European Law Monitor

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newsAlternatives to the Repeal Bill or the European Union (Withdrawal) Bill

One of the major difficulties with implementing Brexit is dealing with the legal implications. As previously stated in the article “The legal implications of Brexit” repeal of the European Communities Act 1972 results in all EU Regulations (approximately 18000) and Decisions ceasing to apply to the UK overnight. Directives may or may not remain as part of the UK legal system, depending on whether they were implemented through primary legislation or secondary legislation. In total, there are approximately 45000 legal instruments that need to be repatriated and which will cease to apply in the UK once the European Communities Act is repealed, including the case law of the ECJ.  This is equivalent to throwing a hand grenade into the UK legal system and therefore in order to avoid legal and economic chaos the government will need to repatriate all of the EU acquis back into UK law in order to maintain the legal framework that is currently operating. This is the background to the European Union (Withdrawal) Bill, commonly known as the Repeal Bill.

The Repeal Bill has been widely criticised as a naked power grab by the executive, but even more importantly it is unlikely to achieve the governments aim of repatriating all EU law in one go. The end result is likely to be a legal fudge, with major inconsistencies that are likely to take decades to resolve. Legal certainty is a prerequisite for trade, as businesses operate in a legal framework. So, if you end up with major inconsistencies in your legal framework or an unclear system of rights and obligations, then businesses suffer as they don’t know what rules to apply, and neither do their employees and consumers. The end result is legal chaos and a crippled economy, both of which must be avoided. The risks really couldn’t be higher; if the government do not get this right the country will be crippled for years, until everything is sorted out.

The government are selling the Repeal Bill as the "only way" they can repatriate all the law that they need to. In fact, there are other options available.
 
When a country is joining the EU, they have to align their national law in line with EU law, prior to them becoming an official member state. There are 35 chapters of the acquis, or the body of EU law.  Every six months there is a progress report, and if the country joining the EU has aligned all their national law in line with EU law in relation to a chapter, then that chapter is signed off. When all chapters have been signed off, then the country is ready to join the EU, provided the other criteria are met.
 
Now, Brexit is effectively a reversal of this process, and there is no reason why the same procedure could not be used in reverse ie the government would pass all of the legislation relating to  (for example) EU environmental law back onto the UK Statute book. Until they had done so, and that chapter had been signed off, EU law would carry on applying. As soon as that chapter was complete, the EU would amend EU law to reflect the fact that that section of EU law no longer applied to the UK, and UK law would pick up from that point onwards.  The risk of a legal cliff edge would therefore be avoided, and also it would mean the legislative amendments would take place once the terms of the Withdrawal Agreement were clear.  Once every chapter had gone through that process, and EU law no longer applied at all then the European Communities Act would be repealed,  and the UK would cease to be a member of the EU.
 
The EU have already proposed a joint UK-EU committee to deal with any governance issues. According to their position paper on governance, The Withdrawal Agreement should establish a Joint Committee,  in which the Union and the United Kingdom are represented. The Joint Committee should have the following tasks and competences:
 
(1)Ensure the good functioning of the Agreement.
(2)Adopt all measures necessary to deal with unforeseen situations not covered in the Withdrawal Agreement under the conditions set out in the Withdrawal Agreement.
(3)Decide on the incorporation of future amendments to Union law in the Withdrawal Agreement where such incorporation is provided for in the Withdrawal Agreement.
(4)Discuss divergences of views between the parties as set out in the Withdrawal Agreement.
(5)Perform any other task conferred on it by the Withdrawal Agreement.
 
Point 3 would appear to provide the scope for a joint UK-EU Committee managing the legal implications of Brexit. The reality of the legal situation is that the process of uncoupling UK law from EU law will need to be a jointly managed process in any event, as EU law will need to be amended to reflect the fact that the UK will no longer be a Member. Therefore, it makes sense for the UK government to manage this process jointly with the European Commission.
 
The accession procedure offers a well known and well established framework for resolving the legal implications of Brexit. It will take longer, but the time it takes will depend on how quickly the UK repatriates EU law. Directives which had been implemented into UK law via statutory instrument could be repatriated by creating a new parent Act, from which the authority for their continuing application would flow. Regulations (approximately 18000 of them) could then pass through either the normal parliamentary system or a variation thereof, with appropriate scrutiny mechanisms. The need for the widespread and widely criticised Henry VIII powers currently part of the Repeal Bill would be avoided. With the Repeal Bill the government are effectively asking Parliament to pass a Bill which will erode our system of Parliamentary Sovereignty, our constitution and democratic checks and balances because they are not prepared to take the time to repatriate this law properly. The government will no doubt argue that they are required to repatriate all this legislation before the end of March 2019 as a result of the wording of Article 50.
 
However, according to the EP Research Service,
 
"Under Article 50(3) TEU, the legal consequence of a withdrawal from the EU is the end of the application of the Treaties and the Protocols thereto in  the state concerned from that point on. EU  law ceases to apply in the state concerned, although  any national acts adopted in implementation or transposition of EU law would remain valid until the national authorities decide to amend or repeal them.
 
A withdrawal agreement would need to address the phasing-out of EU financial programmes and other EU norms.
 
Experts agree that, in order to replace EU law,  specifically in any field of exclusive EU competence,  the withdrawing state would need to enact substantial new legislation and that, in any case, a complete isolation of the withdrawing state from the effects of the EU acquis would be impossible if there were to be a future relationship between the former Member State and the EU."
 
This suggests that at EU level there is a practical realisation that if the EU wants an ongoing relationship with the UK (which it does) them implementing the Withdrawal agreement will take time, and a transitional application of EU law is both necessary and desirable. The push to try and get everything done within the two years set by Article 50 is coming purely from the UK, and it unlikely to be achievable.  General legal consensus, particularly among EU lawyers, is that the Repeal Bill will not have the effect of repatriating EU law smoothly into the UK legal system.  There is a very high risk that if the Repeal Bill is enacted, the UK legal system will collapse into chaos and if that happens the economy and potentially society would also be severely affected, as businesses operate in a legal framework. Without that framework and regulatory equivalence, businesses would struggle to trade. A staggered withdrawal offers the most legal certainty and a smooth transition, unlike the approach taken in the European Union (Withdrawal) Bill. So, one option for Parliament, when they start to debate this Bill in September has to be to scrap the Repeal Bill, and come up with an alternative mechanism for managing the legal implications of Brexit. The Repeal Bill approach is not the only option.

newsLord Ashcrofts poll and Vote Leave's probable methodology

In November and December 2015 Lord Ashcroft carried out a major poll examining in detail the issues that were likely to be of relevance to people in the EU referendum.

Analysis of a 20,000-sample poll identified seven “segments” of voters with different backgrounds, motivations, priorities, and views on EU membership ranging from those who were certain to vote Remain to those who were certain to vote leave, and the full range of views inbetween. Potential Leave voters were characterised as "Nothing to Lose" who were certain to vote to leave, Global Britain, who were again very likely to vote Leave, and Hard Pressed Undecideds who were 52% likely to vote to Leave, but who might need to be persuaded.

The primary issues for leave voters were immigration, control of borders, migration/refugees, UK contributions and national security. Vote Leave appear to have prepared EU referendum campaign materials on the basis of this (and possibly other) research. For example

Immigration - This is covered by the Vote Leave leaflet "The EU immigration system is immoral and unfair"

Control of our borders - This is covered by the Vote Leave leaflet " Security - Vote Leave is the safer option"

Defence - This is covered in teh Vote Leave leaflet "Being in the EU undermines our defence".

Migration and Turkey - Information on this was sent out to every household in the country, in Vote Leaves EU referendum leaflet. This subject was also covered in the Vote Leave leaflet "Voting to stay is the risky option".

UK Contributions - Throughout the campaign, Vote Leave repeated ad nauseum that the cost of UK contributions to the EU was £350m a week, which is misleading as it doesn't include the rebate. It also featured prominently in the campaign leaflet "Why vote Leave on the 23rd June?".

Euro bailouts - This was covered in Vote Leaves leaflet "Voting to stay is the riskier option".

 Given that these campaign leaflets are the ones with the most factual errors and the most misleading, it could be alleged that Vote Leave prepared campaign materials which suggested that leaving the EU would deal with those concerns – irrespective of the factual accuracy of those assertions. Basically, they told people what they wanted to hear, irrespective of whether or not this was factually true, or likely to be acheivable in the event of a Brexit vote. The Vote Leave mantra of “Vote Leave – take back control” also appears to be based on this research, as a number of Leave voters felt a lack of control in their lives.

