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No one ignores it, the United-Kingdom is about to leave the European Union. On 23 June 2017, British citizens have voted to leave the Union in a referendum organised by former conservative Prime Minister, David Cameron. The so-called “leave vote” obtained 51.9% of the votes. While this is not an overwhelming majority, it is enough for the victory of the brexiter and it reveals how deeply political and social divisions run in the UK, similar to what can be observed the EU.
The result has come as a shock. As it was unexpected, it was highly discussed by media, European citizens and representatives. The Brexit is evidence of both the considerable increase of euroscepticism in Europe and the lack of confidence citizens have in supranational institutions. Finally, while the EU has known a continuous enlargement process since 1957, it is the first time in the history of European integration that one country has decided to withdraw from the EU.
On 28 March 2017, British Prime Minister, Theresa May, officially triggered the application of Article 50 of the Treaty on the European Union (TEU). According to the Treaty, the EU and the UK have a two years time period to conclude an exit agreement, starting with the official notification introduced to the president of the European Council by the leaving country. Once the agreement enters into force, Treaties and European legislation will cease to be legally binding for the UK. If no agreement can be found within the two years period, the treaties will cease to be enforceable anyway, without any legal transition framework. It would be “a leap into the unknown” that would take away the conventional grounds of future relationships from the UK, the Union and the citizens.
Brexit comes with many concerns on the future of the EU. While the outlook of the Union blow-up has been avoided regarding the electoral defeats of far-right eurosceptic parties in France, Netherlands and Austria, many risks remain. And this is particularly true for economic and social rights for which the negotiations will be a determining factor.
What are these concerns, how are these issues be addressed and on what do the institutions have to pay attention in order to protect rights from becoming a bargaining chip of negotiations or from being completely forgotten? These are the questions the AEDH aims at addressing in this article.
Brexit: a threat to social rights?
First of all, Brexit is threatening the fundamentals of Social Europe starting with the freedom of movement which is the right which matters most for European citizens.
The freedom of movement of both European citizens living in the UK and UK citizens living in the EU is now compromised by the upcoming modifications of the rules on people’s mobility, especially the mobility of workers.
One of the brexiters’ main motivation for Brexit was to “regain” control over the labour market, in order to foster strictly national hiring and to protect national borders from “the migrant crisis” that the EU “makes less safe” according to Nigel Farage, ex-UKIP leader. British borders are closing and this closure is a threat to the rights European citizens have acquired since the UK entry into the EU in 1973.
British nationalists are claiming is nothing less than the reintroduction of a right of selection at the borders, to select those deemed “worthy” to work on the national territory. Their aim is to evade the interdiction of discrimination on ethnic or geographic origin enshrined by the European Charter on Fundamental Rights so that they can control migration flows they consider as too important, both coming from inside and outside the EU. Some events, like hate crimes towards Polish citizens in the UK after the result of the referendum, are evidence that shows a xenophobic, if not racist tendency of the Brexit vote. The victims’ nationality is meaningful given that Polish people represent with 831 000 citizens the highest immigration population on British territory, since August 2016. More generally, the “leave” result has triggered a 41% increase in hate crimes towards non-UK citizens, and a 58% increase during the week following the results, according to a report from the British Home Office. Few have been done at the national level to condemn these crimes that threaten the right of residence, freedom of movement and access to services according to the association NewEuropeans. AEDH strongly condemns the spreading of hate crimes on UK territory and calls on UK authorities to react in order to protect both social rights and the physical integrity of citizens who have been endangered by the “leave” vote.
Globally speaking, the entire social « acquis », resulting from EU legislation since 1973, is under threat for British citizens, whether it is enshrined in the treaties or by secondary EU legislation. For many years, a majority of British conservatives, and Margaret Thatcher first, has been criticising the “constraints” EU legislation imposes on the EU labour market. After having triggered Article 50 of TEU, Theresa May has launched a legislative initiative in Westminster Parliament aimed at transcribing 44 years of EU legislation into national law. The so-called “hard-brexiters” have immediately called for the dismantling of social legislation, especially of the rights of workers, environmental legislation and other regulatory obligations for companies. Optimistic voices still believe that “soft-brexiters” will be able to soften the suggestions of their fellow MPs in Westminster. Nonetheless, if the analysis of Dagmar Schiek, professor at the Queen’s University of Belfast, is true, the so-called soft Brexit has never been an option for the government. Admittedly, in the legislative elections on 8 June 2017, the conservatives have not reached absolute majority what they had expected. However, there are only few opponents to the hard-brexiters and the Scottish National Party (SNP) of Nicola Sturgeon also has lost seats although it expected to become a true force of political opposition.
