A Tale of Two Passports.

You have to feel sorry for the poor souls working in the Department of Foreign Affairs and Trade in the South. Since the summer, they must have witnessed an increase in workload. And they have Brexit to thank for it.

Since the outcome of the UK’s referendum on its European Union membership, the Department has been thoroughly inundated with Irish passport applications. Yes, so steep has the increase been in citizenship requests and passport applications from concerned British citizens seeking to cling to their European citizenship, that the Department was forced to add an additional Q and A sub-section to its website: EU UK Referendum: FAQs – Citizenship, Passports & residency entitlements. Moreover, diplomatic staff in Dublin were forced to appeal for calm in the days immediately after the Brexit vote as due to unexpected demand, inundated post offices ran out of Irish passport application forms.

The addition of this subsection was an attempt to assuage fears of British citizens, an attempt to restore some calm to the chaotic mess of uncertainty the Brexit decision brought. The website reminds those seeking to apply for an Irish passport that the withdrawal of the UK from the EU will take a considerable amount of time and negotiation before any changes will be occur. The website stresses that during this period of negotiation, heralded by the triggering of Art 50, UK passport holders continue to enjoy all the rights of EU citizens, including free movement within the EU. To ensure no uncertainty (as the British government and Brexit rack up uncertainty, the Irish government attempts for clarity) the website reiterates once more with feeling that:

There is no urgent need therefore for UK passport holders (whether based in the UK or elsewhere) to look into applying for an Irish passport at this time.

That use of the bold font was of the Department of Foreign Affairs and Trade, I should add.

Why were these British citizens so desperate for an Irish passport? Simply put, dual citizenship with an EU country would enable British passport holders to retain their right to live and work across the European Union. Essentially, those seeking Irish passports are hoping to keep the benefits of their EU citizenship, whilst retaining their British citizenship (which would no longer be entwined with EU citizenship upon the conclusion of Brexit.)

For those such as myself, who live in Northern Ireland and identify as Irish, the website confirms that there shall be no changes during the negotiation period, or for the foreseeable future as to the entitlement to Irish passports ‘including for people born on the island of Ireland, and for those persons who were born outside Ireland but have Irish-born parents or grandparents.’ For any interested as to why this is: we in the North of Ireland are permitted to dual nationality, i.e. we can choose to identify as British, Irish or as both under the terms of the Good Friday Agreement 1998, as signed by both the British and Irish governments. So, despite what people may be saying/sharing on Twitter – I’m looking at you, lady user who complained “people in NI get EU passports because they feel Irish” – we in Northern Ireland are legally permitted to identify as Irish. This is recognised by the British and Irish governments, and our own Assembly.

Now, you may think that as the summer came to a close and autumn howled into our lives – literally howled; the wind in NI is powerful – the panicked rush for Irish passports by British citizens residing in Great Britain would decline. After all, despite the fact that the British government appear uncertain as to how to proceed with the negotiations, and the Cabinet appears divided over whether to argue for a ‘hard’ or ‘soft’ Brexit, the average person in the street in Great Britain might not have noticed any real change in their lives. If they do not notice a startling change, their fears might have gradually subsided. They may not consider Brexit to be an issue to currently worry over. And as everyone is still a European citizens, then the rights they are entitled to as such will still apply. Consequently, passport applications cease to climb, and order is slowly restored.

Except, not quite.

Demand for Irish passports from UK residents is expected to remain high into next year. Believe it or not, in the three months after the referendum decision, applications were up by more than 17,300 compared with the same period last year. Figures show that some 21,549 people in Great Britain applied in July, August and September, compared with fewer than 11,000 in the same period last year, along with 15,747 people in Northern Ireland. British applications for Irish passports at the Irish Embassy in London doubled in August alone, to 6,710. Applications also rose in Northern Ireland by 80 percent.

Interestingly enough, there have been significant fluctuations in Irish passport applications in recent years. Demand from Great Britain earlier in 2016 was only a fraction of what it was from 2007-09. Evidently, British citizens across the Irish Sea either assumed that the Remain campaign would win, decided to wait and see what the outcome would be before applying, or simply were not aware of this apparent means of safeguarding their EU citizenship.

One anomaly in the numbers was a dip in applications in the weeks after the vote in June. Passport services have recorded significant increases in demand since then — up more than 10,500 in Great Britain, and 6,300 in Northern Ireland compared with July, August and September 2015.

Charlie Flanagan, the Minister for Foreign Affairs and Trade, said that the high demand was likely to continue into 2017:

“Passport applications from Britain for the period January to September this year are up 40 per cent compared to the previous year, surging from July onwards; with demand in August 2016 being almost 120 per cent higher than the same month last year.”

In total, the South’s passport services are expecting to process an additional 100,000 applications from home and abroad this year. Hence my shoutout to the passport services staff in the introduction to this post.

Minister Flanagan also said that there was another reason for the increase in passport applications: there was also an increasing number of Irish people seeking passports to go overseas.

“Based on current trends, we estimate an overall increase in passport applications this year of between 12 and 14 per cent — or 100,000 additional applications. Next year, we project a further significant increase.”

If your daily dose of passport updates and Brexit has not been satisfied, it gets better. Oh yes, UK MPs and peers are applying for Irish passports in the hope that they can retain their EU citizenship after the UK leaves the European Union. Some members of the House of Lords are reported to have applied for dual citizenship since the referendum vote.

Now, it is within the rules for a Member of Parliament to hold dual nationality of certain countries. People who wish to stand as an MP must be a British citizen, or citizen of a Commonwealth country, or the Republic of Ireland. The prominent Leave campaigner and Labour MP, Gisela Stuart, was born in Germany but she gave up her German citizenship on election to the House of Commons in the 1990s, when it was not permitted for members to retain two nationalities. Foreign Secretary Boris Johnson recently gave up his dual citizenship with the United States. (And with it, the opportunity for us to speculate as to his ambitions to run for the US Presidency).

But this sudden spark of MP interest in acquiring dual nationality has not gone unnoticed, or without criticism. Conservative Eurosceptic MP Andrew Bridgen told The Times:

“If people are elected to represent the UK and now decide they want to be a foreign national then that’s a bit of a stab in the back for us. Perhaps they should also take a share of southern Irish debt. I think they should immediately stand down from the House of Commons if they have done that. They can then go and stand for the Irish Senate instead.”

(I’m assuming he meant Oireachtas Éireann, comprised of the Dáil and Seanad.)

Speaking of passports: following the referendum outcome, several pro-leave campaigners called for a return of blue passports for British Nationals. Nigel Farage, the apparently-ever-present-leader of UKIP, was one such Leave campaigner who has made a demand for the return. These were phased out in 1988, but in September the UK Home Office seemingly suggested they might make a return in the future.

Responding to a written question from Conservative MP Julian Knight enquiring about the possibility of seeing a return to the old passports, Home Office minister Robert Goodwill said:

“We are considering potential changes to the UK passport after the UK has left the European Union.

“At this early stage we have not undertaken a detailed cost benefit analysis or made any decisions about what a future UK passport might look like.”

There we have it. Brexit means Brexit, and Make Passports Blue Again. If Brexit brings nothing else, at least it has provided slogans and soundbites aplenty for the Eurosceptic faithful.

For those who have applied for Irish passports, I do hope you checked your eligibility beforehand. If you were: born in Ireland/born abroad to an Irish-born parent/have acquired citizenship through foreign birth registration/born abroad and adopted under Irish law/have acquired citizenship through naturalisation/have post-nuptial citizenship, you could just be eligible.

