Conference of European States (Chapter 5)

In your reactions to this Blog, there has been one consistent sceptical strand –

“This is all very ingenious, but how could Brussels ever accept it?”

I want to respond to this scepticism.

I think there are good practical reasons for taking the CES proposal seriously.

• First:  It addresses the arguments which underlie all Euroscepticism.  After all, there are no significant streams of anti-European opinion in the UK.  Millions of Brits have enjoyed Continental and Mediterranean holidays within Europe, and many thousands have first or second homes there, although they were denied a vote in the Referendum.  Many more have studied or are studying in member-states of the EU, and are the wiser and better-educated for the experience.  Even ardent Brexit-voters were heard to say – “I’m against the EU, but not against ”Europe” or the Europeans…  Chancellor Merkel speaks fondly about “the European family”, although wrongly equating that term with “member-states of the EU”.
• The term “European Union” means, I suggest, the constitutional legal structures of the European family.  They have changed frequently since the early days of the Coal and Steel Community of the 1950s, and there is no reason why they should not be changed further.  As a first stage of the Brexit negotiations, my CES proposals would replace those structures, with a softer, more collegiate, association – and leave the institutions of “the EU” behind.   My intention would be to persuade the same 28 member-states to adopt a new “family” system, proud and content to be closely associated with each other in a network of common European culture, history, hopes and interests.  The new structures would apply equally to all members of the family, without exceptions or a la carte exemptions.  The very drafting of that alternative Constitution would, I believe, change the European playing-field: the unpopular and unrealistic supra-national elements of the EU Constitution would be modified or excluded altogether – the EU Parliament and the European Court would be omitted, the Council would be expanded and the Commission restructured to meet the executive needs of the new association.
• NB  Nothing would of course affect the Strasbourg European Court of Human Rights, which forms no part of the EU, and all CES member-states would be required to confirm their individual acceptance of its jurisdiction, outside the scope of the CES.  This very re-structuring would take the sting out of much Euroscepticism throughout Europe – and would take many cards out of right-wing political hands.  The family of Europe would be less prone to family squabbles.
• Second:  This re-structuring would address the specific strands of UK opinion which were decisive in securing the UK Brexit victory: it would honour and respect the Brexit verdict, because the “free movement of labour” would simply be omitted, as a prerequisite of CES membership, and national authority would be reasserted.  The cold mathematical logic of the Referendum ballot-box would be respected, and the objection based on loss of sovereignty and lack of UK border controls would be met. All future changes would be consensual, not passed by “qualified majorities”. The CES Constitution would offer the prospect of a much less conflictual future for all the European states.
• Third:  The new CES settlement would appeal to many EU nations and interests, outside the UK, who are plagued with similar strands of Euroscepticism and political opposition.  Every state, and every citizen, would have a more comfortable sense of being in sovereign control of their nation’s affairs.  Over the two years of the Art.50 negotiation-process, levels of confidence in the power of “Europe” would be strengthened, and opinion would coalesce around the new CES constitutional terms.
• Fourth: The first stage would transform the shape, and dramatically reduce the complexity, of the long Art. 50 negotiations.  Most of the substantive negotiating would be done in the course of drafting the new Constitution.  At the end of that process, the CES Constitution would fall to be adopted by unanimity.  It would then be a relatively easy drafting task to transfer the rights and obligations of the Lisbon Treaty from the “European Union” to the more consensual “Conference of European States”.  The whole process could be contained within the prescribed two-year period (Art. 50), without creating any lapse between the old-structures and the new.
• Fifth: It would give practical effect to the many sentiments of genuine sadness and regret which have been triggered by the UK’s BREXIT vote.  The process would move the member-states from the present break-down of the old Constitution to a consensus on the new – that would be the objective.  At that stage, there would be no exceptions for any member-state: all would be subject to the same CESrules and principles.  With the entry-into-force of the new CES Constitution, the UK would be fulfilling the verdict of the Referendum – “to leave the EU” (i.e. to leave behind the supra-nationalism which characterized the old institutions) and to join a looser association with improved prospects of success in the future.

