Analysis 1 of the Revised Brexit Withdrawal Agreement: Overview

Professor Steve Peers, University of Essex

Introduction

It’s not certain, at time of writing, whether the Brexit withdrawal agreement will be approved or not. But the UK Parliament is about to vote again on the issue, following the recent agreement on a new version of the agreement – with a revised Protocol on the Irish border (for a full text of the revised withdrawal agreement following this change, see here) and a revised political declaration on the future relationship.  (There was already a minor amendment to the text agreed in April, after UK membership was extended for several months: the text of the agreement as it stood after that is here.) So this is an opportune time to update my previous overview of the first version of the withdrawal agreement. 

This blog post is a summary and explanation of the text for non-lawyers. It outlines the structure of the agreement and the main content of each part of it in turn. It does not aim to be exhaustive, but only to give a broad indication of what the revised agreement entails. I have also updated my blog posts on the transition period, dispute settlement, citizens’rights and the related politicaldeclaration.

Throughout the blog post, I’ve scattered the answers to ‘key questions’ which have been raised about what the revised withdrawal agreement does. Let’s start with this question, in light of the imminent vote on the withdrawal agreement:

Key question: What if the withdrawal agreement is not ratified?

If Parliament this week votes against ratifying the withdrawal agreement, and also votes against leaving the EU with no deal, then the provisions of the ‘Benn Act’ kick in, requiring the Prime Minister to request a three-month extension of EU membership. I discussed the workings of that Act in detail here. It’s possible that the EU refuses to extend membership, in which case the UK leaves with no deal on October 31, unless it decides to revoke its notification to leave the EU, which is possible unilaterally (as confirmed by the CJEU, and discussed here). There’s also a legal challenge to ratification at this point.

It’s also possible that parliament votes in favour of the withdrawal agreement, but runs out of time or votes against the bill to give effect to the withdrawal agreement. In that scenario there may be a fresh attempt at securing an extension of membership. If that fails, the UK again leaves with no deal on October 31, unless it decides to revoke the notification to leave. Note that there’s a proposed amendment to the government’s motion to approve the withdrawal agreement, which aims expressly to trigger the Benn Act to give more time to consider it.

   

The EU Commission has issued preparedness notices setting out its view on what would happen if the UK leaves the EU without a withdrawal agreement. The UK government has also issued its own no deal notices.

In order to address the possibility of a no deal outcome, the EU has also adopted legislation (a few amendments to this legislation will likely be adopted before October 31). This includes a law waiving visa requirements for short-term visits by UK citizens to the EU (for 90/180 days), which I discussed here. This will not address residence for longer periods, which will be subject to EU and national laws on non-EU citizens, which are more restrictive than EU free movement rules. (For more details of the law applicable to UK citizens visiting or staying in the EU after Brexit, see my discussion here. For more details of the position of UK citizens in the EU27 who might be able to claim long-term residence status, see discussion here; this point may be relevant even if the withdrawal agreement is ratified).

Another key issue is what exactly the imminent vote is about. It’s often claimed that a vote to approve the withdrawal agreement (or to leave with no deal) would ‘get Brexit done’, but is that the case?

Key question: Does the withdrawal agreement cover the long-term relationship between the UK and EU after Brexit?

Other than the provisions related to Northern Ireland (discussed further below), the withdrawal agreement governs only the details of leaving the EU, not the long-term relationship between the UK and EU. On that issue, alongside the text of the agreement, there was also a political declaration on the future UK/EU relationship (discussed here), which has now been revised as part of the new overall ‘deal’. This is the basis for negotiations that would take place after Brexit day. There would also be an issue of whether to extend the transition period due to expire at the end of 2020, as discussed below. So there will certainly be lots of Brexit discussion in future, even if the revised withdrawal agreement is approved.

Structure of the withdrawal agreement

Part One of the withdrawal agreement (Articles 1-8) sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope.

Part Two of the withdrawal agreement (Articles 9-39) deals with citizens’ rights, for those EU27 citizens in the UK, and UK citizens in the EU27, before the end of the transition period.

Part Three of the agreement sets out “separation provisions” (Articles 40-125), ie the exact details of phasing out the application of EU law in the UK at the end of the transition period.

Next, Part Four sets out the rules on the transition period (Articles 126-132), during which substantive EU law still applies to the EU for two to four years after Brexit day.

Part Five concerns the financial settlement (Articles 133-157).

Part Six sets out “Institutional and Final Provisions” (Articles 158-185). This includes rules on CJEU jurisdiction over EU27 citizens, dispute settlement, making further decisions to implement the agreement and rules on entry into force and dates of application.

In addition there are three Protocols to the agreement (these have the same legal force as the main treaty), on Irish border issues, UK bases in Cyprus, and Gibraltar.

Part One: Common Provisions

The main legal issue in Part one is the legal effect of EU law for the UK. The agreement must have the same legal effect for the UK as EU law does for EU Member States – including the principles of direct effect (meaning that the agreement as such can be enforced in national courts) and implicitly supremacy (meaning that national law which breaches the agreement must be disapplied by national courts). The UK must also pass an Act of Parliament to give effect to the Agreement; this is above and beyond the latest planned ‘meaningful vote’ on the revised agreement in Parliament.

All references to EU law require it to be interpreted in accordance with the normal rules of EU law. As for case law of the CJEU, references to EU law must be ‘interpreted in conformity with’ CJEU case law delivered before the end of the transition period. However, the rule is different for CJEU case law after the end of the transition period: in that case, the UK courts and authorities are only required to have ‘due regard’ for the case law. Note that none of this gives jurisdiction to the CJEU as such as regards the UK (although other parts of the Treaty give the Court some jurisdiction).

References to EU law include that law as amended until the end of the transition period, while references to Member States include the UK except when they refer to having voting or representation rights on EU bodies etc.

Part Two: Citizens’ rights

This part will mostly not apply until after the end of the transition period, since free movement of people will continue during that period. In principle, it provides that EU27 citizens in the UK before the end of that period (and UK citizens who are in the EU27 before the end of that period) will retain the same rights as those who arrived before Brexit day. To that end, it requires the two sides to keep applying EU free movement legislation to the people concerned, including legislation on social security coordination and the recognition of qualifications.

Some aspects of their legal status will change, however: the UK or EU27 Member States may require them to apply to prove their right to stay on the territory. The UK in particular plans to implement this, by means of a ‘settled status’ scheme. The risk is that some people will not have the documentation to prove their right to stay. Some categories of people currently covered by EU law (such as UK citizens returning to the UK with non-EU family members, or UK children in the sole care of one non-EU parent) will not be covered by the withdrawal agreement, so their position will be up to UK law. Similarly a number of EU27 citizens who would not qualify for status because they do not meet the ‘comprehensive sickness insurance’ requirement will be covered by a unilateral waiver of this rule by the UK, not the withdrawal agreement.

Also, the rules on family reunion in EU free movement law (which are more favourable than those under national law or EU law on non-EU families) will only apply where the family relationship existed before the end of the transition period, or the family member was legally resident in the same State then. If the citizens commit a criminal offence after the end of the transition period, national rules on expulsions will apply – and they may be more stringent than EU free movement rules on this issue.

The CJEU will have jurisdiction to rule on how the rules apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf.

For further details, see my annotation of a previous version of the citizens’ rights Part of the treaty, which is only a little different from the final version.

Key question: Does the withdrawal agreement end free movement of people?

