The Legal Implications of Brexit: mechanics, criminal repercussions, and perhaps enhanced protection of rights #EUDebateNI

Lord Alderdice introduced the conference on The Legal Implications of Brexit, the third of a series of EU Debate NI events to look at different aspects of the debate around whether to remain or leave the European Union. In his opening remarks he expressed his worry that the current level of debate was not “a thoughtful engaged conversation” about the consequences.

The conference was organised by the Irish Centre for European Law (ICEL) and the Centre of Democracy and Peace Building.

03 Sir David EdwardSir David Edward spoke at length about David Cameron’s agenda for negotiation and the results of his deal under the four headings of economic governance, competitiveness, sovereignty and immigration.

He went on to examine Article 50 and the mechanics of withdrawing from the European Union. He noted that while the UK will be chair of the European Council in 2017, they wouldn’t be allow to participate in its discussions if they were in the process of withdrawing. And there is neither provision for change of mind during negotiations, nor provision to withdraw your notice of withdrawal (should a state change its mind).

He briefly examined the Norway, Swiss, Turkey, Korea/Mexico and the WTO options for Brexit, finishing with a quote from Exodus chapter 8 verse 28 “I will let you go into the wilderness to offer sacrifices to the LORD your God. But don’t go too far away.” (Later someone quipped that while the Promised Land was found, that might not be the case for the UK leaving the EU.)

Brian Doherty is the former head of the NI Government Legal Service (devolved) and he spoke about how Brexit would affect NI’s devolved settlement. Currently, the NI Executive can only legislate and act in a manner which is compatible with EU law, the Human Rights Act (including ECHR standards) and anti-discrimination laws (again legislation from EU).

He noted that the introduction of physical checkpoints along the 499km land border would “almost inevitably” lead to a resurgence in smuggling activity. A full border would “be anathema to the notion of operating in a single European market and to progressing an all-island market, both established long term areas of endeavour for the NI Executive in tune with the basis of the Good Friday Agreement”.

Claire Archbold (Deputy Head NI Government Legal Services) spoke about how extradition and cross-border criminal cooperation might be affected by the a change in UK’s relationship with the EU.

In a trans-national world, criminal justice problems cross borders.

IMG_7093The European Arrest Warrant “on balance … provides a faster, simpler surrender processes”. There’s no ability to refuse to surrender a state’s own nationals (though conditions can be impose). There’s a time saving: 6 months of process instead of 12 months). Though the EAW is perhaps overused by some countries (eg, chasing up the theft of piglets).

Between 2009 and 2014 the UK requested extradition of 103 Irish nationals, resulting in 94 arrests. Ireland made 247 requests for extradition of individuals in the UK. PSNI made 49 requests for the extradition of individuals from other countries in that period.

She also outlined implications on deportation, smuggling (of goods and people), human trafficking and civil justice.

After a Q&A, Hon Ms Justice Fidelma Macken introduced the second set of speeches with some claims to illuminate our understanding of the EU.

Almost every piece EU regulation is passed by all the legislatures (including the UK).

  • In the event of Brexit: in the 40,000 pieces of legislation accumulated over the years since 1973 that will have to be reviewed to see if they’ll continue as national legislation, need to be amended, or got rid of.
  • Of the 500 million population of EU countries, 55,000 people are employed by the EU institutions; [0.011% and not 0.05% as she stated]
  • Wouldn’t people in NI who have adopted Irish citizenship retain all kinds of rights as EU citizens post Brexit, while those who haven’t taken up Irish citizenship would remain without those same rights.

08 John LarkinAttorney General for NI, John Larkin QC, began his address with the stark statement:

I think that not only would the protection of fundamental rights and liberties not be diminished by a United Kingdom withdrawal form the European Union, but I think there is a prospect that the protection of fundamental rights and freedoms would actually be enhanced by such a withdrawal.

He went on to discuss Opinion 2/13 of the European Court of Justice, which is about the access of the EU to the ECHR [background]. In John Larkin’s view, Opinion 2/13 is “riddled with errors” and legal wonks will enjoy his treatise on five of the errors that he highlighted and examined in the course of his speech.

Finally lawyer John Temple Lang discussed the creation of a customs and immigration frontier.

