Thursday 13 June 2024

A Further Step to Gender-Sensitive EU Asylum Law: The Case of ‘Westernised Women’


 


Türkan Ertuna Lagrand, Assistant Professor, and Salvo Nicolosi, Senior Assistant Professor, University of Utrecht

Photo credit: Mystslav Chernov, via Wikimedia Commons

 

Gender-based asylum claims have been gaining momentum in EU law. On 11 June 2024, the Court of Justice of the European Union (CJEU) published its most recent judgment in the case of K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21) concerning the interpretation of ‘membership of a particular social group’ under Article 10 (1) (d) of the Qualification Directive with reference to ‘westernised women’ who, because of the identity and lifestyle they have acquired in the host country, namely the Netherlands, fear persecution if they were returned to the home country, namely Iraq. The judgment follows the ruling in WS (C‑621/21) in which the Court last 16 January 2024 recognised that women in a country as a whole may be regarded as belonging to ‘a particular social group’, leading, as analysed here, to the recognition of refugee status.

Following this thread, this post aims to shed some more light on the Court of Justice’s contribution to a more gender-sensitive reading of international refugee law. To this aim, drawing from the judgment in K, L, attention will be paid to the axiological dimension of the concept of ‘equality between women and men’ and its use by the Court for the purposes of constructing the ‘particular social group’ under EU asylum law. A short synopsis of the case will be first provided.

The Factual Background

The judgment is the landing point of a case originating from a reference made on 25 October 2021 by the Tribunal of the Hague. The main proceedings concerned two minor sisters (10 and 12 years old) who left Iraq in 2015 together with their parents who unsuccessfully applied for international protection in the Netherlands. In 2019, the applicants lodged subsequent claims for international protection, which were rejected as manifestly unfounded. On 28 December 2020, they appealed to the referring court in The Hague. At the time of the hearing before the referring court, the applicants had been continuously resident in the Netherlands for over five years and were both still minors. They argued that, due to their long stay in the Netherlands, they have adopted Western norms, values and actual conduct and, because of this, they fear persecution if they were returned to Iraq.

The referring court, therefore, asked the CJEU whether third country nationals who have lived in a Member State for a significant part of their life during which they developed their identity by adopting Western norms, values and actual conduct, may be considered members of a ‘particular social group’ within the meaning of Article 10 (1) (d) of the Qualification Directive, because (applying the definition of ‘particular social group’ in the Directive) they have ‘a common background that cannot be changed’ or characteristics that are ‘so fundamental to identity that a person should not be forced to renounce’ them. (The UN Refugee Convention, as applied in EU law by the EU Directive, defines a ‘refugee’ as someone outside their country of nationality or (if stateless) habitual residence, who is unable or unwilling to avail themself of the protection of that country owing to a well-founded fear of persecution on various grounds, including ‘particular social group’; but unlike the EU Directive, the Convention does not elaborate further on the meaning of the term).

In his Opinion, Advocate General Collins, first of all, rejected the application of the terms “Eastern” and “Western” in the context of moral codes and values as projecting a false dichotomy that constitutes part of a divisive dialogue. He underlined that ‘“the East” and “the West” are vast regions with a multitude of religious traditions, moral codes and values’ making terms such as “a Western lifestyle” or “Westernised women” ‘largely meaningless’. More importantly, by setting the centrality of ‘gender equality’ within EU law, the Advocate General provided a valuable background against which the Court could frame its ratio decidendi.

 

The axiological dimension of gender equality in the Court’s Judgment

In its reasoning, the CJEU reiterates the approach followed in the previous case of WS in which the Court declared the Istanbul Convention and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as being relevant treaties under Article 78 (1) TFEU according to which EU Asylum law, including the Qualification Directive, is to be interpreted. In pursuing such an approach, the Court provides a broad and rights-based interpretation of gender equality, explaining that, in light of Articles 1, 3 and 4 (2) of the Istanbul Convention as well as Articles 3, 5, 7, 10 and 16 of CEDAW, equality between women and men includes the right of every woman to be protected from all forms of gender-based violence, the right not to be forced to marry, to choose whether to adhere to a religion, to hold one’s own political views and to make one’s own life choices, especially in terms of education, career or activities in the public sphere.

