How do you solve a problem like Suella? The legal aspects of breach and termination of the withdrawal agreement

Professor Steve Peers, University of Essex

Today’s papers bring another story that the UK might be planning to breach the Brexit withdrawal agreement – including the report that the new Attorney-General Suella Braverman is poised to attempt to justify this legally. So what happens if the UK (or the EU) breaches the withdrawal agreement is not a hypothetical issue. I’ve previously discussed the dispute settlement rules in the agreement, as well as the Withdrawal Agreement Act giving effect to the treaty in the UK, but it’s useful to bring the key issues together, and also to look at the issues from the point of view of international law.  This blog post summarises in turn the dispute settlement provisions of the withdrawal agreement and the rules on termination etc of treaties in international law, discussing the interaction between them.  (Update, Feb 24 2020: I've summarised the main points of this blog post in a Twitter thread)

A few basic parameters first. It’s likely that any (alleged) breach of the withdrawal agreement would have political consequences as well as face legal action. Political consequences might include not only reaction from the EU, but reluctance of the US Congress, concerned about the position of Ireland, to agree to the legislation implementing a US/UK trade deal. Which of the two would be most important is hard to guess in advance. It’s also harder to guess the route that the political aspects of the dispute would take, as compared to the legal route, which in principle follows a set of rules laid down in advance. Also the two routes will overlap: as discussed below, there’s political discretion as to whether and how to pursue legal proceedings.

Second, international law aims for treaties to remain in force if possible. A breach of a treaty by one side does not trigger its automatic collapse, or even an automatic reciprocal breach by the other party. The goal is to resolve disputes about treaties, not terminate them with every passing spaff.

Third, it’s not just the view of the parties to the agreement (the UK and EU) that will be relevant. Arguments about the breach of the treaty can be brought via the courts of both sides by individuals; and even the termination of the treaty could be challenged via the national courts and the CJEU, at least on the EU side. 

Fourth, the withdrawal agreement is distinct from the political declaration on the future relationship (discussed here), which is not binding as such. While the withdrawal agreement does require the parties to negotiate their future relationship in good faith, it might be difficult to establish a breach of such a vague obligation. The withdrawal agreement, including in particular the provisions on citizens’ rights (discussed here) and the Northern Ireland protocol, is also distinct from any failure to negotiate any treaties on the future relationship: in the event that negotiations on future treaties between the UK and EU are unsuccessful, this does not lead to automatic termination of the withdrawal agreement.

Finally, I am not assuming that the UK government has breached or will breach the withdrawal agreement, just discussing what might happen if it did from a (mainly) legal perspective. Recent statements by the UK government refusing to carry out checks in the Irish Sea have not been framed as an intention to breach the agreement, and the relevant part of the treaty doesn’t apply yet, so can’t yet be breached in practice. Although the title of this blog post focusses on the UK, because it’s the UK government’s recent statements that have caused some people to doubt its intentions to apply the withdrawal agreement, it’s also possible that the EU might breach the withdrawal agreement. The blog post therefore applies equally to any breach that might be committed on the EU side.

It’s obviously relevant that, as things stand, the UK has passed an Act of Parliament to give effect to the withdrawal agreement in domestic law. While a further Act of Parliament could amend the current Act in order to give effect to an intention to breach the agreement, there’s no proposal to do so at present. Any secondary legislation or government action in breach of the agreement could be struck down by the courts; although the government has indicated an intention to restrain judicial review of government action, it has not put its intentions into effect yet. (While the recent Withdrawal Agreement Act gives the executive powers to direct the judiciary how to interpret retained EU law, such powers do not apply to the withdrawal agreement itself). 

   

Dispute settlement and the withdrawal agreement: an overview

There are two distinct parts to the withdrawal agreement (and the UK legislation giving effect to it fully reflects this). During the transition period (discussed here), applying to the end of 2020 unless the two sides agree to an extension of one or two years (which the UK currently opposes in principle), substantive EU law as such, including all the usual rules of CJEU jurisdiction (references from national courts on the interpretation of EU law, Commission infringement actions for alleged breach of EU law) still apply to the UK. There’s no provision to reduce the transition period, either unilaterally or bilaterally, whether as a ‘punishment’ for not complying with the agreement or for any other reason.

After the end of the transition period, things change significantly. Most substantive EU law stops applying to the UK, along with most CJEU jurisdiction. There are special rules for cases pending at the end of the transition period, along with pending proceedings that might lead to litigation later. There is also special jurisdiction for the CJEU over citizens’ rights (for eight years after the end of the transition period), for disputes over EU budget legislation, and for cases concerning parts of the Irish border protocol and the whole protocol on UK army bases in Cyprus.

Furthermore, the main dispute settlement system then also kicks in. It provides for disputes on the interpretation of the agreement between the two sides to go to arbitration, if they cannot be settled by negotiation.  There’s nothing in the agreement to rule out parallel cases under national and EU courts on the one hand, and the dispute settlement system on the other.

There’s a general obligation for the parties to stick to the processes in the withdrawal agreement to settle disputes about that agreement (Article 168, which applies from Brexit day already):

For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.

If a dispute is not settled after three months of consultation, either side may request an arbitration panel to be set up. The two sides could jointly agree to start arbitration even before that point. The panel will consist of five arbitrators, from a list of 25 to be drawn up jointly (the EU and UK have not agreed this list yet). It must be set up within 15 days of the request to set it up. If the two sides cannot agree on a list of arbitrators, or the arbitrators who will serve on a particular case, there are tie-break rules. So it will not be possible to paralyse the dispute settlement system by refusing to agree on these names. The arbitration panel must give a ruling within 12 months. If it agrees to a request to give its ruling urgently, that deadline is reduced to six months.

If a dispute raises questions of EU law (which is likely as regards citizens’ rights in particular), the arbitrators must ask the CJEU to rule on it. The CJEU’s judgment will bind the arbitrators. Asking the CJEU to rule on the EU law stops the clock on the deadline for the arbitrators to give their ruling. 

An arbitration decision is binding on both sides. But when does it have to be complied by, and what happens if it isn’t? If the arbitrators have determined a breach of the agreement, the losing party has 30 days to notify the complainant of how long it thinks it needs to implement the ruling. If the complainant is unsatisfied by this, the issue of how long is necessary to comply with the ruling can go back to arbitration.

At the end of the deadline to comply with the ruling, if the winning party is unsatisfied with what the losing party has done to comply with the ruling, it can go back to the arbitrators to ask if the losing party has properly complied with it. The CJEU might again be asked to rule on an issue of EU law.

