Guest Talk – Dr Lorenzo Pasculli: The Impact of Brexit on Integrity and Corruption: Local and Global Challenges

Posted on

The talk was organised by the Commercial Law Unit and the International Law and Human Rights Unit on behalf of the Centre for Applied Legal Research.

On 14 February 2018 Dr Lorenzo Pasculli, Senior Lecturer in Law at Kingston University London challenged the audience to look at Brexit through the prism of corruption. No doubt this was an insightful and out of the ordinary guest talk for those who suffer from Brexit fatigue.

Dr Pasculli started by explaining that since Brexit or anything similar has never happened before it is difficult to find a theoretical framework to reveal what the consequences of Brexit will be on corruption. That being said, Dr Pasculli stressed that in his opinion Brexit has and will have an impact on integrity at a variety of levels as well as anti-corruption laws and policies.

In relation to integrity, the impact of Brexit can be felt in three areas: political, financial and commercial as well as systemic social. Dr Pasculli explained that the impact of Brexit on political integrity can be analysed at both macro- (ie public bodies, corporations and the media) and micro-level (ie individuals working in the public service) on the one hand and from an internal (ie British politics) and external (eg foreign affairs as well as other States) perspective. This risk factors relating to political integrity are chiefly due to the multiple and complex interests which create division as well as confusion and so mistrust that is amplified by what Dr Pasculli calls, ‘the wrong choice of decision-making device’ which was the referendum. At the internal micro-level there has always been a solid tradition of political integrity even when there were conflicts between personal views and the views of the party. The risk here is that if individuals externalise their dissent they might be reprimanded or marginalised for doing this (as it happened in some recent case). This might lead to the repression of pluralism and dissent. At the internal macro-level, the UK which is often viewed as the beacon of the rule of law is performing very poorly as politicians with undermined integrity did not explain the complexity of the issues and certain lobbying and media stained the Leave campaign of misinformation. Dr Pasculli pointed out that the lack of regulation of the British press exacerbated the influence of lobbies on certain press. The dearth of effective sanctions facilitates partisan press and political misinformation. Further the lack of mechanisms for politicians to step back, apologise for and correct the effect of misinformation on the general public (eg £350 million for the NHS campaign) undermines political integrity. Overall this atmosphere has led to (1) a phenomenon of deresponsabilisation; (2) reliance on emotions rather than reason and information when law and politics should be based on rationality, reasonableness and evidence; (3) general deterioration of political integrity and standing. The consequences of Brexit on external politics (outside the UK) should not be underestimated too. Discussions were had on possible emulations in the form of Grexit and Exitaly but they did not materialise. Most importantly Brexit has strengthened the global trends of populism and nationalism that clearly undermine political integrity as voters are given information that is not built and/or supported by evidence. Brexit, in other words, nurture the global trend of irrationality. After Dr Pasculli argued that this erosion of political integrity leads to ‘legalised forms of corruption’ (eg press being lobbied and lack of regulation of the press) he called for a widening of the definition of corruption in line with the anti-corruption convention. He highlighted the revolving door appointments as an example of lawful practice and stressed that research shows a disconnection between what people believe is unlawful and the actual regulation of particular activities. Dr Pasculli explained we should seize Brexit as an opportunity to raise awareness about these problems as well as ensure a better responsabilisation of certain politicians. Both internal and external pressure can be used to persuade the UK to adopt necessary regulatory measures.

Dr Pasculli then moved on to examine the impact of Brexit on financial and commercial corruption. Dr Pasculli started by explaining that the UK government has clearly explained that the UK will leave the single market even though the EU market is crucial. The conditions imposed by the European Union to the UK in relation to market access might be viewed by the general public as unreasonable and unfair. Such a perception could lead to a violation of legal rules, for there is a tendency to the rationalisation of corrupt practices when the law is seen as useless and/or unfair. This inevitably creates a subculture that encourages corruption more generally. Furthermore, Dr Pasculli observed that as the UK is looking to negotiate trade agreements with non-EU States it must be wary of such business opportunities. First a number of such countries do not comply with anti-money laundering and anti-corruption regulations. Second, companies might have to use corruption in order to pursue their business activities in corrupt-ridden countries. Looking at the countries mentioned by the UK government as potential business partners it is clear that the UK is looking at doing business in places that are high on the corruption index of Transparency International. In other words, British companies are going to move the trade to an environment which is more corrupt. As Dr Pasculli stressed, there is a need to raise awareness about this potential corruption threat. Nonetheless it might be possible to view these business opportunities in a positive light and argue that British companies could become exporters of good practices, strengthening the rule of law and global governance in these countries and more particularly in the Commonwealth.

In relation to systemic social integrity Dr Pasculli noted that the UK government is supporting high-skilled migration only. This, he believed, is extremely short-sighted. Research shows that corruption causes emigration, particularly of high-skilled migrants looking for opportunities in other countries as they are unable to move on in their home country. This however does not necessarily mean that high skilled migrants are immune to corruption. On the contrary studies demonstrate that immigration from corrupt countries boosts corruption in destination countries. As a result, Dr Pasculli suggested that to avoid the spread of corruption in the UK thorough background checks at the port of entry need to be carried out.

Is the UK continuing to be a global example in relation to anti-corruption practices? Dr Pasculli began by asserting that the UK has often been used as a model for anti-money laundering and anti-corruption measures and policies. The possibility of deregulation once outside the European Union might be viewed as a threat to the excellent contemporary regulation. Whilst some scholars argue that Brexit is a distraction from the anti-corruption agenda, Dr Pasculli contended that this is not necessarily the case. In fact in the past year a variety of institutions (eg the International Anti-Corruption Coordination Centre, the Office for Professional Body Anti-Money Laundering Supervision) have been set up and strategies (eg anti-corruption strategy) and laws (Criminal Finances Act 2017, implementation of the fourth money-laundering directive) drafted and adopted.

