Yes Mrs. May : No Mrs. May. Brexit is Brexit! Or is it?

Brexit is Brexit. Or so we have been told. Well real life does not really work like that. It’s never black and white. If there is anything which goes to prove this, its Brexit. In a paper entitled European Union Law in the UK after Brexit, Judge Ian Forrester tells us that EU laws will remain of considerable significance in the UK. He explains that the EU is a key player in the promotion of peace and cooperation between different EU countries and contributes to peace, democracy, human rights and multilateralism at a global level; and because of its size, proximity and influence - the EU cannot pass by ignored. He stresses that the EU will be a continuing influence in the laws governing daily life in the UK. This is, particularly, since there are several thousand regulatory and legislative texts which will, in most likelihood, be brought into British law directly from EU law. It is also likely that there are areas where the British government would not want to abandon its cooperation with EU states, and this would have to be adequately reflected in both its legislation and (most likely) that of the EU states which are party to this cooperation. 

Costo and Brock in their book entitled How the EU Really Works explain that the EU is advanced in every way (integration, institutions and policies) and is also the largest in terms of wealth, population, institutions and member states. I believe that this adds further impetus to what Judge Forrester is saying since I cannot see how the full repertoire of values, goals and government standards of the EU can be ignored by Britain.

Judge Forrester reminds us that through the EU, Europe has achieved a feat by bringing 27 separate countries together to deliver to their own citizens and each other’s citizens access to healthcare, freedom of speech, education, a pension, a minimum wage and freedom of speech. The implications of this (for Britain as an EU country and for all other member states in the EU) are that people have the RIGHT to go abroad to seek a job, to accept a job, to open a business, to hire staff, to engage in trade, to offer services, to go to hospital for treatment, to receive local treatment(not better and not worse than local nationals), to be spared discrimination based on foreign-ness, to bring along the family once one is economically active, to have children educated, and, in due course, to receive a pension on favourable administrative terms. While Britain is an EU country these RIGHTS are the rights of the British people AND all EU citizens; when it is no longer an EU country, these RIGHTS are the rights of all remaining EU citizens; unless they are transferred (albeit in some form) to British legislation and (in all likelihood) have the blessing of other EU countries individually.

Mr. Olaf Muscat Baron, who runs an accountancy/auditing firm in France, explains the aim of the EU in a few simple straightforward words. Mr. Muscat Baron explains that the EU’s main objective is to create a level playing field for a free market to operate in Europe. To operate in this way, he says that four freedoms would need to be available to citizens of the member states and their businesses. They are, the freedom of movement of (1) persons, (2) of goods, (3) of services, and (4) of capital. Mr. Muscat Baron further observes that the EU actively recognises that the impediment of any one of these freedoms would inevitably obstruct the proper functioning of the free market; and subsequently discriminate against the level playing field principle required for persons and business to prosper in the individual member countries.

Although I am open to be corrected on this, I firmly believe that, at least up until this point, successive UK governments have favored the concept of the economic market and the free movement of workers. Although it is being somehow proposed in the post-Brexit government negotiations in the English parliament that the two can be separated, I am not convinced that it can. As Mr. Muscat Baron explains, from a free market perspective, the free flow of goods, services, and capital are dependent to a large extent on the freedom of movement of persons. Its impediment would restrict the free movement of other three. Of course, one needs to contextualise this within ongoing discussions and dialogues in Britain. I would say in my case, I need to also contextualise them in the light of what I and other people have discussed in the very many pleasurable on-line discussions I have had on Facebook over the past months with people on both the leave and remain sides. I have observed that in their posts, some people appear to me to be inclined to confuse the free movement of persons with migration in its broadest sense. Migration refers to the movement of people from place to place, usually from one country to another (unless they are internally displaced). The free movement of persons is a type of migration; the way I describe it – it is migration as a right. (Kindly refer to what Mr. Muscat Baron has stated above).

Judge Forrester explains that if we are to debate if the free movement of people, or even migration in a more general way, is a good thing or a bad thing, then a lot will depend on public perception rather than the act of migration itself. Within an EU context, he brings the example of the Italian and Polish migrants to Scotland who have been received positively; and contrasts them with others who are believed to bring social tensions, do the jobs that British people would do for a lower wage, or, possibly commit crimes. One thing that causes me great sadness – that has been totally overlooked/ignored in Brexit campaigns is the relatively short-term movement of students from EU countries who also have the facility to work in other EU countries while they are studying. Students from other EU countries in Britain benefit from the education they get, and this benefits Europe. Perhaps more pertinently for some readers who are more interested in what Britain will have to gain directly from EU membership; than indirectly, as part of a larger EU context; there is the fact that students from Britain can work and study abroad – British young people studying for a degree to eventually teach French can very easily work and study in France, for instance.

Also, students from EU countries can benefit from EU student rates when studying in full-time institutions including schools, colleges and universities. My friend, Dr. Ken Mifsud Bonnici, a lawyer with considerable experience in the European Commission says the real benefit to education does not simply stop there but also influences people’s transitions to the work-place. He says that the real benefit of EU membership is experienced particularly by British workers via what are called dead weight gains from EU legislation. The application of these instruments removes non-tariff trade barriers (for example, identical standards for things from washing machines to banks) that allow business to operate seamlessly and thereby make it more likely for employment possibilities to increase - and thereby enable people from Britain (while it is an EU member state) and other EU member-states to find jobs on graduating from university, easier.