 

Type of voter according to Lord Ashcrofts poll methodology % of population  Declared likelihood to vote Leave Key issues % of people in this voter category who feel strongly about this issue How do these issues impact on how people feel?
Nothing to Lose 23% 95% Immigration 45% In this category, people feel a loss of control. Laws imposed from outside matters to 61%.
      Control of borders 32% Pressure on public services, effect on jobs and wages, and entitlement matters to this category of voter.
      Migration 33%  
      UK contributions 25%  
      National security 11%  
      Economic security 4%  
Global Britain 13% 81% Immigration 27%  
      Control of borders 22%  
      Migration/refugees 19%  
      UK contributions 18%  
      National security 12%  
      Economic security 9%  
           
Hard pressed undecideds 19% 52% Immigration 26% 51% of people in this category of voter felt a loss of control. This group were concerned about the effect of the EU on:
      Control of borders 17% Standards and quality of life
      Migration/refugees 17% Security
      UK contributions 11% Safety
      Free movement 11% Doing the right thing for future generations
      National security 11%  
      Economic security 7%  
           

 

 

Why Article 50 won't be triggered anytime soon

Recently, the UK government has announced that invoking Article 50 may be delayed. Predictably, since theh various Brexiteers have been baying for Article 50 to be invoked as soon as poosible, arguing that it is undemocratic for the UK government to not give effect to the EU referendum result. The government delaying the invocation of Article 50 is not down to any desire to circumvent the will of the people, but instead reflects their awareness of the legal implications of doing so, which most people are singularly unaware of.

Once Article 50 is invoked, then the EU treaties and EU law stops applying to the UK two years later. At that point the European Communities Act, which is the Act which made us Members of the EU, and which gives effect to EU law, would be either expressly or impliedly repealed. As soon as the European Communities Act is repealed then overnight thousands of legislative acts (approximately 17,000) will stop applying to the UK. This scale of legal disruption is equivalent to throwing a hand grenade into your legal system, as overnight thousands of laws will stop applying.

In order for trade to flourish, there must be legal certainty – society and businesses must know and understand the legal framework in which they are operating. Without this legal certainty, foreign direct investment collapses, and trade grinds to a halt. If the UK left the EU, and EU law ceased applying to the UK, then the UK legal framework would have to come from UK law alone.

Under the EU legislative system, there are two main ways in which EU law applies – through either EU Regulations or Directives. Regulations, once passed at EU level, apply automatically across every EU country, without having to be passed as law at national level. In the UK, it is the European Communities Act which gives effect to EU Regulations.  Directives, once passed at EU level, have to be implemented into the UK legal system by Parliament passing an Act of Parliament or some form of delegated legislation. Directives implemented by UK legislation consequently form part of the UK legal system, whereas Regulations do not – they only apply to the UK whilst the European Communities Act remains in force.

This means that once the European Communities Act 1972 was repealed, Directives that had been enacted into UK law would remain part of the UK legislative system but Regulations would not (unless they applied by virtue of international law or because they had been implemented into UK law anyway).

Unfortunately, Directives only make up a very small part of the EU law affecting the UK, as the following table demonstrates. In total, there are about 18,000 EU legal instruments, of which only about a thousand are Directives and therefore already part of the UK legal system. The other 17000 are Regulations and other EU legal instruments, all of which would stop applying to the UK once we repealed the European Communities Act 1972.  If you would like to see what laws we would lose once we repealed the European Communities Act, please follow the links in the last column of the table.

Area of EU law

Total number of EU acts relating to that area of law

Number of directives that are part of UK law

Approximate number of legislative acts (laws) that would be missing from the UK legal system if the UK pulled out the EU altogether

Where can I find more information on what  regulations may no longer apply?

Economic and monetary policy/free movement of capital (these laws substantially affect the City)

527

9

518

Click here

Environment, consumers and health protection

1965

145

1820

Click here

Science, information, education and culture

424

9

415

 Click here

Agriculture

2729

157

2572

 Click here

Free movement of goods/customs union

1093

7

1086

 Click here

Free movement of workers/employment law/social policy

646

74

572

 Click here

Freedom to set up a business in another EU country/freedom to provide services

357

69

288

 Click here

Fisheries

1410

1

1409

 Click here

Transport

651

77

574

 Click here

Competition

575

4

571

 Click here

Taxation

173

28

145

 Click here

Relations with the rest of the world

3994

4

3990

 Click here

Energy

361

16

345

 Click here

Industrial policy and internal market

1364

256

1108

 Click here

Regional policy

322

2

320

 Click here

Law relating to undertakings (businesses)

113

31

82

 Click here

Foreign and security policy

622

1

621

 Click here

Area of freedom, security and justice

705

36

669

 Click here
 

18031

926

17105

 

 

Therefore, if the government wants to avoid legal and economic chaos (which it will) then it will need to have reviewed all existing EU law, identified the laws it wants to keep, passed those laws back into the UK system,  and complete this process within two years of Article 50 being invoked, so there are no legislative gaps post Brexit. Failure to manage the legal implications of Brexit would result in legal and economic chaos. For example, the City of London, whose wealth underpins the UK economy, is governed by the rules on free movement of capital and economic and monetary policy. According to the above table there are approximately 527 EU laws in that area alone, including the legal framework on credit transfers that the City uses every second of every day. Only nine of those are directives and therefore part of UK law. The other 519 (which includes the rules on credit transfers) would all be repealed once the European Communities Act was repealed, which would happen two years after the UK government had invoked Article 50.

The problem is that avoiding this legal and therefore economic chaos is almost impossible to acheive, given the sheer number of laws that need to be repatriated, and the time that it takes Parliament to pass each one. The UK Parliament passes about 100 Acts of Parliament a year, so on that basis Article 50 will be invoked in 168 years. This is the fairest and most democratic process, as Parliament will play an active role in any changes to existing EU legislation being proposed, and will allow a proper process of scrutiny to take place. This approach will reflect the importance of Parliamentary sovereignty within our constitution, but it will take time, and that is one thing that is very short supply once Article 50 is invoked.

The alternative is that all of these laws are repatriated using some form of delegated legislation like statutory instruments, which are usually written by an individual minister, without any form of scrutiny or public participation at all. Statutory instruments are notoriously un-democratic, as they by pass the will and involvement of Parliament. They are also too open to abuse by the person tasked with writing the law, as they can introduce all sorts of changes without any form of challenge. Basically, if no one objects within fourty days of the statutory instrument being laid then it becomes law. Once a statutory instrument is passed as law they are notoriously difficult to challenge, so you are ususally stuck with them. They have the advantage of speed, but even using the process, it would probably take ten years to repatriate all of the EU law that needs to be repatriated, in order to maintain legal certainty, and during those ten years Parliament would effectively become redundant, and law would be made by unelected faceless bureaucrats who are not accountable to the electorate.  As a variation on this, the government could task the civil service to draft all this law. Given that the UK civil service includes approximately 2000 lawyers they would have the capacity to deal with the task, but at the cost of democratic accountability. The ironic thing is that many Brexiteers voted to leave because they wanted Parliamentary sovereignty and more democratic accountability, but the time constraints imposed by Article 50 means they are likely to end up fundamentally undermining both.

Within the legal profession there is a general consensus that these are the key legal issues to be addressed. Martin Howe QC, who is part of Economists for Britain, and therefore linked to Vote Leave, wrote a paper called "Transforming the UKs relationship with the EU; the legal framework"., in which he states the following

"After over 40 years of membership, there is a vast existing body of laws within the UK that either directly stem from the EU, or were passed because of EU obligations, or at least are affected by the EU.

First,  there  are  directly  applicable  EU  laws  –  EU  regulations  and parts of the EU treaties – that form part of the internal law of  the  UK,  via  the  gateway  of  Section  2(1)  of  the  European  Communities Act 1972. These would all automatically lapse and cease to be part of the law as from the date of withdrawal. However, in many instances it would not be acceptable to leave a vacuum in the law, and it would be necessary to have a new domestic law in place to cover the subject matter.

Second, there are many Acts of Parliament that implement EU directives or other obligations. These would need to be repealed, kept in force or amended, on a case-by-case basis – it would not be possible to deal with them all with a single global rule.

Third,  numerous  UK  regulations  have  been  made  under  Section  2(2)  of  the  European  Communities  Act  1972  in  order  to  implement directives. Many of these regulations amend Acts of Parliament under the sweeping ‘Henry VIII’ powers of Section 2(2).

For example, it would not be acceptable to have a vacuum in the law on the licensing of medicines if the UK ceases to be covered by Regulation (EC) No 726/2004 on the authorisation  and  supervision  of  medicinal  products  by  the  European  Medicines  Agency.

These  could  not  just  be  allowed  to  lapse  automatically  on  exit.  It would be necessary to go through them and decide to revoke, keep or amend them, case by case. Reviewing  these  three  categories  of  EU  laws  and  deciding  what if anything to put in their place would be a major exercise and would have to be carried out rapidly. The best solution would be  simply  to  press  into  service  the  existing  regulation-making  power  under  Section  2(2)  of  the  1972  Act.  This  could  be  done  by  extending  it  to  authorise  existing  Acts  and  regulations  that  implement EU obligations to be repealed in an orderly way, and replaced or amended as appropriate to reflect the new external trade environment of the UK

Thus,  these  sweeping  ‘Henry  VIII’  powers,  which  have  been  used  so  effectively  to  implement  the  incoming  tide  of  EU  law,  would be used rapidly to unravel EU law. The advantage of using this  existing  well-oiled  machinery  would  be  that  there  is  an  existing system for making these regulations by the appropriate government  department,  or  by  the  devolved  legislatures  where  the regulations fall within devolved areas of law."