Brexit will also have an impact on UK financial sanctions which could potentially lead to an increase in corruption and money-laundering practices. Dr Pasculli first observed that financial sanctions are imposed on individuals in relation to their access to financial assets and services and are imposed with a view to pursue specific foreign and national security policies. Then Dr Pasculli noted that at the moment such sanctions can be imposed by the United Nations Security Council, the European Union (often in implementation of UN Security Council resolutions) and the UK Office of Financial Sanctions. After Brexit there will be no need for the UK to comply with the EU sanctions regime anymore. Dr Pasculli underlined that the new Sanctions and Anti-Money Laundering Bill 2017-2019 endows the executive with large powers for a broad range of purposes (eg fighting measures that challenge the rule of law). Further, it is flanked by weak individual safeguards such as ex post judicial review and no jurisdiction of the Court of Justice of the European Union (which had in the Kadi case protected individuals’ human rights against the application of UN Security Council resolutions). Post-Brexit the UK will not be able to sit in EU meetings that relate to sanctions and as its strong voice on sanctions usually gathered support from other Member States it is argued that that without the UK taking part in such discussions divisions amongst EU member States might show more prominently. That being said if the UK imposes sanctions that are not aligned to other States it will feel the pressure of other States as well as companies that are trading in such States. This in turn might increase the potential for corruption.

Last but not least Dr Pasculli stressed that as the UK will be drafting a new raft of laws it must be careful that such laws are not providing opportunities for corruption and crime. Criminogenic lawmaking is indeed a potential risk post-Brexit with new schemes and laws being designed and individuals as well as companies finding ways to abuse or misuse such schemes (eg welfare benefit, taxes/fees/obligations, access to goods and services). Such potential for corruption is heightened if broad regulatory powers are given to authorities.

Looking forward Dr Pasculli shared with the audience his recommendations: (1) there must be some form of responsabilisation of politicians and companies, (2) education and ethicisation are key to maintaining integrity in public affairs, (3) ‘corruption proofing’ of legislation must become an established practice, (4) external controls must be increased.

 

UWE Staff Present Paper on ‘Brexit and EU Citizenship’ at Workshop at University of Bristol

Posted on

In the past few years the concept of citizenship has been a growing subject of studies in law and politics. The distinction between nationality and citizenship, the rights and duties of nationals and citizens, EU citizenship, etc have attracted considerable interest, the best proof being that two weeks ago the House of Lords Select Committee on Citizenship and Civic Engagement published a call for evidence. As part of the research undertaken by Dr Devyani Prabhat at the University of Bristol, Christian Dadomo and Dr Noëlle Quénivet were invited to present a paper on Brexit and EU citizenship at a Workshop on Citizenship and Law on 14 July 2017.

The workshop was divided into three sessions 1) theories of citizenship, processes and procedures, 2) case studies in citizenship law and practice and 3) citizenship and nationality legal practice. Christian Dadomo and Noëlle Quénivet shared their views on the impact of Brexit on the concept of EU citizenship in the first session at which Professor Jo Shaw and Professor Bernard Ryan also spoke.

Christian Dadomo and Noëlle Quénivet argued that increasingly, the concept of EU citizenship is being viewed as bridging the difference between nationality and citizenship. For those living outside their country of nationality, EU citizenship has become a fundamental status that guarantees not only their free movement and residence rights but above all their equal treatment with the nationals of their country of residence. In this context, status of and treatment as EU citizens are intrinsically intertwined.

Yet, with Brexit, it is submitted that this fundamental status is potentially jeopardised for all EU citizens in the UK and UK nationals in EU27. It was argued that Brexit might lead to a fragmented EU citizenship, creating a multiple categorisation of EU citizens, whereby status and treatment will no longer coincide. This assessment was based on the joint reading of the European Commission working paper ‘Essential Principles on Citizens’ Rights’ and the UK proposal ‘Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’.

Fundamentally, the EU legal order has created a space in which EU citizens can live and enjoy life in the same way as in their own national legal setting. With the withdrawal of the UK that space will be broken and this could indeed result in EU citizens living in the UK to have fragmented EU rights in the UK while keeping their full rights in the EU27. Conversely UK nationals in the EU27 would lose their EU citizen status though potentially retaining some or all of their rights derived from it (depending on the outcome of the negotiations). On the other hand, UK nationals who have never exercised their free movement rights would lose their EU citizenship and all the rights attached to it and would thus be viewed as third-country nationals in the EU. In other words, EU citizens in the UK, UK nationals in the EU27 as well as UK nationals (in the UK) will have their status as EU citizens altered.

Therefore there will definitely be a fragmentation of the status and/or treatment of EU citizenship for those categories of citizens and of ‘the[ir] genuine enjoyment of the substance of rights conferred by virtue of their status as citizens of the Union’ (Zambrano). Along this line, Christian Dadomo and Noëlle Quénivet maintained that the principles of reciprocity, symmetry and non-discrimination must be the basis for a settlement of the status of EU citizens in the UK and UK nationals in the EU27.

The first question is whether status, ie EU citizen status, matters more than treatment, ie EU citizen like-status. For example, does it matter more for UK nationals currently exercising their rights in the EU to lose their EU citizenship or not to be discriminated against after Brexit as non-EU citizens in the work place? For EU citizens in the UK the stake is between keeping EU citizen status and treatment with reduced rights in the UK (eg no right to vote in local and in some instances EP elections) and being granted a new ‘settled EU citizens’ status with further reduced treatment (eg reduced family reunion rights). In a nutshell, it was contended that the EU proposal was the most favourable offer because it preserves the appearance of status of EU citizens in the UK and UK nationals in the EU27. In contrast, the UK proposal could be interpreted as exacerbating the fragmentation of EU citizens’ status and treatment not only by reducing the current rights of the EU citizens in the UK but also by realigning the equal treatment onto the less favourable one of UK citizens. Furthermore the UK proposal hardly considers the rights of UK nationals in the EU27.

