Professor
Tamara Hervey, Natalia
Miernik and James C Murphy (UG
students), University of Sheffield
The support of the ESRC
for Health
Governance after Brexit and UK in a
Changing Europe is gratefully acknowledged
1.
Introduction
Some 3.6
million EU citizens, and their families, live in the UK. An estimated
over 185,000 work in the health and social care sector, as highlighted in recent
news reports. Part Two of the Withdrawal Agreement, on ‘Citizens’ Rights’
gives these people continuity of many of the rights they enjoyed in EU law.
This blog post builds on earlier posts on the EU
(Withdrawal Agreement) Act 2020; and the relevant
parts of the Withdrawal Agreement itself. It considers what happens if
those rights are not upheld. How can people affected enforce the Withdrawal
Agreement? This is an important practical consideration: rights on paper without
the means to enforce them are meaningless.
The ‘Citizens Rights’
provisions of the Withdrawal Agreement will continue to apply after the end of
transition. They give residence rights and rights to access health care,
pensions and other social security entitlements. Note, there are equivalent
provisions in the EEA/EFTA
Separation Agreement and the Swiss
Citizens Rights Agreement (which the Withdrawal Agreement Act also gives domestic
legal effect to in the UK).
Our focus here is the
enforceability of the ‘Citizens Rights’ provisions of the Withdrawal Agreement
in the UK. The question of their enforceability in EU Member States is a matter
of EU law and of domestic constitutional law in each relevant Member State.
However, because the Withdrawal Agreement is intended to impose reciprocal
obligations (Article 4 (1) WA), where necessary, we also explain the
enforceability of those provisions in the EU.
The starting point,
which will be the relevant legal position for all instances where the UK brings
into domestic law its relevant obligations under the Withdrawal Agreement, is
the EU
(Withdrawal Agreement) Act 2020. This gives power to adopt regulations to
implement the Citizens Rights parts of the Withdrawal Agreement. If the UK
executive adopts regulations that fully implement the citizens’ rights
contained in the Withdrawal Agreement, then enforcing those rights in UK courts
or tribunals will be a matter solely of domestic law: a claimant will be
relying on rights found in UK regulations.
But what if the UK does
not do so adequately? Can a claimant who believes this is the case bring a
claim based on an infringement of their rights under the Withdrawal Agreement in UK courts or tribunals?
2.
Enforceability of the Withdrawal Agreement in the UK
In EU law, two legal
doctrines interact so as to have the effect that certain parts of EU law are
enforceable by citizens using their national courts. These doctrines are known
as ‘supremacy’ and ‘direct effect’. They are currently (pre the end of
transition) recognised by UK courts, and applied accordingly, as required by
the European
Communities Act 1972.
In order for the
Withdrawal Agreement to be enforceable in the UK, that effect must be created
by an Act of Parliament. This is necessary because the UK is a ‘dualist’
country, where international treaties are not enforceable in the domestic legal
system, unless there is domestic legislation which gives effect to them.
The EU (Withdrawal
Agreement) Act 2020, section 5(1), which inserts a new section 7A into the European Union
(Withdrawal) Act 2018, gives domestic legal effect to the Withdrawal
Agreement, after the transition period:
‘all
such rights, powers, liabilities, obligations and restrictions from time to
time created or arising by or under the withdrawal agreement… are without
further enactment to be given legal effect or used in the UK.’
This provision uses
very similar wording to the European Communities Act 1972, section 2 (1), which
is the part of UK law which gave EU law supremacy and direct effect in the UK
legal order.
The supremacy, or
primacy, of EU law means that it must be applied in preference to contradictory
national law, even if the contradictory national law has been enacted later
than the relevant EU law.
2.1 Supremacy
The UK House of Lords
case of Factortame
confirmed that the 1972 Act gave EU law supremacy in the UK. The House of Lords
found that it was required to ‘disapply’ or disregard any domestic legislation
that was contrary to European Community law. Lord Bridge’s judgment expressed
it thus:
“under
the terms of the Act of 1972 it has always been clear that it was the duty of a
UK court, when delivering final judgment, to override any rule of national law
found to be in conflict with any directly enforceable rule of Community law”.