Yes, free movement between the UK and EU (remember this applies both ways) stops at the end of the transition period, unless the UK and EU decide to sign a separate treaty as part of the future relationship extending free movement in the future. Currently the UK government opposes this idea. The protocol on Northern Ireland does not include free movement of people, but only the continuation of the UK/Ireland common travel area, which is more limited.

The withdrawal agreement also ends free movement between Member States for UK citizens already in the EU27, unless (again) a separate treaty as part of the future relationship addresses this issue. UK citizens in the EU27 might, however, be able to qualify for a status (long-term resident of the EU) allowing movement between Member States on a more restrictive basis, as discussed here.

Part Three: Separation provisions

This part tells out exactly how EU law ceases to apply at the end of the transition period, for a list of different issues. The biggest difficulties during negotiations were over geographical indications (ie, protection for those who call their product ‘Parma ham’) and what happens to cases pending before the CJEU on Brexit day.

Key question: Is the UK bound to EU law on geographical indications forever?

No, but it would be guaranteeing the continued protection of geographical indications for products which were protected at the end of the transition period.

More precisely, this part sets out rules for ending the application of EU law as regards thirteen issues: goods placed on the market; ongoing customs procedures; ongoing VAT and excise procedures; intellectual property protection; police and criminal law cooperation; cross-border civil litigation; personal data; public procurement; Euratom; judicial and administrative procedures; administrative cooperation; privileges and immunities; and other issues, such as the European Schools.

Key question: Does the CJEU have jurisdiction in the UK indefinitely?

No. Some have misread Article 89 of the withdrawal agreement, which refers to CJEU jurisdiction as regards cases coming from the UK, to mean that the UK will be covered by the Court’s jurisdiction forever. In fact, Article 89 simply confirms that the Court will have jurisdiction for cases sent from UK courts before the end of the transition period.

After that point, UK courts can send the CJEU cases only in limited contexts: for eight years after the transition period ends as regards EU27 citizens in the UK, or the protocols on Northern Ireland (in part) and Cyprus. Also, the Court has jurisdiction after this point to decide on how to interpret EU law if a dispute about the withdrawal agreement goes to arbitration (see Part Six).

Furthermore, the Commission can sue the UK in the CJEU for failure to implement EU law correctly for four years after the end of the transition period (though this can only concern alleged breaches which occurred as an EU Member State, or during the transition period Part of the agreement). Finally, the Commission can sue the UK to enforce State aid and competition decisions which were based on proceedings which started before the end of the transition period, but concluded afterward.  (I have discussed the CJEU provisions of the withdrawal agreement in more detail here).

It is possible that the future relationship will provide for continued EU/UK cooperation on some of these issues, in which case some of these separation clauses either will not come into practical effect at all, or will only apply in part. For instance, the EU and UK might end up agreeing in a new security treaty on another form of fast-track extradition instead of the European Arrest Warrant (EAW), and may therefore choose to agree different rules on transition from the EAW system to that new fast-track system.

Part Four: transition period 

This is a short part of the withdrawal agreement, yet it has the biggest effect: it keeps most substantive EU law in place in the UK until at least the end of 2020, with a possible extension.

The key elements of the transition period are that EU law (including new EU law) applies to the UK, except in areas covered by UK opt-outs (such as the single currency and justice and home affairs law; in the latter case, the UK retains part of its power to opt-in to new proposals on a case-by-case basis). There are special rules on external relations: for instance, the EU will notify non-EU countries that the UK should still be regarded as covered by EU free trade agreements, or other types of EU treaties between the EU and non-EU countries (the non-EU countries aren’t obliged to agree to this. For the text of the notification, see here). The current rules on the allocation of fisheries catches can’t be changed to benefit either the EU or UK fishing fleets.

However, the UK will not be represented on any EU institutions or bodies – including on the CJEU, which will continue to have its usual jurisdiction regarding the UK during the transition period. The UK will only be consulted on new EU measures as a special exception. In one area – foreign and defence policy – the UK can refuse to apply new EU measures if it has fundamental objections to them, and the withdrawal agreement foresees an early treaty between the EU and UK that will replace the transition period rules in this area. The UK will remain opted out from the rules on further defence cooperation between Member States (known as ‘PESCO’).

For a detailed annotation of the transition period clauses – except for the extension clause which was added later – see my earlier blog post.

Key question: Which EU laws does the transition period cover?

I’m often asked if the transition period covers a particular EU law like driving licences or aspects of the free movement of people, because readers can’t find a specific reference to that law in the withdrawal agreement. The simple answer is that the transition period covers all laws applying to the UK except a handful of exclusions, so the drafters didn’t bother with a list of those EU laws which are covered by it.

The EU laws which are not covered by the transition period are those about the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. The UK (or its devolved legislatures) can, if it chooses, unilaterally continue to let EU27 citizens vote in local elections, and EU27 countries can choose to do the same for UK citizens. Also, as noted above, EU foreign and defence policy might not fully apply to the UK for the whole of the transition period.

This brings us to the potential extension of the transition period. It’s possible for the Joint Committee set up by the withdrawal agreement – which works by the mutual consent of the EU and UK – to decide by July 2020 if the transition period will be extended, for a single extension of up to one or two years.

In that case, the transition period rules continue to apply to the UK for that extended period, except there would have to be an ad hoc negotiation on how much the UK pays into the EU budget during the extended period.  There are also special rules on agricultural support.

Key question: Can the UK be forced to stay in the transition period indefinitely?

No. First of all, any extension of the transition period has to be agreed jointly, as noted already. So the UK could veto it. Secondly, any extension won’t be indefinite, since the withdrawal agreement sets a maximum extension time limit of two years.

On the other hand, the UK might theoretically end up applying the rules relating to Northern Ireland (discussed further below) indefinitely. However, these rules are more limited in scope than the transition period, as they concern only some EU laws (on equality law, external trade, customs, goods regulation, electricity, and State aids), and they only apply to Northern Ireland. In particular, the backstop does not concern the free movement of people or services, or contribution to the EU budget.

Part Five: financial settlement 

This part incorporates the earlier agreement that the UK takes part in the EU’s spending until the end of the current budget cycle (end 2020), which matches the end of the transition period (unless that period is extended). As noted above, though, if the transition period is extended, the UK and EU will negotiate a separate EU contribution to the EU budget. It also includes UK payments to the budget incurred because the EU often makes financial commitments in one year and then pays them out in later years (the system known as reste à liquider). Furthermore, it includes continued payments to ‘off-budget’ EU spending such as commitments to developing countries, until the current versions of those programmes expire. For a detailed discussion of the finances of the deal, see reports from the OBR, the National Audit Office and the Institute for Government.

Key question: Has the UK agreed to pay £39 billion in return for nothing?

No. First of all, some of that money has already been contributed during the period of extension of EU membership. Secondly, this begs the question: the EU regards the financial settlement as money which is payable in any event regardless of any future relationship, and took the view that the future relationship could not be formally negotiated before Brexit day anyway. Even on its own terms, the argument that ‘£39 billion is paid for nothing’ is wrong, since about half of of the money relates to the UK still applying substantive EU law during the transition period (see the OBR report), during which the UK still has its current access to EU goods and services markets (and vice versa).

Part Six: Institutional and Final Provisions

First of all, as noted above (in Part Two), the CJEU will have jurisdiction to rule on how the rules on citizens’ acquired rights apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf. The two sides might agree to wind up the monitoring body at the end of the same time period.

Secondly, the CJEU will have jurisdiction, after the end of the transitional period, over the reference to EU law in the financial settlement part of the agreement, in references from national courts or as regards Commission infringement actions brought against the UK.

