The Withdrawal Agreement Implementation Bill

Professor Steve Peers, University of Essex

After months of anticipation, we finally know the shape of the law which would govern the UK’s ratification of the revised withdrawal agreement: the EU withdrawal agreement bill. (See also the explanatory notes on the bill, and further documents) The government wants this to be fast tracked in a few days, in order to meet its deadline of October 31. This is an absurdly hasty approach to parliamentary scrutiny of a bill which runs to 115 pages, with 40 clauses and six schedules – especially given that the government has in the meantime been compelled to request an extension of EU membership pursuant to the Benn Act (discussed here).  

It’s a complex bill, and this blog post does not aim to be comprehensive: it’s a compilation of selected first impressions (see also my Twitter thread of initial reactions). Since the bill is closely related to the revised withdrawal agreement, my earlier analyses of that agreement (overview; transition period; dispute settlement; and citizens’ rights) may be relevant.   

Approval of the withdrawal agreement

First: the bill switches off both the specific rules for approval of the withdrawal agreement in the EU Withdrawal Act (the so-called ‘meaningful vote’), and the general rules for approval of international treaties in the Constitutional Reform and Governance Act (CRAGA). The effect of this is that as soon as the bill is passed, the government can ratify the withdrawal agreement without holding a further vote.

The transition period

As I noted in my earlier analyses of the revised withdrawal agreement, the agreement in effect creates a deferred no deal outcome – shifted from end October 2019 to end December 2020. That’s because the transition period set up in the agreement (which ensures the continued application of EU law to the UK) ends in December 2020. Note, however, that the provisions in the withdrawal agreement on citizens’ rights, the financial settlement and Northern Ireland 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).

The possible deferred no deal outcome in December 2020 is therefore better described as a ‘no trade deal’ outcome. Can it be avoided, in the event that the UK and the EU have not negotiated a further relationship treaty on trade by that time (as seems highly likely)? Yes: it’s possible to extend that period by a period of one or two years, subject to the agreement of both sides in the Joint Committee set up to implement the agreement.

However, the circumstances are somewhat different from the extension of EU membership by the UK. There’s no underlying power to revoke the notification to leave any more. The decision can’t be taken at the last minute, like the membership extension decisions, because the withdrawal agreement requires the transition period extension decision to be taken by 1 July 2020. Moreover, the transition period extension decision requires a difficult negotiation on further UK contributions to the EU budget (the scheduled end-2020 to terminate the transition period coincides with the end of the EU multi-annual budget cycle).

In the bill, Parliament has a role in extension of the transition period. It must approve any government decision to extend it (as agreed with the EU). But there's no power for Parliament to require the government to make a request for an extension – and it’s government policy to leave at the end of 2020. (In the event that an extension is agreed, the bill would give effect to it by secondary legislation, similar to the EU Withdrawal Act provisions on extension of EU membership.) There’s already one proposed amendment by an MP to increase Parliament’s role; it will be important to see if an amendment like this passes.

During the transition period, the European Communities Act, loathed by Eurosceptics because it's the main domestic law basis for EU membership, comes back to life under the bill. The withdrawal agreement says that the UK has to apply new EU measures (other than those covered by UK opt outs) during the transition period, and there's provision in the EU for parliamentary scrutiny of such new EU measures. But needless to say, debating a motion on new EU measures in Westminster will have no impact on the EU side – given that the UK will not have MEPs or ministers at the negotiating table.

As a further measure to pacify Eurosceptics, there’s a parliamentary sovereignty clause. which is presumably intended to assert that Article 4 of the withdrawal agreement, which insists on the supremacy of the agreement in domestic law, doesn't overturn the basic principles of the UK constitution. There’s no small irony here, given that the Eurosceptics in question rejoiced when the government recently unlawfully suspended Parliament. In light of the Eurosceptics’ behaviour, Brexiting for parliamentary sovereignty makes as much sense as dieting for obesity.  

