BREXIT and Its Consequences for the UK and EU Citizenship Or Monstrous Citizenship Jean Monnet Professor Ad Personam Elspeth
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BREXIT and its consequences for the UK and EU Citizenship or Monstrous Citizenship Jean Monnet Professor ad personam Elspeth Guild Queen Mary University of London, Law 1 Acknowledgements There are many people who have played an important role in the writing of this book. First and foremost I must thank my partner, Didier Bigo, Sciences-Po and Kings College London for all the wonderful discussions and debates about the subject and for his valuable insights from a continental perspective on many of the political issues. Our discussions about the image of the monster were central to the form this book has taken. Second, I must thank emeritus Professor Kees Groenendijk, Radboud University Nijmegen (NL) with whom many long discussions and debates have provided me with invaluable insights into the relations of the UK with the other Member States particularly in the field of free movement of persons. My Head of Department, Professor Valsamis Mitsilegas, has provided me with invaluable support and encouragement throughout the process and pushed me to write this book to present at my inaugural lecture, (five years after my recruitment) at Queen Mary University of London. He agreed to act as a discussant at the lecture providing me with important new insights which I have woven into the text. Similarly Professor Sionaidh Douglas-Scott agreed to be a discussant and from her deep knowledge of British constitutionalism, raised important issues about the nature of sovereignty in the UK which have deepened my thinking. Emeritus Professor Carol Harlow, LSE, kindly agreed to chair my inaugural lecture but went far beyond the exigencies of that role and both read and provide me with important comments and suggestions on the text. I must also thank Professor Marina Warner, All Souls College University of Oxford and Birkbeck College University of London, for the inspiration of her Reith Lectures 1994. Her deployment of the image of the monster has inspired my investigation into BREXIT. Finally, I must thank all my colleagues and students in London, Nijmegen, Paris and Bruges for their fascinating reflections, comments and questions which have enriched my thinking and for my editor, Lindy Melman, with whom is always a delight to work. Elspeth Guild September 2016 2 Table of Contents 1. Introduction 2. The Monstrous Negotiations 3. Monstrous Citizenships 4. Citizens and their monstrous families 5. Monstrous Fears 6. Conclusions 3 List of Abbreviations BREXIT: The referendum held in the UK on 23 June 2016 on whether to remain or leave the European Union – including the negotiations, campaign and after events around the voters’ decision Citizens Directive: Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC CJEU: Court of Justice of the European Union (used also for the ECJ – European Court of Justice as it was before 1 December 2009) ECHR; European Convention of Human Rights ECtHR: European Court of Human Rights EEA: European Economic Area EHRC: Equality and Human Rights Commission (UK) EU: European Union (including its predecessors: European Economic Community and European Community) EU 8: Czech Republic, Estonia, Hungary, Lithuania, Latvia, Poland, Slovakia and Slovenia EUCFR: European Union Charter of Fundamental Rights EU citizen: Citizen of the European Union IMF: International Monetary Fund ISIS: Islamic State in Iraq and Syria MEP: Members of the European Parliament TEU: Treaty on the European Union TFEU: Treaty on the Functioning of the European Union NATO: North Atlantic Treaty Organisation UK: United Kingdom 4 List of Cases European Court of Human Rights East African Asians v UK [1973] 3 EHRR 76 Court of Justice of the European Union (chronological order by case number) Case 43/75 Defrenne ECR [1976] 455 267/83 Diatta ECR [1984] 567 C-68/86 UK v Council ECR [1988] 855 C-370/90 Surinder Singh ECR [1992] I-4265 C-85/96 Martinez Sala ECR [1998] I-2691 C-192/99 Kaur ECR [2001] I-1237 C-291/05 Eind ECR [2007] I-10719. C-127/08 Metock ECR [2008] I-6241 C-135/08 Rottmann ECR [2010] I-1449 C-459/99 MRAX ECR [2002] I-5691 C-109/01 Akrich ECR [2003] I-9607 C-157/03 Commission v Spain ECR [2005] I-2911 C-34/09 Zambrano ECR [2011] I-1177 C-456/12 O 12 March 2014 C-457/12 S 12 March 2014 C-28/12 Commission v Council 29 June 2015 C-244/13 Ogieriakhi 10 July 2014 UK National Courts R (on the application of Baiai and others) v Secretary of State for the Home Department [2008] UKHL 53 Pham v Secretary of State for the Home Department [2015] UKSC 19. 