Next, there’s a Joint Committee set up to oversee and implement the agreement. It will meet at least once a year, and there are a number of sub-committees dealing with specific issues like Northern Ireland and citizens’ rights. It can take certain decisions to add to the agreement – such as an extension of the transition period – but for all these decisions the EU and UK must both agree.

There are detailed rules on dispute settlement, providing for arguments about the agreement to go to a panel of arbitrators. However, if the arbitrators have to decide an issue of EU law when settling the dispute, they will have to ask the CJEU to give a ruling. This is unavoidable, since CJEU case law insists that the EU and its Member States cannot be bound by an interpretation of EU law other than the CJEU’s (see, for instance, CJEU Opinion 1/92).

As noted above, the CJEU has jurisdiction over part of the Protocol on Northern Ireland, as well as the Protocol on bases in Cyprus.

Key question: Does the CJEU have jurisdiction over the entire agreement?

No. The Court has its usual jurisdiction under the transition period, and following that specific jurisdiction over EU27 citizens’ rights and EU law referred to in the financial settlement, as well as the protocols on Northern Ireland (in part) and bases in Cyprus. But the arbitrators can only refer disputes over EU law to it, not disputes over the entire agreement – although a lot of the agreement does refer to EU law.

Note that this part of the agreement differs a lot from the dispute settlement clauses as the Commission proposed them in March 2018 (see discussion here) – which included powers (tilted toward the EU) for both sides to impose sanctions on each other. The final version looks a lot more like traditional international dispute settlement, and is presumably a concession by the EU to the UK.

Finally, the last provisions of the main withdrawal agreement set out ‘boilerplate’ rules: confirming that the three Protocols and nine Annexes are binding; setting out the authentic languages of the text and the depositary; and setting the date of entry in force (which was amended in April 2019). The withdrawal agreement applies from that date, except the parts on citizens’ rights, separation provisions, dispute settlement and the three Protocols mostly apply from the end of the transition period (with specified exceptions which apply immediately). There’s also a commitment to negotiate on the future relationship, referring to the separate joint declaration on that issue, ‘with a view to’ agreeing those texts by the end of the transition period ‘to the extent possible’.

Protocol on Irish border issues

The changes to the Northern Ireland Protocol, as compared to the previous version of this Protocol, have been tracked here. Article 1 specifies that it does not affect the UK’s territorial integrity. But the provisions emphasising that the Protocol is meant to be temporary have been dropped, as have a link back to the possible extension of the transition period and a review clause. However, the possibility of replacing the Protocol by future UK/EU trade arrangements is maintained.

Next, Article 2 and 3 of the Protocol, which are unamended, refer to equality rights and the common travel area between the UK and Ireland (these issues were never controversial).

Key question: Does the common travel area continue the free movement of people between the UK and EU?

No. The absence of border checks makes it impossible to refuse entry to people at the border with Ireland, but that does not mean any EU27 citizens crossing that border (besides Irish citizens) have the right to reside or work in the UK (and vice versa for people crossing into Ireland, besides UK and EU citizens). There is UK legislation on liability for employers, landlords et al who hire or do business with people who are not authorised to work or reside that will be relevant here.

The revised Protocol then drops the previous UK-wide customs union backstop. This text had linked to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which meant some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.

However, this had fallen short of the obligations of EU Member States; there had been limited obligations to keep up with new EU legislation and CJEU case law; and the arbitration rules (including CJEU jurisdiction) mostly had not applied to this ‘level playing field’. There’s a lot of EU law that wouldn’t have applied to the UK – most notably the free movement of persons, services and capital, and contributions to the EU budget. So while the backstop would still have committed the UK to a chunk of EU law on trade in goods, and in a limited way to some law in the ‘level playing field’ areas, the continued application of EU law would have been much less than under the rules on the transition period.

In place of the UK/EU customs union backstop, in the revised Protocol a new Article 4 first specifies that Northern Ireland is part of the UK’s customs territory for international trade purposes. A new Article 5 then, first of all, regulates trade between Great Britain and Northern Ireland. No customs duties are charged on goods moved from Great Britain to Northern Ireland, unless there is a risk that the goods may be sold in the EU. The further definition of what that means must be worked out by the Joint Committee by the end of the transition period. There is an exemption for personal property. As before, an Annex applies a long list of EU laws on customs, trade and goods regulation to Northern Ireland – although in the previous version some of these laws would have applied to the whole UK.  It’s now specified explicitly that customs duties charged for goods entering Northern Ireland are kept by the UK, not given to the EU.

The Protocol also retains provisions on the UK internal market, as well as lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, a single electricity market, and State aids. However, an Annex on agriculture and the environment has been dropped, and the VAT provisions have been amended to clarify that the UK keeps the revenue, can reduce VAT rates for Northern Ireland, and to give the Joint Committee powers to amend these rules. The vague reference to other North/South cooperation is retained.

The institutional provisions of the Protocol are retained, including the proviso that EU bodies, including the CJEU, have competence to apply or interpret the provisions of the Protocol that are specific to Northern Ireland.  Finally, a new provision on ‘consent’ specifies that the Northern Ireland Assembly can, under certain conditions, terminate the customs and other economic provisions of the Protocol. There’s also a unilateral UK declaration related to this. (The absence of a power to end the previous backstop unilaterally had been controversial).

Protocol on UK bases in Cyprus

This Protocol confirms that the bases in Cyprus remain within EU customs territory after Brexit, and EU regulations on goods, including agricultural and fisheries laws, still apply. EU law on excise taxes and VAT also continues to apply. Goods supplied to the staff on the bases are exempt from customs and taxes, and the UK and Cyprus may agree further rules on social security coordination. There are rules on checks at the border of the bases area, and a general obligation to cooperate to prevent fraud. Finally, the EU institutions, including the CJEU, have competence to apply and interpret EU law referred to in the Protocol.

Protocol on Gibraltar

First of all, this Protocol provides for the UK and Spain to cooperate on workers’ rights as regards the Spain/Gibraltar crossing. Next, it retains the status quo on access to aviation, unless the Joint Committee decides differently. It also contains general provisions on cooperation on tax and fraud, environmental protection and fishing, and police cooperation.

Assessment

The only changes in the revised withdrawal agreement as compared to the previous version relate to the ‘backstop’ (I’ll come back to changes to the political declaration in a further blog post). These changes replace the UK/EU customs union, with associated ‘level playing field’ rules on tax, the environment and labour law, which was theoretically temporary, with permanent provisions which relate to Northern Ireland only, moreover dropping the bulk of ‘level playing field’ rules. This entails new provisions on trade between Great Britain and Northern Ireland, as well as on the related Northern Ireland political process.

While the potential continued application of some EU laws to the UK as a whole has been dropped, most of the EU laws that would have continued to apply specifically to Northern Ireland have been retained, and the agreement now regulates aspects of internal trade and the internal political process. In short, the quid pro quo for limiting the ongoing relationship between the UK as a whole with the EU as compared to the previous withdrawal agreement is retaining, and even strengthening, the ongoing relationship between Northern Ireland and the EU.

The absence of a UK-wide backstop means that the end of the transition period will create a new ‘no deal’ cliff edge for the UK/EU relationship as regards trade – as there would no longer be a guarantee that the backstop provisions on trade in goods would apply in the event of any failure to agree a new broad trade relationship.  ‘Level playing field’ rules will not kick in either in this scenario. It’s therefore possible that the whole drama of a potential no deal outcome will simply be replayed at some point in the near future (except as regards Northern Ireland – unless the Assembly there wants to terminate the key provisions of the relevant Protocol, probably at a separate date).

