Professor Laurent Pech’s Distinguished Professorial Address – UWE, 30 November 2017

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On 30 November 2017 the Bristol Law School welcomed Laurent Pech, Professor of European Law and holder of the Jean Monnet Chair of EU Public Law at Middlesex University London. The title of his Distinguished Professorial Address was ‘Rule of Law Backsliding in the European Union: Lessons from Hungary and Poland’, a topic on which Professor Pech has extensively written.

Professor Pech began his Address by explaining that it was a rather depressing topic to address and that he had unfortunately no good news to share. In his opinion the situation in Hungary and Poland represents a clear and present threat to the very functioning of the EU legal order even more than the withdrawal of the UK from the European Union. Using data from the NGO Freedom House Prof Pech pointed at the declining situation of the rule of law in Hungary and more recently Poland which had adopted a series of measures leading to an even faster process of rule of law backsliding in this country. Prof Pech took this opportunity to stress that rule of law problems were not only visible in Hungary and Poland but in a number of EU Member States. However given the systemic, repeated and deliberate nature of the attacks on the rule of law in these two countries the focus of his lecture was going to be on these two States.

As Prof Pech explained, the rule of law situation in a specific State is only scrutinised during the enlargement process but no general and permanent system was initially designed to look at backsliding whilst being a Member State of the European Union. That being said, he clarified that, unbeknownst to many, Romania and Bulgaria have been subject to a specific rule of law monitoring system following their accession. The fact that the rule of law situation is getting worse in Romania in spite of the monitoring system tends to show that the system is not as robust as it should be. Yet, as Prof Pech noted, the situation in Romania has not reached the levels seen in Hungary and Poland.

By ‘backsliding’ Prof Pech means that a State is on a downward spiral, from a healthy to an unhealthy system of the rule of law. Whilst this started in 2010 in Hungary, the ‘disease’, as Prof Pech called it, is spreading to other Eastern European States and it seems that it is not going to disappear in the nearest future. Continuing the medical analogy, Prof Pech expressed his concern that the European Union was struggling to find ‘a cure to the disease’ having previously struggled to correctly diagnose the disease beforehand.

The definition of rule of law backsliding proposed by Prof Pech is that it is ‘a process through which (1) elected public authorities deliberately implement governmental blueprints which (2) aim to systematically weaken, annihilate or capture internal checks on power with (3) the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party’ (see Pech and Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3). In other words, rule of law backsliding implies a deliberate governmental plan to systematically annihilate the rule of law and which tends to start with attacks on the independence of the judiciary. It is this specific intent to dismantle systematically all checks and balances with the view of establishing a de facto one-party state that distinguishes the situation in Poland and Hungary from that in other EU Member States such as Italy where structural rule of law deficiencies may be identified. Remarkably, the argument of the ‘will of the people’ is now more and more used by governments to justify new limits if not new attacks on the rule of law. In the long term, the goal is to reshape the rules so that even if elections are held they will lead to the current government to be reconducted in its mandate as usual checks and balances measures have disappeared and elections may be free but are no longer fair.

Prof Pech then explained that in the aforementioned journal article he and his colleague Prof Scheppele provide a matrix of ‘constitutional capture’ in seven steps to help understand what has happened in Hungary but also in a number of non EU countries. In short, it is a recipe to destroy the rule of law in a methodological manner. According to Prof Pech Poland has now reached stage 4 whilst Hungary is in stage 7.

Whilst it might be too late to rescue Hungary the question is whether the European Union will be able to prevent Poland from sliding further. Unfortunately ‘worst practices’ travel fast too and the domino effect might hit us earlier and quicker than anticipated. In 2010 Hungary showed the first signs of backsliding by requiring all judges above a certain age to retire. The European Commission replied by using its infringement powers but it was too late. Following a CJEU ruling requiring Hungary to offer adequate remedies, most ‘retired’ judges accepted financial compensation and were thus replaced by ideologically compatible judges. Hungary then played the EU to its own game and adopted a law strengthening the position of these judges, arguing that it was doing so to uphold the rule of law. So, as Prof Pech stated, although the Commission had won the ‘battle’ before the CJEU it had lost the rule of law ‘war’.