Now, if only those who applied were so keen to pay Irish taxes…

 

 

A Question a Day…

…until Article 50 triggering day. At least, that is the approach the British Labour party adopted this week. Yes, the party determined it shall ask the Conservative government 170 questions on the topic of the UK withdrawing from the EU. This works out at one question a day until March 2017, the date when the government will officially trigger Article 50 TEU. At the Conservative Party conference, May said she would trigger Article 50 — which officially starts the exit process — by the end of March 2017. The Wednesday of this week marked 170 days until that deadline.

In advance of this week’s Opposition Day debate demanding that Parliament should be given a vote on the government’s Brexit plan before Article 50 is triggered, Labour demanded answers to 170 questions on the detail of that plan – one for each day before Theresa May’s self-imposed deadline to commence the process. In calling for Parliament to be given the opportunity to vote on the Government’s proposed plan, the Labour-led debate was essentially demanding for MPs to be given the right to scrutinise the Government’s strategy on leaving the EU.

The Labour party sent a letter to David Davis, the Secretary of State for Exiting the European Union, calling for the government to make clear its plans for leaving the EU and reiterating its call for parliament to be given a vote on the deal that is eventually struck after the negotiation period. The Government has actually ruled out a vote, saying that MPs will only be consulted. (You can imagine that this did not go down too well with Opposition MPs.)

By tabling the debate, sending the letter, and demanding answers from the Government, the Labour Party said it was not attempting

“to stop the Brexit process from taking place or to disregard the instructions we have been given by the British people. On the contrary, it is simply to ensure that we get the best possible deal for Britain.”

“It is also to ensure that, contrary to all public statements we have heard to date, the government actually has a clear plan of what it is intending to achieve, and that all members of the Cabinet with responsibility in this area subscribe to that same plan.”

The letter, signed by cabinet members Emily Thornberry and Keir Starmer, said:

 “If you are able to provide satisfactory answers to all these questions … it might give some confidence that the government is entering the Article 50 negotiations with a clear plan.

“If not, it will reinforce the sense that the government is instead blundering into this process without a clear endgame in mind, repeating exactly the same mistake that the previous prime minister made with his ‘renegotiation’ of Britain’s EU membership last year: working to an artificial, self-imposed timetable; with a flawed Plan A of what he wanted to achieve; and no Plan B whatsoever.”

The extensive list of questions probe areas such as which trade agreements the Government has decided to rule out, whether the UK would continue to financially contribute to the EU, and whether EU regulations would continue to be legally binding. Unsurprisingly, given the ongoing argument regarding a ‘hard’ or ‘soft’ Brexit, access to the single market featured within the list. Employment protections, health, border controls and farmers’ subsides also feature. Moreover, Human Rights were included within the questions, namely asking whether the Government was seeking to repeal the Human Rights Act 1998, and replace it with a British Bill of Rights. (Yes, a British Bill of Rights. A Bill of Rights, for the British.)

Evidently, the questions aim to undermine the Government by highlighting the apparent vagueness of any suggested exit plan. That the list is so detailed, and spans many areas suggests the Official Opposition are taking Brexit and its legal, political and social ramifications more seriously than the British Government. One might derive from the Conservative Party Conference that the British Government is more concerned with tapping into the general mood of the average Leave voter with Eurosceptic rhetoric, especially on immigration, without any due consideration as to the full implications withdrawing from the EU will have on the UK. The Labour Party on Wednesday, both by the tabling of the debate and the drafting of the list proved to be a successful Opposition. It has been a long time coming to be sure.

From my own perspective, I was pleasantly surprised to see that a deal of consideration had been directed towards Northern Ireland. Question 38 enquires about structural funding, and sees the first mention of Northern Ireland and the other devolved administrations. Question 47, under the subtitle of ‘Agriculture and Fisheries’ again sees Northern Ireland mentioned with the other devolved administrations. However, questions 48-52 focus solely on Northern Ireland – indeed, this is a subsection of its own. These questions focus on issues specific to Northern Ireland, namely on the border with the South, and the need for border controls. The issue of the border scarcely featured during the EU referendum campaign in Britain; it was confined to Northern Ireland and therefore was not given the due consideration it demanded. I find it commendable that the Shadow Cabinet sought to consider the issue, and demand the Government to answer it.

Will the list and its aim of attempting to flag the Government’s lack of preparation and understanding work? It has generated interest and debate, but will it generate results? Intriguingly, the Prime Minister has already succumbed to pressure to permit Conservative MPs to back a Labour motion which would provide Parliament with the chance to scrutinise her EU strategy. The Prime Minister tabled an amendment which will allow backbench MPs to vote for the proposals – on the condition that the Government’s position should not be undermined. So, you can scrutinise the strategy, but essentially you cannot criticise it. (There’s a flaw in that logic somewhere…)

In response to the Shadow Cabinet letter, a Government spokesperson stated:

“We are aiming to deliver the right deal for the United Kingdom and return control over all the decisions that affect people’s lives to the sovereign institutions of this country.

“That’s what people voted for on June 23. The prime minister has been clear that it would not be in the national interest to provide a running commentary as we shape our negotiating strategy, let alone reveal every aspect of it in advance as Labour now appears to be suggesting.”

Whilst I understand the need to ensure the negotiating strategy is kept quiet -all negotiations require keeping your cards close to your chest – surely it is not beyond the British Government to answer questions pertaining to its strategy on a general basis? At the very least, the British Government should be prepared to be examined and questioned on its position on Brexit, and its understanding of same. It should make overtures towards accountability.

Whilst the UK electorate overall voted to leave the EU, it did not vote to leave the Single Market. It could not, as this was not an option on the ballot paper. The electorate did vote, but it did not vote overwhelmingly to leave. Moreover, with a Remain vote being the overall decision in Scotland and Northern Ireland, it is evident that the vote to leave was not a clear, UK-wide determination. Uncertainty and division has been generated as a consequence of the EU referendum this summer. So surely it is not unreasonable of the British Government to engage with the public, as the deadline for triggering Article 50 has been announced and slowly draws nearer? Instead, we are informed it is not in the national interest to be given an account of the Government’s strategy, nor to be given an account of the proposed timetable and negotiations, albeit in a condensed form.

We know – indeed, we are informed on a regular basis – that ‘Brexit means Brexit’. But, what exactly does that mean? According to the Prime Minister, it means the UK will regain its sovereignty from the EU. Now, I could write until the cows came home about how this statement irks me, and how I despaired during the EU referendum campaign with each and every utterance of “the UK cannot make its own laws!” (Then what exactly does Parliament do with each mandate, I ask you?) But I digress. Essentially, such a statement simply served as the proverbial bone for the Eurosceptic Conservative masses, for whilst it is a decent soundbite it boasts no meaning. Indeed, one might wonder if the Conservative Government themselves truly know what Brexit means, or entails. Given that Brexit equates to Britain exiting the EU, it is already an inaccurate description. After all, it is the UK that voted, the UK entire which is posed to leave – and the UK is the term which includes Great Britain and Northern Ireland. ‘Britain’ by itself does not include Northern Ireland. (Meaning that technically, ‘Brexit means Brexit’ means ‘Britain leaving the EU’ and so Northern Ireland itself is not. There we go, panic over.)

The questions posed by the Labour Party are varied and detailed. To answer sufficiently any would suggest a comprehensive understanding of the full consequences of withdrawing the UK from the European Union. Thus I doubt we shall see any answers by March 2017, for I fear the recipients of the questions have no comprehensive understanding. We have an explanatory slogan which explains nothing, and glittering promises of a truly British utopia, free from apparent Brussels bureaucracy. Most of all, we have uncertainty, and in my part of the world, the fear of an imposed hard border.