What Martin Howe QC is proposing is that the future legal framework post Brexit should be drafted by unelected government departments and ministers using statutory instruments, without any form of Parliamentary scrutiny, consultation, or input from affected stakeholders. EU law is implemented in this way because it has already gone through an extensive consultation and discussion process, involving both the European Parliament and the Council, which is open to the public to participate in, whereas using this mechanism to repatriate EU law into UK law would involve no discussion, consultation or involvement of any changes in the law to the electorate or to businesses. This has the advantage of speed, but rather makes a mockery of the idea that Brexit would bring about a return of Parliamentary sovereignty, and a golden age of democracy.  People voted to leave the EU in part because they wanted to uphold the sovereignty of Parliament, and they wanted control over our laws. Yet now, Leave campaigners are making clear that the only way to acheive Brexit in a sensible timeframe, is for Parliament to be bypassed altogether, and law making becoming the main function of the government and civil service.

So what do those who voted for Brexit actually want? Are they prepared to have Brexit at the cost of fundamentally undermining Parliament, democracy and democratic accountability, which will give them Brexit within possibly a decade? Or do they want Parliament to be involved in scrutinising the legislative changes being put forward, and uphold the supremacy of Parliament in our constitution, but accept that in doing so, the whole process will be substantially extended in terms of time? Those are the choices. It is not an option for the UK Parliament to pass an Act of Parliament saying that all EU law will carry on applying until we get around to changing it, as the UK is a duallist state, which means that Parliament has to actually pass a law in order for the courts to give a ruling on it. (More information on this can be found here).

Basically, the UK can have a speedyish Brexit process, but only at the cost of democractic accountability and democracy. Or they can take the time to do it right, but that will all take time. They can't have both. So choose.

newsSummary of the lies, misrepresentations and misleading statements made by Vote Leave in their campaign document “The EU immigration system is immoral and unfair”

Background

Immigration was a key issue in the EU referendum campaign, with an IPSOS Mori poll  of the 16th June highlighting that this was the top issue for people voting in the EU referendum. The poll by Lord Ashcroft called “Leave to Remain ” also found that amongst potential Leave voters this was the number one issue.

Given the high feelings raised by this topic, it was particularly important for the electorate to be given clear facts on this issue.

As part of their EU referendum campaign, Vote Leave created a document called “The EU immigration system is immoral and unfair”.  The quotes highlighted in red below are taken from this Vote Leave document, and then examined for accuracy (written in black ink) underneath.

“A quarter of a million migrants come here every year – a city the size of Newcastle”. –

Whilst it is true that 270,000 EU migrants came here in 2015, this is still misleading as the figure that should be quoted is the NET EU migration figure, which is reached by taking the number of people who come to the UK, and taking away the number of people who leave the UK, which gives you the total or net migration figure.

Net migration is 145,000 per year, a town the size of Birkenhead, and the majority of this immigration settles in London and the SouthEast.  Net EU migration (not including UK migration to and from the EU) comes to 185,000 people in 2015, but when UK population movement is taken into account, the total net EU inward migration for the year was 145,000. Either way, the actual net figures are substantially lower than Vote Leave indicated: Newcastle has a population of 300,000 people, so net EU migration is half of that figure. This is misleading to the electorate and gives an over-exaggerated sense of the scale of EU migration.

Immigration (people coming into UK) Figures for 2015 Emigration (people leaving the UK) Figures for 2015 Final figures
British citizens coming home 83,000 British citizens leaving the UK 123,000 -40,000
EU citizens coming to the UK 270,000 EU citizens leaving the UK 85,000 185,000
Non EU citizens coming to the UK 277,000 Non EU citizens leaving the UK 89,000 188,000
Total 630,000   330,000  

 These figures are drawn from the ONS Quarterly report on migration: May 2016

 

Figure 4: Immigration to the UK by citizenship, 2006 to 2015 (YE December 2015)

Immigration to the UK by citizenship, 2006 to 2015 (YE December 2015)

Source: Office for National Statistics, Long-Term International Migration
Notes:
1.    Figures for 2015 are provisional. In this chart provisional estimates are represented by a cross.
2.    This chart is not consistent with the total revised net migration estimates as shown in Figures 1 and 2.

 

Figure 12: Emigration from the UK by citizenship, 2006 to 2015 (YE December 2015)
Emigration from the UK by citizenship, 2006 to 2015 

Source: Office for National Statistics, Long-Term International Migration
Notes:
1.    Figures for 2015 are provisional. In this chart provisional estimates are represented by a cross.
2.    This chart is not consistent with the total revised net migration estimates as shown in Figures 1 and 2. Please see guidance note for further information
Vote Leave have consistently used the immigration figures into the UK rather than the net migration figures, which is highly misleading and misrepresents the scale of migration in the UK.  

Population growth in the UK since we joined the EU is as follows:

United Kingdom population mid year estimate

The total net migration is 333,000. Of those, 188,000 are non EU citizens and therefore the UK Government has complete control over the number of non EU citizens that come into the UK. This 188,000 are completely irrelevant when deciding on the question of EU membership. Net EU migration is approximately 180,000 a year. However, 43,000 British nationals leave the UK each year and therefore EU net migration (excluding British migration)  comes to 145,000. On a population of 65,000000, this comes to 0.22% of the population.

Birth growth

Vote Leave also said that there were 475,000 live births from other EU countries between 2005-2014, the equivalent of adding a city the size of Manchester to the population.  Manchester has a population of 2.5 million, so this statement is highly misleading and again appears designed to give the electorate an over-exaggerated sense of EU migration.

EU membership stops us controlling who comes into our country, on what terms and who can be removed –

No. Under EU law, you can only exercise your free movement rights if you are working, have a job lined up, are a student or jobseeker, and have enough money to support yourself so you are not a drain on State finances. Under EU law you cannot just move to another Member State simply to claim benefits.  The requirements for removing people are found in Directive 2004/38/EC under Chapter VI (p37)

We cannot stop criminals entering Britain from Europe –

Yes we can, if they present a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

So, if a person is a genuine threat to the UK, and the personal conduct of the person concerned is a genuine, present and sufficiently serious threat, then they can be sent home or have their right to free movement withdrawn.

Also, the UK has access to the European Criminal Records Information System (ECRIS ) which enables full and up to date details of a person’s criminal convictions to be shared by all Member States.

If we vote remain we will lose more and more control of our borders to the EU and European court –

Factually incorrect. The UK is in charge of its borders, and has sole responsibility for defence and security, which remain matters of Member State concern. The European Court of Justice does not control UK borders. If they are referring to the European Court of Justice then this is nothing to do with the EU so therefore irrelevant in the context of the EU referendum.

The former head of Interpol, Ronald K Noble has said that: Europe’s open-border arrangement… is effectively an international passport-free zone for terrorists” and that it was like “hanging a sign welcoming terrorists to Europe.

Whilst Ronald K Noble did make this comment, he wasn’t talking about the UK – he was talking about Schengen countries and the UK is not part of Schengen. Further on, in the same article , Ronald K Noble made the following comments about the UK situation:

Among the European countries that are not parties to the Schengen Agreement is the United Kingdom, which began screening passports against Interpol’s database following the 2005 terrorist attacks there that killed 52 people and injured more than 700. The U.K. now screens about 150 million passports a year, more than all other European Union nations combined, and catches more than 10,000 people a year trying to cross its borders using invalid travel documents”.

This is one of the most scaremongering, misleading and untrue statements made in the Vote Leave literature. As Ronald K Noble makes clear, the UK now screens 150 million passports a year, more than all other EU countries combined, and catches more than 10,000 people a year trying to cross its borders using invalid travel documents. The UK is therefore fully in control of its borders, and has the highest level of protection against terrorists trying to come into the UK on false papers.

We have to pay benefits to everyone that comes here, even if they can’t or won’t contribute to the economy.

Untrue. Under EU law you don’t have to pay benefits if someone has just moved over here to claim benefits and has no intention of working. In that situation they can be kicked back home, as they are not meeting the criteria that you have to meet in order to invoke your free movement rights.

The EU courts are attacking our border controls –

No they are not. The cases that Vote Leave quoted in their literature don’t say that at all if you read them.

According to Vote Leave, the Charter of Fundamental Rights has all sorts of horrible implications for the UK, including

-    It prevents us deporting violent criminals
-    It gives the EU court power over almost any security issue.
-    The Charter stops us removing foreign criminals and terrorist suspects from the UK if it would violate their ‘private or family life’.
-    the Charter also removes from the UK the power to interpret the vital 1951 UN Convention ourselves.
-    Under the EU’s Charter of Fundamental Rights, EU judges now decide what powers our intelligence agencies and police are allowed to have.
-    The Charter of Fundamental Rights gives the ECJ more power over EU members than the Supreme Court has over US states. Police and intelligence services are increasingly having to second-guess operations because of Whitehall legal advice on what the ECJ might say in the future. This will get worse.
-    If we vote 'remain' we will lose more vital powers over our security every year. EU judges will use the Charter to weaken our borders and hamstring our security services. It is safer to Vote Leave and take back control.
-    The Charter adds more dangers to the UK.
-    Under the Charter of Fundamental Rights ECJ judges decide what powers the police and intelligence services have to protect us.