The greater divergence from the UK and the EU provided for in this revised agreement also therefore has a cost of a potentially larger drop in reciprocal market access at the end of the transition period, which would be accompanied by a greater possibility for the UK to deregulate as regards tax, labour and environmental standards.

Those MPs who opposed the previous withdrawal agreement formed part of different groups, who opposed that agreement for various conflicting reasons: to obtain a ‘harder’ Brexit (fewer ties to the EU, more capacity to deregulate); a ‘softer’ Brexit (stronger ties to the EU, less capacity to deregulate); and to increase the chances of preventing Brexit completely. These three aims were necessarily in conflict: only one of the three groups could achieve its intended objective, and the other two groups would have gambled and lost, putting themselves further away than before from their ideal outcome.  As things stand, if the revised withdrawal agreement is approved, it’s the hard Brexiters who won their gamble, and the soft Brexiters and Remainers who made a serious tactical mistake.   

Barnard & Peers: chapter 27

Photo credit: Sky News

The CJEU rules on consent to cookies under data protection law

Lorna Woods, Professor of Internet Law, University of Essex

Last week’s CJEU ruling in Planet49 is an important Grand Chamber decision concerning the use of cookies and the meaning of consent under the e-Privacy Directive in the light of the Data Protection Directive but also the General Data Protection Regulation (Regulation 2016/679)(GDPR). The judgment is therefore relevant for understanding the cookie obligations in the new regime as well as the old.

Judgment

The case concerned an online lottery. To participate, users had to enter their name and address and were shown two checkboxes in relation to consent for data processing before they could participate in the lottery.  The first consent pertained to users being contacted by third parties for promotional offers. The second consent pertained to cookies being dropped on users’ browsers in connection with participation in the online lottery. While Planet49 sought consent for the third-party promotional offers through the use of an unticked box, box for the use of cookies was pre-ticked.  Two questions were referred: whether the use of pre-ticked boxes gave consent; and what information needed to be supplied to provide clear and comprehensive information to the user.

The e-Privacy Directive provides that users must consent to the use of cookies, and the meaning of consent has the same meaning as in the Data Protection Directive (Recital 17 and Article 2f e-Privacy Directive) and now the GDPR.  The Data Protection Directive required an ‘indication’ of the user’s consent which, as the Advocate General pointed out ([AG60], cited by the Court [para 52]) requires the user to do something active to signal consent rather than remain passive. Further, only active behaviour can satisfy the requirement that consent must be unambiguous [para 54].

The Court also referred to the ‘legislative origins’ of the cookie provision (Article 5(3) e-Privacy Directive), noting that before the provision’s amendment in 2009, the provision gave the user the right to refuse cookies [para 56]. The Court concluded that consent was not valid if pre-ticked boxes were used.  If that was the case under the Data Protection Directive, it remained so under the GDPR, given that its definition of consent is more stringent than that under the Data Protection Directive.  The Court noted that:

according to recital 32 [GDPR], giving consent could include ticking a box when visiting an internet website. On the other hand, that recital expressly precludes ‘silence, pre-ticked boxes or inactivity’ from constituting consent [para 62].

The Court noted that the referring court did not asked the question as to whether making consent to such processing a precondition for participation in the lottery satisfied the requirement for consent to be ‘freely given’ and therefore the ECJ did not answer that question.

Given that the e-Privacy Directive is not just about personal data, the referring court asked if the meaning of consent was the same should data other than personal data be in issue. While it was accepted that the data in issue constituted personal data, in line with the approach of the Advocate General and relying on Recital 24 of the e-Privacy Directive, the Court commented:

that Article 5(3) of Directive 2002/58 refers to ‘the storing of information’ and ‘the gaining of access to information already stored’, without characterising that information or specifying that it must be personal data [para 68].

In response to the questions of the referring court as to the nature of the information the use must be given as to the duration of the use of cookies and whether or not third parties may have access to those cookies, the Court referred to the general obligation that the use be given ‘clear and comprehensive information’ [para 73].  The Data Protection Directive and now the GDPR list certain information that must be given; this does not include duration. The Court noted that these lists were not exhaustive and that a long duration of operation for cookies would mean that a lot of data would be collected. In support of the argument that information on duration should be given the Court noted that the GDPR requires the controller to provide information about how long personal data will be stored.

Comment

The ruling will have significant implications for those who obtain data relying on cookies, as the Court has confirmed that ‘active consent’ is required. While this is clear on the face of the GDPR it was less so under the Data Protection Directive. Given that the Data Protection Directive has already been repealed and the GDPR is now in force the consequences – save for those already legally embroiled on this point – might be thought to be limited.  Nonetheless, this is a clear affirmation of the fact that the GDPR definition of consent applies in the e-Privacy Directive.

Given that the Court interpreted the meaning of consent through the lens of the GDPR as well as the Data Protection Directive, it is also the first ruling on consent under the GDPR.  Further, the ruling might be seen as part of a more general push-back against ‘surveillance capitalism’ techniques constituted by a number of investigations currently ongoing in various Member States (and note the recent guidance from the ICO on use of cookies). 

As an aside, it is also worth noting the broader scope of the e-Privacy Directive: it is not limited to personal data but the ‘private sphere of individuals’, that private sphere encompassing users’ ‘terminal equipment’. This means that national rules should not be less strict if no personal data is in issue.  The Court reminds us also that the protection in the e-Privacy Directive is not limited to to cookies but to ‘hidden identifiers and other similar devices’ [para 70].  Presumably then these techniques also require active consent.  Of course, this ruling relates to the e-Privacy Directive; it remains to be seen what the position will be should the proposed ePrivacy Regulation ever be agreed. 

The final point to note is the issue surrounding ‘freely given’. The German court did not raise the question of whether requiring consent as a pre-condition for accessing the service would be permissible and the Court did not answer it of its own volition. This presumably will come before the Court another day.

Photo credit: pcmag

Facebook’s liability for defamatory posts: the CJEU interprets the e-commerce Directive

Lorna Woods, Professor of Internet Law, University of Essex

The last couple of weeks have seen a number of judgments relating to the control of information on the internet by the subject of the information.  The cases of GC et al (Case C-136/17) and Google v CNIL (Case C-507/17) concern the interpretation of General Data Protection Regulation (GDPR), looking at the obligations of search engines. The most recent case, Glawischnig-Piesczek v Facebook (Case C-18/18) concerned the impact of the e-Commerce Directive (Directive 2000/31/EC), specifically the prohibition on general monitoring found in Article 15 of that Directive, on ‘stay down’ notices. The focus of this post is on Glawischnig-Piesczek, but there is a question that reaches beyond the impact of that case on the e-Commerce Direcitve: to what extent is there a coherent approach to issues arising from the Internet across the various legal measures that intersect with it. This may go beyond the e-Commerce Directive and the GDPR to include measures related to intellectual property (notably the recent controversial Directive on Copyright in the Digital Single Market (Directive 2019/790/EU) and the Enforcement Directive (Directive 2004/48/EC)) and the combating of child exploitation (Directive on combatting the sexual abuse and sexual exploitation of children and child pornography (Directive 2011/93/EU)) and terrorism (Terrorism Directive (Directive 2017/541/EU)).

The Judgment

The facts giving rise to this reference are simple.  Glawischnig-Piesczek complained to Facebook about some defamatory posts. Facebook did not remove the posts so Glawischnig-Piesczek obtained a court order requiring Facebook to stop publishing the impugned content. The precise scope of the order gave rise to further litigation and the Austrian Supreme Court referred a number of questions to the CJEU, asking:

-          Are “stay down” notices in relation to identically worded content compatible with Article 15 of the e-commerce Directive?

