Brexit and the Free Movement of Persons: A Plea for National Legal Self-Assertiveness

Abstract

National judges and Member State governments have an obligation to be assertive about national interests threatened by EU policies, even to the extent of challenging existing doctrines of law, proposing new interpretations, and insisting on the proper division of judicial functions, for they have particular knowledge and understanding of the consequence of EU law. An unquestioning obedience to the Court of Justice and to established doctrine is not loyalty, but subversion of an essential legal dialogue, and a failure to play an active and constructive role in building a legal system which serves the goals and wellbeing of Europeans. The Brexit debate is a case study in this: despite claiming publicly that mass migration was threatening essential and legitimate public interests, the UK did not attempt to use the available doctrines or derogations to defend these, behaving as if legal orthodoxy was fixed in stone, and the only options were leave or accept. It would have been more loyal, more European, more helpful to Europe, to impose unilateral restrictions and defend them vigorously with evidence and good arguments.