The second question was whether there are long-term and viable alternatives. One often mentioned is that of acquiring a second nationality with the aim of securing both EU citizenship and British nationality. The problem is that some States do not allow dual nationality and thus those British nationals who want to keep their EU citizenship cannot do so and those EU nationals who want to secure their rights in the UK whilst retaining their EU citizenship might not either. Another, probably more academic, proposal is that of delinking EU citizenship from the country of nationality and would include a European Associate Citizenship or even a new European Citizenry.

 

 

 

UWE Staff Attends SLS Workshop on Brexit and the Law School (South West)

Posted on

On 10 July 2017 Christian Dadomo and Dr Noëlle Quénivet attended a workshop organised by Dr Albert Sanchez Graells at the University of Bristol to discuss the impact of Brexit on Law Schools in the South West. The event which was supported by the Society for Legal Scholars (SLS) was attended by academics from the University of Bristol, the University of Exeter, South Bank University as well as UWE and by a student representative of the University of Bristol. Other similar regional workshops have been held around the country (for the reports, see here). Prior to that the Law School of the University of Bristol which acted as the lead for this meeting had carried out a survey amongst colleagues at the above mentioned institutions as well as at the University of Aberystwyth, Bournemouth, Cardiff, Gloucester, Plymouth, Swansea and the University of South Wales. Further information on this is available on the SLS website.

The discussions during the meeting focused on three areas: research, teaching and scholarly community with a view to identifying specific impacts derived from Brexit.

With regard to research it was noted that Brexit had created opportunities for researchers and increased opportunities for law academics to engage with the public. Brexit has also led a number of academics to get more involved with Parliament as a way to assist the State in the negotiations. In relation to funding it was observed that whilst some funding institutions have set up specific funds these are short-lived. Academics expressed their concern at the potential loss of EU funding opportunities and the concomitant competition to obtain funding at national level. Commercially-oriented research is seen as a potential opportunity all the more as academics appear to have a better and more holistic understanding of some Brexit issues. Whilst it was suggested that they should increase their engagement with eg law firms, it was noted that the current legal uncertainty hampers the provision of appropriate and relevant legal support at the moment.

Although a sudden surge in the number of students in optional EU law modules and/or programmes that focus on international and EU law was observed, it is likely to be short-lived and only contingent on the current political/legal context. In the long run students might shun away from such optional modules/programmes. In contrast, LLM programmes in EU law have suffered with a drop in the number of applications and might not be able to recover as there is competition from EU universities offering similar degrees taught in English language. Brexit has already had an impact on teaching, in particular in core modules such as Public Law and EU Law in which the current developments have been integrated. Arrangements are also in place to ensure updated delivery as the Article 50 negotiations unfold. Whether EU law will remain a core module on the LLB is unknown. Whilst Brexit will no doubt have an influence on the law curriculum the introduction of the SQE is more likely to have an even bigger impact. In general, there is consensus that EU law will remain an important subject and that it needs to be taught, either as a self-standing or in the context of a broader trade/international economic law module. Academics expressed their concerns that the ERASMUS programme might not be in existence anymore unless a deal is struck with the EU. The UK greatly benefits from this programme as it is the first country of destination and welcomes 130,000 students every year. Generally, Brexit has already had an effect on the number of EU students coming to the UK to study. The lack of certainty relating to the level of tuition fees, the opportunity to apply for funding on a par with UK nationals, the possibility that visas or other forms of proofs of right to remain be required are all playing against current recruitment strategies. Also, retaining international openness and outlook is key to retaining student numbers.

Overall, Brexit has negatively impacted the morale in law schools and the continued uncertainty creates difficult issues for both staff and students. It was mooted that legal academics from EU27 might wish to pursue their career outside the UK which would lead to a brain drain effect. Universities have shown high-level commitment to keeping internationalisation and diversity as core goals. Yet, the existing legal uncertainty seems to limit what they can practically do for staff and students at this stage.

 

Workshop on ‘Brexit: Between Reality and Fiction’, 29 March 2017

Posted on

Prior to the Distinguished Professorial Address by Professor Michael Dougan on 29 March 2017 the International Law and Human Rights Unit organised a workshop to discuss the legal implications of Brexit not on the United Kingdom as it is so often discussed in the news but on the European Union. The workshop focused on three themes: EU citizenship, the new EU external borders and mixed agreements and gathered academics from Birmingham City University, the University of Bristol, the University of Warwick, the University of the West of England and, of course, the University of Liverpool represented by Professor Dougan as guest discussant. Four academics agreed to present short papers with a view to kickstarting a debate on each topic.

Citizenship Templates Post-Brexit

Professor Dora (Theodora) Kostakopoulou (University of Warwick) shared her thoughts on possible citizenship templates post-Brexit. According to her, Brexit opened the way for the ‘restoration’ of British sovereignty and, if an EEA model (or an EEA-like model) were not chosen following the activation of Article 50 TEU, EU citizens settled in the UK would be requested to apply for either UK nationality or permanent leave to remain. The same applies to UK nationals residing in other Member States who will lose their EU citizenship status.