-          Are there geographic limitations to the obligation?

-          Are such notices in relation to content with equivalent content to that which has been found unacceptable which does not use the same words but conveys the same meaning acceptable?

-          In relation to posts with equivalent meaning, does the obligation accrue when the intermediary becomes aware of the content?

The Court started its analysis by making clear that the immunity from suit granted by Article 14 of the Directive is not a general immunity from every legal obligation. Specifically the national authorities remain competent to require a host to terminate access to or remove illegal information. The Court also noted that Article 18 of the e-Commerce Directive requires Member States to have in place appropriate court actions to deal with illegal content. It states:

Member States shall ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.

The Court held that no limitation on the scope of such national measures can be inferred from the text of the e-Commerce Directive [para 30]. 

It then turned to the impact of Article 15. It highlighted the fact that while Article 15 prohibited general monitoring as recital 47 in the preamble of the Directive makes clear, monitoring ‘in a specific case’ does not fall within that prohibition. It then held that

[s]uch a specific case may, in particular, be found, as in the main proceedings, in a particular piece of information stored by the host provider concerned at the request of a certain user of its social network ….. [35].

Given the nature of information flows there is a risk that any such information may be re-posted, so

‘.. in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31 [37].

The Court determined “equivalent meaning” to be about the message the information posted conveys and which was “essentially unchanged”. Given the focus on meaning not form, the Court held that an injunction could extend to non-identical posts as otherwise the effects of an injunction could easily be circumvented.  The Court then considered the balance between the competing interests. The Court commented that the “equivalent information” identified by court order should contain specific elements to identify the offending content and in particular must not require the host to carry out its own independent assessment. In terms of assessing the burden on the host, the court noted that the host would have recourse to “automated search tools and technologies” [para 46].

The court concluded that the injunctions would not constitute a general obligation to monitor all content and specifically no obligation to seek facts or circumstances indicating illegal activity.

The Court also noted that Article 18 of the Directive makes no provision for territorial limitations on what measures Member States may make available. In principle, world-wide effects would be permissible [para 50], but this is subject to the proviso that EU rules must be consistent with the international law framework.

The court felt it unnecessary to respond to the third question without elaborating further.

Comment

There are a number of comments that could be made about this judgment. This post comments on three: the approach of the Court to general monitoring; non-identical content; and the issue of territorial scope. It also discusses freedom of expression issues.

General Monitoring

In this judgment there is a clear confirmation that searching for specific pieces of information/types of content does not constitute general monitoring. The Court makes it clear, at para 35, that the searching for individual pieces of content constitutes a ‘specific case’ within recital 47.  The Court gives the searching for specific information as an example of a ‘specific case’; presumably the searching of a targeted user’s stored date could be another such.  This is the first time the approach has been adopted in regards to defamation.  Perhaps the fact that the case concerns defamation rather than, for example, intellectual property explains the dearth of previous case law cited in the court’s judgment.

The statement of the Court that searching for an individual item of content does not constitute general monitoring does not address the fact that such a search would presumably involve search all content held. Yet in McFadden (Case C-484/14), the Court described the scope of Article 15 thus:

As regards, first, monitoring all of the information transmitted, such a measure must be excluded from the outset as contrary to Article 15(1) of Directive 2000/31, which excludes the imposition of a general obligation on, inter alia, communication network access providers to monitor the information that they transmit. [McFadden, 87]

This is broadly similar to the approach in the early case of L’Oreal (Case C-324/09) which referred to Article 15 precluding ‘an active monitoring of all the data of each of its customers in order to prevent any future infringement ...’ [para 139].  The prevention of future infringements in the context of L’Oreal could be achieved – in the view of the Court – however by the suspension of the perpetrator.  Yet monitoring of the data of all customers seems to be what would be required to find the specific case of content. The matter remains unacknowledged in the Court’s analysis in Glawischnig-Piesczek.  Perhaps the assumption is (a) that the concern underpinning the prohibition in Article 15 derives from privacy; and (b) that when we look for one thing we do not really see the other things that we look at during our search – and that this might particularly be so when the searching is automated.  Of course, arguments that automated review of communications data does not constituted an invasion of privacy have not been accepted by the Court (e.g. Watson/Tele2).  In any event, further support for the distinction between searching for an identified piece of content and searching in a less targeted fashion is found in the context of the fight against child sexual abuse and exploitation and in the context of enforcement of intellectual property.

Non-identical content

The clarification that an injunction may also extend to non-identical content raises a number of issues.  While the Court states that a host should not be required to make its own judgment on these matters it is not clear how similar the content needs to be.  It is also unclear whether the Court is concerned here with the wording or the message conveyed. At [40] it refers to the ‘message conveyed’, which could refer to the idea in issue rather than its precise expression. The Court then referred to ‘information, the content of which, whilst essentially conveying the same message, is worded slightly differently …’ [41]. An approach based on wording (or presumably identifiable items of content such as images) has the benefit of being more easily described by order. It is probably easier to circumvent.  There seems to be an assumption in the judgment that technological means are available to implement this sort of requirement, though whether that is the case is another question.

Territorial Scope

The territorial scope of the order is also worth mentioning.  Like its Advocate General, Szpunar, the Court does not envisage any territorial limitation of the removal/blocking as a result of EU law.  It is important to note that the Court does not say that injunctions must have such extraterritorial effect. Rather the question is about the interplay between each national legal system’s own way of dealing with these issues (and area the Court noted gave Member States wide discretion) and the fact that Article 18 is silent as to any limitations. The silence of EU law allows Member States freedom to take action.  A further issue is that the Court noted the impact of international law without however elaborating what it meant – are we talking fundamental human rights (this seems unlikely given the existence of the EU Charter) or international comity, for example?. 

This is one of a number of cases in which the Court has had to consider the territorial scope of EU law in the context of the Internet – the most recent being the Right to be Forgotten case: Google v CNIL (Case C-507/17). There the Court held that

Where a search engine operator grants a request for de-referencing …, that operator is not required to carry out that de-referencing on all version of its search engine, but on the version of that search engine corresponding to all the Member States. [73]

It seems then that the opposite conclusion has been reached. This is overstating the point.  While the fact that EU law does not require extraterritoriality, the GDPR’s silence on the point gives space to a national court to make an order with extra-territorial effect, a point the Court makes express in para 72. A national could then, within the constraints of its own national rules, make such an order. In such a situation the position would seem similar to that under Article 18 e-Commerce Directive as understood in Glawischnig-Piesczek. A contrast to the silence of the EU legislature on extraterritoriality of blocking/de-listing can be seen in the Terrorism Directive. There Article 21 imposes an obligation on Member States to obtain the removal of terrorist content hosted outside their territory, but it also recognises that that may not be possible.

In Google v CNIL, while the Court recognised the possibility for national courts to make orders for de-referencing with extra-territorial effect, it expressly noted that in doing so they must weigh up the competing interests of the data subjects  and the right of others to freedom of information [para 72]. It is noticeable that in Glawischnig-Piesczek the balancing is different. The Court notes the interest of the subject of the information and also the need not to impose an excessive burden on the host provider [para 45, para 46]. The existence of other rights: the right of the host to carry on a business and the rights of those posting the material and those wishing to receive it – both aspects of freedom of expression - are not expressly mentioned. To some extent the issue of rights will be covered through the national courts, which will be the bodies to carry out that balancing within their own national frameworks and within the limits of EU law. By contrast to Google v CNIL, however, there is no instruction from the Court that these are matters to be considered, nor any express recognition that the balance between the right to private life (including the protection of reputation) and freedom of expression differs between territories. What might be seen as the legitimate protection of private life in one place is an infringement of speech in another.  So, while the matter was not directly the Court’s concern in this case, it is somewhat surprising that the issues were not directly considered.

