De-bundling Free Movement: an acceptable solution for all sides?

BL61540The question of free movement was undoubtedly the central issue of the European Union referendum debate, and it will, surely, be the central question surrounding Britain’s future relationship with the EU. While Leave campaigners repeatedly assured us that access to the EU’s single market (presumably through the EEA) is quite possible without accepting free movement, the early rumblings from the EU institutions and Member States do not sound too promising.

There are, of course, numerous free movement rights within the EU: free movement of goods, of services, of capital, to name but a few. However, the contentious free movement is that of persons. However, the broad term “free movement of persons” is a relative neologism, bundling the long-standing right of free movement of workers with the more recent right granted to all citizens of the EU to move reside freely within the territory of the Union.

Contrary to the rhetoric that we have heard, it is in fact entirely possible to participate in some aspects of the single market without accepting the free movement of persons. This is the case, for example, in the Channel Islands, and the Isle of Man, which participate in the free movement of goods, but not people, services, or capital. However, while the idea of the “Channel Islands Model” sounds attractive to many, it is probably even less likely than Scotland doing a “reverse Greenland”. The Crown Dependencies are considered by Article 355 of the Treaty on the Functioning of the European Union (TFEU) as special cases, along with various other overseas territories and dependencies of the Member States. While they might demonstrate that it is at least possible to selectively participate in the internal market, they also demonstrate that you have to be a territory or dependency to do it – not a state.

The right of free movement for workers is intrinsically tied up with the internal market, being one of the “four freedoms” that has existed since the inception of the European Economic Community (EEC, or “the Common Market”).

Free movement of workers is provided for by what is now Article 45 TFEU. It provides that:

  1. Freedom of movement for workers shall be secured within the Union.
  2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
  3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
    • to accept offers of employment actually made;
    • to move freely within the territory of Member States for this purpose;
    • to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
    • to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

Paragraph 4 provides the sole exception, which applies to employment in the public service (though not, according to the ECJ, all employment in the public service, see Commission v. Belgium). The right was held to cover not only workers, but also those seeking work, by the ECJ in Antonissen, although in an inventive piece of jurisprudence the court held that the rights of jobseekers were subject to limitations.

The right of citizens to move and reside freely provided for by Article 21 TFEU is of more recent genesis. A product of the Treaty of Maastricht, free movement for citizens is a right that is applicable far more broadly than simply the economically active migrants to whom Article 45 TFEU applies. Article 21(1) TFEU provides that

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

It should be immediately apparent to even the casual reader that this right of free movement, though broader in scope, is much more circumspect than the free movement of workers.

The rights attaching to free movement of workers were expanded upon by Council Regulation (EEC) No 1612/68, and subsequently entangled with the rights of free movement of citizens by Directive 2004/38/EC.

The 1968 Regulation is comprehensive. Article 7 provides that

  1. A worker who is a national of a Member State, may not, in the territory of another Member State, be treated differently form national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.
  2. He shall enjoy the same social and tax advantages as national workers.

The Directive further provides for equal treatment with respect to trade union membership and housing. It also extends this treatment to spouses and dependents.

The 2004 Directive provides for far more limited rights for citizens than the 1968 Regulation. For example, Article 6 of the Directive provides that the right to move and reside in another Member State is only without restriction for the first three months. Thereafter, Article 7 provides that such migrants must

have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.

However, despite the clear intention of the legislating institutions to severely curtail the burden that such migrants may place on the social assistance system of the host Member State, this has not stopped the ECJ from granting entitlements to non-economically active EU citizens which any plain-text reading of both the treaties and the Directive would surely proscribe. The only recent example of the ECJ declining to extend a state benefit payment to a non-economic migrant is the 2014 Dano decision.

Could it be, therefore, that de-bundling the free movement of workers from the free movement rights of Union citizens is the compromise that would be most acceptable to all parties? It certainly has a number of advantages.

First of all, it would allow the EU to maintain that it has preserved the free movement of workers that is so intrinsic to the internal market. Meanwhile, the UK could claim a victory in having ended the absolute right of union citizens to move and reside freely, restricting the right solely to economic migrants.

It might also be a politically acceptable compromise, as it wouldn’t involve reviewing any of the treaty provisions regarding the internal market. Rather, it would merely involve reviewing the 2007 Decision of the EEA Joint Committee to adopt the 2004 Directive in full. No treaty change means there is no need for ratification, which would keep the debate surrounding it largely out of the domestic spheres of other EU Member States.

What this amounts to in reality is largely symbolic. As the definition of “workers” includes jobseekers, those looking for work will still be able to travel to and reside freely in the UK, at least until the UK Government can demonstrate that their job search is hopeless. In reality, the majority of non-economic migrants are retirees, and there are a far greater number of British pensioners in Europe than there are European pensioners in the UK. It may well be that when the Tory-voting Daily Mail readers of the Costa Del Sol discover that, in fact, they’re the only migrants who are about to be kicked-out of anywhere, our new government decides that the full free movement of persons principle is a price worth paying for market access after all.

