Rebuilding Hadrian's Wall? The effect of Scottish independence on British border control

Steve Peers

It is widely believed that the Romans built Hadrian's Wall to keep marauding Picts (modern day Scots) at bay from civilised Britannia. Certainly the Wall in Game of Thrones is intended to keep out the angry, hairy mutants to the North.

The British Home Secretary, Theresa May, recently revived thoughts of these walls when she suggested that in the event of an independent Scotland, border control would have to be reestablished between Scotland and the rest of the UK. At first sight, this is an extreme and therefore unconvincing threat, reminding me of the sort of threats I sometimes issue to my children in desperation.

 

But is this threat actually plausible? In particular, is there any basis to her claim that the rest of the UK would need to erect border controls to protect itself from a highly liberal Scottish immigration policy? This time around, the border would not be there to stop the Picts or the resident mutants, but rather the citizens of other countries using Scotland as a sort of cat flap to gain entry to the rest of the UK.

The starting point when assessing this argument is to examine the two current regimes of multinational border control in Europe: the Schengen system and the Common Travel Area between the UK and Ireland. The Schengen system in principle bans all internal border checks unless there are exceptional circumstances, and establishes common rules on visas and external border controls. It does not establish common rules on longer term immigration or asylum, although the EU is moving to agree such rules gradually. However, third-country nationals with residence permits or long-stay visas have the freedom to travel within the Schengen area for long periods.

In the Common Travel Area, there are in principle no internal border checks, although Ireland in fact applies checks as regards some forms of travel and travellers may need photo ID to prove their identity and nationality. The two countries don't have identical visa lists, and those with residence permits and visas from one country don't have the right to visit the other one. There is also informal cooperation on immigration policy, as examined in detail by Bernard Ryan.

This system has survived for nearly 100 years, with several suspensions and modifications during that period. Indeed, it has survived through the last few decades of increased international travel, not to mention the Troubles. It is hard to imagine that a version of this regime could not be agreed between the UK and Scotland. Moreover, introducing border control as regards Scotland is a more difficult and expensive proposition as compared to Ireland, given that far more of the travellers concerned are crossing land borders.

So it may be concluded that the Home Secretary's threat is unlikely to be carried out. Moreover, her threat breaks a cardinal rule of parenting: only threaten if necessary. Having been told off in turn by a Canadian central banker and a Portuguese former Maoist, the Scots hardly look naughty enough to vote for independence at the moment. Of course, given her emphasis on immigration control, it is clear that the Home Secretary's real objective is not to become the Queen in the North, but rather to bolster her claim to the throne of the Conservative party, if it becomes vacant.

Barnard & Peers: chapter 2

Renegotiating the UK’s membership of the EU: Mission Possible?

Steve Peers

Is it feasible to renegotiate the terms of the UK’s membership of the EU? The answer is easier to give following David Cameron's article outlining the 'key' objectives which he would seek from a renegotiation.

The Telegraph journalists broke these objectives down into a list of seven items, so let's examine them one by one.

First, a limit on the movement of people following future EU accesions. This wouldn't need a Treaty amendment, since accession treaties have to be agreed unanimously. However, if the intention is to provide for a possible indefinite delay in free movement, arguably a Treaty amendment would be necessary, since this would entail a permanent exception from a key Treaty rule.

Secondly, no free movement just to claim benefits in another Member State. This is already the status quo, so does not need a Treaty amendment, or even a legislative amendment. But if Cameron actually means that there should be a delay before an EU worker can claim benefits, then a Treaty amendment would be necessary.

Third, enhancing the powers of national parliaments collectively (Cameron doesn't mention strengthening the power of individual national parliaments). This would need an amendment to the relevant Treaty Protocol to be binding. However it would be possible to agree to apply such rules informally. For instance, the Commission could declare that it would always withdraw a proposal that one third of national parliaments were opposed to.

Fourth, a reduction in red tape and increase in free trade. The EU is already engaged in a programme to cut red tape and is currently negotiating a number of free trade agreements. So obviously no Treaty amendment is needed here. But perhaps Cameron wants an opt-out from some or all EU employment law: that would need a Treaty amendment.