These five strands of the forthcoming negotiations offer many opportunities for compromise and concession, while remaining true to the objectives of both sides.  I do not intend to specify here the “trades” and concessions which might be made – it would be for those with closer experience of EU negotiating styles to make their contribution, if this project proceeds.

Roger Warren Evans

Barrister-at-Law [Retired]

23 St Peter’s Road  Newton  Swansea SA3 4SB    Tel: 01792-366134   roger@warrenevans.net

 

 

 

 

Conference of European States (Chapter 4)

It is now Wednesday morning 29 June 2016.  If you have read Chapter 3, you will know that I am here embarking on a highly speculative voyage of the legal imagination – but I believe that, if we are to make sense of the present European morasse over freedom of movement, we must do some generic thinking first, about the entire global framework for migration management […if you want to go back to chapter 3, the navigational arrows are at the foot of this text]. 

Let me emphasise that I am now addressing the drafting of a UK Migration Management Bill, to be drafted within all the constraints of the UK’s Treaty obligations and other prevailing legal norms, to go to the Westminster Parliament.  While this legislation would have to take account of any commitments given (by “treaty”) in the course of future Art.50 negotiations within the EU, none of this would be negotiated with the CES, if it were ever to be formed.  The UK would be exercising its sovereign right to control its own borders.

My starting point is this.  It appears to me that, in the years since 1950, the institution of the “sovereign state” has become the world’s dominant political entity, simply because it has resonated most closely with the peoples of the world.  This dominance must be fully acknowledged.  The “nation state” has expanded, in response to popular demand.  Even the Muslim insurgency of Da’esh claims “state” status for its Caliphate.  And billions of our fellow inhabitants now have firm ideas of what constitutes such “statehood”: the very concept carries with it powerful elements of sovereignty, nationality, territorial identity, and of governmental supremacy within each “state territory”.

It was not always thus.  In 1950, in the aftermath of the awful WWII “between states”, culminating in the brutality of Hiroshima and Nagasaki, many had severe doubts about the wisdom of using the “state” as the primary building-block of post-War order.  In 1951, as a teenage member of the UK’s UNA Youth section, I attended the first General Assembly of the United Nations which was held in Paris at the Palais de Chaillot.   The Youth Section (which I represented, as an “Observer”) was called “The Council for Education in World Citizenship”.  That title was no empty slogan: the genuine expectation was that the United Nations would generate new supra-national solutions which would overcome the causes of war between nations.  Inter-nationalism was not enough.

It has not turned out like that.  Nation states have thrived.  Indeed, the United Nations has been swamped by a membership of 193 sovereign states.  The UN is now almost completely ineffective, incapable of decisive action.  The UN has been crippled by the overwhelming success of the sovereign nation-state.   But it was in the early 1950s that the present supra-national institutions of Europe were first planned: they have their origins in the wave of post-War idealism which I well remember, and which characterized the 1950s.  I well remember the founding of the Coal & Steel Community, in the early 1950s – that grew into the European Economic Community, and the then European Union.  Since then, however, it is the “nation state” has clearly won the tussle for influence, among constitutional entities – it is now the “political institution of choice”, the world over.  Everybody wants to be a “citizen” of a state, indeed those who are without a patron-state are at a severe personal disadvantage – particularly as the “welfare state” has also gained traction during the same period, and citizens have come to be seen as “beneficiaries” of their patron-state.  Hence UKIP.  Hence the majority for BREXIT.  Hence Marie le Pen.

There is now no realistic alternative to accepting the “sovereign welfare state” as the principal constitutional building-block of this planet.  The problem for “Europe” is that the key supra-national institutions of the European Union are themselves a throw-back to the 1950s, and have been bypassed by more recent developments.  It is a process which I have lived through, step-by-step, since the age of 15.

• It is to the resolution of that dilemma that my “CES” proposals are addressed.

Thus it is that, as a left-wing political pragmatist, I argue for the right of every sovereign state to control its own borders, so far as that is possible in practice.  I say that all Europeans should recognize the powerful emotional forces that are at play in this debate, modify their institutions accordingly, and move on to decide how to give effect to this sovereign right.  Such a change would transform – at a stroke – the political climate throughout Europe.  In the formation of the CES, there would be no room for the “free movement of labour”.  Every grant of state citizenship and its attendant rights, every grant of residency, the issue of every work-permit, should be vested solely in the host-state, within the framework of its own laws and treaty commitments.