But Brexit means Brexit. So that’s alright then. I doubt we shall receive satisfactory answers to the questions, so I thereby propose that the British Government answer each of Labour’s 170 questions with this oft-repeated mantra – if it dares.

If you’re having Brexit problems I feel bad for you, son
I’ve tabled 170 questions, and the Government cannot answer one

~UK Labour, probably

The above topically-relevant musical paraphrasing is filed under: ‘if you don’t laugh, you’ll cry’.

Labour’s 170 questions in full

Free movement of goods and services

We are assuming that the government has considered the following options for its continued post-Brexit trading relationship with the European Union:

(i) maintaining full membership of the Single Market, as at present;

(ii) negotiating UK terms for membership of the European Economic Area;

(iii) negotiating UK terms for membership of the European Free Trade Agreement;

(iv) negotiating a Customs union with the EU;

(v) negotiating a bespoke, bilateral free trade deal with the EU;

(vi) adopting a unilateral free trade policy with all trading partners; and (vii) reverting to WTO rules for future trade arrangements, including the imposition of tariffs.

In that light, please answer the following questions:

  1. Which of the above options has the government definitively ruled out, which does it still have under consideration, and which does it regard as its preferred option(s) for the negotiations?
  2. Of the options it is still considering, would any oblige the UK to continue abiding by Single Market regulations, and implementing new ones, despite being unable to influence their content?
  3. Of the options it is still considering, would any involve the European Commission continuing to police and enforce the UK’s compliance with Single Market regulations?
  4. Of the options it is still considering, would any involve the UK continuing to make net contributions to the European Union budget?
  5. Of the options it is still considering, would any involve the retention of ‘State Aid’ restrictions on the ability of the government to intervene to support particular industries or regions?
  6. Of the options it is still considering, which does the government believe could come into force immediately upon Britain’s exit from the European Union (i.e. no later than the end of March 2019), and which does it accept would take longer to negotiate?
  7. Of the latter options above, is it the government’s intention to negotiate transitional arrangements for continued access to the Single Market while any longer-term negotiation is concluded?
  8. Does the government accept that any such transitional arrangements would require the UK to continue making a sizable contribution to the EU budget for an indefinite period post-Brexit?
  9. Does the government accept that any such transitional arrangements would require the UK to be bound by current and future Single Market regulations and their enforcement by the European Commission, for an indefinite period, while being unable to influence their content?
  10. If it does not intend to negotiate transitional arrangements, does the government intend that – during the delay between Britain’s departure from the European Union and the negotiation of one of the options set out above – the UK would revert to WTO rules for its interim trading regime?
  11. On what timescale does the government envisage securing independent representation at meetings of the World Trade Organisation, and how will the UK be represented in these meetings if there is any gap between Britain exiting the European Union and securing a ‘seat’ at the WTO?
  12. In the event that there are ‘transitional arrangements’ whereby the UK retains access to the Single Market while negotiating a longer-term trade deal, who will represent the UK at meetings of the WTO during that interim period, and how will the government ensure UK interests are protected if we are still being represented by the EU?

Specifically, in relation to Options (v)-(vii), if those are still under consideration:

  1. How would the government ensure that any bespoke free trade agreement with the EU would include continued free trade in: (i) services; and (ii) agricultural and fishing products, and how likely does it believe it to be that EU member states will accept that?
  2. How would the government avoid the imposition of ‘rules of origin’ tests on UK exporters to prove that third-country products are not transiting through the UK to avoid paying EU tariffs?
  3. What assessments have the government made of the impact of re-introducing customs checks and/or tariffs on cross-border supply chains within the manufacturing sector, and will the government publish those assessments?
  4. Specifically, in relation to Option (vii), what assessments have the government made of the impact of each individual product tariff on the UK manufacturers who sell those products, and will the government publish those assessments?

Free movement of people

  1. Given that the Prime Minister has said continued free movement will not be part of any post-Brexit deal with the EU, and has also ruled out a points-based immigration system, what system does the government now intend to introduce to manage migration from the EU to the UK?
  2. What assessment has the government made of the fiscal impact of the different options it has considered for managing migration from the EU to the UK, and will it publish that assessment?
  3. Will the system for managing future migration from the EU to the UK be the same as applies to citizens from other countries around the world, or does the government intend to negotiate a bespoke arrangement through the Article 50 process?
  4. What assessments have the government made of the impact on different sectors (e.g. the NHS, agriculture, food production, etc.) of imposing the government’s new system for managing migration from the EU to the UK, and will the government publish those assessments?
  5. Will the government consider introducing special post-Brexit migration arrangements for those sectors that are most heavily dependent on EU migrant workers?
  6. Will the government also consider applying regional variations in post-Brexit migration arrangements so that different parts of the UK can agree bespoke arrangements with the government related to the different levels of EU migrant labour that they require?
  7. What assessment has the government made of the viability of applying such regional variations in the migration system, and will they publish that assessment?
  8. What agreement will the government seek to negotiate in relation to the continued ability of UK citizens to live, study, work or retire elsewhere in Europe without restriction, as they can at present?
  9. Does the government stand by the recent remarks of the Secretary of State for International Trade that the future status of EU citizens currently living in the UK is a “negotiating card” to be played during the Article 50 process, or does it believe such language is inappropriate?
  10. In that context, when will the government give a legally-binding guarantee that citizens of other EU countries currently living, working and using public services in the UK will have their rights to continue doing so entirely unaffected by Britain’s departure from the European Union, with reciprocal guarantees for UK citizens currently living elsewhere in Europe?
  11. How does the government plan to ensure that UK citizens who own properties, businesses or other assets in other European countries are protected from punitive or discriminatory treatment (e.g. special taxes) once Britain leaves the European Union?
  12. If the government believes that reciprocal agreement(s) will need to be reached to protect the rights of those UK citizens, does it believe that those will need to be bilateral agreements with individual member states, or a blanket agreement with all EU members secured as part of the Brexit process; and if it is the former, on what timescale with this be pursued?
  13. Following Britain’s departure from the European Union, will UK citizens wishing to visit other European countries as tourists have to obtain visas in order to do so, and if so, how much will this add to the cost of a holiday to Europe for a family of four?
  14. If EU citizens are also required to obtain (and pay for) visas to visit the United Kingdom in future, what assessment has the government made of the impact of those extra costs on the UK tourism sector, and will it publish that assessment?
  15. What additional staff and resources will be required for UK embassies and consulates located in other European countries to process visa applications from EU citizens wishing to visit the UK, and on what timescale will those extra staffing and resourcing requirements be met?

Structural funding

  1. What calculation has the government made of the amount of European Regional Development Fund and European Social Fund payments that the UK would expect to have been allocated in the 2021-27 funding tranche, which will be announced for the rest of the European Union in 2018?
  2. What calculation has the government made of how those ERDF and ESF allocations would have been distributed around the regions of the UK between 2021-27, if the standard formulae for calculating those distributions were used?
  3. How does the government plan to make up the shortfall in funding for those regions resulting from the loss of the ERDF and ESF allocations they would have received, into the 2020s and beyond?
  4. What assessments have the government made of the impact on those regions if it fails to make up that shortfall in funding, in terms of job creation, business activity and infrastructure projects foregone, as well as the loss of programmes to fund social inclusion, transport links, etc., and will it publish those assessments?
  5. If it is the government’s intention to develop a replacement system of regional funding for the long-term, can it confirm that this system will retain the seven-year tranche structure, which allows long term projects to flourish, and ensures the impact of grants can be properly assessed before they are renewed?
  6. If such a replacement system is introduced, will the government confirm how this will be administered, and – if that falls to the current Local Enterprise Partnership (LEP) network – will the government take action in response to the March 2016 NAO report on the understaffing and under-resourcing of LEPs before handing them this key responsibility?
  7. Will responsibility for determining the rules governing any replacement system (including the qualifying criteria for projects) be left to the devolved administrations in Scotland, Wales and Northern Ireland after these are no longer determined uniformly by Europe, or will this responsibility be centralised in the Westminster government?