In the same sense, it
is possible that section 7A of the European Union (Withdrawal) Act 2018 will
have the same effect in that any domestic provision that contradicts the
Withdrawal Agreement will be disregarded. In other words, Parliament may have
given the Withdrawal Agreement supremacy in the same way the European
Communities Act 1972 gave EU law supremacy.
This seems to be the
intention of the Withdrawal Agreement. Its Article 4 (1) provides that the
Withdrawal Agreement’s provisions “shall produce in respect of and in the
United Kingdom the same legal effects” as they produce in the EU. Article 4 (2)
of the Withdrawal Agreement imposes an explicit obligation on the United
Kingdom to secure compliance with this agreement, ‘including as regards the
required powers of its judicial and administrative authorities to disapply inconsistent or incompatible
domestic provisions, through domestic primary legislation.’ (italics
added).
But whether the
supremacy of the Withdrawal Agreement, in the sense that contradictory domestic
legislation must be ‘disapplied’ is secured by the EU (Withdrawal Agreement)
Act 2020, and its amendments to the EU (Withdrawal) Act 2018 remains moot. It
might be argued, for example, that the provisions of the EU (Withdrawal) Act
2018, as amended by the 2020 Act, represent a Parliamentary intention to free
UK courts from the constraints implicit in the supremacy doctrine. The UK would
then be in breach of the Withdrawal Agreement, because the Withdrawal Agreement
would not have ‘the same legal effect’ in the UK as in the EU. But the remedy
for that breach would lie elsewhere than in a claim brought by a citizen
relying on a provision of the Withdrawal Agreement as disapplying contradictory
national law.
2.2 Direct Effect
Whether the Withdrawal
Agreement has the quality of ‘disapplying’ contradictory UK legislation or not,
a further crucial question is whether the Withdrawal Agreement contains rights
which can be enforced by individuals
in UK courts and tribunals, such as the Social Security and Child Support
Appeal Tribunals. This quality of EU law is known as ‘direct effect’.
There are two questions
to be decided: first, whether the Withdrawal Agreement’s provisions on citizens’
rights have direct effect; and second whether that direct effect is effectively
enacted as a matter of domestic law in the UK. The two are inter-related,
because, as noted above, the Withdrawal Agreement itself provides that the
agreement is to produce ‘the same legal effect’ in the UK as it does in the EU.
If the Withdrawal Agreement did not provide for direct effect of the Citizens
Rights provisions, then the UK need not effectively enact such direct effect
into its domestic legal system.
2.2.1 Direct effect of
the citizens’ rights provisions of the Withdrawal Agreement as a matter of EU
law
The Withdrawal
Agreement provides in Article 4 (1) that
‘...
legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this
Agreement which meet the conditions for direct effect under Union law’.
(italics added)
The term ‘the
conditions for direct effect under Union law’ could be interpreted in two ways.
Either it means the conditions for direct effect of EU law itself; or it means the conditions for direct effect in
EU law of international agreements to
which the EU is a party. The wording of Article 4, taken literally, might
suggest the latter. Article 4 WA provides for ‘the conditions for direct effect
under Union law’, not ‘the conditions
for direct effect of Union law’.
EU law itself is
directly effective where provisions meet a set of criteria developed by the
European Court of Justice in the 1970s and 80s. They are relatively generous:
the provision must set out entitlements for the benefit of individuals, and
impose direct duties on a Member State authority to protect those entitlements.
There is a (controversial, but accepted) presumption that the nature of the EU
legal order is such that individuals enjoy enforceable rights within that novel
legal order.
