Come Off It, Professor


European Union, Legal Matters, Policy

Jonathan Portes has falsely accused Migration Watch UK of lying. Professor Portes is wrong and his accusation is false.

This is a familiar tactic of his when he disagrees with or disapproves of any argument. As historian Niall Ferguson wrote in a powerful Spectator article in 2015, he seeks, ‘to undermine an irrefutable argument by claiming loudly and repetitively to have found an error in it’.

The paper which caught his attention proposed possible reforms to the UK’s immigration system in the event that the UK voted to leave the EU.

Published in January 2016, some six months before the referendum, the paper demonstrated how confining EU migration to those who might qualify for a work permit would cut net migration from the EU by about 100,000 a year. Indeed, Professor Portes himself referenced our paper and paraphrased its key conclusion in a blog for VoxEU.org in May 2016.

The gravamen of his recent accusation is not directed at the substance of the paper but instead towards a single paragraph on the topic of EU nationals who are already in the UK at the time. This merely noted as background (and for the purposes of the paper to set them to one side) that the Vienna Convention on the Law of Treaties 1969 would preserve ‘existing rights’ of EU nationals already in the UK at the time of Brexit. What the paper did not do was make proposals or recommendations about such UK residents in the event of the UK’s departure from the EU.

The background point regarding the Vienna Convention was not of our own manufacture but taken from a House of Commons Library Research Paper (13/42 “Leaving the EU”) with a reference given as the source in a footnote.

Similar views that the Convention would act to preserve rights of EU nationals already in the UK were espoused by others around the same time, for example, in a joint letter co-signed by British Future, the Institute of Directors, the Joint Council for Welfare of Immigrants, Migrant Voice, Open Europe and us.

We understand Mr Portes to be saying that our paper contained a ‘lie’ because, in his words, it made a ‘false’ claim that the Vienna Convention would guarantee all existing rights of EU nationals.

However, just like the references made by others to the Convention, ours did not contain the word ‘guarantee’ nor did it contain the word ‘all’. Our reference was to the Library paper and thus to the rights described in it which we referred to in our paper as ‘existing rights’. That leaves him quibbling over the use of the term ‘existing rights’.

The House of Commons Library paper used the phrases ‘executed rights‘ and ‘rights acquired by the states parties and by their nationals’ while the British Future-sponsored letter mentioned above referred to the ‘acquired rights of individuals’. Others have used the term ‘vested rights’. Professor Portes appears to be trying to generate a difference between them by claiming that we meant something different, but he does this by interpolating words that appeared nowhere in our paper.

Nor can it be said that we intended to blur the line between rights that might have been covered by the Convention and any other existing rights in order to give some false confidence to EU nationals in the UK. As noted above, the paper made this point simply to set aside the substantive issue of EU nationals already in the UK and to make clear that our proposals would not be addressed to them but towards future new arrivals.

Thus there is no material difference between what we and others were saying at the time. It is true that not everyone agreed with these views, and expressed doubts both about the scope of the Convention and the ability of individuals to use it to enforce their rights.

But these were not settled issues at the time (and they continue to be matters of debate) and, in such circumstances, the expression of opinion shared on one side of the debate that the Convention would operate to preserve rights of EU nationals in the UK cannot possibly be described as a lie.

It is unclear what Mr Portes hopes to achieve by calling us liars. Nor is this false accusation helpful to the debate on the underlying issue.

There has been no effective challenge to the main conclusion of our paper – that a post-Brexit immigration system which reduced migration from the EU into lower-skilled work could cut net migration by about 100,000 a year. As noted, Professor Portes has referenced the paper himself.

There was no lie in our paper when written and there is no lie in it now. Even if it had since been established after the publication of our paper, and beyond any doubt, that no existing rights would be preserved by the Convention, then it would mean that the view expressed in the paper had turned out, with hindsight, to have been incorrect. But, as above, this was simply a background point in the paper about people who were not covered by the proposals in it. To redraw attention to the proposals in the paper for new arrivals in the future could not possibly mean promulgating a ‘lie’ by virtue of the fact that it included a point, irrelevant to the substance of the paper, that was no longer correct. In those circumstances, going back and amending a paper could (and indeed should) be seen as a quite illegitimate re-writing or air-brushing of history.

Our approach to the question of the rights of EU citizens already in the UK remains constructive and serious, but it is dealt with elsewhere, and not in this paper.

The suggestion that we are ‘lying’ by continuing to draw attention to the serious proposals for new arrivals in our paper is absurd, and it simply demeans Professor Portes to make any such suggestion.

15th September 2017

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