The guiding principles agreed by the EU 27 with regard to the Brexit negotiations include the extraordinary proposition that the rights of EU citizens in the post-Brexit UK should be adjudicated by the ECJ, whose writ would then, at least in that respect, cover EU citizens in Britain. They seem oblivious to the fact that a key factor in the UK’s Brexit debate was independence — the right to make our own laws for our own country.
Think about it for a moment. Imagine a US citizen who was disputing his right to work or reside in an EU member-state. If the member-state courts ruled against him, could he then appeal to the US Supreme Court to decide on his behalf? And would Brussels and the ECJ accept the US Supreme Court ruling? Of course not.
Similarly the case of an EU citizen in the USA. If his residence status or Green Card were in dispute in the USA, could he appeal over the heads of American courts and ask the ECJ to rule on his behalf? And if it did, would the US of A accept the ECJ ruling? Again, of course not. Clearly the EU Commission recognises that the USA is a sovereign, independent country, but does not accept that a post-Brexit UK will be independent and sovereign.
Accordingly I Tweeted: Question for Brussels: Are US citizens in the EU subject to US law, or EU law? Why should EU citizens in post-Brexit UK be under the ECJ?
Now of course you can’t get all the nuances into 140 Twitter characters, so internet critics (that term “trolls” is so over-used, don’t you think?) can have a field day with (often deliberate) misunderstandings. We immediately had Professor Michael Merrifield (who should, and probably does, know better) come up with: “Yes, quite a large section of US law applies extraterritorially. Funny when your ignorance makes the opposite point”.
In fact I have spent quite a lot of time in the USA since 1972, and I daresay I know as much about it as Professor Merrifield.
But not to be outdone, a certain Nathan Dennis comes up with a similar complaint: “US law has no territorial boundaries and US citizens are bound by it globally. Your ignorance is frightening, is this a parody account?”
It is true that some US law applies extraterritorially, but it then applies to US citizens in addition to the laws of the country in which they happen to be at the time. An American cannot exclude himself from (say) French law by appealing over the heads of French and European courts to the US Supreme Court. Yet that is exactly parallel to what the Commission and the EU 27 want to be the case for EU citizens in dispute with post-Brexit Britain.
Of course the good Professor knows all this perfectly well, and probably Mr. Dennis does too. But they couldn’t resist the temptation for childish name-calling and playground insults.