By contrast, provisions
of international agreements to which the EU is a party are directly effective
in a narrower range of circumstances. First, the agreement itself, taken as a
whole, in terms of its overall nature and logic, must be capable of granting
enforceable rights. Second, the specific provision at issue must contain a sufficiently
precise legal obligation. Both conditions must be met. The CJEU’s approach
makes a distinction between the novel legal order of EU law, and ‘ordinary’
international law. There is no presumption that provisions of international
agreements to which the EU is a party, even if identically worded to provisions
of EU law, have direct effect. The CJEU takes account of the political context
as a whole: it is not simply a decision based on legal criteria alone.
Which interpretation of
Article 4 WA is correct is a moot point, and could be the subject of
litigation.
Adopting the former
approach would lead to the conclusion that the Citizens’ Rights provisions of
the Withdrawal Agreement have direct effect. The provisions set out
entitlements for the benefit of individuals, and impose direct duties on a
Member State authority to protect those entitlements. They are worded almost
identically to directly effective provisions of EU law.
Adopting the latter
approach would, in our view, lead to the same conclusion. But the steps of
legal reasoning to reach that conclusion are more complex.
First, taking into
account the nature and logic of the Withdrawal Agreement as a whole, is the
Agreement such an agreement as capable of creating enforceable rights? It might
be argued that the Withdrawal Agreement aims to provide for as smooth an exit
from the EU as possible for the UK, but at the same time taking account of what
is possible
given the nature of the EU. The Withdrawal Agreement must be interpreted
taking into account the UK’s
position that it seeks to be outside of the control of EU law. The
consequent effect of that position is that citizens in an EU-UK cross border
situation will cease to enjoy the many benefits of EU membership. In other
words, it is in the nature of the Withdrawal Agreement that citizens in a
cross-border situation will find themselves worse off after Brexit. An aspect
of that consequence could be the lack of enforceability of the Withdrawal
Agreement.
But the better argument
is that the whole point of the Withdrawal Agreement in this context is to
secure the acquired rights of citizens who are in a cross-border position, who
have relied in good faith on the ‘safety net’ of EU law, and on the benefits
that EU membership had hitherto given those citizens. It is not possible to
secure all such rights, as the UK is no longer an EU Member State. But the aim
of the Withdrawal Agreement should be understood to be to secure as many such
rights and benefits as possible. Therefore, the Withdrawal Agreement should be
interpreted to be the type of agreement capable of direct effect. To this
argument, we might add that where the EU has intended an agreement not to have
direct effect, it has more recently been explicit
on the matter, excluding direct effect in the text of the agreement itself, or
in the Council Decision which concludes the agreement on behalf of the EU. The
EU has emphatically not done so in the case of the Withdrawal Agreement,
suggesting an intention that the Agreement taken as a whole is of a type which
is capable of direct effect.
Second, what of the
requirement that the specific provision at issue must contain a sufficiently
precise legal obligation? This is an extraordinarily technical and complex area
of EU law, where the CJEU’s approach has been criticized. It is difficult to
draw general principles from the CJEU’s case law. Some authors have
distinguished between association, cooperation and trade agreements, where the CJEU
is more likely to find provisions directly effective, and other types of
international agreements to which the EU is a party, where it is less likely to
do so. This observation does not help with the Withdrawal Agreement: are we to
consider it more similar to an association, cooperation or trade agreement,
which all aim to bring closer
integration between the parties (whereas the effect of the Withdrawal Agreement
is to create divergence) or another type of international agreement?
Turning to the specific
measures at issue, the relevant part of the Withdrawal Agreement contains many
provisions which provide precise legal obligations, imposing specific duties on
national authorities and granting rights to individuals: for instance, Articles
13-28, 31-35, 39 WA all have this quality, especially when combined with the
definitional/scope provisions in Articles 9, 10 and 30 WA.
We conclude that,
whichever approach is taken, many of the Citizens Rights provisions of the
Withdrawal Agreement are directly effective as
a matter of EU law.
2.2.2 Direct effect of
the citizens’ rights provisions of the Withdrawal Agreement in UK law
What about the position
in UK law?