Fifth, the Prime Minister wants less EU involvement in police and criminal law. This doesn't need a treaty amendment, since the UK already has an opt-out on individual proposals plus a block opt-out from all pre - Lisbon measures.

However, there is an odd reference to the ECHR in this context. It is unfortunate that Cameron felt a need to appeal to those who cannot tell the EU and the ECHR apart. Obviously the ECHR cannot be changed by an EU treaty amendment. But by 2017 a separate process of reforms to the ECHR will be well underway.

Next, Cameron wants to ensure that power can flow away from the EU. The Treaties already provide that amendments can either reduce or increase EU competence. This could simply be reaffirmed in a declaration.

Finally, he wants to exempt the UK from the EU goal of 'ever closer union'. This would take a Treaty amendment, but would also be possible to address in a declaration.

It is also important to note what Cameron didn't demand: changes to the EU agriculture or fisheries policies or the power to control the total number of EU citizens coming to the UK. Even the demands as regards limits on benefits and opt-outs from social policy are not set out expressly.

Taken as a whole, this is a fairly modest set of proposed changes that could be achieved by means of a limited Treaty amendment, and possibly even by means of political commitments that would not entail Treaty amendments. While other Member States might not want such amendments, in the event of a Conservative majority government after 2015, they would have a choice between agreeing such a limited set of amendments or seeing the departure of a large Member State which is a major net contributor to the EU budget and has a trade deficit with other Member States. Their decision should be obvious.

Barnard & Peers: chapter 2

The new Directive on discrimination against EU citizen workers: spitting into the wind?

Steve Peers

Surprisingly enough, despite the public controversy about the number of EU citizens who are workers ('EU workers') who move between Member States, the Council and the European Parliament have recently agreed on new legislation on this issue. This new Directive, which concerns the enforcement of the rules banning discrimination against EU workers, was approved by the European Parliament this week, and will likely be formally adopted by the Council shortly. Member States will have two years to transpose it. 

The Directive makes clear that its subject matter is the enforcement and application of the rights conferred by Article 45 TFEU and Regulation 492/2011 upon EU workers. In other words, it doesn't amend the substantive rights on this issue. This presumably explains why it has not run into opposition from the Member States with more misgivings about free movement, such as the UK.

As for the scope of the Directive, it applies to the rules on access to employment, working conditions, social advantages, trade unions, training, housing and the education of children for EU workers. Notably, it doesn't apply to family reunion issues. Nor does it apply to EU citizens more generally.

Next, the rules on enforcement first of all oblige Member States to make available judicial procedures to enforce these rights. They also require Member States to permit associations, organisations or other legal entities to enter into legal proceedings, either in support of or on behalf of the worker and his/her family. But these rules are without prejudice to national rules on time limits, as along as those limits do not render the application of EU law virtually impossible or excessively difficult. There is no reference to legal aid.

More generally, Member States must ensure that a body of some sort promotes equal treatment, as well as the abolition of non-discriminatory obstacles to free movement, for EU workers and their family members. This may be an existing equality body. The equality bodies must have competence as regards the provision of legal advice or assistance (in which case, their assistance must be free of charge), the conduct of independent surveys, the publication of independent reports, and the publication of relevant information. There shall also be a dialogue with relevant actors at national level. Finally, Member States must disseminate information on issues relating to the free movement of EU workers.

Comments

This Directive is obviously inspired by EU legislation on sex equality and race equality in particular. However, as compared to that legislation, it is missing provisions on compensation (as compared to the sex equality law) and burden of proof. So while the Directive does provide for access to court, some key aspects of the litigation process (evidence rules and concrete remedies) are not addressed. In some ways it is stronger than the general framework employment equality Directive (which lacks rules on equality bodies), but in other ways weaker (since the framework Directive includes rules on the burden of proof). The lack of a general rule on legal aid will also prevent some workers from accessing courts in practice, except where they are able to obtain the support of an equality body. But it is unlikely that such bodies will have a huge budget to spare on litigation. 

