The UK General Election and Brexit: Comparing Party Manifestos

Professor Steve Peers

Tomorrow sees another general election in the UK, just two years after the last one. Since this is (according to the Prime Minister) an election on Brexit, it seems appropriate to review the parties’ views on this issue, including future UK/EU relations. I will examine the parties’ views in turn – focussing on larger UK-wide parties plus (due to its political importance) the Scottish National Party. The final section is an overview and comparison.

Conservatives

The Tory manifesto position on Brexit is largely a summary of the position set out in the Brexit White Paper (discussed here), and the planned Great Repeal Bill (discussed here), which would keep EU law as part of ‘UK law’ for the time being. Essentially, the Tories believe that the future UK/EU relationship should be based on a free trade deal without ‘vast’ payments into the EU budget or free movement of persons. Participation in the customs union and internal market would end, and there are some details about the transition to full separate UK participation in the World Trade Organisation. There’s an objective of continuing security cooperation with the EU, but the details are not spelled out.

Some fair settlement of UK accounts would be made upon departure from the EU, but the Tory policy is ‘no deal is better than a bad deal’ – without spelling that position out further. Fortunately, the UKIP manifesto (discussed below) addresses this point. Unlike UKIP, the Tories do not attempt to ‘sell’ the no-deal scenario – which is just as well considering the concerns about its potential economic damage. Rather there is much discussion of what the positive outcomes of a deal would be.

Future immigration policy would retain an objective of net immigration below 100,000 – which would entail reducing non-EU migration (an issue largely outside the scope of EU law for the UK) as well. This would include further restricting the number of foreign students and family members, despite promises from the Leave side made during the referendum campaign to make it easier to admit UK citizens’ non-EU family members.  

Labour

Labour accepts the result of the referendum but sets out in more detail than the Conservatives what the future UK/EU relationship would look like.  It supports continued relations with Euratom and the single energy market, plus wants to maintain the ‘benefits’ of the single market and customs union without explaining how. Other remarks from the party suggest that it opposes continued participation as such in the single market and customs union, and opposes free movement of persons continuing.

Labour reject the ‘no-deal’ option, support a transitional deal, and list a number of areas where they still wish to cooperate with the EU: research programmes, Erasmus, Europol, Eurojust, the European Arrest Warrant (EAW), climate and anti-terrorism cooperation.  They have a different policy from the Tories on future family migration, as they would waive the strict income requirements for family members rather than tighten them. (There would still be a requirement not to use public funds). They would ‘guarantee existing rights’ of EU citizens in the UK. They set out in detail their future trade policy, insisting on links between trade and other concerns like the environment and human and labour rights.

Liberal Democrats

The LibDems aim for a referendum on the final Brexit deal, and support continued membership of the EU single market (including free movement of people) and customs union. They make specific reference to staying in Erasmus, preserving social and environmental rights, and participating in Europol, the EAW, EU databases, EU research funds, the European health card, abolition of roaming fees, and pat passports. Like Labour, they suggest links in between human rights and the environment in future trade deals. LibDems also give some detail on the position of EU citizens in the UK:

Greens

Similar to the LibDems, Greens propose a referendum on the final Brexit deal, and seek to continue with free movement and the single market. They also wish to guarantee EU citizens’ rights, retain social and environmental safeguards, and link trade deals to other standards.

Scottish National Party

The SNP manifesto views on Brexit reiterate its two key positions: Scotland, or the UK as a whole, to stay in the single market (previously discussed here), and a Scottish independence referendum when the terms of Brexit are known (previously discussed here). They also repeat their support for guaranteeing EU citizens’ rights.

UKIP

Finally, that brings us to the UKIP manifesto. This manifesto gives us an indication of how the ‘no-deal’ scenario hinted at in the Conservative manifesto might play out. UKIP opposes the use of the Article 50 procedure to negotiate with the EU, focussing instead on the purely domestic law change of repealing the European Communities Act. They still aspire to a free trade deal with the EU, however, although they are indifferent to whether they get one – since they also promise to spend the £11 billion “windfall” from tariffs on EU goods. There’s no acknowledgement of the effects on the UK economy of this scenario: indeed, they argue that talk of a “cliff edge” from leaving the EU without a trade deal is “hyperbole”, since trade will still continue. This ignores the obvious prospect that the level of trade will decrease if tariffs and non-tariff barriers are imposed. While they reject the single market and customs union, they want EU/UK trade to continue “on the same basis as present”.

In any event, UKIP not only refuse to make any payment upon departure, they expect the UK to receive a sum from the EU as it leaves. Moreover, they pledge to oppose the existence of customs unions like the EU in the World Trade Organisations – even though the WTO expressly provides for the existence of customs unions, and (as UKIP even acknowledge) the EU is a WTO member in its own right.

Overall then, UKIP expects to receive all the current trade benefits of EU membership, with none of the perceived drawbacks, plus a payment on the way out. All of this while refusing to use the official departure route and campaigning to end the EU’s existence as a customs union and WTO member. If you seek a visual metaphor for how UKIP sees the world, imagine their leader Paul Nuttall – a star football player in his own mind - repeatedly scoring penalties over the heads of 27 massed goalkeepers.

UKIP’s rage against the dying of their light deserves one final paragraph. Their immigration policy includes not just an unreal zero migration target, but also a demand that new immigrants observe UK “values” to be admitted. This from a party who have continually disregarded the basic British values of tolerance, equality and fair play: members have referred to gays causing floods, and repeatedly insulted minorities. Indeed, after the last European Parliament election, to receive EU money UKIP did a deal with a party whose leader denies the Holocaust, and claims that women are inferior and obtain their political beliefs via biological transmission from the men they have sexual intercourse with. Clearly, politics’ loss is gynaecology’s gain.

