Bruxelles, 22 novembre 2018. Intervento di Barbara Spinelli alla Conferenza “The consequences of the Brexit on citizen rights and on the long-term European immigration vision” organizzata dall’ICHEC Brussels Management School.
If we want to grasp the impact of Brexit on citizens’ and workers’ rights, we must mentally detach ourselves from the scheme adopted in the EU-UK negotiation on the Withdrawal Agreement. This is not because the scheme is flawed or inefficient. In my capacity as co-rapporteur for my political group in the Brexit negotiations I endorsed such a scheme: it has consisted in the struggle to preserve the European rights (the so-called “acquired rights”) enjoyed by Northern Irish citizens (more than 1.8 million), by EU citizens in the UK (3.8 million) and by UK nationals within the Union (1.3 million). The total comes to almost 7 million people who either didn’t stand a chance to choose or voted Remain in Northern Ireland, and who are threatened by a radical erosion of rights. We need to mentally detach ourselves, by contrast, if we aim to analyse in depth the effects of Brexit and its complexity, and better understand why and how we got there and why citizens’ rights have become, together with the Northern Irish question, such an incandescent issue in the Brexit negotiations.
As concerns Northern Ireland, the reason couldn’t be clearer: the Good Friday Agreement contains provisions for birth rights of the ‘people of Northern Ireland’ to identify themselves as Irish or British, or both, and accordingly hold British and Irish (that is European) citizenship, without differential or detrimental treatment. If the whole set of rights connected to European citizenship is not granted by the UK-EU Withdrawal Agreement (including the right to be represented in the European Parliament, but this is my opinion), Northern Ireland will fall back into a pre-Good Friday Agreement scenario, characterised by hostility and war. The loss of rights in the case of EU citizens living in the UK doesn’t involve a whole nation’s destiny, as in Northern Ireland, but is also frightening: they risk becoming part of the “hostile environment” planned for third-country immigrants back in 2012 by the then-Home Secretary Theresa May.
I say “why we got there” and not “they”, the UK voters, because Brexit is a European issue. The Union as a whole is co-responsible for the monumental distrust towards EU policies and politics voiced by a majority of people in a Member State, and if the EU doesn’t grasp the nature and the roots of this distrust it is doomed to fail as a project for unification and solidarity.
So, I will divide my speech into two parts. In the first, I will emphasize the reasons that led up to Brexit, focusing on the question of rights in general. In the second part, I will analyse the question of preserving EU rights in a withdrawal scenario.
1) Let’s examine the first question: how and why did we get here? It’s the question posed by the association Compass, together with the Friedrich Ebert Stiftung (the title of the study by Compass is “The Causes and Cures of Brexit”, published last September by Neal Lawson). Most of the time, Brexit is described in a generic and politically biased way: what I mean – and what the study means – is the impoverished or inadequate vocabulary used by politicians – the so-called political classes – and by great part of the media. Words like nationalism, sovereignism, euro-scepticism, populism, which are used to explain Brexit, could easily appear in Flaubert’s Dictionnaire des Idées Reçues: they don’t explain anything, are derogatory, self-referential and shallow. The films of Ken Loach are much more telling and profound than most speeches by today’s political leaders or editorials of the mainstream press in Europe and the United States. Maybe some of you have seen Loach’s last film– I, Daniel Blake: it could have as a subtitle: Brexit downloaded. I was also struck by the title of his upcoming film, scheduled for release in 2019: “Sorry We Missed You”. I ignore the plot but the title is in every respect pertinent: here comes a European State that pretended to be the expression of a people’s discontent but plainly missed and betrayed them. The vote for Brexit is not explainable through the prism of Ukip propaganda on migration, or of the Tory Brexiteers propaganda of British unparalleled grandeur. There has been a Tory or Ukip Brexit, but there has also been a Brexit of despair and desolation, which has been exploited by Tory Brexiteers or Ukip but has little or nothing to do with them: I would call it the “dark backward and abysm” of Brexit, to paraphrase Prospero’s description of time in The Tempest.