While relying on these international law sources, the Court contributes to upholding the axiological dimension of gender equality, as ensuing from Articles 2 and 3 (3) TEU enshrining gender equality as one of the EU’s core values and fundamental objectives. In this connection, concurring with Advocate General Collins, it is worth mentioning that EU primary law contains a number of provisions that establish an obligation to mainstream equality and non-discrimination. This is the case of Article 8 or Article 10 TFEU, which, as clarified by the Court itself in VT (C-304/21, para. 34) set out obligations on the Union, not on the Member States. It is equally noteworthy that the Court clarified that the provisions of the Qualification Directive must be interpreted in a manner that is consistent with the EU Charter’s rights, including Article 21 (1) of the Charter, which prohibits any discrimination based on, inter alia, sex.

This axiological dimension of gender equality is especially significant because it constitutes an attempt to frame equality as a ‘central concern.’ In other words, by insisting on the value of gender equality, the Court was not only able to expand the interpretation of refugee law concepts, as will be explained below, but sent a clear message about gender mainstreaming, which has been very challenging to implement, as noted by Timmer.

 

Equality and the construction of the ‘particular social group’

Even if partly calibrating the emphasis permeating the Advocate General’s Opinion, the Court used this axiological framework to acknowledge that women, who have spent most of their lives in the Netherlands, will have been influenced by the value of gender equality. This value constitutes an indelible part of their identity and reflects core values, principles, and fundamental rights deeply rooted in the EU legal tradition.

Accordingly, the Court finds that the fact that a female third country national identifies herself with the fundamental value of equality between women and men can be regarded as ‘a characteristic or belief which is so fundamental to the identity or moral integrity of the concerned person that she should not be asked to renounce it’. According to the Court, the crystallisation of such a fundamental characteristic stems from the exposure to the fundamental value of equality between women and men during a phase of life in which a young woman forms her identity. What is striking is that such a fundamental characteristic is established, as in casu, outside of the country of origin and whilst the applicant was living in the host State, waiting for the asylum application to be processed. Essentially, the Court decides that the applicants are to be seen de facto as sur place refugees, because of their actions outside the country of origin, as clarified by the United Nations High Commissioner on Refugees (UNHCR).

The Court also takes a chance to clarify the relationship with other possible grounds for persecution, such as religion or political opinion. The fact these grounds could also connect with the personal affinity with the value of equality between women and men did not prevent the Court from affirming that these women could be regarded as belonging to a particular social group. As is known, this ground requires two cumulative conditions, namely the identification of a common essential characteristic and that those sharing such a characteristic are seen as “different” from the surrounding society (or part of it). According to the Court, the latter condition is satisfied by the specific circumstances in the country of origin. In this regard, by echoing the argument made in WS, the Court reiterates that ‘it is for the Member State concerned to determine which surrounding society is relevant when assessing whether such a social group exists.’ Nonetheless, even if much more engagement by the Court with issues related to cultural differences could be necessary, the Court seems to indicate that the value of equality between women and men constitutes the element through which the Member States have to assess the perception of the group in the surrounding society.

 

Waiting for the next episode…

This judgment represents another episode of a series of developments towards a more gender-sensitive EU asylum law. In WS the Court has already established that women in a country as a whole may be regarded as belonging to ‘a particular social group’,  thereby ending once and for all the discussion whether the size of the group may prevent such qualification.

In K, L, by recognising that refugee status may be granted to women who identify themselves in the value of equality between women and men, the Court makes a twofold contribution. First, the Court indirectly contributes to gender mainstreaming in EU law by upholding gender equality as a core value of the EU. Following up on the previous ruling in WS, the CJEU uses the Istanbul Convention and CEDAW as ‘relevant treaties’ in the meaning of Article 78 (1) TFEU, to interpret EU Asylum Law. This is an important step in preventing legal fragmentation in the protection of women against discrimination and violence and in creating a coherent framework across legal fields at the international and European levels.

