Sunday, 24 September 2017

Has Mrs May done enough to break the Logjam?

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Jane Lambert

The Rt Hon Theresa May MP and Monsieur Michel Barnier visited Italy last week.  Both made speeches.  Monsieur Barnier delivered his to the Foreign and European Affairs Committees of the Italian Parliament in Rome on 21 Sept 2017 (see Speech by Michel Barnier in front of the Committees of Foreign Affairs and the Committees of European Affairs of the Italian Parliament 21 Sept 2017). Mrs May delivered hers the next day at the church of Santa Maria Novella (see PM's Florence speech: a new era of cooperation and partnership between the UK and the EU 22 Sept 2017).

Mrs May went to Florence with the object of persuading Monsieur Barnier or perhaps those instructing him that the parties had made sufficient progress on the negotiation of a withdrawal agreement to discuss the terms of a new relationship between the European Union and the United Kingdon after the 29 May 2019 or any transitional period that may follow our departure.  Has she done enough to achieve that objective?

If the differences between  Her Majesty's Government and those of the remaining member states were really about money as is so often said by politicians and the press in this country, then I would say that she probably had.  She said in terms:
"I do not want our partners to fear that they will need to pay more or receive less over the remainder of the current budget plan as a result of our decision to leave. The UK will honour commitments we have made during the period of our membership."
But, as I said in  Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017 I don't think money is the real problem.

The stumbling block is the constitutional principle that no Parliament may bind its successor.  Whatever Mrs May agrees to in a treaty, whatever treaty commitments she enshrines in statute, a future administration, whether of the right or of the left, could repeal it and the courts of England and Wales, Scotland and Northern Ireland would have no option but to give effect to the statute.

That's not possible right now because Union law prevails over national law. If Parliament passed an Act that was repugnant to EU law our courts would simply disregard it.  After Brexit, British nationals in the remaining states will still have the guarantee of EU law if a remaining state were to enact legislation that is repugnant to the withdrawal agreement but EU nationals living here would not because the EU treaties will have ceased to apply here by reason of art 50 (3).

That is why Monsieur Barnier said in Rome:
"On citizens' rights, our priority in this negotiation:
The issue of guaranteeing the rights of EU citizens in the United Kingdom has not been solved.
It is absolutely necessary that all these citizens, hundreds of thousands of whom are Italian citizens living and working in the United Kingdom, can continue to live as they did before, with the same rights and safeguards.
This is a human and social question, which the European Parliament and its president, Antonio Tajani, are vigilantly watching, and rightly so.
Citizens should be able to enforce their rights directly from the withdrawal agreement. This would prevent any possible dilution of these rights, if the rules implementing them in the UK were to change.
In the same way, we want these rights to be valid in national courts and that national courts have the possibility – or even the obligation – to refer questions related to the interpretation of rights deriving from European law to the Court of Justice of the European Union. The Court of Justice would remain the ultimate guarantor of the agreement.
This is for a simple reason: rights need to be effectively guaranteed.
Our citizens have real concerns today – which we share – when the Home Office sends deportation letters or appears to defy High Court orders, as we read in the press.
Our position on this point has been clear since the beginning. We want to provide the strongest safeguards for the rights of citizens on both sides of the Channel. We are waiting for the United Kingdom to express the same wish."
So what did Mrs May offer in response? Well, there was some movement.  The Prime Minister acknowledged the need for guarantees and made the following concession:
"We have also made significant progress on how we look after European nationals living in the UK and British nationals living in the 27 Member States of the EU.
I know this whole process has been a cause of great worry and anxiety for them and their loved ones.
But I want to repeat to the 600,000 Italians in the UK – and indeed to all EU citizens who have made their lives in our country – that we want you to stay; we value you; and we thank you for your contribution to our national life – and it has been, and remains, one of my first goals in this negotiation to ensure that you can carry on living your lives as before.
I am clear that the guarantee I am giving on your rights is real. And I doubt anyone with real experience of the UK would doubt the independence of our courts or of the rigour with which they will uphold people’s legal rights.
But I know there are concerns that over time the rights of EU citizens in the UK and UK citizens overseas will diverge. I want to incorporate our agreement fully into UK law and make sure the UK courts can refer directly to it.
Where there is uncertainty around underlying EU law, I want the UK courts to be able to take into account the judgments of the European Court of Justice with a view to ensuring consistent interpretation. On this basis, I hope our teams can reach firm agreement quickly."
The offer to incorporate a withdrawal agreement into national law and make sure our courts may refer directly to it is a step in the right direction - especially if our courts can take account of judgments of the Court of Justice of the European Union. But it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time.  If I were advising Monsieur Barnier and his team (which, thankfully, I am not) I would have to tell them that Mrs May's concession is just not good enough.

Should anyone wish to discuss this article, he or she can call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

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