BREXIT Challenge: European Union Citizenship Speaker: Tom Muirhead. Event: Public Meeting on EU Citizenship. Links: www.shru.org Location: Hillhead Library, Glasgow. Date: 24 th November 2016 at 18:30 Those who cannot remember the past are condemned to repeat it Page 1 of 13
Introduction-1: BREXIT Challenge: EU Citizenship. My name is Tom Muirhead and I am a citizen of the European Union who has become increasingly concerned about BREXIT and the effect it will have on my own and everyone else s European Union Citizenship. This presentation (and some other related papers) is published at the site of the Scottish Human Rights Union: www.shru.org. I apologize in advance for any reference(s) that I haven t cited. The presentation will take about 15 minutes and then I will ask for questions. I will then open the floor to anyone else who wishes to speak on the subject of BREXIT and European Union Citizenship. Please note that the purpose of this meeting is to discuss whether we can and / or should mount a legal challenge to BREXIT. Page 2 of 13
Introduction-2A: BREXIT Challenge: EU Citizenship Index of Slides 1. Section 1: Briefly explains the history of the European Union, the establishment of European Union Citizenship and the importance of human rights to the European Union and all EU Citizens; 2. Section 2: Briefly sets out the consequences of the leave vote in the BREXIT Referendum and what the British Government are probably planning to do. Introduction-2B: BREXIT Challenge: EU Citizenship Index of Slides 3. Section 3: Explains the success of the BREXIT challenge so far. 4. Section 4: Sets out the challenge I would like to make to BREXIT and what that challenge entails. 5. Section 5: Asks if anyone is interested in helping me make this challenge? Page 3 of 13
Section 1: Briefly explains the history of the European Union, the establishment of European Union Citizenship and the importance of human rights to the European Union and all EU Citizens; Slide 1-1: The history of the European Union. 1. After the Second World War it was thought (For example: By Churchill and, most notably, the French foreign minister Robert Schuman) that if you joined the countries of Europe in an economic community then it would reduce, or make impossible, the possibility of future wars between them. In 1951 the European Coal and Steel Community ( ECSC ) was created. The ECSC joined, in an economic sense, the countries of France, West Germany, Italy, Belgium, Holland and Luxembourg. The ECSC has now evolved into a European Union of 28 countries. 2. The European Union is based upon Citizenship, the rights of residence and establishment; the free movement rights of Persons, Goods, Services and Capital. Slide 1-2: The establishment of European Union Citizenship. 1. In 1992, the Maastricht Treaty introduced European citizenship as a novel and complementary status for all Member State nationals. By granting to every citizen the right to move and reside freely within the territory of the Member States, the new Treaty recognised the essential role of individuals, irrespective of whether or not they were economically active, within the newly created Union. Each individual citizen enjoys rights and owes duties that together make up a new status a status which the Court declared in 2001 was destined to become the fundamental status of nationals of the Member States (Case C-184/99 Grzelczyk [2001] ECR I-6193): Case C-34/09 Ruiz Zambrano at paragraph 67. 2. With 28 member states the European Union has roughly 510 million EU Citizens Page 4 of 13
Slide 1-3: The importance of human rights to the European Union and all EU Citizens. 1. As well as stopping war between the countries of Europe it was realised that the citizens of the member states also needed protections (from their own governments). To that end the EU has set up a Charter of fundamental rights ( the Charter ): 2. the EU has reinforced its policy on fundamental rights through (for example) setting up a Fundamental Rights Agency, creating an independent portfolio within the Commission responsible for fundamental rights, supporting humanitarian projects throughout the world and transforming the Charter of Fundamental Rights of the EU, first proclaimed in 2000, from a non-binding text ( soft law ) into primary law. Fundamental rights have thus become a core element in the development of the Union as a process of economic, legal and social integration aimed at providing peace and prosperity to all its citizens. : Zambrano at paragraph 154 3. It should be noted that the Charter, although only applying in areas related to EU Law, gives far greater human rights protection than the sub-set of the ECHR brought into British law by the Human Rights Act 1998. The Charter does not apply in issues that are completely internal to a member state. Page 5 of 13