Overview

There are two broad categories of opinion on the EU in this election, but also important differences within each group. The Liberal Democrats, Greens and SNP want to continue participation in the single market as well as a number of other EU policies. Moreover, all three parties want to offer the option of continued EU membership – the LibDems and Greens by means of a UK-wide referendum on the final deal, and the SNP by means of a referendum on Scottish independence.

The Conservatives, Labour and UKIP all favour departure from the UK without the single market, the customs union and free movement of persons, and aim instead for a free trade deal with the EU. However, these similarities soon end.  Like the first group of parties, Labour would guarantee EU citizens’ rights (in fact, it supports guaranteeing their existing rights, an important nuance), and would seek participation in a number of specific EU measures. The Tories are considerably cooler and less detailed on these issues, and are willing to contemplate a ‘no-deal’ scenario, although they cannot bring themselves to ‘sell’ it. Labour would welcome foreign families and students; the Tories see them as numbers to be reduced.

UKIP offers voters not just one fantasy, but a choice of two fantasies: either a problem-free ‘no-deal’ scenario, or a deal with all of the benefits and none of the supposed drawbacks of EU membership, with a gold watch for UK service to the EU thrown in for good measure. Of course, some would argue that UKIP’s fantasies are simply more explicit than Labour’s or the Conservatives’ – since the EU has made clear in its negotiating position that it is not possible to retain all benefits of the single market for a former Member State which leaves it.

Voters may not wish to make Brexit the main reason for their vote, or may in any event choose to cast a tactical vote against a party they dislike, rather than vote for a party which they most agree with but which has no chance of winning their seat. But it can hardly be said that all parties take the same view on Brexit issues, and the summary above makes clear that for those whose concern is Brexit first and foremost, there is a lot at stake in this election.

Manifestos: Conservatives Labour Liberal Democrats Greens Scottish National Party UKIP

Barnard & Peers: chapter 27

Photo credit: BBC

Fact-checking Nigel Farage: Will the EU’s asylum policies admit half a million terrorists?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party, argued that the EU’s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in the slightest. First of all, the EU policy, as I discussed last week, is essentially to reaffirm the status quo.  The current limited maritime surveillance missions will be expanded, although it is not clear if they will amount to fully-fledged rescue missions. This probably means that more people will reach the EU, but this will only be for the reason that fewer of them will drown en route.

Once in the EU, they will be able to make claims for asylum – but that is no different to the current law. The EU’s plan does not involve any changes to EU asylum legislation; it simply calls on Member States to apply those laws.  The EU did commit to some form of direct resettlement of refugees from third countries – but EU leaders could not even agree on the tiny number of 5,000 refugees to be settled next year.

Farage would prefer a policy of returning people to the countries they left. In fact, asylum-seekers can already be returned to their countries of origin or transit, if it is clear when examining their application that those countries are safe. But in accordance with the UN (Geneva) Refugee Convention – which UKIP purports to support – they cannot be returned to an unsafe country. Libya, for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants. In any event, asylum-seekers who prove to be terrorists must be denied refugee status or other forms of protection status, as the CJEU has confirmed.

Farage demands that David Cameron veto the EU’s plans, but that simply isn’t possible, because the UK has an opt-out from EU asylum and immigration law. We can choose not to participate, and indeed the UK has already chosen not to participate in any of the second phase EU asylum measures, except for those which transfer asylum-seekers from the UK to other Member States. We can choose not to participate in any future measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration and asylum law has in fact been subject to qualified majority voting since 2005. (Laws on legal migration were subject to unanimous voting until 2009; but the EU’s plan does not address legal migration issues).

As regards border control operations in particular, the UK doesn’t participate fully in the EU’s border control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the full Schengen system of abolishing internal border controls. Instead we have an informal arrangement, for instance supplying some hardware to assist with the expanded surveillance operations. But even that sort of informal arrangement is under challenge in a case pending before the CJEU.

In some ways, Farage’s own policy runs its own risks. He has argued that Christians in particular should be admitted as refugees into the EU. As I have pointed out, this again violates the Geneva Convention that UKIP purport to support, since that Convention requires non-discriminatory application on grounds of religion, and it would also be unfeasible to distinguish between Christians and Muslims during rescue at sea. But if Christians are being resettled directly from areas afflicted by Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in Libya and Nigeria.  Most of the people who have been linked to Daesh in Europe have been EU citizens who travelled to parts of the Middle East to participate in atrocities. Any migrants who were rescued from boats or who were resettled directly from conflict areas would presumably be disarmed of any weapons they were carrying en route. Of course, they might obtain weapons once they reached the EU; but since Farage is an outspoken critic of gun control, he is part of the problem, not of the solution, to that issue. As for the figure of half a million Daesh fighters coming to the EU, that's 20 or 30 times the CIA's estimate of the total number of all Daesh fighters.

Finally, Farage argues that the EU has cynically used the migrant deaths crisis to develop a comprehensive immigration and asylum policy. If only it had: in fact, the EU’s response is largely marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this glass house. It is Farage who is trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this opportunity to make an inaccurate and incoherent rant in the midst of an election campaign.

The UK's general election: a fundamental change to UK/EU relations?

Steve Peers

The result of the current British election campaign could be crucial for the future of the UK’s relations with the European Union. Every UK-wide election party which is likely to win seats in the election has now released its election manifesto, namely: the Conservatives; Labour; Liberal Democrats; UKIP; and the Greens. It’s therefore a good time to examine what the parties are saying about the EU, and what the various post-election scenarios would mean for the UK’s relations with the EU.

