One of the things that was clear from the Millions in the Margins advice we commissioned in March last year is that during the Brexit negotiations, the EU has ignored its own treaties and the principles which should underpin its actions and negotiations.
This has resulted in UK citizens not being treated in an appropriate and proportionate fashion by the EU.
The EU has not protected some classes of EU citizen, and has discriminated against others, who have made life changing decisions based on their EU citizenship rights.
The serious possibility of a No-Deal exit, whether intended or accidental, from the EU only exacerbates the damage being done to the rights of EU citizens, and removes the partial protections contained in Theresa May’s ill-fated deal.
Despite the Alberto Costa amendment being passed by the Commons last week the EU has said that it will not agree to a standalone citizenship rights agreement. More evidence, if it were needed, that the EU is not standing up for its citizens.
The Millions in the Margins identifies a number of areas where the actions of the EU will be open to challenge, due to the way it has ignored EU and International law.
Similar logic and legal analysis has now been used by Kieron Beal QC and three other lawyers to produce an advice which Gina Miller is using to remind the EU and its member states that they have obligations to the EU, to all its member states, and by implication to the citizens and businesses of those member states, that it cannot simply ignore and/or walk away from.
This advice, and thus Gina Miller’s argument, apparently suggests that the EU27 could in fact unilaterally extend the Article 50 period and perhaps should do so.
Whether it is a sustainable legal or political argument to suggest that the EU could refuse to let a member state leave, the legitimacy of the EU27 unilaterally extending the Article 50 period is, at best, debatable.
The judgement of the CJEU in the Andy Wightman case would suggest that it is not possible. The UK has the sovereign right to give notice of leaving the EU, and the sovereign right to decide to revoke that notice, sovereign rights that cannot be overridden by the EU.
That is not to say that the EU couldn’t ask the UK or offer to extend the Article 50 period.
The EU must abide by the principles encapsulated in its treaties and the laws that flow from them.
The current difficulty is how to challenge the EU on whether it has conformed to EU and International law in its negotiations, both in the positions it has taken and their outcomes.
As we saw in the Harry Shindler case, EU citizens do not have any standing with the CJEU unless they have actually been deprived of rights or otherwise not treated in accordance with EU law. To put it bluntly, we have to wait until we have lost our rights before we can challenge the EU at the CJEU.
As things stand, the only body that can bring the EU to account is the EU Parliament, which could refer the matter to the CJEU and ask for a ruling on whether the process and conclusions are consistent with the treaties and laws of the EU.
Making a move to bring pressure to bear on MEPs, so that they will speak for us in the EU Parliament, is currently the only sure-fire way to ensure that EU citizens, a group which for the time being includes UK citizens, are treated properly wherever they are.
We must all have been, at best, notes in the margins of a great many papers produced since the referendum, notes made by politicians and negotiators who found it too complex, difficult and inexpedient to stand up for us and our rights. Or even to respect the law.
Many of us, who never dreamt that their situations would only figure there, are finding that’s exactly where they are, if indeed they are noted at all. Many more have still to find that things they’ve taken for granted for 45 years are about to be swept away. We must not allow ourselves to be swept away with them.
Whatever happens, 29th March 2019 will not be the end of the matter.
If we leave there will be legal challenges to be made to seek redress for EU citizenship rights that have been stripped away from EU citizens who have made life changing decisions based on those rights.
If there is an extension to the Article 50 period, be it short or long, to put it to a People’s Vote or not, we need to continue the work we have started and make people aware of the very real consequences of leaving the EU.
For The People’s Challenge this will involve building on the Millions in the Margins and the Legal Milestones advices we commissioned in order to provide more detail on the specific areas that those documents highlight.
To do this we will again need your support, help and backing both in the work and, as importantly, funding that work.
Even lawyers working at heavily discounted rates cost significant amounts of money, as every legal challenge there has been over the past 2 and a half years shows, and to make sure that we get the best value from the money that is spent on expert legal advice, we have to make sure that we prepare an accurate and coherent brief for the work we want them to do, backed up by the necessary supporting information.
In crowdsourced and funded work such as this every little helps, a fiver, a few quid can make a big difference as long as enough of us pitch in.
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 a contribution (please click on the image above) 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 best for our country: what is 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 support us 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.