Vote Leave make these points in a number of their leaflets, and it is a key theme in the Vote Leave campaign literature.

None of the above claims are actually true. The Charter does not extend the powers of the European Court of Justice, nor does it apply to the UK as per Protocol 30  of the Lisbon Treaty, which states that

"Article 1

1.    The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2.    In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

Article 2

To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom".

The Status, scope and legal effects of the Charter were discussed in a House of Commons European Scrutiny Committee paper called “The application of the EU Charter of Fundamental Rights to the UK: a state of confusion”. On p41 of the report, the Government gave their view on Protocol 30 and the legal effect of the Charter, and said the following:

"The Secretary of State agreed that it was the current legal position that the Charter did not   create   new   EU   fundamental rights,   but   consolidated existing   EU   and   non-EU obligations  in  a  more  prominent  form.  The  Minister  said  that  “It  is  designed  to  apply  purely to European law and European law matters and not designed to allow the creation of  new  rights  in  European  law  nor  in  UK  law.”

The  Charter  applied  “in  the  law  of  the  UK” where “EU law is applied in the British courts” but “not in UK law”. This, he said, was an important difference.

Therefore, the above statements relating to the Charter are misrepresentations of the law. The Charter does not give the European Court of Justice additional powers over our police, intelligence or security services, and in fact the European Court of Justice is prevented under the Protocol from creating new powers for itself. The European Court of Justice and the Charter are no threat to the UK at all.

Vote Leave repeatedly refer to the European Court of Human Rights as a “European Court”.

It isn’t anything to do with the EU. The European Court of Human Rights forms part of international law not EU law. It was created by the Council of Europe which is not part of the EU.

If we vote to remain, EU judges will take control of British citizenship. The ECJ has declared that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’.

The ECJ does not control British citizenship. In the case of Janko Rottman v Freistaat Bayern, which Vote Leave mention in their leaflet on security when discussing the same point, Vote Leave claimed that this case proved that the ECJ now decides if a person possesses British citizenship, not the UK Parliament or courts. In fact, the ECJ said no such thing. In the judgement, the ECJ stated that

The  provisions  of  Part  Two  of  the  Treaty  establishing  the  European  Community  relating  to  citizenship  of  the  Union  give  nationals  of  the  Member  States  additional  rights and protection as specified in that Part. They do not in any way take the place of national citizenship. The question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned.’

The court held that “it is not contrary to European Union law, in particular to Article 17 EC, for a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality has been obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.”

National citizenship is a matter for the UK, and the ECJ has no control over that. EU citizenship is a complement to UK citizenship – it doesn’t replace it.

If we vote leave, we can stop sending £350m to the EU every week and instead spend it on our priorities. £350m is enough to build a brand new, fully staffed hospital every week.”

The cost of building an NHS hospital is, according to Vote Leave, £350m. On the basis that the UK net contribution to the EU budget is £110million a week (not £350m), we could build 3 hospitals over the course of a year from money that we hadn’t spent on EU budget contributions. We could only do this if we did not spend any of that contribution on anything else.

Furthermore, in February and March 2015, the European Investment Bank announced that it was loaning

£46 million for the new 310 bed Papworth Hospital
£109m for the construction of a new District and General Hospital in Dumfries
£83 million support for the Royal Hospital for Sick Children

Therefore, European Investment Bank funding for UK hospitals came to 238m in 2015, and Vote Leave failed to disclose this material fact to the electorate during the EU referendum campaign.

Proof that the electorate were misled

These figures put out by Vote Leave during the EU referendum campaign on the issue of hospitals, and the cost of EU membership, are both misleading and untrue, and since the EU referendum result was announced they have gone back on their promise to pay £350m to the NHS each week.   

Since the EU referendum result, Leave campaigners have also rowed back on the claim that we could control immigration if we left the EU, with Tory MEP Daniel Hannan saying that free movement could result in similar levels of immigration after Brexit.

Hannan said: “Frankly, if people watching think that they have voted and there is now going to be zero immigration from the EU, they are going to be disappointed.”

The point is that a significant majority of people did think that was what they were voting for if they voted to leave. An ORB poll  in June 2016 read out the statement “We will control immigration better” and asked people to describe if that was a statement attributable to the Leave campaign or the Remain campaign. 58% of people attributed this statement to the Leave campaign, so the electorate were clearly misled on this issue.

The misrepresentations and misleading statements made by Vote Leave on Turkey being fast tracked for full EU membership

The claim that Turkey was going to joining the EU was made in the Vote Leave referendum leaflet sent out to every household. This leaflet stated that

“The EU is expanding to include: Albania, Macedonia, Montenegro, Serbia, and Turkey.

When we joined, there were just 9 member states. Now there are 28, the most recent being Romania, Bulgaria and Croatia. Five more countries are in the queue to join, including Turkey, totalling 89 million people.

When they join, they will have the same rights as other member states”

Vote Leave also published a poster on the issue of Turkey joining:  It is worth noting that this poster says “Turkey is joining” rather than “Turkey may be joining”.

In Vote Leaves campaign leaflet “Voting to stay is the risky option” Vote Leave said:

•    The EU recently announced an ‘acceleration’ of the accession process for Turkey.

In order for a country to join the EU it has to go through a process of aligning its national law in line with EU law. EU law subdivides into 35 Chapters, and all of these Chapters need to be completed before a country can join the EU as a full member. They also have to abolish the death penalty in order to join the EU.

The process of Turkey trying to join the EU has moved at glacial slowness. Therefore, whenever anything happens then it counts as “acceleration”

According to the table of Chapters completed by Turkey  as of 8th January 2016 , one chapter has been completed out of 35. Therefore Turkey will not be joining anytime soon. Accession negotiations started in 2005, but until Turkey agrees to apply the Additional Protocol of the Ankara Association Agreement to Cyprus, eight negotiation chapters will not be opened and no chapter will be provisionally closed. To date Turkey has not accepted the Additional Protocol, despite signing it in 1970, and until it does and all Chapters are closed Turkey will not join as a full member of the EU.

The  European  Union  (the  EU)  launched  the Visa Liberalisation Dialogue ("VLD")  with Turkey  on  16  December  2013. Turkey joining (accession) is a separate process to the Visa Liberalisation Dialogue. Therefore, completion of the Visa Liberalisation Dialogue benchmarks does not mean that Turkey has joined as a full member of the EU. They are parallel processes, not the same process.

The VLD is based on the Roadmap towards a visa free regime with Turkey (the Roadmap), a  document  setting  out  the  requirements that Turkey needs  to meet  in  order  to enable the Commission to propose to the European Parliament and the Council an amendment to  the Regulation  (EC)  No  539/2001  which  would  allow  Turkish citizens  to  travel  for  short stays (i.e. of 90 days within any 180-day period) in the Schengen area without a visa. It is worth noting that this roadmap permits short-stay visa free travel in the Schengen area only. The UK is not part of Schengen.

The 72 requirements  listed  in  the  Roadmap  are  organised  in  five  thematic  groups  ("blocks"): document security; migration management; public order and security; fundamental rights and readmission of irregular migrants. On  20  October  2014,  the  Commission  adopted  its First  report  on  progress  by  Turkey  in fulfilling  the  requirements  of  its  visa  liberalisation  roadmap (the  First Report).

By May 2016, Turkey had five outstanding blocks remaining before all 72 blocks were complete, and visa free travel would be considered for Turkey within the Schengen area. As there were five outstanding, the European Parliament said they would not consider voting on the completion of the Visa Roadmap until every section was complete. Therefore, Turkey will not be eligible for visa free travel until all those blocks are complete. Even if Turkey does complete those blocks, Turkish citizens won’t be able to travel to the UK under visa free travel as this proposal doesn’t apply to the UK or Ireland.

•    According to the Vote Leave campaign literature “David Cameron says he is ‘angry’ at the delays to Turkey joining and that he wants to ‘pave the road’ from Ankara. It is official UK Government policy for Turkey to join as soon as possible. It is also official UK Government policy not to have a referendum on accession”.

David Cameron’s speech on Turkey was given in 2010. A copy of the speech can be found at the following link. https://www.gov.uk/government/speeches/pms-speech-in-turkey

In one sense it is irrelevant if David Cameron supports Turkish membership. In order for any country to join the EU it has to be unanimously agreed by all 28 Member States. Each country has a veto, and a number of EU countries have already said that they would veto Turkey joining.  Cyprus is top of the list, and until Turkey withdraws from Northern Cyprus, Cyprus will almost certainly veto Turkish membership.

It is also worth noting that there is an organisation called Conservative Friends of Turkey, whose founder members include Dan Hannan MEP, Boris Johnson and Douglas Carswell, who all raised fears in the electorates mind about Turkey joining, despite their personal support for the policy.

•    According to Vote Leave, “when these countries join, we can expect over 5 million extra people to settle in the UK”.

There is no evidence to support this statement.

•    According to Vote Leave “The Bank of England has calculated that a 10% increase in migration results in a 2% decline in wages for the lowest paid”.