Let us recall what happened before Brexit: the crushing of Greece by EU policies, austerity memoranda and intrusive troikas (the word, “crushing”, is not my own. It has been used by EU leaders, as testified by the then US Secretary of the Treasury, Tim Geithner, in his memoirs published in 2015. In February 2010, in the middle of the Euro Crisis, European leaders actually decided to collectively punish a nation for having gone bankrupt within a Eurozone whose architecture never took into consideration the possibility that a Member State could become insolvent. I quote Geithner’s description of the main leaders’ phraseology.: «’We’re going to teach the Greeks a lesson. They are really terrible. They lied to us. They suck and they were profligate and took advantage of the whole basic thing and we’re going to crush them.’ [That] was their basic attitude, all of them”. Even President Jean-Claude Juncker, who fully supported and implemented the crushing, has admitted last June 2nd – with much delay, and without blushing – that Athens had been hurt by the EU approach, with “the dignity of the Greek people trodden under foot” when left-wing Prime Minister Alexis Tsipras took office in 2015.
A large share of UK nationals voted for Brexit out of sheer despair concerning the massive loss of social rights. Taking back control meant for them having control over their own lives, as shaped after two world wars by the architecture of the Welfare State. If we look at the substance, using the sociological categories of Albert Hirschman, they chose not so much the road of “exit”, but of “voice”. The Welfare system was born during the second world war in England thanks to William Beveridge, who submitted a detailed plan for its foundation to Churchill – and who was by the way deeply convinced of the necessity of a European federation. But Welfare died in England at the hands of Margaret Thatcher and Tony Blair. Let’s not forget this vanguard role of the UK in both directions: the creation of Welfare and its demolition.
So, Brexit is a contradictory phenomenon: many voters embraced Leave thinking they would get more, not fewer social rights. In its Report on the State of the Nation in 2017, the UK Social Mobility Commission establishes that “There is a fracture line running deep through our labour and housing markets and our education system. Those on the wrong side of this divide are losing out and falling behind”. The divide is not just an economic or social one, write the authors of the Report: “It takes the form of a widening geographical divide. The Social Mobility Index reveals a growing gulf between our country’s great cities (especially London) and those towns and counties that are being left behind economically and hollowed out socially. England is a small country with a large and growing gap between those places that offer good opportunities for social progress – what we have called social mobility hotspots – and those that do not – the coldspots ».
Those who were lost and fell behind voted massively for Brexit in 2016, and it is revealing that the 30 regions described in the Report as the worst for social mobility – from Weymouth to Carlisle – all voted Leave. Seven of the poorest ten regions in northern Europe are in the United Kingdom – and all had substantial majorities voting for Brexit in the referendum. I quote a passage from a highly instructive article by Caroline Lucas in OpenDemocracy: “A poisonous cocktail of de-industrialisation, the financial crisis and an ideological assault on public services came together in the Brexit vote, and the genius of the Eurosceptic right was to blame the EU and immigration. When the Brexit campaign offered people an opportunity to “take back control”, it’s no wonder so many jumped at the chance”. And she concludes: “Yet those driving the government’s agenda are using Brexit to accelerate the very (neo-liberal) ideology that got us into this mess. They support policies that would make us more like the United States where, without the safety net of social security benefits, falling ill or being made redundant can quickly lead to homelessness”.
2) My second point concerns the loss of EU social rights. The link between the first point and the second is important, because in comparing the two problem areas we can see the extent of the dark backward and abysm of Brexit: the use and misuse of peoples’ resentments and feeling of dispossession and loss, the vicious betrayal of people like Ken Loach’s Daniel Blake. Last but not least, we can meditate the concept of sovereignism, another derogatory expression – as I said – frequently used by the present élites without knowing the reasons of its emergence in the political debate. Sovereignism is abusively conflated with nationalism or Euro-hostility, dodging the central question raised by the unclear, blurred frontiers between supranational, national and popular sovereignties. When you have EU institutions which impose policies, economic parameters or labor laws in contradiction with policy choices promised and voted for in national electoral campaigns, you inevitably infringe national and popular sovereignties. It’s a dilemma never really explained and resolved, with the consequence that all sovereignties are delegitimised: the national, the supranational, and the popular ones.