Prof Kostakopoulou pointed out that the conceptual differences between national and EU citizenships are immense. EU citizenship is essentially based on the concept of mobility and the principle of non-discrimination as well as a set of rights, all of them allowing EU citizens to be part of the fabric of the society of the host Member State. Unexpectedly, 3.9 million EU citizens have been transformed into ‘guests’ or ‘foreigners’ in communities they call ‘their own’. She examined three alternative solutions to respond to the current situation in which EU citizens find themselves:

– naturalisation: although naturalisation in the state of residence might be seen to furnish a secure and fully recognised status for EU citizens, Prof Kostakopoulou argued that it is not an adequate policy option. In particular, the problems highlighted with this solution were that it would require EU citizens to comply with certain requirements (not always the case); it would maintain a logic of nationalism and thereby deny pluri-identities all the more as in some instances dual nationality was not legally feasible;

– semi-automatic registration: here whilst certain requirements are to be fulfilled too, this solution seems more flexible. Yet again, the question raises as to why a state-centric logic is used to address the problem. In fact, it would go against the concept of EU citizenship as the rights of EU citizens are derived from EU law, not national law;

– special EU protective status: Prof Kostakopoulou suggested that it would be possible to grant EU citizens special rights under UK law particularly in relation to residence, work and family reunification. This would however only be applicable to those already living in the UK. Prof Kostakopoulou highlighted the fact that under former UK nationality laws it was possible for individuals to be granted a ‘protected persons’ status. Whilst this proposal is based on an old colonial model, it nevertheless shows that solutions can be invented and that it was in the past possible to complement one’s nationality with an additional status. Further, as EU citizenship is conceived as a fundamental status one would expect it to be retained after Brexit and not to disappear overnight. The EU principle of effectiveness could also be used to show the direct bond between the EU citizen and the EU, not warranting the intermediary of the State. Maybe the revival of an old UK Statute could be a solution to ascertain the legal situation of EU citizens in the UK and ensure that their rights are guaranteed. This would however not be applicable to British nationals who would lose their EU citizenship and concomitant rights. On the basis that it was now time to think creatively, Prof Kostakopoulou contended that her solution was historically grounded, normatively justified and feasible.

After Brexit: The Common Fisheries Policy

IMG_1352

The workshop then moved on to examine the Common Fisheries Policy post-Brexit. Dr Jill Wakefield (University of Warwick) took us back in time, a couple of years after the Second World War when the United Kingdom had no fishing policy and was getting into trouble with neighbouring States as illustrated by incidents that led to a judgment by the International Court of Justice and the ‘cod war’. As the UK entered into the then European Economic Community this lack of clear fishing policy and problems with the neighbours disappeared. Indeed, becoming a member of the EEC meant for the UK that the fishing policies were then regulated at EEC level. Dr Wakefield reminded the participants that because the UK had not previously solidly asserted its fishery policy and especially maritime boundaries for this very purpose and because the EEC fishery policy is based on historic entitlements, the UK lost out but it was the price to pay to enter the EEC.

Dr Wakefield then explained the key principles of the Common Fisheries Policy. The latest regulation’s objectives (Regulation 1380/2013) are that fishing and aquaculture activities be environmentally sustainable and managed in such a way that they achieve the objectives of economic, social and employment benefits as well as contribute to the availability of food supplies. Another key principle is that all activities must apply the precautionary approach that is also enshrined in international law.

After highlighting some of the negative aspects of the Common Fisheries Policy, which have led the EU to view marine fishing as a declining industry and to exclude it from the EU’s Blue Growth Agenda, Dr Wakefield explained that Brexit might be a catalyst for positive changes in the UK. First, the combination of the principle of free movement of services and the Common Fisheries Policy means that large fishing fleets that are active in UK waters predominantly belong to non-British companies. Brexit might force the UK to invest heavily in the fishery industry. Second, coastal communities do not necessarily benefit from the resources within their waters. Again, Brexit could give such communities an opportunity to claim back the benefits of the content of their waters since the UK would have exclusive rights over its territorial waters (12 nautical miles from the coastline).

However in legal terms, Dr Wakefield stressed that disentangling the UK from the Common Fisheries Policy would be a difficult task all the more as the UK would need to enter into the relevant treaties (to which the EU is a party), eg the UN Fish Stocks Agreement, in its own name. For example, fishing in high seas is regulated by the North East Atlantic Fisheries Commission. The UK would then need to apply as a new member and negotiate a share of the catches. However, if it would be considered a continuing member it would need to negotiate its share with the EU first. Other relevant agreements to which the UK is a party as a member of the EU are the Fishing Partnership Agreements between the EU and third countries. In exchange of EU financial and technical support States allow EU member States to catch their surplus of fish. Again, the UK’s position in relation to such a right to fish in other States’ waters would need to be renegotiated. Furthermore the UK will need to craft its own fishery policy. It has so far not given much thought to it despite the gigantic task it is going to be.

The idea of disentangling the UK from the treaties it has entered with third countries either as such or as a member of the European Union was the focus of the two next presentations.

The EU Mixed Agreements and External Relations: The Legal Questions Post-Brexit?

Dr Scarlett McArdle (Birmingham City University) considered the nature of mixed agreements and what arguments exist about their status post-Brexit. She began by highlighting the fact that the EU had become a significant global actor over the past two decades and that, as a result, it had considerably developed in its capacity to act at the international level. To illustrate her point, Dr McArdle stated that there are currently over 1100 registered agreements that the EU has concluded and that such agreements cover a substantial range of areas, such as the Common Commercial Policy (CCP), development, humanitarian aid and the Common Foreign and Security Policy. While the CCP is in the area of exclusive competence, where the EU is able to conclude what are termed ‘exclusive’ agreements, the vast majority of areas are not and fall into the difficult area of mixity. Dr McArdle pointed out that often it is difficult to pinpoint the line between EU and national competences and thus mixed agreements are a preferred solution. For example the pre-accession agreement with Turkey is a mixed agreement. Dr McArdle argued that there were chiefly two reasons for opting for mixed agreements: 1) the division of competences is unclear and 2) the EU lacks competences and thus Member States must become parties too. As summarised by Dr McArdle, this is done for legal and political reasons and sometimes purely for convenience.