Within the CES, the UK Government (representing the UK sovereign welfare state) would thus have to formulate its own “migration management” policies.  For all the other members of the CES, the position would be the same.

Let me first clear the ground.  Although political posturing seeks to persuade us otherwise, it is literally impossible to “manage” all inward migration.  Not every migrant presents tidily at a Home Office, ready to cooperate.  Let me explain.  I want you to imagine yourself as a Home Office official, sitting in a small booth or office, confronted with a person “without papers”, without legal representation, speaking little or no English, afraid of anyone in uniform, and indeed reluctant to speak at all. The applicant may have been found by the Police, in a lorry on the M4, or cooking in a takeaway, without any status documentation.  There are migrants who simply slip into the UK informally, or come as visa-holders and overstay, who never take action to apply to the Home Office at all – they are simply classified as “irregular migrants”, and may not fall into any formal legal pigeonhole.  They are not likely to appear at the Home Office unless arrested by the Police and taken there.

Those appearing before you may just have learnt how to say “I want asylum” – which means that you are Treaty-bound to afford them a fair inquiry and hearing.  If you can satisfy yourself that you know what language the person is speaking, you can try to arrange an interpreter – it is rarely practical to keep a large team of interpreters near the office, and so you must provide accommodation for that person until you can arrange a future appointment, with an interpreter: if the person comes with children or other family members, the complications are multiplied.  The applicant may abscond before the interview appointment.  The administrative path can be difficult, and fraught with pitfalls.

But once all these hurdles have been overcome, the “Asylum Interview”  can begin.  There are then basic interrogatory hurdles to overcome.   “Where is your passport?  If you have none, have you ever had a passport?  If Yes, why do you not have passport with you?  Where are you from?  More specifically, which state do you come from?  What is your home-state, or “country of origin”?  How did you travel to England?   Where and how did you enter the country?”

(1)        One of the problems faced by “the system” (i.e. all organized “Western” states), is that of personal statelessness.  The very proliferation, since 1950, of a plethora of nation states has led to unprecedented levels of statelessness, throughout the world. Every nation state is free to determine its own rules for the acquisition of formal “nationality”, and that has resulted in a global wave of statelessness, now estimated by the UN Refugee Agency to have reached 65m people (if one includes internally displaced persons, who often have difficulty establishing their nationality).   Some of them are bound to end up in your office.  They are important, because if applicants for protection are genuinely stateless, it will be impossible legally to deport them, whatever your conclusions: it would be a breach of their human rights.  If they are truly “stateless”, then wherever they are sent, in an increasingly “managed” world, they will quickly be flown back to the UK. The stateless person is likely to stay in the UK, simply because no lawful deportation option is available to the Government.

• So: as a matter of diplomatic priority, the UK should negotiate (preferably within the UN) the establishment of an international forum for the judicial assignment of stateless applicants to their “most relevant and likely state”, with appropriate appeal rights. This problem cannot be allowed to mushroom further.  A UK Migration Management Act should include measures to reduce the systemic international problem of statelessness.

(2)        Difficulties of “proof”   Let’s assume that all “Point 1” problems have been overcome, i.e. that the applicant is definitely from country XZ and is definitely a citizen of the XZ State.  The next question are – “Do the circumstances (as established by the evidence) justify extending to the applicant the protection of the UK State?  What has actually happened to the applicant, and what future would s/he be likely to face, upon return to XZ State?  What is the evidence of current events in XZ?”    UK common law has developed a special legal solution to this difficult evidential problem. 

If the issues were of criminal liability in a UK Court, the test would be one of reasonable doubt   i.e. “Does the evidence establish beyond reasonable doubt that the Applicant was mistreated?”   Or if the same question were raised in civil proceedings (e.g. for damages) the question would be “Does the evidence establish on the balance of probabilities, that the mistreatment occurred?”   Neither test is appropriate for refugee claims – it is so difficult to know what actually happened, in a distant foreign country, months or years earlier, often in secret without witnesses. You would not be able to consult the XZ Authorities, because that might put the applicant in grave danger. And so UK common law has developed a modified test of the evidence in refugee cases, namely “Is it reasonably likely that the mistreatment occurred?”