The Commission drew its own conclusions: it needed a new instrument to tackle the problem. In 2014 the Rule of Law Framework was adopted and in 2016 it was used in relation to the situation in Poland. The problem with the Rule of Law Framework according to Prof Pech is that it relies on a discursive approach. In his view, however, a dialogue with autocrats does not work; it tends in fact to be nothing more than a monologue. Moreover, to foster an environment conducive to a dialogue the Commission has until recently refrained from initiating multiple infringement procedures while also failing to react to the Polish government’s provocations and its complete disregard for its multiple rule of law recommendations.

Whilst the Commission can be seen to be at least trying to address the issue, the Council of Ministers has so far been reluctant to publicly denounce the situation in Hungary and Poland. To some extent its actions (or lack thereof) can be regarded has having undermined the work of the Commission. What is more, some EU Member States have for example sided with Poland, thus making it difficult to exert pressure on Poland. In contrast, the European Parliament has been quite active by adopting a series of resolutions denouncing the situation in Hungary and Poland but as such resolutions are not legally binding and have had little immediate effect.

Recently, the European Parliament has asked for the procedures mentioned in Article 7 of the Treaty on European Union to be triggered with regard to Hungary and Poland. Professor Pech emphasised that this procedure is wrongly labelled as ‘nuclear option’, for a nuclear option can only be used when it is too late, in which case this begs the question: ‘why use it at all?’. Article 7 TEU contains two mechanisms to ensure that the rule of law and fundamental rights are complied with: a preventive one (paragraph 1) and a sanctioning (paragraphs 2-3) mechanism. On the day of his presentation Professor Pech mentioned that the European Commission was currently considering the possibility to recommend the initiation of the preventive mechanism (which was in fact activated on 20 December 2017). Professor Pech explained that the problem with the sanctioning mechanism is that it can only be triggered by unanimity (minus the State that is being ‘investigated’) but given that there are several States that are failing to comply with the rule of law requirements other non-compliant States could be expected to veto any possibility to eventually adopt sanctions against the state subject to Article 7(2).

Professor Pech then argued rather contentiously that Article 7 TEU might not be the ‘real’ nuclear option. Worse repercussions than the suspension of eg voting rights would come from the CJEU declining to consider Polish courts as courts within the meaning of EU law on the basis that such courts are no longer independent. The possible ramifications of such a decision could be potentially considerable.

What can be done? According to Prof Pech it is time to use every single tool available! Everything the European Union can do to tackle the problem, it should do it and it should do it now! In his opinion, the situation in Hungary and Poland is more worrying than Brexit.

At this stage Prof Pech drew some parallels between the rule of law situations in the UK on the one hand and in Poland and Hungary on the other. Indeed he argued that the first signs of an unhealthy rhetoric in the UK could be seen too. Sadly it seems that judges and academics are increasingly subject to abuse and intimidation tactics. The attack on the judiciary in the wake of the Miller case and the ‘enemies of the people’ headline in the Daily Mail is a hallmark of autocratic regimes as a healthy judicial system enables individuals to use legal avenues to vindicate their rights. Similarly attacks on ‘pro-remain’ universities is another way to ensure that a counter, in the case of the UK anti-Brexit, discourse is muted. No voices are thus left to proffer arguments against governmental policies which some may be tempted to justify in the name of ‘the will of the people’ regardless of whether they violate the rule of law or not. A third parallel is the attack against George Soros and his foundation, both in Hungary as well as in the UK as Nigel Farage sought to investigate Soros funding. The anti-Semitic overtones of the anti-Soros rhetoric can be viewed as an attempt to garner the support of autocratic and nativist forces. Despite all these shared traits, Prof Pech emphasised that the UK legal and constitutional system should be strong enough to withstand criticism towards the judiciary and that British universities can do that too. There is no need yet to be excessively worried about the situation though some of the rhetoric used by pro-Brexit supporters is similar to the one used by autocratic regimes in the world. In particular, Prof Pech explained that the ‘will of the people’ appeal is often used as a way to justify violations of the rule of law.

