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Towards no Brexit deal on citizens' rights

by Migeru 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.

Iain Duncan Smith is a former Tory leader, and still has much influence.

I've never quite understood May's obsession with the ECJ.  Has it given many controversial adverse rulings to the UK?  I can't recall any.  Perhaps she is still confusing it with the ECHR. In any case she was irritated at the Juncker dinner when David Davis regaled the gathering, three times, with the same story about his successful action in the ECJ against her in the Home Office. He portrayed this as being somehow a story against the ECJ, when in fact it was only hearing his action and finding in his favour.

In any case the ECJ is the only game in town for the EU, unless it abrogates its own treaties, which it won't do.

However I still think a fudge is possible on this issue, requiring current immigrants to register as such, and safeguarding their rights under current law. This will effect UK "ex-pats" in Spain as much as EU "immigrants" to the UK. (N.B. Expats good, immigrants bad; in much the same way as exports good, imports bad. Go figure)

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun May 7th, 2017 at 10:18:13 AM EST
I don't recall any case either, but in general ECJ is one of the few things holding up the way to total surveillance societies. So maybe May sees future troubles there?
by fjallstrom on Sun May 7th, 2017 at 09:43:47 PM EST
[ Parent ]
To me, the far more difficult issue to finesse is that of the "exit payment".  Any payment will be very controversial in the UK.  Little matter that Norway et al have to make ongoing payments for access to the Single market.

In the short term the issue can be postponed by agreeing to a methodology for calculating the amount without naming the figure.  That won't stop the FT working it out though. In any case they will leave final agreement to that to the last moment, and it might well be fudged my combining it with some notional figure for future EU payments to the EU, ongoing payments for Single market access, and anything else they can use to muddy the waters.

It is far easier to split the difference on money than on principles, put the political unpopularity of any payment in the UK will mean it will be an 11th. hour compromise.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun May 7th, 2017 at 10:24:12 AM EST
The bit I still don't have clear visibility on is how they are going to avoid a hard border at the 500KM land border with the Republic using "imaginative solutions".

Sure technology, blockchain, on-line administration and pre-clearance might play a role.  But the bottom line is that the lack of a customs union and the presence of tariffs and quotas requires verifiable controls.

My preferred solution is to implement the hard boarder at air and sea ports in N. Ireland, effectively maintaining N. Ireland itself within the single market and customs union and also within the UK. Some independent verification/management process would be required to ensure compliance with all relevant laws/tax payments as the N. Ireland authorities would effectively be acting on behalf of the EU as well as the UK.

It would also have huge political implications for the Unionist community as it could be seen as a step towards a United Ireland.  However similar arrangements were in place during and after WWII, and Certificate of Origin and end user customer forms could be used to protect N. Ireland businesses from tariffs if exporting/importing to/from Great Britain.

In some ways N. Ireland could have the best of both worlds under this arrangement - effectively a tax free zone - whilst Unionist's "British Identity" concerns could be ameliorated.  

I don't think the Westminster Government care enough about N. Ireland to be bothered about such an arrangement either way, but would the EU wear it?

Northern Ireland would still be losing EU CAP and peace programme payments, but other sectors of the economy could thrive, cross land border smuggling would be less of a problem, and the overall impact on the EU would be small.

I haven't seen anyone even trying to think this through yet though, and don't even know if the Irish government has a position on this. What I do know is that a hard border at the 500KM border would provoke wholesale smuggling, if not actual violence, and agreement to it would be the death-knell for the current Irish Government.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun May 7th, 2017 at 10:49:14 AM EST
The idea of some sort of free-trade zone could be an elegant solution, in particular to how to narrow the economic gap between North and South. Advantageous to all four parties, in the long run.

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
by eurogreen on Sun May 7th, 2017 at 12:01:13 PM EST
[ Parent ]
Well, Barnier's position is a principled one, which surely has the full backing of the Commission, and more importantly, of the EU27 governments.

Given that May has already announced that she will play hardball on EU residents' rights, it's a flat-out hostage situation. Getting that dealt with at the very beginning would seem to be an excellent move in order to calm people's emotions and get on with the really difficult stuff.

I mean, what is the issue with "granting" legal residents the rights they already have?

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Sun May 7th, 2017 at 05:36:15 PM EST
I mean, what is the issue with "granting" legal residents the rights they already have?

It defeats the whole point of Brexit, which is to get rid of the furriners...

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun May 7th, 2017 at 05:39:50 PM EST
[ Parent ]
Leaving the ECJ will be an issue cos any trade deal requires agreement on 3rd party arbitration, which in the EU is always the ECJ.

the difficulty is that brexit is being driven by spite and prejudice, which are not good pre-conditions for an excellent outcome

keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Sun May 7th, 2017 at 07:35:13 PM EST
The spite being fully internally created. The UK got an incredibly sweetened deal. To be spiteful anyhow requires industrial gradee self-delusion.

Earth provides enough to satisfy every man's need, but not every man's greed. Gandhi
by Cyrille (cyrillev domain yahoo.fr) on Sun May 7th, 2017 at 07:52:03 PM EST
[ Parent ]
Politics.co.uk - Ian Dunt - Local elections: Ukip aren't dead - they're in charge

Critics of the approach May has taken to Brexit may be aghast at these results, but they should remember that May has achieved it merely by extending the period in which she can avoid reality. She has now managed to expand this period directly into the Article 50 period - a deeply irresponsible waste of limited negotiating availability which she has not been at all pulled up on due to the obedience of the Brexit-supporting press. But reality is coming on June 9th. The nature of the problem May is facing has not changed, there is no evidence she is up to handling it, and the Ukip image she has adopted will actually make it harder to triumph.