Agriculture and Fisheries

  1. How does the government propose to replace and reform for the long-term the current system of direct payments for farmers funded through the Common Agricultural Policy (CAP)?
  2. Will that replacement system retain the contribution of additional support to younger farmers, will it retain qualifying criteria related to standards of environmental protection and animal welfare, and will it scrap the ‘three-crop rule’ that applies under the current CAP system?
  3. How does the government propose to replace for the long-term the funding currently provided for the stimulation of the rural economy through the EU’s Rural Development Programmes?
  4. How does the government propose to replace for the long-term the funding currently provided by the European Union for agricultural research programmes?
  5. Will the government guarantee that regulations currently enforced under the Common Fisheries Policy will not just be enshrined in UK law through the ‘Great Repeal Bill’, but will be retained for the long-term to give long-term certainty to the fishing sector over future policy?
  6. How does the government plan to ensure that current reciprocal access arrangements for fishing within the Exclusive Economic Zones (EEZs) of other Member States are maintained once the UK leaves the European Union?
  7. Will the government also seek to negotiate accompanying reciprocal access agreements with Norway and other third countries, and ensure that these are ready to take effect immediately that the UK leaves the European Union?
  8. How does the government intend to make up the shortfall in funding for the fishing sector currently derived from the European and Maritime Fisheries Fund, once Britain has left the EU?
  9. Will responsibility for determining the rules governing the payment of (and qualifying criteria for) agricultural subsidies be left to the devolved administrations in Scotland, Wales and Northern Ireland after these are no longer determined uniformly by Europe, or will this responsibility be centralised in the Westminster government?

Northern Ireland

The government has already confirmed that the Common Travel Area between the Irish Republic and Northern Ireland, which predates both countries’ membership of the EU, will be maintained post-Brexit, but taking that as read, please answer the following questions:

  1. Will the government guarantee that there will be no re-introduction of customs checks on the Irish border, similar to those that existed before the Maastricht Treaty in 1993?
  2. How will the government enforce its proposed new system for managing migration from the EU if EU migrants can travel to the Irish Republic as they do at present, and then travel on into the United Kingdom via the Irish land border?
  3. Will the government confirm whether – and how – the position on these matters would change if the Irish Republic was to become a member of the Schengen agreement, making travel between the rest of the European Union and Ireland much easier?

On other issues specific to Northern Ireland:

  1. What specific assessment has the government made of the impact on the Northern Irish economy of its proposed future arrangements for trade with, and migration, from the European Union post-Brexit, and for its continued ability to attract foreign direct investment?
  2. Will the government guarantee that any shortfalls in funding for Northern Ireland beyond 2020 arising from the loss of (i) Structural Funds; (ii) Common Agricultural Policy payments and programmes; and (iii) the PEACE programme will be made up in full from central government revenues, given the region’s heavy dependence on that funding for future peace, development and prosperity?

Employment Rights

  1. Will the government guarantee that all existing employment rights underpinned by EU legislation will not just be fully transposed into UK law through the ‘Great Repeal Bill’, where they are not already, but will also be retained for the long-term, with none of the ‘watering down’ at the expense of workers for which some business groups and Leave campaigners have previously lobbied (e.g. in relation to TUPE rights, the Working Time Directive, health and safety regulations, and the rights of part-time and agency workers)?
  2. Will the government guarantee that no existing employment rights will be put ‘on the table’ when it comes to: (i) negotiating trade deals with third countries in the future; or (ii) seeking to incentivise multinational companies to invest or become/remain headquartered in the UK?
  3. Will the government commit to enshrine in law those protections for workers that currently derive not from EU legislation, but from judgements of the European Court of Justice (ECJ), for example their recent decision that the calculation of workers’ entitlement to holiday pay should include earnings from bonuses, commission and overtime payments?
  4. Will the government give specific guarantees that employment rights for women that derive from EU legislation and ECJ rulings in relation to equal pay, pregnancy, maternity and protection against discrimination will be retained in full for the long-term after Britain’s exit from the EU?
  5. Will the government rule out any plans to revive the proposal contained in Adrian Beecroft’s 2011 ‘Report on Employment Law’ to place a cap on the level of compensation that can be claimed in cases of workplace discrimination, which would currently be disallowed under EU law?
  6. Will the government undertake to match any future, post-Brexit proposals agreed by the European Union to extend employment rights, to ensure that individuals working in Britain can enjoy all the same protections as workers employed in other European countries?

The Environment and Climate Change

  1. Will the government guarantee to maintain current environmental standards in relation to clean bathing water, the protection of rare birds, the protection of habitats threatened by major infrastructure projects, and the cleanliness of rivers and lakes?60. Will the government guarantee that the status of the UK’s 652 Special Areas of Conservation and Special Protection Areas will remain legally-protected after Britain’s exit from the EU?
  2. Will the government guarantee to make up any post-2020 shortfall in funding for flood defences and flood relief arising from Britain’s departure from the European Union, and loss of access to relevant EU funding programmes? 62. Will the government seek to remain a part of the EU Emissions Trading System, and if not, how will it replicate the impact that membership of the EU ETS has on the UK’s ability to comply with its legally binding carbon budgets?
  3. Will the government ensure that the Paris Agreement on climate change, including the goal of net zero emissions, is ratified as quickly as possible to ensure that the EU is able to ratify the deal as a bloc prior to Britain’s exit from the European Union?
  4. Will the government remain committed to meeting the requirements and achieving the targets set out in the 2030 EU Climate and Energy Framework, even after Britain leaves the EU?
  5. Will the government seek to remain part of the European Union negotiating bloc for future negotiations on climate change, and if not, what bloc will it seek to join?
  6. Will the government guarantee to implement the plans it has submitted to the European Commission to meet the EU-agreed limits on pollution levels in major conurbations, including London, Manchester and Leeds, regardless of Brexit?
  7. What assessment has the government made on the impact of any departure from the Single Market on access to imports of natural gas and electricity, and by extension on: (i) the security of the UK’s energy supplies; and (ii) the UK’s carbon emission targets?
  8. Is the government still committed to meet its renewable energy targets under the EU 2020 agreement, and if not, what alternative targets – if any – is it seeking to meet?
  9. Will the UK remain part of the EU Energy Union after leaving the EU?
  10. In the absence of the European Commission and the European Court of Justice, what entities will be responsible for ensuring that the government complies with its own environmental regulations, and for taking legal action against the government when it fails to do so? 71. How does the government intend to make up the shortfall in current and future energy infrastructure investments, once EU investment in these projects (currently worth more than €2bn) is lost?