The fifth conclusion of this report by the Bank of England (p3)  was that “The  empirical  literature  from  around  the  world  suggests  little  or  no  evidence  that  immigrants  have  had  a  major  impact  on  native  labour  market  outcomes  such  as  wages  and  unemployment.    Recent  work  by  a  number  of  other  authors  for  the  UK  is  also  consistent with this view”, which is the opposite to what Vote Leave are saying the Bank of England have said.

Despite the fact that significant numbers of people are convinced that EU migrants come here and take peoples' jobs, and reduce their wages, detailed academic studies have found no evidence of this. This statement is misleading as it feeds into people’s perceptions of EU immigration rather than the reality.

According to an Ipsos Mori poll issued on the 23rd June 2016, another interesting fact that a number of people got wrong was the number of EU immigrants as a percentage of the UK population. People believed that figure was approximately 15% whereas Ipsos Mori said in reality it was 6%.

According to Vote Leave “Nothing in David Cameron’s deal protects us from these dangers. He promised that EU migrants would need to have a job offer but he did not ask for this change to the Treaties. The living wage policy combined with free movement will make these problems even worse”.

Under established case law principles, job seekers can come to another EU country and try and find work for up to six months, provided they have enough money to support themselves whilst they are looking for work. If they haven’t found work by then, they can be sent back so they do not become a drain on the State.

According to Vote Leave “This is just the latest example of Turkey’s accession being fast-tracked”.

•    On 29 November 2015, ‘the EU welcomed a re-energizing of the accession process’ as part of its attempt to contain its migrant crisis (European Council, link).

Whilst the European Commission did say that, the full quote reads as follows:

“the EU welcomed a re-energizing of the accession process and confirmed its willingness to support Turkey in its reform efforts.  In this regard, the EU underlined the need for swift reform efforts, particularly in the areas of rule of law and fundamental rights. In addition, the EU recalled that Turkey can accelerate the pace of negotiations by advancing in the fulfilment of benchmarks, by meeting the requirements of the Negotiating Framework and by respecting its contractual obligations towards the EU.  Since the start of the accession negotiations on 3 October 2005, fifteen chapters have been opened, of which one has been provisionally closed.”

This quote makes clear that Turkey is a long way off full EU membership, not that it will happen anytime soon. There are another 34 Chapters to complete before Turkey can join as a full member of the EU, and on the basis that it has taken Turkey 11 years to complete one Chapter, it should finish the other 34 in about 350 years time….

•    According to Vote Leave “A new Chapter of the accession negotiations, on Economic and Monetary Policy, was opened on 14 December 2015. This represented a quickening of Turkish accession talks (European Commission, January 2016, link)”.

 The link just takes you through to a list of the Chapters that have been opened and closed. There is no comment by the European Commission that this “represented a quickening of Turkish accession talks”; very misleading.

•    According to Vote Leave “In May 2016, the Commission announced that progress towards accession would ‘accelerate’ (European Commission, 4 May 2016, link).”

 No it didn’t. It said progress on Turkeys visa liberalisation roadmap would accelerate, which is a separate process to Turkish accession.

In the same article the European Commission also made it clear that “Visa-free travel will apply to all EU Member States except for Ireland and the UK, and to the four Schengen associated countries (Iceland, Liechtenstein, Norway and Switzerland). The exemption concerns only short stays of up to 90 days (in any 180-day period) for business, tourist or family purposes, among others. The visa exemption does not provide for the right to work in the EU. Other entry conditions for accessing the Schengen area will continue to apply, including the need to be able to prove their purpose of travel and sufficient subsidence means."

According to Vote Leave “Turkey is set to join the EU in the near future: we are paying them to join.

•    Turkey is due to join the EU in the next few years, having already signed a deal with the EU to prepare for accession (European Commission, March 2016, link).”

This is not what the link says. What it actually says is that “As part of the agreement, the EU has agreed to accelerate implementation of Turkey's roadmap for visa liberalisation with a view to lifting the visa requirements for Turkish citizens by the end of June 2016. Turkey must now fulfil all remaining conditions so that the Commission can adopt its proposal by the end of April. At the same time, EU leaders agreed, under the Dutch Presidency of the Council, to open a new chapter – number 33 on financial and budgetary provisions – in Turkey's accession negotiations.

So, the above quote is not talking about Turkey joining (accession) but the Visa Liberalisation roadmap, which is a separate process. The Visa Liberalisation process was not completed, and the European Parliament has said that it will not discuss and vote on this issue until the process is complete. It is highly unlikely that the Visa Liberalisation process will now take place, following the attempted coup in Turkey.

Turkey has completed only one of 35 Chapters of legislation that it needs to bring in line with EU law before it can join, including eight Chapters concerning Cyprus, so there is no way Turkey will be joining by 2020. This is both inflammatory and misleading.

Vote Leave appear to have consistently and deliberately muddled the Visa Liberalisation Dialogue process with Turkish accession, so that people would confuse the two and believe that Turkey will be joining as full members of the EU soon. They aren’t.

Michael Gove stated that Albania, Macedonia, Montenegro, Serbia and Turkey were all set to join the EU by 2020. This is untrue and misleading, and a false representation of fact by Vote Leave, made dishonestly without any grounds for belief in its truth.

This is the status of Albania, Macedonia, Montenegro and Serbia in terms of the likelihood of them joining as full members of the EU: none of these countries are going to be joining as full members anytime soon. The European Commission publishes updated reports on how a country is progressing towards EU membership. The progress reports of Albania, Macedonia, Montenegro and Serbia are detailed below. Turkish membership is dealt with separately.

1.    When a country is ready it becomes an official candidate for membership – but this does not necessarily mean that formal negotiations have been opened.

2.    The candidate moves on to formal membership negotiations, a process that involves the adoption of established EU law, preparations to be in a position to properly apply and enforce it and implementation of judicial, administrative, economic and other reforms necessary for the country to meet the conditions for joining, known as accession criteria.

3.    When the negotiations and accompanying reforms have been completed to the satisfaction of both sides, the country can join the EU.

Albania 2.8 million

In June 2014, which is only two years ago, Albania was awarded candidate status by the EU. Membership negotiations have not started yet. It has therefore years of work ahead of it in order to meet the accession criteria. The current state of play of Albania’s progress towards full membership is available here http://ec.europa.eu/enlargement/pdf/key_documents/2015/20151110_report_albania.pdf

Macedonia 2.1 million

The EU accession process for the Former Yugoslav Republic of Macedonia is at an impasse.

Failure to act on the Commission’s recommendation to the Council means that accession negotiations have still not been opened. At the same time, the government’s failure to deliver sufficiently on a number of key issues damaged the sustainability of reforms, with backsliding evident in some areas.

Macedonia has not progressed with the process of joining, and accession negotiations have still not been opened. Therefore, there is no way that Macedonia will be joining as a full member by 2020.  Macedonia’s current status is that of a candidate country.

http://ec.europa.eu/enlargement/countries/detailed-country-information/former-yugoslav-republic-of-macedonia/index_en.htm

Montenegro 0.6 million

The accession negotiations with Montenegro started on 29 June 2012

In 2015, the European Commission published an update on Montenegro’s progress. It said “Montenegro is at an early stage of preparation on, environment and climate change.

Aligning with the acquis and strengthening the administrative capacity remains a substantial challenge for Montenegro”.  Montenegro is therefore a long way off full membership and it is misleading and untrue to suggest that Montenegro will be at the point of full membership by 2020.

A copy of Montenegro’s progress report is available at http://ec.europa.eu/enlargement/pdf/key_documents/2015/20151110_report_montenegro.pdf

 Serbia 7.2 million

Serbia – along with 5 other Western Balkans countries – was identified as a potential candidate for EU membership during the Thessaloniki European Council summit in 2003. In 2008, a European partnership for Serbia was adopted, setting out priorities for the country's membership application, and in 2009 Serbia formally applied. In March 2012 Serbia was granted EU candidate status. In September 2013 a Stabilisation and Association Agreement  between the EU and Serbia entered into force.

In line with the decision of the European Council in June 2013 to open accession negotiations with Serbia, the Council adopted in December 2013 the negotiating framework and agreed to hold the 1st Intergovernmental Conference with Serbia in January 2014.

On 21 January 2014, the 1st Intergovernmental Conference took place, signalling the formal start of Serbia's accession negotiations

14-12-2015: The second Intergovernmental Conference on Serbia’s EU accession sees the opening of two out of 35 negotiating chapters. The negotiations were opened on Chapter 32, dealing with financial control and Chapter 35 (other issues). There is therefore a number of years to go before Serbia is ready to join as a full member of the EU, and it is misleading and untrue for Vote Leave to imply otherwise.

David Cameron identified the statement that Turkey would join the EU by 2020 as a lie. The sole purpose of these lies was to scare the electorate into believing that huge numbers of people from Turkey, Albania, Macedonia, Montenegro and Serbia were going to be headed to the UK in four years’ time, and that voting leave was the only way to stop this happening.

Proof that these misrepresentations and misleading statements misled the electorate.

An Ipsos Mori poll issued on the 23rd June 2016  found that 45% of people believed that if we remain in the EU Turkey will be fast tracked into becoming a full EU Member and their population (80m) will be given the right of free movement to the UK.