Implementing the withdrawal agreement

There's a general clause giving domestic legal effect to the rest of the withdrawal agreement other than the transition period. This includes the citizens’ rights provisions. I’ll focus on two aspects in more detail: citizens’ rights and workers’ rights.

Citizens’ rights

The citizens’ rights provision 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 main part of the bill set out further powers for the government to implement it as regards: the application deadline for EU27 citizens; frontier workers; restrictions of entry and residence; grounds for deportation; appeals and judicial review; recognition of professional qualifications; social security; non-discrimination; and workers’ rights (in the context of free movement). 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.

The clause on the application deadline would be a good place to insert an amendment to ensure that EU citizens are not deported or subjected to any other detriment due purely to missing the deadline. Furthermore the bill should be amended to protect the position of those whom the UK is only protecting on a discretionary basis (for instance, the non-EU family members of UK citizens who return to the UK from an EU Member State, and those who are not working but whom the UK considers do not have ‘comprehensive sickness insurance’ because they rely on the NHS.

In addition, the withdrawal agreement requires the UK to set up an independent monitoring authority for EU27 citizens’ rights. This is established in a schedule to the bill. EU27 citizens can complain to this body about their treatment, and it can launch inquiries or court proceedings as a follow-up. However, it might be questioned whether the body is really independent, given the influence which the Bill gives the Home Secretary over appointments. A better approach would be appointments by an independent body or a parliamentary committee, or perhaps adapting the model for judicial appointments.

Workers’ rights

Some Labour MPs have brought themselves to support the withdrawal agreement based on promises for protection of worker’s rights. How substantial are these – in light of the removal from the withdrawal agreement of the protection for such standards (forming part of the UK-wide customs union backstop) in the earlier version of the agreement?

According to the bill, the government must release a statement as to whether a new bill goes below EU standards on employment law or not. But it can still propose a bill even if it drops below those standards. As for new EU legislation on workers’ rights, the government must report on whether they are higher than UK standards, and if so whether they intend to match them.

This leaves obvious gaps: what about secondary legislation related to workers’ rights? What about gaps between UK courts’ interpretation and the CJEU? And even the core commitments are not very impressive – a sort of Potemkin village of apparently solid promises which are actually empty facades. If Labour MPs fall for this, I have a red flag in Florida I’d like to sell to them.

A more genuine commitment would: rule out reduction of EU standards by means of secondary legislation; require the UK courts to keep to any minimum standard set by the CJEU unless an Act of Parliament requires otherwise, with the power for the courts to go above that standard; and match new EU legislation on workers’ rights unless Parliament votes against it (or at least, leave to Parliament the choice whether to match the new legislation nor not).  

Future relationship

The bill regulates the future relationship between the UK and the EU too. The government's negotiating strategy must be approved by Parliament (it’s not explicit whether Parliament could amend that strategy), and ratification of the resulting treaties must be approved by Parliament, in much the same way as approval of the withdrawal agreement under the EU Withdrawal Act. So we are promised more ‘meaningful votes’ in future – assuming that there are any treaties with the EU to approve.

But there’s a catch: any negotiating guidelines have to be ‘consistent with the political declaration’ on the future relationship, which suggests that this non-binding agreement between the UK and the EU attains a sort of binding effect in domestic law. But this declaration rules certain things out, such as a customs union or single market relationship. So, to paraphrase Henry Ford, the government is telling Parliament that it can vote for any negotiation strategy it likes – as long as it’s blue.

We can expect amendments to the bill on this issue, including on the question of a customs union. It has been argued that the opposition parties who want a different relationship with the EU should just roll over on this point and wait to win an election. But we had an election in 2017 – in which the future relationship with the EU was an issue. Those who voted for the opposition parties then voted for manifestos promising to support a close relationship with the EU; so why shouldn’t the opposition parties try to amend the bill to give effect to these preferences? After all, the government chose to hold an early election on the issue of Brexit, and lost its majority.