Second, the Court’s ruling in K, L opens the way to the next episode in promoting a more gender-sensitive EU asylum law. A case in point concerns the pending joined cases in AH (C608/22) and FN (C609/22). The Court will decide whether the requirement for individual assessment may be relinquished for women fleeing the Taliban regime in Afghanistan, as proposed by Advocate General de la Tour in his Opinion, analysed here. Such a case is directly related to gender equality and the systematic discrimination against women. Therefore, the centrality and axiological dimension given to gender equality by the Court in  K, L will play a crucial role in future decisions. It is legitimate to expect that when the circumstances in the country of origin reach a point where gender equality is utterly demolished, as in the case of Afghanistan under Taliban rule, even the need for an individual assessment for the recognition of refugee status could be put aside.

 

Thursday 6 June 2024

EU Media Freedom Act: the convolutions of the new legislation

 



Samira Asmaa Allioui, research and tutorial fellow at the Centre d'études internationales et européennes de l'Université de Strasbourg

 

Photo credit: Bin im Garten, via Wikimedia Commons

 

Journalists are under pressure in different ways. Throughout the last few years, media freedom and especially media pluralism are in peril.

On December 15, 2023, the European Council and the European Parliament struck a deal on rules to safeguard media freedom, media pluralism and editorial independence in the European Union. The EU Media Freedom Act (EMFA) promised increased transparency about media ownership and safeguards against government surveillance and the use of spyware against journalists. The agreement comes after numerous revisions of the Audiovisual Media Services Directive (AMSD) and new regulations such as the Digital Market Act (DMA) and Digital Services Act (DSA). As a reminder, the EMFA builds on the DSA.

The aim of this contribution is to present an overview of the EMFA and specifically to analyse to what extent its rules still contribute to the limitation of freedom of speech, the erosion of trust, the breach of democratic processes, disinformation, and legal uncertainty.

The EMFA requires EU countries to respect editorial freedom, no spyware, no political interference, stable funding for public media, protection of online media and transparent state advertising.  It established a European watchdog: a new independent European Board for Media Services to fight interference from inside and outside the EU.

Nevertheless, this new EU legislation tries to set boundaries for the journalists’ actions through Article 18 EMFA on the protection of media content on very large online platforms (VLOPs), and the potential detrimental effects of introducing something akin to a media exemption. But the most significant ambiguity is addressed by Article 2 of the EMFA on the definition of ‘media service’ which appears to be the problem everyone acknowledges. This raises the question of who the EMFA is protecting. Are democracy and the possibility for people to get impartial and unbiased information really strengthened? Not forgetting that for the European Parliament elections, there is a potential danger of political interference by extra-European countries that will try to take advantage of democratic elections to influence the media illegally, by creating fake social media accounts and by launching a massive propaganda campaign to disseminate conflict-ridden content.

 

THE ACCURACY OF INFORMATION

The EMFA focuses on two main points regarding VLOPs. First, it asserts that platforms limit users’ access to reliable content when they apply their terms and conditions to media companies that practice editorial responsibility and create news conforming with journalistic standards. First, the Regulation takes aim at VLOPs’ gatekeeping power over access to media content. To do so, the EMFA aims to remould the relationship between media and platforms. Media service providers that exercise editorial responsibility for their content have a primary role in the dissemination of information and in the exercise of freedom of information online. In exercising this editorial responsibility, they are expected to intervene diligently and provide reliable information that complies with fundamental rights, in accordance with the regulatory or self-regulatory requirements to which they are subject in the Member States.

