What is a citizen?
Citizen (n): A legally recognized subject or national of a state, commonwealth, or other polity, either native or naturalized, having certain rights, privileges, or duties. (OED)
The Maastricht Treaty of 1992 established the concept of EU citizenship. The relevant provisions are now in the Lisbon Treaty on the Functioning of the European Union of 2007. It is conferred on every person holding the nationality of a Member State, and is additional to and not does not replace national citizenship (Art 20). This provision is directly effective as a matter of EU law (that is, it does not depend on anything in UK legislation).
I, therefore, as well as being a UK national, am a citizen of the EU. I am also, for what it’s worth, a citizen of Canada (a fact that I’ll refer to again later).
What does my EU citizenship get me? Again, Art 20 gives the answer:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder. Note: the status of citizen are unconditional; it is the exercise of the concomitant rights which is made subject to conditions.
Note also that the status of citizen is “conferred”; this verb connotes a once-and-for-all action (such as the conferring of a degree, an honour or a medal), not an ongoing, but determinable, holding of a status. (Confer (v. trans.): to give, grant, bestow, as a grace, or as the act of a qualified superior – OED again). Presumably, if I were to seek citizenship of a country which did not permit dual citizenship, I would be required, by separate acts, to surrender both UK and my Canadian citizenship, by interaction with those separate governments. An astute civil service in my adopted country should also require me to surrender my EU citizenship. (Incidentally, there’s an interesting article on which countries permit dual citizenship here.)
So, my EU citizenship was conferred on me at the time of the Maastricht Treaty; what happens to it when Brexit happens?
The political view is that once the UK is no longer an EU member state, of course I can’t possibly be an EU citizen; how could I have rights with no concomitant obligations? It is on that basis that there have been mutterings, not least from EU negotiators, about some sort of optional, possibly subscription-based, “associate” EU citizenship for those UK nationals who what it post-Brexit, although there is a good chance that any such proposal would not get off the ground.
But for those of us engaged in critical thinking, the words “of course” in that paragraph are an intuition pump, and will have set off alarm bells; they indicate an unacknowledged assumption, and a potential weak point or non-sequitur in the argument.
Consider this. Even now, I have no obligations as an EU citizen. I pay no EU taxes, there is no EU army to serve in, I am not even obliged to vote in EU elections. Such obligations as I do have under EU law (such as the obligations as an employer to my employees) I owe as a matter of UK law, not as an EU citizen (and these obligations, of course, predate the institution of EU citizenship in any case). So in this particular arena, rights and obligations are not in fact, essential opposite sides of the same coin.
So, perhaps we should look at the question of EU citizenship post-Brexit with more critical eyes. The following analysis has been put forward by John Hodgson of the Nottingham Law School, in an article in The Barrister magazine.
What happens when a treaty is terminated is a matter of law as well as a matter of politics. Art 70 of the Vienna Convention on the Law of Treaties 1969 provides that:
Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provision or in accordance with the present Convention:
(a) releases the parties from any obligation further to perform the treaty, [but]
(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
Exit from the EU under Article 50 of the EU Treaty takes effect in accordance with its own provisions; and the EU Treaty does not “otherwise provide”, so as to avoid the effect of Art 70. So Art 70 of the Vienna Convention seems to say that rights accrued before that date survive the termination of the UK’s membership of the EU.
Two criticisms of this interpretation spring to mind. First: Art 70 refers to the rights, obligations and legal situation of the parties to the treaty – and that means the UK and the EU (including its other member states), not individuals or citizens. True; but the rights pertinent to EU citizenship are mirrored by obligations on the EU and member states, to permit and facilitate (for example) free movement, or the exercise of the franchise. If and to the extent that existing obligations on the parties to the treaty survive the termination of the treaty, the rights of individuals reflective of those obligations also survive.
Secondly, Art 70 only applies “unless … the parties otherwise agree”. Surely, it is said, surely (there’s another intuition pump), the parties – the EU and the UK – will agree, as part of the Brexit process, that (by whatever mechanism) UK nationals will lose their EU citizenship?
That’s subject to three points in rebuttal.
First, the Prime Minister – in her recent Brexit speech – said in the context of the forthcoming negotiations that she was “… clear that no deal for Britain is better than a bad deal for Britain.” While it may be an unlikely outcome, if there is no Brexit deal, then the parties will not have “otherwise agreed”, and Art 70 will apply. (And in the last year, if we’ve learnt nothing else, we’ve learnt not to discount unlikely outcomes.) Let’s not ignore the practicalities of securing an agreement; it will require the agreement of the EU institutions, including the Parliament, as well as the remaining 27 member states – who often fail to see eye-to-eye on even the most fundamental matters of EU competence.
Secondly, there is no basis on which the UK Parliament can withdraw EU citizenship from UK nationals, as the status does not depend on UK law. Dual citizenship is permitted under UK law, now set out in British Nationality Act 1981; but while s.40 of the Act permits the government to strip an individual of his or her British citizenship if that is conducive to the public good (in itself a stringent test), it does not permit the government to strip me of, or require me to surrender, any non-British citizenship. For example, it would be for the Canadian government, not the UK government, to regulate my holding of Canadian citizenship.
Thirdly, it is doubtful whether the EU can deprive me of my EU citizenship. The EU institutions are bound by the Charter of Fundamental Rights and Freedoms of the European Union, Art 1 of which provides that: “Human dignity is inviolable. It must be respected and protected.” Citizenship is an aspect of human dignity, as it is a means by which individuals assert a common identity and purpose. Indeed, in the US Supreme Court case of Perez v Brownell, Chief Justice Warren in his dissenting judgment said:
Citizenship is man’s basic right for it is nothing less than the right to have rights.
While it may not be absolutely immutable, any power to deprive an individual of it must be exercised according to law and not arbitrarily. However, there is no provision in the Treaties for deprivation of EU citizenship along the lines of s.40 of the British Nationality Act; and so, in practice, it cannot be done. (Although there is an interesting note on the involuntary loss of EU citizenship here.)
For anyone looking for a more academic treatment of the question before making up their minds, I commend section III of this article from the Fordham International Law Journal, published in 2013.
Whether this analysis ultimately holds water, only time will tell. At least some commentators will accuse me of underestimating the power of realpolitik. But, as we have been reminded again by the Supreme Court in its Brexit judgment (on which, more shortly), matters that are widely regarded as having great political importance can be legally irrelevant.