This goes back to underlying themes in the Brexit debate. Supporters of the government’s notion of One True Brexit gloss over that at various times this One True Brexit – which ‘everyone knew they were voting for’ – has constituted the first withdrawal agreement, the revised withdrawal agreement, and no deal at all. The government blames its likely inability to achieve its Brexit objectives by the end of October on judges judging, Remainers moaning, Parliament legislating, and the EU parking the bus in the Irish Sea. But at the root here is voters voting: depriving the government of its majority in an election in which they were asked about Brexit policy.  

Barnard & Peers: chapter 27

Photo credit: Jonathan Joseph Bondhus

What might have happened in an alternate universe: the EU (Withdrawal Agreement) Implementation Bill (‘WAB’)

Professor Tamara Hervey, University of Sheffield, and Professor Steve Peers, University of Essex

People who voted for a ‘coalition of chaos’ with Ed Miliband in 2015 sometimes imagine the goings-on in the ‘Miliverse’ – a parallel universe where Ed Miliband won the general election that year, and where the main debates in British politics are about bin collections and bus routes, rather than Brexit. With yesterday’s resignation of the Prime Minister, we can imagine the ‘Mayverse’ – a universe where Mrs May either held off calling an election, or held it and won the large majority she was hoping for, or had successfully pursued the art of compromise that she referred to in her resignation speech.

The latest big development in the ‘Mayverse’ would have been the Bill implementing the EU/UK Withdrawal Agreement. In our universe, on 15 May 2019, the UK government had announced that it would publish this Bill in ‘early June’.  This week the Prime Minister, before resigning, set out the main points of the Bill. Of course, her resignation, and the earlier news that the Conservative/Labour talks have failed, makes this much less likely.  However, in post-EU referendum politics, many futures are possible, including ones we might not foresee.  A lawyers’ job is to make sense of the legal texts that seek to express political agreements.

 

So this blog post considers some of the possibilities for one of the key elements of the EU (Withdrawal Agreement) Implementation Bill (or ‘WAB’ as it has come to be known) that would have been tabled in the Mayverse, and might yet be tabled in our universe: how is the UK going to render its obligations under the EU/UK Withdrawal Agreement into domestic law? (Other key elements are considered here.)

Available information at present

At this time, there is no text of the EU (Withdrawal Agreement) Implementation Bill in the public domain. What is available is the White Paper on Legislating for the Withdrawal Agreement, from July 2018, and the EU/UK Withdrawal Agreement itself, as well as the documents that surround it, such as the Preliminary Joint Report from the negotiating teams, from December 2017.

Only two paragraphs of the White Paper explicitly address the WAB.  One (para 148) simply says that if Parliament approves the Withdrawal Agreement, government will bring forward the WAB (see also para 4 which says government will only do this once the Withdrawal Agreement is approved by Parliament).  The other (para 149) states:

‘As set out in the preceding chapters of this paper, the Bill will be the primary means of implementing the Withdrawal Agreement in UK law, to ensure the Government meets its international obligations as set out in the treaty, …’

This makes it sound like the WAB would have treated the Withdrawal Agreement as ordinary international law.  This is not what the text of the Withdrawal Agreement suggests.  Its Article 4 provides:

‘(1) The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as they produce within the Union and its Member States. Accordingly, 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.

(2) The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

(3) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof, shall be interpreted and applied in accordance with the methods and general principles of Union law.

(4) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof shall in their interpretation and application be interpreted in accordance with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

(5) In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

Article 4 WA thus embodies key principles of EU law: direct effect (enforceability of rights by individuals before domestic courts); primacy/supremacy (‘disapplication’ of inconsistent domestic law); and consistent interpretation with both the methods of EU law, and its ‘general principles’ (which of course include fundamental human rights, as (now) set out in the EU Charter and interpreted by the CJEU).  The WA sees itself as almost a species of EU law, and not as an ordinary EU international agreement.  At least the direct effect and supremacy aspects of that interpretation are reflected in the December 2017 Preliminary Joint Report (para 36), which states:

“Once this Bill has been adopted, the provisions of the citizens' rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.”

It almost goes without saying that all of these obligations would have been political dynamite in the contemporary UK context.