Secondly, it asserts that the quality of the media may fight against disinformation. To consider this problem, the EMFA’s objective is to adjust the connection between platforms and media. According to Article 2 EMFA, ‘media service’ means ‘a service as defined by Articles 56 and 57 [TFEU], where the principal purpose of the service or a dissociable section thereof consists in providing programmes or press publications, to the general public, under the editorial responsibility of a media service provider, by any means, in order to inform, entertain or educate’  A ‘media service’ has some protections under the Act.  According to Joan Barrata, the media definition under EMFA is an overly “limited” definition, which is not “aligned” with international and European human rights standards, and “discriminatory”, as it excludes “certain forms of media and journalistic activity”. The DSA classifies platforms or search engines that have more than 45 million users per month in the EU as VLOPs or Very Large Online Search Engines (VLOSEs). As an illustration, according to Article 18 EMFA, media service providers will be afforded special transparency and contestation rights on platforms. In addition to that, according to Article 19 EMFA, media service providers will have the opportunity to engage in a constructed dialogue with platforms on concepts such as disinformation. Under the agreement, VLOPs will have to inform media service providers that they plan to remove or restrict their content and give them 24 hours to answer (except in the event of a crisis as defined in the DSA).

Article 18 of the EMFA enforces a 24-hour content moderation exemption for media, effectively making platforms host content by force. By making platforms host content by force, this rule prevents large online platforms from deleting media content that violates community guidelines. Nevertheless, not only it could threaten marginalised groups, but it could also undermine equality of speech and fuel disinformation. This is a vicious circle between the speaker planting false information on social media, the media platform spreading the false speech thanks to amplifying algorithms or human-simulating bots, and the recipients who view the claims and spread them.

According to the EMFA provides that, before signing up to a social media platform, platforms must create a “special/privileged communication channel” to consider content restrictions with “media service providers”, defined as “a natural or legal person whose professional activity is to provide a media service and who has editorial responsibility for the choice of the content of the media service and determines the manner in which it is organised “. In other words, instead of being forced to host any content, online platforms should provide special privileged treatment to certain media outlets.

However, not only does this strategy impede platforms’ autonomy in enforcing their terms of use (nudity, disinformation, self-harm) but it also imperils the protection of marginalised groups who are frequently the main targets of disinformation and hate speech. Politics remains fertile ground for hate speech as well as disinformation. Online platforms and social media have played a key role in amplifying the spread of hate speech and disinformation. As proof, recent reports reveal the widespread abuse of these platforms by political parties and governments. Indeed, it turns out that more than 80 countries around the world have engaged in political disinformation campaigns.

This could also permit misleading information to remain online which allows sufficient time to see the information transmitted and disseminated, hindering one of the key objectives of EMFA - to give more reliable sources of information to citizens.


ABUSIVE REGULATORY INTERVENTION AND DETERIORATION OF TRUST

Primarily, one can only be concerned about any regulatory intervention by governments on issues such as freedom of expression or media freedom. Through their EU Treaty competencies in security and defence matters, EU Member States seem to be winning because their options to spy on reporters have been reaffirmed. However, according to the final text (April 11, 2024), the European Parliament added important guarantees to allow the use of spyware, which will only be possible on a case-by-case basis and subject to authorization from an investigating judicial authority as regards serious offenses punishable by a sufficiently long custodial sentence.

Furthermore, it must be emphasized that even in these cases the subjects will have the right to be informed after the surveillance and will be able to challenge it in court. It is also specified that the use of spyware against the media, journalists and their families is prohibited. In the same vein, the rules specify that journalists should not be prosecuted for having protected the confidentiality of their sources.

The law restricts possible exceptions to this for national security reasons which fall within the competence of member states or in cases of investigations into a closed list of crimes, such as murder, child abuse or terrorism. Only in such situations or cases of neglect, the law makes it very clear that this must be duly justified, on a case-by-case basis, in accordance with the Charter of Fundamental Rights, in circumstances where no other investigative tool would be adequate.

In this regard, the law therefore allows for new concrete guarantees at EU level in this regard. Any journalist concerned would have the right to seek effective judicial protection from an independent court in the Member State concerned. In addition to that, each Member State will have to designate an independent authority responsible for handling complaints from journalists concerning the use of spyware against them. These independent authorities provide, within three months of the request, an opinion on compliance with the provisions of the law on media freedom.

