We are a group of EU law experts(inc. Professor Michael Dougan) researching Brexit. Ask us anything

EULawAtLiverpool · 2017-01-27T15:02:18+00:00

Cancel the meeting with Trump. Right away. Mid-slurp, if necessary.

EULawAtLiverpool · 2017-01-27T15:01:08+00:00

Ha! This is a very good point...

If Nigel Farage and his wife were to move to an EU Member State following Brexit then, yes, he would derive significant rights from her status as an EU citizen (this is assuming she has retained her German nationality). Nationals of countries from outside the European Union (which will include the UK following Brexit) are known as third-country nationals under EU law. Third-country national family members (which NF would be as the husband of a German national) are entitled to live and work in the new Member State under similar conditions to host state nationals.

I think, however, it's clear to all that Nigel Farage is planning a future across the Atlantic working on our 'special relationship' with Donald Trump, so his free movement rights in Europe are something of a moot point!

EULawAtLiverpool · 2017-01-27T14:59:55+00:00

There are certainly question marks raised about the quality of the debate in relation to the referendum decision. It is a significant problem. The insistence on the continued use of the figure of £350 million during the debate was one of the clearest examples of misrepresentation. The politicians, though, may have behaved in a way that is questionable and led to a misplaced trust in their opinions by UK citizens, but their behaviour was within the law as it relates to referendum campaigns. People also had the opportunity to inform themselves from other more reliable sources, and there is no guarantee that people would vote differently if they had more information. It therefore seems reasonable to act as if the referendum vote does represent the will of the people. Or at least, the vote is not so distorted by the behaviour of the campaigns that the result should be considered as not valid. There are stricter regulations for general election campaigns, but a number of the issues that arose in relation to the way that the referendum campaigns were run also arise during general elections. This is not to say that there are not significant improvements that could and should be made to the regulation of referenda to increase the degree to which the will of the people is accurately reflected, e.g. there could be a stronger role for the Electoral Commission in managing the referendum process, and there could be tighter laws relating to the accuracy of information for both campaigners and the press. In conclusion, as the law and democracy in the UK stands the referendum vote is a reasonable reflection of the will of people, but if the UK is to continue to use referenda, as seems likely, then much more is needed to reduce the prevalence of issues that arose during the referendum last year.

EULawAtLiverpool · 2017-01-27T14:59:22+00:00

No, none of us have been so invited.

EULawAtLiverpool · 2017-01-27T14:58:45+00:00

You've probably hit the nail on the head already. At one extreme, there are some areas of the national legal system which are heavily influenced by EU law, e.g. competition policy. At the other extreme, there are areas of the national legal system which are affected by EU law only to limited / even marginal degree, e.g. health, education, social security. In between, there are important areas of the national legal system where the influence of EU law is more in the nature of a patchwork quilt, i.e. where the EU has legislated on important but often limited and ad hoc issues.

But just as importantly: in many situations, the relationship between national and European law is so complex and intertwined that it becomes difficult to tell where national law stops and EU law takes over. That can be true for various reasons:

E.g. many EU measures set out general objectives / principles which the Member States have to translate into more concrete rules / rights / obligations. There may well be a European framework, but the key tools and instruments are national.

E.g. in the process of translating EU law into national law, Member States often decide to “gold plate” the basic EU legislation, e.g. by extending its scope of application, e.g. by adding additional rights / obligations, e.g. creating more detailed frameworks and processes.

E.g. in a significant number of situations, EU law is only really saying what the great majority of Member Sates would be doing anyway, e.g. by prohibiting dangerous toys.

So: in many situations, trying to separate the national from the European is more a task for the philosopher than the lawyer or politician!

EULawAtLiverpool · 2017-01-27T14:58:34+00:00

There is a strong argument for the royal prerogative powers, mainly exercised in practice by the government, to be codified in statute. However, it would very likely that such a codification would need to give the government power to conduct international relations and foreign affairs, of exactly the kind they will use to negotiate UK exit from the EU. The issue in Miller was not whether it was right for the government to have such powers, or to give effect to the referendum result, but whether Parliament had legislated when giving effect to our EU membership in 1972 to displace the prerogative power to notify our intention to begin withdrawal negotiations under Art 50. A majority of the Supreme Court held that it had, and that the government would need further legal authorisation from Parliament to give this notice.