According to pollsters, at present the most probable outcome of the election is that no party will have an overall majority, although there is a small possibility that either the Labour party or the Conservative party will obtain enough seats for a majority. In the absence of a majority, either the Conservative party or the Labour party will try to obtain enough votes to govern from other parties, which are likely to include parties running in Wales, Scotland and Northern Ireland.  So it’s necessary to consider what these other parties’ view on the EU is, and (more indirectly) whether they are likely to support Labour or the Conservatives in office.

Of these parties, only the Welsh Plaid Cymru has released its manifesto already, but I will refer to the other parties’ positions to the extent that they have been announced to the press: the Scottish Nationalist Party (SNP) and the Democratic Unionist Party (DUP). I won’t discuss Sinn Fein, since it will not take up its seats in Parliament, or the Northern Irish Social Democratic and Labour Party, since it sits and votes with the UK-wide Labour party.

Party manifestos

There’s a lot in the manifestos that touches upon EU-related policy. For instance, the Liberal Democrats promise a ‘Digital Rights Bill’, which is closely related to EU laws on data protection and net neutrality. EU law also has a big impact on environmental law, consumer law and some other policies. But I will focus here on the key question of ‘Brexit’, ie the UK’s withdrawal from the EU.

The Conservative party re-iterates that party’s policy of renegotiating EU membership and then holding an in/out referendum by the end of 2017. The renegotiation would focus on free movement (‘immigration’) from the rest of the EU, although the manifesto also refers to changing the principle of ‘ever closer union’ of EU Member States, and protecting the interests of non-eurozone Member States.

The Labour party manifesto refers to specific EU reforms, including EU immigration issues. It promises an in-out referendum if there is a further transfer of powers from the UK to the EU  This policy pledge is a development of current legislation (the 2011 European Union Act), which requires a referendum already in the event of such transfer of powers – but not an in/out referendum. However, the party does not promise an in-out referendum relating to the renegotiation. Indeed, they have made much of their opposition to that prospect.

The Liberal Democrats also promise an in-out referendum if there is a further transfer of powers from the UK to the EU. In fact, it’s their long-standing policy. They don’t call for a referendum following renegotiation.

The UK  Independence Party reiterates its long-standing policy in favour of the UK leaving the EU. It calls for a referendum to be held ‘as soon as possible’, with the preferred question ‘Do you want Britain to be a free, independent and sovereign democracy?’. They support a negotiated withdrawal, rather than a unilateral departure.

The Green Party declares itself in favour of the EU, although supports reform of it, and favours holding an in/out referendum on EU membership. However, it seems unlikely that this party would support a Conservative-led government.

Plaid Cymru declares that it is pro-European, and makes no demand for a referendum. It also seems unlikely that this party would support a Conservative-led government. The SNP support the UK’s EU membership, but in the event of an in/out referendum, they would like the public in each region of the UK to have a veto on leaving. This party has expressly ruled out supporting a Conservative-led government. The Labour party has in turn ruled out a coalition with the SNP, although it has not ruled out less formal arrangements.  

Finally, according to press reports, the DUP supports an in-out referendum on EU membership. It’s not clear if they would support renegotiation first, or would like an immediate referendum along the lines of UKIP. The DUP has traditionally supported Conservative governments in the past, although the party has declared its willingness to negotiate with the Labour party as well. It’s not clear if they would insist upon an EU referendum as the price of their support of a Labour government (it would be superfluous to insist on one as a condition of supporting the Conservatives). It’s also not clear if, like the SNP and Plaid Cymru, they would insist that Northern Ireland would also have to vote in favour for Brexit to be valid, but I doubt that this is their view, since they traditionally seek stronger ties between Northern Ireland and the rest of the UK.

Analysing the manifestos

To make things simpler, I will assume that politicians will stick to the policies that they are promising. Of course, it’s always possible that politicians will break their promises; some might say that this is about as certain as death and taxes. But politicians do keep some promises, and in some cases there are strong pressures on them to keep those pledges. For instance, if David Cameron reneged on his renegotiation policy, he would not last 24 hours as leader of the Conservative party.

There are three different visions of the UK’s future with the EU on offer: an immediate Brexit referendum (favoured by UKIP); renegotiation followed by a referendum (supported by the Conservatives); or renegotiation without a referendum (supported by Labour and the Liberal Democrats).

The latter two parties do support a referendum in the event of a transfer of powers from the UK to the EU, but that would only happen if there were a Treaty amendment that other Member States appear to have little enthusiasm for. In the event that Eurozone Member States want new measures to ‘save the euro’, it’s possible to agree separate treaties or EU legislation among themselves (as they have before), or, if necessary, to agree on amendments to the EU Treaties which only apply to the Eurozone states, or which otherwise give the UK an opt-out. In that case, there would be no transfer of powers from the UK to the EU, and so no need for a referendum.  Simply put, an in/out referendum under the Labour or Liberal Democrat policies is very unlikely.

As for the details of the Brexit policies, I have commented already on the details of the Conservatives’ intentions to renegotiate the free movement rules, and so won’t repeat these points again.

While UKIP make much of the need for an unbiased referendum campaign, their suggested question is clearly biased. A genuine unbiased question would be: ‘Do you support the UK remaining a member of the European Union, or leaving it?’, with boxes for ‘remain’ and ‘leave’ (so that neither side has the supposed advantage of being the ‘Yes’ vote).  

