately the safeguard clause as regards free movement of people. 

Another limitation of the EEA is that the UK would no longer have a vote on EU laws as the EU adopted them. Those laws would in principle still have to be applied in the UK despite the absence of a vote. Two points on this though. First of all, the UK would not be subject to as many EU laws as is now – since agriculture, fisheries, tax and non-EU trade are not within the scope of the EEA. Secondly, for any EU law to apply to the non-EU members of the EEA it must be approved by those non-EU members. So the UK could veto the application of that new EU law to the UK at this stage – although again, the EEA provides for possible retaliation by the EU if it does so.

Finally, the EEA provides expressly for the non-EU members to pay towards poorer EU Member States. Some claimed during the campaign that Norway provides this money wholly voluntarily, but that’s false. Article 116 of the EEA Treaty says as follows:

A Financial Mechanism shall be established by the EFTA States to contribute, in the context of the EEA and in addition to the efforts already deployed by the Community in this regard, to the objectives laid down in Article 115.

The details of the sums involved are set out in separate Protocols. The UK would have to negotiate one of these with the EU.

Overall, then, there are pros and cons to the Norway option. In my view, the pros hugely outweigh the cons – considering that the EEA could be used as a purely interim measure while negotiating a longer-term arrangement, which could take the form of amendments to the EEA itself.

7 Do EU and UK migrants have 'acquired rights'?  

In human terms, the biggest issue for Brexit is what happens to EU citizens in the UK, and to UK citizens in the EU. That issue is discussed in the linked blog posts, but there’s also the question of whether the legal position of all such persons is protected by the principle of ‘acquired rights’, as referred to in the Vienna Convention on the Law of Treaties. The Leave side argued that it was, but others (for instance, Professor Sionadh Douglas-Scott) have argued that it was not.

I won’t get into that abstract legal debate about the meaning of the Vienna Convention, because in my view it’s necessary to have complete legal certainty on this issue. I don’t believe we can simply leave it to an international legal principle, which may not always be enforceable in national courts, to protect such rights. There’s also a question of the scope of the rule: what about rights in the process of acquisition, like future permanent residence, or a teenager’s future status as regards equal treatment in tuition fees?

The better view is that the EU/UK withdrawal treaty should contain a specific clause on this, which is legally binding in itself, defines the exact scope of the rule, can be supplemented by further measures, and must be fully applied in national law. It could read something like this:

1.       Any citizens of the UK residing in the EU as of [Brexit Day], and any EU citizens residing in the UK as of that date, shall retain any rights which they acquired pursuant to EU free movement law before that date. They shall also continue to acquire rights which were in the process of acquisition as of that date.

2.       The parties shall give full effect to this principle in EU or national law, as the case may be.

3.       The EU/UK Joint Committee may adopt further measures to implement this rule.

It should be noted that his issue would be irrelevant if the UK retains its participation in the EEA, as discussed above.

Some argue that people cannot be ‘deprived’ of their EU citizenship by a Member State leaving the EU. In my view, that’s untenable. The Treaties define citizens of the Union as being nationals of Member States. If a country ceases to be a Member State of the European Union, then obviously its nationals therefore cease to be citizens of the Union.

8 Will Scotland now leave the UK and join the EU?

The question of whether Scotland might now leave the UK, and seek to retain membership of the EU, is a huge political question, which also raises domestic legal issues. I won’t comment on the national legal issues. On the EU law issues, see my earlier analysis of the possible legal complications for an independent Scotland seeking to join the EU – although some of this analysis is specifically based on the assumption that the UK, along with Scotland, would be an EU Member State.

Furthermore, the political context is possibly now different than it was in 2014, at the time of the Scottish independence referendum. It may be that the remaining EU could have more political will to welcome Scotland as an EU member than it might have had in 2014, in the interests of stemming any perception that the EU is falling apart. Indeed, it might be more willing to waive the usual criteria of single currency membership and Schengen participation. The Spanish government in office in 2014, which was a principal obstacle to Scottish EU membership, might not be in office any more: we should know after this weekend. Possibly some Member States poured cold water on Scottish EU membership in 2014 out of loyalty to the UK – but now they have the opposite motivation. The political context of the issue would now be different: unlike in 2014, facilitating Scottish EU membership would not be now seen as creating a kind of incentive for a Member State to split up, given that the UK is leaving the EU anyway.

