With much fanfare, the latest version of the draft withdrawal treaty was announced at the beginning of this week.
There is not yet agreement on all parts of it, and “nothing is agreed until everything is agreed”, but it does seem to set out how the UK and the EU are going to go about dealing with EU citizenship rights.
In this the treaty is both a disappointment and a deception.
Why a disappointment? The starting point for the negotiations was to agree “reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens”, and it does nothing of the sort. Even for those groups of people who are covered by the draft treaty, the protections are limited and inadequate.
Why a deception? Because both the EU and the UK talk as if British nationals and EU27 nationals who have acted on those fundamental citizenship rights are being properly protected.
The EU and the UK have agreed that acting in “Good Faith” is important enough to warrant a clause in the draft agreement. But the deception extends to the “Good Faith” principle apparently not applying when dealing with all European Union citizens.
Not a single group of British nationals is being fully protected and there are, broadly speaking, only a few groups of British nationals who are only partially and very inadequately protected.
With this in mind, we have agreed with John Halford at Bindmans the next tranche of work for us to pursue. In short, the Draft Withdrawal Treaty needs urgent, intense scrutiny from legal experts who can identify its flaws and so arm the public and their elected representatives – in both the UK and EU Parliaments – to take action to prevent the stripping away of rights. With your support, we will commission that expert opinion and accessible guides for the public on how to deploy it effectively.
John has written a comprehensive introduction to that work. It is of necessity a “long read” and you can find it here. We have summarised it below.
It is a substantial piece of work, so we are launching a new Crowd Justice campaign, as we did for the challenge to the government on its proposal to use the Royal Prerogative to trigger Article 50 and for commissioning the “Three Knight’s Opinion”.
There will be continuity with that work as Gerry Facenna QC, who was part of the team involved in the challenge to the government and one of the 5 legal minds who produced the “Three Knight’s Opinion”, will be leading the work by the barristers on this latest work.
John, Gerry and colleagues at Monckton Chambers will be reviewing the draft withdrawal treaty and the extent to which the provisions in it are incomplete or in many cases completely absent for the various groupings of British nationals. They will identify where human rights may be breached because of these omissions.
They will also be looking at areas where the treatment of the different groups may be unlawfully discriminatory, such as the plans for marked differences in treatment between UK nationals and other EU nationals once the transition period ends.
The objective is to identify what those who are being marginalised, which just about includes all British nationals to a greater or lesser extent, can do to rectify the situation, whether politically or by recourse to the courts.
This work is important, not just to show how incomplete the draft withdrawal treaty is, but also how empty the words are.
Once again it will help cast light on the impact of Brexit on the rights of ALL EU citizens and what the loss of those rights will entail. Something that has been a guiding principle of what The People’s Challenge has done.
John makes a telling point in his introduction:
“the negotiators’ aim was not to preserve EU citizenship in a first or even a second class form; it was to protect those who have exercised core free movement rights or are about to. This, aim, coupled with the principle of ‘bright line rules’ so beloved of officials, has a number of striking effects. For those who have no interest in or wish to enjoy, the benefits of EU citizenship they will not matter. But a great many people will be marginalised and disenfranchised.”
Even those British nationals who will have some degree of protection should not be complacent, John points out that what the draft agreement proposes for them “is not as secure as it first appears; they can all too easily find themselves forced into the margins of those documents, where they will join the millions that are to have no rights at all ”.
The fragility of their status is increased because they will have to be able to evidence that they continue to exercise the limited rights they are being “granted”, as the automatic rights they have now will be removed.
Apart from the limited protections accorded to those who meet the residency qualifications in the draft agreement, there are huge groups of people who are simply ignored or form part of an apologetic footnote.
Taking just a couple of points from John’s introduction:
“those who have established businesses in other states (itself a core economic right) but are resident elsewhere have no obvious protection in future”, neither do “those wishing to exercise other economic rights, in particular secondary establishment and cross-border provision of services by those who are not frontier workers. The way these groups are dealt with in the note belittles their significance”.
The work that John, Gerry and the team are going to do will go beyond analysing the treaty and highlighting its deficiencies: they will also be looking at what the possible remedies might be.
For example, if the EU Parliament believes the Draft Agreement itself breaches EU fundamental rights, it has a duty to withhold approval – and if it is in doubt, it can refer the Agreement to the European Court of Justice for a conclusive legal view, even before the Agreement becomes a formal treaty.
As John said at the end of his introduction to the work we are commissioning, the UK and the EU “have almost pulled off the most ambitious branding exercise ever undertaken in Europe: presenting arrangements that will ultimately strip millions of their existing fundamental rights as generous rights-granting measures for the minority that will benefit in future.”
“Of course that minority comprises millions of people too, but that will be little consolation to those who fall just outside the protected groups because their “past life choices” are not quite the right ones or because they planned to exercise their EU citizenship rights, but have yet to do so.”
Parliamentarians, whether MPs, MEPs or members of the UK’s devolved assemblies, have a responsibility to represent ALL the people affected, not just a few of them. It is a responsibility they should embrace, and once properly informed, they should act on it.
The People’s Challenge will matchfund the initial target of £5,000 to ensure that work can start swiftly. We will need to crowdfund around £35,000 to complete the work.
We value your support.
If you share our concerns please make a donation to our Championing the Millions in the Margins CrowdJustice campaign.
Many people have contributed not once but multiple times to the various campaigns we have run and we know that there are practical limits on what people can do. Whether you can make another contribution or not please spread the word among your contacts and on the social media.
Many people have contributed not once but multiple times and we know that there are practical limits on what people can do. Whether you can make another contribution or not please spread the word among your contacts and on the social media.
Our aim is to help people see what’s going on, understand what they are, or aren’t, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
There is still a long way to go and there are no guarantees about what the outcome will be. The only thing that is certain is that if we stop trying we will lose.
To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.
Please share this article as widely as you can, thank you very much for your support.
Published by Grahame Pigney on behalf of The People’s Challenge Ltd.