If the arbitrators rule that the losing party has not complied with the prior ruling, then at the request of the winning party, they may impose a ‘lump sum or penalty payment’ on the losing party. The arbitrators must consider ‘the seriousness of the non-compliance and underlying breach of obligation, the duration of the non-compliance and underlying breach of obligation’ when deciding how big the financial penalty should be.

If the losing party refuses to pay up after one month, or refuses to comply with the ruling confirming its non-compliance with the first ruling after six months, further sanctions might apply. The winning party can suspend any part of its obligations under the withdrawal agreement other than the citizens’ rights part, or under another treaty as agreed between the two sides (obviously, no such other treaties exist yet). This suspension has to be ‘proportionate’, and must take into account ‘the gravity of the breach and the rights in question’. If the losing party thinks that the suspension is disproportionate, it can ask the arbitrators to rule on the point within 10 days; the suspension is postponed from taking effect until the arbitrators rule on the point.

Suspensions are meant to be temporary until the losing party complies with its obligations, or the two sides agree to settle the overall dispute. If the losing party claims later on that it is now complying with its obligations and the winning party disagrees, the arbitrators can be asked to rule on the point; again the CJEU could be involved if there is an EU law issue. If it’s agreed, or the arbitrators rule, that the losing party is now complying with its obligations, the financial penalties or suspension of obligations by the winning party have to end.

As we can see, the dispute settlement system is not a means to terminate the withdrawal agreement. Even if part of the agreement is suspended by one side, the citizens’ rights provisions cannot be suspended. The intention is that any suspension or financial penalty is temporary, until the party breaching the agreement complies with its obligations. This suggests that termination is not a possible remedy – as does the provision stating that the parties must settle disputes in accordance with the agreement.

Also, as noted above, the dispute settlement system co-exists with some jurisdiction for the CJEU (as distinct from the CJEU jurisdiction within the dispute settlement system), as well as possible litigation in national courts. Traditionally, the CJEU has said that WTO dispute settlement rulings do not form part of EU domestic law, since the EU institutions preserve their political discretion whether to comply with WTO dispute settlement rulings or face proportionate suspension of trade from the winning party under the WTO rules – which are broadly similar to the dispute settlement system in the withdrawal agreement. On the other hand, the big difference between the WTO and withdrawal agreement dispute settlement systems is that the CJEU must be involved under the withdrawal agreement, where there is an issue of EU law. Whether that is enough to convince the CJEU that it should take a different approach remains to be seen. 

For the UK, the Withdrawal Agreement Act makes no specific reference to dispute settlement rulings forming part of UK law or not. The UK’s ‘dualist’ approach to international treaties (treaties do not form part of domestic law unless Parliament says otherwise) would suggest that they do not form part of UK law, unless it could be argued that Parliament’s implementation of the withdrawal agreement in domestic law was implicitly intended to apply to dispute settlement rulings too. Also, given that the CJEU still has jurisdiction to rule on citizens’ rights via the UK courts for awhile yet, the approach that the CJEU takes to the legal effect of the dispute settlement system is relevant to the UK as far as EU citizens are concerned.

Termination of treaties

As it relates to treaties, international law has two sources: customary international law and the Vienna Convention of the Law of Treaties (VCLT). The VCLT sought to codify the customary rules but differs in some respects. Some EU countries have not ratified the VCLT; nor has the EU, as the Convention is open to States only.

The starting point in the VCLT is that the validity of a treaty or a State’s consent to be bound by it can only be impeached under the VCLT. Termination, suspension, denunciation or withdrawal can only take place under the treaty or the VCLT. Other international law still applies between the parties even if the treaty no longer does.

Denouncing, withdrawing from or suspending a treaty (as provided for in that treaty, expressly or by implication) must apply to the whole treaty unless the treaty otherwise provides. Invalidating, terminating, withdrawing from or suspending a treaty as provided for in the VCLT must apply to the whole treaty, except (among other exceptions) if there is a ‘material breach’ of the treaty, or if the ground for termination etc relates to certain parts of the treaty and they are severable from the others and they were not an ‘essential basis’ of the consent to the treaty. A State loses its ‘right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty’ if it agrees expressly that the treaty is valid or remains in force, or its conduct suggests the same.

The conclusion of a treaty can be invalid where a State’s consent to be bound was very obviously in violation of its internal law, if an error in a treaty was an ‘essential basis’ the consent to be bound, by fraud by another negotiating State, corruption of the State’s representative procured directly or indirectly by another negotiating State, or coercion (acts or threats against the State’s representative, or the threat or use of force against the State in violation of the UN Charter). A treaty is void if it conflicts with ‘a peremptory norm of general international law (“jus cogens”)’.  

States can terminate or withdraw from a treaty only in accordance with its provisions or consent of the parties. If a treaty does not provide for termination, denunciation or withdrawal, a State cannot denounce or withdraw from it unless either: ‘(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.’ Twelve months’ notice to leave is required in that case.

As for suspension of a treaty, this is possible ‘in conformity with the provisions of the treaty’ or if all the parties consent. Either termination or suspension is possible in the event of a ‘material breach’ by one party, which ‘entitles’ the other party ‘to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part’. The VCLT defines a ‘material breach’ of a treaty as ‘(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty’. But all this is ‘without prejudice to any provision in the treaty applicable in the event of a breach’ and does ‘not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties’.

A party can also terminate or withdraw from a treaty due to the ‘impossibility’ of applying it if that ‘results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty’, but this cannot be invoked if the impossibility was caused by the party which wants to escape its obligations. Termination, withdrawal or suspension could also follow a ‘fundamental change of circumstances’ since the treaty was concluded, if it was ‘not foreseen by the parties’, if the original circumstances were an ‘essential basis of the consent of the parties to be bound by the treaty’ and ‘the effect of the change is radically to transform the extent of obligations still to be performed under the treaty’. Again, this cannot be invoked if the change in circumstances was caused by the party wanting to end its obligations.

The VCLT also regulates the process of termination or other forms of ending a treaty. A party seeking to end a treaty must give the other party three months’ notice. It can then proceed as planned if there’s no objection. But if there is an objection, the parties must try to find a solution. This does not affect anything in force regarding dispute settlement between the parties, so it is obviously possible that either the EU or UK would invoke the dispute settlement provisions in the withdrawal agreement.

If there is no negotiated solution within 12 months from raising the objection, one party may ask the International Court of Justice to rule, or both can ‘agree to submit the dispute to arbitration’, or the conciliation process set up by the VCLT itself might apply. The process of termination etc must be in writing and communicated formally, and can be revoked at any time before it takes effect.