Coming back to the EEA, it may be an attractive option for an independent Scotland – either as an interim step toward joining the EU or as a long-term arrangement. Scotland would not be covered by EU fisheries policy and would clearly not be obliged to join Schengen or the single currency. (Norway and Iceland are part of Schengen, but by means of a separate treaty from the EEA). This option may also be more palatable for those Member States worried about their own separatist movements, since it falls short of EU membership.

9 What happens to the remaining EU?

The EU is obviously a key player in what happens next, and not only in the context of negotiations with the EU. Some on the Leave side have hoped for the break-up of the EU following Brexit – although it’s hard to see how turmoil in, or the collapse of, its biggest trading partner is in the UK’s interests. Certainly there are some politicians in EU countries calling for withdrawal referendums of their own – although none of them are in government, and it would remain to be seen what the vote would be if those referenda were held. We'll obviously have to wait and see what happens.

The countervailing possibility is that the remaining EU countries make renewed efforts to win back public support by changes to some unpopular EU policies and practices. I’ll write more soon about what such changes might be. One point though: although the UK’s position on Brexit negotiations won’t be confirmed until after the Conservative party leadership election, and then possibly not until after a general election, the EU may well formulate its negotiation position in the meantime.

Photo credit: 

EU Referendum Briefing 1: Can the UK control the EU’s future if it stays a member?

Steve Peers

During the EU referendum campaign, a number of arguments have been made that staying in the EU is risky, because of possible future developments of the EU itself. While there will always be someone somewhere who says they would like to see an EU army, or some development related to the single currency, such an expression of opinion is meaningless by itself.  The fundamental issue is whether the UK could control such developments – either by vetoing them or opting out.

So what’s the worst that can happen? In this post, I’ll examine in turn the main alleged risks to staying in the EU. As we’ll see, in every single case the UK has control, either by an opt-out or a veto. In other words, none of these things can happen without the British government’s consent. Nearly all of them would also need our Parliament’s consent. And the large majority – all the fundamental possible changes to the EU that many are concerned about – would actually need the consent of the British public in another referendum. (Anyway, there's nothing to stop the UK holding another referendum on EU membership in future, if it wanted to).

All of these safeguards for UK control of further developments of the EU exist in the current law of the EU – as I will show in detail. None of them are first created by the renegotiation of EU membership agreed this February.

I’ll look at seven issues where the UK has control over future EU developments:

a) defence;

b) transfers of power;

c) new Member States, including Turkey;

d) taxation;

e) non-EU immigration, asylum and criminal law;

f) the single currency; and

g) the EU budget, including the UK rebate.

There's also an earlier blog post on the controversial issue of the planned EU/US trade deal (TTIP) and the NHS. 

a)      EU Defence and foreign policy

The UK has control over EU defence and foreign policy measures because they are in principle taken by unanimous vote, with only limited exceptions. On foreign policy in general, Article 31 TEU says:

Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise.

The exceptions are where there has been a prior act or request of EU Presidents and Prime Ministers (who act by consensus), or where the EU is implementing a prior act already agreed by unanimity, or where the EU appoints a ‘special representative’. However, there is a kind of ‘emergency brake’ in all these cases:

If a member of the Council [ie a Member State government] declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken.

Also the majority voting ‘shall not apply to decisions having military or defence implications’. It’s also possible to apply majority voting to funding issues, but again there’s a military and defence exception (Article 41 TEU), and also there’s an exception for a Member State which chose to abstain on a proposal. The bottom line is that the UK is in control of whether it has to contribute to EU foreign policy funding.

So whether EU foreign policy relating to Ukraine or Russia (for instance) is a good idea or not, it has not been imposed on the UK government. Rather the government is in control, because it could have vetoed it. This means that if EU Member States can’t agree on an issue, there is no EU foreign policy on that issue, and they do as they like – as in the case of the Iraq War, for instance.