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  • chrisjones2

    …..yes…staying in the EU might offer the appalling vista of women having some tights over their own bodies and that can never be allowed. God wouldn’t like it

  • Graham Parsons

    Did they charge by the hour for this advice? Has John Larkin ever said anything sensible?

  • Angry Mob

    Well, here’s a mad thought, he may actually be right y’know. Most workers rights laws adopted by the EU are drafted by the ILO; the acceptance of these laws is prerequisite for access to some markets. This isn’t to mention the fact that the UK has a long history of granting rights to it’s people, I believe that a workers right law which pre-dated us joining the EU was initially used as a template for the laws that we have today.

    On human rights laws, I’m not really a fan of giving prisoners the vote or letting Jihadi John’s roam the street as deporting them infringes their rights, there is a clear need for reform.

  • Kevin Breslin

    Well the main rights in jeopardy are free movement and freedom from discrimination because the Leave side want to discriminate against EU workers who are Eastern European, they want to stop EU workers staying and working here.

    A huge arguement for Leave is that the UK can take away worker’s rights, both migrant and domestic, you only have to look at senior Leaver IDS for what this movement does to help working class Brits off their knees. Nothing. That’s the New Deal for the unemployed these days nothing but complaints and platitudes about migrants taking jobs, half of whom aren’t from the EU which they let in deliberately.

    There is very little appetite in the job market for a professional xenophobe as that’s the only skill being developed here!

    When it comes to crackdowns on rights for migrant workers, do you honestly think free movement rights and freedom from discrimination would still apply to Britons in continental Europe if that happened?

    The United Kingdom is not going to be treated like a special case, it wasn’t before it joined the EEA.

  • Angry Mob

    Again we are talking in if and buts; however as the official leave camp won’t be designated until the 14th April we are in no position to say what they wan’t as they don’t exist yet, so I’m not sure how you can infer the above, which makes your entire comment moot.

  • Saint Etienne

    “In his opening remarks he expressed his worry that the current level of debate was not “a thoughtful engaged conversation” about the consequences.”

    Oh Lord Alderdice how today’s Alliance miss you. He’s right. I’m no fan of Larkin sticking his nose in local politics but what he had to say on the European Court of Justice was genuinely illuminating.

    “Wouldn’t people in NI who have adopted Irish citizenship retain all kinds of rights as EU citizens post Brexit, while those who haven’t taken up Irish citizenship would remain without those same rights.”

    Larkin would also appear to have blown the above point from the retired judge of the Supreme Court of Ireland and a former judge of the European Court of Justice out of the water too. Good day out of the office for him.

  • Kevin Breslin

    One major spokesperson in Leave wants to scrap the Human Rights Act, Others talk about controlling borders by limiting migrants rights to come to the UK and action which could provoke retaliation by reciprication on the rights of Britons abroad.
    Critics of the EU within the British Government attack the fact they cant make doctors work even longer hours because of the Working Time Directive, something that would no longer apply if the UK left the EU.
    Do you believe the solution to the UK’s productivity problems and public sector provision is scrapping this legislation limiting hours working?

  • Angry Mob

    In leave what, Leave. eu, Vote Leave? Most of the figureheads while well intentioned are somewhat deluded in some of the details, again there is no official leave campaign yet so we don’t know exactly what each campaign will advocate. Also if the vote actually goes for leave, this does not mean that their vision will be carried out as the ball will be back firmly in the governments court to negotiate our exit.

    The Working Time Directive would need to repealed before anything like that did happen as well. Back to dealing in FUD here, try to focus on the positives of remaining in the EU, if you can think of any.

  • chrisjones2

    The HRA argument is a red herring

    ECHR has little to do with the EU – it is the creature of the COUNCIL OF EUROPE not the EU.

    The Council pre-dates the EU and is based in Strasbourg. It has almost 50 members including states like Turkey and was founded at the end of WW 2 with full British membership and support – Churchill was one of its proponents .

    It owns the European Convention on Human Rights and the European Court of Human Rights and also coordinates a huge range of areas of law enforcement and judicial co-operation.