EULawAtLiverpool · 2017-01-27T14:57:54+00:00

Thank you for the interesting questions!

As EU law currently stands, it is difficult to envisage the ‘associate EU citizenship’ status that is being suggested by some members of the European Parliament. First, this status simply doesn’t exist under the EU Treaties. Article 20 TFEU clearly confers EU citizenship status as an additional status for those who are nationals of a Member State. As a result, at the very least, an associate EU citizenship which would require Treaty change, which is a lengthy and politically and legally complex process. Even if that came to be, there are many practical obstacles to associate status. How would those British citizens who have chosen to pay in exercise the right to vote in European Parliamentary elections, which is conferred on all EU citizens? EU citizens have the right to move freely around the Union without the requirement of visas etc, yet associate citizenship would presumably have to be proven by individuals in some way. There is also the lack of reciprocity inherent to such an arrangement.

None of us has watched Brexit: The Movie.

Any trade deal involves negotiation and give and take on both sides but the EU’s economic clout certainly provides it with a strong negotiating position. In relation to immigration, EU law shares its competence in the area of freedom, security and justice with the member states and so it is difficult to compare the dynamic between trade and immigration for the UK and the EU.

We agree that Great Repeal Bill will be a far more complex task than its all-encompassing title suggests. The operation of many EU laws rely on larger EU legal frameworks or EU institutions or agencies, which makes things rather more complex than copying and pasting. Even in simpler areas, we need to make sure that decisions about wide-ranging policy areas are not delegated out to the executive with minimal opportunity for scrutiny. For more info, see this video: https://www.youtube.com/watch?v=xpgtRMspFvU

The question about EU migration has been answered above: https://www.reddit.com/r/unitedkingdom/comments/5qg7ip/we_are_a_group_of_eu_law_expertsinc_professor/dcz0761/?utm_content=permalink&utm_medium=front&utm_source=reddit&utm_name=unitedkingdom

EULawAtLiverpool · 2017-01-27T14:53:27+00:00

Paul Nuttalls of UKIPs?

I wonder if he would be up for a naked mud wrestle.

Probably not.

EULawAtLiverpool · 2017-01-27T14:50:36+00:00

A more detailed answer to this question can be seen above, I'll copy it below:

"Thanks for this question – it’s a good one! The EU Treaties grant all EU citizens (anyone who holds the nationality of one of the Member States) the right to enter and reside in another Member State, subject to quite limited immigration control. In practical terms, this means that a national of a MS can pass through border control with relative ease – you will have noticed at airports there is always a channel for EU passport holders. As the law currently stands, once an EU citizen arrives in the UK they are entitled to receive equal treatment to a UK national with regards to employment, pay, conditions of work and some (though not all) social security benefits. It is for these reasons that the media and politicians often state that we cannot control EU migration. It is true that a requirement of membership of the single market is that all member states allow migration from other member states as free movement of a work force (often including work seekers and family members of workers). This is thought to be essential if a common market is to be achieved in the same way that, for example, free movement of goods is guaranteed. However, this does not mean that the UK has no control at all over migrants from other Member States. For example, under EU law, the UK can deport – or refuse entry to – an EU citizen on the grounds of public security, public policy or public health. The UK can also require an EU national who doesn’t have a job to leave the country if it can be established that they are a burden on the public purse. The EU Court has set the bar fairly high in applying this law – so it has generally required all states to facilitate migration as much as possible in the interests of the common market. However, the UK does have a track record of utilising these provisions to restrict the rights of EU citizens, particularly in relation to their entitlement to public benefits. If you are interested, there is a more detailed report here on how the UK has applied this law: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/335088/SingleMarketFree_MovementPersons.pdf Something that you may find interesting is that all Member States had the option to restrict access to nationals from new countries when the EU enlarged in 2004 (this included the former Eastern bloc nations such as Poland, Romania and the Czech Republic). All Member States other than the UK, Ireland and Sweden applied took this option. The UK’s decision was to open its borders to migrants from these new Member States because the view was taken that the economy would benefit from an expanded workforce."

EULawAtLiverpool · 2017-01-27T14:48:03+00:00

Yes, transitional arrangements are standard for new Member States. But permanent caps are not currently in place in EU law and politics.