But let’s examine in detail, now, the likely impact of Brexit on EU-derived rights, focussing in particular on social and employment rights. I will first examine the loss of rights in the UK, and then the specific predicament suffered by EU citizens living in the UK and British nationals living inside the Union.
What a majority of right-wing Brexiteers really dislike in the European Union is the web of regulations and directives that constitute the EU project. When Theresa May speaks of a “Global Britain which thrives in the world”, she transmits the false image of a giant power feeling tied down, like Gulliver, by Lilliputians no larger than his fingers, and having only one overriding desire: to get rid of the continental Lilliputian, to be able to stir again and not have arms and legs “fastened” on the ground, as Swift puts it. Gulliver feels several slender ligatures across his body, and the EU with its rules and norms represents the ligature – the name today is red-tape – to get rid of. The migration issue was useful to get votes. Take back control was another watchword of the Brexiteers: probably the most ambiguous and deceitful one. In the final analysis, the real aim of the Tory Brexit is having a more deregulated and liberalised economic and social policy: the hidden subtext of the watchword – “take back control” – is the aspiration for less democratic control, fewer rules for the labour market, fewer obligations concerning fundamental rights.
All this is in reality delusional, and belongs to the magical thinking of the Tory Brexiteers: the EU policy is already significantly deregulated, and its social fabric has already been ravaged by austerity policies. Nonetheless, the UK Brexiteers continue to strive for the status of a giant unchained and want more than the current deregulation, first and foremost as social Europe and the rights of workers and citizens are concerned. I speak basically of rights derived from EU law (including its directives and regulations), as well as from the case-law of the European Court of Justice on social relations. Such rights concern not only the so-called post-Brexit citizens (EU citizens living in the UK and vice-versa) but also workers and citizens living in all the constituent countries of the UK, including Scotland, Northern Ireland and Gibraltar which voted with large majorities to remain (as we have seen, Northern Irish citizens have a way of getting off the hook: they can either choose European citizenship and remain bound to the beneficial ligatures of EU law, or – in case of a no-deal and of the rejection by the UK government of a special status for its province – hold a referendum on the reunification with the Republic of Ireland. Both ways are provided for in the Good Friday Agreement of 1998).
As I said, I’m fully aware that the EU is not a paradise for those who suffer today from unemployment, precariousness and exclusion (I prefer the word expulsion, used by Saskia Sassen). Tory Brexiteers want to get rid of the Court of Justice and its rulings, but it was the EU Court that ruled, in the Viking Line and Laval cases, that employers’ rights always trump workers’ rights. So did the Alemo-Parkwood case with regard to the directive on acquired rights. Jacques Delors admitted the absence of a social dimension of the EU project in his famous speech given to the TUC Congress in 1988. He said that any measure adopted to complete the internal market should not diminish the level of social protection already achieved in the Member States, and insisted on the necessity to struggle against the dismantling of the labour market and to provide better protection for workers’ health and safety on the job. He was in favour of the establishment of a platform of guaranteed social rights, containing general principles such as every worker’s right to be covered by a collective agreement and more specific measures concerning, in particular, the status of temporary work. What came instead – especially after the financial crisis of 2007-2008 – was a neoliberal agenda intent on cutting public pensions, applying downward pressure on wages, privatising public services and removing the safety net of benefits right across the EU. After many years of austerity, after Greece’s fiscal waterboarding and the loss of trust in the Union felt by so many citizens in the EU, it’s time to revalorize Delors’ objective. To recognise the truth of what he said in 1989, the year of the fall of communism in the East: “You cannot fall in love with the single market”.