The EU won’t change: whatever the result of the #EUref, the left has more to fear than the right

imageThe EU referendum campaign has been the weirdest in living memory. One day, David Cameron argues that we should stay in the EU as we “just don’t know” what will happen in the years ahead; the next, George Osborne confidently makes projections 25 years into the future. Lifelong Eurosceptic Jeremy Corbyn now embraces his inner Europhile in an effort to placate his MPs. Michael Gove, Iain Duncan Smith, and Boris Johnson now, apparently, want to throw cash at public services. Meanwhile, Nicola Sturgeon is making the argument that staying in the Union is better for jobs, trade, and investment – seemingly without a hint of irony. But perhaps it’s Alex Salmond, the most famous supporter of Scottish independence since William Wallace, making the argument that we should remain in the EU because otherwise Scotland will become independent, that takes the prize for utter ridiculousness.

However, aside from the somewhat strange positions adopted by politicians, there is a bizarre ideological contradiction at the core of both the “Leave” and “Remain” campaigns. That contradiction, quite simply, is that the politicians whose views are most in-line with the ideological underpinnings of the European Union are campaigning to leave, while those whose views are totally at odds with the EU’s direction of travel are campaigning to remain.

When considering an organisation like the European Union, there are essentially two orders of complaint.

The first order complaint is fairly ideologically neutral: that the European Union deprives the citizens of Member States of any direct say over matters that would usually be the subject of political discourse and division. Invariably, the main proponents of this argument appear to be drawn from the right. Complaints about the surrender of sovereignty can frequently be heard from the Conservative benches of the House of Commons, but seldom heard from the Labour benches.

The second order complaint is distinctly partisan, and from a left-wing perspective more worrisome: that having been deprived of any direct say over matters that would usually be the subject of political discourse and division, we have had imposed upon us a free-market ideology from which we are not at liberty to depart.
Though the preference for free-market ideology has been evident, in particular in judgements of the ECJ, since the early days of the EEC, the abandonment of the façade of ideological neutrality came during the 1980s. During this period we saw the entrenchment of a consensus that arose in the 1980s, when almost every Minister in the Council was drawn from the centre right. This consensus led to both the Single European Act and the Treaty of Maastricht.

In recent years, this ideological preference has become more overt. For example, in two recent cases before the European Court of Justice (ECJ), the Court ruled on a conflict between the rights of workers to withhold their labour and companies’ rights of free movement. Normally in cases such as these where two competing rights are in conflict the Court will grant a wide margin of appreciation to the Member State. However, in Viking and Laval, the Court ruled that the rights of workers were subject to the the rights of corporations, and not balanced by them. In doing so, the Court ruled that workers are only allowed to strike where it’s not too inconvenient for their employers. And there I thought the whole point of a strike was for it to be inconvenient.

The court further ruled in Viking that it was lawful for companies to discriminate between domestic and imported labour, thereby creating an incentive for companies to import workers from other Member States in order to undercut wages.

Of course, the most high-profile recent example of the EU’s ideological preferences can be seen in the treatment meted out to Member States who found themselves in fiscal trouble during the Eurozone crisis – in particular Greece. Having knowingly created artificially low interest rates in the so-called “PIGS” states, the EU institutions turned their backs on these states, insisting that “there is no alternative” to harsh austerity measures. Of course, there was an alternative – but one which would involve unpicking the ideological preferences of the EU.

The left consoles itself with the socialist scraps thrown from the EU’s capitalist table – such as directives on working time, maternity pay, and roaming charges. However, the left ignores the fundamental entrenchment of neoliberalism that the EU mandates.

Thanks to the EU, the most basic instruments of left-wing governments have been neutralised, with the exception of tax and spending (although the Commission’s coming for that next). States are no longer at liberty to nationalise, regulate, or subsidise as they see fit. A left-wing government wouldn’t blink at rescuing Port Talbot steel works – but even if Jeremy Corbyn was Prime Minister there’s absolutely no chance his government would get Commission authorisation for supporting the steel industry. In recent years, too, we’ve seen the Commission clamp-down on airport subsidies, of crucial importance to many in Scotland.

Unlike in domestic politics, this ideological preference cannot be undone by a majority, even a relatively sizable one. A similar uniformity of ideology as was evident in the 1980s would be necessary before a reversal of this ideological choice became possible, let alone likely. Such uniformity becomes less and less likely as more and more states are represented at the Council.

It is surprising, therefore, that so many on the Conservative benches are so antagonistic towards the European Union, relative to those on the Labour benches. If Conservatives don’t like that their political autonomy over the ideological direction of the country has been stripped away, they can at least console themselves with the fact that the levers of power of which they have been deprived are nonetheless being pulled in a manner that is, for the most part, to their pleasing. For example, John Major’s government actually quite liked the EU’s deficit-limitation rules because they represented the entrenchment of “good conservative values”.

By contrast, the left is usually quite at peace with not pulling the levers of power themselves provided that they are being pulled in a manner of their pleasing (the internationalisation of human rights is a good example of this). But in EU Member States control over the levers of power has been surrendered and that power is being exercised in a decidedly right-wing manner. It is astonishing, therefore, that the Labour Party should be the strident defenders of the European Union, while it is the Conservatives who are amongst its harshest critics. The Labour Party has convinced itself that the European Union can be a vehicle for left-wing ideology when sixty years of evidence has shown that the opposite is, in fact, the case.