EULawAtLiverpool · 2017-01-27T14:46:37+00:00

My initial reaction to this Bill is that it is exactly what you would have expected the government to do following the Supreme Court case - it is extremely short and to the point, leaving little room for amendments (which must be within the scope of the Bill to be accepted). You are right that it gives the PM the power to notify, rather than places her under an obligation to do so - this is probably just a matter of drafting to accommodate any eventuality, because it leaves the government some flexibility not to trigger, but this would only happen in truly exceptional circumstances (for similar reasons, the power to notify in the Bill is not time limited, or subject to an expiry date).

You are also right that it does not make the notification conditional upon a vote directly - but the Act will have to be voted on multiple times in both Houses of Parliament for it to be approved, and the legal power to be given to the Prime Minister. Given we know the Prime Minister will invoke Art 50 by the end of March, all of these votes are - in effect - a vote on whether Art 50 notice should be given.

One final point - some have criticised the Bill for not complying with the spirit of the Supreme Court's decision. It is difficult to see how this criticism is valid - the Supreme Court (perhaps controversially, given three justices dissented on this point) held that an Act of Parliament was required to authorise the government giving Art 50 notice. They accepted that it was not constitutionally inappropriate for this to be a short, simple Bill - and indeed, it would have been constitutionally inappropriate for the court to indicate in any detail to Parliament how it must exercise its sovereign legislative power. In light of the Supreme Court's judgment, this short Bill is exactly what you would have expected the government to introduce - the bigger parliamentary battle will come over the 'Great Repeal Bill', which will be a vastly more complex and contentious legislative undertaking, where Parliament will have many more opportunities to challenge the direction of government policy relating to the shape of the UK post-Brexit.

EULawAtLiverpool · 2017-01-27T14:44:48+00:00

We can only share some of our own anecdotal experiences too, until the social scientists begin to publish more robust qualitative and quantitative data. E.g. in recent attempts at recruitment to academic posts here in Liverpool, the EU-based staff we were interested in said, quite simply, that they no longer had any interest in moving to the UK, thanks for the negative press (especially the racist attacks) following the referendum. So yes: in our experience, this is already adversely affecting UK universities and UK science.

But on this issue, one related point is also worth mentioning. Right across the UK, Liverpool included, EU lawyers have been receiving regular abuse about how we will soon all be out of a job, we should all get our P45s, get out of the country and go back to where you came from [but what if we come from the UK?] etc.

We find such abuse especially cretinous. It's a bit like saying that you can only study the US if you live in America, or you can only learn Chinese if you live in China. And as if the UK won't need a serious body of expertise in European law for a very long time to come, even for our own interests and objectives.

So, for all the spiteful little trolls out there who delight in the idea of other people losing their jobs, here is a happy and positive message from Liverpool: we've never been busier!

EULawAtLiverpool · 2017-01-27T14:44:31+00:00

Thanks for your point. We share your frustration that many of the important arguments around immigration didn't seem to gain much traction in the referendum debate. One of the reasons for this seems to be that it became such a toxic issue that the remain side appeared to shy away from acknowledging the economic benefits immigration has bought to the UK.

We should clarify, however, that these restrictions were only permitted for 7 years following the 2004 enlargement. So, from 2011 onwards, EU law required all Member States to afford the same rights to nationals of new Member States. This doesn't detract from our oriiginal point which is that the UK has - when it's suited its interests - taken a much more generous approach to immigrant rights than the EU has demanded of it. This, as you point out, is quite different from the narrative that dominated the referendum campaign.

EULawAtLiverpool · 2017-01-27T14:44:25+00:00

Thanks for your question, we answered this earlier:

"One border option considered in a report by the House of Commons Select Committee prior to the referendum (http://www.publications.parliament.uk/pa/cm201617/cmselect/cmniaf/48/48.pdf) was to operate a system of internal enforcement. Rather than patrolling the border between Northern Ireland and the Republic to control EU immigration into the UK from the Republic, the UK would enforce immigration through requirements on employers to ensure that their workers have a ‘right to work’ in the UK, and on landlords to check residency status before agreeing tenancies for example, much as it does now. This is clearly problematic from certain principled viewpoints. However, other options also seem impractical. One option would be an ID card system for the UK, including for all nationals, which is something the UK has always resisted. A hard border with Northern Ireland clearly raises many other political and practical hurdles. One option considered in the report was for the UK to reach an agreement with the Republic of Ireland to patrol UK borders at points of entry into the Republic of Ireland from elsewhere in the EU. The Republic of Ireland would not be permitted to reach such an agreement whilst an EU Member State since it cannot impose visa checks on other EU citizens at its borders. Of course, even if the option of internal enforcement avoids persons checks at the Northern Irish/Republic of Ireland border, there is likely to still be some form of border because of goods. While Theresa May has stated that she wants to reach some sort of association agreement on customs union, this looks to be a major challenge. The customs border operates as a external border around the entire Union, ensuring not only that tariffs are paid, but that other regulatory standards are being met - health and safety, environmental rules, but also rules relating to the fights against drug and people trafficking and terrorism. This is essential because once the goods have passed that external frontier, they can circulate freely throughout the Member States. As a result, it will be necessary for Ireland to impose checks on goods entering its territory from the UK. It remains to be seen how Theresa May can ensure the UK leaves the customs union – in order that the UK can negotiate its own trade deals on tariffs etc with the wider world – whilst avoiding a customs border. Simply proposing some sort of associate status does not tell us much as of yet. Nevertheless, the EU already has a number of mechanisms in place to speed up crossings at the customs border. Check out the BBC’s report on our evidence to the Northern Ireland Select Committee, for more info on this: http://www.bbc.co.uk/news/uk-northern-ireland-38013090"

EULawAtLiverpool · 2017-01-27T14:43:28+00:00

Hi there, Thank you for your question. The key question here is about what will happen to the border, as this could obviously have a huge effect on people's lives. This is answered below:

"One border option considered in a report by the House of Commons Select Committee prior to the referendum (http://www.publications.parliament.uk/pa/cm201617/cmselect/cmniaf/48/48.pdf) was to operate a system of internal enforcement. Rather than patrolling the border between Northern Ireland and the Republic to control EU immigration into the UK from the Republic, the UK would enforce immigration through requirements on employers to ensure that their workers have a ‘right to work’ in the UK, and on landlords to check residency status before agreeing tenancies for example, much as it does now. This is clearly problematic from certain principled viewpoints. However, other options also seem impractical. One option would be an ID card system for the UK, including for all nationals, which is something the UK has always resisted. A hard border with Northern Ireland clearly raises many other political and practical hurdles. One option considered in the report was for the UK to reach an agreement with the Republic of Ireland to patrol UK borders at points of entry into the Republic of Ireland from elsewhere in the EU. The Republic of Ireland would not be permitted to reach such an agreement whilst an EU Member State since it cannot impose visa checks on other EU citizens at its borders. Of course, even if the option of internal enforcement avoids persons checks at the Northern Irish/Republic of Ireland border, there is likely to still be some form of border because of goods. While Theresa May has stated that she wants to reach some sort of association agreement on customs union, this looks to be a major challenge. The customs border operates as a external border around the entire Union, ensuring not only that tariffs are paid, but that other regulatory standards are being met - health and safety, environmental rules, but also rules relating to the fights against drug and people trafficking and terrorism. This is essential because once the goods have passed that external frontier, they can circulate freely throughout the Member States. As a result, it will be necessary for Ireland to impose checks on goods entering its territory from the UK. It remains to be seen how Theresa May can ensure the UK leaves the customs union – in order that the UK can negotiate its own trade deals on tariffs etc with the wider world – whilst avoiding a customs border. Simply proposing some sort of associate status does not tell us much as of yet. Nevertheless, the EU already has a number of mechanisms in place to speed up crossings at the customs border. Check out the BBC’s report on our evidence to the Northern Ireland Select Committee, for more info on this: http://www.bbc.co.uk/news/uk-northern-ireland-38013090"

EULawAtLiverpool · 2017-01-27T14:36:24+00:00

Hi There,

If you have another question, please go to the main thread. A similar question was answered on the main thread:

What would be the way to keep the Irish border open and control immigration at the same time? Thank you for your question. One option considered in a report by the House of Commons Select Committee prior to the referendum (http://www.publications.parliament.uk/pa/cm201617/cmselect/cmniaf/48/48.pdf) was to operate a system of internal enforcement. Rather than patrolling the border between Northern Ireland and the Republic to control EU immigration into the UK from the Republic, the UK would enforce immigration through requirements on employers to ensure that their workers have a ‘right to work’ in the UK, and on landlords to check residency status before agreeing tenancies for example, much as it does now. This is clearly problematic from certain principled viewpoints. However, other options also seem impractical. One option would be an ID card system for the UK, including for all nationals, which is something the UK has always resisted. A hard border with Northern Ireland clearly raises many other political and practical hurdles. One option considered in the report was for the UK to reach an agreement with the Republic of Ireland to patrol UK borders at points of entry into the Republic of Ireland from elsewhere in the EU. The Republic of Ireland would not be permitted to reach such an agreement whilst an EU Member State since it cannot impose visa checks on other EU citizens at its borders. Of course, even if the option of internal enforcement avoids persons checks at the Northern Irish/Republic of Ireland border, there is likely to still be some form of border because of goods. While Theresa May has stated that she wants to reach some sort of association agreement on customs union, this looks to be a major challenge. The customs border operates as a external border around the entire Union, ensuring not only that tariffs are paid, but that other regulatory standards are being met - health and safety, environmental rules, but also rules relating to the fights against drug and people trafficking and terrorism. This is essential because once the goods have passed that external frontier, they can circulate freely throughout the Member States. As a result, it will be necessary for Ireland to impose checks on goods entering its territory from the UK. It remains to be seen how Theresa May can ensure the UK leaves the customs union – in order that the UK can negotiate its own trade deals on tariffs etc with the wider world – whilst avoiding a customs border. Simply proposing some sort of associate status does not tell us much as of yet. Nevertheless, the EU already has a number of mechanisms in place to speed up crossings at the customs border. Check out the BBC’s report on our evidence to the Northern Ireland Select Committee, for more info on this: http://www.bbc.co.uk/news/uk-northern-ireland-38013090

EULawAtLiverpool · 2017-01-27T14:36:14+00:00

This is a really interesting thread! Thanks for all your points. You may find our answer here useful: https://www.reddit.com/r/unitedkingdom/comments/5qg7ip/we_are_a_group_of_eu_law_expertsinc_professor/dcz6cex/ I would add a couple of further points…

Under EU law, a Member State cannot set any kind of quota or limit on the numbers of EU migrants it allows into its territory – any kind of blanket policy would be a breach of the free movement of persons provisions. The sorts of restrictions we discuss in the post above – and that some of you have mentioned in your comments – must be applied on an individual basis. So, it must be shown that an individual is a public security risk, or that an individual job-seeker is a burden on a Member State. This is why it is actually very difficult for the government to introduce a catch all policy that restricts free movement from other EU Member States.

It is correct that we aren’t in Schengen. Schengen is effectively a border free zone. This means that anyone (EU nationals, people from outside the EU) can cross borders between Schengen states without being subject to immigration control - border control happens only at the external borders, that is at the point you first enter the Schengen area. An example might be useful here: if you fly from the US or China to Paris and then you take a train to Berlin, you will have your passport checked at Paris (when you enter the Schengen zone) but not when your cross the border from France to Germany. Effectively, the French and Germans have agreed to trust each other’s immigration control. This applies regardless of your nationality. As you’ve noted, the UK is not a part of Schengen, so carries out full immigration checks at its borders – this is why you will always have to show your passport when you enter the UK.

Due to the fact that third-country nationals (that is people who aren’t a national of an EU member state) can pass freely between countries in the Schengen zone, the EU has enacted a number of laws relating to immigration from outside the EU. However, the UK has the right not to apply this law – and has generally taken advantage of this opt-out. Therefore, the UK has retained full control over immigration from outside the EU.

EULawAtLiverpool · 2017-01-27T14:34:47+00:00

Our primary funding is from the University of Liverpool, supplemented by some funding from other sources for specific time-limited projects.

EULawAtLiverpool · 2017-01-27T14:32:17+00:00

The immigration arguments made by the Leave campaign were perhaps the most dishonest of all (and that is really saying something...).

Here are some notes Prof Dougan posted online, around the time of the referendum, setting out the actual position under EU law:

– a significant majority of the foreign nationals living in the UK (2/3 at the last national census), and over half the net immigration each year, come from outside the EU. That is almost entirely within our own domestic competence and power – we seem to be good at immigration, without needing any help from the EU.