Of course, as Judge Forrester points out the UK is a highly regulated society and there is no reason for any reasonable man to assume that if Britain is to leave the EU, it will not be engaged in protecting workers’ rights, regulate dangerous chemicals, protect wild-life and so on. What will change is that while Britain is in the EU, research, consultation and decision-making are done by various EU agencies working together, often involving high levels of expertise. Contrary to ignorant assertions that this implies that an EU SSR has been formed, these agencies, as Judge Forrester explains further, employ experts from all the countries in the EU28 who produce opinions and recommendations but do not impose anything on governments in so doing. Rather, these technical recommendations are then considered as policy and political questions by the EU member states, who debate to reach a common position about how to regulate best in a manner that protects the EU citizen; particularly since, after the Treaty of Lisbon, the EU law concept was extended to embrace the notion of rights of EU ‘citizens.’

Let me try to explain what Judge Forrester is trying to tell us using practical examples. Firstly, I would like to take the example of air pollution. It makes no sense that a country legislates for it on its own. I hope that Judge Forrester, should he read this paper not mind, if, secondly, I say that he gives the example of decisions having to be taken whether Virginamycin can be used by farmers; or whether phthalates are hazardous to babies who suck soft plastics. In his paper, Judge Forrester also points out that competent bodies have concluded that the roles of 34 EU agencies would need to be replicated in the UK if the UK is to be enabled to draft out the technical elaborations in a manner akin to that which is done within the context of the EU.

Just like Britain cannot go about it on its own with air pollution, Judge Forrester points out that where health or safety standards are involved, it is incumbent that whatever legislation a country proposes, it cannot transgress on another. Therefore, he explains that adhering to standards for air-brake noise implies that citizens of Glasgow and Nancy can equally sleep restfully; and also that the City of Paris or the Ministry of Transport in Stockholm (for example’s sake) would not create a rival standard which would run contrary to efforts to arrive at a (practically) continent-wide set of standards of brakes that have been deemed acceptable by the EU. Brexit is equated with Britain aspiring to have national jurisdictional independence from the EU. However, before breaking away from the EU, Britain would be best advised to see if this makes sense; or more specifically any sense whatsoever, in the light of the tight-knit world, the world has developed into. Four different possibilities have been proposed in the run-up to Brexit: no deal, the Switzerland deal, the Canada deal, and the Norway deal. Do the electorate understand these deals? Do they understand what their implications are? Do they understand how they will affect them? Do they make sense?

I would like to conclude by saying that, in my opinion, it is a gross injustice to say that everything that goes on in Brussels interferes with Britain’s sovereignty. Rather the EU – on the contrary to a 100% degree – ensures that Britain has a voice in the formation of laws that effect its citizens and all other Europeans; something which perhaps some people who lack a certain standard of education will have great difficulty in understanding. And that is the major problem that Ms. May has to face. It brings to conclusion the first paper in a series that I will be writing over the coming months with the aim of doing whatever I can – through democratic means – to stop the fiasco called Brexit.

Damian Spiteri Ph.D.

Main points:

1.    Brexit is Brexit. Is it indeed?

2.    The EU laws will not miraculously disappear.

3.    In Europe 27 countries have got together to do things which would be other inconceivable and in Judge Forrester’s words thereby have achieved ‘a feat’.

4.    the EU’s main objective is to create a level playing field for a free market to operate in Europe. This level playing field makes it possible for persons and business to prosper in the individual member countries.

5.    Much of the Brexit campaign has been directed to migration; and thereby (perhaps, perhaps, perhaps …) to the freedom of movement of persons; and in this regard with the movement of people into the UK and not with the rights of British people to work and study abroad. (It reminds me of the days in my student days when I was speaking to a group of young people from Korea who boasted to me that they do not pay tax. Instead of giving them an answer, I showed them my pay cheque and my pay slip with my national insurance and pay-as-you-earn deductions; and explained to them that they were showed the pay-cheque but not the pay slip).

6.    From a free market perspective, the free flow of goods, services, and capital are dependent to a large extent on the freedom of movement of persons. Stopping people from taking up employment in Britain would be detrimental to the British labour market. Associated with this is the setting up of dead weight gains from EU legislation that remove non-tariff trade barriers (for example, identical standards for things from washing machines to banks) that allow business to operate seamlessly.

7.    While Britain is in the EU, research, consultation and decision-making are done by various EU agencies working together, often involving high levels of expertise. If Britain works alone, then it will still have to align its legislation to the EU; particularly since after the Treaty of Lisbon, the EU law concept was extended to embrace the notion of rights of EU ‘citizens;’ and Britain cannot pass laws which transgresses on any of its neighbours (all EU countries).

8.    It is a gross injustice to say that everything that goes on in Brussels interferes with Britain’s sovereignty. Rather the EU – on the contrary to a 100% degree – ensures that Britain has a voice in the formation of laws that effect its citizens and all other Europeans; something which perhaps some people who lack a certain standard of education will have great difficulty in understanding.

References:

Forrester, Ian (Judge) (2018) European Law in the UK after Brexit. Judicial Review 23(1), 45-64

Cosio, Olver and Brack Nathalie (2018) How the EU Really Works, Routledge

Mifsud Bonnici, Ken. Personal Correspondence (reproduced with permission)

Muscat Baron, Olaf. https://www.fiscaly.fr/

N.B. I would like to thank all the people who have contributed to my Facebook posts over the past months and who have helped me develop my ideas.