Nigel Farage – MDX Minds

Professor Laurent Pech, Jean Monnet Chair of EU Public Law and Head of the Law and Politics Department at Middlesex University, attempts to answer 10 key questions arising from the UK’s decision to vote Leave.

1. Is the referendum result binding?

The short answer is a clear no. The referendum is not legally binding on Parliament as a matter of British constitutional law. In other words, the referendum result was of an advisory nature only. The British Parliament could have decided that the result would be binding, but it purposefully declined to do so when it adopted the EU Referendum Act 2015.

2. Should one expect any immediate legal consequences from last week’s vote to leave the EU?

Legally speaking, the referendum result, in and of itself, leaves the status of the UK as a Member of the EU and the status of EU law in the UK unchanged. As the Referendum is of an advisory nature only (see above), the right of EU citizens to reside and work in the UK, as guaranteed and organised in EU law, remains in effect.

It is, however, true that, theoretically speaking, the British Parliament may decide to adopt legislation in violation of EU law. This would almost certainly lead to retaliatory measures in other EU Member States, and, as such, this scenario is highly unlikely.

3. Could EU citizens currently residing and working in the UK or British nationals residing and working in other EU Member States lose their EU free movement rights?

There is no doubt that EU free movement law will continue to cover UK and EU nationals until such time as a withdrawal agreement is concluded (see below). The most likely outcome of any future withdrawal agreement is that the situation of EU and UK residents from a legal point of view will not change.

It has been argued during the referendum campaign that EU citizens, including UK nationals in other Member States, having exercised their free movement rights cannot be deprived of their ‘acquired rights’ under international law regardless of whether a withdrawal agreement can be negotiated between the UK and the EU-27. However, this claim is legally doubtful, and one should therefore expect a future UK/EU agreement to clarify this matter.

4. How does an existing Member State withdraw from the EU?

The procedure for a Member State’s departure is laid down in Article 50 of the Treaty on European Union. This provision sets out the only lawful procedure for an existing Member State to leave the EU. Article 50 has never been activated before, and so there is no precedent for what may happen.

In order to be activated, the departing Member State must notify the other Member States of its intention to leave the EU. Once this notification has been made, an agreement must be concluded within a two-year time frame. At the expiry of the two-year period, and in the absence of any agreement to extend that period, the departing country will cease to be a Member of the EU for all intents and purposes. As yet, the UK has not triggered the Article 50 process, and so the two-year period has not begun.

5. When will the UK activate Article 50?

This is by far the most important legal issue to be decided in the short-term. David Cameron initially promised to promptly trigger Article 50 in case of a vote to leave, but he has since indicated during his resignation speech that he will leave this decision to the next Prime Minister. Among EU Institutions and other Member States some, including European Commission chief Jean-Claude Juncker, have expressed the wish for the UK to begin the process immediately. However, legally speaking, the EU cannot force the UK government to activate Article 50.

Brexit — The UK’s decision to vote Leave has generated many unanswered questions about the future of the country and the European Union.

6. Assuming that Article 50 is activated, could the UK change its mind regarding EU membership?

Article 50 does not explicitly exclude the scenario whereby a Member State would choose to reverse its decision to leave the EU in the course of the withdrawal negotiations. In other words, the ‘divorce’ should only be considered final once the withdrawal agreement enters into force, or once the two-year negotiation period laid down in Article 50 comes to end without any decision to extend this period.

7. Assuming that Article 50 is activated, how long would it take for a withdrawal agreement to be concluded?

Unless the EU-27 agrees to extend the two-year negotiation window laid down in Article 50, the withdrawal agreement must be concluded during this period of time. The withdrawal agreement would most likely need to be complemented with an additional agreement covering the UK’s future relationship with the EU. In other words, the ‘divorce’ agreement will have to be complemented by an agreement governing the UK-EU relationship post ‘divorce’. This latter agreement would most likely take several years to be agreed if previous trade deals are any significant indication.

8. What if no agreement on the UK’s relationship with the EU post ‘divorce’ is concluded?

To simplify, in the event that no agreement is reached to govern the future relationship between the UK and the EU, then the UK would have to trade with the EU on the basis of international rules laid down in the World Trade Organisation agreements. In practical terms, this would likely mean new trade barriers of a fiscal and non-fiscal nature for UK exporting firms. For example, the imposition of import and export duties, or the requirement for products meet certain health and safety standards. The British government could, of course, choose to impose similar barriers on imported goods or services, but this would be at the detriment of UK customers and clients as products and services could become more expensive.

9. Assuming a new agreement on the UK’s relationship with the EU is concluded, what would be its most likely features?

Two main alternative arrangements may be distinguished:

The ‘Norway model’, which would allow the UK to maintain its current access to the EU’s internal market but this would mean continuing to be bound by the body of EU rules relating to the EU’s internal market, including EU free movement rules, continuing to pay into the EU budget, and continuing to be subject to the jurisdiction of a supranational court. It would however be theoretically possible for the UK under this model to derogate from free movement rules on a provisional basis and to refuse to apply particular EU laws, but this could lead to retaliatory measures from other EU countries.
The ‘Canada model’, meaning a free trade agreement which would allow the UK not to be bound by, inter alia, EU free movement rules but at the price of a significantly more limited access to the EU’s internal market. This latter model would therefore be considerably more costly for the UK’s economy and, in particular, its financial sector, as UK-based financial institutions would then lose the automatic right to do business elsewhere in the EU.

10. Could the UK end up never leaving the EU?

It is legally speaking possible, to paraphrase the legal commentator David Allan Green, that the Article 50 ‘red button’ will never be pressed. One may for instance envisage a General Election leading to the victory of a pro-Remain party. Alternatively, a majority of the current MPs may also decide that new economic and/or political circumstances warrant a second referendum. It should also be possible for the UK, as noted above, to trigger Article 50 only to change its mind later, as long as it does so before a withdrawal agreement enters into force.