The comparison with other equality laws suggests an attempt to change the mindset of the debate - implicitly equating discrimination against EU workers with discrimination on grounds of sex, race et al, which has become widely regarded as socially unacceptable. But while the EU legislation as regards those issues to some extent followed the trend of public opinion, the new Directive arguably pushes against the prevailing trend, at least in some Member States. We will see in practice whether an equality Directive can still have an impact when it is spitting into the political wind.

The new Directive will also have the consequence of making EU workers' rights easier to enforce in practice, and to that extent it can only be welcomed. However, it is questionable why the Directive should not address the position of EU citizens more broadly, and of the admission of workers' family members in particular. For many years, EU law has moved towards a global model of EU citizenship, in place of categorising different groups of citizens depending on their type of activities, although admittedly those EU citizens who exercise economic activities are a relatively privileged category under the EU citizens' Directive. In that context, the additional relative privilege conferred upon workers in this new Directive is a step backwards.

It might also be questioned, since free movement of workers has been guaranteed in principle since 1968, why it took so long for the EU Commission to propose this legislation. Surely the difficulty in practice of enforcing EU workers' rights in practice is not a phenomenon of the last few years?  At least, why was this issue not addressed when the current comprehensive legislative framework on equality rights was established by the EU, over a decade ago?

Finally, to the extent that the new Directive borrows concepts from other equality Directives, the relevant case law should be relevant by analogy. This could lead to interesting results, given that hostility to EU workers has become more openly expressed in some Member States than prejudice against workers on grounds of sex, race, religion and so on. For instance, in the Feryn judgment the CJEU ruled that an employer advertising that it would not hire ethnic minorities was in breach of the race equality Directive. What would it now make of a British Prime Minister who declares, "British jobs for British workers"?

[Update: the Commission reported on the application of this law in practice by the EU Member States in December 2018].

Barnard & Peers: chapter 13 

Fixed-term workers: protection against unfair dismissal and abuse

Steve Peers

The growth of atypical forms of work in recent years has increasingly been addressed by EU measures, in particular the social partners agreements on part-time and fixed-term work, followed by a more recent Directive on agency work. The fixed-term work rules have led to much litigation before the Court of Justice of the European Union (CJEU). However, before today the Court had not yet had a chance to address fully the key issue of the relationship between these rules and national law on unfair dismissal. Furthermore, the Court had not addressed the particular issues facing university researchers.

The fixed-term work agreement has two key provisions: a requirement to ensure equal treatment between fixed-term workers and comparable permanent workers, and a restriction on the abuse of fixed-term work contracts. The latter rule requires Member States to put in place some effective system to control such abuse, for instance by limiting the total number or duration of such contracts, or by providing for objective reasons for renewal of those contracts. Member States can also take other measures, such as providing for damages actions, but there is no obligation to ensure that fixed-term contracts must be converted into permanent contracts.

Two judgments today have addressed the application of each of these rules. First of all, in the case of Nierodzik, a fixed term worker whose contract was terminated early by her employer, the CJEU ruled that rules concerning notice periods are 'employment conditions' for the purposes of the fixed - term work agreement, and so are therefore covered by the equal treatment rule. Assuming that Ms Nierodzik could be compared to a permanent worker working for the same employer (it was left to the national court to decide this), she was therefore entitled to equal treatment as regards the notice period for the termination of the contract (in this case meaning one month notice instead of two weeks).

However, the agreement provides for a possible justification of unequal treatment. The Polish government argued that the temporary nature of the contract was a justification, but the CJEU rejected this argument, in line with prior case-law. The Court also rejected a bizarre argument that fixed - term contracts promote stable employment. Obviously, they do just the reverse.

In the second case, Marquez Samohano, the question arose whether the frequent renewal of a lecturer's fixed term contract constituted an abuse. The CJEU ruled that it did not, because national law restricted such renewals to the case of specialists, along with further conditions. However, the national court still had to decide whether the use of fixed term contracts was in fact substituting for permanent needs of the employer.