How would the WAB have gone about the tricky task of implementing the UK’s obligations under the Withdrawal Agreement ‘in primary legislation’ (as required in Article 4 (2) of the Withdrawal Agreement)? The following is a summary of possible approaches and some of their implications.

Repeat the wording of the European Communities Act 1972

One possible approach would have been to use the wording of the European Communities Act (ECA) 1972.  To do so would have meant the continued supremacy and direct effect of law agreed between the UK and the EU (that is, the Withdrawal Agreement).  It would use a ‘tried and tested’ legal method, given that the ECA has in effect accommodated those concepts in the UK’s domestic constitutional system for over forty years, even if constitutional lawyers disagree on exactly how it does so.  In effect, this approach would create a new source of law in the UK’s constitution: that of ‘Withdrawal Agreement law’, in the same way that the European Communities Act 1972 is, in the words of the UK Supreme Court in Miller, para 65, the ‘conduit pipe’ by which EU law becomes ‘an independent and overriding source’ of UK law.  This new source of law would be in addition to the new source(s) of law (‘retained EU law’ of various types) which will be created by the EU (Withdrawal) Act 2018, when it comes fully into force.

The benefits of this approach are that it secures compliance with the provisions of Article 4 of the Withdrawal Agreement.  Further, there is significant jurisprudence, including from the House of Lords and Supreme Court, on the meaning and effect of the relevant parts of the European Communities Act 1972. In particular, the Factortame ruling confirms that domestic legislation, irrespective of its date, that cannot be consistently interpreted with directly effective, validly adopted EU law, must be ‘disapplied’. This approach thus entails significant legal certainty and clarity.

The detriments, however, include the complexities associated with yet another new source of law, a point made by Mark Elliott in 2017.  Further, as Elliott notes, this approach would appear inconsistent with the intention of the EU (Withdrawal) Act to expunge directly effective EU law per se from the UK’s legal systems.  Moreover, while the ECA might be able to work ‘constitutional magic’ with EU law, whether it can do so with an ‘ordinary treaty’ (if we think of the EU/UK Withdrawal Agreement as such) is far from certain.

EU/UK Withdrawal Agreement as ‘ordinary’ international law that gives human beings rights

An alternative model is to consider the EU/UK Withdrawal Agreement as ‘ordinary’ international law, or, perhaps better, as international law that gives human beings rights.  The key analogy here is with the European Convention on Human Rights and the Human Rights Act 1998.  Although in principle in the UK’s legal systems, domestic legislation takes precedence over conflicting international treaties, courts understand themselves to be under an obligation to interpret domestic legislation consistently with international treaties if possible, on the basis of a presumption that Parliament intends to comply with the UK’s obligations in international law.  

The obligation permits the UK’s courts – particularly its Supreme Court – to stray from the explicit language of a statute, and even from Parliament’s apparent intention when adopting that statute, as seen for instance in Ghaiden v Goden-Mendoza.  Of course, it is going to be far from easy for domestic courts to discern the intentions of Parliament when adopting the WAB, and so textual interpretation may well be more important in practice here.  The Human Rights Act 1998, sections 2 and 3, require that domestic courts must interpret domestic law ‘in a way which is compatible with’ ECHR rights and must ‘take into account’ decisions of the ECHR’s institutions whenever the domestic court considers it to be relevant to the instant proceedings.  Similar wording in the WAB could include decisions about the effects of the Withdrawal Agreement (for instance its direct effect or primacy) made by EU institutions.  But, unlike the ECA approach, such wording does not require ‘disapplication’ of domestic law if consistent interpretation turns out to be impossible.

 

This approach would also involve certainty and clarity.  However, it would potentially fail to fulfil the UK’s obligations under the Withdrawal Agreement in full.

Use the wording of the Withdrawal Agreement

A third approach would be to adopt a form of words that explicitly indicates intention to comply with both the letter and spirit of the Withdrawal Agreement, by using the words of its Article 4 (1):

‘shall produce in respect of and in the United Kingdom the same legal effects which they produce in the Union and its Member States. Accordingly, 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’.