Following Brexit, the question arises as to what impact the UK leaving will have upon all these agreements. While there has been some debate of the consequences for the UK’s international obligations, Dr McArdle argued that there needed to be further consideration of the consequences for the agreements and for the EU as a global actor. What Brexit meant for the applicability and application of these agreements as such and for other contracting parties was too often neglected in the current discourse. In relation to exclusive agreements, the prevailing view is that the EU will simply need to notify of its reduction in membership but that there will not be substantial impact upon the EU. When considering the mixed agreements that arise in other areas of competence, with the EU concluding a treaty alongside its member states, the situation, as Dr McArdle explained, was arguably more complex and the results arguably uncertain. One proposition that has been suggested was of a rollover of such agreements but this does not appear to be legally feasible. Another suggestion would be to examine each agreement one by one and disentangle EU and national, ie UK, competences with a view to determining the rights and obligations of each party to the agreement.

Preserving the UK’s Relationship with the African, Caribbean, and Pacific Countries: The Legal Implications of Brexit

One example of such agreements illustrating the complexity of disentangling the UK from its rights and obligations as a member State of the European Union is the Economic Partnership Agreement between the European Union and the African, Caribbean and Pacific (ACP) countries. Dr Clair Gammage (University of Bristol) highlighted the challenges facing the UK in preserving its ‘special’ relationship with the ACP countries on leaving the EU. The protracted negotiating process of the Economic Partnership Agreements (EPAs) between the EU and ACP States has illustrated the complex nature of North-South free trade agreements (FTAs), particularly where the parties want to secure liberalisation on new generation issues. Dr Gammage suggested that while the ACP markets remain of importance to the UK’s future growth and prosperity, there are fears that Brexit will radically transform the relationship. According to her, it is expected that the UK will no longer be a party to the EPAs once the withdrawal process is complete, and Brexit will signal a new era in trade and development cooperation between the UK and the ACP. This argument is situated within the broader complexities of Brexit at the constitutional and EU levels, and touches upon the uncertainty surrounding the UK’s status in the WTO once the Article 50 TFEU process begins.

Dr Gammage offered a construction of the UK’s Brexit strategy by critically analysing the UK’s priority areas in its FTA negotiations as an EU Member State. She drew upon insights from the trade negotiations of the EPAs with the ACP States with a view to assessing the priority industries, sectors, and interests for the UK as it leaves the EU. While there are strong material interests for retaining the relationship with the ACP States, she proposed that there are non-material interests of significant magnitude that will shape the UK’s external relations law once Article 50 TFEU is triggered and the Brexit process formally begins. She then argued that the UK’s external relations law is likely to mirror the approach of the EU and, with reference to the jurisprudence of the Court of Justice of the EU (CJEU) she showed that there has been a shift toward ‘development friendly’ trade in mixed agreements, with the common commercial policy set out in Article 207 TFEU read in light of development cooperation commitments under Article 209 TFEU. As a significant contributor to the European Development Fund (EDF), and with recent changes in the provision of overseas development assistance by the UK’s Department for International Development (DFID), the negotiation of North-South trade and development cooperation FTAs is likely to raise a myriad of legal and political issues. Dr Gammage asked for example to what extent will the most favoured nation (MFN) clause in the EPAs limit the negotiation space of ACP countries in concluding future trade agreements with the UK? Will the UK seek to negotiate new FTAs with the existing EPA groups, or forge its own relationships with individual ACP States? How, and to what extent, do the existing EPAs dictate the trade strategy of the UK vis-à-vis the ACP States? Will the ACP countries continue to be offered duty-free-quota-free entry into the UK market under its own Generalised Scheme of Preferences (GSP) or Everything But Arms (EBA) scheme?

With only one comprehensive EPA in force in the Caribbean region (CARIFORUM EPA) and one trade in goods EPA finalised in the southern African region (SADC EPA) the EPAs have failed to materialise in accordance with the EU’s original ambitions. As trade and development cooperation agreements, the EPAs symbolise the changing face of North-South FTAs. Dr Gammage stressed that the significance of the EPA experience cannot be understated. In her opinion, the UK must articulate its external relations law in a manner that reinforces its position in the multilateral trading system while preserving its historical ties with the ACP States. Brexit will also require the UK to be responsive to the needs of the ACP. For some ACP States, integration into new generation issues may be favourable and we can learn a great deal about the UK’s position in relation to investment, procurement, competition, and services, from its role in the negotiation of the Comprehensive Economic Trade Agreement (CETA) and the Trans-Atlantic Trade and Investment Partnership (TTIP). Article XXIV WTO-FTAs are likely to become the dominant vehicle through which the UK integrates into the global economy as a sovereign State for the first time in decades. Understanding the legal challenges facing the UK in preserving its ‘special’ relationship with the ACP will enable trade negotiators to secure the ‘best Brexit’.

The participants to the workshop agreed that the UK and the EU were in front of an immense task, that of disentangling more than 40 years of UK’s membership in the European Union. The legal ramifications of Brexit are often underestimated because of a lack of awareness of the complexity of the task. Whilst the consequences on the UK legal and constitutional order tend to be extensively covered in legal and political circles much less is said about the impact of Brexit on the European Union and third countries that have entered into agreements with the EU.

UWE Bristol Law School Staff Take Part in Workshop on ‘Bristol in Flux: Suspended Citizenship’ at University of Bristol on 3 April 2017

Posted on

By Christian Dadomo and Noëlle Quénivet

In a cosmopolitan city like Bristol Brexit is bound to have a considerable impact on the local population and businesses. To gauge the effects of the withdrawal of the United Kingdom from the European Union the Law School of the Bristol University organised on 3 April 2017 a Workshop entitled ‘Bristol in Flux: Suspended Citizenship’. It was not an easy task bearing in mind the high level of uncertainty linked to Brexit and consequently its effect on Bristol communities and UK residents of all nationalities in general. As the workshop gathered a wide range of academics (from the University of Bristol, the University of Exeter and the University of the West of England) as well as representatives of the local communities (eg Bristol Somali Forum, Bristol Refugee Rights), national movements (eg The3Million, One Day Without Us), trade unions (eg UCU, TUC, Workforce & OD North Bristol NHS Trust) and charities (eg Citizens Advice Bureau) it enabled knowledge exchange across sectoral, organisational and professional boundaries.