Comments

The Nierodzik judgment makes a significant contribution to ensuring stability of employment for workers with fixed term contracts. While it does not extinguish the fundamental distinction between the two forms of contract, it does mean that during the term of the fixed term contract, the worker in principle has the same protection against dismissal as a permanent worker. Logically this rule should equally apply to the rules on other aspects of dismissal, such as the grounds and procedures for dismissal, the calculation of damages for unfair dismissal, and the calculation of redundancy payments.

In practice, fixed term workers will often receive modest protection in the event of early termination of the contract, due to the short period of their employment.  However, it is arguable that if their contract has been renewed, the entire period of the successive contracts must count for the purpose of applying the equal treatment rule.

On that point, the Marquez Samoharo judgment makes it easier to justify the renewal of such contracts. This is dubious on the facts of that case, where the renewal of the contract for four years - such frequent renewals being common in the academic world - surely suggests that the renewal was indeed an indication that the fixed term contract was actually a means of satisfying the employer's permanent needs. It would have been better if the CJEU had given some indication of the factors which the national courts have to take into account when considering this issue, perhaps by analogy with the equal pay case-law.

Barnard & Peers: chapter 20

Protecting the rule of law in the EU: should it be the Commission's task?

Steve Peers

For some time now, in particular in light of disputes about the behaviour of governments in Romania and Hungary, there has been concern about the protection of the rule of law within the European Union. While the EU can sanction infringements of EU law as such (via means of the Commission or Member States bringing infringement proceedings pursuant to Articles 258 and 259 TFEU), and can punish a Member State for serious and continuing breaches of EU values, including the rule of law (Articles 2 and 7 TEU), there is no means to address possible violations of EU values which are not directly connected to EU law and which fall short of such a serious and persistent breach. Moreover, the threshold to punish a Member State pursuant to Article 7 TEU is very high - the unanimity of all other Member States is required. While it is possible for the Council to address a warning to a Member State that it there is a 'clear risk' of it breaching EU values (Article 7(1) TEU, this also requires a high threshold (four-fifths of the Member States in favour, not counting the State concerned), and has never been used either.

The Commission has now issued a communication which aims to fill that gap. It sets out a detailed strategy which it will follow in future to address concerns about the rule of law which fall neither within the scope of the infringement procedure nor which call for the use of Article 7 TEU. Unlike the Commission's parallel discussion papers on the future of Justice and Home affairs policies, this new communication does not depend on endorsement by the European Council.

The new framework

The Commission identifies key features of the rule of law: legality, legal certainty, non-arbitrary exercise of power; independent and impartial courts; effective judicial review; and equality before the law. These concepts are further explained in an annex to the new communication.

As for the process, it is based on a list of principles: a dialogue with the Member State concerned to find a solution; an objective and thorough assessment; respect for the principle of equal treatment; and the indication of concrete actions to solve the problem. It consists of three stages.

In the first stage, the Commission will collect information, including from the Council of Europe and the EU Fundamental Rights Agency. There is no reference to what might trigger such an initial investigation. If the Commission believes that there is a systemic threat to the rule of law, it will send a 'rule of law' opinion to the Member State concerned, setting out its concerns and asking the Member State to respond. But there will be meetings with the Member State concerned before issuing this opinion. The Commission believes that the Member State will be under an obligation to cooperate, pursuant to Article 4(3) TEU (the loyal cooperation rule). The start of the Commission's assessment and the sending of the opinion will be public, but the content of the discussions will not. It is not clear whether the content of the opinion will be public.

If there is no satisfactory settlement, the Commission will move to the second phase: a 'rule of law recommendation', where is there objective evidence of a systemic threat which that Member State is not addressing. This will indicate the reasons for the concerns and the steps to be taken, which may include specific actions which that Member State should adopt. Sending the recommendation and its main content will be public.

In the third phase, there will be a follow-up to the recommendation, examining whether problems continue to recur. If the follow-up is not satisfactory, the Commission might trigger Article 7 TEU.

Comments

First of all, in order to address public concern about the possible infringement of the rule of law, it is important that the process be transparent. While it understandable that discussions with the Member State concerned remain confidential, the Commission should have committed itself to publishing the content of its opinion and the full context of the recommendation, any evidence received during the process, and the documents relating to follow-up.