• I favour the UK common law solution, and have no quarrel with it.  However, the “reasonable likelihood test” is difficult to apply, and demands real legal skills – which are often denied to applicants when challenging the Home Office, because asylum-applicants are often left without Legal Aid.  We should follow Scotland’s example, and insist that a lawyer taken on by a refugee with Legal Aid should stay with the Client until the end of appeal proceedings, and be properly paid.  In England and Wales, Legal Aid is commonly withdrawn from an asylum applicant before an appeal is submitted.  In any comprehensive UK Migration Management Act, these issues should be fairly and coherently resolved.

(3)        Managed Migration:  The large majority of applicants appearing before you will be those relying on a visa stamped in their passport, giving only limited room for miscarriage of justice – the applicant seeks to enter the UK to work, to discharge religious duties, or to study, or to visit family, or get medical treatment, and s/he will have applied for permission to a local UK Embassy, whose staff are well-placed to judge the accuracy and honesty of the application. These constitute the “Managed Migration” sector of Home Office’s work, with a comparatively low-level of malfunction.  Any new post-Brexit “points-based system” to regulate work-permits would fall within this procedural category.  It poses no systemic problems, as a matter of legal principle or practice.

• I will argue that this procedure should be used more extensively in future, for a wider range of cases, which should be included in a new UK Migration Management Act.

(4)        Asylum   Asylum-seekers fall into a distinctive and well-defined category of applicant: they have to make their case for UK protection under the specific terms of the 1951 UN Refugee Convention.  Once a person has claimed “asylum”, the Home Office is under a positive obligation to investigate fully the circumstances of the case, and if appropriate to make a grant of “Indefinite Leave to Remain”, bestowing on the successful applicant extensive welfare rights and benefits straight away, by operation of the 1951 UN Treaty.  To be successful, an asylum applicant must prove a “well-founded fear of persecution” by  home-state authorities, which would occur if sent back “home”.  The Judges over the years have insisted that “persecution” means some form of serious malevolence, targeted at the applicant personally or at category of people to which s/he belongs.  It is much more than social unpopularity or occasional verbal abuse.  It is not an easy test to satisfy before a civil servant or a judge.  But a successful asylum claim brings considerable certainty of outcome, because the 1951 Convention spells out in detail the rights of the applicant against the host state, if the claim is successful.

• These asylum proceedings are relatively well organised in the UK, but they cover only a small proportion of the applicants coming before the Home Office .  I do not suggest that legislation should interfere with current judge-made asylum law, which is developing satisfactorily.  Their principal failing (in England and Wales) is the unfair denial of Legal Aid for appeal tribunal proceedings.

(5)        Human Rights Claims  These are different from asylum claims (although a single case may raise both types of claim).  And they usually arise, not on arrival in the UK but on a deportation or removal order to send a migrant home – whatever the circumstances of his UK arrival or stay.  An example of this was the refusal of the UK and Strasbourg courts to permit the return to Jordan of Muslim preacher Abu Qatada in the 2011/13 period, who was threatened with judicial proceedings in Jordan which could have included evidence obtained by torture – which would have breached his human rights.  The preacher had lived legally in the UK for several years, and married here: he often preached inflammatory and provocative sermons, but had never been prosecuted.  Jordan then sought to extradite him for trial in Jordan, and he claimed that his Human Rights would be infringed if he were returned to Jordan.  That claim was upheld by the UK Courts on several occasions – until the State of Jordan finally gave acceptable assurances that he would be accorded a fair trial.  Other categories of Human Rights claims preventing a just deportation or removal from the UK [e.g breach of family rights (ECHR Art 8)] should be accommodated within a new UK Migration Management Act.  And the Act should spell out the legal consequences for the individual applicant of a successful Human Rights claim: I would argue that the applicant and his family should be entitled to the option of a five-year period of certain residence in the UK, to enable her/him to get on with life (and the family’s life) in the UK – but that would be a matter for debate.

• This would be a wholly new legislative initiative for the UK, and would be breaking new constitutional ground, moving into a sector hitherto retained within the scope of the Royal Prerogative.