This approach creates less certainty as there is, obviously, no jurisprudence on which provisions of the Withdrawal Agreement meet the conditions for direct effect.  There is no universal rule in EU law as to direct effect of provisions of treaties to which the EU is a party: it is dependent on the context, aims and objectives of the treaty concerned.  In the EU’s legal order, the threshold test for direct effect is higher for international agreements to which the EU is a party than it is for other sources of EU law: the nature of international law differs from other EU law in this respect.  However, in this instance, there is a strong argument to the effect that at least the part of the Withdrawal Agreement on citizens’ rights, which mirrors directly effective provisions of EU law, meets the conditions for direct effect.  Whether this is the case for other provisions, such as, for instance, those on data protection, is a different matter.

Alternatively, or in addition, the EU (Withdrawal Act) Implementation Bill could adopt the wording of WA Article 4 (2), by requiring ‘judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions’.  This would have the benefit of compliance with the Withdrawal Agreement obligations.  Whether the UK courts would interpret the obligation as identical to that under the European Communities Act 1972, given that the UK would no longer be a Member State of the EU, would potentially be a moot point, and some have argued that it might be ‘constitutionally impossible’.  Thus this position offers less legal certainty than the wording of the European Communities Act would bring.

Problems with any approach

Mike Gordon is right to point out that any of these approaches is of course vulnerable to the WAB itself being repealed.  But equally, as he says, any of them, and especially the ECA or WA wording approaches would constitute a significant example of Parliament seeking to constrain its powers and in effect to bind its successors.

The Withdrawal Agreement seeks to secure the position of EU-27 citizens in the UK (and vice versa).  Its effects, particularly as regards those citizens, will last long beyond the transition period.  The WAB would somehow need to secure these rights from interference not only from future UK governments, but also from future legislation.  While the UK is a Member State of the EU, the ECA effectively does so.  The WAB would need to do so without the underpinnings of EU membership: whatever approach it takes will be unlikely to satisfy those who are sceptical about securing citizens’ rights in the post-Brexit future.  As Paul Daly has pointed out, it is not difficult to imagine UK legislation discriminating against EU citizens.  Outside of EU law, the UK’s constitution does not have a tried and tested formulation for withstanding the normal lex posteriori rule of statutory interpretation.

These concerns would equally be relevant if the Bill contained provisions on the future UK/EU relationship, or as regards any parallel legislation dealing with that relationship. The Prime Minister had planned to table both: rules on a parliamentary mandate for the negotiations, and a Workers’ Rights Bill. Either way, it’s not true to say, as is sometimes claimed, that Boris Johnson (or whoever is the next Prime Minister) could just “rip up” such guarantees: it would require a parliamentary majority to do so. A watered-down version of the employment and environmental law guarantees that the opposition was seeking would nevertheless be ensured by the withdrawal agreement backstop.  However, the uncertainty attached to the prospect nevertheless was surely a factor in dissuading the opposition parties from agreeing to Mrs May’s proposals.

Final thoughts: WAB applied in first instance courts and tribunals

Ultimately, it does not matter so much exactly what the WAB says, but more how it is interpreted.  Here, of course, the decisions of the UK’s appellate courts will be crucial, as has been the case with the ECA and Human Rights Act.

 

However, we should not lose sight of the first-instance decision-making that will precede any such rulings.  It is this first instance decision-making – in immigration contexts, primarily, but also in employment contexts and perhaps many others – which will determine the real-life position of the human beings affected by Brexit, whose position the EU/UK Withdrawal Agreement seeks to protect as much as possible. 

One final sobering thought.  First instance judges in the UK respect the doctrine of Parliamentary sovereignty, and regard themselves at the service of the will of Parliament, as expressed in legislative text.  Judicial training includes – obviously – regular updates as legislation changes.  If the WAB were ever tabled, it might be enacted in record time.  But the WAB text has not even been released.  No one – including those who train the UK judiciary – has had any time to consider its meaning or effects.

Barnard & Peers: chapter 27

Photo credit: Medium