As for the consequences of termination etc, an invalid treaty is void and has not legal force. In case of termination, ‘[u]nless the treaty otherwise provides or the parties otherwise agree’, the parties have no further obligation to perform the treaty, but this ‘does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination’.

As for suspension, ‘[u]nless the treaty otherwise provides or the parties otherwise agree’, suspension means that the treaty does not apply ‘during the period of the suspension’ and ‘does not otherwise affect the legal relations between the parties established by the treaty’. The parties must ‘refrain from acts tending to obstruct the resumption of the operation of the treaty’. As noted already, however, the withdrawal agreement has specific provisions on suspension.

In general, the various references in the VCLT to suspension and termination of a treaty unless the treaty otherwise provides need to be read in light of the rules in the withdrawal agreement itself, as summarised in the dispute settlement section above. These rule out dealing with disputes otherwise than in accordance with the treaty, allow for suspension as a possible outcome of the dispute settlement process except for the citizens’ rights chapter, and make no mention of termination of the withdrawal agreement, referring instead to the ‘temporary’ nature of partial suspension or financial penalties. The only reference to termination of the withdrawal agreement is in the Irish protocol, which provides (in Article 18 of the protocol) for the unilateral termination of part of that protocol (not the whole withdrawal agreement) in the event that it lacks continued consent in Northern Ireland, following a particular detailed procedure in that protocol. One can therefore argue that termination of the entire withdrawal agreement in response to a breach of it is therefore ruled out by the agreement itself.

In the alternative, what happens if the EU or UK believe that it is still possible to terminate the entire withdrawal agreement on the grounds set out in the VCLT? Even if actions by one side are arguably a ‘material breach’ of the withdrawal agreement as defined by the VCLT, it’s important to remember that invoking that breach in order to terminate that treaty is an option: as pointed out at the outset, a breach of a treaty by one side does not automatically terminate or suspend that treaty.  So in the event, for instance, of a breach of the Irish protocol by the UK, the EU might judge that it would be unwise to invoke its right to terminate the withdrawal agreement, as that would (among other things) throw the rights of EU citizens in the UK under the proverbial bus.

What about the role of individuals in all this? More than you might think, at least on the EU side. The international law rules on termination of treaties have been applied by the CJEU in the context of cases brought by individuals. In Racke, the EEC (as it was then) terminated the EEC/Yugoslavia cooperation treaty immediately (rather than in accordance with the terms of that treaty) on grounds of a fundamental change in circumstances, when the Yugoslav war broke out. An importer of wine from Yugoslavia, being affected by the termination of the treaty, challenged the EEC’s decision in the German courts, which asked the CJEU if the EEC’s termination of the treaty was valid.

According to the CJEU, ‘even though the Vienna Convention does not bind either the Community or all its Member States, a series of its provisions, including Article 62 [on change in circumstances], reflect the rules of international law which lay down, subject to certain conditions, the principle that a change of circumstances may entail the lapse or suspension of a treaty.’ The International Court of Justice had ruled already that on this point, the VCLT ‘may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances’.

Next, the Court asserted that it had jurisdiction to rule on the validity of an EEC act in light of the rules of public international law.  Before it applied those rules, it insisted that the rules in the treaty which the importer sought to invoke had to confer rights on individuals. It found that they did, based on its usual test for ‘direct effect’ of an international treaty in EEC (now EU) law. (This test should easily be satisfied as regards the citizens’ rights provisions of the withdrawal agreement).

The Court then observed that international treaties concluded by the EEC (now EU) form an integral part of EU law, and that if the termination of the treaty were invalid, the company would still have rights regarding the import of Yugoslavian wines.  So the EU has to ‘respect international law in the exercise of its powers’ and ‘is therefore required to comply with the rules of customary international law when adopting a regulation suspending the trade concessions granted by, or by virtue of, an agreement which it has concluded with a non-member country’. On that basis ‘[i]t follows that the rules of customary international law concerning the termination and the suspension of treaty relations by reason of a fundamental change of circumstances are binding upon the Community institutions and form part of theCommunity legal order.’

Applying these rules, the Court noted that international law was based on compliance with treaties (the pacta sunt servanda principle), ‘which constitutes a fundamental principle of any legal order and, in particular, the international legal order. Applied to international law, that principle requires that every treaty be binding upon the parties to it and be performed by them in good faith (see Article 26 of the Vienna Convention).’ Its importance had been further underlined by case law of the International Court of Justice, ruling that 'the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases‘.

Individuals could therefore invoke ‘obligations deriving from rules of customary international law which govern the termination and suspension of treaty relations’ to challenge the EU’s termination of a treaty. (Note that the Court did not confine itself to the ‘fundamental change in circumstances’ rule here). However, since the rules in question were complex and imprecise, the Court limited its judicial review to whether ‘the Council made manifest errors of assessment concerning the conditions for applying those rules’. It decided that the civil war in Yugoslavia met the conditions to justify terminating the treaty.

As for application of the procedural rules for terminating treaties in the VCLT (ie sufficient notice and consultation), the CJEU thought that prior warnings of termination were sufficient, and that ‘[e]vven if such declarations do not satisfy the formal requirements laid down by’ the VCLT, ‘the specific procedural requirements there laid down do not form part of customary international law.’

The Court came back to these procedural requirements in the recent well-known judgment in Wightman (discussed here), on the issue of whether the UK could unilaterally revoke its notification to leave the EU. In the Court’s view, its various reasons for ruling that unilateral revocation was possible were ‘corroborated’ by the provisions of the VCLT, ‘which was taken into account in the preparatory work for the Treaty establishing a Constitution for Europe’ (which later became Article 50 TEU). So the ‘clear and unconditional’ possibility in the VCLT to revoke a notification of withdrawal from a treaty before it takes effect supported the view that the Article 50 notification could be revoked too.

How would this work in practice for the withdrawal agreement? If the EU terminated or suspended the agreement, anyone who argued that their rights conferred by the agreement (UK citizens in the EU, or traders with Northern Ireland, for instance) were affected as a result could bring a challenge to the EU’s decisions, arguing that they were in violation of public international law generally and/or the withdrawal agreement in particular. A direct challenge before the EU courts would likely lack standing, but a challenge via the national courts (as in Racke), which could request the CJEU to rule on the issue, probably would not. Challenges concerning the Brexit process and withdrawal agreement are hardly hypothetical, as we have seen over the last two years.