(6)        Refoulement    This is part of the early 20^th-century body of refugee law, similar in character to a “Human Rights claim” above.  It became recognized, even before WWI, that if refugees were fleeing war or civil war or systematic oppression it would be wrong to send them back to the conditions that they were fleeing from.  Refoulement is a French diplomatic term, because French was still at that time a key language in diplomatic circles: it became illegal to refouler such refugees and the League of Nations developed this doctrine in the inter-war years.  But as a legal principle, it has a key defect: it identifies what must not be done, but says nothing positive about the refugee’s situation: a host country remains free to decide how to treat such refugees within their borders, what rights and benefits to accord to them.  That haphazard response is evident in the current treatment of the Syrian refugees in Europe, none of whom are “asylum-seekers”, but all of whom rely on the illegality of refoulement.

• The development of the doctrine of refoulement should form part of a new UK Managed Migration Act.

(7)        Motive of Self-Improvement   My own experience as an immigration lawyer confirms that the “desire for a better life” is a strong driving-force among young migrants, fuelled by TV, international news coverage, and conditions of real poverty and lack of opportunity “back home”.  Any new UK Managed Migration Act should provide for this form of “elective migration”, which is driven by positive aspiration, not by persecution or by war.

• This would be an entirely new “path-of-entry” to the UK, which has no present correlate.  I recognize that it would be for the UK Government to determine the size and other characteristics of “annual quotas”; also that there could be “waiting lists” carrying over from year to year; I think this should be considered a form of managed migration, and applications should be processed by UK Embassy staff, as with visas – this is where a new “points-system” would be introduced.
• We should develop the option of “citizen sponsorship”, and we should examine the experience of Canada, which has operated such arrangements: refugee and community organisations could be offered the option of guaranteeing to meet the marginal “state costs” (health insurance, costs of schooling) of an elective immigrant for a period of (say) three years, while the immigrant sought work.
• This would be a wholly-new departure for a European state.  But in my view, in a system in which each state unambiguously retained the right to manage immigration, economic success would accrue to those states which had the courage to plan for population growth and to welcome newcomers.  A modern developed state ought to be able to accommodate, each year, an increase of one-half of 1% in its population by immigration, and should plan accordingly. That is my personal judgment, and I recognize that the precise level of any such percentage would be fiercely debated.   Also, I think that English language training should be made universally available, at low charges, and local adjustment grants should be made to local authorities and agencies in areas of migrant settlement.

(8)        Climate change refugees   Finally, global migratory flows will in future be increased by climate-change.  We must all prepare for the inevitable displacement of population which climate-change will generate.  This challenge currently forms no part of our thinking about immigration, but the whole subject (and the need for a global system of reception quotas, with funds being made available to assist the poorer “reception states”) should be on the political agenda for a UK Managed Migration Act.

• I do not claim to have any answers on this front.  As with statelessness (Point 1 above) I suspect it will be necessary to proceed by way of United Nations initiative, and that will not be easy.  But the thinking should be starting now.

I believe that a management system along these lines would in principle apply to the citizens of other European member-states of the CES exactly as they applied to non-European citizens, although there would clearly be room for negotiation, and for some differentiation, on this point.

If any lawyer reading this would be prepared to work with me on this project, will you let me know?   Somebody has got to make a start….

Roger Warren Evans

Barrister-at-Law [Retired]

23 St Peter’s Road  Newton  Swansea SA3 4SB    Tel: 01792-366134   roger@warrenevans.net

 

 

 

Conference of European States (Chapter 3)

I write on the third “working morning” since last Friday.  It is now Tuesday 28 June 2016.  The objective of this Blog and the next is to put forward a compromise negotiating package for the BREXIT Art.50 negotiations.  If you search this Blog, you will find my principal proposal, published a few days ago, on Saturday 25 June 2016.