May has an impossible task in these talks. She needs to show they will be a success, but Europe must show they are not. So Britain faces either no-deal or a bad deal. There are no other options. Even the Brexiters barely pretend otherwise. Their rhetoric was swung very quickly from a world of endless promises to one in which they daily insist how comfortable they are with WTO terms.

The bad deal, which is all Europe is prepared to offer, will make May look weak and ineffectual, beaten by Brussels bureaucrats on the budget, on EU citizens' rights, on trade arrangements, on the nature of the transitional deal. The no-deal outcome would be catastrophic, a national humiliation on the scale of Suez.

keep to the Fen Causeway
by Helen (lareinagal at yahoo dot co dot uk) on Sun May 7th, 2017 at 07:52:31 PM EST
The no-deal outcome would be catastrophic, a national humiliation on the scale of Suez.

The Conservative Government is long overdue for just that sort of humiliation. Too bad the country has to have it as well. The only good that might come of it would be if, by some miracle, enough people saw the light that the UK could get a coherent government again. But when was the last time that was the case?

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Fri May 12th, 2017 at 01:49:12 AM EST
[ Parent ]
Sorry, but the UK is no longer a coherent polity any more, and therefore structurally incapable of electing a coherent government.  To increasing regional tensions one must add the class war, which the Tories have been winning hands down but which is subject to the law of diminishing returns: There is only so much you can screw out of people before they either rebel or wallow in defeated uselessness.  

So far any rebellion has been misdirected against the EU.  When that misdirection becomes defunct post Brexit, it will turn inwards and either devour the nation or lead to something of a revolution. It will be too late to save the Union and too late to save much of the UK economy.  We will have either a retro 1950's UK or a much more creative 1960's version.

A vibrant post Brexit UK could emerge from the ashes, perhaps in 10-20 years time and lead the way in innovation and creative design.  More likely we will see a neo-fascist moribund enclave looking like it had just lost a major war and obsessed with delusions of past grandeur. Other European states had better stay well clear for fear of evoking a very bitter and resentful response. The "national humiliation on the scale of Suez" will be very much closer to home.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri May 12th, 2017 at 09:33:14 AM EST
[ Parent ]
Fuck, and I thought I was the unseriously pessimistic one!
by Colman (colman at eurotrib.com) on Fri May 12th, 2017 at 10:23:00 AM EST
[ Parent ]
I'm old enough to remember the class war of the 1970's and the "English disease" of poor economic performance, poor product quality, and currency chaos which preceded it.  The EU helped save the UK from all of that and gets damn all credit for doing so.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri May 12th, 2017 at 10:40:45 AM EST
[ Parent ]
The left had similar hopes for Germany when the Kaiser fell. It seems national humiliations usually make things worse for coherent policy. But where has the US ever suffered such a humiliation - except in the eyes of die hard war hawks after Vietnam. And, even so, look at what Nixon was able to pull out of those troubled waters - no less than the Presidency of the USA. At least he got his own comeuppance.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Fri May 12th, 2017 at 02:32:10 PM EST
[ Parent ]

in low expectations.

Diversity is the key to economic and political evolution.

by Cat on Sun May 14th, 2017 at 03:30:59 PM EST
[ Parent ]
Theresa May recites Labour's lines, but doesn't mean a word of them | David Graeber | Opinion | The Guardian -
But as we learned after the prime minister's catastrophic 2 May dinner with Jean-Claude Juncker, she never really meant what she said about Brexit either. Frantic Tory spin-doctoring is now rewriting the story of what happened that evening as the story of One Tough Lady against the Eurocrats, but if one looks at the actual text of the German news story that set off the brouhaha, it's clear May started out by trying to bond with Juncker by cheerfully explaining she was playing the Brexiters for fools. It'll be just like protocol 36, she offered: remember, when the UK made a big fanfare out of withdrawing from the Lisbon treaty, then, as soon as no one was paying attention, quietly enacted most of its provisions back into law? The fireworks only began when Juncker explained with Brexit this would not be possible.

Not directly related but seems still an underappreciated read on the infamous dinner.
by generic on Thu May 11th, 2017 at 06:28:47 AM EST
I translated that German article concerning the May-Juncker dinner everyone's been talking about. -
Juncker countered that he had a slightly different view on this. Yes, he wanted an orderly exit without chaos. And yes, he wanted continued good relationships with London. However, following Brexit Britain would become a non-member country of the EU -- a country that, unlike Turkey, wouldn't even be part of the customs union. He believed that the country will be in a worse position than it is today. "Brexit cannot be made a success", he stated.

May seemed surprised. Possibly no one had said this so clear to her in a while. She defended her vision by making references to a pevious experience with European negotiations -she argued that protocol 36 had been dealt with in the same way. While the protocol had meant a lot on paper, it changed little in reality. Now Junckers' people's alarm bells were ringing. They had feared something like this, and now it had happened.

by generic on Thu May 11th, 2017 at 06:40:44 AM EST
[ Parent ]

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