Even if suspension or termination is valid, there are specific issues relating to citizens’ rights. As we have seen, suspension of the agreement expressly cannot affect them. And while the VCLT provisions concerning retention of rights in the event of termination of a treaty, or the ban on reprisals in the event that a treaty of a ‘humanitarian character’ is terminated for a material breach, arguably do not literally cover those covered by the citizens’ rights rules, it could be argued that in conjunction with the EU law principle of legitimate expectations, such rights cannot be removed.

What about the UK side? Public international law rules do not form part of the domestic legal order. But there are domestic legal and political issues nonetheless. In the event that the government aims to breach or terminate the withdrawal agreement by primary legislation, the House of Lords can delay it by up to a year. It rarely uses such powers, but it could be argued that there’s a ‘reverse Salisbury convention’ justifying it doing so when a government explicitly aims to reverse a commitment in its election manifesto – throwing its own ‘oven-ready deal’ in the bin. If the government aims to breach or terminate the withdrawal agreement by secondary legislation or executive action, there could be legal challenges on the basis that the secondary legislation is ultra vires the Withdrawal Agreement Act, or that executive action cannot simply suspend rights which are guaranteed by an Act of Parliament – leading to litigation which we might dub ‘Miller III’. But this brings us back to the government’s reported intention to nobble the judges.  

Barnard & Peers: chapter 27

Photo credit: dw.com

Regulatory divergence post Brexit: Copyright law as an indicator for what is to come

Martin Kretschmer, Professor of Intellectual Property Law (CREATe Centre, University of Glasgow)

Here we have it. The first instance of regulatory divergence. The UK is leaving the European Union, and already the rules of the single market are starting to break.

In response to a parliamentary question by Labour MP Jo Stevens, then-Intellectual Property Minister Chris Skidmore said on 21 January that the UK Government had no intention of implementing the most recent EU Copyright Directive, for which the UK Government had voted in the EU Council in spring 2019. There was significant dissent among EU Member States and the Directive would not have been adopted without the UK’s support.

Does this matter? Copyright law may not be what people expected to be the first post-Brexit regulatory fault line. The public debate has been dominated by standards for labour, the environment, public subsidies and taxation, where the EU’s concern is regulatory dumping. Yet Brexiteers have said many times that leaving the EU only makes sense if it leads to the UK becoming a more attractive destination for business. This means entering into a process of regulatory competition with its closest neighbouring market. So it is advisable to pay close attention to how this negotiation will play out. And copyright law is where the choices start.

Let’s consider the parliamentary exchange in the House of Commons in full:

On 16 January 2020, a written question was asked by Jo Stevens, Labour MP for Cardiff, headed “Copyright: EU Action” (4371):

“To ask the Secretary of State for Business, Energy and Industrial Strategy, what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law.”

Chris Skidmore, then Minister of State for Universities, Science, Research and Innovation (which includes responsibility for intellectual property) answered on 21 January 2020:

“The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.”

Which future domestic policies may diverge from the aims of the Directive? The Directive on Copyright in the Digital Single Market contains three different groups of measures.

The first group harmonises a number of copyright exceptions affecting cross-border uses. New provisions also make it easier to use out-of-commerce works (Article 8) and ensure that works of visual art that have reached the end of their copyright term remain in the public domain (Article 14). This first group of provisions modestly benefits cultural heritage, educational and research institutions.

The second group of interventions seeks to improve the contractual position of authors and performers. A general fair remuneration principle is established, and greater transparency of royalty statements encouraged. Article 22 also gives authors and performers a new right to revoke a licence or transfer of rights where there is a lack of exploitation. These new contractual regulations could be considered a challenge to common law principles of freedom of contract, but they lack teeth. While they have been widely welcomed by creators, routes to enforcement remain unclear. Again, there is no obvious alternative policy path.  

The third group of measures is much more controversial. They are introduced in the Directive under the innocuous sounding label of “Measures to achieve a well-functioning marketplace for copyright”. The headline intervention is a change to the liability regime of platforms that host user-uploaded content. Article 17 (formerly 13) creates a new category of ‘online content sharing service provider’ that will no longer benefit from the ‘safe harbour’ of the e-Commerce Directive, a core piece of internet legislation adopted in the year 2000. The e-Commerce Directive exempts platforms from liability for unlawful content found on their services (if removed “expeditiously” following notice).

In the polarised debate of the Copyright Directive, Article 17 was pushed as a decisive industrial policy measure that would enable the music industry to improve licensing deals and revenue sharing offered by Google’s YouTube service. In an effective trope coined by the UK music industry, Article 17 was to close the “value gap” between European creators and US technology giants. Opponents characterised the measure as a “censorship law” that would lead to the default use of upload filters and the disappearance of “memes” (because they re-use identifiable copyrighted materials).

A typical exchange between the two sides of the debate can be found in these letters published by the Financial Times (paywalled) during the final stages of the legislative process: Julia Reda: State-of-the-art copyright filters threaten freedom of expression; Michael Grade: Copyright reform will put an end to this freeloading. Recent evaluations of the Copyright Directive can be found here and here.

Boris Johnson (then out of government) had tweeted near the end phase of the European legislative process on 27 March 2019: “The EU’s new copyright law is terrible for the internet. It’s a classic EU law to help the rich and powerful, and we should not apply it. It is a good example of how we can take back control”.

On the balance of evidence analysed by independent experts (to which I contributed), the Prime Minister seems to be correct. The industrial policy measures of the Copyright Directive will have numerous unintended consequences beyond the music sector, and will make market entry and user-led innovation harder.

So, has the UK suddenly seen the light? Does evidence matter? Are we observing the emergence of a coherent policy addressing the creative industries?

There is a possibility that the UK acted cynically, supporting the Directive in the European policy making process in the anticipation that it would damage the economy of the EU’s digital single market. This suspicion is implied by the outrage felt towards the UK’s policy U-turn last week. More likely, the UK civil service just kept their heads down during the copyright negotiations. They may not have wanted to draw attention at a moment of sensitivity over the Withdrawal Agreement. And perhaps the UK’s politicians were distracted. But this position will not do for much longer.

Post Brexit, regulatory divergence on copyright will not simply be a matter of domestic policy choice, as implied by the ministerial answer. Critically, it will depend on what new trade arrangements look like. Keeping a safe harbour for content sharing platforms in place may attract tech firms to set up in the UK. Yet there is also an agenda targeting the major digital platforms. The UK government is already committing to impose a “duty of care” liability (Queen’s Speech of 19 December: “My Ministers will develop legislation to improve internet safety for all [Online Harms Bill].” The government also says it will continue to pursue a Digital Services tax.