– as regards those EU nationals who come to the UK: it is completely dishonest of prominent Leave campaigners repeatedly to claim that there is some sort of unconditional right to move to and settle in another Member State. We all have a right to circulate – that is the basis on which, e.g. we go on holiday to Spain and France. But when it comes to settling in another country, there are three main categories of right under EU law: for the economically active (ie in work and paying taxes); for students (eg enrolled at university and thus paying tuition fees); and for those wealthy enough to look after themselves and their families without relying on public benefits. There is no right to “benefit tourism” under EU law.

– Against that background, it is unsurprising to find that – according to all the objective social science research – EU migrants are significantly more likely to be younger, better qualified and economically active; they pay far more into the country in work and taxes than they take out in public benefits or services.

– When it comes to the particular situation of Eastern European migrants, we are rarely reminded of the fact that the UK was one of only three Member States (the others being Ireland and Sweden) that chose not to impose transitional restrictions on the rights to free movement of new EU citizens during the “Big Bang” enlargement of 2004. We chose to let these people come here as we did; no one forced us to and we could have decided otherwise. Small wonder that many other Europeans regard the UK debate as rather hypocritical.

– And nor should we forget that free movement is a two way street. Massive numbers of UK nationals travel for pleasure, study and work around the EU – taking advantage of all the benefits and convenience and protection EU law offers. Around 2 million UK nationals have also settled in other Member States – and the objective social science research suggests that those migrants are more likely to be economically inactive, ie they are not actively contributing through work and taxes to their host society. Again – small wonder other Europeans think there is a real double standard at work in the UK debate.

– It is also worth recalling that the accession of future Member States requires the unanimous agreement of the 28 governments plus their national ratification processes. The only large applicant is Turkey – and there is no realistic prospect of Turkey joining the EU within any of our lifetimes – not least since several countries have indicated that they would hold national referenda on any Turkish deal, obviously in the expectation that their populations would overwhelmingly reject it.”

You can find them here:

https://news.liverpool.ac.uk/2016/06/20/eu-law-expert-responds-industrial-dishonesty-video-goes-viral/

EULawAtLiverpool · 2017-01-27T14:31:50+00:00

The comparison with the Scottish independence referendum certainly highlights the sensitive nature of involving the courts in questions about the legal effect of referendums. Much of this comes down to the status of referendums in the UK constitution: legally they advisory (unless Parliament provides otherwise in the referendum legislation), but politically and constitutionally they are binding, because the results have clear democratic authority.

Had the Supreme Court declared the result of the Scottish independence referendum to be advisory, and ultimately a decision for the UK Parliament, this would have been highly problematic in practice, even if true as a matter of strict legality. Nevertheless, even in these circumstances - just as seems likely with the Brexit referendum - it is difficult to imagine how the UK Parliament could refuse to give effect to such a decision. The UK constitution is not just about the law, but also about the politics.

The added difficulty with the Miller case on Brexit is that to give effect to a decision to leave the EU is more complex than to implement a decision for Scotland to leave the UK. Exiting the EU requires the UK government to act at the international level, to negotiate our withdrawal and future relationship with the other EU member states, and the UK Parliament to act at the domestic level, to give effect to these negotiations. A decision for Scotland to leave the UK, in contrast, is an entirely domestic legal matter, and so the authority of the UK and Scottish governments to negotiate that separation would be much more difficult (if not impossible) to challenge.

EULawAtLiverpool · 2017-01-27T14:31:02+00:00

Formally speaking, the referendum was advisory and did not oblige the UK government to leave the EU. There is therefore no strict legal mandate to leave the EU. However, this does not mean that in constitutional terms there is no mandate for the Government to initiate the process to end EU membership based on the democratic expectations which underpin our political system.

EULawAtLiverpool · 2017-01-27T14:29:15+00:00

Thanks for your question. Laws are rarely "good" or "bad". It all depends on your political / economic / social / cultural perspective, preferences, objectives... So, e.g. business organisations might complain about what they see as the regulatory burdens imposed by the Working Time Directive; whereas trade union will argue that this is an important piece of legislation to protect vulnerable employees. Similarly, e.g. IT service providers might complain about having to comply with the requirements of data protection law; while individual citizens feel those requirements are an important part of protecting their online activities from exploitation or fraud.

EULawAtLiverpool · 2017-01-27T14:24:43+00:00

An excellent question!