Some have raised the issue of the UK’s permanent seat on the United Nations Security Council. In fact Article 34(2) TEU refers to Member  States’ seats on the Security Council, not to any EU seat. The UK has control here, because it could veto any EU decision that required it to give up its Security Council seat, as part of its veto over any foreign policy matters. It’s suggested that the European Parliament wants that to happen, but the European Parliament has no role in EU foreign policy: Article 36 TEU says that it’s only consulted.

Anyway, a change to the UK’s Security Council veto  could only happen by means of a change to the UN Charter, and the UK has control over that: a veto, according to Article 108 of the Charter:

Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

As for defence, can there be an EU army? Article 42(2) TEU says:

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

So the UK has control over any possible ‘common defence’, by means of its veto. And there’s more: the ‘constitutional requirements’ that would apply in the UK are not only parliamentary approval, but also a referendum, according to the European Union Act 2011. In general this law sets out a ‘referendum lock’ on further transfers of power to the EU, putting the British public in control over any future transfers. I’ll refer to this law again several times, since it sets many other limits on the development of the EU in future. It also requires a referendum before any British veto over foreign policy or defence is given up. 

b) Treaty amendments and transfers of power

It’s sometimes suggested that there might be future transfers of power from Member States to the EU, as part of the developing single currency project (perhaps following the so-called ‘Five Presidents Report’ on this issue) or for some other reason. This is sometimes presented as a 'superstate', or as an inevitable outcome of the EU's 'ever closer union' clause. However, the UK has control over these developments. First of all, the UK has an opt-out from the single currency, as discussed below. Secondly, it also has a veto over future Treaty amendments.

There are several ways to amend the EU Treaties, as set out in Article 48 TEU. They have two things in common: (a) the UK government has a veto over all of them (which it used in 2011, for instance); and (b) the British Parliament would have to approve each of them, either by voting in favour or deciding not to vote against.

But there’s more. The European Union Act 2011, first mentioned above, also gives control to the British public over any significant Treaty amendment, by means of a referendum. This would apply where the UK would drop nearly any veto. It would also apply to other transfers of powers to the EU from the UK, defined in detail as including:

a)      ‘the extension of the objectives of the EU’;

b)      any ‘conferring’ or ‘extension’ of any EU competences, including over ‘the co-ordination of economic and employment policies’ (an issue in the Five Presidents’ Report); or

c)       giving any EU ‘institution or body’ any power to give orders or impose sanctions upon the UK.

  

It’s been suggested that the UK gave up a veto relating to single currency and banking issues as part of the renegotiation deal. This isn’t true, as the deal didn’t amend the Treaties and Parliament has not amended the 2011 Act.

So the control over any transfer of power from the UK to the EU is threefold: the UK government, UK Parliament and the British public.

c)       New Member States

The rules on accession of a new Member State are set out in Article 49 TEU, as follows:

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements. The conditions of eligibility agreed upon by the European Council shall be taken into account.

So the UK controls whether a new country joins the EU, by means of a veto. The ‘constitutional requirements’ are an Act of Parliament in favour.

There has been some concern about new Member States joining the EU in future, but in order to join each new State must negotiate 35 chapters of detail about EU law. In 11 years’ of negotiations, Turkey has only agreed one out of those 35 chapters. It has not even opened many of them:

Moreover, the ‘conditions of eligibility’ include human rights standards, which Turkey doesn’t now meet. Cyprus would veto Turkish membership unless there’s a deal on the future of the island. The other countries applying to join have not agreed many chapters either.

In any event, the current Member States can insist on a long waiting period before the free movement of persons fully applies to new Member States. The majority of the Member States which joined the EEC/EU after it was founded (14 out of 22) have been subject to seven-year waiting periods before full free movement of people, and longer periods could be applied in future.

The UK veto over enlargement could only be dropped by a Treaty amendment, approved by the government, parliament and public under the European Union Act 2011.

d)      Taxation

The main taxes harmonised at EU level are VAT and excise taxes. EU law sets a minimum rate for these taxes: it’s 15% for VAT, subject to exemptions. It also defines their scope. The UK has VAT exemptions on things like books, basic foodstuffs and children’s clothes.

While VAT is sometimes depicted as if it is imposed by the EU upon the UK, in fact the UK has consented to all VAT laws, since law-making in this area is subject to unanimity. The rule currently appears in Article 113 of the Treaty on the Functioning of the European Union:

The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation.