    Its bugger all to do with the EU and BREXIT will not affect our relationship with it in any way

  • chrisjones2

    They can claim all the rights they want in the EU – but if the UK leaves that is nothing to do with us

  • Saint Etienne

    Did Larkin not state the European convention on human rights is not restricted to EU membership, and further the European Court of Justice is without reproach inside the EU?

    Given that the retired Dublin judge failed to state exactly what rights we’d be missing out on, it seems likely many of them would in fact be from the lists of red tape that much of EU legislation is.

  • Kevin Breslin

    There’s absolutely no commitments to keep the working time directive or make any vow to let the public have referendums over international treaties as is the case in the Republic of Ireland. So I don’t see what positives are coming from the Leave Organisations, just a load of negatives and platitudes.

    There are no demands and promises to movements to move the place towards the Swiss style direct democracy, just to remove a layer of democracy because they cannot tell the difference between democracy and bureaucracy.

    The positive case for staying in has already been made to me by people who take advantage of the common market, who take advantage of the European networks and the trade agreements that it has negotiated as one of the strongest economic trading blocks in the world. The case is made by liberties to travel, work and retire with protected rights in other countries. The case is made by people who have founded businesses that have sourced supply lines and customers in a common market which faces no borders in doing business. The case is made by hoteliers and tourist companies who have benefited from the extreme ease of Europeans to travel to the United Kingdom and spend their money.

    The UK has gotten a lot of what it wants from the European Union, greater ease of doing business, greater freedom to trade and travel, greater networks in science and business to develop, a single market where no country or country person faces discrimination for activities they haven’t done.

    Yes there are countries beyond the Urals, the Mediterranean and the East Atlantic, and the European Union was never designed to stop European nations from improving their trade with these nations. The European Union is the biggest manufacturing block in the World, it has a strong international reputation for creative industries and science, it has a secure food supply in comparison to most other continents and one of the strongest environmental reputations.

    It allows nations to tackle huge problems like the refugee crisis.

    Working from Europe helps bring a foothold for trading in other countries outside of Europe, an argument made by the Leave side is that outside the EU can get advantageous FTAs but there are strong FTAs with G20 countries that are simply not being used to their potential, South Korea and Mexico for example.

    Switzerland is a great European country, I admire its direct democracy, I admire its capacity to engineer a stressful amount of trade treaty bureaucracy that supports its economy, I naturally praise its international neutrality as well and its character to actually make a mandatory coalition work.

    However there is no will or desire to try and bring any of these principles into Irish or British politics, the European Union is a lot more rough edged and patch worked. The people of the European Union have opted for pessimistic pseudo-Eurosceptics to run the place, but I believe there is a growing movement for real reform because these movements can learn from one another and not be stuck in a narrow nationalistic mindset.

    I don’t think there are any democratic gains from leaving the European Union, the undemocratic parts such as ministers and commissioners will remain, but the MEPs will go. Ministers face no democracy going into a submit, Commissioners are nothing more than permanent ambassadors/representatives … NGOs on the government payroll. I see nothing being offered by the Out movements that offer more democracy than I see.

  • Angry Mob

    Likewise there are no commitments from the government in the event of a leave vote that they will remove the WTD, so yet again you are scaremongering.

    Do you even know the origin and meaning of the word democracy? Neither the EU or the UK for that matter is true to the meaning of the word, the closest we get is representative democracy. Lack of direct democracy in the UK is not a reason to layer yet another greater lack of true democracy upon ourselves via the EU, it is rather another reason to leave.

    So you berate the UK for not being democratic enough, so your solution to this it to remain in the undemocratic EU where even if the UK was to change its system of governance it would not make one iota of difference as we would still be under the thumb of the EU. Sure, the EU could reform but given it’s drive to ever closer union that seems extremely unlikely. The best chance we have is to leave the EU and reform our own system of governance.

    The same positive case can be made for striking out and joining in the EEA/EFTA option. We retain all the benefits of the single market access, whilst there will be some pre-requites for market access we will be free to implement the majority of our own laws once again.

    “It allows nations to tackle huge problems like the refugee crisis.”
    If you think the EU is dealing with the refugee crisis I would really hate to see what it would be like in your eyes if it wasn’t dealing with the refugee crisis. The refugee crisis is just another failing of the EU, a convenient crisis where the answer is always more EU.

    After what do you really have, if all you have is democracy without sovereignty?