Law enforcement and security

  1. Will the UK remain a full member of Europol after Britain leaves the European Union, and if not, what assessment has the government made of the impact of losing current Europol cooperation arrangements on law enforcement within the UK?
  2. Will the UK’s law enforcement authorities still be able to directly access: (i) the Europol Information System; (ii) the Secure Information Exchange Network Application; (iii) the Passenger Name Records system; (iv) the Prüm database; (v) the European Criminal Records Information Service; and (vi) the Schengen Information System, and with no break in their ability to do so if access to these databases is still being negotiated at the time the UK leaves the European Union?
  3. Will the UK remain a full participant in the Eurojust system, with no diminution or delay in our continued access to the judicial cooperation arrangements it provides?
  4. What extradition arrangements will the UK reach with the EU to replace the current European Arrest Warrant agreements?
  5. How long does the government expect it will take for the above arrangements to be negotiated, judging by comparable agreements that have been negotiated with other third countries?
  6. What will happen in the event of any delay between Britain’s exit from the European Union and the above arrangements coming into force?
  7. How long does the government expect it will take to negotiate a Mutual Legal Assistance agreement with the EU, and what will happen in the event of any delay between Britain’s exit from the European Union and that agreement coming into force?
  8. How does the government plan to replace the current ‘Securing Victims Rights’ scheme for victims of intentional violent crimes to secure compensation for crimes committed in other member states?
  9. How does the government plan to maintain the civil justice cooperation measures currently deriving from the Lugano Convention once Britain has left the European Union?
  10. Assuming that the ECJ follows the Advocate General’s preliminary finding in the case brought by the Secretary of State for Exiting the European Union and the Deputy Leader of the Labour Party on the legality of the Data Retention and Investigatory Powers Act 2014, will the government abide by that ruling, and revise the Act accordingly, notwithstanding the Brexit vote? 82. When doesthe UK government intend to enshrine the provisions of the Network and Information Security directive into UK law, and can it confirm that this will take place before Britain leaves the European Union so that there is no difference in the regulation governing UK-based digital service providers when offering services within the UK or in the rest of Europe?
  11. Will the government guarantee that future UK data protection standards will be equivalent to the EU’s General Data Protection Regulation framework starting in 2018?

Foreign and Defence Policy

  1. How does the government intend to maintain the UK’s influence in the development of the EU’s Common Foreign and Security Policy (CFSP) after Britain leaves the European Union?
  2. If the UK will have no influence on CFSP post-Brexit, what assessment has the government made of the impact this will have on the UK’s broader influence throughout the world and the government’s ability to pursue its foreign policy objectives?
  3. How does the government intend to maintain the UK’s participation in joint operations and initiatives taking place under the umbrella of the Common Security and Defence Policy (CSDP) after Britain leaves the European Union?
  4. Does the government believe it will still be possible for the UK to retain a leadership role on joint CFSP operations (such as Operation Atalanta against piracy off the Horn of Africa), even after leaving the European Union?
  5. Will the UK be obliged to leave the European Defence Agency after leaving the European Union, and if so, what plans does the government have to negotiate an agreement with the EDA enabling the UK to continue participating in its research and technology projects?
  6. What assessment has the government made of the risks that, without the UK’s restraining influence, measures that we have long opposed at EU level – such as the establishment of an EU army – are more likely to come to fruition, and how does the government intend to deal with such risks in future?
  7. Does the government intend to negotiate continued involvement for the UK in the work and future missions of the European Space Agency, even after Britain leaves the European Union, potentially through securing Associate Member status, similar to Canada’s?

Financial Services and Accounting

  1. How does the government plan to ensure that the UK-based banking sector retains passporting rights to operate freely anywhere else within the European Union after Britain leaves the EU?
  2. If full compliance with EU financial regulation is the price required to retain passporting rights, does the government accept that price, and if so, how does it propose to influence the direction and detail of future regulation at EU level?
  3. Specifically, does the government intend to bring domestic legislation on ring-fencing into line with the requirements of the planned Banking Structural Reform regulation, even if the BSR regulation does not come into force until after Brexit?
  4. What assessment has the government made of the potential impact on the UK foreign exchange trading sector if the European Central Bank were to succeed in a fresh attempt to bar clearing houses outside the Eurozone from trading the Euro, and does it believe the risk of such a move will be higher once Britain has left the European Union?
  5. Will audit thresholds for companies be maintained at their current levels, tightened or relaxed, once Britain leaves the European Union?
  6. In particular, is the government considering moving to an American model where audits would only be required for companies whose shares are publicly traded, with private companies only required to face an audit if mandated by their shareholders or debtors?
  7. Will the new European Audit Regulation and Directive remain in force, as incorporated into the 2016 Ethical Standard issued by the Financial Reporting Council (FRC), or will the old Ethical Standard be left in place, with oversight by the professional bodies, rather than by the FRC?
  8. Does the government intend to negotiate for the UK to remain a participant in the EC Regulation regime (Council Regulation 1346/2000) governing cross-border insolvency?
  9. If so, how does the government propose to ensure that the interests of UK-based creditors are not disadvantaged in future negotiations over changes to the regulatory regime for insolvencies in which the UK will have no say, e.g. if France and Italy resume their attempts to bring UK schemes of arrangement within the regime?
  10. If not, how does the government propose to retain the benefits for creditors located in the UK of being able simply to recover assets from debtors located in other member states, as they are able to do at present under the terms of the EC Regulation?

Business interests

  1. Among the factors that have led dozens of multinational companies to locate their European or global headquarters in the UK in recent decades, what assessment has the government made of the importance of the UK being inside the Single Market?
  2. If the UK opts to leave the Single Market, what is the government’s plan to persuade those multinational companies to retain their bases in the UK?
  3. If the government opts to remain outside of the EEA, and negotiate its own global trade deals, how does it plan to protect the competitiveness of the UK mining and manufacturing sector against punitive tariff regimes imposed by third countries?
  4. What is the current status of the bidding process to take over the Tata Steelworks, and what impact is the uncertainty over Britain’s post-Brexit future having on that process?
  5. Will the government be seeking to negotiate continued membership of the European Chemicals Agency, and if so, how would it ensure that the UK retained influence over its decision-making processes?

106.How will the government go about protecting the brand status of the 77 UK products currently covered by the EU’s registration of products under the protected Designation of Origin, Protected Geographical Indication, and Traditional Specialty Guaranteed schemes?

  1. Will the government seek to negotiate a competition cooperation agreement with the European Commission to ensure continued collaboration in tackling cartel behaviour and other anticompetitive practices, and if there is any gap between Britain leaving the European Union and this agreement coming into force, what interim arrangements will the government put in place?
  2. If UK businesses are still required to abide by EU laws on consumer protection, competition law, etc. in order to keep trading to the EU, how does the government propose to influence the negotiation of these laws to protect the interests of UK businesses, once we have left the EU?
  3. Does the government intend – and will it be permitted – to retain the UK’s current shareholding in the European Investment Bank (EIB) after Britain leaves the European Union; how does it believe the UK’s level of borrowing from the EIB will be affected by Brexit, if at all; and what assessment has it made on the impact of any reduction in borrowing from the EIB on levels of infrastructure spending in the UK?
  4. Does the government intend to proceed with ratification of the EU agreement to establish a Unified Patent Court, in the agreement’s present form; and if not, what steps is the government taking to negotiate an alternative agreement to which it would be willing to sign up?
  5. If the Unified Patent Court (UPC) goes ahead, will the Human Necessities seat of its Central Division continue to be located in London, as prescribed in Article 7(2) of the UPC agreement?

