Factchecking the EU debate
After months of deliberation and consideration the public of the United Kingdom will take to the polls for a referendum on whether the UK should remain a Member State of the European Union. We have politicians of the ‘exit’ campaign all over the different formats of media articulating their opinions on why you should agree with them, then the media, particularly newspapers, attempting to sway you. However, after reading and listening to these arguments I am utterly appalled on how erroneously the European Union is being conveyed. My purpose of writing this is to demonstrate how the most common errors stipulated actually operate and then delve into the potential effects a leave result could have for my homeland, Northern Ireland.
The first emotive issue regarding the European Union is that of immigration. It can be extremely frustrating to read headlines along the lines of ‘We have no control of our borders’; ‘The EU lets jobless persons in’ and so on. One of the fundamental four freedoms of the Internal Market of the European Union is free movement of persons. However, this has restrictions for the protection of the Host State. Article 45 Treaty of the Functioning of the European Union (TFEU) lays the foundation of the freedom that causes domestic controversy.
The European Court of Justice (ECJ) in 1989 via the case of Antonissen established that persons of the European Union had to have the freedom of movement in order to find work in alternative Member States and not having access to this freedom would ultimately restrict their ability to find work, however – the ECJ did stipulate that Member States retain the right to expel a person if they do not have realistic job prospects after a reasonable time period. Additionally- any new Member States have a regime restricting immediate access to the four fundamental freedoms, normally for seven years: this is so for Croatia who joined in 2013, and will only have these restrictions lifted in June 2020. So is the European Union to blame for the United Kingdom’s apparent immigration crisis, or is it the United Kingdom itself who fail to exercise a sovereign right?
Under this freedom and European Union Citizenship, a citizen and their family members may stay in another Member State for up to three months, and MAY ONLY stay longer if they are; economically active or have sufficient resources not to become a financial burden on the state. It is only after five years that they will be entitled to permanent residence. Also, a Member State can restrict movement via the justifications of; Public policy, safety and health; along with public service positions. It is evident that there is a balance between the functioning of the Union and the interest of Member States, which brings us to how the European Union is legislated.
To the phrase ‘the European Union is legislated by non-elected persons’, the rebuttal springs to mind: ‘elections of the European Parliament’ which is elected by citizens of Europe. The Parliament works together with the European Commission [who has many functions] in drafting new legislation. The Commission is also considered the police force of the European Union that will bring other institutions and Member States to the ECJ if they not abiding to European Union law. Both institutions have to agree on proposals before it can become law. Interestingly anyone can bring a proposal to the Commission for new legislation, including Citizens.
A final issue that is completely conveyed incorrectly is that of European law taking precedent over domestic (the media don’t articulate it that well). This has some truth to it though but it is not black and white. Firstly, the European Communities Act 1972 allows the implantation of European Union law into domestic law whenever needed, therefore it could be argued that it is Westminster’s will to allow ‘European supremacy’. However – it is agreed that whenever a Member State joins the European Union that they agree to limit their sovereign rights in order for the European Union to function, otherwise how could it exist if Member States could do whatever they want? The ECJ can only set aside domestic legislation whenever there is a limitation of European law at the centre of the issue, and domestic legislation will only be suspended on that issue, it is not overridden on a permanent basis.
This is called supremacy and originates from the case of Van Gend. The public should be made aware that the United Kingdom is one of the countries (Germany being another) considered being difficult when it comes to implementing European law into domestic legislation. For example, in Germany the Bundesverfassungsgericht (German Constitutional Court) recognised that via the Maastricht Treaty that the European Union had supremacy on a conditional basis. However, this acknowledgment of supremacy did not stop the Court from articulating the final right of review will be at the discretion of national courts when it is suspected that the European Union was acting beyond its powers. The view of the media is clearly erroneous as it conveys the ECJ as this overruling beast.
Also, regarding the four freedoms of the Internal Market: they can be restricted for a number of reasons including public reasons already mentioned, but also for environmental reasons. In 2005 a case with the restriction of jet skis on a Swedish waterway was the issue. The government restricted the time of day that the public were permitted to use them on these waterways out of the interest of wildlife and riverbank plant life, the ECJ agreed that this was legitimate rationale for doing so. Here is the ECJ helping public action against a company! Not all about money is it?
However, the potential effects of a Brexit will have ramifications for Northern Ireland. The Royal United Services Institute stipulated that the negative consequences of leaving the European Union are extremely severe for Northern Ireland due to our fractious internal politics, enduring terrorist threat and weak domestic economy, and that the troubled jurisdiction of the United Kingdom could once again be ‘a major political, security and economic crisis for future governments in Westminster’.
If there is a result to leave it will bring into question the border between the two states on the island of Ireland, a major constitutional issue for Northern Ireland. The Republic of Ireland is also the North’s largest external trading partner, with 2015 figures showing that the North exported £2.1 Billon and imported £1.6 Billion (Report) , and all without tariff barriers. Another constitutional issue is that what if the majority of persons in Northern Ireland and say Scotland want to remain, but are forced to leave due to the larger population of England/Wales voting leave. That would force two states out against their will, resulting in a constitutional crisis.
To encapsulate- The referendum fundamentally comes down to the United Kingdom regretting a decision they made just over 40 years ago to surrender their supremacy and to give all that away due to the arguments of Boris Johnson and Michael Grove would be one of the worst in a generation. Status as a Member State provides so many unsung benefits: the four freedoms, widened support and insight to a greater decision making process, human rights advantages and product quality standards etc. What is rarely said is that it took the United Kingdom three attempts to even gain entry to the Union given the opposition of Charles de Gaulle before he fell from power in 1969, so they were certainly passionate about getting in in the first place. I implore you to vote remain on Thursday 23rd June!