The starting point here
is the interpretative presumption that Parliament intends to implement the
obligations on the UK found in the Withdrawal Agreement. The European Union
(Withdrawal Agreement) Act 2020 inserts section 7C into the European Union
(Withdrawal) Act 2018, which makes this presumption explicit.
7C Interpretation of
relevant separation agreement law
(1)
Any question as to the validity, meaning or effect of any relevant separation
agreement law is to be decided, so far as they are applicable—
(a)
in accordance with the withdrawal agreement, ... and ...
(2)
See (among other things)—
(a)
Article 4 of the withdrawal agreement (methods and principles relating to the
effect, the implementation and the application of the agreement),
Any question as to, inter alia, the effect of any relevant
law is to be decided in accordance with the Withdrawal Agreement. Section 7C
refers explicitly to Article 4 WA in this regard.
The national
implementation of the obligation to secure the direct effect of relevant
provisions of the Withdrawal Agreement is found in section 7A of the European
Union (Withdrawal) Act 2018, as amended. It reads:
7A
General implementation of remainder of withdrawal agreement
(1)
Subsection (2) applies to—
(a)
all such rights, powers, liabilities, obligations and restrictions from time to
time created or arising by or under the withdrawal agreement, and
(b)
all such remedies and procedures from time to time provided for by or under the
withdrawal agreement, as in accordance with the withdrawal agreement are without
further enactment to be given legal effect or used in the United Kingdom.
(2)
The rights, powers, liabilities, obligations, restrictions, remedies and
procedures concerned are to be—
(a)
recognised and available in domestic law, and
(b)
enforced, allowed and followed accordingly.
(3)
Every enactment (including an enactment contained in this Act) is to be read
and has effect subject to subsection (2).
This provision, as
already noted, is similar to section 2, on ‘General implementation of Treaties’
of the European Communities Act 1972:
(1)
All such rights, powers, liabilities, obligations and restrictions from time to
time created or arising by or under the Treaties, and all such remedies and
procedures from time to time provided for by or under the Treaties, as in
accordance with the Treaties are without further enactment to be given legal
effect or used in the United Kingdom shall be recognised and available in law,
and be enforced, allowed and followed accordingly; and the expression
“enforceable EU right” and similar expressions shall be read as referring to
one to which this subsection applies.
...
(4)
The provision that may be made under subsection (2) above includes … any such
provision (of any such extent) as might be made by Act of Parliament, and any
enactment passed or to be passed, other than one contained in this part of this
Act, shall be construed and have effect subject to the foregoing provisions of
this section; ...
Just as section 2 of
the European Communities Act 1972 secures direct effect of EU law in the UK’s
legal system until the end of transition, so sections 7C and 7A of the European
Union (Withdrawal) Act 2018 secure direct effect of the Withdrawal Agreement
after transition.
During the negotiations
of the Withdrawal Agreement, the UK government published an (undated) Technical
Note which stated that direct effect is a principle specific to EU law and
that it will cease to apply in the UK once the UK is no longer a Member State.
Moreover, the note contends (para 3) that direct effect is not necessary for
individuals to be able to enforce their rights under the Withdrawal Agreement:
‘The
same substantive result can be achieved if the Withdrawal Agreement requires
the UK to give citizens specified rights, and the UK enacts domestic
legislation whose effect is to bestow those rights … EU citizens [will] be able
to enforce those rights through the UK’s domestic legal system...’.
We do not agree with
the analysis here. A ‘Technical Note’ as part of negotiations can only have a
persuasive effect in terms of interpreting the legislative text. As explained
above, the better interpretation of the legislation is that it expresses
Parliamentary intention to comply with the obligations in the Withdrawal
Agreement by granting relevant provisions of that agreement the legal quality
of direct effect in UK law.
We note that several
influential commentators, for instance, Richard
Eccles, of the international law firm Bird & Bird; Emily
McKenzie of Brick Court Chambers; and Steve
Peers on this blog share our view that relevant provisions of the
Withdrawal Agreement have direct effect in the UK post-transition.