It is already clear that these platform measures cannot be insulated from wider Free Trade Agreements (FTAs) sought with both the EU and the US. In addition, looking at past FTAs negotiated by the US, there is a track record of taking aggressive intellectual property positions. For example, in 2004 Australia was unable to shelter its drug price control scheme (Pharmaceutical Benefits Scheme PBS) from significant change, and conceded increased intellectual property standards.

When studying the UK’s options as they affect culture and the creative industries, independent evidence on raising or decreasing obligations of platforms (with or without intellectual property dimensions) will be critical. There is an urgent need to develop a more coherent framework as trade negotiations begin in earnest. The AHRC funded Creative Industries Policy & Evidence Centre (PEC) is already studying the UK’s international competitive position. In this context, Prof. Philip Schlesinger and I are in the process of mapping the regulatory landscape for online platforms.

The legitimacy of governments is increasingly in doubt. The Brexit process itself is a challenge to established procedural principles that lend legitimacy to a ruling power. Legitimacy requires that a government can explain the reasons for its actions.

The UK Government needs to be held to this standard. We need to know on what basis, and for what aims and purposes, the UK intends to regulate contested norms, such as the liability of platforms under copyright law. Why does the UK wish to diverge? Just to signal that it is taking a different stance? Or is there actually a game-plan? Answers are needed before we enter into trade negotiations that will then fundamentally shape “domestic choices”.

Barnard & Peers: chapter 27

Photo credit: Gero Nagel, via Wikicommons

The Withdrawal Agreement Act: Implementing the Brexit Withdrawal Agreement in the UK

Professor Steve Peers, University of Essex

What are the legal consequences of leaving the EU for the UK? Those consequences are manifold, but some of the key aspects are set out in the Withdrawal Agreement Act (the ‘new Act’), which Parliament passed in January. The main purpose of the new Act is to implement the revised withdrawal agreement in the UK. This was necessary given that the UK is a ‘dualist’ country, where international treaties are not enforceable in the domestic legal system unless there is domestic legislation to give effect to them. For those who wish to enforce rights provided by the withdrawal agreement in the UK, the new Act is the starting point.

In contrast, there is no equivalent to the Act passed by the EU, under the assumption that the withdrawal agreement meets the criteria for ‘direct effect’ of an international treaty in EU law – meaning that it can be enforced by the courts without any EU legislation to that effect. There will be some national measures relevant to UK citizens staying on the basis of the withdrawal agreement, however; and the decision concluding the withdrawal agreement on the EU side contains some procedural rules, as noted below.

The new Act does other things too: partly addressing the future relationship with the EU; partly regulating the UK’s position as regards the joint implementation of the withdrawal agreement with the EU; and most significantly, changing the way in which EU law is dealt with in the UK post-Brexit.

This blog post seeks to provide an overview of how the new Act provides for the application of the withdrawal agreement in the UK. It’s a complex Act, and this post does not claim to be comprehensive. Nor does it offer legal advice. If you are a party to relevant legal proceedings or contemplating litigation under the Act – or under the withdrawal agreement as a UK citizen in an EU Member State – you should consult a lawyer.

Since the new Act is closely related to the revised withdrawal agreement, my earlier analyses of that agreement (overview; transition period; dispute settlement; and citizens’ rights) are relevant in explaining the details of these key issues further (see also my analysis of the jointly agreed political declaration on the future UK/EU relationship). 

It should be noted that the new Act differs somewhat from the Withdrawal Agreement Bill tabled back in October (which I commented on here). That’s because, after the election, the government tabled a different version of the bill (which then passed Parliament without any amendment) than the version initially tabled in October. This was not an amendment of the withdrawal agreement (as agreed with the EU) itself, as some thought, but rather a change to the implementation of that treaty in the UK. If the EU had misgivings about these changes, it nevertheless did not stop the European Parliament and EU Council from concluding the treaty on the EU side in January.

How does the final Act differ from the original version of the bill tabled in October? There’s a useful track changes comparison of the two here. In short, compared to the original bill, the final Act:

-          added a power for ministers to give courts instructions about interpretation of EU law converted into UK law (other than the withdrawal agreement itself);

-          removed parliamentary control over extension of the transition period (replacing it with a ban on extension) and the future relationship negotiations;

-          added a clause on transparency of dispute settlement;

-          removed all provisions on workers’ rights;

-          banned the UK agreeing to a written procedure in the Joint Committee set up by the withdrawal agreement; and

-          repealed an additional chunk of prior legislation related to Brexit, including an obligation to attempt to negotiate on family reunion of unaccompanied child asylum-seekers, as well as the Benn Act (discussed here) which required the final extension of EU membership.

  

Furthermore, the new Act does not simply concern the withdrawal agreement: it also implements in the UK two other treaties relevant to Brexit: the EEA EFTA Separation Agreement and the UK-Swiss Citizens’ Rights Agreement. These two agreements respectively protect acquired citizens’ rights as between the UK and Norway, Iceland and Liechtenstein and the UK and Switzerland, in a very similar way to the citizens’ rights provisions in the main withdrawal agreement. The former treaty also contains a few separation provisions on issues like goods and judicial cooperation (ie where goods from the UK have been placed on the market of the EEA EFTA States, or vice versa, before the end of the transition period) – in this case a truncated form of the separation provisions in the withdrawal agreement.

Finally, it should be noted that a big chunk of the new Act consists of amendments to the EU Withdrawal Act, originally adopted in 2018, which is the main statute governing the domestic legal effects of Brexit. (Here’s the Withdrawal Act before amendment and after amendment, and here’s a track changes version, which also includes the changes to the Withdrawal Act which have not yet been commenced). There are explanatory notes on the bill, and a memorandum on delegated powers.  There’s also some secondary legislation already adopted to implement the new Act – namely the commencement order and rules on appeal rights relating to EU citizens (discussed here). There may be more secondary legislation implementing the new Act in future. (Update, March 24 2020: a second commencement order has been adopted, bringing more of the Act into force).

Approval of the withdrawal agreement

The immediate impact of the new Act was that it provided the domestic legal basis for the UK ratifying the withdrawal agreement in international law. It switched off both the specific rules for approval of the withdrawal agreement in the EU Withdrawal Act (the so-called ‘meaningful vote’, which Theresa May lost three times on the previous version of the withdrawal agreement), and the general rules for approval of international treaties in the Constitutional Reform and Governance Act (CRAGA). (See respectively section 31 and section 32 of the new Act). The effect of this was that as soon as the new Act obtained Royal Assent, the government had the power to ratify the withdrawal agreement without holding a further vote, which it duly did.