So the UK has control in this area, since it has consented to every VAT obligation and excise tax obligation set by EU law. It’s the UK’s own decision to set the rate of tax for VAT and excise taxes (taxes on alcohol, tobacco and petroleum) above the minimum level. Many people would like to see further exemptions from VAT, such as on tampons or environmental services; but it was the UK government that agreed to commit itself not to lower these rates. Actually, the UK government recently agreed to a renewal of the 15% minimum rate. In any event, the EU has recently agreed to a more flexible approach, which will allow VAT to be dropped on tampons and possibly a broader range of other products and services.

It follows from the existence of the veto that the UK has control over any future amendment to EU tax law in these areas, including any removal of any exemption, by means of its veto.

What about other taxes? There is little EU involvement in other areas of tax law. So, for instance, the UK is entirely free to set rates of personal income tax, National Insurance contributions, corporate taxation, council tax and many more. However, there is some limited EU involvement in cross-border aspects of corporate tax, such as the recent law which aims to tackle cross-border tax evasion.

The EU adopts these laws on the different legal basis of Article 115 TFEU:

Without prejudice to Article 114, the Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market.

Again it can be seen that unanimity is the rule. So the UK has a veto. This veto is further protected by Article 114(2) TFEU, which says that the majority voting that normally applies to EU single market law does not apply to ‘fiscal provisions’.

Therefore the UK has control over any new EU tax that might possibly be proposed to fund refugee and migration costs, or upon pensions, or upon anything else. We can simply veto it.

Can these vetoes be removed? As discussed above, due to the European Union Act 2011, they can only be removed (in whole or part) if the Treaty is amended with the consent of the UK government and parliament, and the British public in a referendum.

e)      Asylum, non-EU migration and criminal law

The UK has an opt-out over EU laws on non-EU migration, criminal law and policing. This is set out in Protocol 21 to the Treaties.

As regards immigration and asylum, the UK opted out of most non-EU immigration laws, but opted in to the first phase of asylum laws from 2003-2005, using the veto which it had at the time to ensure that these laws did not require any change in UK asylum law. The only substantive EU asylum laws which the UK has opted in to since 2005 are the Dublin III Regulation (on returning asylum-seekers back to another Member State where they first entered) and the Eurodac Regulation (on fingerprinting asylum-seekers to that end). The UK opted out of recent EU laws on relocating asylum-seekers from Italy and Greece to other Member States.

The UK also has an opt-out from the Schengen system of open borders between Member States, and harmonised external border controls (see Protocols 19 and 20). This includes an opt-out from the EU laws on short-term visas (which concern stays of three months’ maximum). So the UK will not be covered by the proposed laws on waiving the short-term visa requirement for Turkish citizens, or for other countries (Ukraine, Georgia, Kosovo).

For the same reason, the UK will also not be covered by the proposed law on a European Border Guard. While this law originally provided for the border force to enter a Member State without its consent, that idea was dropped during negotiations. That would anyway not have applied to the UK; and in fact the EU court has ruled that the UK could not opt in to the EU law creating a border agency (the precursor to the proposed Border Guard law) even if it wanted to, without signing up to the whole of the Schengen system.

In the areas of criminal law and policing (which will be the subject of a separate blog post with more detail), the UK had a veto until 2009, when the Treaty of Lisbon came into force. Since that date, it has had an opt-out, which it has frequently used. In particular, it has opted out of the proposal for a European Public Prosecutor. Note that the EU’s police agency, Europol, is not a ‘federal police force’: the Treaty rules out ‘coercive powers’ for it, so it cannot arrest, question or detain people. Its main role is the analysis of police investigation data.

The abolition of the opt-outs on immigration and asylum, Schengen and criminal law would require a Treaty amendment subject to approval of the government and Parliament. The abolition of the Schengen opt-out would also require a national referendum, under the European Union Act 2011. So would participation in the European Public Prosecutor.

f) The Single Currency

The UK’s opt-out from the single currency appears in Protocol 15 to the Treaties. Point 1 reads:

1. Unless the United Kingdom notifies the Council that it intends to adopt the euro, it shall be under no obligation to do so.