Just by way of reminder, and refresher, let me spell out my objectives –

(a)        To give effect to the substance of the Brexit “case” in the democratic referendum: I accept that the Referendum vote rejected much of the legal paraphernalia of the “European Union”, while expressing a continuing interest in maintaining good relations with the other 27 member-states – “we are against the EU, but we are not against Europe”;

(b)        To retain the distinctive character of the European alliances and perceptions, currently expressed within the Lisbon Treaty, and to replace the EU legal structure, for all future purposes, with a looser “associative” system;

(c)         To abandon the “free movement of labour” – which I contend was always an intellectual mistake, from the outset, and is politically unrealistic.  We should allow each member-state to make its own way in the global migratory whirlwind which is blowing all around us, and to “control” its own state borders, if appropriate by joining in sub-groups with other member-states, by contract;

(d)        To remove from the present Constitution of the EU, or re-design the supra-national elements (Parliament, Court, legislative functions, independent Civil Service) which have become increasingly objectionable to many sectors of European political and popular opinion, thus taking those cards out of right-wing political hands, and establishing a more flexible framework for future initiatives;

(e)        To give the new Europe a less provocative name – I suggest “Conference of European States”.

I now propose to address the implications of Objective C – the removal of the “free movement of labour” and the restoration of conventional border controls.  That will follow, in Chapter 4…

Roger Warren Evans

Barrister-at-Law [Retired]   Swansea              23 St Peter’s Road  Newton  Swansea SA3 4SB    Tel: 01792-366134   roger@warrenevans.net

Conference of European States: The Next Steps

Article 50 of the Lisbon Treaty

It is now Monday morning 27 June 2016, and the CES has been “doing the rounds”, with this WordPress Blog, over the weekend.  But the major media this morning are all demanding –

“How do we now prepare for the Brexit negotiations?”

I want to give my personal answer to that question.  I will address two questions – the first in this Blog (Article 50), and the second (What we should do about Migration, if European states regain control of their own borders) in subsequent Blogs, still to come.

First: we should study carefully the precise wording of “Article 50”.

Article 50(1) reads –

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional arrangements.”  That’s all.  There is nothing in UK’s unwritten Constitution, to guide events.

• It is however quite clear that, as of this morning (i.e. Monday 27 June), the UK as a State has not yet “decided” to withdraw from the EU.  Parliament approved the conduct of an advisory referendum, and that referendum has been concluded but (so far) that is all that has happened.  It will be for the Government (“in accordance with the UK’s constitutional arrangements”) to take the matter further.  The term “A Member State” means the legal entity, with its “state” constitution and distinctive procedures, which are specifically referred to in Article 50(1).  This is wholly consistent with EU practice – as confirmed by the later provisions of Article 50.  Now read on…

Article 50(2) reads –

“A Member State which decides to withdraw shall notify the European Council of its intention.  In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of its future relationship with the Union.  That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union.  It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”.

This is a more intimidating paragraph…  But let’s pick it apart…

First:   Even when a Member State decides to act, it is envisaged merely as giving notice “of its intention”.  All existing legal provisions of the Lisbon Treaty would remain in force, on both sides: the status of the Member State’s nationals living (whether working or not) in the EU would remain unaltered – nothing would change – what had already been done, would remain legally done – throughout this period.

Second:  The paragraph envisages that negotiations would follow – “in the light of the guidelines provided by the European Council”.  Now: I suspect that no guidelines have ever been provided by the European Council – although they may now being hurriedly drafted, in Brussels.  If they had been drafted already, the UK – as a full and senior Member of the European Council, would have known about it…  I think the EU institutions are probably as flummoxed as ours are, without guidance…

Third:  The withdrawal Agreement is to be negotiated “in accordance with Article 218(3) of the Treaty on the Functioning of European Union.”  It is not just Article 50 which is involved!   Article 218(3) is harmless: it sets out how constitutional negotiations are to be shared between the Council (Ministers), the Commission (civil servants) and the European Parliament (MEPs), and is too long to reproduce here.  But it contains no unusual provisions, and is essentially a long schedule of who does what, and when…

Fourth:  The Lisbon Treaty has built in a further delaying step, namely that when it comes to final approval of a negotiated withdrawal deal, the EU Parliament must give its prior consent – the Council can sign the deal only “after obtaining the consent of the European Parliament.”   Admittedly, if the proposal were to abolish the European Parliament (as I argue, with the formation of a new Conference of European States/CES) it would be difficult, if not impossible, to secure that consent – that risk would have to be considered by the negotiators.

Article 50(3) reads –  

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State  concerned, unanimously decides to extend this period”.