Consumer Interests

  1. Will the government guarantee that all existing consumer rights protections underpinned by EU legislation will not just be fully transposed into UK law through the ‘Great Repeal Bill’, where they are not already, but will also be retained for the long-term?
  2. Will the government also commit to enshrine in law those protections for consumers that currently derive not from EU legislation, but from judgements of the European Court of Justice?
  3. How does the government propose to ensure that the protections that UK citizens currently enjoy (on price, faulty products or mis-selling) when purchasing goods and services from businesses located in other member states – including over the Internet – are maintained once Britain leaves the European Union (e.g. the Timeshare Directive)?
  4. How does the government propose to ensure that, after Brexit, UK air passengers retain the protections they currently enjoy in respect of ticket pricing, and the right to compensation, alternative transportation, overnight accommodation, etc. in the event of flight delays or cancellations, and will it guarantee reciprocal protection for EU citizens using UK carriers?
  5. With data roaming charges within the European Union due to be abolished from 15 June 2017, how does the government propose to ensure that those charges are not re-introduced once Britain leaves the European Union, and will it guarantee reciprocal arrangements for EU citizens using their mobile phone in Britain in order to achieve that?
  6. Will the UK continue to benefit from the EU-funded pledges to equip all ‘public places’ throughout the EU with free wireless internet access by 2020, and uninterrupted 5G access on all road and rail networks by 2025, and if not, will the government commit to match and fund the delivery of these objectives itself?

Human Rights

  1. Does it remain the government’s intention to scrap the UK’s current Human Rights Act and replace it with a British Bill of Rights?
  2. Will this British Bill of Rights give the same human rights protections as are currently guaranteed under the Human Rights Act, and if not, in which areas will it withdraw those protections?
  3. Alternatively, is the government prepared to extend the British Bill of Rights to include protections that are covered by the EU’s Charter of Fundamental Rights (and to which British citizens are therefore currently entitled), but which are not currently covered by the Human Rights Act, for example rights relating to work, such as the right to strike and the right to redress following an unfair dismissal?

Education

  1. As part of its Article 50 negotiating strategy, does the government intend to press for continued UK access to the Erasmus programme, including maintaining its funding contribution to the programme, so that e.g. language students in UK schools can continue to benefit from the presence of language assistants on Erasmus exchanges?
  2. Similarly, will the government press for continued access to the Erasmus+ programme, so that UK teachers and students at secondary school and higher education level can continue to benefit from programmes facilitating the promotion of mobility, the learning of languages and intercultural understanding across Europe, including Comenius exchanges?
  3. And will the government press for continued access to the Horizon 2020 programme, so that UK universities can stay at the top of the list across Europe for the allocation of research and innovation grants, and continue to work in collaboration with their counterparts in other European universities?
  4. If the government intends to press for continued participation in these programmes, but also intends to end freedom of movement between the EU and the UK, how does it propose to avoid the fate of Switzerland, who had their access to Erasmus revoked in 2014 after imposing immigration controls?
  5. Alternatively, if the government does not intend to press for continued participation in these programmes, or is unsuccessful in doing so, how does it intend to make up for the considerable shortfall in funding that will result for the education and research sectors beyond 2020?
  6. What assessment has the government made of the impact of the uncertainty over future EU funding streams, particularly in the research sector, on the long-term planning of UK universities, and on their current access to collaborative research partnerships with other EU universities?
  7. What will be the future migration status of EU citizens applying to study at British universities, and will this differ from the status of individuals from elsewhere in the world applying to come to the UK as students?
  8. Will EU citizens applying to study at British universities from the start of the 2017/18 or 2018/19 academic years have the terms of their student status (e.g. their rates of tuition fees and their access to student loans) guaranteed for the duration of their course from the point at which they are accepted, or will they risk these terms being changed in the middle of their course?
  9. What assessment has the government made of the impact of the uncertainty over the future status of EU students on levels of applications to UK universities for the 2017/18 academic year and beyond?
  10. What will be the future migration status of academic professionals from other EU member states who wish to apply for academic posts at UK universities, and of academic professionals from the UK who wish to do likewise elsewhere in Europe, including in terms of the mutual recognition and quality assurance of qualifications?

Health

  1. Will the government seek to negotiate post-Brexit reciprocal healthcare arrangements with other EU countries, where British citizens can continue to obtain free healthcare when travelling on the continent, and citizens from other member states can do likewise in the UK via the NHS?
  2. If the government does seek to negotiate such an arrangement, but there is a delay between leaving the European Union and securing a long-term deal, what interim arrangements will apply, both for British citizens visiting other European countries and EU citizens visiting the UK?
  3. In either event, if there is a short-term or permanent loss of reciprocal healthcare arrangements after Britain leaves the European Union, how will the government address the inevitable increase in health and travel insurance costs for UK holidaymakers travelling to Europe?
  4. Similarly, in either event, can the government confirm that any future loss of reciprocal healthcare arrangements will have no effect on UK citizens who will be living elsewhere in Europe at the point Britain leaves the EU, or EU citizens living and working in Britain, and that their respective rights to free healthcare will be totally unaffected?
  5. Will the government guarantee that the Working Time Directive will continue to operate in its current form for all NHS employees, even after Britain has left the European Union?
  6. What assessment has the government made of the impact on the staffing of the medical and social care professions once its proposed new system of migration controls is imposed on medical professionals from other EU countries seeking work in Britain, and will it publish that assessment?
  7. Given the potential significance of that impact, will the government consider establishing special arrangements for the NHS within its new system of controls on EU migration?
  8. Will the government guarantee that the UK will continue to be involved in all current and future EU-led collaborations on Pan-European public health initiatives, including infectious disease control and cooperation against bio-terrorism?
  9. Will the government guarantee that the UK will continue to participate in the centralised marketing authorisation procedure for the licensing, sale and regulation of medicines governed by the European Medicines Agency?
  10. Can the government confirm whether the aforementioned European Medicines Agency will continue to remain headquartered in London?
  11. Will the government seek to negotiate continued access for UK research institutions to the Innovative Medicines Initiative and other EU-funded research and collaboration programmes, both to safeguard the funding streams they provide and to continue bringing together institutions from different EU countries together to pool their expertise and research?
  12. To that end, will the government also guarantee that the UK will continue to adhere to the EU regulatory framework on the authorisation and conduct of clinical trials? 143. If the government does not secure this access, how does it intend to make up for the considerable shortfall in funding that will result for the medical research sectors beyond 2020, and for losing the current benefits of cross-border collaboration?

Disability

  1. Will the government guarantee the full and prompt enactment of the European Accessibility Act into UK law, so that its provisions in respect of access to computers, phones, ATM and ticketing machines, e-books and television equipment are fully in force before Britain leaves the EU?
  2. Will the government guarantee that all existing anti-discrimination rights for disabled people underpinned by EU legislation will not just be fully transposed into UK law through the ‘Great Repeal Bill’, where they are not already, but will also be retained for the long-term?
  3. Will the government also commit to enshrine in law those protections for disabled people against discrimination that currently derive not from EU legislation, but from judgements of the European Court of Justice and the European Court of Human Rights, including the latter’s rulings on the government’s bedroom tax?
  4. Will the government guarantee to make up any post-2020 shortfall in funding aimed at promoting accessibility, inclusion and employment opportunities for disabled people that will arise when Britain leaves the European Union?
  5. Will the government also guarantee that accessibility for disabled people remains a clear and stringent part of the qualifying criteria for the grants deriving from any new funding system that replaces the ERDF and ESDF programmes after Britain leaves the European Union?