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Vote Leave lies and misrepresentations on the cost of EU Membership

Background

Vote Leave made the cost of EU membership a central feature of their campaign. In their campaign literature they repeatedly stated that we pay £350m a week to the EU, and if we left we could spend that money on our priorities such as the NHS instead. Many people understood that in the event of us leaving the EU the NHS would get an extra £350m a week, a promise that was rapidly rowed back on once the EU referendum result was announced, with Nigel Farage declaring this claim a "mistake".

Lord Ashcrofts poll identified that the cost of UK contributions was a key issue for Leave voters, ranking in approximately fourth place for  potential Leave voters. The poll also identified that a signficiant percentage of people took it as an established fact that the UK was paying £350m a week to the EU, even though this statement was not factually correct. Therefore, all Vote Leave had to do was to keep repeating this figure, and a number of people would believe it was true.

Vote Leaves methodology appears to be based on Lord Ashcrofts poll. It was identified in the poll as a key issue, and Vote Leave made this a central feature of their campaign, even though they knew that the figures they were quoting were misleading as they did not include the rebate.

Falsity of the statement

The Treasury Select Committee held an enquiry into “The economic and financial costs and benefits of the UK’s EU membership” , in which they said the following:

At the heart of Vote Leave’s presentation of its case is the claim that, on leaving the EU, the UK Government would receive a windfall of £350m per week, available to be spent in other ways, “like the NHS and schools”. This, and the other figures used by Vote Leave for the UK’s EU budget contributions (£150bn ‘contributed’ in the past decade, and £511bn since joining) are highly misleading to the electorate for a number of reasons.

First, Vote Leave’s £350m figure does not account for the budget rebate, which amounts to £85m per week. Leaving the EU could not make this money available to spend on schools and hospitals because it is not ‘sent’ to Brussels in the first place. The rebate does not leave the UK or cross the exchanges. This is repeated in other ways. A 'counter' is prominently displayed on Vote Leave’s website. This purports to show that the UK has historically contributed £511bn to the EU since joining in 1973 and excludes the rebate.

Secondly, the extent to which money that the UK receives from the EU budget (a further £88m per week to the public sector and £79m per week to the private sector and non-governmental organisations) would be available for spending on other priorities, would depend on the policy choices of the democratically-elected Government of the day. Vote Leave has stated that “There will [ … ] be financial protection for all groups that now get money from Brussels”. If that policy were implemented, the money available to fund other priorities after Brexit, such as schools and hospitals, would be much lower, and probably closer to the UK’s net contribution of £110 million per week than it is to £350 million. This would be true even if, as has been widely argued, efficiencies could be made in the way that money the UK currently receives from the EU budget is spent.

Finally, it is not impossible that the UK may continue to make contributions to the EU budget after Brexit, either on a transitional or permanent basis, in return for continued access to parts of the single market, or because it considers mutual co-operation in certain areas, such as science research, to be desirable. This too would reduce the supposed fiscal windfall arising from leaving the EU.

Vote Leave has said that £350m a week is “the core number”, and that it is using the number “again and again”. It is very unfortunate that they have chosen to place this figure at the heart of their campaign. This has been done in the face of overwhelming evidence, including that of the Chair of the UK Statistics Authority, demonstrating that it is misleading. Without qualification this is unavoidable. Brexit will not result in a £350m per week fiscal windfall to the Exchequer as a consequence of ending the UK’s contributions to the EU budget. Despite having been presented with the evidence contradicting this claim, Vote Leave has subsequently placed the £350m figure on its campaign bus, and on much of its recent campaign literature. The public should discount this claim. Vote Leave’s persistence with it is deeply problematic. It sits very awkwardly with its promises to the Electoral Commission to work in a spirit that reflects its “very significant responsibility” and the “gravity of the choice facing the British people”.

Claims about the UK’s contributions to the EU budget should be set in context; the UK’s gross contribution, after application of the rebate, accounts for less than 2 per cent of public sector spends each year, and is equivalent to less than 1 per cent of the UK’s economic output. If leaving the EU has a substantial positive or negative effect on the economy as a whole–as many advocates of leaving or staying believe it will–the consequent impact on the public finances is likely to be far more significant than the size of any saving from the EU’s budget contributions.”

The UK Statistics authority repeatedly rebuked Vote Leaves use of these figures on the grounds that they were misleading and didn’t reflect the rebate. Vote Leave were aware that these figures were untrue, but dishonestly chose to use them throughout the EU referendum campaign, thereby falsely representing the cost of EU membership to the UK to the electorate.

Vote Leave also repeated this statement numerous ways in its primary campaign document “Why Vote Leave on the 23rd June?”.

In this document they wrote “Since 1973, we have sent over half a trillion pounds to the EU.”

This statement is untrue. The Treasury Select Committee concluded that Vote Leaves statement that the UK had contributed £511bn to the EU since joining in 1973 was “highly misleading to the electorate” and excludes the rebate.  Vote Leave were aware that these figures were misleading, but dishonestly chose to use them throughout the EU referendum campaign, thereby falsely representing the cost of EU membership to the UK since joining to the electorate.

This was a key claim on the Vote Leave website, with a counter running constantly demonstrating how much money supposedly had been sent to the EU since we joined.

In the same campaign leaflet, they also said that “Half the entire English schools budget, or four times the annual Scottish schools budget and four times the science budget”

Having checked the figures, the schools budget is approximately £38bn, and therefore half of that would be 19bn. If the extent of the UK contribution was £20bn a year this figure would be right. However, as the UK contribution per year is nowhere near this amount, this statement is misleading and untrue.

The same campaign leaflet also made these assertions in relation to the NHS Cancer Drugs Fund

£340m                                              20,000m sent to Brussels


NHS Cancer drugs fund

The NHS Cancer Drugs Funds annual budget is £340m  so this figure is correct. However, we don’t send £20bn a year to the EU so that element is misleading.

According to Vote Leaves campaign literature “We send 60 times more money to Brussels than we spend on the NHS Cancer Drug Fund”.

This statement is untrue and misleading as we don’t spend 20bn a year in budget contributions.  We spend approximately £110m a week in EU budget contributions, so these figures are wrong, and designed to mislead the electorate.

Evidence that this statement misled the electorate

An Ipsos Mori poll issued on the 23rd June 2016 found that nearly half of the British public (47%) believed Vote Leave’s claim that the UK pays £350 million a week to the European Union is true, despite the figure being debunked and repeatedly criticised by the UK Statistics Authority.

Just 39 per cent realised the figure, which has formed the centrepiece of the Leave campaign, is false, while 14 per cent do not know . This appears to prove conclusively that the electorate were misled.

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Vote Leave misrepresentations on future euro bailouts

Falsity of the statement

In the Vote Leave campaign publication “Taking back control from Brussels”, it states that “Losing control costs a fortune – if you vote 'remain' you’ll be paying for euro bailouts.”

This is factually incorrect, as it was agreed by EU leaders at the European Council meeting in February that the UK would not have to pay for future euro bailouts, provided the UK remained a member.  Section A (3) of the European Council conclusions of the 18th and 19th of February states on page 15 that:

“Emergency and crisis measures designed to safeguard the financial stability of the euro area will not entail budgetary responsibility for Member States whose currency is not the euro, or, as the case may be, for those not participating in the banking union. 

Appropriate mechanisms to ensure full reimbursement will be established where the general budget of the Union supports costs, other than administrative costs, that derive from the emergency and crisis measures referred to in the first subparagraph”.

This means that in the event of another euro bailout being required, the UK would not have to contribute (following this political agreement), and any part of the general budget that was used for euro bailouts would be reimbursed back to the UK. Whilst decisions of the European Council are politically binding, rather than legally binding, Member States do not as a rule renege on political agreements, and Vote Leave provided no supporting evidence to suggest that the Member States would not honour this agreement. So, as a matter of practice, there was every reason to suggest that the UK would not be paying for future euro bailouts. Therefore, this statement by Vote Leave is misleading,

Evidence that this statement misled the electorate

An Ipsos Mori poll found that nearly half of the British public (48%) believed Vote Leave’s claim that if Britain remained in the EU that it would be made to pay billions of pounds to bail out Eurozone countries. This poll strongly supports the view that the above statement by Vote Leave misled the electorate.

newsVote Leave misrepresentations on business support for Brexit

During the EU referendum campaign Vote Leave wrote in their leaflet “Most businesses want us to take back control” that 

"INTERNATIONAL INVESTORS ARE NOT WORRIED ABOUT BRITAIN LEAVING THE EU
According to Vote Leave, "International businesses and investors have made clear that they are not worried about Britain leaving the EU":

In the leaflet they wrote the following quotes:

Tim Tozer, Chairman and Managing Director, Vauxhall Motors: ‘If this country would vote to leave the EU, would that trouble or concern us? There my answer is no because I don’t think that in that event there would not be a trade agreement with what was left of the EU’ (BBC Radio 4, Today Programme, 15 September 2015,

It has since been reported that Vauxhall Motors, Toyota, Airbus and Unilever – all supporters of Britain remaining in the EU – are understood to be annoyed their logos have been used without permission. http://www.briefreport.co.uk/news/vauxhall-toyota-and-unilever-unhappy-with-vote-leave-campaign-4196390.html

Kevin Rose, board member, Bentley: ‘We made our plans, we've announced the investments ... and they were in full knowledge that there was a referendum so we believe in the UK … Regardless [of the outcome], we think that the UK is a good place for investment’ (Reuters, 17 September 2015, link).