Christian Dadomo and Dr Noëlle Quénivet from the Bristol Law School, UWE took part in this engaging Workshop. From an academic perspective, the multidisciplinary and practice-based approach was enriching allowing legal scholars to answer questions on the nitty-gritty of the law whilst those working in these local organisations and charities were providing insightful examples of the early effects of Brexit on Bristol communities.

The workshop began with a scoping exercise aimed at identifying first, the Bristol communities as well as individuals more likely to be affected by Brexit and second, the main concerns formulated by these groups. From the initial discussions five themes emerged: (1) the identification of those who are left out of the discussions or maybe too relaxed about Brexit; (2) the possible use of equality and anti-discrimination laws to ensure fair treatment of EU citizens; (3) the precarious situation of temporary workers; (4) the situation of long-term residents in the UK; and (5) the process and practicalities linked to the granting of permanent residency in the UK. As all these issues are complex and interrelated it was decided that rather than each group of participants working on a specific issue and thus potentially failing to address concomitant problems each group would attempt to offer a comprehensive overview of the key issues.

It was in all groups difficult to pinpoint those who were ‘too relaxed’ about Brexit, mainly because of the diversity of such a group. There were for example EU citizens who were unaware of the fact that the legality of their residence and work rights in the UK were related to their EU citizenship. Other EU citizens seem to rely (too much) on the power of their employers, often big companies such as Airbus, to lobby the government for a special status. Yet, as pointed out in the group, classic political pressure via lobbying does not work on a government whose mantra is ‘Brexit is Brexit’ and does not appear to be willing to listen to other voices and make concessions. Further, some EU citizens appear to believe that they are entitled to some rights that they in fact do not have by virtue of EU citizenship and thus have a heightened expectations of the protection they are afforded. With Brexit they might be even more taken aback by the loss of their rights and what they consider to be their rights. In some groups the discussion focused on the EU citizens who had been left out, almost disfranchised from the Brexit debate. Among these were third country nationals with ties with current or prior EU citizens (eg a Pakistani with a French national), asylum-seekers whose situation was regulated by the Common European Asylum System, etc.

Once the UK withdraws from the European Union EU citizens will lose their right to reside and work in the UK which they had obtained via EU treaty law as well as EU directives. The rights of EU citizens, whose citizenship is based on the idea of equality of treatment, might be able to use domestic equality and anti-discrimination legislation such as the Equality Act 2010 to ensure that they are not treated unfairly. Whilst such legislation might be the product of a variety of EU directives it should not be forgotten that it is also transposing an obligation from human rights law (and notably the European Convention on Human Rights) to prohibit discrimination on a number of grounds. It was thus deemed to be firmly anchored on the domestic level though it was pointed out that the promised Great Repeal Act and the government’s loathing of the European Convention on Human Rights might give the UK an opportunity to repeal the Equality Act and related legislation. It would thus be judicious to campaign for keeping the Equality Act. Despite the existence of the Equality Act and the concomitant legal remedies often discrimination is difficult to prove in court proceedings. Everyday discrimination can take the form of failing to secure a rental contract, to access health care services, to receive welfare benefits or to open a bank account. It would be problematic for an individual to point out that for example his/her inability to open a bank account was due to the fact he/she was an EU citizen rather than his/her inability to show all required documents. To avoid such everyday discrimination from happening in the first place it was agreed that two courses of action needed to be taken. First, better training of those working in a frontline public or private service was required. Often, such individuals take a very strict approach to the law in order to be on the safe side. Indeed, they are themselves worried about the consequences of breaching the law (eg disciplinary and sometimes criminal proceedings against for instance landlords can be mounted against such individuals). In other instances they are simply unaware that EU citizens are entitled to such benefits. Second, the quality and accessibility of legal advice as well as support needs to be increased. This would give EU citizens the opportunity to understand the consequences of Brexit on their personal and professional lives and, after being offered a range of options, enable them to make an informed choice on how to react to Brexit. Sadly, funding for legal services, be they in the form of advice, support or aid, is being cut down for budgetary reasons. Another point raised was that there was a risk of distinguishing and thus discriminating against specific categories of EU citizens based on eg the length of residence, their status as economically/non-economically active status, etc. Moreover, Brexit is likely to create two categories of EU citizens: those who arrived prior to the withdrawal of the UK from the EU and those who arrived after. Relatedly, as it is expected that immigration rules for EU citizens be aligned to those that apply to non-EU citizens at the moment (eg Tier 1, Tier 2 and Tier 3 migrants), there would be discrimination between those in so-called high-powered jobs and others.

workshop 1.jpg

This prompted a debate on issues that affect long-term residents. The debate centred upon two themes: first, the conditions for obtaining a UK status and second, the processes and practicalities of transforming their EU into a UK status. At the moment permanent residency can be obtained by fulfilling a number of requirements. As such requirements tend to be easily met by those in employment for five years the question as to on whom the burden of proof laid or should be laid (ie the employer, the EU citizen or the government) was examined. It was suggested that maybe HMRC records could be accessed by the Home Office to establish that such economically active EU citizens fulfilled the requirements. Another proposal was that employers of EU citizens send, of course with the consent of the employee, employment records to the Home Office. That being said, these requirements are nearly impossible to meet for eg economically inactive EU citizens without private health insurance, individuals who had recent breaks in their careers, EU citizens married to or in an unmarried relationship with British nationals, pensioners, long-term disabled persons, individuals in care homes, etc. There is no doubt that the current conditions for obtaining permanent residency discriminate against those who are self-employed, students, individuals who have been volunteering, individuals who have been in and out of jobs, etc. More generally and covering all EU citizens, the question was raised as to whether the Brexit talks could lead to an agreement on an automatic transformation into permanent residency for any EU citizen in the UK for more than five years. Also the model of sanctuary cities as adopted in the US was suggested as a way to protect long-term residents. On a more prosaic side it was agreed that the application form for permanent residency needed to be simplified and more aligned to similar application forms in other EU States (eg Germany) and that a passport return office should be created in Bristol to facilitate the application process.