At the same time, it remains clear that workers’ rights will be badly hit by Brexit: notwithstanding the intensified neoliberal agenda of the Union, EU-derived rights in employment exist and persist, and are manifold. The case-law of the European Court of Justice is highly contradictory: it gives priority to employers’ rights in the Viking Line and Laval cases, but rules in a totally opposite way in other rulings, like Deutsche Post in 2000, which recognises equality and protection against discrimination as a fundamental right which takes priority over the economic aims of the Treaty. Another example: in November 2017, the Court ruled in favour of a gig economy worker who never got a paid holiday in 13 years. Jason Moyer-Lee, General Secretary of the Independent Workers’ Union of Great Britain, observed that the judgement was “a striking reminder of the impending disaster for worker rights that is Brexit”. Part time work, work on demand and in general the gig-economy are protected by EU law much more than they will be outside the EU, thanks to specific directives: in particular the directive on working hours, as well as the directives on annual leaves, equal pay, maternity rights, parental leave, anti-discrimination laws, compensation for discrimination victims, temporary agency worker protection, health and safety. A report of the TUC in February 2017 has shown that wages will be 38 pounds a week lower, and other forecasts look even grimmer.
In an illuminating advisory report by Professor Michael Ford, drawn up at the request of the Trade Unions and published in March 2016 with the title “Workers’ rights from Europe: the Impact of Brexit”, the erosion of social rights following UK’s exit is described as unavoidable. Provisions especially vulnerable to repeal in the name of deregulation or protecting business, according to Professor Ford, include among others “legislation on collective consultation, which hardly fit with the current Government’s vision of the labour market; working time rules (a persistent thorn in the side of the UK Government, both Conservative and Tony Blair’s New Labour); some of the EU-derived health and safety regulations, the impact of which on employers the last government already sought to reduce; parts of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE), from which the Government has already tried to remove some ‘gold plating’; as well as the aforementioned legislation protecting agency workers – which was long resisted by the UK and which is in contrast with preferences for a ‘flexible’ labour market – and more generally the protections given to other ‘atypical’ workers, alongside important elements of discrimination law to which businesses object most strongly, such as uncapped compensation or high levels of liability for equal pay.
This being said, the Withdrawal Agreement as it is now represents without doubt a safety net, especially as regards the jurisdiction of the Court of Justice covering EU citizens in the UK, even though it will be time-limited, hence not guaranteeing life-long protection to EU citizens in the UK as expressly promised at the beginning of the negotiations. After the transition period, on 31st Dec 2020, the UK will most likely cap numbers of migrants, as it indicated in a leaked paper revealed in September 2017. Low-skilled EU workers will be particularly hard hit by the restriction. And work permits will be allowed for occupations where there is a shortage of workers: Britain will “come first” in a systematic way.
That’s why the European Parliament had asked the EU negotiator, Barnier, to incorporate in the Withdrawal Agreement as much as possible of existing rights linked to European citizenship and free movement, as well as to include fundamental rights and non-regression clauses in the future trade agreements: thanks to these pressures and despite manifest shortfalls, significant progress has been made.
Why this insistence on single rights enjoyed until now by citizens of EU Member states – as regards among many other things the mutual recognition of qualification, the rights of residence of family members, as well as specific rights like the free movement of UK nationals in the EU-27 or a declaratory system of registration by EU citizens for the new “settled status” (in opposition to the so-called constitutive registration  –- the last two battles have been lost) and on their punctilious incorporation in the text of the Withdrawal Agreement? Because contrary to the assurances given by the Leave campaigners during the referendum and immediately after, these and other EU rights cannot be protected adequately and in full, once a Member State has exited, unless the exiting State is bound by an international treaty (that’s the case, as we have seen, for the Good Friday Agreement). As a consequence, the rights cannot be automatically called acquired (or vested): if EU law and the EU Treaty no longer apply, they can be revoked and cease to be “acquired” life-long as happens in EU law (since the 16th century, the so-called “Henry VIII clause” allows the executive power to amend primary legislation by secondary legislation).
This means that such rights are lost, if not properly safeguarded: they are not protected by international law, notwithstanding the repeated claims of Leave campaigners. Article 70 of the Vienna Convention on the Law of Treaties provides that termination of an international treaty “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”, but the parties concerned are the States, not the individuals. Moreover, other international treaties containing social rights and co-signed by the UK (for example the Conventions of the International Labour Organisation – the ILO) give workers far less legal protection than EU law against any deregulatory-minded executive. The same applies to the European Convention on Human Rights (ECHR), because it mainly protects civil and political rights rather than socio-economic rights. It does not cover many important elements of the working relationship, such as the rights against discriminatory treatment in all aspects of the work relationship (including pay), rights to maternity and parental leave, protection of part-time, fixed-term and agency workers, working-time protections, and almost all those regulated at present by EU social law.