• NB   I say that this Article is not the “two-year time-limit” of the popular public debate.   It recognizes that, during the negotiations, all the Directives and EU, together with all the EU’s financial provisions, will remain in force – but that there must be some end to that.  This paragraph says that the EU framework will simply cease to apply to the UK at the two-year point, from the date of the UK’s Notice of Withdrawal – and if those negotiations were going in a consensual constructive direction (which I think they would be) then the EU would have more to lose than the UK by allowing the time-limit to be triggered – so it is likely that the time-limit would be extended!   If there were no extension, that would be the true moment of BREXIT – the UK would be free to tear up the Lisbon Treaty, and re-take control of its own affairs.  But that would be a long way down the line…

Article 50(4) reads –

“For the purposes of Paras 2 & 3, the member of the European Council, or of the Council representing the withdrawing Member State, shall not participate in the discussions of the European Council or Council or in discussions concerning it.  A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union (the Lisbon Treaty).

NB That paragraph of Article 238 reads –

• “(b) Where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.”

This means that, in reacting to the UK proposed withdrawal, the Council could only act by overcoming the highest of the qualified majority hurdles, namely – approval by 72% of the remaining 27 Member States, whose vote covers at least 65% of the population of the EU.  This Article is deliberately weighted in favour of the big states: each member-state is permitted to “vote its entire population”, in an effort to reach the required 65% popular majority.  Without the support of the “big” members (and remember, the UK would be debarred from voting) that obstacle would be virtually impossible to overcome.  And the member-state with the largest population is Germany. This is the paragraph that opens up a huge field for future negotiation.  And Angela Merkel is trying to delay the UK “withdrawal notice”, so that Germany can prepare properly for those negotiations.  That is a significant straw in the wind…

Article 50(5) reads –

“If a State which has withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 49”

End of Article

Article 49 merely states the standard procedure for access, and Article 50(5) merely cross-refers to it.  It states that a re-application would be treated as an entirely new application, made in the then prevailing circumstances.  All the circumstances would be taken into account at that time, as for any new application.  This has, in my view, been correctly interpreted in the popular debate: a repentant UK could not expect simply to “resume its former position”.

The obvious conclusion is that, over the next two years, the UK will be pinned into observance of its full obligations under the Lisbon Treaty, and freedom of movement of labour will continue to apply.  The right constructive course is for the UK to move quickly, to develop the outline of a more consensual European “association” capable of achieving the same international policy objectives as the EU, without all the paraphernalia of a supra-national “shadow-state”.

Let’s get on with the job.

Roger Warren Evans    Barrister-at-Law [Retd]

Swansea    roger@warrenevans.net  Tel:  0044-1792-366134  23 St Peters Road, Newton, Swansea SA3 4SB

 

Let’s build an alternative Europe: The Conference of European States (Chapter 1)

It is Saturday morning, 25 June 2016.  We all know that BREXIT has taken us into uncharted political territory.  Even “Article 50” is a tortuous clause: it does not signal a clear way procedural path ahead.  We are all faced with unprecedented legal problems: we should feel free to invent new solutions…  My suggestion is that we should draft, and propose for adoption by the other 27 EU member-states a new EU Constitution – with no supra-national elements.

If the new legal entity were created, most of the existing regulatory provisions of the EU could be transferred to it, sustaining the key achievements of the EU to date, while changing its future processes.

This new entity should be given a new name, dispensing with supra-national jargon – I suggest  “Conference of European States”.  It would be a new association of member-states, formed by contract (i.e. a new Treaty, by consent replacing all existing EU Treaties).  The new CES would simply be an association of sovereign states, agreeing to cooperate with their neighbours within its framework, and acknowledging the acceptability of further agreements, either of all its members or of bilateral or multilateral arrangements between members (e.g. the current UK/France border control agreements, or the special terms accorded to Irish Citizens by the UK).  The CES would have an administrative secretariat, but no “law-making” powers: it would be constrained to proceed only by contract (i.e. treaty-making processes).  The CES would have no professional “senior civil service” of its own: its senior administrators would all be seconded to the CES, and continue to be paid by, the member-states themselves: their duties and loyalties to the CES would be secured by internal management processes.