Furthermore, the UK/EU negotiations’ framework bears a real danger that is that negotiations are merely reduced to the negotiation of a trade agreement. While the UK wants to leave the EU, it does not want to give up the commercial benefits of the single market. However, many issues have to be settled before any trade agreement between the EU and the UK, as a new third country, can be designed. Among other things, these issues are: the status of expatriates, the British bill for its contribution to EU revenues, judiciary cooperation, research programmes, airspace or the future links between the UK and the European Court of Justice. If all these elements are to be treated at the same time, EU citizens living in the UK and UK citizens settled in the EU fear to be used as bargaining chip during the negotiations. And this fear is not unreasonable if one considers the statement of the secretary of state for international trade, Liam Fox, who described EU nationals as “one of [our] main card” in the negotiations. Nonetheless, there is a real risk of precarisation of many citizens if issues such as the future of jobs threatened by the Brexit, or the right to stay in the EU or in the UK, are not quickly settled. On that matter, the Secretary General of the European Trade Union Confederation, Luca Vinsentini, affirms that: “Citizens’ jobs and rights should not be held hostage until everything else is agreed. It is also essential that the future situation of workers is resolved. Workers must not be left in the unacceptable situation of not knowing where they will stand if they lose or leave their job or retire after March 2019.”
In addition, the fate of the European Commission’s British civil servants and the future of their pension rights also have to be taken into account. Fearing the results of the negotiations, many are applying to get the Belgian nationality. The evolution of their international statute and the loss of their employment by the Brexit threaten their social rights.
For all these reasons particular attention has to be given to the protection of rights. The European institutions and British public authorities have to be very attentive to hate crimes. AEDH also encourages negotiators to be firm towards the United-Kingdom in the defence of the effectiveness of social rights for all European citizens.
Brexit: a threat to local economic stability?
Although one can only speculate on the consequences of the Brexit for the UK, it is globally seen as a real threat to the British economy. This is particularly true for Scotland where the Brexit risk to cost many jobs. The announcement of the future withdrawal of the UK from the EU triggered a strong devaluation of the pound, which has undermined the performance of the Scottish economy which is mainly based on exportation threatening many jobs. For people in Scotland, the social and economic consequences of the Brexit are seen as unfair given that 62% of Scottish people voted in favour of “remain” at the 23 June 2017 referendum.
The regional economic and social stability is also threatened in Northern Ireland. This region is the only part of the UK sharing a land border with another state. Thus, the re-introduction of external borders is a real issue for workers who cross the border between the Republic of Ireland and Northern-Ireland on a daily basis. Their status is not obvious and the UK government wishes to settle this issue in a bilateral agreement with the Republic of Ireland. However, this is a problem for two reasons risking to affect the rights of workers. First, just as the issue of the expatriates, the situation of transnational workers may be dealt with only after the withdrawal negotiations of the UK. The uncertainty of this situation is not tolerable and in breach of Article 8 of the European Convention of Human Rights providing the right to family life.  Furthermore, the UK’s willingness to settle the issue in a bilateral agreement does not comply with EU international trade rules. According to the treaties, which give an exclusive competency on international trade to the institutions, the future trade agreement between the Republic of Ireland and the United-Kingdom must be negotiated with the EU at 27.
The weakening of social and economic situation: a threat to civic and political rights?
Both the weakening of the Scottish economy and Scotland’s pro-EU vote on 23 June 2017 have put again to the table the debate on Scotland’s independence. The change in the UK’s international situation and the social and economic consequences of the Brexit are two reasons the SNP esteem sufficient to open this issue again. On 31 March 2017, two days after the notification of the UK of its withdrawal from the EU, Nicola Sturgeon officially claimed the organisation of a new referendum on independence. Nonetheless, it has been rejected by Theresa May who wants the UK to be united during the negotiations against the EU while Scotland does not have any voting right in the negotiations. A new referendum, according to the Prime Minister can be organised but only after the negotiations. This refusal (even if only temporarily) puts into question the respect of to the political right to self-determination, which is one pillar of the Charter of the United Nations and a right enshrined by the Universal Declaration of the Rights of Peoples. Given that a majority of Scottish citizens voted to remain inside the EU and that UK’s withdrawal drastically changes the international context in which they first voted to remain in the UK, one may claim that Scotland has the right to organise a new referendum, in the conditions they chose. In AEDH’s opinion, the delay imposed by Theresa May is impeding Scotland from having access to self-determination. While a positive answer to Scottish independence would provide Scottish citizens with an opportunity to defend their sovereign rights, the delay is impeding this opportunity.
