28 Oct, 2016 @ 12:24
2 mins read

So what of European ‘citizenship’?

Charles Gomez
Charles Gomez

CAN the individual rights of 64 million UK citizens be made to disappear at the stroke of a pen?

In my column on October 1 I wrote about the British Government’s power to use the ancient Royal Prerogative to push BREXIT through, regardless of Parliament.

This week the UK’s Attorney General, Jeremy Wright Q.C. told the London High Court hearing the legal challenge over Theresa May’s right to trigger article 50 that the Royal Prerogative is suitable for giving notice of the UK’s secession from the EU.

The case has been brought by a number of claimants led by Gina Miller, a London-based investment manager for the firm SCM Private. Crowds of Brexit and Bremain supporters have demonstrated daily outside the court in a sign of huge public interest.

EU-FLAGAs the case proceeds, I think that it will be held that the Prime Minister can use the Royal Prerogative to side-step Parliament, but that this will only be the tip of an iceberg of complicated legal issues which will have to be determined initially by the special three-judge High Court bench currently hearing the claim.

It is my understanding that because of the urgency of the case, any appeal may go straight to the Supreme Court in London, avoiding the Court of Appeal, which is normally the next tier in the English Court hierarchy.

The hope is that the matter will be finally decided by the Supreme Court before Christmas (very much in the same way as in 1914 it was thought that the war would end before that holiday).

The Supreme Court (which replaced the ‘House of Lords’ in October 2009) is the highest domestic court, not just for England, but for the whole of the United Kingdom.

So, what other legal issues, apart from the use of the Prerogative, will tax the top judges of the Kingdom?

So far, most of the focus, post-23rd of June 2016 has been on the rights and obligations as between the Member States of the European Union – the UK and 27 others.
However, as the litigation proceeds, I envisage that attention will turn to individual civil rights.

As a matter of English, Scottish, Northern Irish and Gibraltarian laws, have the citizens of the United Kingdom and Gibraltar acquired “legitimate expectations” arising from UK membership which, it would be wrong in law for the executive government in Whitehall to do away with?

For example, is the UK Government able to withdraw from its citizens the rights of free movement throughout the EU that they have grown to expect? Are constitutionally protected private rights engaged by the Article 50 trigger?  Can the courts adjudicate on this, in the first place?

Expectations often create enforceable legal rights.

Moreover the matter goes further than mere expectation because Article 20 (1) of the Treaty on the Functioning of the European Union states that: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”

Even in Roman times the so called jus soli (the right of a person born in the Empire to citizenship) was remarkably difficult to eliminate. In our time it remains difficult to withdraw citizenship even from recently naturalized convicted terrorists.

Can the individual rights of 64 million UK citizens be made to disappear at the stroke of a pen?

Therein are going to lie great legal difficulties which have nothing to do with Frau Merkel or Messrs Shultz and Junckers.

To complicate matters even further, the European Court of Justice retains jurisdiction in relation to matters pertaining to the rights of citizens of the EU – that would of course include an attempt at removing those rights.

There is a school of thought that the European Court of Human Rights might also have jurisdiction. Thus, all is set for the mother of all legal cases and we could end up with a Brexitier’s nightmare of the final legal decision being made in… Luxembourg!

In an earlier piece still, I said that the only certain thing is uncertainty, and I think that by the end of the year the issues under judicial as well as political scrutiny are going to be very different indeed to the ones that everyone has been talking about and giving confident analysis on over the last few months.

Charles Gomez (OP Columnist)

Charles Gomez has been a barrister for more than thirty years and is currently an Honorary Professor of International Law at the University of Cadiz, where he hosts lectures in English and Spanish.
Readers of the Olive Press are invited to discuss this or any other legal matter with Charles Gomez by emailing charles@gomezco.gi


  1. Luxembourg was a dirt poor little country where most had to go to the Netherlands or Germany to find work until an ugly tax fraudster created all the tax scams and lo and behold this same crook was almost unanimously elected president of the EU – you could’nt make it up – well allright in Brussels you can.

  2. “Every person holding the nationality of a Member State shall be a citizen of the Union.”
    The thing is that the UK and its colonies are NOT a member state of the EU anymore.
    So, British citizens are NOT citizens of the EU anymore.
    It is NOT that difficult, is it?

    • Jumping the gun Pablo. Article 50 is yet to be signed, until then we most definitely ARE still citizens of the EU. Simple, isn’t it? Britain is still tipping up three hundred and fifty million quid a week, on which teat Spain is greedily sucking on, contributing zilch itself.

      • stefanjo, british debt with spain is 5 times bigger than spanish debt with britain.

        and let tell you that nobody cares if the uk triggers the article 50 or not.
        they are already OUT for the 27 members.

        • Different teat Pablo. Spain sucks up over twice as much money FROM the EU as the UK.
          Inter-bank borrowing is a different animal.
          And why do you insist on using stupid American slang?

  3. I wonder what proportion of the 52% Leave voters actually travel or benefit from freedom of movement? Not many I suspect. How many old Leave voters will be dead in 5 years’ time and how many younger people who wish to benefit from freedom of movement will have reached voting age? This is a game changer because the 48% Remain voters will suddenly become well over 50% and they will not want to lose these rights and opportunities.

    The only solution is for the UK to join the EEA.

    • There is still another solution Jane G, it’s not too late for a braver person than “Maggie” May to nullify the nonsense ref. which ISN’T legally binding.

        • Mon Dieu Jane…
          So for you, the vote of older people is worthless?
          Try to be more democratic and accept that the majority of the UK, which includes their european colony, does NOT want to be part of the EU anymore.
          They are out of the EU and the WTO.
          Deal with that.

          • Do your sums Pablo. In actual fact, only just over 37.5 percent of voters opted for Brexit. That does NOT constitute a majority of the British population. A vote as close as that would not be accepted, as a mandate for a legal strike. Therefore the same rule should apply for a non legal-binding referendum.
            Nor, incidentally, did Northern Ireland, Scotland or Gibraltar vote for this foolishness.

  4. When I worked in the Netherlands, many Dutch would ask me why there were so many Brits who mouthed opinions as facts, when I gave them an answer they used to laugh their heads off.

    Whenever I have asked a Dutchman or German a question all have said whether they were stating their opinion or a fact, this rarely happens with Brits and boy on this forum there are so many who fit this description.

  5. Oh dear, some are going to have kittens. All this hype about being able to close the Gibraltar frontier must have seemed quite the opportunity, only to find it’s pie in the sky, Again!

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