The transition period

The Act makes specific provision for the transition period in the withdrawal agreement, which ensures the continued application of EU law to the UK until at least the end of 2020. In particular:

-          section 1 of the new Act inserts a new section 1A into the Withdrawal Act, which switches back on the European Communities Act, the main domestic law basis for EU membership, for the duration of the transition period;

-          section 2 of the new Act inserts a new section 1B into the Withdrawal Act, which keeps in force domestic legislation based on EU membership for the duration of the transition period;

-          section 3 of the new Act inserts a new section 8A into the Withdrawal Act, which gives the government wide powers to adopt secondary legislation in relation to the transition period. This includes “Henry VIII” powers to amend Acts of Parliament (although those powers cannot apply to Acts of Parliament adopted after the end of the transition period). These powers run out two years after the end of the transition period;

-          section 4 of the new Act inserts a new Part (sections 11A to 11F) into the Withdrawal Act, which gives devolved bodies in Scotland, Wales and Northern Ireland powers in relation to implementation of the transition period.  

Although the withdrawal agreement provides for a possible extension of the transition period for one or two years, subject to agreement of both sides and conditional on agreement on other issues relating to budget contributions, it is UK government policy to oppose any extension. That government policy is now set out in section 33 of the Act (inserting a new section 15A of the Withdrawal Act), which prevents the government agreeing to any such extension. Of course, the government could ask Parliament to amend the law if it changed policy, but as it stands the law prevents the government agreeing an extension unless the Act is amended.  As noted above, this is one of the changes made as compared to the original version of the withdrawal agreement bill, which provided for Parliament to approve any government decision to agree to any extension of the transition period, but did not rule such decisions out.

Note that the provisions in the withdrawal agreement on citizens’ rights, the financial settlement, Northern Ireland and other issues will not expire at the end of the transition period. In fact, for the most part that’s when the provisions on citizens’ rights and Northern Ireland kick in. Similarly that’s when most of the changes to the status of EU law in the UK will now apply. Section 25 of the new Act amends a chunk of the Withdrawal Act to delay much of the effect of that Act to the end of the transition period, instead of Brexit day as such.  (Schedule 5 to the new Act makes further amendments to the same end to the Withdrawal Act, secondary legislation and other primary legislation of Westminster and devolved bodies).  

One provision of the new Act deals with the process of adopting new EU legislation during the transition period, given that it will apply to the UK. Section 29 inserts a new section 13A into the Withdrawal Act, which provides for possible parliamentary debate over a new EU measure in some cases. But this is lipstick on a pig squared: the government is not bound by the result of any parliamentary debate, and would have no vote on the issue at EU level even if it were.

Implementing the withdrawal agreement

Section 5 of the Act inserts a new section 7A into the Withdrawal Act: a general clause giving domestic legal effect to the rest of the withdrawal agreement, other than the transition period. It requires those rights to be recognised and enforced in the UK’s legal systems. All legislation must be read and have effect subject to this rule.

There are also specific, more detailed rules on implementing certain parts of the withdrawal agreement such as citizens’ rights (discussed further below), but the new Act uses the words ‘See also’ these other provisions – indicating that any of these more detailed rules apply on top of the more general entrenchment of the withdrawal agreement in domestic law. That means that anyone seeking to enforce the new Act (EU citizens seeking to enforce their rights, for instance) could rely on either these more specific provisions (and the secondary legislation based on them), or the general implementation obligation, or both – depending on which rule in the withdrawal agreement they were trying to enforce. 

In very similar terms, Section 6 of the Act inserts a new section 7B into the Withdrawal Act: a general clause giving domestic legal effect to the EEA EFTA Separation Agreement and the UK-Swiss Citizens’ Rights Agreement. Again, there are more additional, more detailed rules in the rest of the Act.

Citizens’ rights

The citizens’ rights provisions of the withdrawal agreement aim to preserve most of the same status that EU27 citizens in the UK, and UK citizens in the EU27, have on the basis of EU free movement law, if they moved before the end of the transition period in the withdrawal agreement.

The specific provisions in the new Act mainly set out further powers for the government to implement the withdrawal agreement (and the EEA EFTA separation agreement and UK/Swiss citizens’ rights treaty) as regards:

-          the deadline for EU27 citizens to apply for status under the withdrawal agreement, including protection pending the deadline (June 2021 if the transition period is not extended) and while applications are being processed (section 7);

-          frontier workers, and their documentation (section 8)

-          restrictions of entry and residence (section 9);

-          appeals and judicial review (section 11);

-          recognition of professional qualifications (section 12);

-          social security (section 13); and

-          non-discrimination and workers’ rights in the context of free movement (section 14).

All of these provisions refer back to the withdrawal agreement; they are not general power to do anything the government likes, even in breach of it. They confer ‘Henry VIII’ powers to amend Acts of Parliament, and mostly extend beyond those covered by the withdrawal agreement. The last three sets of powers also extend to devolved bodies (see further Schedule 1 to the new Act). Note that the powers in section 11 have already been used to adopt secondary legislation providing for appeal rights for EU27 citizens, as noted above.

Similarly, section 10 of the new Act amends other Acts of Parliament so that the grounds for deportation of EU citizens and their family members are consistent with the withdrawal agreement.

In addition, the withdrawal agreement requires the UK to set up an independent monitoring authority for EU27 citizens’ rights. This is established in section 15 of the new Act, and schedule 2 to the new Act sets out more details. EU27 citizens can complain to this body about their treatment, and it can launch inquiries or court proceedings as a follow-up.

Finally on citizens’ rights, section 16 specifies that for some of the powers mentioned above, the government power to adopt secondary legislation includes power to supplement the general implementation of the withdrawal agreement. Section 17 defines the terms used in the citizens’ rights section. The application scheme for EU27 citizens widely referred to as ‘settled status’ is, in the legalese of Brexit legislation, known as “residence scheme immigration rules”.

Remember that these sections of the new Act, and the secondary legislation adopted under them, come on top of the general implementation of the withdrawal agreement in domestic law discussed above – which may well also be relevant for any EU citizens in the UK who have legal difficulties concerning their status.

Separation issues

Section 18 of the new Act, which inserts a new section 8B into the Withdrawal Act, confers power to adopt secondary legislation to give effect to the lengthy and detailed ‘separation provisions’ of the withdrawal agreement, which deal with issues like what happens to European Arrest Warrants which are pending at the end of the transition period. It also applies to the more limited number of separation issues dealt with by the EEA EFTA separation agreement. This includes ‘Henry VIII’ powers to amend Acts of Parliament, but there is a safeguard ruling out use of this power to amend or repeal the Human Rights Act or the legislation on devolved parliaments or assemblies.