This protocol does not expire at some point, as is sometimes suggested. Neither are ‘all Member States obliged to join the euro by 2020’. So the opt-out is valid for an unlimited period.

The protocol goes on to disapply the various EU law rules relating to the single currency. This has a number of implications. Due to the single currency opt-out the UK cannot be subject to austerity measures imposed by the ‘Troika’ that oversees bail-outs to Eurozone countries, since this only applies to states which adopt the single currency. Austerity policy in the UK is solely a decision made by our own government.

Furthermore the UK is exempt from some EU banking laws. Most notably it is not obliged to participate in the permanent bail-outs of Eurozone states. Only Eurozone states are involved in that, on the basis of a separate treaty. In fact the EU as such cannot adopt laws on permanent bail-outs, according to the EU court.

The UK could potentially be part of solely temporary bail-outs. But here the law was amended to provide a guarantee that the UK would get its money back in the event of any default.

g)      The EU budget – and the UK rebate

Of the money the UK in principle sends to the EU, there are two key features: a) a rebate, meaning some of that contribution is never sent at all; and b) some EU spending back in the UK. (For an overview, see here).

It’s often suggested that the rebate is not legally secure, and that the UK has no control over spending by the EU. Both suggestions are false.

The rebate is set out in the EU’s Own Resources Decision. This does not (as some suggest) have an expiry date (other Member States’ rebates will expire in 2020, but the UK rebate, and the law as a whole, will not). If the EU wants to amend this law, Article 311 TFEU applies:

The Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament adopt a decision laying down the provisions relating to the system of own resources of the Union. In this context it may establish new categories of own resources or abolish an existing category. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

It’s clear that the UK government can control the future of the rebate by means of a veto. Furthermore, so can Parliament, since the ‘constitutional requirements’ for the UK referred to mean that an Act of Parliament has to be passed for any amendment to the Own Resources Decision. These constraints have meant that the veto has stayed in place for over 30 years – although the UK government and parliament have agreed to some reduction in it over that time.

It’s clear that this rebate is not ‘conditional’, as is sometimes suggested. The UK has full control over the rebate money and can do entirely what it likes with it.

What about EU spending back in the EU? The basic rules on what the EU spends money on are set out in the law on the ‘Multi-Annual Financial Framework’. The latest such law is here. The UK does have control over the basic features of this law, because it has a veto over it, according to Article 312(2) TFEU:

2. The Council, acting in accordance with a special legislative procedure, shall adopt a regulation laying down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

It’s also useful to put the EU budget contribution into broader perspective. It’s less than 1% of UK spending (the small red section of the graph below). So if the UK no longer paid the contribution, it would be like getting a pay increase from £400 to £404. The average taxpayer is paying 12p a day toward the EU.

Conclusion

As we have seen:

a)      The UK cannot be required to join an EU army without consent of the UK government, parliament and public;

b)      Treaty amendments require the consent of the UK government and parliament, and (if there’s any transfer of powers) the public;

c)       Accession of new Member States requires the consent of the UK government and parliament; it is a long way off for Turkey in particular and if it ever happens, will be subject to long periods of transition for workers to be admitted;

d)      The UK has a veto on tax issues; the UK government, parliament, and public would have to consent to dropping it;

e)      The UK has an opt-out from EU law on asylum, non-EU migration and criminal law; the UK government and parliament would have to consent to dropping it, and the public would have to agree to join Schengen or the European Public Prosecutor;

f)       The UK has an opt out from the single currency and other related issues, and could only join after the consent of the UK government, parliament and public;

g)      The UK has a veto over the basic EU budget revenue and spending rules, including the UK budget rebate; the veto could only be dropped with the consent of the UK government, parliament and public.

Of course, there are many other possible criticisms of the European Union. Some may be valid, and some not. But the argument that the UK government could be forced into any of the measures listed above is quite clearly false and scaremongering. All of the above possible developments are subject to the control of the UK government, and usually our Parliament and the general public besides.

Art: ‘The Scream’, Edvard Munch

Goodbye, cruel world: visas for holidays after Brexit?

Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.  

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a report drawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant data as an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal records was set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fifty non-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23^rd?

Barnard & Peers: chapter 13, chapter 26

JHA4: chapter I:4

Photo credit: welcome2britain.com