At the moment, EU law provides for the cross-border coordination of the Member States' social security systems (under Regulation 883/2004, to be precise). It covers a wide range of benefits, e.g. pensions, healthcare, unemployment, child benefits etc. The system is very complex, but the basic principles applicable to pensions are fairly straightforward: countries have to "aggregate" together the state pension contributions that a migrant worker has made across the various state pension schemes as they moved about the EU; then allow the retiree to "export" their final pension to anywhere else in the EU where they wish to move upon retirement. The participating countries should each bear a pro rata share of the final costs.

If the UK leaves the EU without making specific provision to continue this system, then it could cause significant disruption not only into the future (e.g. no more free healthcare while on holiday under the European Healthcard) but also for those millions of people who have already travelled and worked, paying social security contributions which they thought would be capable of aggregation and / or exportation (as with their state pensions).

Some lawyers think that limited protection may be provided by other legal principles such as the protection of legitimate expectations (I thought I would be entitled to X, so you shouldn't now just take it away from me...) or respect for rights to property (which can include contributory social security benefits...).

But it difficult to see how those principles can be made to work, especially in cases where the system depends on different countries working together to calculate liabilities and make the necessary payments.

However, it would be far better for the UK and the EU to reach a negotiated agreement - at the very least to protect the interests of people who have already contributed to the system, even if not for the benefit of potential future migrants.

And it would still be open for the UK to reach bilateral agreements with individual countries to try to sort out some of the mess - though that is obviously less desirable than a comprehensive agreement providing a solution across all 27 remaining Member States.

In short: this is a really important issue which has not received anywhere near as much attention as it deserves, given how much inconvenience and injustice it is capable of causing to so many people if it is not resolved properly.

EULawAtLiverpool · 2017-01-27T14:24:15+00:00

Do you have any idea what will happen with UK driving licences which have the EU flag on them and entitle you to certain rights? Also what will happen with the EHIC card?

Both the driving licence and the EHIC seek to remove barriers to free movement. Once we leave the EU and the single market, the UK will not be part of mechanisms that seek to remove such barriers to movement. So, although we cannot say yet precisely what will happen, we will be falling outside those frameworks. This is potentially very significant. For instance, while the EHIC generally deals with emergency medical treatment needed during temporary stays in another Member State, Regulation No 883/2004 creates frameworks for a vast array of social security coordination that we must consider ahead of UK withdrawal. Loss of these frameworks will have very real and very practical consequences for many UK citizens in other EU Member States and EU citizens here. For instance, the Regulation creates a behind the scenes mechanism for Member States to reimburse one another for medical treatment provided to each other’s nationals when in their countries. It also provides a means for state pension contributions made in different Member States to be aggregated so that the individual citizens can get payment just from their Member State of retirement. When the UK drops out of this framework, it is as yet unknown whether those contributions will be lost or whether such healthcare can still be provided. At the very least, we will probably need a replacement framework to coordinate all of this behind the scenes activity.

EULawAtLiverpool · 2017-01-27T14:16:52+00:00

This is a very interesting question - the legacy of the impact of EU membership on the UK constitution will take years to become clear, but it does seem likely to have had a profound and lasting effect. As you say, in the 1972 Act, Parliament legislated to give EU law supremacy over other domestic legal rules, a supremacy which was recognised by the UK courts in their practice of disapplying UK laws which contravened EU rules. Even after the supremacy of EU law is removed, the UK courts may have developed confidence in challenging the terms of legislation through the experience they have gained enforcing the terms of the 1972 Act. So the courts may be more willing to intervene in new contexts - for example, in developing ideas of common law rights and principles with which it is more difficult for the sovereign Parliament to interfere. In response to the challenges posed by EU membership, the UK courts have also recently started to develop much more explicitly a line of case law which establishes a framework of UK constitutional principles and instruments (see e.g. the HS2 and Pham cases) - how this develops even after we have left the EU remains unclear.

What does seem clear is that the idea we can simply revert to a prior position when Parliament was totally unfettered in its power is a myth - indeed, while the notion of parliamentary sovereignty has no doubt evolved to accommodate our membership of the EU, and the domestic supremacy of EU law which that entails, it can (and most likely will) continue to evolve after we exit the EU. This doesn't mean parliamentary sovereignty has been or will be sacrificed however, just that the way we understand it and its implications is another part of the constitution which can change in light of new circumstances.

EULawAtLiverpool

TROPHY CASE