The situation of temporary workers was also the focus of some insightful discussions within the groups, mainly because at the moment their fate was very much viewed from an employer’s perspective. Seasonal workers (such as fruit pickers), care workers, contractors, etc are seen as a temporary though necessary workforce without which many sectors of the UK economy could not run effectively and at such a low cost. How they view their own circumstances is often obliterated from the debate on their status. In this light two points were highlighted. First, such individuals having skills and knowledge that can be used and deployed in other States might simply not be much affected by Brexit, for they would go and work elsewhere. Second, whilst the current government has stated that it would ensure continued protection of workers’ rights (see White Paper on Brexit, page 31) doubts were expressed about the fate of seasonal workers whose rights might be slashed after Brexit. Their current status is to say the least precarious and their working conditions poor. —-

Having outlined the most challenging issues of the withdrawal of the UK from the European Union for EU citizens the workshop then focused on how these challenges could be met and how it was possible to support EU citizens at this early stage of the negotiations. The aim of the session was to formulate policy recommendations and action points, with a particular view to shaping future action and potential co-produced research projects. Four groups were created to examine (1) the possibility to create an ‘Employment Charter for Bristol – A Brexit Initiative’, (2) ways to improve community engagement, (3) what could be done in the immediate future, and (4) how communication could be improved. All of them concluded with the formulation of practical initiatives aimed at raising greater awareness amongst Bristol communities about the consequences of Brexit.

Christian Dadomo and Noëlle Quénivet were in Group 4 which examined how it was possible to enhance communication not only between organisations working to support EU citizens in the UK but also between such organisations and EU citizens. Besides EU citizens, the target audience would encompass businesses, universities, local authorities, politicians as well as other key stakeholders. It was agreed that any communication should be based on two principles. First, communication needs to be synergetic in the sense that it required to be well coordinated and take into account positions and actions adopted by other organisations not only in the Bristol area but also nationwide. Second, the principle of transparency must undergird any action: information must be promptly exchanged; it must be easily accessible; exchanges of communication between the authorities and those representing EU citizens must be visible and transparent, etc. The proposed tools used to this effect were the organisation of workshops, the creation of leaflets, the better use of (social) media, etc. Also, with a view to reaching out to the local communities, talks in cafés, community centres, schools, churches, should be organised. What should be communicated to these groups and individuals was the focus of an intense debate in the workshop. Whilst all participants subscribed to the idea of sharing information, organising common activities, instituting a central mechanism to gather information (eg networks), providing information on the current (legal) situation, etc it was unclear what the substance of some of these activities would be. Indeed, in such uncertain times, could we give clear answers to questions raised by EU citizens? Would we be able to shape the public opinion with a view to ensuring that it will support the rights of EU citizens to stay and work in the UK post-Brexit? The group nonetheless came to the agreement that organising a citizen movement, a network ready to take action was likely to be the best course of action in the given circumstances. With the Brexit negotiations starting soon, such a movement could then be quickly deployed.

At the end of the workshop, all participants pledged to undertake at least one action to facilitate the translation of our discussions into tangible changes. Christian and Noëlle agreed to write a blog post on Long-Term Residence and Citizenship as well as to enquire about how awareness about the European Union and Brexit could be raised in schools, notably via the outreach programme of UWE BoxEd.

Christian Dadomo and Noëlle Quénivet have also been invited to participate in another workshop held by the University of Bristol on ‘Projecting Bristol and Britain to a Post-Brexit World’ on 27 April 2017.

The policy recommendations formulated in these workshops will be presented and further discussed at the conference ‘Bristol in Flux – A City Responds to Brexit’ that will take place on 23 May at the @Bristol Science Centre.

CALR Forum: Brexit, Article 50 TEU and the British Constitution

Posted on

Brexit: A word that one cannot escape reading newspapers, watching the TV or listening to the radio. It is literally everywhere. Yet, what it means in legal terms is often misunderstood and its repercussions on the legal, and notably constitutional, framework in the United Kingdom overseen. Therefore, on 22 February 2017 the Centre for Applied Legal Research organised its first Forum of the academic year 2016/2017 on the subject. Three staff members of the Bristol Law School, Christian Dadomo, Martina Gillen and Noëlle Quénivet, shared their views about Brexit, Article 50 TEU and the British Constitution, whilst offering an international, European and national legal perspective on the Brexit debate.

By way of introduction Noëlle Quénivet explained the legal bases of the European Union, ie treaties, stressing the concept of State sovereignty and the importance of understanding that both the ratification of and the withdrawal from a treaty are to be viewed as acts of sovereignty. She then explained that it was the Treaty of Lisbon that for the first time proscribed a withdrawal procedure in Article 50 of the Treaty on European Union. Noëlle Quénivet described the process from the notification of withdrawal to the ratification of the withdrawal agreement by the UK, highlighting the various stages at which the European institutions are and will be involved and underlining the difference between the legal requirements in national and European Union law. Reference was also made to the potential content of a withdrawal agreement (eg budgetary matters, institutional issues, the situation of non-UK EU citizens in the UK and of UK nationals in EU States, etc).

Following on the idea of sovereignty that has so much been reiterated in the campaign leading to the referendum, Christian Dadomo delved into the multitude of types of sovereignty: parliamentary sovereignty, popular sovereignty and external or otherwise known as State sovereignty. After stressing that parliamentary sovereignty should be better understood as the primacy of Parliament in respect of statutes he showed the interaction and tensions between parliamentary and popular sovereignty, especially in light of the Brexit referendum. Furthermore, the relationship between the devolved authorities and the central government will be affected, as some of them after voting to remain in the EU would like a space at the negotiations table but have been denied so legally (with the Miller judgment before the UK Supreme Court) and politically. Christian Dadomo concluded by stating that Brexit will undoubtedly shake the constitutional legal edifice of the UK.