Some governments in Europe have tried to interfere in the work of journalists recently which is a blatant demonstration of how far politicians can go against media using national security as an excuse. To avoid an erosion of trust, media service providers must be totally transparent about their ownership structures. That is why, in its final version (April 2024), the EMFA enhances transparency of media ownership, responding to rising concerns in the EU about this issue. The EMFA broadens the scope of the requirements of transparency, providing for rules guaranteeing the transparency of media ownership and preventing conflicts of interest (Article 6) as well as the creation of a coordination mechanism between national regulators in order to respond to propaganda from hostile countries outside the EU (Article 17).

To do that, there is a need to deepen safeguards to shield all media against economic capture by private owners to avoid media capture. It can be worse when no official intervention can mean non-transparent and selective support for pro-government media. As a matter of fact, it demonstrates that a combination of political pressure and corruption can be risky for the free press.

Secondly, the EMFA’s content moderation provisions could ruin public trust in media and endanger the integrity of information channels. Online platforms moderate illegal content online. Moderation provisions include: a solution-orientated conversation between the parties (VLOPs, the media and civil society) to avoid unjustified content removals; obligatory annual reporting (reports on content moderation which must include information about the moderation initiative, including information relating to illegal content, complaints received under complaints-handling systems, use of automated tools and training measures) by very large online platforms (VLOPs); any complaint lodged under complaints-handling systems by media service providers must be processed with priority; and additional protection against the unjustified removal by VLOPs of media content produced according to professional standards. These platforms will need to take every precaution to communicate the reasons for suspending content to media service providers before the suspension becomes effective. The process consists of a series of safeguards to ensure that this rapid alert procedure is consistent with the European Commissions’ priorities such as the fight against disinformation. In this regard, the Electronic Frontier Foundation states that « By creating a special class of privileged self-declared media providers whose content cannot be removed from big tech platforms, the law not only changes company policies but risks harming users in the EU and beyond ».


MEDIA COMPANIES AND PLATFORMS BARGAINING CONTENT

Yet the EMFA still does not deal with the complex issue of who would oversee controlling the self-declarations (Article 18(1) EMFA). More precisely, according to Article 18 EMFA “Providers of [VLOPs] shall provide a functionality allowing recipients of their services to declare” that they are media service providers. This self-declaration can be done, mainly, according to three criteria: if public service media providers fulfill the definition of Article 2 EMFA; if public service media providers “declare that they are editorially independent from Member States, political parties, third countries and entities owned or controlled by third countries”; and if public service media providers “declare that they are subject to regulatory requirements for the exercise of editorial responsibility in one or more Member States” or adhere “to a co-regulatory or self-regulatory mechanism governing editorial standards that is widely recognised and accepted in the relevant media sector in one or more Member States”. According to Article 18(4), when a VLOP decides to suspend its services regarding the content provided by a self-declared media service provider, “on the grounds that such content is incompatible with its terms and conditions”, it must “communicate to the media service provider concerned a statement of reasons” accompanying that decision “prior to such a decision to suspend or restrict visibility taking effect”.

Aside from that, Article 18 EMFA  splits the rules implemented by the Digital Services Act (DSA), a horizontal instrument that aims to create and ensure a more trustworthy online environment by putting in place a multilevel framework of responsibilities targeted at different types of services and by proposing a set of asymmetric obligations harmonized at EU level with the aim of ensuring regulatory oversight of the EU transparency, online space and accountability. Those rules covering all services and all types of illegal content, including goods or services are set by the DSA. This implies that media regulators will be enrolled in the cooperation mechanisms that will be set up for the aspects falling under their mandate. The inception of a specific “structured cooperation” mechanism is intended to contribute to strengthening robustness, legal certainty, and predictability of cross-border regulatory cooperation. This entails enhanced coordination and more precisely collective deliberation between national regulatory authorities (NRAs) which can bring significant added value to the application of the EMFA. This implies that media regulators will be involved in the cooperation mechanisms that will be set up for the aspects falling under their remit, even if it is still unclear how this will look in practice.