Culture

  1. Will the government commit to push for the UK to retain its membership of the Creative Europe programme, even after Britain leaves the European Union, so that our cultural institutions can continue to benefit from the funding and cross-border collaboration it offers?
  2. As part of the above, will the government encourage those British cities who were intending to compete for the title of European Capital of Culture in 2023 (including Dundee, Leeds and Milton Keynes) to press ahead with the preparation of their bids in the knowledge that the UK will still take part in the scheme?
  3. If the UK is no longer part of Creative Europe post-Brexit, how does the government intend to make up the shortfall in funding post-2020 for cultural institutions and initiatives in the UK? 152. Will the government seek access to the Digital Single Market (DSM) as part of any agreement on Britain’s future outside the European Union?
  4. If it does not do so, or is unsuccessful, how does the government plan: (i) to manage the risk that films and television programmes which would otherwise have been made in Britain may be relocated to other member states to stay within the provisions of the DSM; and (ii) to deliver the benefit for UK digital subscribers of being able to access the same online content and services wherever they travel in Europe?
  5. Following Britain’s departure from the EU, will football players with European passports be subject to the same work permit rules as currently apply to all other overseas players; will FIFA’s Article 19 ban on the international transfer of football players under the age of 18 be extended to transfers of European players by UK clubs; and if so, what assessment has the government made of the impact of these restrictions on the future competitiveness of UK football teams?

Transport

  1. How does the government propose to protect the continued ability of the UK rail, aviation and maritime industries to operate freely within the rest of the EU?
  2. In the area of aviation, if this requires the negotiation of free access to the European Common Aviation Area, how will the government ensure there is no delay between Britain leaving the European Union and such agreements being reached?
  3. Given that the UK’s ‘Future Airspace Strategy’ was developed (in concert with the Irish Republic) to implement the objectives of the ‘Single European Sky’ project, will the government remain committed to implementing that strategy even after Britain leaves the European Union?
  4. How does the government plan to make up for any shortfall in investment in the rail network arising from the loss of direct EU funding or loans from the European Investment Bank?
  5. Will the government commit to maintain the Common Vehicle Standards currently in operation across the EU to ensure road vehicles may continue to travel or be sold between owners in different member states without being subject to further inspections?

Taxation

  1. Will the UK’s VAT system post-Brexit continue to be broadly governed by the tenets of the EU VAT Directives, e.g. in terms of the number of VAT rates each country may set, the scope and incidence of VAT, etc., or will the government take the opportunity to reform the current system to a more bespoke British model?
  2. Likewise, will other taxes governed by EU directives (e.g. alcohol and tobacco duties, capital duties, etc.) remain constructed largely as they are at present, or will the government move towards systems of taxation in each area better tailored towards the interests of UK businesses and the Exchequer?
  3. Where, in different areas, the European Court of Justice has ruled in favour of taxpayers in disputes with the UK authorities over their tax rulings, finding them to be incompatible with EU law, what will happen in future when taxpayers seek to rely on those ECJ judgements; will we revert to a position where the authorities’ original rulings take precedence?

Parliamentary accountability

  1. Does the government accept that nowhere in the referendum question put to the British people on 23 June 2016, was it clearly laid out what agreement the government would be seeking to reach on Britain’s future relationship with the EU in the event of a Brexit vote?
  2. Does the government further accept that – looking at the detail of what was promised by the ‘Leave’ campaign in the run-up to that referendum about the consequences of a Brexit vote (e.g. a points-based immigration system, extra funding for the NHS, etc.) – all those promises have been abandoned by the current government?
  3. Does the government therefore accept that – while there is a clear democratic mandate from the British people to leave the European Union, which must be followed – there is no mandate whatsoever for the specific ‘plan’ it is developing for Britain’s post-Brexit future?
  4. What therefore is the government’s objection to the proposal to hold a Parliamentary debate and vote on that plan before the Article 50 negotiations are triggered, so that the public’s elected representatives have a chance to approve that plan before it is put into action?
  5. And similarly, will the government commit not just to consult the devolved administrations, the devolved territories and the Mayor of London, but to seek their approval and consent to the detail of its proposed negotiating plan?

On the matter of the ‘Great Repeal Bill’, can you answer the following questions:

  1. Given that many areas of EU law are policed and enforced by the relevant EU regulators, and that the government surely does not intend that they would retain that regulatory function within the UK post-Brexit, who will be responsible for the regulation of relevant laws contained in the Bill, for as long as they remain in existence?
  2. At present, if the UK courts are required to interpret the meaning of an EU directive, they may ask the ECJ for a preliminary ruling to guide them; if all such EU regulations are maintained – at least for an interim period – after Brexit, will the UK courts continue to follow the ECJ’s rulings as to what the underlying directive means, and if not, who will provide that interpretation?
  3. Since the government is proposing to convert many important protections currently guaranteed in EU law into statutory instruments (SIs) within UK legislation, can the government guarantee that any future effort to repeal these protections will not simply be made through secondary legislation, but subject to the proper parliamentary scrutiny and debate that they deserve?

 

 

 

Where are the women judges?

I remember chatting to a few Erasmus students during a module in my first semester of Final Year Law. It was a module about Understanding Human Rights, and we had just finished the seminar for that week: it had been focused on Feminist Legal Theory, rather ironic given the question that was soon posed to me.

“What do you need to do to become a judge here, Leah?” One of the (woman) students enquired of me. She had just finished outlining how the judicial system of appointment works in her country of France. I recall that I paused, and bit my lip.

“Well, probably be a man to begin with,” I answered back slowly, and with a sigh. She looked at me, as the other students around me – the Northern Irish ones, anyway – laughed. I soon joined in with the laughter.

You see, we were not laughing at the Erasmus students. (Most definitely not.) We were not laughing at the question. We were laughing, sarcastic, frustrated laughter, at the judicial system in Northern Ireland. A judicial system which is sadly lacking in gender parity, for women have scarcely any representation.

In fact, it will soon be a year since the first two women in the history of the judiciary in NI were appointed to the NI High Court. Upon being sworn into office, Denise McBride QC and Siobhan Keegan QC were the first women to be appointed to the position since the High Court was established in 1921. I remember hearing the news, and feeling a weird sensation of pride and exasperation: pride that these talented and experienced women were being recognised, and exasperated at the fact that it had taken so long for women to be appointed in the first place.

Their appointments were welcomed by the Lord Chief Justice, Sir Declan Morgan, who established the Women in Law group in 2012. He said the appointments made him feel as though “the hands of history” were on his shoulder:

 “This event was not just the product of what happened in the last couple of years, but the product of efforts made by both (legal) professions and the judiciary to ensure we have a judiciary reflective of the community and based on the principle of merit…This sends out a message that the judiciary are interested in getting the best people for the job and there are no barriers.”

This historic appointment occurred before my conversation with the Erasmus students. I still feel justified in my sardonic answer: two women judges on the NI High Court in its entire history does not confirm this legal glass ceiling has been broken.

After all, senior judicial ranks in NI have been a veritable citadel of male dominance since 1921. Moreover, this was not just confined to the judiciary. For much of that time, it was the status quo for the rest of the legal profession, too. Incredibly, during the first 50 years of the Bar Council in Northern Ireland, a mere eight women were called to the Bar. Of those eight women, only three went on to practice.

Nowadays, it might just be a case of the tables turning. There is said to be more women qualifying as barristers and solicitors than men in NI. In addition, there are also five female County Court judges, out of a total of 18. But when it comes to the most senior judicial positions, until the 23rd October 2015, all of those occupying the positions of Appeal Court and High Court judges were men.

Given the legal environment I am used to seeing, it did not come as a surprise to read that according to a comparative study of judicial systems across Europe, the UK has one of the lowest proportions of female judges within the judiciary.

The report by the Council of Europe, published last week, made for sobering reading for one from Northern Ireland. The report found that the judicial systems with the lowest percentage of women among professional judges were: Azerbaijan (11%), Armenia (23%), Northern Ireland (23%), Scotland (23%), England & Wales (30%) and Ireland (33%). To put the figures for Ireland, North and South, into perspective: the Europe-wide average for women representation among the judiciary was 51%.