Prof Pech finished his Address by stressing that it was important to ‘diagnose the disease’ so as to be able to provide an appropriate remedy and that the number 1 priority of the European Union should be to tackle rule of law backsliding in its own backyard and stop procrastinating about it.

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

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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)

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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

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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

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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

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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.

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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.

The Distinguished Professorial Address: Professor Michael Dougan – “The UK Outwith the EU and the EU Without the UK”, March 29

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The Bristol Law School would like to invite you to Professor Michael Dougan’s Distinguished Professorial Address at UWE Bristol on Wednesday 29 March from 17:30.

Register here.

Micheal Dougan Head of Law and Professor of European Law, University of Liverpool. He specialises in EU Law, particularly EU constitutional and institutional law, legal relations between the EU and its Member States, the law of the Single Market and free movement of persons / EU welfare law. Michael is Joint Editor of Common Market Law Review – the world’s leading scientific journal for European legal research.

Abstract: 

Since the June referendum, political and public attention has focused on the UK’s forthcoming negotiations with the EU about withdrawal and the framework of future relations in fields such as trade and security.

Those negotiations certainly raise all sorts of novel and sensitive legal issues, to say nothing of their political salience and controversy. But of at least equal interest are two further questions. What will it mean to “de-Europeanise” the UK legal system through and following the process of withdrawal? And how might the UK’s departure impact upon the EU’s own constitutional order?

The event is free to attend but you need to register a place via Eventbrite.

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

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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.

Why do we British find the EU so hard to swallow and why does it matter to business?

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Britain, Business and Europe 2016 Series

To register

Sir Stephen Wall, the former foreign policy advisor to John Major and Tony Blair, sets out his thoughts on Britain’s often difficult relationship with Europe and why it matters to British business and the UK economy at UWE Bristol’s Exhibition and Conference Centre, on Wednesday 20 January 2016.

The event forms part of a series of special events during 2016 discussing Britain, Business and Europe, is hosted by UWE Bristol in collaboration with Business West.

In the half century since the British Government first applied to join the European Community, British membership has been a matter of ceaseless controversy. Why? And what implications does this have on our long term economic interest and the UK’s global influence?

Sir Stephen will discuss why the British find the EU so hard to swallow and why the idea of ‘leaving Europe’ dominates political discussion in a way that is unique among European nations. The United Kingdom is the only Member State ever to have had a referendum on whether to stay in only two years after joining. Why are we now the only Member State which seriously contemplates leaving? Why do other Member States think we treat them less as partners than as adversaries? What risks does this pose to our economy and global influence?

This year is likely to see a referendum on the UK’s membership of the European Union. Companies across the South West will find themselves part of a passionate debate with potentially far reaching consequences for the environment in which they do business. Sir Stephen’s insider and long term view will shed light on the dilemma facing voters, businesses and politicians and help stimulate debate on what the referendum vote means for the UK.

Series organiser, UWE Bristol’s Professor Nicholas O’Regan says, “We’re delighted to welcome Sir Stephen Wall to get our 2016 Bristol Distinguished Address Series off to a flying start with one of the year’s hot political debates – the Brexit referendum. This series has become a popular event for the Bristol business community, with the opportunity to network and hear directly from inspirational figures in industry with a wealth of strategic experience and leadership skills at the highest level.”

Phil Smith, Managing Director, Business West, says, “This event launches a series of events to better inform the business community about the European Union and the referendum debate. We are lucky to have such an experienced, informed and respected speaker to help kick off what promises to be a full and passionate year of discussions.

“When we surveyed nearly a thousand local businesses last year, two thirds believed that leaving the European Union could pose a direct risk to their own business. This demonstrates that for many South West firms the referendum is not an abstract question, but one with real and personal consequences. Our members also strongly felt the need for a better informed debate with more detailed information about the costs and benefits of the European Union. Sir Stephen’s visit is the perfect way to start this business discussion on Europe.”

The Bristol Distinguished Address Series is delivered by the Bristol Business School in partnership withACCA,Bristol City Council, Bristol Junior Chamber, Bristol Post, Business West, CBI, CMI, FSB, IoD,ICAEW and the West of England LEP.

Discuss this event on Twitter using the hashtag #BristolLectures