Also, the changes in the economic situation of Northern Ireland are of primary importance in the region. Indeed, cross-border issues – raised by the re-introduction of UK borders- have a particular meaning in Northern Ireland. Until recently, the region has been subject to an ethno-nationalist conflict where the territorial claims have divided the Republicans, claiming the reunification of the Irish Island, and the unionists, in favour of a British administration of the region. On 23 June 2017, the majority of Northern-Irish people voted to remain in the EU. Politically, and as envisaged by the Good Friday agreement, this vote has been understood as opening up the opportunity to demand a regional referendum on the unification of Northern Ireland with the Republic of Ireland by the leaders of the pro-Irish nationalist political party, Sinn Fein. This claim has exacerbated tensions within the Stormont Parliament.
|The Good Friday Agreement is the agreement concluded between Northern-Irish Catholic and Protestant communities at the end of the cease-fire process that started in 1994. It shapes the conditions for the peace process in the region, such as the parity of communities within Stormont Parliament and the resolution of political issues linked to the conflict. In order to satisfy the demands of both communities at the moment of ratification, the agreement acknowledges the administrative sovereignty of the United Kingdom on Northern-Ireland but also introduces the possibility to organise a local referendum on the possible reunification with the Republic of Ireland.|
So in addition to threat, it poses for the social rights of workers, the Brexit threatens the political situation of the region. The threat of a reappearing conflict is real given the new strives of Nationalist and Republican communities for unification. Moreover, this political instability further adds to the weakening of the economy as necessary confidence to attract foreign investments is undermined and may be detrimental to the growth and development of Northern-Ireland.
What are the solutions to these challenges?
Some proposals to decrease uncertainty and to lower the risks the Brexit is creating for economic and social rights have been put on the table, and among those, there are a few that deserve particular attention.
In order to avoid citizens being held hostages of the negotiations, the European Commission, the Council, the Parliament and the chief negotiator, Michel Barnier, all affirmed to pursue the negotiation in two rounds : The trade agreement between the EU and the UK should be concluded once the conditions of the withdrawal of UK are clear. A resolution of the European Parliament of 5 April 2017 underlined that the interests of citizens must be the top priority during the negotiations. The Council negotiation guidelines published on 22 May 2017 show the same intention.  They suggest to organise the negotiations in two parts with the first one dedicated to “Provid[ing] as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union”. Moreover, points 20 to 22 of the guidelines are dedicated to the rights that the agreement must protect under any circumstances. They insist on the need for a precise definition of rights in the agreement and list the minimum list of rights that have to be protected including the right of residence, freedom of movement, the rights set out by the coordination of social security systems, the rights set out in the regulation on the freedom of movement of workers and the right to pursue an activity. AEDH calls on the respect of these provisions of the negotiation guidelines.
However, this will not be sufficient to ensure a wide protection of economic and social rights threatened by this situation. In order to guarantee the effectiveness of the protection, the transparency of negotiations and their democratic nature, AEDH considers that additional measures must be implemented.
AEDH fully supports the measures proposed by the European Trade Union Confederation regarding the procedure of the negotiations, namely:
- The involvement of trade unions at every stage of the negotiation and the transparency of guidelines of the negotiation.
- The guarantee at the beginning of the negotiations that workers will not be used as bargaining chips. The respect of their right to stay, work and move. The negotiation of a fair deal on mobility.
- The requirement that the UK fully transposes the social acquis into UK legislation to protect the rights of workers, including a non-regression clause.
- The guarantee that negotiations deal with the specific situation of Northern Ireland and the Republic of Ireland, including setting an objective for the post-exit agreement to protect the Good Friday Agreement and ensure the continued rights of cross-border workers. Similarly, the negotiations need to address the situation of Gibraltar.
- The implementation of measures to assess the likely impact on jobs, living standards and rights of workers in Europe and the UK.
It is worth emphasising that the social “non-regression clause”, aimed at protecting social rights in the withdrawal agreement, is also called for by other organisations of civil society. Such a clause can already be found in some EU social directives.  It is based on the human right of the freedom of movement, which is enshrined by Article 3 TEU, or on the right to family life as set out in Article 8 of the European Convention of Human Rights of which the UK is a party just as all EU Member States. AEDH is in favour of the introduction of a non-regression clause within the withdrawal agreement so that the social “acquis” of every UK and EU citizen can be protected during and after the Brexit process.