Section 19 of the new Act amends a schedule to the Withdrawal Act to give devolved bodies similar powers to give effect to the separation provisions of the two treaties.

Financial settlement

Section 20 of the new Act is a general authorisation to spend the money required to be spent by Part Five of the Withdrawal Agreement – the participation in the EU budget to the end of 2020, the payment of previously accrued obligations, and sundry other sums like pensions.

Northern Ireland protocol

Section 21 of the new Act inserts a new Article 8C into the Withdrawal Act which confers power to adopt secondary legislation to implement most of the controversial withdrawal agreement protocol on Northern Ireland. Section 22 amends a Schedule to the Withdrawal Act to confer powers on devolved bodies to the same end. (Presumably the Northern Ireland Assembly and Executive are the most important bodies here). Section 23 provides for a new Schedule 3, which sets out details of enforcing the EU equality law which is preserved for Northern Ireland by the protocol. Finally, section 24 amends the Withdrawal Act to limit the UK government from agreeing to any extension of North-South cooperation or creating any new implementation bodies to that effect in the Joint Committee implementing the withdrawal agreement.

As with the rest of the Act, the general implementation of the withdrawal agreement into domestic law may also be relevant here. But some of the controversial aspects of the Northern Ireland protocol refer to further Joint Committee measures, and so unlike other aspects of the withdrawal agreement, the trade provisions of the protocol might need such further measures to give them full effect in domestic law. Also, unlike (say) EU citizens resisting deportation or challenging a refusal of settled status, companies in Northern Ireland do not have an obvious interest in litigating enforcement of the withdrawal agreement, as it might make them worse off (creating a barrier to trade with Great Britain) rather than better off.

Joint Implementation of the withdrawal agreement

The EU and the UK can jointly agree on certain measures to implement the withdrawal agreement within the Joint Committee which the agreement has set up. The new Act regulates some aspects of how this will work, on the UK side. First of all, as noted above, section 33 of the new Act (inserting a new section 15A of the Withdrawal Act) prevents the government agreeing to any extension of the transition period, and section 24 amends the Withdrawal Act to limit what the government can agree to as regards certain Northern Ireland issues.

The new Act also regulates what the UK will agree to as regards the procedure in the Joint Committee. Section 34 of the new Act adds a new section 15B to the Withdrawal Act, which states that the UK co-chair of the Joint Committee must always be a minister acting in person. Furthermore, section 35 of the new Act adds a new section 15C to the Withdrawal Act, which prohibits the UK from agreeing to use the written procedure in the Joint Committee.

These parts of the new Act do have a rough parallel on the EU side, where the decision concluding the withdrawal agreement on the EU side sets out how the EU institutions will deal with some of the procedural issues of implementation.

As regards dispute settlement, the new Act aims to enhance transparency. Section 30 of the new Act adds a new section 13B to the Withdrawal Act, which provides for:

-          information to parliament 14 days after either side requests an arbitration panel to be set up under the dispute settlement system, setting out the details;

-          information to Parliament 14 days after a CJEU ruling interpreting EU law at the request of the arbitrators under the dispute settlement system has been published in the EU Official Journal, setting out the details; and

-          yearly reports on the number of consultations aimed at settling disputes under the dispute settlement system.

Note that this does not give Parliament any power to direct the government’s position during dispute settlement. Furthermore, this provision is a fairly superficial attempt at transparency.  There is no obligation to publish information about final arbitration decisions, which can address a number of issues – not only the substance of the dispute, but the time period to implement a ruling, a failing to implement a ruling, and retaliation for not implementing a ruling.  Information about CJEU judgments published in the Official Journal adds little, since the Official Journal only publishes the operative part of the ruling, not the full text, weeks or months after the judgment, which anyway is usually published immediately on the Court’s website. Information on the number of dispute settlement consultations (rather than the content of the dispute, or the details of any settlement) is not that significant, especially if it is only provided annually.

Future relationship

The first version of the bill contained a lot about the future relationship between the UK and the EU, including a requirement that the government's negotiating strategy must be approved by Parliament, that ratification of the resulting treaties must be approved by Parliament, and that any negotiating guidelines had to be ‘consistent with the political declaration’ on the future relationship. However, the second version of the bill, and hence the final Act, dropped these provisions.

Furthermore, section 37 of the new Act amended section 17 of the Withdrawal Act, which required the government to negotiate with the EU on family reunion for unaccompanied child asylum seekers. Instead the government only needs to give a statement about its policy intentions. This did not remove any rights for asylum-seekers, as some believed – it rather removed an obligation to negotiate, which might not have been successful. (It’s not clear whether the EU is even interested in negotiating on this subject). But it may well have reduced the likelihood that the UK and EU agree upon this issue in the end.

As noted already, the final Act dropped the provision on workers’ rights in the original bill. This means that any retention of such rights will be based on the rules on conversion of EU law into law in the UK post-Brexit (discussed below) – unless the UK makes further commitments to this effect in any future relationship treaties with the EU. (I have discussed the proposed EU position on a ‘level playing field’ in the future relationship talks, including labour law and other issues, here).

The new Act also dropped the requirement in the Withdrawal Act to propose an Environment Bill – given that the government has tabled such a bill in the meantime. Similarly it dropped the requirement for the government to report on a customs arrangement with the EU by October 2018, as that date has passed. The rather pointless provision stating that the UK could optionally align with EU law or sign up to EU agencies has been repealed too.

Conversion of EU law in the UK post-Brexit

The basic idea behind the Withdrawal Act is that EU in force on Brexit day is converted into law in the UK at that point, until it is amended by Parliament, secondary legislation, devolved bodies, or the courts. In the new Act, section 25, as noted already, postpones this effect until the end of the transition period.

The big change here is section 26 of the new Act, which amends the Withdrawal Act rules on the interpretation of retained case law of the CJEU interpreting EU law. Previously, it was possible for the Supreme Court, or the High Court of the Justiciary (the supreme Scottish criminal court) in certain cases, to depart from CJEU case law post-Brexit – in the same limited circumstances in which those courts would depart from their own prior case law.

However, the new Act dramatically widens the possibilities of courts in the UK departing from CJEU case law – and does so by blurring the distinction between the independent judiciary and the executive. It gives power to adopt secondary legislation to do several things:

-          widen the list of courts and tribunals not bound by retained EU case law;

-          regulate ‘the extent to which, or circumstances in which’ a court or tribunal ‘is not to be bound by retained EU case law’,

-          set out ‘the test’ which would apply ‘in deciding whether to depart from any retained EU case law’, including the 'considerations’ are ‘relevant to’ any court applying the ‘test’ for when to depart from such case law. 