Barnard & Peers: chapter 9

Photo credit: Department of Defense, via Wikicommons

Accessing the EU’s Financial Services Market in the Event of a No-deal Brexit

Bartlomiej Kulpa, LLM (Twitter: @KulpaBart)

Introduction

Since Boris Johnson took the helm as British Prime Minister, a no-deal Brexit has become the most likely scenario. The UK-based financial services firms are waiting to hear if they will be able to serve clients in the EU 27, and if so, on what basis. Currently, the UK-based financial services firms rely on the so-called passporting rights. According to The Economist, 5,476 financial services firms based in Britain used 336,421 European passports to sell their products in the EU in 2016. By comparison, approximately 8,000 financial services firms based in the EEA used 23,535 European passports to sell their products in the UK. This proves that the removal of passporting rights as well as uncertainty over what will replace them amount to an existential threat.

The Concept of a European Passport             

A European passport is a right granted under the Single Financial Market Directives, such as MiFID II (The Markets in Financial Instruments Directive 2014/65/EU), to an EEA institution licenced in an EEA Member State. The European passport enables financial services firms to act on a cross-border basis within the EEA. If Britain leaves the EU without a Brexit deal, the UK-based financial services firms will lose the passporting rights and consequently full access to the single market. In other words, they will be treated as third country financial services firms.  

   

Articles 34 and 35 of MiFID II form the legal basis for the passporting rights. Article 34 provides for freedom to provide investment services and activities in another Member State if such investment services and activities are authorised by the competent authorities of a home Member State. As regards Article 35, that allows financial services firms to provide services in another Member State through the right of establishment of a branch provided that such services are authorised by the competent authorities of the home Member State. Pursuant to Articles 34 and 35, a financial services firm must notify the competent authorities of the home Member State of its intention to provide services in another Member State. In other words, the financial services firm must apply for a licence. Subsequently, the competent authorities of the home Member State inform the competent authorities of a host Member State of the financial services firm’s intention to serve clients in the latter.    

  

There is no doubt that the advantages of the concept of a European passport easily outweigh the disadvantages. Firstly, one licence enables financial services firms to obtain access to 31 countries which have a population of over 500 million consumers (this will be reduced after a Brexit). From a legal point of view, this means that a financial services firm that has been granted a European passport is not required to obtain a domestic licence in every Member State. Secondly, the concept of a European passport helps to keep business costs down. Thirdly, the concept of a European passport is free from political influence. Fourthly, the range of clients and investors is not limited in scope. In other words, the concept of a European passport does not only apply to professional investors but also to retail investors. Lastly, a home Member State regulator cannot revoke the European passport and the European passport is granted for a period of time with no fixed limit.

Further, it should be noted that the concept of a European passport does not have the qualities to be described as a single European passport. If it qualified as the single European passport, then financial services firms would be allowed to undertake cross-border activities throughout the EEA without taking any further actions. A good example of a single administrative act with EEA-wide effect is a European trademark granted by the European Union Intellectual Property Office (EUIPO).

The Equivalence Regimes       

The EU has operated the equivalence regimes (also known as the third country regime or TCR) in relation to financial services firms based outside of the single market under the relevant Single Financial Market Directives and Regulations, the USA being the prime example, for some years. In accordance with Articles 46-49 of MiFIR (The Markets in Financial Instruments Regulation (EU) No 600/2014), the equivalence regime is based on an equivalence decision made by the European Commission (EC) and the register of third country financial services firms kept by the European Securities and Markets Authority (ESMA). As regards the former, the EC’s equivalence decision states whether, firstly, the prudential and business conduct requirements that are legally binding in a third country have equivalent effect under EU law and whether, secondly, the legal and supervisory arrangements of the third country ensure that financial services firms authorised by the competent authorities of that third country comply with the legally binding prudential and business conduct requirements. Once the EC has made the equivalence decision in favour of a particular third country, financial services firms based in that third country need to register, within a transitional period of three years under Article 54 of MiFIR, with the ESMA. As a result, third country financial services firms are able to operate as a European hub. It should be noted that Member States shall not impose any additional requirements on such firms and shall not treat them more favourably than firms based in the EU.       

Moreover, it should be emphasised that the equivalence regime enables third country financial services firms to provide investment services and activities only to eligible counterparties and professional clients. This means that, unlike the concept of a European passport, the equivalence regime does not apply to retail clients. What is more, the EC can revoke an equivalence decision at any time if divergences between a regulatory framework of a third country and the regulatory framework of the EU appear.

One could argue that in the event of a no-deal Brexit the equivalence regime would be more attractive for smaller financial services firms. As practice proves, multinational financial services behemoths, which have used Britain as the gateway to the single market, have already relocated to the EU 27 or are in the process of setting up offices there as part of their Brexit strategy.

As far as the resolution of disputes is concerned, third country financial services firms shall, before providing any services or activities to the EU-based clients, offer to submit any disputes relating to the aforementioned services or activities to the jurisdiction of a court or arbitral tribunal in one of the Member States (Article 46(6) of MiFIR). In other words, such firms shall offer a forum in the EU where their right to conduct litigation could be exercised. If Britain were to access the single market via the equivalence regime in the event of a no-deal Brexit, then the English courts would not have any jurisdiction over disputes relating to such services or activities. In practice, this would result in London facing a struggle to retain its position as a global centre for securities litigation.         

Although the equivalence regime would allow the UK-based financial services firms to access, in the event of a no-deal Brexit, the single market, the equivalence regime suffers from a few drawbacks. Firstly, the equivalence regime is a unilateral mechanism. To put it simply, it only depends on the EU whether it recognises as equivalent the regulatory standards of a third country. Secondly, since an equivalence decision is made by a political body, namely the EC, various political factors can impact the equivalence assessment. Thirdly, the EC’s equivalence decision cannot be reviewed by a court.

        

The European Passport Light

The next issue that merits attention is the so-called ‘European passport light’ as set out in Article 47(3) of MiFIR. A third country financial services firm can rely on the European passport light if the following conditions have been met: (i) the EC has made an equivalence decision in favour of a particular third country; and (ii) the third country financial services firm has been granted the authorisation to establish a branch in one of the Member States pursuant to Article 39 of MiFID II. As a result, the third country financial services firm will be able to provide services and activities to eligible counterparties and professional clients in other Member States without the requirement to establish a new branch for each additional Member State. In the same way as the equivalence regime, the European passport light does not apply to retail clients. However, unlike the equivalence regime, the European passport light is not based on the requirement to register with the ESMA.         

  

The MiFID II Own Initiative Principle

Article 42 of MiFID II creates an exception to a Member State’s imposition of an authorisation requirement, which is enshrined in Article 39 of MiFID II, for a third country financial services firm where that firm provides investment services or activities at the exclusive initiative of a retail or professional client. The MiFID II Own Initiative Principle is coterminous with the reverse solicitation test. Compared to the equivalence regime, the MiFID II Own Initiative Principle applies to retail as well as professional clients. However, from a practical point of view, the MiFID II Own Initiative Principle does not seem to be useful for big financial services firms that intend to actively gain a market share. Furthermore, any marketing to EU-based clients triggers the EU rules for providing financial services and consequently the need for obtaining an EU licence.    