Fabrice Bregier, Chief Executive, Airbus: He has said he has ‘no intention’ of pulling manufacturing out of the UK if the country votes to leave the European Union (BBC News, 16 June 2015, link).

Since then, Airbus has threatened legal action over Vote Leaves use of their logos and claims it is “highly misleading to British voters”  http://www.dailymail.co.uk/news/article-3644637/Stop-using-logos-Brexit-Vote-Leave-campaign-faces-legal-action-angry-firms-including-Airbus-Unilever.html

According to Vote Leave: "Jeff Immelt, Chairman and Chief Executive, GE: ‘It’s important the UK has good relationships around the world, but I don’t really think that its place in the European Union makes that much difference’ (The Daily Telegraph, 3 October 2015, link)."

Since becoming aware of Vote Leaves use of their logos, GE has threatened legal action over Vote Leaves use of their logos, and claims it is “highly misleading to British voters”  http://www.dailymail.co.uk/news/article-3644637/Stop-using-logos-Brexit-Vote-Leave-campaign-faces-legal-action-angry-firms-including-Airbus-Unilever.html

Vote Leave also quoted the following:

Karl-Thomas Neumann, Chief Executive of Opel: 'We have plants in Luton and Ellesmere port. We will not turn our back on England... life would carry on... We would continue to find ways to invest' (Reuters, 17 September 2015, link).

Trevor Mann, Chief Performance Officer, Nissan: 'If there was a future trade agreement between the UK and EU then it wouldn't make a lot of difference' (Financial Times, 11 January 2016, link).

Nissan has since said that it plans to sue the Vote Leave campaign over EU referendum flyer https://www.theguardian.com/business/2016/jun/20/nissan-vote-leave-campaign-eu-referendum-flyer

Vote Leave also said that "Takahiro Hachigo, Chief Executive of Honda: 'Honda remains firmly committed to car production in the UK and Europe. Our production activity in the UK plays a key role for our business in terms of providing products to the European market… and beyond' (AutoExpress, 1 October 2015, link).

Since the EU referendum it has been reported that there is as much as a 75 per cent chance that Toyota and Honda will eventually pull out of the UK if the country’s vote to leave the EU leads to a levy on cars made in Britain, analysts warned on Monday. https://next.ft.com/content/1bef35ac-3c44-11e6-8716-a4a71e8140b0

According to Vote Leave, Akio Toyoda, Chief Executive of Toyota said that: 'We want to deepen our roots to deliver ever better cars, so when that capsule is opened after 100 years, all can see we’ve built a truly British company.... I think a strong manufacturing workforce and parts supply chain are characteristic of the UK... I understand it was judging on those factors that we choose to put our first European plant in Britain' (FT, 11 January 2016, link).

Toyota has since said that it is considering legal action against Vote Leave for trademark abuse of its logo
http://www.worldipreview.com/news/eu-referendum-toyota-considering-legal-action-after-trademark-abuse-10271

Vote Leave said that Paul Polman, CEO of Unilever said that: 'The effectiveness of my research centre is the quality of the people I have there and the ideas coming out in terms of the innovations that we produce. We don’t make a decision on moving research centres around depending on if you are in the EU or not... I am in every country basically, in any trading zone, in the EU, out of the EU. People need to buy shampoo, people need to eat their Knorr or Cup-a-soup, and they want to buy their Coleman’s and they want to buy their Magnum ice cream. They are not going to say that is function of if I am in the EU or if I am not in the EU' (Guardian, 25 January 2015, link).

Unilever has since threatened legal action over Vote Leaves use of their logos, amid claims it is “highly misleading to British voters”  http://www.dailymail.co.uk/news/article-3644637/Stop-using-logos-Brexit-Vote-Leave-campaign-faces-legal-action-angry-firms-including-Airbus-Unilever.html

Vote Leave also indiciated that Carlos Ghosn, the chief executive of Renault-Nissan said that:  'Whatever is the decision of the UK we will adapt to it. I don’t think there is a reason to worry. We knew for many years that [an exit] was possible. So we’ll deal with it' (Guardian, 21 January 2016, link).

Nissan are allegedly to sue Vote Leave campaign over EU referendum flyer https://www.theguardian.com/business/2016/jun/20/nissan-vote-leave-campaign-eu-referendum-flyer

On the 4th September 2016 the Japanese government warned the UK government at the G20 meeting that its country's firms (including potentially Honda, Toyota and Nissan) may have to move their European Head offices out of the UK, if EU law ceases to apply to the UK.

It is very clear that Vote Leave misled the electorate, by providing false endorsements in their campaign literature.  It is worth noting that if this was a commercial situation, and a business had provided false endorsements in their promotional material, this would be a criminal offence and the directors of the company could go to prison for up to two years.

Why the EU referendum result has no democratic legitimacy

On the 23rd June 2016, the UK was supposed to take part in the biggest exercise of democracy it has ever had. Leave campaigners heralded the EU referendum as a “vote for democracy”, however the dishonest practices of Vote Leave and its campaigners has quite possibly turned the EU referendum into one the biggest abuses of democratic process this country has ever seen.

For the EU referendum campaign, Vote Leave created a website and published numerous campaign leaflets on a range of topics, including immigration, border controls, migration (including Turkish membership) EU contributions and national security. They also created a primary document, called “Why Vote Leave on the 23rd June” which amalgamated the key messages of the campaign.

The core messages from Vote Leave were

  • immigration is out of control and we will regain control once we leave,

  • we can't control our borders

  • we pay £350m a week to the EU which we could spend on the NHS instead

  • we are not in control of our defence

  • we have no control or input into anything that happens in the EU and we are consistently outvoted,

  • the unelected European Commission controls our law,

  • terrorists and violent criminals can come into the UK with impunity and we can’t do anything about it,

  • the European courts control us,

  • the Charter of Fundamental Rights gives the European Court of Justice unlimited power,

  • an EU army is on its way, which our army will be forced to join

  • Turkey, Albania, Macedonia, Montenegro and Serbia will be joining by 2020

  • We can't stop any of these countries joining

  • We have no control as members of the EU.

Scary stuff.

Except... none of the above statements are true.

What few people realised is that the main Vote Leave campaign messages – on immigration, control of our borders, migration and Turkey, the cost of our EU contributions, and the UK's powers in relation to national security and defence, were riddled with lies and misrepresentations.

Yet it seems clear that these lies and misrepresentations were believed. An Ipsos Mori poll issued on the 23rd June 2016 found that nearly half of the British public (47%) believed Vote Leave’s claim that the UK pays £350 million a week to the European Union to be true, despite the figure being debunked, and repeatedly criticised by the UK Statistics Authority.

The same Ipsos Mori poll also found that

  • 48% of people believed that if Britain remained in the EU that it would be made to pay billions of pounds to bail out Eurozone countries.

  • 45% of people believed that if we remain in the EU Turkey will be fast tracked into becoming a full EU Member and 80m Turks will have the right to free movement to the UK.

  • Another interesting fact that a number of people got wrong was the number of EU immigrants as a percentage of the UK population. People believed that figure was approximately 15% whereas Ipsos Mori said in reality it was 6%.

An ORB poll in mid June 2016 found that 49% of leave voters thought leaving the EU would give them greater control of their lives.

It therefore seems reasonable to assume that the information contained in Vote Leaves campaign literature, and repeatedly expressed by Vote Leave campaigners, had a material effect on how people voted, even though that information was usually not factually correct or misrepresented the facts.

What makes this an abuse of democratic process is the sheer scale of those lies and misrepresentations. For example, out of one 16 page leaflet there were just six factually correct statements, and four of those were descriptions of the UK.

Politicians and campaigners on either side of the argument are fully entitled to offer their political opinions and speculative assessments of what might happen in the future, economically or politically, and set out their visions for the future; but to deliberately present factually incorrect information with the explicit intent to mislead the electorate goes well beyond the boundaries of democratic legitimacy and arguably UK electoral law.

But what prompted Brexit campaigners to come out with these lies and misleading statements in the first instance?  The answer appears to lie in a poll run by Lord Ashcroft (a committed Brexiter) in November and December 2015. This poll examined in detail the issues that were likely to be of relevance to people in the EU referendum. Analysis of a 20,000-sample poll identified seven “segments” of voters with different backgrounds, motivations, priorities, and views on EU membership covering the spectrum from Leave to Remain. The primary issues for potential leave voters were identified as immigration, control of borders, migration/refugees, UK contributions and national security, and this seems to have formed the basis for the campaign messages contained in the Vote Leave website and leaflets.

Given that these campaign leaflets are the ones with the most factual errors and the most misleading, it could reasonably be alleged that the Vote Leave's methodology was to prepare campaign materials which suggested that leaving the EU would deal with those concerns – irrespective of the factual accuracy of those assertions. Basically, they told people what they wanted to hear, irrespective of whether or not this was factually true, and whether or not it was achievable.