This may include not being bound by domestic case law which relates to EU case law, and ‘other matters’ relating to such domestic case law, including the creation of tests when that domestic case law should be disregarded too.  However, before adopting such secondary legislation a minister must consult specified senior judges, and the power to adopt such measures expires at the end of the transition period.

Furthermore, these extensive powers relating to previous case law ‘are subject to relevant separation agreement law’, which is set out in a new section 7C added to the Withdrawal Act. This new section concerns the interpretation of the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement. It provides that any question on ‘the validity, meaning or effect of any relevant separation agreement law’ must be decided ‘in accordance with the withdrawal agreement’ or the other two treaties, ‘having regard…to the desirability of’ interpreting these treaties consistently where they have provisions corresponding to each other.

To this end, the new section refers to ‘(among other things)’:

- Article 4 of the withdrawal agreement, which requires interpreting the agreement consistently with CJEU case law and EU law principles;

- Articles 158 and 160 of the withdrawal agreement, which give the CJEU jurisdiction to interpret the citizens’ rights and financial settlement provisions in relation to the UK, even after the transition period;

- Articles 12 and 13 of the Protocol on Northern Ireland, which again give the CJEU jurisdiction over parts of that protocol, and govern its interpretation consistently with EU law; and

- the clauses on interpretation of the EEA EFTA separation agreement and the Swiss citizens’ rights agreement.

It also defines “relevant separation agreement law” as meaning the provisions on general implementation of the withdrawal agreement, its separation provisions or the Northern Ireland protocol, or any secondary legislation adopted on that basis; or the “citizens’ rights and financial provision” sections of the withdrawal agreement; or anything else which is domestic law related to the rest of the withdrawal agreement (other than the transition period) or the other two treaties.

Taken together, these two chunks of legalese mean that Parliament has given the UK executive extensive power to tell courts in the UK how they may or must depart from CJEU case law. It’s too early to know how the executive will use this power: it could, for instance, be used to determine that courts are free to depart from EU case law relating to weekly working time, holidays or the protection of employees when their employer changes hands.   

On the other hand, this power to tell the courts to disregard case law does not concern the withdrawal agreement or other related treaties, and the jurisdiction of the EU court over the withdrawal agreement in the UK after the transition period is expressly accepted (as regards citizens’ rights and the financial settlement), or accepted by necessary implication (referring to the relevant clauses in the Northern Ireland protocol). The reference to ‘among other things’ arguably captures the CJEU’s jurisdiction over pending cases and proceedings in the withdrawal agreement.

Finally, section 27 of the new Act amends the government’s power to adopt secondary legislation to address ‘deficiencies in EU law’ related to withdrawal from the EU to cover measures adopted during the transition period.

Conclusion

In recent years – and especially recent months – it’s often asserted that the law doesn’t matter that much, given the government’s perceived intentions of disregarding it and of preventing judges from applying it. The application of the new Act in practice will put that assertion to the test.

It’s not so remarkable that the government wanted to remove parliamentary constraints upon its future relationship talks with the EU, and that the provisions in the new Act on accountability regarding the implementation of the withdrawal agreement are limited (besides ruling out an extension of the transition period – but that was government policy anyway). This simply gives effect to the traditional view that the executive’s conduct of international relations is not a matter to be regulated by Parliament.

However, it’s equally traditional that an international treaty which regulates the position of individuals should be given effect by an Act of Parliament so that it fully applies in domestic law. That is the approach taken by the new Act, which contains, as we have seen, provisions which implement the transition period in particular and the rest of the withdrawal agreement in general, giving the government further powers to adopt secondary legislation to implement specific points. While there are bound to be issues of interpretation and application of the withdrawal agreement on the ground (on the EU side too), in principle the UK has met its obligation to give effect to the treaty in domestic law.

The adoption of an Act of Parliament to give effect to the withdrawal agreement limits the ability of the government to renege on its obligations in the agreement, as some fear. Any intention to do so would be dependent upon amending the new Act. How likely is that? Although section 38 of the new Act reasserts the principle of parliamentary sovereignty, suggesting that parliament could choose to breach the UK’s international obligations as a matter of domestic law if it chooses to, and a tame majority in the Commons might well nod along, the House of Lords could at least, under the Parliament Acts, delay such a measure by a year. The Salisbury convention, under which the Lords will not seek to block legislation giving effect to a winning party’s manifesto commitments, hardly applies where that winning party reneges on those commitments, seeking to chuck its own ‘oven ready deal’ in the bin. But after a year, if the Lords did choose to invoke that power of delay (and they rarely do) an amendment to the Act is possible. It would then be up to the dispute settlement system in the withdrawal agreement to address the issues arising from any resulting breach of the agreement.

This may miss the point though, for two reasons. First of all, on the most contentious issue – the Northern Ireland protocol – as discussed above, the obligations might be hard to enforce under the Act anyway, given the reference to implementing measures and a possible reluctance to litigate. It would likely be the dispute settlement system and/or the CJEU’s (implied) jurisdiction over infringement actions under the Northern Ireland protocol that would come into play here.

Secondly, there’s the government’s reported intention to ‘sort out the judges’. Reliance on implementing a treaty via means of domestic law has limited effect if the judges are being told what to do by the executive – or, in effect, pre-emptively censoring their judgments due to fear of executive control. On this point, though, as discussed above, it’s striking that the parts of the new Act with a pronounced ‘nobbling the judges’ vibe concern retained EU law outside the scope of the withdrawal agreement, with the withdrawal agreement itself being safeguarded from the use of such powers. For issues outside the scope of the withdrawal agreement, there will be no legal obligations on the UK once the transition period is over, so it can’t be claimed that these powers undermine any substantive legal obligation. Conversely, there is a genuine concern that these powers might overrule judicial independence, depending on how exactly they are used: a helpful clarification of the limited circumstances where CJEU legal precedents need no longer be followed, or overturning legal certainty to own the libs?  

It seems possible that the new Act was a gateway drug as far as nobbling judges is concerned, and the government might soon wish to go beyond it. And it’s certainly understandable that EU citizens in particular distrust a government full of people involved with a campaign which broke electoral spending law, and who reneged on their campaign’s promise to give all EU citizens automatic indefinite leave to remain. But exactly what the government might do, and what impact that might have on implementation of the withdrawal agreement, remains to be seen.

Barnard & Peers: chapter 27

Photo credit: Mdbeckwith, via Wikicommons