The demand for regional voting on a Brexit referendum in the different parts of the UK is clearly incompatible with the constitution of the UK as it currently stands. It resembles the arrangements in federal states like Canada, Australia and Switzerland, where there are both national and regional thresholds for constitutional amendments. But the UK is not such a state – though whether it should be one is a rather broader question. In any event, it’s a moot point, since it would only arise in practice if the SNP is supporting a Conservative government – which it has said it won’t do.

Negotiations between parties

What happens if no party holds a majority? The exact composition of the next government will then depend on negotiations between the parties, which in turn depends on the exact numbers of seats each gets. It’s too early to predict that now. But some basic points can be made.

First of all, it’s simply not true, as Professor Tim Bale has pointed out, that the biggest party always gets to form the government. It’s rare for the second largest party to form one, but it’s entirely legal and consistent with constitutional convention if it does.

Secondly, the Liberal Democrats have clearly indicated via press reports their willingness to compromise on the Brexit issue, and to support the Conservative demand for a referendum subject to discussion of the details, such as the width of the voting franchise and the wording of the referendum question. A Brexit referendum is clearly a ‘red line’ (non-negotiable issue) for the Tories. So a renegotiation and referendum would be likely to take place if the Tories and Liberal Democrats hold a majority of seats between them, or if the Tories, Liberal Democrats and DUP hold a majority.

Thirdly, a coalition or other arrangement involving UKIP (Tory/UKIP; Tory/DUP/UKIP; Tory/LibDem/UKIP; Tory/LibDem/UKIP/DUP) might have difficulty agreeing on the Brexit issue, due to the different policy of UKIP. Some Conservative backbenchers would undoubtedly like to a see an immediate Brexit vote, but others in the party, and the Liberal Democrats, would not. But it would be awkward for UKIP to back down on its most important policy.

If Labour and the Liberal Democrats held a majority, or if Labour formed a government in most other scenarios (Labour/SNP; Labour/LibDem/SNP; Labour/SNP/Green/PC etc) a Brexit referendum is highly unlikely.

Finally, in the improbable event that Labour and the Conservative party do a deal, differences in the Brexit referendum policy would be one of many obstacles. But the far bigger issue would be managing the consequences of hell freezing over.

Passing EU-related legislation

Finally, would there be any difficulties legislating for Brexit? It can be assumed that a Tory-led government would immediately introduce a government bill to put into effect its planned referendum. One potential problem here is the House of Lords, which blocked a previous private member’s bill which aimed to put this policy into law. The so-called ‘Salisbury Convention’ means that the House of Lords does not block government bills which implement policies which were set out in the leading party’s manifesto. According to the House of Lords itself, the convention should only apply if all of the coalition parties have set out the same policy – but only the Tories (and likely the DUP) have set out a renegotiation and referendum plan in their manifesto. That could lead to the House of Lords blocking the referendum Bill. Although a majority in the House of Commons could use the Parliament Act to overrule the Lords, that would mean a year’s delay in the law coming into force, which might complicate renegotiation talks.

Art credit: Adam, Daily Telegraph

Barnard & Peers: chapter 2

Who should get the vote in a Brexit referendum?

 

Steve Peers

“Nasty Yes won the referendum yesterday”

That was my initial response to the Brexit referendum of 1975, written precociously in my childhood diary. I rather suspect that a hundred or so miles away, in a rather posher diary, and in an infinitely posher school, David Cameron was writing exactly the same words.

Of course, we had different motivations for this youthful flirtation with the Dark Side. In my case, I was simply copying my parents’ left-wing opposition to the EU, which remained unabated even though my dad had been one of the very first British citizens to (briefly) exercise the free movement of workers to another Member State. (I remained in the UK with my mother, who was a third-country national; it’s lucky we didn’t end up as an EU law exam question).

On the other hand, David Cameron probably didn’t care much about the referendum at all, but felt he needed to write those (hypothetical) words in his diary so that right-wing Eurosceptic bullies would finally leave him alone. They didn’t.

Forty years later, it looks like we may have another Brexit referendum in the near future, depending (as things stand) upon the very uncertain result (and aftermath) of the general election due in May. I have already blogged here about the reasons why advocates of the EU should support such a referendum. My topic today is who should get the vote in a Brexit referendum; I suspect many on the pro-EU side won’t like my argument on this issue much either. But like my case for a referendum, I believe that the case I make here is a principled one – and ultimately, the pro-EU case can only legitimately be made upon principled foundations.

Although it’s not yet certain that a Brexit referendum is imminent, I am prompted to write now on the issue of the franchise due to comments on the weekend by Nigel Farage, the leader of the UK Independence Party, who said that only British citizens should get the vote in the referendum. It wasn’t clear whether he thought British expatriates in the EU (or elsewhere) should also get it.

The starting point should be the franchise rules that already exist, although they could be changed for a referendum (as they were for the Scottish independence referendum last year). Among the existing rules, it makes sense to focus on those for UK-wide elections, rather than those for local government or the devolved bodies in Scotland, Wales and Northern Ireland, since a Brexit vote would be held nationwide.

There are two nationwide templates to choose from. In general elections, all British, Irish and Commonwealth citizens can vote, as can any British expatriates if they have been away from the country (whether in the EU or elsewhere) for less than 15 years. In European Parliament elections, citizens of all European Union countries can vote.  (For more details, see here).

At first sight, it might seem attractive to argue (as many on the pro-EU side do) that all EU citizens in the UK should get the vote. The departure of the UK from the EU would certainly affect them fundamentally. Even though UKIP’s current official position is that all those legally present should get to stay, there’s no guarantee that this protection would exist in practice after Brexit. And giving all EU citizens the vote is not unprecedented for nationwide elections, as they have the vote in European Parliament elections. (Indeed, they have the vote in local elections too).