2.3 Independent
Monitoring Authority
Section 15 of the
European Union (Withdrawal Agreement) Act 2020 establishes an Independent
Monitoring Authority. Its general duties, laid down by statute, are to ‘promote
the adequate and effective implementation and application in the United Kingdom
of Part 2 of the withdrawal agreement …’ (schedule 2, section 23 (1)). Further
details about the IMA are in schedule 2 of the Act. They include the
independence of the authority from government; provisions on membership,
including expertise on relevant matters in Northern Ireland, Scotland and
Wales; provisions for payment of non-executive members; provisions for
staffing; powers to delegate functions.
The IMA is to have
powers to carry out inquiries, bring judicial review claims or intervene in
judicial proceedings. But it is not obliged to do any of these things. The IMA
is to be obliged only to carry out a preliminary review of a complaint brought
by a person claiming to have a relevant right, to the effect that the UK has
failed to comply with its duties in Part 2 of the Withdrawal Agreement, or a UK
public authority has acted in a way which prevents that person from exercising
the relevant right. The preliminary
review is so that the IMA may decide whether to carry out an inquiry. In
reaching that decision, the IMA is obliged to ‘consider whether it would be
more appropriate for the person who made the complaint to deal with its subject
matter by other means (for example, court proceedings) than for the IMA to
carry out an inquiry’.
The provisions in the
2020 Act conform with the UK’s obligations under Article 159(1) WA. This
provision gives such an independent authority the power to: conduct inquiries
concerning breaches of Part Two by administrative authorities; receive
complaints from Union citizens and their family members for the purposes of
conducting inquiries; and bring legal action before UK courts or tribunals
following such complaints.
The IMA is to be appointed
before the end of the transition period.
According to the
government’s information,
the Independent Monitoring Authority will report annually to Parliament, and
will be sponsored by the Ministry of Justice.
The European Union
(Withdrawal Agreement) Act 2020 provides that the IMA’s role may be transferred
to another authority, by executive act, if this meets the requirements of
‘efficiency, effectiveness and economy’, taking into account the need for
continued operational independence, impartiality and appropriate resourcing to
carry out its functions. The government also has the power to abolish the IMA
altogether (schedule 2, section 40),
‘if
it appears to the Secretary of State that, in accordance with Article 159(3) of
the withdrawal agreement ..., it is no longer necessary for the IMA to continue
to exist’.
While the IMA, or a
successor authority, is operating, those who feel that their rights under the
Withdrawal Agreement have not been adequately implemented or upheld by the UK
authorities may make a complaint to the independent monitoring authority (IMA).
The IMA will then be able to launch an inquiry into how the UK authority has
implemented the citizen’s rights under the agreement. If the IMA believes that
the UK authority has failed to implement or apply the relevant rights, it has
the power to bring legal proceedings against the authority. The IMA will act as
the equivalent to the European Commission, which will monitor the
implementation and application of citizens’ rights under the Withdrawal
Agreement in the EU. This implementation process falls far short of ‘direct
effect’.
The independent legal
charity, the Public
Law Project, has pointed out:
‘The
IMA will have a key role in monitoring and protecting EU citizens’ rights after
Brexit. As such, the Secretary of State should not be able to make fundamental
changes, or even abolish it, by secondary legislation. Any amendments to the
IMA must be by primary legislation and in accordance with the WA.’
Reliance by the UK only
on this method of enforcement, especially given the executive powers to remove
it without external scrutiny, would comply with the UK’s obligations under
Article 4 WA, if, and only if, the relevant
provisions of the Withdrawal Agreement did not have the quality of direct
effect, under the terms of the Withdrawal Agreement. Given that they do have
that quality (see above), we conclude, therefore, that the European Union (Withdrawal
Agreement) Act 2020 expresses parliamentary intention that the relevant
provisions of the Withdrawal Agreement are directly effective.
