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BREXIT

Brexit: Supreme Court rules Theresa May can’t trigger EU divorce alone

MPs in Britain's parliament and not the government should trigger Article 50 to begin Brexit negotiations, the UK's Supreme Court ruled on Tuesday, backing an earlier decision by the High Court.

Brexit: Supreme Court rules Theresa May can't trigger EU divorce alone
Photo: AFP

Prime Minister Theresa May's Conservative government lost its appeal on Tuesday against a surprise High Court decision in November that ruled the government could not trigger Brexit negotiations without the backing of MPs in parliament.

The ruling by 11 justices resolved once and for all the row over who has the right to trigger Article 50 and start Brexit negotiations. 

Lord Neuburger read out the ruling at around 9.30 to a packed court room. He revealed that judges ruled by a majority of 8 to 3 that the government could not trigger Article 50 to begin Brexit negotiations without the backing of parliament.”

So MPs will now get the chance to vote.

Reacting to the verdict the main complainant against the government Gina Miller said: “Only parliament can grant rights to British people and only parliament can take them away…Parliament alone is sovereign.”

A spokesman for a group representing expats was also “delighted and relieved” with the ruling.

“We are the people most profoundly affected by all of this,” he said. “Everything that British citizens take for granted rests on being EU citizens.”

In a separate decision however judges ruled the government did not have to consult parliaments in Scotland, Wales and Northern Ireland before triggering Article 50.

The government said it was disappointed by the result but will comply with it.

Neuburger had earlier stressed that their ruling had nothing to do whether or not Britain should leave the EU or how the Brexit negotiations should be managed, but only on whether the government or parliament should trigger the divorce negotiations.

While “Bremainers” will cheer the verdict, experts see the landmark ruling as slowing down the process of Brexit rather than putting a halt to it. 

British PM Theresa May has been severely criticized for trying to bypass parliament and for keeping her cards close to her chest on her negotiation strategy.

(A lone protester outside the Supreme Court on Tuesday. AFP)

Tuesday's eagerly awaited Supreme Court verdict should force her to reveal more to parliament about her planned Brexit strategy.

The legal dispute centred around the famous Article 50 of the treaty of the European Union, which must be triggered for Britain to begin the official and painstaking process of divorce from the EU.

The government believed it had the right to officially inform Brussels it is leaving the EU via its royal prerogative – powers that technically belong to the Queen, but which are vested in the government. But lawyers for the claimants, two British citizens, and other interested parties argued that parliament must have the right to decide.

Theresa May has said previously that the government would trigger Article 50 to begin formal exit negotiations by the end of March 2017, however Tuesday's decision may scupper that plan.

A date must now be set for the momentous parliamentary vote.

Once Article 50 is triggered a two year process of negotiations between the UK and the EU, will begin in earnest, although many experts believe talks will rumble on for much longer.

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BREXIT

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Brexit really does mean that Britons are no longer EU citizens. Claudia Delpero looks at whether there's any other way they can keep their rights.

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Britons lost EU citizenship when the UK left the EU, on 1st February 2020. 

It is the first time the EU’s top court has rules on the matter, after a number of legal cases challenged this specific Brexit outcome. The decision also sets a precedent should other countries decide to leave the bloc in the future. 

What has the EU Court decided?

The Court of Justice decided on a case brought by a British woman living in France.

Before Brexit, she could vote and stand as a candidate in her town of residence, Thoux. But after the UK withdrawal from the EU, she was removed from the electoral roll and excluded from the municipal elections that took place in March 2020, during the transition period.  

As the mayor refused her appeal to restore the registration, she took the case to the regional court in Auch, which agreed to request an interpretation of the rules to the EU top court. 

Julien Fouchet, the barrister supporting her and several other cases on the EU citizenship of British nationals, argued that the loss of EU citizenship and voting rights was disproportionate. It would also be contrary to the EU Charter of Fundamental Rights, given that the woman also lost her voting rights in the UK, having lived abroad for more than 15 years.

Alice Bouillez, who has lived in France since 1984 and is married to a French national, could have applied for French citizenship, but did not do so because she said “this was not necessary” before Brexit and, as a former UK official, she had taken an oath of allegiance to the Queen.

On Thursday the Court of Justice announced the decision about her case. The court ruled that the “possession of the nationality of a member state is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status.”

The court therefore confirmed that British nationals automatically lost their EU citizenship as a result of Brexit and, as a consequence, Britons also lost their voting and electoral rights in municipal elections in the EU (unless the country where they live set different rules). 

What is EU citizenship?

EU citizenship was introduced by the Treaty of Maastricht of 1992, when borders were opening and the bloc was integrating economically after the end of the Cold War. 

Under the treaty, every person holding the nationality of an EU member state is a citizen of the Union. EU citizenship is additional and does not replace nationality, the treaty specifies. But this creates the first form of a transnational citizenship that grants rights across borders.

EU citizens have the right to access each other’s territory, job market and services under the principle of non-discrimination. If they are economically active, they have the right to reside in other EU states and be joined by family members, access healthcare at the same conditions of nationals (for emergency treatment also when travelling temporarily), obtain social security benefits and see their professional qualifications recognised.

Beyond free movement, at the core of EU citizenship there are also political rights, such as participating in the European Parliament election, voting and standing as candidates in municipal elections when living in other EU countries, receiving consular protection from other EU states outside the EU, and taking part in European Citizens’ Initiatives asking to the EU to legislate on certain matters. 

Which EU citizenship rights have Britons lost with Brexit? 

For British citizens who were living in the EU before Brexit, the Withdrawal Agreement protects some of these rights. Britons covered by deal have their residence, access to work and education, healthcare, social security and qualifications secured, but only in the country where they were living before Brexit.

But the right to free movement in other EU states, consular protection in third countries, and the political rights attached to EU citizenship were lost, the Court confirmed. 

For British citizens in the UK, the trade and cooperation agreement has preserved some social security rights and, in theory, the possibility to have professional qualifications recognized when moving to an EU country. These provisions however lack details and may take a long time before they work in practice. 

As the “European Union” no longer features on British passports, the possibility to access EU lanes at airports to skip passport control queues has also vanished. 

“The loss of those treasured rights has been clear to those of us living in the EU from the early days of Brexit. But for Brits in the UK, the realities of life outside the EU, and the consequences of Brexit, are only just dawning. Long queues at the borders, roaming charges, obstacles to working abroad, etc. are the new reality,” said Sue Wilson, Chair of the group Remain in Spain. 

While she said the court’s decision was “no real surprise,” she argued that “this is not the Brexit the public were promised, or that the majority voted for.”

Can British citizens get some of these rights back?

Julien Fouchet was disappointed at the Court decision and promised to continue the legal fight, bringing the case at the European Court of Human Rights (which is not an EU institution). 

Other two cases on the matter of EU citizenship for British nationals are still pending at the Court of Justice of the EU. One of them aims to determine whether EU citizenship is a “fundamental status” that cannot be removed but Thursday’s decision could have already provided the answer.

Another option to reconsider some of the rights is the renegotiation of EU-UK trade agreement, when it will be reviewed in 2025. 

Meanwhile, the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders. 

Applying for citizenship is so far the only option to regain voting rights, although not all EU countries allow dual nationality. 

Sue Wilson, who has long campaigned for the UK to stay in the EU, said: “There is only one way to restore the loss of our rights, and that’s to rejoin the single market, rejoin the customs union, and eventually, rejoin the European Union… Until that day, we will continue to be second class citizens whose rights have been diminished for the sake of an ideology.”

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