By comparison, the European Court of Human Rights has a relatively good record on gender diversity compared with most international courts. Currently 17 out of the 47 ECHR judges are women (36%).

The confirmation of the gender imbalance in British courts comes days after the Justice Secretary, Liz Truss, pledged at the Conservative party conference to improve diversity in the legal profession. She said:

“Currently, only one in seven of QCs and one in three of partners in law firms are women. Fewer than one in 10 judges come from ethnic minorities. Only a quarter went to state school. This is modern Britain – we can do better than this.”

The report is the latest in a series of regular reviews of the quality, cost and efficiency of justice across the 47 member nations of the organisation.

This begs the question of why is NI/the Republic of Ireland/the UK struggling to maintain sufficient gender representation (not to mention BEM representation) in comparison to their European neighbours? To be fair, an explanation may be drawn from the differences in the legal systems across Europe, namely whether the jurisdiction is a common law or civil law jurisdiction.

You see, NI/the Republic of Ireland/the UK operate as a common law jurisdiction, whereas the majority of European states have a civil law jurisdiction. Common law procedures are significantly different from most of the continent, where judge-led inquisitorial systems are dominant. In most of Europe, lawyers may choose to specialise as judges at the beginning of their careers rather than towards the end. A consequence of this is that women are more easily recruited upon graduation and qualification. Arguably, this ensures women may be judges before they consider whether to start a family, that potentially career development-restrictive decision.

The report went on to say that across some states:

“the difference is explained by the relatively recent feminisation of the judiciary, whose effects are currently more noticeable [in the lower courts] than at second instance and in the supreme court. In Montenegro, female judges are a majority at all levels, as they are in Bosnia-Herzegovina. In Romania [where 74% of the judiciary are female], the percentage of women increases with each instance.”

I mentioned the lack of representation for those from a BEM background. The Justice Secretary had raised this during the Conservative Party conference. She noted only one out of the 12 justices on the UK Supreme Court, is a woman. Moreover, none of the UK Supreme Court justices are from a minority ethnic background. Whilst the Justice Secretary raised this issue, she did not propose any measures to rectify the problem and ensure better representation within the judiciary.

Overall, the Council of Europe’s European Commission for the Efficiency of Justice report found that a glass ceiling does exist, and does blocks access to the most senior judicial positions: ‘on the whole, there is parity in the numbers of male and female judges and public prosecutors’.

I think back to that conversation I had with my fellow students a year ago. I think about the historic moment in the NI judiciary which occurred around the same time. Parity cannot be said to be present in the NI legal system. It is something to be worked on going forward. A glass ceiling exists, and it is about time that it began to crack.

Brexit, Solicitors, and Irish Re-qualification.

It is safe to assume that the overall decision from the UK to leave the European Union in June caused consternation.

There was political consternation: David Cameron resigned as Prime Minister, prompting a Conservative leadership -contest-that-wasn’t-a-leadership-contest. (Labour just simply broke.) In Northern Ireland, there was a return to the cry for a border poll from the largest nationalist party, Sinn Fein. There was economic consternation, as the value of the British Pound Sterling sharply declined and the FTSE 100 suffered. There was social consternation, as national identities were challenged: Scotland and Northern Ireland held majority Remain votes, whilst Wales and England boasted majority Leave votes. Could the vote to withdraw from the European Union has ramifications for the future of the ‘United’ element of the United Kingdom, it was pondered.
There has also been consternation of the legal variety. There have been legal challenges to the referendum result, calls for Parliament to vote on the result, and of course the issue of withdrawing is a legal one, relying on EU Treaties (that would be Art 50 of the TEU, aka Lisbon Treaty). In Northern Ireland, there are two legal challenges also underway (and I’ll write about them at some stage).
There is one other very interesting legal development post-referendum taking place, and this is occurring outside of the courts. It is on the basis of requalification: there has been a surge in applications from UK lawyers to join the Irish Law Society. And it does not appear to be abating anytime soon.
 For fun fact: the number of solicitors from England and Wales seeking to register the Law Society of Ireland has now reached a staggering 568 applicants, as uncertainty about the impact of Brexit continues. This uncertainty will surely continue, given the recent comments by Prime Minister Theresa May at the Conservative Party Conference as to the timing of triggering Article 50: March 2017.

So far, 400 applications for the right to practise in the Irish courts have been accepted with a further 168 applications pending. These latest figures, which represent a vast six fold increase in the number of British lawyers registering to practise in the Ireland, have been attributed to the EU referendum vote from June.Why are these applications for registration underway, I hear you ask. Simply put, given the uncertainty over what Brexit means and what its consequences shall be, British lawyers are concerned that they will soon lose the apply to practice in EU law, or appear before EU courts. A successful application to the Irish Law Society would ensure that these British lawyers, registered with the Irish Law Society, would be permitted to continue working in the field of EU law. Essentially, whilst the UK withdraws from the EU, these lawyers, registered with a legal society in a EU member state, will be considered EU lawyers.

Magic Circle heavyweight Freshfields Bruckhaus Deringer, an international partnership with 2,500 lawyers worldwide, is alone responsible for some 104 registrations in Dublin to allow these lawyers to continues to appear before EU courts.

Simon Murphy is the President of the Irish Law Society,  and he met with Freshfields earlier this summer. He later said to The Irish Times that the firm explained how solicitors transferring to the roll in Ireland were members of the firm’s anti-trust, competition and trade law team, based in their London and Brussels offices:

“They have decided to take out qualification in an additional jurisdiction as a precautionary measure in advance of Britain’s exit from the EU, in case this might be necessary in the future to protect their status in dealing with EU institutions and their clients’ right to legal privilege in the course of EU investigations.”

Aside from Freshfields, other firms are seeking to transfer their solicitors. In September, the Irish Legal News reported it was expected that international law firm Kennedy’s would expand its Dublin operations. Meanwhile, firms that have reportedly been looking for new office space in Dublin in the aftermath of the EU referendum include Pinsent Masons and Eversheds.

Reports also have surfaced that suggested a number of lawyers at Freshfields, Slaughter and May, Allen & Overy, and Hogan Lovells had all applied to join the Republic’s roll of solicitors – all prior to the referendum result. Arguably, these solicitors and their firms considered pre-emptive action as the best course available before the referendum.

Just how big of a deal is this increase in applications for registration transfer? Well, a new report from the Solicitors Regulation Authority (SRA) highlights how the 310 UK-based solicitors admitted to practise in Ireland this year represents a huge increase on the 51 that qualified in 2015:

“It appears the main driver for this is a concern that solicitors in England and Wales will not be permitted to argue before the European Courts, such as the ECJ when the UK exits the EU…”

While the SRA said it could not give specific advice to individuals about career choices, it sought to provide reassurance that the rights of solicitors to practise in the EU had not changed since the referendum result.

“We have been given no indication of what the future relationship between the EU and UK will be…When negotiations have begun, any impact on solicitors will become clearer and we will provide further support and advice at that time.”

And there we have it. The ramifications of the EU referendum vote from this summer are many, and include consequences which perhaps were never considered in the discourse and the campaigning in the run-up to the vote.

It is interesting to note that sharp increase in the number of British lawyers seeking to register with the Law Society of Ireland. Even more interesting is the suggestion that many lawyers submitted their applications prior to the referendum. Evidently,  they thought it was a case of ‘better safe than sorry’. These lawyers thought ahead, after assessing the current landscape and the potential outcomes. It is a pity then that politicians, namely the British government, could not think to do the same.