Secondly, it might be questioned whether the Commission is the best-placed institution for this task. Its proposal broadly resembles the infringement procedure (a letter to a Member State, followed by a reasoned opinion, then seizing the Court of Justice), but that procedure ultimately results in a judgment by the CJEU, if it reaches that stage. The procedure also resembles the EU's economic governance process, but that process culminates in a decision by the Council. Given that the Article 7 process entails decisions by the European Council and the Council, perhaps those bodies (alongside the European Parliament) could be best placed to become involved in the rule of law determination.

Of course, that would entail a risk of politicisation of the process (as is clear from the application of the effective deficit procedure in practice). But the Commission is not immune to politicisation either, in particular if its President is in effect elected pursuant to the results of the European Parliament elections, as many EP parties presently suggest.

This could be avoided by handing the process over to the CJEU, but such new jurisdiction cannot be conferred without Treaty amendment. During the arguments concerning Hungary, the Commission considered the prospect of suing Hungary pursuant to the infringement procedure on the basis that 'packed' courts could not guarantee the effective and impartial application of EU law. Of course, there is a catch-22 here: a Member State flouting the rule of law may not care what the CJEU says.

It would therefore be best if the Commission relies, as heavily as possible, upon the reports of impartial outside observers such as the Venice Commission. In the long run, the best solution might be for some form of new quasi-judicial mediation body to be set up, avoiding both the charges of politicisation and the risk of non-enforcement of judgments.

Barnard & Peers: chapter 9

The possibility of a UK referendum on the EU: The plot thickens

Steve Peers

What to make of the latest twist in the complicated tale of the UK's relationship with the European Union?

Back in January 2013, the Conservative party committed itself to a policy of renegotiating the UK's membership in the European Union by 2017, and then submitting the results of that renegotiation to an 'in/out' referendum, which would decide whether the UK stayed in the EU. It would only be in a position to deliver on that promise if it won a majority of seats in the next general election (May 2015), or at least came very close to holding a majority (possibly a small number of MPs from other parties would support its renegotiation and referendum pledge). So a referendum depended on the result of the next general election.

Now, an 'in/out' referendum at first glance seems more likely, with a change in the policy of the Labour party on March 11th to support such a referendum. However, the Labour party supports a referendum on a different basis than the Conservative party. It does not intend to aim for a renegotiation of UK membership, but rather supports an 'in/out' referendum only if there is an amendment to the EU treaties which transfers significant powers from the UK to the EU. This appears to align the Labour party policy on this issue with the longer-standing policy of the Liberal Democratic party - which could be relevant if the two parties decide to consider a coalition government or other form of political agreement following the 2015 election.

In fact, the European Union Act 2011 already requires a referendum in such circumstances - but it need only be a referendum on whether to approve the changes resulting from this Treaty amendment, rather than an 'in/out' referendum.  So the change in the Labour party's policy is really only meaningful if there is such a major Treaty amendment.

What are the odds of this? While there is some prospect of a major Treaty amendment to address the issues facing the eurozone, which might also apply to non-eurozone States that wished to participate in those changes, it would be easy to draft a treaty which made major changes, but exempted the UK from them. This would be particularly easy if those changes only applied to Member States applying the single currency, perhaps including those Member States obliged to apply it (all other Member States except the UK and Denmark) or all non-eurozone Member States that wished to participate.

This scenario could be combined with a renegotiation of the UK's position (if the Conservative party holds a majority), or could simply leave the UK's position untouched. It would seem odd to pass up the opportunity to, at the very least, clarify the relationship between the eurozone and non-eurozone Member States, which would be directly relevant to such a Treaty amendment.

A more likely scenario is that, if any amendments to the EU primary law are deemed necessary, they will take the form of a treaty among a group of Member States, avoiding the Treaty amendment procedure altogether. This process was approved by the CJEU in the Pringle judgment, at least as regards the treaty establishing the European Stabilisation Mechanism. It was also applied as regards the fiscal stability treaty, after David Cameron vetoed the possibility of a Treaty amendment to that end. Such treaties do not need all the Member States, or all their signatories, to enter into force, and at least in some circumstances can use the EU institutions to implement them.