Finally, the AEDH wishes to draw the attention of citizens and officials to two citizens’ initiatives dealing with the consequences of the Brexit registered by the European Commission. The first one called “EU citizenship for European: United in diversity instead of only jus soli and jus sanginis” aims at broadening the concept of EU citizenship. Its spokesperson call on European institutions to grant EU citizenship to those who have been infringed on this right due to the Brexit. They consider that the UK’s exit process is in breach of the “ever closer relationship between peoples” and that the concept of citizenship can be understood as independent from the national belonging to one member state. This initiative raises the sensitive issue of nationality and citizenship.
According to Sophie Duchesne’s work, one can observe a two-fold citizenship inside the EU. Given the increasing mobility of people within the EU territory, the “full” citizenship of nationals has progressively been differentiated from the “limited” citizenship of residents. The latter lose their political rights while moving, at least at the national level.
|The concept of « full » citizenship is put forward by the studies of Thomas Marshall. According to him, citizenship is the result of the three types of overlapping rights, namely civil rights (freedom of speech, of thought, property rights…), political rights (the right of vote is emblematic) and social rights.|
Due to the Brexit, numerous UK citizens who voted for the “remain” feel like their political and social rights have been violated. Their adherence to the European project, their faith in universal solidarity and their engagement to the democratic project around “postnational” citizenship make them request EU citizenship and its associated rights. These three criteria cumulated with cultural rights overcoming mere national borders, “are spelling the end of matching between political community and territory”.
Pursuing the same objective, the second citizen initiative called « Retaining European Citizenship”, urges the European institutions to find for UK citizens still wishing to participate in the European project a way to keep EU citizenship. AEDH regularly claims the recognition of social rights for all within the EU.  These rights, such as the right to access to the labour market, the freedom of movement and the right of residence, should not be limited to European citizens only. Therefore, AEDH supports these citizen initiatives aimed at protecting social rights.
In summary, negotiations will be rough. Both the sensibility and the scope of the issues are in sharp contrast with the limited timeline for negotiations. That is why Brexit deserves to be called “the most complicated negotiation of all times”. Nonetheless, this complexity must not make the negotiators forget the due respect of rights. The restricted timeframe cannot be an excuse: Respecting rights is a matter of choice. This is why AEDH calls on both the European Commission and the Council to protect the rights of citizens. Ambition is needed to protect rights under threat and to address the unstable situation of both Northern Ireland and Gibraltar. The European project is not dead as demonstrate the numerous initiatives of citizens trying to defend the rights EU has given them. These negotiations are a real opportunity to defend social rights. Therefore, the AEDH urges the institutions to do all they can to protect them and to work for an ever closer relationship between peoples.
 Treaty on the European Union, Article 50, 2nd paragraph.
 Presidential elections on 7 May 2017.
 Presidential elections on 4 December 2016.
 Le Monde, Violence contre les polonais au Royaume-Uni après l’annonce du Brexit, le 5 September 2016.
 Courrier International, Les polonais désormais premier groupe d’immigrés en Grande-Bretagne, 26 August 2016.
 Le Figaro, « 29 mars 2017 : le jour où le Royaume-Uni dit adieu à l’Europe », le 29 March 2017.
 Le Monde, Législatives au Royaume-Uni : May perd sa majorité absolue, 9 juin 2017.
 European Trade-Union Confederation, Press Release 31 March 2017, Brexit negotiations guidelines: ETUC calls for workers’ rights to be resolved rapidly.
 Etopia, Matthias Beaufils-Marquet, Et si le Brexit était une bonne chose pour l’Europe ?
 European Convention of Human Rights, Article 8.
 The adjective “ethno-nationalist” is used without negative aspect in anglo-saxon literature about the conflict. It describes a possible origin of the conflict whose nature is overlapping nationalist, cultural, ethnic and religious issues. It can be found in « Northern-Ireland after the troubles, a society in translation », C. Coulter and M. Murray, Manchester University Press, 2008.
 European Parliament, resolution on negotiations with the United-Kingdom following its notification that it intends to withdraw from the EU, 5 April 2017.
 European Trade-Union Confederation, Statement of the notification of the UK to withdraw from the European Union, 20 March 2017.
 European Commission, Press Release: The EC registers two European Citizens’ initiatives on the rights of European citizens after Brexit, 22 March 2017.
 Citizens Initiative, EU citizenship for European: united in diversity instead of only jus soli and jus sanginis.
 Sophie Duchesne, « Citoyenneté, nationalité et vote : une association perturbée », Pouvoirs 2007/1 (n°120) ?. P.71-81.
 AEDH, The European Social Pillar is not (yet) the on Europe needs, 22 May 2017.
 Politics Home, David Davis admits Brexit ‘May be the most complicated negotiation of all time’, 12 September 2016.