Section 2: Briefly sets out the probable consequences of the leave vote in the BREXIT Referendum and what the British Government are probably planning to do. Slide 2-1: The probable effects of BREXIT 1. The citizenship rights of free movement, residency and establishment of over 500 million people will be affected. 2. British Citizens are no longer protected by the Charter of Fundamental Rights of the EU. 3. British citizens will lose their right of establishment, residency and free movement in the other 27 member states. 4. I think that the British Government will put a bill in front of Parliament that will allow the Executive to invoke article 50 and start the process of leaving the EU (personally I think that our government will attempt to retain the best parts of EU membership in relation to trade. But, removing the free movement rights of residency and establishment and being bound by the Charter I don t think that we have a snowballs chance of achieving this). Slide 2-2: How can this be lawful? 1. The main question for me is how can a referendum of only 55 million people be the basis of affecting the rights of so many over 500 million? Page 6 of 13
Section 3: Explains the success of the BREXIT challenge so far. Slide 3-1: The BREXIT Challenge so far 1. A class action was organized by various groups. The action was limited to asking the following question: Does the Executive have the power to invoke article 50 (the member state leaving clause) or does the power to invoke article 50 have to come from parliament. 2. The English and Welsh Court of Appeal responded with this judgement: For the reasons we have set out, we hold that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union. 3. The authorities on Parliamentary Sovereignty were fully reviewed and the case is well worth reading (please see the reference sheet). It shows the tremendous success that a crowd funded class actions can achieve. 4. Miller & Anor, R (On the Application Of) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) Page 7 of 13
Section 4: Sets out the challenge I would like to make to BREXIT and what that challenge entails. Slide 4-1: A New Challenge. 1. Challenge 1: The British Parliament has no authority (sovereignty) in this area. 2. We would contend that EU Citizenship means that no member state can leave the EU. It is a one way street. 3. Please note that there may be ways to end the EU but one country holding a referendum and then invoking article 50 does not, to me, appear to be the way. Slide 4-2: A New Challenge 1. Challenge 2: the British Parliament is not lawfully or democratically elected and as such has no sovereignty. 2. This is due to the Grand Chamber of the European Court of Human Rights finding that the blanket ban on prisoners from voting means that British elections are neither lawful nor democratic. See Hirst (No 2) v The UK 74025/01 [2005] ECHR 681 (6 October 2005) 3. We would ask: Does an unlawfully and undemocratically elected parliament have sovereignty? Page 8 of 13
Slide 4-3: A new Challenge 1. To challenge BREXIT in the courts we would need to: 1.1. Create a European Union Citizenship Group. 1.2. Publicise via Social Media A web site, Facebook, Twitter, Instagram etc. 1.3. Raise money via crowdfunding to: 1.3.1. Raise an action (Judicial Review) in the Court of Session. This action would ask for the referral of our challenges to the European Court of Justice. 1.3.2. Raising an action such as this would require a solicitor and advocate to be engaged. This costs a lot. Page 9 of 13
Section 5: Is anyone interested in helping me make this challenge? Slide 5 1: Do you want to help? 1. If you are interested in helping to organize this class action then please contact me at: tomatshru@yahoo.com. 2. If you don t use E-mail and are willing to help then please give me your name and phone number. Slide 5 2: Do want to help? 1. Thanks for listening. 2. Before opening the floor are there any questions? Page 10 of 13
Ancillary Slides: AS-1: The text of article 50: 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. Page 11 of 13
AS-2: George Santayana (1863-1952), was a philosopher, essayist, poet and novelist. Those who cannot remember the past are condemned to repeat it Page 12 of 13
AS-3: Contact Details and References 1. Tom Muirhead: tomatshru@yahoo.com 2. The Scottish Human Rights Union: www.shru.org 3. BREXIT Challenge papers: http://www.shru.org/brexit-challenge/ 4. The Great Human Rights Swindle a paper on human rights in Europe and the UK: http://www.shru.org/wp-content/uploads/2014/02/ghrs-pdf- Document.pdf 5. Case C-34/09 Ruiz Zambrano: http://www.bailii.org/eu/cases/euecj/2010/c3409_o.html 6. Case C-184/99 Grzelczyk (principles of community law) [2001] ECR I-6193: http://www.bailii.org/eu/cases/euecj/2001/c18499.html 7. The case of Hirst (No 2) v The UK 74025/01 [2005] ECHR 681: http://www.bailii.org/eu/cases/echr/2005/681.html 8. The successful BREXIT challenge so far: Miller & Anor, R (On the Application Of) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin): http://www.bailii.org/ew/cases/ewhc/admin/2016/2768.html 9. EU Law reference book: John Fairhurst, Law of the European Union, Fifth Edition, Pearson 2006. Page 13 of 13