However, this argument should be rejected, for two reasons. First of all, European Parliament elections are different in principle from other nationwide votes. They determine who will be the UK’s Members of the European Parliament, but that is a multinational body with a role in EU-wide decision-making. Of course EU laws have an impact on the UK, but the European Parliament is not the place where decisions distinct to the UK as a separate state get made. In contrast, such decisions get made via means of direct democracy, in nationwide referendums, and more frequently via means of indirect democracy, via means of our vote for the national parliament. So it makes more sense for all votes on the future of the UK as a separate state to be subject to the same franchise rules. In fact, this is the practice: the Westminster voting rules (leaving aside members of the House of Lords) were applied to the 2011 referendum on a change to the electoral system, and in the recent private members’ bills (supported by the Conservative party) providing for a 2017 Brexit referendum.

The second argument is one of legitimacy. If the pro-EU side narrowly wins a Brexit referendum in which all EU citizens are allowed to vote, Eurosceptics will endlessly claim that the election was ‘stolen’ from them. I can already anticipate the reaction to this point: Eurosceptics will demand another referendum anyway. The historical parallels are legion: Quebec separatists demanded another referendum after they lost the first one in 1980; Scottish nationalists are already agitating for a second independence referendum; and the Eurosceptics of the 1970s took over the Labour party shortly afterward.

But the point is not to try to stop hardcore Eurosceptics arguing for another Brexit referendum. They are bound to do that. The point is to stop them winning the argument for another referendum in public opinion more broadly. The pro-EU side should aim to win that argument fairly, by ensuring that the upcoming Brexit referendum (if there is one) is, as far as possible, beyond reproach.  (Again, of course hardcore Eurosceptics are bound to reproach it if they lose; the battleground is mainstream public opinion). The result of a Brexit referendum is always likely to be seen as a little bit dubious in mainstream public opinion if it depends on the votes of people who don’t usually have the vote in general elections, given that EU citizens can only vote in EP elections in the first place because of EU law. A good historical parallel would be the Canadian election of 1917, which was won by a pro-conscription party in the midst of the First World War by disenfranchising conscientious objectors and enfranchising women, but only if they were related to servicemen. For good reason, this victory was regarded as illegitimate by those opposing conscription.

Furthermore it’s not impossible to convince the broader public that a fresh referendum is unnecessary, where there’s a good case that the earlier one was clearly legitimate. After all, while Quebec separatists did get to hold another referendum in 1995, they have not yet secured another one despite their very narrow loss on that occasion. The Eurosceptic takeover of the Labour party proved shortlived, since it contributed to splitting the party and its biggest electoral defeat since the 1930s.

Should the franchise be changed in some other way for a Brexit referendum? No, for the same reason: any special rule would look like an attempt to fix the result, possibly in a Eurosceptic direction. So the franchise should not be narrowed to British citizens only: Irish and Commonwealth citizens have the vote in general elections, so should have the vote for the Brexit referendum too. (Remember that Cyprus and Malta are in both the EU and the Commonwealth). So should British citizens living abroad, whether they are living in the EU or not. It can’t be assumed that they are all pro-EU voters, as my dad’s example shows. Some of them may even have left the UK because of a belief that there were too many immigrants there – displaying an obvious lack of appreciation of irony.

What if the general election mandate is changed anyway? There may indeed be a case to be made that only British citizens should vote in general elections. However, for good reasons, there is a tradition that changes to the franchise need broad support across the political spectrum, including the main opposition party. And it would clearly be obnoxious to shove through a change to the franchise in the last few weeks before a general election. If there is such broad support for changing the franchise after the next general election, the first time to apply the new rules should be the subsequent general election, not any Brexit referendum that might take place.

My argument above will disappoint those who believe strongly that EU citizens in the UK should have the vote on a matter that affects them so significantly. But the case against letting them vote in a Brexit referendum is also tactical: the complaints against it are more likely to lead to a further referendum in the near future, or even to increase the votes for the anti-EU side. Yet even if the net result of letting all EU citizens vote would be to increase the pro-EU vote, it would be wrong to give them the vote in principle. And if EU citizens are particularly keen to vote, they could always consider obtaining UK citizenship.

Postscript (10 May 2015):

The above analysis obviously becomes more relevant after the results of the UK general election, given that a referendum on EU membership now seems certain to happen in the near future. That doesn't give me any reason to change my view, but it's a good occasion to make two further points.

First of all, I would reiterate the case against changing the voting franchise at all for the EU referendum, no matter what the changes concern. So the UKIP argument that 'only UK citizens should have the vote' should also be rejected, because it is equally wrong in principle. If Commonwealth citizens and Irish citizens can normally vote on the key issues facing this country in general elections, why can they not vote on the question of EU membership? Excluding them would appear to be an attempt to bias the vote toward the anti-EU side. Similarly, while I am in favour of extending the vote to 16 and 17-year-olds, the EU referendum would be the wrong time to change the rules. Again, it would appear to be an attempt to fix the results, particularly in light of the bizarre UKIP argument that young minds have been polluted by EU colouring books featuring evil Euro-cows.

Secondly, I think there's a better way to put my argument of principle against allowing all EU citizens to vote in the EU referendum. The whole point of the referendum is to decide on the polity (ie the political identity) of the UK in the first place. Should we remain part of the EU or not? Allowing all EU citizens in the UK to participate in that decision would effectively mean that they are judges in their own case.