The CES would have no elected Parliament – all of its enforceable norms would be underpinned by contract, not by statutory fiat.  It would have a Council, political delegates appointed by the member-states, to oversee its day-to-day business.  The CES would have no “Court”, although the CES treaty commitments would be justiciable in the Courts of each member-state, as at present.  Disputes between CES members would be resolved by political negotiation, not by judicial judgment.   The CES would have none of the trappings of “statehood” – no flag, no anthem, no President.  There would be a triumvirate of three CES “Speakers”, senior politicians to speak on behalf of the CES when necessary or appropriate, but these would rotate periodically, nominated by the member-states.

I suggest that the primary funding mechanism of the CES should remain (as at present) the diversion of a “share” of the VAT revenues of each member-state – which is a fair and sensible procedure.   As for currency arrangements, I recognize the importance of the Euro and that the new CES would have to retain some “currency management” functions and responsibilities.   But these currency support arrangements should be hammered out by agreement between member-states.   Some members (e.g. UK, Germany, possibly France) might prefer to go-it-alone, sustaining the £, and re-introducing the Franc and the Deutschmark: others might prefer to create and support new currencies (e.g. Mediterranean or Nordic or Slavic currencies) with varying local support arrangements – there is no reason why such variety should not exist within the CES.  The development of a single currency was never a prerequisite of European unity – it was merely a talismanic symbol of unity, an aspirational gesture, seeking to give the impression of “national” solidarity, without the fact.  Within the CES framework, of course, the former members of the present “Eurozone” would remain free to enter into a specific new agreement to manage the Euro as an independent currency.

Finally, the new Treaty would not include any attempt to secure agreement of the separate elements of (a) the free movement of labour or (b) the “Schengen” abolition of border controls.  These (like the search for a single currency) have bedevilled the development of “Europe” for many years.  They are very different in their origins and political significance.

(a)  Free movement of labour:  this was a piece of fuzzy thinking from the beginning.  It was a straight “read-across” from capitalist economic theory – “What is a “free market?  It requires the free availability and movement of all the factors of the economic equation – capital, goods/services, and labour”.  But that equation never did make political sense:  human beings are not to be commodified, like capital or goods and services – they are themselves the prime movers in the economic process, not commodities to be manipulated within it.   The citizens of any state should be free to decide on those to be permitted access to their sovereign territory – that is axiomatic to the contemporary concept of statehood, and the European treaties have not recognized that.  The CES Treaty should simply omit the “free movement of labour” – indeed, the new Treaty should not attempt to incorporate any specific economic theory.

(b) Abolition of Border controls: “Schengen”   This measure emerged much later, like the single currency, as a bit of talismanic institution-building “before the fact”.  To the scheming logicians of Brussels, Schengen became symbolic, a demonstration that the EU displayed this feature of single statehood – no “internal” borders – even though it was not yet a State itself.  But that arid logic failed to recognize the reality of “state adherence” among the peoples of Europe: at personal, grassroots level, territorial affinities remain strong, and Schengen offends that proprietary sense of territory.  These customary affinities can in due course be overcome (witness the sloppy border controls between the UK and Ireland) but that is a very gradual process.

That is the first stage of my post-Brexit strategy:  we should seek to achieve agreement on the outlines of a new Conference of European States.   This would acknowledge the democratic legitimacy of the Referendum result by seeking (within the Article 50 process) to replace all the objectionable features of the present EU, and replacing the EU with the CES.   We should then negotiate the transfer all relevant regulatory controls of the EU to the CES, with the necessary drafting changes.  We should then make it clear that, wherever consistent with CES principles, member-states were free to negotiate sub-treaties among themselves (on currencies to be adopted, or internal border controls).

I believe that the CES formula would prove attractive to certain other current EU members, and that it would be possible to establish a new lower-key, less autocratic and less bureaucratic, alternative to the present institutions.  We should first seek agreement among ourselves and sound out possible CES-supporters among other EU member-states, and then make an “Article 50” application.

Roger Warren Evans

Swansea  Saturday 25 June 2016

roger@warrenevans.net     Tel  0044-1792-366134  –  23 St Peters Road  Newton  Swansea SA3 4SB