Research Fellow Roger Kline, author of ‘The Snowy White Peaks of the NHS’, which helped lead to the NHS Workforce Race Equality Standard, says the new social media campaign #LoveOurEUStaff could play a vital role in countering the risks posed to the NHS by Brexit.

The concept that the people running the Brexit campaign would care for the NHS is a rather odd one. I seem to remember Michael Gove wanting to privatise it, Boris wanted to charge people for using it, and Ian Duncan Smith wanted a social insurance system. The NHS is about as safe with them as a pet hamster would be with a hungry python – John Major, former Conservative Prime Minister.

If there was one standout claim made during the Referendum campaign that was abandoned within hours of the result being declared it was that of the official Leave campaign that “we send the EU £350 million a week, let’s spend it on our NHS instead”. It was so disingenuous it led to Sarah Wollaston, Conservative chair of the Health Select Committee changing sides to support Remain.

The almost unanimous view of health care experts was that leaving the EU would be bad news for the NHS, since any economic downturn would reduce tax revenues and increase the pressures on public spending at a time when NHS finances are already dire.

Potential consequences

Much less attention has been given to other consequences of the Leave decision which may impact on the NHS, notably in respect of the NHS Constitution principles of equality of provision of service and of treatment of staff.

One potential threat to the NHS is abandonment of the EU treaty principles on procurement contracts which require public authorities, including the NHS, to ensure that principles of anti-discrimination are upheld on all contracts over £750,000.

A second concern is the certainty that the pre-existing pledge to repeal human rights legislation will now be implemented. Human rights legislation has profoundly influenced (for the better) how we care for, support and treat NHS patients and social care users. The impact of repealing those principles could be disastrous.

The climate of intolerance stoked up by the Leave campaign has unleashed a toxic antipathy to ‘foreigners’ at a time when the NHS is dependent on staff who are first, second or third-generation immigrants.

A third worry is that, whether through repeal of EU employment legislation, or ‘free market’ ideology, workplace rights are likely to worsen with a significant impact on NHS staff. Aside from the well-publicised consequences for working hours limits, much of the UK’s equality legislation is defined or clarified by EU law and court decisions, and there must be a real risk that if not immediately, certainly over time, these will be at risk.

Finally, the climate of intolerance stoked up by the Leave campaign has unleashed a toxic antipathy to ‘foreigners’ at a time when the NHS is dependent on staff who are first, second or third-generation immigrants. There are 55,000 EU nurses and doctors working in the NHS. 88,000 EU staff work in social care. Twenty per cent of nurses and one third of doctors are from black and minority ethnic backgrounds.

Photo by Benjamin Ellis - Creative Commons 2.0 — A London ambulance responds to a 999 call – Photo by benjaminellis.org/photography (Creative Commons 2.0)

Perfect storm

There must be a real risk that harassment of such staff (already far too high) will increase. There must be a risk that discrimination within recruitment and promotion will deteriorate even further. There must be a risk that disproportionate disciplinary action will continue or get worse.

If even a small proportion of such staff decide to leave the NHS we will have a perfect storm of rising demand and falling staffing that makes the current NHS crisis look like a tea party.

The research summarised in ‘The Snowy White Peaks of the NHS‘ is crystal clear that discrimination in general, and against BME staff in particular, adversely impacts on the care and safety of patients (all patients not just BME patients).

Many of those who voted for Leave are those who have suffered economic insecurity and marginalisation for a generation, excluded from affordable housing and with falling living standards. But this increasingly became less a vote about the shortcomings of the EU, of which there are plenty, and more a ballot on immigration, driven by fear and intolerance.

All staff are entitled to fair treatment and working lives free of discrimination, not just for their own sake, but for the sake of patient care and safety.

Though leaders of almost every NHS organisation except the RCN, including Medical Royal Colleges, argued for Remain, even a majority of nurses voted for Leave, according to a Nursing Times poll.

The wider consequences of the Leave decision are unclear, but it risks being bad news for the NHS which depends on the contribution of hundreds of thousands of immigrants and their descendants.

The NHS has, over the last two years, finally acknowledged the scale and impact of race discrimination. The NHS Workforce Race Equality Standard, inspired by the evidence both of the scale of discrimination and its impact on staff and patient care, has finally helped trigger NHS action to address race discrimination. That action now needs to include making sure employers and staff stand up for EU colleagues who may well be vulnerable to unfair and damaging treatment from both the public and from some other staff.

#LoveOurEUStaff

The #LoveOurEUStaff hashtag might be a way of prompting NHS organisations to ensure that when they work for equality for BME staff they remember to ensure all staff are entitled to fair treatment and working lives free of discrimination. Not just for their own sake, but for the sake of patient care and safety.

The NHS’s most senior doctor, Sir Bruce Keogh, has called on NHS leaders to send out a message to European staff working in the health service that they are valued and welcome in the wake of the Brexit vote. That should be a signal to redouble our efforts to tackle workforce discrimination of all kinds – especially on the basis of ethnicity, race and nationality.

We might go further.

There is much loose talk post-Referendum of “uniting the country”. Given the false prospectus of the Leave campaign on NHS funding, and the continuing high levels of public support for that most British of institutions, the NHS, perhaps a determined, relentless, well-evidenced nonsectarian campaign, including increased funding, to save the NHS might be just the answer?

The recognition of the immense contribution of immigrants and their descendants to the NHS staff might just be a way to unite divided communities and counter the risk that, post-Referendum, discrimination against NHS staff and patients might become more respectable and even more damaging to healthcare than before.

The #LoveOurEUStaff hashtag might just be the harbinger of something very significant.