I can understand the concerns of EU citizens in the UK that they ought to have a vote in an issue which will affect them so directly.  One solution is to obtain UK citizenship. For those unwilling or unable to do that, they have every right to participate in the broader public debate to convince voters that EU membership makes an important contribution to the UK's economic prosperity, environmental protection. social justice, animal welfare and cultural identity - and in particular that migrants from the EU make a huge contribution to Britain's economic and social success.  

Second postscript (25 May 2015)

Press reports indicate that the UK referendum on EU membership will indeed essentially follow the general election franchise, and not extend the vote to citizens of other EU countries (besides Ireland, Cyprus and Malta) living in the UK. Some have questioned the legality of this, but there seems little ground to challenge it. The EU Treaties require Member States to give all EU citizens the vote in local and European Parliament elections, but there is no reference to other votes. Since the Treaties include the power (never used) to widen EU citizens' rights beyond those listed, it must therefore be presumed that the Treaty drafters did not intend to require Member States to extend voting rights in referenda (or in any other elections) in the absence of a decision to lengthen the list of rights attached to EU citizenship.  As for the ECHR, the First Protocol to the Convention requires States to hold 'free elections', but on the face of it this does not apply to referenda, and the case law does not suggest that voting must be extended to non-nationals in any event.     


Barnard & Peers: chapter 2

Photo credit: www.jonworth.eu
Meme: Steve Peers
Jumper design: Nigel Farage :)

Has UKIP lost all sense of humour? Another parody tale…

By Sabine Jacques

PhD student focussing on the parody exception 

at the School of Law, University of Nottingham (UK)

 

Introduction

Last September 2014, a Twitter account called ‘UKIP Trumpton’ was established by Mike Dicks, stating that ‘After the recent defection of the Mayor of Trumpton and Mr Troop the town clerk this is the new home of UKIP tweets from Trumptonshire’ and used as logo of its own the official logo of UKIP (a right wing political party). This weekend, the creator of the account shared on his Facebook profile that the aim was to ‘gently take the mickey out of UKIP - It struck me that most ukip supporters or 'Kippers' were reminising about a Britain of their youth that was more like the classic kids show Trumpton than the reality I remembered so I chose to start Trumpton UKIP and pretend the Mayor and Mr Troop had defected to the people’s army’. After learning the existence of this account, UKIP MEP David Coburn announced the account as ‘fake’ and asked his 9000 followers to report/block the parody account. The creator of the account recently reported that the Mr Coburn threatened him to take legal action for the use of the party’s trade mark. Against this backdrop, this post presents an overview of the legality of the parody under copyright and trade mark laws (but not libel law), as well as Twitter’s policy on parodies.It’s relevant also by analogy to other parodies of UKIP, or other political parties besides.

Should UKIP Trumpton account be maintained?

1)    Is the parody exception applicable to the use made by Mr Dicks?

With the recent introduction of the fair dealing exception for the purpose of parody under copyright law and its recent interpretation by the Court of Justice of the European Union (discussed here and here), this case could be the first interpreting the UK provision. UKIP could argue that the logo is copyright protected as artistic work under section 4(1)(a) CDPA and that by reproducing this logo, Mr Dicks infringed the exclusive right of reproduction of UKIP. UK law would apply, and the UK courts would have jurisdiction, in accordance with the EU’s Rome II and Brussels Regulations.

If infringement is found, Mr Dicks could argue the application of the parody exception. To do so, he needs to prove that the use was for the purpose of parody and that the use was fair.

Regarding the purpose, the Court of Justice of the European Union established that the use needs to constitute the expression of a humour and the absence of confusion between the use and the original. In this particular case, the humoristic character derives from the association made between the political party’s possible view on the ideal Britain and a children’s television series called ‘Trumpton’ whereby apart from the ice cream vendor, there were no immigrants featuring. Despite the lack of guidance from the Court on how the humour element should be appreciated, it is argued that courts must interpret this requirement broadly as to include spoofs and other form of parodies. It is also argued that this requirement must be appreciated based on the parodist’s intent. In this case it appears that that Mr Dicks aimed ‘to gently take the mickey out of UKIP’. Hence, this requirement should be easily fulfilled. Moving on to the absence of confusion, this requirement might be more difficult to reach. While most of the viewers will not be confused as to the parody character of the account, the study of the fairness factors should help determining whether the use is allowed or not.

As mentioned, there is no decision interpreting the UK provision to this day. The reasoning will be inherently purely speculative. It is established that fairness is a question of degree, a matter of impression. Hence, the factors generally include the amount taken, the use made (commercial motives), consequences of the dealing (competition with the original?), whether the work is published, the motives of the dealing (such as dishonesty) and the availability of other means. As not all these factors would be relevant for parody uses, it seems that the most problematic is the amount reproduced. This factor requires the courts to consider the number of extracts and their extent. As in this case Mr Dicks’ account reproduces the entire logo with the addition of Trumpton, this could lead to the conclusion that the use is infringing. Yet it seems that UK case law does not rule out the possibility to copy the entire original work as long as the nature and purpose of the use fit the goal of the exception. This should create some margin for courts to acknowledge the parody use of Mr Dicks. By relying on the overall appearance of the alleged infringing Twitter account, the use should be found covered by the exception.

2)    Could Mr Coburn be successful in his action under trade mark law?