2.4 Joint Committee
The IMA is not the only
body that implements the Withdrawal Agreement into UK law. Article 164(1) WA
establishes a UK-EU Joint Committee which ‘shall be responsible for the
implementation and application of this Agreement’. Moreover, Article 166(1) WA
gives the Joint Committee the power to adopt decisions with regards to any
matter within this agreement. The effect of such decisions shall be binding on
the UK and the Union; they must implement such decisions under international
law. While the Joint Committee does not receive complaints about breach of the
provisions in the Withdrawal Agreement, it is obliged to assess, no earlier
than 8 years after the end of the transition period (31st December 2028) the
functioning of the IMA. The Joint Committee even has the power to decide that
the UK may abolish the IMA.
The first meeting of
the EU-UK Joint Committee under the Withdrawal Agreement took place on Monday
30 March 2020 by means of teleconference. The agenda
for this meeting included UK / EU updates on implementation of the Withdrawal
Agreement on Citizens’ Rights. During this meeting, the vice-president of the
European Commission, both ‘welcomed the UK’s commitment to continue to ensure
that EU citizens can register as lawful residents in the UK, so that they can
enjoy their rights granted by the Withdrawal Agreement’ as well as confirming ‘that the Commission
will support Member States in making sure that UK nationals in the EU will be
in a position to exercise their rights under the Withdrawal Agreement, and will
continue to monitor that this is done correctly.’ Both the UK and the EU agreed to ‘launch the work of the six
Specialised Committees on the key areas for the implementation of the
Withdrawal Agreement.’ The establishment of such Specialised Committees, most
importantly the Committee on Citizen’s Rights, can be found in Article
165(1)(a) WA.
2.5 Preliminary
Reference Procedure
Another element of the
enforcement the Citizens Rights provisions of the Withdrawal Agreement in the
UK post-transition is through a preliminary reference procedure. Article 158(1)
WA provides that UK courts may refer questions of interpretation of Part 2 to
the CJEU where a case commenced within 8 years from the end of the transition
period before a UK court or tribunal. The legal effect of this on the UK is to
be the same as the legal effect of the preliminary reference procedure governed
by Article 267 TFEU (binding on the national court that submitted the
question).
This aspect of the
Withdrawal Agreement is brought into UK law by section 7C of the European Union
(Withdrawal) Act 2018. This provides that questions about the interpretation,
validity or effect of relevant law concerning the Withdrawal Agreement are to
be decided in accordance with the Withdrawal Agreement. Section 7C (2)(b)
refers explicitly to Article 158 WA and the jurisdiction of the CJEU under Part
2 of the Withdrawal Agreement.
3. Conclusion
and summary
Until December 2020,
(unless the EU and the UK agree, before July 2020, to extend the period for up
to two years) EU law remains applicable.
When the transition period ends, the UK’s obligations under the Withdrawal
Agreement will take effect in UK law via the EU (Withdrawal) Act 2018, as
amended by the EU (Withdrawal Agreement) Act 2020. These measures include the Citizens
Rights provisions in the Withdrawal Agreement.
Post-transition, at
least five bodies will have a role to play in the enforceability of those
rights:
-
The UK executive will implement the UK’s
obligations in UK law using statutory instruments, relying on powers given in
the European Union (Withdrawal) Act 2018, as amended by the European Union
(Withdrawal Agreement) Act 2020.
-
Also reliant upon these powers, an Independent
Monitoring Authority will be set up in the UK to ensure the application and
implementation of Part 2 of the Withdrawal Agreement. It will receive
complaints from individuals and will have the power to conduct reviews.
-
This part of the Agreement is directly
effective, and can be relied upon by individuals before domestic courts and
tribunals in the UK.
-
Questions relating to interpretation of
these parts of the Withdrawal Agreement may also be determined by the CJEU through
a preliminary reference procedure, whereby domestic courts and tribunals refer
such questions to the CJEU.
-
General enforcement of the Withdrawal
Agreement will be ensured by the Joint Committee, who will discuss and oversee
implementation methods.
Barnard & Peers: chapter 26
Photo credit: Michael
Reeve, via Wikimedia Commons