What is clear, and the advice drawn by Professor Michael Ford is very instructive on this point, is that EU law and the EU treaties (including the Charter of fundamental rights) are distinct from many other international treaties to the extent to which they give individuals rights ‘which become part of their legal heritage’. All this leads to an indisputable conclusion: post-Brexit citizens will have only the international treaty codified in the Withdrawal Agreement, as a legal reference to protect the legal heritage represented by the rights derived by EU-law. The House of Lords reached the same conclusion, and in a very clear way, in December 2016: “In our view EU citizenship rights are indivisible. Taken as a whole they make it possible for a EU citizen to live, work, study and have a family in another EU Member State. Remove one, and the operation of others is affected. It is our strong recommendation, therefore, that the full scope of EU citizenship rights be fully safeguarded in the withdrawal agreement”. 
THE WINDRUSH GENERATION – A TEST CASE
My last point concerns the scandal of the Windrush generation, revealed last April thanks to a former Home Office employee who decided to blow the whistle. I mention the scandal at the end not because I consider it less important or secondary, but because it encompasses and clarifies all the problems, pitfalls, and betrayals of trust described above.
I will try to summarise the facts, as disclosed essentially by The Guardian. The Windrush generation are people who arrived in the UK after the second world war from Caribbean countries at the invitation of the British government. The first group arrived on the ship Empire Windrush in June 1948. What happened is that an estimated 50,000 people faced the risk of deportation if they had never formalised their residency status and did not have the required documentation to prove it. Some children, often travelling on their parents’ passports, were never formally naturalised and many moved to the UK before the countries in which they were born became independent, so they assumed they were British. In some cases, they did not apply for passports. The Home Office did not keep a record of people entering the country and granted leave to remain, which was conferred on anyone living continuously in the country since before 1 January 1973.
Cases have accumulated of individuals seeking NHS treatment, passports, jobs or housing only to find themselves having to prove their right to live in the country where they have been legally resident for more than 45 years, or risk being deported. Harrowing stories have emerged of individuals being made homeless, jobless and stateless, after they failed to produce proof they were never given in the first place. One man suffered an aneurysm which he believes was brought on by the stress the situation caused him, only to be presented with a bill for £5000 for his NHS treatment – again because his paperwork didn’t measure up – while also losing his job and his home. He was left on the street. As it turns out, the one source of evidence that might have put a stop to this torture – the landing cards that recorded arrivals from the Caribbean until the 1960s – was erased by the Home Office in 2010. The Home Office destroyed thousands of those landing cards, despite staff warnings that the move would make it harder to check the records of older Caribbean-born residents experiencing residency difficulties. The Home Office and British government were further accused of having known about the negative impacts that their new migration policies were having on Windrush immigrants since 2013, and of having done nothing to remedy them. I quoted parts of the Guardian’s investigations on the subject, and take the opportunity to recommend also the outstanding articles – in the same newspaper – by Claude Moraes, President of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament.
I emphasise the importance of the scandal because it sheds light on the driving force behind the Tory or Ukip Brexiteers. The whistleblower said he noticed a change in approach to these cases after the announcement of a policy, set out by Theresa May in 2012-2013, when she was home secretary, to “create a really hostile environment for illegal migrants”. Her plan is extremely restrictive, especially as regards provisions which require employers, NHS staff, private landlords and other bodies to demand evidence of people’s citizenship or immigration status.
I generally avoid quoting Kafka, but his description of the insanities of paperwork and bureaucratisation is more than appropriate. On his thirtieth birthday Josef K., the chief cashier of a bank, is unexpectedly arrested by two unidentified agents from an unspecified agency for an unspecified crime. The first chapter of The Trial begins with the words: “Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested”. That’s the reason why the scandal has been described as “Weaponising Paperwork” by William Davies, Co-Director of The Political Economy Research Centre in London: a scenario in which judiciary and bureaucracy “collapse into each other”, killing any hope and practice of justice.