Unlike under copyright law, there is currently no specific parody exception under the Trade Mark Act 1994 creating a defence for parody use. Essentially, trademarks differ from copyright insofar as the primary function of trade mark law is the identification of goods and services in the market place. Other functions are also recognised depicting mostly added value of the trade mark such as communicator or social functions. Following the harmonisation of trade mark laws by the Trade mark Directive, the Trade Mark Act broadened the scope of infringement to encompass similar and dissimilar goods or services (article 5.2 of the Directive and section 10 of the Trade Mark Act). Against this backdrop, it appears that Mr Coburn has a strong position to argue for the infringement of the graphic and verbal trade marks of UKIP and consequently, the ban of the Twitter account.

Yet, section 10 of the Trade Mark Act requires the use to take place ‘in the course of trade’ and ‘in relation to goods or services’. In a nutshell, the reasoning is twofold: (a) we need a use in the course of trade; (b) there needs to be a use as a trade mark. Despite the broad interpretation of ‘in the course of trade’, it is hardly arguable that Mr Dicks’ use fulfils this requirement. Due to this requirement, most parodies would fall outside the scope of the Trade Mark Act. Additionally, as the parody use made by Mr Dicks is constitutes a vehicle for non-commercial expression for the primary purpose of political comment, it could be argued that the use of UKIP’s trade mark is not in relation to goods and services.

If the use were to be found as ‘in the course of trade’ and ‘as a trade mark’ then there needs to be likelihood of confusion or association.

Under the Trade Mark Act, likelihood of confusion requires 3 elements: (a) a distinctive trade mark, (b) the similarity between the goods and services, (c) the similarity between the sign used and the protected mark. This is different from the confusion requirement under copyright as the latter mainly refers to the similarities between the altered work and the protected work to assess whether the public is likely to believe that the parody originates from the original author or was supported by the author. Although the existence of these differences, it is argued that most parodies should be found lawful under trade mark law as the very nature of parody requires the absence of confusion between the use and the original.

As the likelihood of confusion is rare, what remains is the likelihood of association with the original. This occurs when consumers are in a position to make a mental connection between the parody and the registered mark. Despite Laddie J.’s statement in the well-known Wagamama case rejecting its application in UK Trade mark law (retaining as the only possibility the likelihood of confusion as to the origin), the Court of Justice of the European Union held that the likelihood of confusion includes the likelihood of association (Lloyd Schuhfabrik Meyer & Co. GmbH v. Klijsen Handel BV, at 17; SABEL v. Puma at 18-19). Yet if section 10(2) of the Trade Mark Act includes all associations which recalling UKIP, parodies will inherently infringe based on their very nature unless it can be shown that the use is outside the course of trade.

If there is no confusion, could there be dilution of UKIP’s trade mark? To be successful under section 10(3) of the Trade Mark Act, UKIP will have to show that the registered mark has a reputation in the UK and that Mr Dicks' use of an identical or similar sign, without due cause and in the course of trade, takes unfair advantage of, or is detrimental to the distinctive character or the repute of UKIP's mark. Therefore, confusion is no longer a requirement under this provision. UKIP’s reputation will probably be easy to prove in front of the court. Hence, Mr Dicks will have to attempt to argue due cause. Currently, there this concept of due cause leave extensive room for judicial interpretation and could enable courts to build the bridge with the fair dealing defence under copyright or refer to the freedom of expression. Nevertheless given the commercial context of the Act, the courts could restrict due cause to commercial necessity.

This being said, in case of unfair advantage (in such way that the use of the trade mark aims to gain an advantage) where no harm is proven to UKIP, the freedom of expression argument should prevail over the enforcement of the trade mark rights of the UKIP. The difficulty lies in the fact that the interpretation of this provision fails to distinguish between taking unfair advantage of the distinctive character and taking unfair advantage of the reputation of a trade mark. As trade mark law does not distinguish between uses of marks for the purpose of market communication and uses in other domains such as parody, it’s not clear explains how right holders are in a position to bar parody uses.

3)    How does Twitter manage parody accounts?

Under its rules and policies, Twitter provides guidelines  as to manage parody accounts. Following these, several requirements have to be met: (a) ‘The avatar should not be the exact trademark or logo of the account subject’; (b) ‘The name should not be the exact name of the account subject without some other distinguishing word, such as "not," "fake," or "fan."’; and (c) ‘The bio should include a statement to distinguish it from the account subject, such as "This is a parody," "This is a fan page," "Parody Account," "Fan Account," "Role-playing Account," or "This is not affiliated with…"’. Therefore, users are enable to create parody accounts as long as they meet the requirements set here above.

By shutting down accounts which do not meet these requirements, Twitter decides to resolve internally a possible infringement leading to a possible curtailment of freedom of expression. While the authorisation process is more transparent than it used to be, it might still stifle the freedom of information and ideas.

Conclusion

As this blog post shows, the regime of parodies is not a peaceful journey and uncertainties remain. While copyright infringement appears hard to argue, UKIP is in a stronger position regarding the infringement of their trade marks due to the current trajectory of trade mark protection. Also, UKIP could file a complaint directly to Twitter as the alleged infringing account fails to expressly mention its parody nature in the bio.

Should research by academics whose institutions receive EU money be discredited?

Steve Peers

Should research which Eurosceptics don’t like be ignored, if the academics who publish it, or the institutions they work for, have ever received money from the EU? That’s the insinuation of at least some Eurosceptics, not only in response to this week’s research on the positive benefits of the free movement of EU citizens, but also as regards me in particular. 

It’s tempting to ignore this line of argument, as indeed I did when it was first used against me last year. But I suspect that it will be used again and again in the build-up to a referendum on British exit from the EU (in the event that we have one), in an attempt to instantly discredit anyone who submits objective evidence supporting the pro-European side of the debate.  So it’s important to tackle this line of argument right now. 