But surely there are people who check that the information put before the electorate is factually accurate? The short answer is no. At the moment, the Electoral Commission has no powers to check that the information provided in elections and referenda, including the EU referendum campaign, is factually accurate, although providing false information in campaign literature can be considered as undue influence in some circumstances, constituting a breach of electoral law ( R v Rowe Ex p. Mainwaring [1992] 1 W.L.R 1059).

Throughout the campaign, Vote Leave and Leave MPs lied and misled the electorate, and have consequently seriously undermined a fundamental democratic freedom; namely, the right to play an active and informed part in the political life of the country.

The UK is the oldest democracy in the world, and it has been seriously damaged by the irresponsible actions of Vote Leave and Leave MPs. Elections and referenda cannot be 'free and fair' where leading participants abuse their positions of trust by lying repeatedly to the electorate on matters of fact to achieve their political aims.

MPs are also governed by the Code of Conduct in Public Life, which requires MPs to act with:

"Selflessness … Integrity … Objectivity … Openness … Honesty”

It is difficult to see how lying and deliberately misleading the electorate is compatible with these fundamental tenets of public office.These MPs and MEPs have brought democracy and Parliament into disrepute, fundamentally undermining trust in both politicians and political process.

The net consequence of these lies and misrepresentations is that the EU referendum result can have no real democratic legitimacy, as it was greatly influenced by lying and misleading the electorate. It is not a true reflection of the will of the people, but more a reflection of the lies told to achieve this result, many of which have little bearing on reality.

Vote Leave campaigners will argue that 17.4M people voting to leave the EU constitutes electoral legitimacy. However, the question is how much the lies and misleading statements made by Vote Leave influenced voters. The Ipsos Mori poll results indicate that very many voters believed those statements, so almost by definition were unduly influenced by them when casting their vote. If just 5% of people that voted to exit, being properly informed, had voted remain then the result would have been reversed.

But the issue doesn't stop there; the 17.4M who voted to leave the EU only make up approximately 34.7% of the total number of people entitled to vote. In other words, some 65% of the electorate did NOT vote to exit the EU. Under normal circumstances it is reasonable to discount those who did not vote, however the conduct of Vote Leave during the EU referendum was not a normal circumstance.

In the lead up to the vote, interviews and polls indicated a very considerable confusion in the minds of the electorate as to the facts, and the merits and demerits of remain or leave. In these circumstances, voters are far more susceptible to the influence of campaigners. Trust becomes a key factor - who do you trust when you receive two widely conflicting versions of the truth? When it comes to such important decisions there is a far greater than normal responsibility by both parties not to exert undue influence through the telling of deliberate untruths or making misleading statements, thereby preventing the electorate making an informed choice.

When applying for designation as the main Leave campaign, Vote Leave gave an undertaking to the Electoral Commission that:

"As Parliamentarians, campaigners and political activists we are conscious that playing a leading part in such an important moment in our national democracy is a very significant responsibility. If we were designated we would undertake the task in this spirit, conscious of the gravity of the choice facing the British people".

The Vote Leave campaign has clearly fallen well below the standards of trust expected for such a decision, and the question remains as to how much effect their lies and misinformation had on those that did not vote. Many, it appears, did not vote as they were not sure of the facts, or who to believe. It is impossible to say what effect the Vote Leave camapign had on this section of the electorate, but any dishonest conduct that might have dissuaded people from voting brings further into question the final EU referendum result.

Since the referendum the government has adopted the policy of “Brexit means Brexit”, and even pro-Remain politicians repeat the mantra “we should respect the result”. But just why should the British people “respect the result”?

If a person is convicted of a serious crime where the witnesses lie to deceive judge and jury, should the jury's decision be respected? Of course not; to do so would be to respect a gross miscarriage of justice, and that is why there is an appeals process, and the law imposes criminal sanctions on those that try to abuse legal process by committing perjury.

To “respect the result” of the EU referendum, where the Vote Leave campaign lied repeatedly to the electorate to gain its desired result, should also not be automatically respected; its legitimacy is badly tainted. To accept the result is to accept a gross abuse of electoral process, and politicians are failing in their duty to Parliament and the people of Britain to simply accept it unconditionally, as to do so is a fundamental betrayal of democratic principles where lies and deceit have been allowed to win the day.

Legally speaking, the EU referendum is advisory in nature, and is not binding. Two leading barristers' Chambers are bringing legal challenges against the government arguing that consequently Parliament must give its consent prior to Article 50 being invoked. If that proves to be constitutionally correct, and the Prime Minister cannot invoke Article 50 using the Royal Perogative, then it will be for Parliament to decide what weight to give to the EU referendum result, given the lies and misrepresentations that were told in order to secure that result.

Analysis

An analysis of the lies and misrepresentations referred to above are detailed in full in the articles linked below.

When assessing the Vote Leave campaign literature, we went through the main campaign documents on a line by line basis, and where factual errors or misrepresentations were identified, we provide factual corrections. Copies of the original Vote Leave documents may be found at http://www.voteleavetakecontrol.org/briefing

newsHow could the UK deal with the legal implications of Brexit?

 

What is very clear is that if the UK left the EU, withdrawing from it altogether would leave a huge legislative black hole, which would need to be filled by implementing all existing EU law or at least a significant proportion of it, back into the UK legal system. 

Constitutionally, the UK is a dualist state. In dualist states a treaty or non UK law ratified by the Government does not alter the laws of the UK unless and until it is passed into UK law by an Act of Parliament or some form of delegated legislation, such as a statutory instrument. This is a constitutional requirement: until incorporating legislation is enacted, the national courts have no power to enforce these rights and obligations either on behalf of the Government or a private individual.

Constitutionally, this means that it would not be possible for the UK Parliament to simply pass an Act of Parliament, effectively stating that all of these EU Regulations would carry on applying; that is not a legal option. Instead, all of the EU Regulations that would cease applying to the UK once the European Communities Act was repealed would need to be repatriated back into the UK legal system through either Acts of Parliament or some form of delegated legislation.

On average, the UK passes between 60-100 Acts of Parliament or statutes each year, so repatriating EU law in this way would involve the work of years.  In the meantime, there would be significant legal uncertainty; for example, businesses wouldn’t know what laws were applying and the paths to legal redress in the event of dispute; they would have difficulty enforcing cross border trade debts; and employees wouldn’t know what their rights were.

Given enough time, it would be possible to plug those legislative gaps.  But to get an idea of the amount of time it would probably take, one can look at the amount of time that it takes for a country to join the EU. This involves aligning a country’s laws with EU law, and is a process that can take anywhere between 10-20 years. Pulling out of the EU would involve a reversal of this process, and would in all probability take the same amount of time. Whilst it is true that plenty of other countries trade with the EU, divorce is always messier than new relationships, and leaving the EU would be a particularly messy divorce, legally speaking.

Whilst it would be possible for the UK Government to repatriate these laws using statutory instruments, this is not without its problems.  The UK government passes on average 3000 statutory instruments each year, and the maximum it has passed in recent years is 5000 in 2014. This suggests that the UK Government would perhaps have the capacity to pass an extra 2000 statutory instruments each year, in which case the process would probably still take close to a decade.

Furthermore, statutory instruments are not debated in Parliament and are usually passed without discussion, which means that the UK population could easily end up with even less democratic input into legislation than we currently enjoy. EU Regulations pass through a stringent oversight procedure, being passed ultimately by the elected European Parliament, and the Council, made up of our government ministers. Statutory instruments on the other hand are able to be changed by the Minister named in the parent act, which gives them the power to make changes with very little parliamentary scrutiny.  As it is, statutory instruments have been criticised recently for being anti-democratic and an abuse of power, as seen recently when the UK Government scrapped student grants without debate, using statutory instruments.

Despite all the passionate rhetoric coming out of the Leave campaigns, arguing that Britain should pull out the EU altogether, the reality is that rapid withdrawal from the EU, particularly where the UK pulled out of the EU altogether would result in legislative carnage, which would in all probability lead to economic and social chaos for a sustained period of time. The Leave campaigners have accused the government of scaremongering, but an analysis of the legislative impact of Brexit, and the time that it would take to resolve and repatriate the existing legal framework, strongly supports the government’s view that pulling out the EU altogether would put a bomb under the UK economy.  .

For example, the UK economy is underpinned by the money generated by the City of London. The legal framework that the City operates in includes the following EU Regulations, all of which would cease to apply in the event of Britain pulling out of the EU altogether and repealing the European Communities Act 1972.  These include the technical procedures that take place every time there is a credit transfer or payment is made, the rules that apply to short selling and credit default swaps, the rules relating to transactions in the euro, and the system of oversight that applies to the banks.

How would the City carry on trading, if the rules that underpin the daily financial transactions that the City makes thousands of times each day, suddenly stopped working in a legal sense? Is it awareness of this issue that has led to £65bn leaving the UK in capital flows in March and April? How would any business carry on trading if the legal framework was this uncertain, and what consumer protections would be lost? What would happen to research projects if the Horizon 2020 Regulation and the Erasmus Regulation were repealed in two years’ time when the EU Treaties stop applying and Britain would repeal the European Communities Act? These are serious questions, and the British public should be given serious answers to these questions before the referendum on the 23rd June if they are to make an informed choice.