The first act of the drama begins with the 2014 Immigration Act, which formalises Theresa May’s aim to create the “hostile environment” and makes it harder for illegal immigrants to work and live in the UK. Landlords, employers, banks and NHS services are forced to run immigration status checks. “The policy – writes Davies – pushed the mentality of border control into everyday social and economic life”.
Then comes the second act: the 2016 Immigration Act further extends the former act, introducing tougher penalties for employers and landlords who fail to play their part in maintaining the “hostile environment”, and adding to the list of so called “privileges” that can be taken away from those who cannot prove their right to live and work in the UK.
A key feature of the 2014 Act was that it empowered the Home Office to deport people more quickly and cheaply, avoiding lengthy and repeated appeals. Three years later, on 14 June 2017, the ‘deport first, appeal later’ provision was ruled unlawful by the Supreme Court.
The recent publication of the UK Home Office concerning the prospects of the settled scheme entitled “EU Settlement Scheme: Statement of Intent” is equally alarming. It clearly states that the future immigration rules will be adopted as secondary legislation, hence allowing any future UK Government to make changes without the need to have a consent from the Parliament. It’s again the “Henry VIII” clause.
Furthermore, a new data protection bill has been recently adopted in UK and it excludes the application of the guarantees provided by the EU General Data Protection Regulation (GDPR) for immigration purposes. On top of it, the position of the Tories regarding the European Convention on Human Rights is well-known.
The third act is Brexit itself, followed by the moment of truth unveiled by the Windrush scandal.
We don’t know the following acts, nor the end of the “hostile environment” story. A detailed Withdrawal Agreement would certainly represent a progress, protecting millions of EU citizens in the UK and vice-versa, including Northern Irish citizens whose European rights are confirmed in the Withdrawal agreement and – in case of a no-deal scenario – safeguarded by the Good Friday Agreement. Without the Withdrawal agreement, EU citizens in the UK and British nationals in the EU-27 would be thrown down headlong from a legal limbo into a legal Hell. That’s why I said that the Withdrawal Agreement represents a safety net despite its evident shortcomings.
I ignore what will happen in Westminster and in the Tory Party, where a sort of political civil war is going on (the dogfight could be dubbed “Wolf Hall”, echoing Hilary Mantel’s novels). More generally, I would warn against speaking of a “happy ending”. All the deep social reasons leading to Brexit (despair, distrust, a sense of dispossession, the loss of sovereignty or control over oneself – or as Foucault might have put it: of mastery over oneself), and all the political and media misuses of such discontent (hostile-environment plans, disinformation, paperwork weaponised, disregard for individual and collective rights) remain, as one of the biggest challenges for future generations not only in the UK but in the whole of Europe.
 Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States
 “Under a constitutive system people have to successfully apply in order to obtain a residence status. In case of rejection, an applicant will have no document certifying their status; as a result, they will lose all entitlements and ultimately face deportation. The consequences of not obtaining a ‘settled status’ document are thus far more serious than not obtaining a permanent residence card under EU law. In a declaratory system, absence of a document does not mean that you are not entitled. Even if your application is rejected you might still be able to stay on a temporary basis, or might be able to return under free movement provisions” (Stijn Smismans, Professor of Law, School of Law and Politics, Director of the Centre for European Law and Governance, Cardiff University). Cfr. http://eulawanalysis.blogspot.com/2018/06/brexit-and-eu27-citizens-rights.html
 The political declaration setting out the framework for the future relationship between the EU and the United Kingdom, approved on November 22, mentions the ECHR in very limitative terms, in article 7: “The future relationship should incorporate the United Kingdom’s continued commitment to respect the framework of the European Convention on Human Rights (ECHR), while the Union and its Member States will remain bound by the Charter of Fundamental Rights of the European Union, which reaffirms the rights as they result in particular from the ECHR” (my italics).