Normally the place for debating substantive matters should be the internal democratic processes of the organisation – that is to say, European Parliament elections. The fact that these questions have dominated the referendum debate, and not the more relevant question of what power (if any) the EU should exercise is testament to just what a democratic failure the EU really is. Despite the seismic political shifts that have taken place in Member States in the past 30 years – the fall of Thatcher and Kohl, the rise of New Labour and France’s Socialist revival, the end of sixty years of Fianna Fáil hegemony in Ireland, and the annihilation of PASOK by Syriza, to name but a few – the political direction of the EU has never changed. If anything, recent evidence has shown that despite rising disquiet amongst voters, the determination of the EU’s leaders to pursue a right-wing, neo-liberal, free-market agenda has become more trenchant, not less.

So the right should console itself with the fact that they’ll almost certainly be getting their way whatever the result. If we leave there’ll be a Tory government in Westminster unfettered by the interfering busybodies in Brussels and Luxembourg. If we remain the EU institutions will be vindicated, and the free-market ideology will become even more entrenched. For the left, it’s difficult to find a silver-lining in either scenario.

This blog is adapted from an article I wrote for Grapevine – available now. 

What would Scotland’s political landscape look like under STV?

Last night, my dear friend James MacKenzie suggested that the next Scottish Parliament elections will be fought using Single Transferable Vote (STV), because the SNP, Greens, and Lib Dems all (apparently) support it and the Scottish Parliament now has the power to change it. While I think that is absolute rubbish (why would a politician as risk-averse as Nicola Sturgeon pursue electoral reform that wasn’t in anyone’s manifesto?)  I began to speculate as to what that would look like. So I set about putting together multi-member STV constituencies for the Scottish Parliament.

My first assumption is that, as local government in Scotland uses wards of either three or four seats that these would also be the predominant model used for Parliament seats too. However, any reform effort would doubtless come under significant pressure to include the possibility of five seat constituencies too, in order to prevent a systematic bias in favour of large parties. I’m also assuming that there will be 129 seats, on the basis that electoral reform would be an almost impossible sell if it simultaneously includes creating more politicians. It seems obvious to exclude three seats for the islands, though I’m avoiding the question of how you’d represent these three disparate areas under STV. That leaves 126 seats to be made up on the mainland. I have sought to follow the rules set out in the Scotland Act 1998, which are summarised as follows:

  1. So far as is practicable, regard must be had to the boundaries of the local government areas.
  2. The electorate of a constituency must be as near the electoral quota as is practicable, having regard to Rule 1.
  3. Rules 1 and 2 may be departed from where special geographical considerations (including in particular the size, shape and accessibility of a constituency) render it desirable to do so.
  4. Regard must be had for the inconveniences attendant on alterations of constituencies and of any local ties which would be broken by such alterations.

I also commenced the way the Boundary Commission for Scotland usually does, which is to start at the top and work my way down. The electorate data is from the last review of UK Parliament constituencies (which was not completed), so it’s a little dated. Nonetheless, it provides a relatively good indication of how it can be done.

The total electorate for the mainland is 3,873,387, making the quota for three, four, and five seat constituencies 92,224, 122,965, and 153,706, respectively. The proposed constituencies are as follows.

As the electorate data is broken down into wards, some of the divisions are a little clunky. This is particularly the case where the cities are concerned and wards have electorates in excess of 20,000 voters.

A handful of constituencies were particularly difficult to make up. One such example is Argyll and Bute – a seat that is not in the Highlands, but neither is it suburban Glasgow. It was difficult to put together a seat for Argyll that wasn’t vastly under the quota or vastly over the quota, and there appears to be very little that can be done at the fringes to avoid this (i.e. you either include Dumbarton, or you don’t). East and Mid Lothian is also considerably over quota, which could be more easily resolved by transferring some electors from Millerhill, Craighall, or Musselburgh into Edinburgh.

Geographically, the seats would look as follows:

How would #sp16 have panned out under this system?

It’s obviously impossible to accurately translate results from one electoral system into another. What this simply amounts to is educated guesswork – the factors involved are the constituency votes in the relevant existing constituencies, the strength of the parties’ list vote in the broader region, and guesstimates as to how transfers might pan out. In a good chunk of the seats this is a relatively easy task (for example, in Dumfries and Galloway, the vote share across the two equivalent constituencies amounted to two quotas for the Tories, one for the SNP, and one for Labour, while the Greens performed poorly in the south list relative to the rest of Scotland). However, in many others, I’m simply going on instinct. In those instances, the results are a good deal less than scientific. Finally, I’m assuming that, whatever way they were elected, the three island seats would have produced the same three MSPs.

Therefore, if the Scottish Parliament election had been held using STV on the above boundaries, my guess is…

SNP: 64, Conservatives: 28, Labour: 27, Lib Dems: 6, Greens: 4.

If you want to give it a go yourself, the full breakdown of my guesswork is available here.