Claims of bias 

First, the most recent case. Following the publication of the study on the economic benefits of free movement, co-authored by Professor  Christian Dustmann of University College London (UCL), Dan Hannan, a (nominally) Conservative Member of the European Parliament (MEP), tweeted that UCL received 53 million euro in EU funding in 2013. He stated that he hadn’t been going to mention this, but ‘so many Europhiles object to anyone even *mentioning* the figure’. (The co-author of the paper, Tommasso Frattini, is an Assistant Professor at the University of Milan).

Secondly, my own case. Last year, I gave evidence at the House of Commons Home Affairs Committee on the UK’s planned opt-out from aspects of EU policing and criminal law (you can see the full transcript here). Mark Reckless – then a Conservative MP, who has since defected to UKIP – asked me about my sources of funding (see questions 167 and 168). First, he asked how much money I received from the EU institutions. I replied that almost of my income came from the University of Essex, my main employer. But I have done some consultancy work occasionally from the European Parliament and European Commission. I estimated that the money from that work constitutes about 1-2% of my income.   

But that wasn’t enough for Reckless. He then asked what funding the University of Essex as a whole received from the EU. He clarified that this referred to all income, not just any funding directly linked to my own research. Since I didn’t have the figure to hand, I replied that I there was no EU funding directly linked to my own work, but I assumed that some my colleagues across the University had obtained some.

Hannan and Reckless are ostensibly now in different parties, but they are close friends. While neither of them make explicit claims of bias (and Reckless could have hidden behind parliamentary immunity if he had), their questions and statements have an obvious insinuation: that researchers who receive money directly from the EU, or whose employer receives money from the EU, are biased.

Let’s address these claims in reverse order.

Is there a pro-EU bias?

First of all, a point about how British parliamentary committees work. I have given evidence at a number of them over the years, and also served as a Special Adviser for one enquiry by the House of Lords Select Committee on the EU. A basic feature of the process of calling witnesses to the committees is that they are informed in advance of the questions which they can expect to be asked. In the case above, I was not informed about Mark Reckless’ questions. He has now joined a party that purports to stand up for basic British values; but his behaviour toward me displayed neither of the traditional British virtues of good manners or fair play.  

So are institutions which receive EU money biased, leaning on their staff to churn out pro-EU propaganda? At the outset, I can see why their own experience might lead Eurosceptics to think that. Many of them are also climate change deniers, and as George Monbiot has pointed out, the main ‘scientific institutes’ denying climate change are extensively funded by the oil and gas industry.

Is that true of universities though? They all have to publish independently audited accounts each year – in much the same way that Nigel Farage does not. So let’s look at the UCL figures first, to put their EU income in perspective. Its total income in 2012-13 was £940 million, of which £39 million came from the EU.  That’s 4.1% of their total income.

What about the University of Essex? If Reckless really wanted to know how much money it received from the EU, he could looked at its annual accounts – it’s the first reference from the University’s entry in Wikipedia. But obviously he was more interested in trying to ambush me. 

The Essex accounts show that the University received £2.9 million out of its total income of £146 million from EU grants. That’s 2.0% of its total income – neatly corresponding to my estimate about the share of my own income that comes from the EU. (I should emphasise here that as always, the opinions I express are my own, not that of my employer, or anyone else).

Is it possible that the small share of a university’s overall income which comes from the EU could bias the results of the research work done at that university? While obviously universities value all of the income which they receive, it is equally obvious that any proven claim of bias would damage the position of the reputation of the university as a whole, and certainly individual researchers’ access to research funding in future.  

In the case of Essex, for instance, the research money coming from the EU is dwarfed by £20 million in funding coming from research councils, and £9 million coming from the general research grant (which is based on an assessment of the quality of our staff’s published research). Put bluntly, we would have a lot more to lose, than to gain, if we produced crap research to satisfy the whims of the European Commission. 

Let me also answer this question from personal experience. Throughout my time working at the University of Essex, it’s obvious that the University (like all UK universities) wants us to apply for and obtain as many research grants as possible, from the EU and anyone else. Of course we have to tailor research funding applications to the subject-matter that the funding body wants to fund in this funding round. But I have never been put under the slightest pressure from my employer to alter the content of my research to ‘suck up’ to the Commission, or anyone else.

This brings me to the second head of the argument: that individual researchers have a pro-EU bias because of the EU funding which they receive. I can only speak for myself when answering this point.

Anyone familiar with my work would surely laugh at the insinuation that I am a shameless supplicant of the EU institutions. To take just a few examples, I described the EU’s data retention Directive as a ‘sell-out foretold’, and just last week on this blog, I characterised a recent CJEU judgment as ‘head-banging’. At one conference, Sir Francis Jacobs (a former Advocate-General of the CJEU) introduced me as ‘one of the Court’s severest critics’. At another conference, a former Council official described how during his time at the Council, its fiercest enemies were myself and Tony Bunyan, the director of Statewatch.

More broadly, my general impression, based on two decades working in the field, is that other specialists in EU law and politics, like me, start from a broadly pro-European perspective but have no compunction about criticising the EU institutions whenever they think it’s justifiable.

Finally, there’s now a considerable irony in Reckless’ ambush on my supposed bias. The party which he has recently joined, in a desperate bid to obtain EU funding within the European Parliament, has brought on board a party member from a Polish party whose leader jokes about violence against women, and denies the Holocaust. Even if I had prostrated myself before the EU institutions in a bid to receive their money, it would have been a million times less unethical than teaming up with a Holocaust denier to the same end.

To adapt the old saying, people who dishonour the terrible legacy of Kristallnacht shouldn’t throw stones.