Above all, how will the new legislation be applied in practice and how will it work to ensure that it neither undermines the equality of speech and democratic debate nor endangers vulnerable groups? Excluding the fact that Article 18 of the EMFA incorporates safeguards about AI-generated content, details about which remain undisclosed as of now (see also Hajli et al on ‘Social Bots and the Spread of Disinformation in Social Media’ and Vaccari and Chadwick on ‘Deepfakes and Disinformation’), there is clearly reason to be concerned about the use of generative AI to promote disinformation and deep fakes. In an era where new technologies dominate, voluntary guidelines are not enough. Stronger measures are urgently needed to balance free speech and to have control over AI systems. It is admitted that while AI can be an excellent tool for journalists, it can also be used for bad purposes.

 

INEQUALITY BETWEEN MEDIA PROVIDERS: THE ATTRIBUTION OF A SPECIAL STATUS

In terms of platforms and media companies negotiating content, since not all media providers (media companies negotiating content) will receive a special status, it creates inequality. Platforms will have to guarantee that most of the reported information is publicly accessible. The main privilege resulting from this special status is that VLOP providers are more restricted in the way they moderate the content, but not in the sense of a ban on acting against this content but rather in the form of advanced transparency and information towards the information provider concerned. This effectively leads to an uncertain negotiation situation in which influential media and platforms negotiate over what content remains visible. This is especially true since the media have financial interests in seeking a rapid means of communication and in ensuring that their content remains visible even if it is at the expense of small providers.


CONCLUSION

As a conclusion, the risk to tamper with public opinion by disguising disinformation and propaganda as legitimate media content is still reflected in Article 18’s self-proclamation mechanism. In top of that, the risk of establishing two categories of freedom of speech arises from the fragmentation of legislation, not aligning with the DSA. Then, our capacity to create informed decisions could be undermined by Article 18 EMFA, an article that allows self-proclaimed media entities to operate with insufficient oversight. Furthermore, our democratic processes risk to be severely damaged by the unregulated spread of disinformation. Finally, the opacity of Article 18 in the determination of the authenticity of self-proclaimed media engenders problems of compliance enforcement.

The elements recalled here highlight the underside of the new legislation and corroborates that efforts must be made in the future to remedy the critical situation of press freedom within the EU.

 

Friday 31 May 2024

Legal landmine: the risky proposition of extending the application of the EU Temporary Protection Directive beyond March 2025

 


 

Dr Meltem Ineli-Ciger, Associate Professor, Suleyman Demirel University Faculty of Law; Migration Policy Centre Associate, European University Institute

 

Photo credit: Falin, on Wikimedia Commons

 

What should follow once the deadline for the application of the Council Directive 2001/55/EC of 20 July 2001 (Temporary Protection Directive) to those fleeing the invasion of Ukraine expires in March 2025 is an important issue that has been analysed by many commentators including but not limited to myself (here and here), ICMPD, ECRE, Meijers Committee, Ergin,  Guild and Groenendijk, Bilousov and Woolrych and recently the European Parliamentary Research Service (EPRS) Briefing (written by Luyten). The Temporary Protection Directive provides that once temporary protection ends, temporary protection beneficiaries should access asylum procedures but not much else on what should happen once the regime is terminated. There are different academic and policy proposals on what should happen next ranging from offering various residence permits to Ukrainians to granting international protection as a group. I argued that the most preferable solution would be the transition of Ukrainians under temporary protection to a form of residency (preferably long-term residency) or international protection status as a group in the EU. But this blog post is not about what should happen next but when the temporary protection regime in the EU must end.

 

It is common knowledge at least around Brussels, as also mentioned in Wagner’s post, that for some time, several European politicians have put forward various not-so-sound arguments that the Temporary Protection Directive can be reactivated (so the temporary protection regime can be extended to six years or more) or it can be prolonged more than three years (with one-year extensions by the Council). Interestingly, the recent EPRS Briefing acknowledges such a possibility by citing a blog post written by a master’s student who argues “from a careful examination of the relevant provision in the TPD, it seems that no explicit time limit for the application is mentioned.”  I recently have been getting media requests asking about the possibility of extending the temporary protection regime in the EU for more than three years and the implications of such a very dangerous and legally risky interpretation. Since this issue affects more than 4.2 million Ukrainians many are women and children I decided to write this post and emphasise once again as a researcher working on the Temporary Protection Directive for more than a decade, why from a careful examination of the relevant provisions of the Temporary Protection Directive, there is indeed a very clear time limit provided in the Directive. I argue that the temporary protection regime in the EU (at least under the current text of the Temporary Protection Directive) cannot continue for more than three years. If the EU decides to follow this very legally problematic broad interpretation, it will risk not just violating the Temporary Protection Directive itself and the EU law principle of proportionality but also the 1951 Refugee Convention. [Update: on 11 June the Commission nevertheless proposed such an extension]