  

Conclusion

It seems that the equivalence regime is the only workable arrangement that could replace the concept of a European passport in the event of a no-deal Brexit. Unless the UK government creates ‘Singapore upon Thames’, the process of making a decision whether post-Brexit Britain’s regulatory regime is deemed to be equivalent should be relatively straightforward. However, one should remember that the equivalence regime does not apply to retail clients and the EC can revoke an equivalence decision at any time. Therefore, the equivalence regime would not fill the gaps created after the cessation of the application of a European passport to the UK-based financial services firms.

Further reading:

M Lehmann and D A Zetzsche, Brexit and the Consequences for Commercial and Financial Relations between the EU and the UK, 20 September 2016. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2841333;

H Nemeczek and S Pitz, The Impact of Brexit on Cross-Border Business of UK Credit Institutions and Investment Firms with German Clients, 1 February 2017. Available at: https://ssrn.com/abstract=2948944;

The Economist, London’s reign as the world’s capital of capital is at risk, 29 June 2019. Available at: https://www.economist.com/finance-and-economics/2019/06/29/londons-reign-as-the-worlds-capital-of-capital-is-at-risk.              

Barnard & Peers: chapter 14, chapter 27

Photo credit: via Wikicommons, photo taken by Andy F

The Justices of the UK Supreme Court: The Enemies of Anti-democratic Demagogues

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The Cherry/Miller case ([2019] UKSC 41) reached its zenith on Tuesday morning, with a most newsworthy outcome; a unanimous decision that Prime Minister Johnson's Prorogation of Parliament was unlawful, thus a legal nullity and of no legal effect (at para. 69 of the judgment). The UK Parliament, having been put illegally to sleep, awoke on Wednesday morning with collective amnesia, and emerged refreshed from a dreich shower like Bobby Ewing, to get back to work and to normality.

The timing of the judgment couldn’t have been more fortuitous for purveyors of constitutional law idioms, anecdotes and folklore - thousands of law freshers at dozens of university law schools across the four nations of the UK will be treated to a plethora of twitter feeds, bad puns and embarrassing GIFs of politicians by law lecturers trying to make sense of it all, all of them feeling a bit smug and secretly delighted that constitutional law is at last hip, happening and dare say, even sexy.

As I have discussed previously, (here, here and here) the Scottish courts and the English High Court received applications from aggrieved members of the public, legal experts and politicians, extremely worried about Prime Minister Johnson's received wisdom to prorogue Parliament for 5 weeks through September and October 2019, at a time of immense constitutional upheaval and crisis, given the impending deadline of Halloween and the horror of a No-Deal Brexit. At first instance in Scotland, the petitioners in Cherry lost, Lord Doherty in the Outer House of the Court of Session deferring to the Prime Minister and the UK government's lawyer in Scotland view that the matter of prorogation was a matter of high politics, not law and thus beyond the purview of the courts. Similar sentiments furth of the Forth, led the English High Court, unanimously, to hold that Gina Miller's Judicial Review application was also asking an impertinent, essentially non-justiciable question.

Legal orthodoxy seemed to point to these claims being closed down on this well-established maxim of non-justiciability. Case(s) closed.

On appeal in Scotland to the Inner House of the Court of Session, the triumvirate of Lord Carloway, Brodie and Drummond-Young, (now colloquially known in legal circles as the Inner House 3) unanimously overturned the opinion of Lord Doherty in the lower Outer House. The egregious nature of the Prime Minister's decision meant that the matter was justiciable. It was a legal question: The questioning of an improper use of the royal prerogative.

The Supreme Court has largely vindicated the view of the Inner House 3, albeit with some differences of opinion (see Professor Mark Elliot's blog here). The Supreme Court, in a very rare show of absolute solidarity, made all the more amazing by the fact that the decision was made by an 11-strong bench, decided unanimously that the Prime Minister had acted unlawfully in advising the monarch to prorogue Parliament.

It is fair to say that the judgment, like Brexit itself (although the case is only indirectly concerned with Brexit), has divided the legal community, the general population and the politicians. It has polarised opinion like no other case before it.

At any level, the judgment is a remarkable one. However, its remarkableness is difficult to define and pin down, however the main reasons the opinion is remarkable are as follows.

First, as mentioned already, the judgment was a unanimous decision by 11 of the most eminent justices this country has produced. In the only other 11-strong bench case, the related case of Miller 1 ([2017] UKSC 5), the best the judges could agree on was an 8-3 split, with the dissenters even divided on their reasons for dissenting. In the Torture Evidence case (A (FC) v Secretary of State for the Home Department ([2005] UKHL 71), a seven strong bench of the House of Lords came close to being unanimous on all aspects of that case. The ability of Lady Hale to get another 10 strong willed, independent jurists to coalesce around a particular view of the facts and of the law is indeed remarkable.

Second, the judgment is a document of elegance, clarity and brevity, with a distinctly narrative feel. For such a constitutionally significant case, the text is remarkably light in size and in deployment of weighty legal justifications. The judgment is only 24 pages long and constitutional law academics, if marking this legal script, would berate the authors for only using the bare bones of the vast corpus of judicial precedent that was available. The Inner House 3 and the advocates before that house (and when in the Supreme Court), conversely, drew on a vast well of legal authorities to justify their stance. That judgment extended to 68 pages and was replete with judicial and historical precedents. The Supreme Court was content to produce a narrative judgment, drawing on grand constitutional principles and expectations.

The question beget by this brief, elegant and decidedly law-free judgment is why is it structured so?

The answers are not hard to discern and determinedly lie in the political sphere.

The Supreme Court, almost contemporaneously with the Cherry/Miller case, will celebrate its 10th anniversary in the next few weeks. It began life on the 1st of October 2009. It is fitting that the Supreme Court made such a historic judgment on the eve of its 10 year anniversary, for the judgment is a fine example of the court flexing its constitutional muscles. The Supreme Court is transforming itself into a Constitutional Court and with the Cherry/Miller case, the court has burnished its constitutional court credentials.

A defining feature of any constitutional court is that it decides decidedly political cases that deal with high politics and the inner workings of the constitution of that state. To that extent, the Supreme Court of the United Kingdom, absolutely performed a constitutional court function on Tuesday morning.

The judgment had to have the look and feel that it did for a number of important political reasons.

The judgment had to be unanimous because in this febrile environment, any dissent in the Supreme Court would be seized upon by Brexiteers and detractors that the decision was legally uncertain, incorrect and the will of arch Remainers. Thus, the justices were determined to present a united front that sent a powerful message that the highest members of the judiciary were at one on this matter, irrespective of their political views, of their particular areas of legal expertise and their longevity on the highest court of the land. The judges chose to put forward a coherent, decisive legal view to try and provide legal certainty for the whole country.

Further, these two cases that were sent to the Supreme Court posed an existential threat to the United Kingdom. The Scottish Court had unanimously held that the matter was justiciable and that on forensic investigation, the Prime Minister had acted unlawfully. Diametrically opposed to that, the English High Court refused to adjudicate on the matter, citing classic cases on non-justiciability. Scotland overwhelmingly voted to Remain in the 2016 referendum and England narrowly voted to Leave. These facts would have played heavily on the minds of the 11 justices. To simply dismiss the Inner House unanimous decision, expressly overrule that decision and affirm the English High Court view would be to imperil the unity of the United Kingdom. In such a situation, Scottish politicians, jurists and the general Scots populace writ large would arguably be more empowered and more likely to question their place in the United Kingdom. Remarkably, the Supreme Court drew heavily on the original view of the Inner House 3, simply stating that the advice of Boris Johnson to the Queen to prorogue Parliament…' was unlawful, null and of no effect and should be quashed.' (para. 69 of the judgment). Implicitly, the UK Supreme Court was simply endorsing the view of the Inner House and adopting the extensive legal declaratory power and jurisdiction of the Supreme Court of Scotland. The judgment, in so doing, managed to cleverly bring the UK jurisdictions closer together, neatly avoiding legally complex and technical questions on the nature of remedies north and south of the border.