So the net result of today's policy change is a slightly increased likelihood of using such a procedure in order to avoid a Treaty amendment. This was already likely in the event of a Conservative government; now it is also likely if the Labour party takes office. This outcome does nothing to improve the transparency or complexity of EU law. It would have been preferable to take the opportunity in the near future to consider the role and functions of the EU more fundamentally, not only as regards the UK, in order to attempt to rebuild its rather tarnished democratic legitimacy. 

Barnard & Peers: chapter 2

They paved paradise, they put up a parking lot; but they couldn't invoke the EU Charter of Rights

Steve Peers

The immortal words of Bob Dylan (and revoiced by Tracy Chapman) lament the irreparability of environmental damage. At least in some cases, however, it is possible to attempt to restore the damage caused. Does national law that seeks to require the restoration of such damage within the scope of EU law - and therefore the scope of the EU Charter of Fundamental Rights?

In today's judgment in Siragusa, the Court of Justice of the European Union (CJEU) was asked to rule on whether the Charter could be invoked by Mr. Siragusa, who had developed buildings on a protected landscape site. Perhaps inspired by the Dylan/Chapman song, the regional government in Sicily knew what it had got once it was gone. While the national law provides that developers can only be punished by a fine if their prohibited development does not expand the floor space of the building, Mr. Siragusa's development was bigger than that.  So he was ordered to tear it down.

In his view, this violated his property rights, and he convinced a national court to ask the CJEU whether the national decision breached Article 17 of the Charter, which recognises the right to property. Of course, there is a need to show a link to EU law before the Charter can be invoked, according to Article 51 of the Charter (see the comprehensive analysis of this Article by Angela Ward in the forthcoming commentary on the Charter).

According to the Court of Justice, there was not a sufficient link to EU law, so the Charter could not be invoked at all. Mr. Siragusa had referred to a number of different EU legal instruments, but the Court ruled that it was not enough that EU law had an 'indirect impact' or was 'closely related' to a dispute. Rather, the question was whether the national law was 'intended to implement' EU law, including the nature of that legislation and its objectives. In this case, none of the EU measures referred to impose specific obligations to protect the landscape, even though landscape protection is referred to in Directive 2011/92 on environmental impact assessment, Directive 2003/4 on environmental information, the Aarhus Convention (which the EU has concluded) and Regulation 1367/2006 on environmental information held by the EU institutions.

The Court also made a general statement about the purpose of protecting human rights within the EU legal order. The objective is 'to ensure that those rights are not infringed in areas of EU activity, whether through action at EU level or through the implementation of EU law by the Member States'. And the reason for this objective is the need to avoid the protection of fundamental rights varying in Member States in such a way as to damage the primacy or effectiveness of EU law.

Comments

The leading case on the interpretation of Article 51 of the Charter is last year's judgment in Fransson. That case concerned the collection of VAT, which is regulated in detail by EU law. Even though the EU legislation does not regulate the process of collection of VAT, the CJEU said there was a sufficient link to EU law for the Charter to apply.

With respect, it is hard to see much distinction in principle between Fransson and Siragusa. EU environmental legislation certainly aims to protect the landscape (as evidenced by the references to landscape protection in the EU environmental legislation discussed by the CJEU), much as it aims to set up a standard system of VAT. It does not impose specific obligations regarding enforcement of landscape protection obligations, but neither does the VAT legislation regulate the details of enforcement of tax collection.

Arguably the cases can be distinguished because the substantive EU law concerning landscape protection imposes less precise obligations than the EU law defining the scope of VAT. However, this is a rather vague distinction, and the Court should indicate clearly whether it wishes to establish such a dividing line, and if so, where exactly to draw it. Today's judgment makes no mention of Fransson in this context, which is hardly helpful.

Finally, it is disturbing that the Court's rationale for protecting human rights within the EU legal order is subordinated to the primacy of EU law. The Treaty drafters made clear that human rights protection is one of the values on which the EU legal order is built. Surely the purpose of the primacy of EU law is to ensure the effective protection of those values - and not the other way around.

Barnard & Peers: chapter 9, chapter 22