Martina Gillen opined that Brexit will have serious repercussions on the UK Constitution and more specifically on the relationship between Westminster and the devolved regions. As she explained Northern Ireland is a case-example of how poorly thought the referendum was. Brexit will affect both the relationship between Northern Ireland and Westminster as well as between Northern Ireland and Eire and has already had the effect of reigniting nationalist Irish feelings, especially in regions that voted to remain in the EU. She then examined in details the McCord decision before the High Court of Justice in Northern Ireland, highlighting that the ruling was not a surprise as the claimants had not asked the right question (they asked whether Northern Ireland as a devolved authority could take part in the Brexit negotiations) and should have focused on the fact that persons born in Northern Ireland can take either British or Irish nationality and that Brexit would in fact deny equality of treatment for those who choose Irish nationality.

The CALR Forum was attended by over 20 students and staff members from the UWE Bristol Law School. After each presentation questions were taken from the floor and a lively and insightful debate often beyond the narrower scope of the speakers’ presentation ensued. There were thus discussions on the withdrawal from the European Economic Area Agreement, the impact of the Dublin regulation on EU border States, the nature (and fate) of EU law in English law, the potential continued jurisdiction of the Court of Justice of the European Union, etc.

The next CALR Forum which will be held on Wednesday 1 March, 14:00-16:00 in Room 2B065. Noëlle Quénivet will be presenting a paper on the prosecution of child soldiers for war crimes that has recently been accepted for publication in the European Journal of International Law. Dr Alison Bisset, Associate Professor at the School of Law of the University of Reading, will respond to the paper.

Is Brexit possible in fisheries?

Posted on

Dr Tom Appleby from the University of the West of England’s Environmental Law Unit is a leading expert in marine and fisheries law. Writing for the BlueMarineFoundation, following the Brexit vote, Dr Appleby outlines the complexities involved in renegotiating the UK’s fisheries quota.

5070

“Britain’s legal bilateral arrangements with its neighbours date back to themiddle ages. Yet many fishermen have broken with this international tradition and to leave the EU on the basis that it will gain greater fishing rights for British vessels. But while that is fine as a protest vote; it is a very different job for British and European civil servants to re-engineer 40 years of technical regulation.

“For leavers on paper it all looks fine; simply serve notice and regain control of UK waters which in some cases go out to 200 nautical miles. But fish do not respect national borders. As prominent leave campaigner and Fisheries Minister, George Eustice says, “If we re-establish national control for 200 nautical miles or the median line as provided for in international law then we would also be in the strongest possible position”, we would in theory be able to and argue for a better share of quota allocations in many fish stocks based on control of this area. But this approach ignores several hard realities. The UK already has a significant amount of international quota which permits its vessels to operate in other European waters and vice versa, these quota are already the subject of annual horse trading between member states so to some extent this quota already represents a national division of quota and would almost certainly be used as the basis for any redrawn arrangement. So while UK may gain exclusive control to UK waters we will lose access to others. Moreover fish do not recognise national boundaries and so international agreements are required under international law. When (and if) the new Prime Minister takes the bold step of commencing Article 50 negotiations Mr Eustice has already acknowledged that all he is hoping for is a ‘fairer share’ of the stock. In other words this is about renegotiating the EU Common Fisheries Policy (CFP), not getting rid of it: Brexit from the CFP is impossible as a new CFP will be required or at least a multinational agreement along similar lines.

“Moreover, the latest version of the CFP is widely regarded as a success, catches are rising and environmental safeguards seem to be working so it is only this ‘fairer share’ point that the Minister is concerned about. Exiting the EU and renegotiating the CFP through multilateral frameworks would cost many tens of millions and take many years. And it would not even be that simple because of the Scottish independence question which would surely follow it. Adding yet more to the cost and delay. During that period uncertainty would stalk the UK fleet and it would be a difficult time for fishing businesses (and any businesses for that matter) to raise investment.

“A recent report by UWE Bristol gave a total capital value of the UK fishery at £1.125 billion. The cost to fishing businesses (let alone the broader fishing sector) of several years of uncertainty would weigh heavily against any increase in the size of the fishery. Moreover renegotiating quota is not as simple as that as The National Federation of Fishermen’s Organisations indicate in their response to the Brexit crisis:

We can certainly seek to renegotiate quota shares as well as access arrangement but it is realistic to expect that there will be a price of some sort. Who will pay that price is a critical question.”

“If we gain £200 million of extra quota for the UK fishing industry some other UK industry is bound to suffer in the international negotiations. Sectors like banking and finance, the traditional bellwethers UK economy would have to give some ground in the diplomatic dance if we were to expand our fisheries. Moreover the economic chaos which the Brexit vote has wrought will inevitably lead to a smaller tax take and even less room for manoeuvre from Britain’salready overstretched diplomatic service.

“One further element of the Common Fisheries Policy will remain to be decided, the huge European Marine and Fisheries Fund distributes £243million to fishing interests in the UK. The Leave campaign finances have been vague at best and in some cases (like the £350million a week payment to the NHS battlebus claim) absurd. All sorts of promises have been made, but centre around the concept that money once ring fenced by Brussels will now be at the discretion of the British public. There is therefore no guarantee that the fund would continue beyond the current 2020 round of distribution, and fishermen may well lose that significant benefit.

“Whoever presses the Article 50 red button is going to have to manage the significant expectations of the fishing industry into the reality that after years of expensive and protracted legal wrangling we are likely to end up back in the same place. Brexit is impossible for fisheries.”