The narrative nature of the judgment was also remarkable but entirely reasonable given the unique background to the case. The three day legal hearing from last week was eagerly watched by people across the globe and the judgment has been downloaded thousands of times and it made global news headlines. It was obvious that people were immensely interested in the case, and as such the justices would have been keen to make the law as accessible as possible, and the most obvious way to do so would be to demystify the law and use everyday, ordinary language. Alongside this imperative, the immense pressure to resolve the case quickly meant that the justices were under great time constraints, resulting in a pared down judgment that merely discussed the nub of the arguments. Further, the fact that the judgment would be desired to be read way beyond Westminster, Whitehall and the Windsor family, necessitated the rejection of excessive legalese and obscure references to historical events and laws.  The judgment is a masterful, accessible constitutional lecture on the grand overarching themes, laws, rules and conventions that constitute the living UK constitution.

The judgment has its detractors from all sides. It is too simplistic. It is too political. It is too lite on the law. It is too glib. It is interfering in politics. All of these criticisms can be legitimately levelled at the judgment. The strongest criticism is that of interference in politics. However, the judgment can be defended exactly on that basis. Parliamentary sovereignty was placed at the apex of the judgment. Alongside parliamentary sovereignty, the court was concerned to place parliamentary accountability at its side, an equal partner in the UK constitutional framework. In so doing, the court thus justified its interference in questions of politics. The current political impasse has illustrated the ineffectiveness of the parliamentary accountability process in holding the Prime Minister and the wider executive to account. Therefore, for the court to simply defer to parliamentary accountability would be a dereliction of duty, particularly in a situation where it is clear that these political mechanisms, both currently and in the near future, would manifestly fail to produce a satisfactory resolution. The court was thereby forced to act to restore equilibrium to the tripartite separation of powers, the central tenet of the UK constitution. In so doing, the court also gave powerful effect to a central tenet of the Leave campaign from 2016: the Supreme Court of the UK took back control and gave Parliament back its sovereignty.

Barnard & Peers: chapter 27

Photo credit: Pamela Ewing

Private Schools and the Politicization of Treaty Obligations

Dr Kasey McCall-Smith, Senior Lecturer in Public International Law, University of Edinburgh

The 2019 Labour Party Annual Conference has received more than usual attention this year, notably its resolution to end private schools in the UK. Not for the first time this year, the fervour of politicians must be checked against the realities of the law, specifically international and human rights law. In March, Theresa May offered a unilateral statement to the EU on the UK interpretation of the then-Withdrawal Agreement Protocol on Ireland/Northern Ireland in relation to the backstop set out therein. A few days later, Geoffrey Cox MP incorrectly argued that article 62 of the Vienna Convention on the Law of Treaties (VCLT) offered an easy way out of the then-Withdrawal Agreement and the backstop. As exhausted with Brexit as every other academic at the time, I painstakingly set out why the UK government and Parliament would do well to stop relying on concepts in international treaty law to cure all that is disagreeable with the Brexit process.

The 22 September vote by the Labour Party to include in its manifesto a ‘commitment to integrate all private schools into the state sector’ equally demonstrates why politicians should proceed with caution when threatening rights protected by international agreements.

Whether for or against private education, there was very little tangible change from existing policy proposals to cut tax relief to the independent schools that educate approximately 6-7% of children in the UK. More notable are the questions raised by Labour’s approach to protected rights. This Labour party policy raises questions about the understanding of the limits of any UK government to restrict international human rights obligations to which it has long been bound and also incorporated into national law. One such example raised by this policy proposal is the right to education set out in article 2 of the first Protocol (P1) to the European Convention on Human Rights (ECHR).

In essence, the proposed measure eliminates the option to send children to fee-paying schools in the UK, an option that in some, though not all, cases enables parents to exercise ‘their own religious and philosophical convictions’ (P1 article 2). Clearly, it is a matter of debate whether such ‘convictions’ extend to private (cf. State-funded) education and whether eliminating private schools alone would constitute a breach of the right. Aside from removing decision-making capabilities from parents, the long-running debates about private versus public education or margin of appreciation debates, there are other legal questions to consider when parties politicize international legal obligations.

Can this or a future UK government nullify a single article of the first Protocol to the ECHR or multiple articles spanning the Convention? Continuing with the right to education example and assuming that the proposed policy is argued to breach that right, the following traces the relevant analysis under international law to determine if the UK can, effectively, change its mind about applying it treaty obligations.

The first step requires a determination of the status of the first Protocol to the ECHR once ratified and in force, which it has been for the UK since 1952. P1 article 5 dictates that ‘the provisions of Articles 1, 2, 3 and 4 … shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly.’ In short, the articles are amalgamated into the ECHR and carry the same weight as those in the original Convention. This is reinforced in the UK Human Rights Act 1998 s1(1) (notably excluding P1 article 4).

But could the UK government cease to observe an article of the ECHR or one of its Protocols? Because the first Protocol is integrated into the umbrella of the ECHR the rules of the original Convention are applicable. By asserting that the state will no longer apply a treaty provision in full, the permissibility of such an assertion must be examined. Under the VCLT treaty rules and customary international law, the only way to exclude a treaty obligation in part or in full is by reservation. However, under both ECHR article 57 and VCLT article 19, reservations may only be made when signing or ratifying a treaty. Therefore, reservations are not an option for the UK decades after ratifying the Convention. The only possible caveat being denunciation (more below) and re-ratification with a new reservation in line with that which was done by Trinidad and Tobago in relation to Optional Protocol 1 to the ICCPR. Still, this procedure is not currently recognized in ECHR practice or under customary treaty law and would no doubt set a dangerous precedent.

Some have also queried the possibility of ‘denouncing’ a single article. ECHR article 58 governs denunciation of the Convention but only gives guidance on denunciation of the Convention as a whole. It is silent on denunciation of an individual article. When a treaty is silent on issues of procedure, the default rules of the VCLT are used to fill any gaps. VCLT article 44 outlines a preference against the separability of individual treaty provisions by denunciation, withdrawal or suspension unless expressly provided for by the relevant treaty. Furthermore, article 44 must be read in conjunction with Articles 56 or 60 VCLT. Article 56 VCLT addresses denunciation when a treaty is silent on the issue – but the ECHR is not silent on this.  Article 60 VCLT deals with termination or suspension of a treaty as a consequence of its breach. The breach must be by another state, thus the UK cannot invoke article 60 if it breaches the ECHR. It is safe to say that denunciation of a single article or even multiple articles is not a possibility.

The only remaining option for abrogating an individual article would be derogation. ECHR article 15 clarifies that though some fundamental rights may never be subject to derogation, ‘[i]n time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation’. While the right to education, and indeed most rights, could be subject to derogation, it is difficult – if not logically impossible – to see how such a public emergency could justify a policy of prohibiting private education per se.

What the last few months have taught us is that politicians would do well to recognise the legal implications of their policy strategies and ambitions before straining too far into rhetoric. And for those wishing to insulate the UK against global interference, this is a timely reminder that regardless of any future status in the EU, the UK will continue to have international and regional obligations.

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