Sun May 7th, 2017 at 09:12:15 AM EST
On Friday Michel Barnier, the chief EU negotiator on Brexit, gave an important speech on the EU's position on citizens' rights.
In short, free movement of people is one of the four essential freedoms. These four freedoms are indivisible.
This is how our Single Market works.
And let me be clear: the integrity of the Single Market will never be compromised in these negotiations.
But this point fell on deaf ears during the referendum campaign.
While the EU's position is reasonably plincipled, it seems to me it's a non-starter given Theresa May's stated positions. It also seems to me Barnier understands this.
The extent to which the indivisibility of the four freedoms fell on deaf ears in the UK before, during and after the Brexit referendum campaign, is hard to exaggerate. Prominent Remain pundits could never understand why free movement of workers was such a big deal to Europeans. We were supposed to get over it and endorse a free-trade agreement with immigration controls. That makes economic sense, and that's all that matters. Plus I suspect these pundits are well-off and well-connected enough that they never have trouble crossing a border for leisure or business.
Now let's go to Barnier's speech:
It should be easy to agree on general principles.
But it will not be as easy to formulate all these principles neatly in a legally precise text.
I don't think even the general principles can be agreed. They are:
- Number one: the level of protection afforded under EU law must not be watered down.
- Brexit should not alter the nature of people's daily lives.
- Number two: there must be equal treatment between all EU and UK nationals in the UK.
- Inversely, equal treatment between UK citizens and the nationals of the 27 Member States must also be the rule when UK citizens live in those 27 states.
- Number three: the EU requires crystal-clear guarantees that rights will be effectively enforced.
- For UK citizens in the EU, the European Court of Justice will play its role to ensure the application of the withdrawal agreement.
Similarly in the UK, the rights in the withdrawal agreement will need to be directly enforceable and the jurisdiction of the European Court of Justice maintained.
Maintaining the jurisdiction of the ECJ is a clear non-starter. It is the raison d'ętre
of Brexit as far as Theresa May is concerned. She in fact wants out of the Council of Europe at least since her time at the Home Office, because the European Court of Human Rights interfered with her attempt at deporting a hate preacher. But at least in the past 9 months she has learned that the Council of Europe is not an EU institution. Still, in case anyone doubts May's determination to end ECJ jurisdiction, this is the reason why she wants to take the UK out of the Customs Union. Let that sink in for a minute. May's starting position in the Brexit negotiations is that the UK should be farther removed from the single market than Turkey, because getting rid of the ECJ trumps all other considerations. And here we have Barnier talking about the integrity of the single market, and lifetime protection under the ECJ for EU migrants in the UK.
Recall the leaked dinner with Juncker:
Ms May also informed the officials she wanted to clarify the rights of UK citizens in Europe at the EU Council meeting in June – an idea dismissed by Mr Juncker, given the complex nature of associated issues like healthcare.
She also stated she wanted UK citizens to be treated no differently from other third-country nationals. (The Independent)
The Tory reaction to Barnier's speech has been as expected:
Iain Duncan Smith, the former Conservative cabinet minister, immediately condemned a “free for all” which would allow anyone to claim they had been living in the UK without proof.
“The point about controlled immigration is that you control immigration and that means you need to prove residency,” he told The Times.
“I don't even know why Mr Barnier is talking about this because it is a matter for the UK government. He should shut up and wait for the negotiations.” (The Independent)
Barnier said explicitly that people should not be required to document their residency in the UK in order to have their rights guaranteed post-Brexit. It gets worse. Barnier also said the cutoff date for citizens should be the date when the UK leaves the EU. The UK might prefer a cutoff date of the Article 50 communication, that is six weeks ago, not in two years' time.
I'm beginning to think that the ECJ jurisdiction issue will sink the entire negotiations and we'll end with no deal. Brace yourselves.