What will happen to the EU citizenship rights of UK nationals after Brexit? A Dutch Court has caused quite a stir by making a reference to the European Court of Justice on the issue. Ronan McCrea explains why the Court of Justice should not, and probably won’t, accept it.
Quite a stir has been generated by the decision of a Dutch court to make a reference to the Court of Justice of the European Union on the issue of the EU citizenship rights of UK nationals post-Brexit.
If Theresa May is hoping an increased Commons majority will aid the Brexit negotiations, she is likely to be disappointed, argues Benjamin Martill, Research Associate at the UCL European Institute.
Theresa May’s decision to call a snap election at a time when her party is riding high in the polls has been widely seen as an opportunity for her to dramatically increase her majority in the House of Commons from a slim 12 seats to potentially triple figures.
In June 2016, Jeff King, Professor of Law, UCL and Nick Barber, Associate Professor of Law, University of Oxford, argued that parliamentary approval was required before Article 50 could be triggered. At the time, their arguments were (wrongly) dismissed by various politicians and constitutional experts. Here, they present a rigorous and legally dense defence of the High Court’s recent decision that parliament must give its approval before the government can trigger Article 50.
Miller v Secretary of State for Exiting the European Union has stimulated quite a bit of debate. Some criticism of the decision has been well-informed and thoughtful, whilst some of it has been, to put it charitably, less worthy of engagement. In this post we respond to what we view as the strongest arguments against Miller, taking account of the Government’s written case for appeal. We discussed the reasoning used in the case in an earlier post written with Tom Hickman, and will not repeat that explanation here. This post assumes knowledge of that earlier piece, which was written with the lay reader in mind. The present piece, more legally detailed, is necessitated by the quite subtle replies to the argument in that original post and to the judgment in Miller.
In light of the ongoing legal hearing on the triggering of Article 50, Piet Eeckhout, Professor of EU Law at UCL, examines Article 50 from an EU law perspective. He explores what the UK’s ‘constitutional requirements’ for leaving the EU entail, noting that Parliament has a role to play in any withdrawal decision.
The litigation concerning the triggering of Art 50 TEU is under way, with hearings this week and next. It is the constitutional case of the century. The government’s skeleton argument has been published. This reveals that one of the pillars of its defence is that the decision to withdraw from the EU has already been taken. Consequently, all that is in issue is the authority to notify the EU of that decision, and to start the two-year negotiation period provided for in Art 50. That, the government’s case goes, is a decision of high policy which is rightly in the government’s hands, and not in those of parliament.
Ronan McCrea, Barrister and Senior Lecturer in Law at UCL, argues that the UK could be under the jurisidction of the European Court of Justice for longer than many Brexiteers may care to imagine. Any withdrawal agreement negotiated under Article 50 has to comply with the basic constitutional norms of the EU legal order, including fundamental rights. This could have significant implications for the UK’s negotiating position, as well as the status of EU citizens living in the UK.
Those concerned with protecting human rights have been vocal in their concern that the Brexit process will lead to a reduction in human rights protection in the UK. Indeed, part of the case presented to voters in favour of Brexit was that leaving the EU would allow the UK to be free of the duty to comply with the EU fundamental rights norms, including Charter of Fundamental Rights and the possibly expansionist interpretation of that Charter by the Court of Justice of the EU. As with so many elements of the impossibly multifaceted and tangled process of Brexit, the reality may be less clear cut. It is in fact likely that any deal concluded under Article 50 will be subject to a degree of obligation to comply with the rights contained in the Charter and the fundamental elements of EU law, and indeed, and obligation to satisfy the Court of Justice that such compliance has occurred.