5 Introduction “Monsters breed in this terrible playground of fabricated identity, and all the hostile strategems of labelling and differentiation… for the vindication of us against them… England against Brussels and Strasbourg.” Marina Warner, Six myths of our time – managing monsters the Reith Lectures 1994 This inaugural lecture examines the consequences of the UK vote on 23 June 2016 to leave the European Union on EU citizenship. The simple fact which appears to result from this vote is that within a fairly short period of time – not less than two years from the commencement of the departure procedure provided for in Article 50 TEU – British citizens will cease to be citizens of the European Union while the nationals of the other 27 will continue to have this status. Thus nationals of the other 27 Member States will continue to have the rights which attach to EU citizenship but British citizens will cease to have these rights. British citizens will retain only their British citizenship which is based on the principle of allegiance to the sovereign – the foundation of state sovereignty – not on the principle of rights as is the case with EU citizenship. So what was so terrible about these EU citizenship rights? This question is at the heart of my lecture. The construction and image of the monster and the monstrous form are my metaphorical frameworks to understand what happened to the EU project in the UK that led to the vote in June and what this means for all of us as citizens. St George is the patron saint of England, that part of the UK whose people were decisive in determining the outcome of the 23 June 2016 referendum.1 St George is normally portrayed slaying a dragon – he is the monster killer. Usually, he is mounted on a horse and his lance is piercing the monstrous dragon which has been the cause of so much suffering to the people, the English. The image of the threatening monster is central to English religious identity and the victory of St George over his monster is a fixture of the socio-political landscape of England. The 1870 mosaic in the Central Lobby of the Palace of Westminster which greets British members of Parliament each day when they enter depicts St George as designed by Sir Edward Poynter. St George stands in full armour, the slain dragon at his feet. The figure of Fortitude stands on his right carrying a club and a lion’s skin. Purity is on his left bearing white lilies and the saint’s helmet. In the iconography of the BREXIT campaign, the EU was presented as a truly monstrous entity, sucking out British state sovereignty from the British polity2 and enslaving the British 1 In England 53.4% of the votes were to leave the EU (15,188,406); in Northern Ireland 44.2% of the votes were to leave (349,442); in Scotland 38.0% of the votes were to leave (854,572) http://www.bbc.com/news/politics/eu_referendum/results visited 5 September 2016. 2 http://www.spectator.co.uk/2016/08/brexit-means-that-britain-will-be-boss-again/ visited 6 September 2016. 6 people with foreign laws.3 The vote to leave was presented as a vote for liberty and the independence of Britain as opposed to remaining in the thrall of the monstrous EU.4 Yet when one steps away from the sacred image of St George and his monster and one examines the more secular monsters of our common mythology and the stories we tell our children, the picture is quite different. Europa and Zeus in the form of her monster bull are positive images which produce Europe. Beauty discovers the excellent qualities of her beast and once kissed, the toad turns into a prince. Monsters can also be no more than our own misunderstanding of the qualities of others. Returning briefly, to sacred imagery, the hero of St George and the dragon depends on the belief structure of the viewer. The tremendous popularity of the image of St George in Haiti as documented by Metraux5 resulted from the presence of the dragon, Damballa, the serpent spirit in Haitian traditional belief. In one form of the story, Damballa, through his sacrifice, becomes divine and thereby the Great Master who creates the cosmos. For the Haitians, the dragon was the venerated subject of the image not St George. The monstrous and the monster are the frameworks of analysis which have been used by many social scientists to examine the citizen/immigrant divide. Marina Warner’s Managing Monsters Reith Lectures in 1994 has provided me with much inspiration for this discussion.