 

3-year time limit: is it really open to any interpretation?   

 

Article 4 of the Temporary Protection Directive provides:

 

“1. Without prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year.

 

Where reasons for temporary protection persist, the Council may decide by a qualified majority, on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council, to extend that temporary protection by up to one year.”

 

Article 4(1) notes temporary protection is normally one year but can be extended to a further one year (which becomes 2 years) moreover, Article 4(2) provides that the Council can extend the existing these two years by up-to one year (so 3 years in total). In practice, after temporary protection was invoked in March 2022 for the initial one year, it was then subject to the two tacit extensions in the first sub-paragraph (taking it to March 2024), and then a Council decision under the second sub-paragraph to extend it for a further year, taking it to March 2025.

 

For a master’s student who is learning about the Directive or a politician who has never read any legal research on temporary protection this can be indeed a complicated wording and may not seem clear. Yet, the time limit provided under Article 4 of the Temporary Protection Directive which is ‘three years’ is explicit (see also Skordas p. 1194 and Peers who have written commentaries on the Temporary Protection Directive and agree with this view) and cannot be open to any other dubious broader interpretation which does not have any merit. Moreover, Skordas (in p. 1193) provides a detailed account of the discussions which took place before the adoption of Article 4 (the Commission in 1998 proposed a five-year time limit then suggested two years in its 2020 proposal whereas MS such as Germany asked for more time whilst, Ireland and Finland suggested less than a year) but in the end, the three-year time limit was “the compromise was based on the Proposal by the Presidency”. So, there is nothing in the preparatory documents of the Temporary Protection Directive that supports such a broad interpretation.

 

What would happen if the EU misguidedly decides to reactivate the Directive or prolong its implementation more than three years?

 

First, if the EU misguidedly decides to reactivate the Directive or prolong its implementation for more than three years, this would mean the Temporary Protection Directive itself will be violated. Second, such an action may undermine the Refugee Convention that all Member States are a party to. The Temporary Protection Directive, despite its many benefits to Ukrainians fleeing Russia’s full-scale invasion, involves derogation from the 1951 Refugee Convention since it suspends the asylum procedures and grants only a limited set of rights compared to the rights of refugees under the Refugee Convention. Mass influx situations, in certain cases, may constitute a valid reason to derogate from international instruments, including the Refugee Convention. It is acknowledged by Hathaway, Davy (Article 9 Chapter), Edwards, McAdam and Durieux, and myself that mass influx situations may give latitude to states to partially suspend implementation of the Refugee Convention in mass influx situations. Yet, as also repeatedly noted by Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 (Crisis Regulation), which also foresees derogation in exceptional mass influx situations in the EU, measures derogating from the Refugee Convention as well as the EU asylum instruments (such as the Asylum Procedures Directive and the Qualification Directive) must meet the requirements of “necessity and proportionality, be appropriate to achieving their stated objectives and ensuring the protection of the rights of applicants and beneficiaries of international protection, and be consistent with the obligations of the Member States under the Charter, international law and the Union asylum acquis.” (Article 1(2) of the Crisis Regulation). In light of this, I argue that extending temporary protection for more than three years (without any time limit) may not satisfy the criteria of necessity and proportionality and undermine the international obligations of Member States under international law.

 

Finally, this very legally problematic broad interpretation idea may cause a slippery slope, if one accepts the argument without any amendment of the Temporary Protection Directive, it can be re-activated or it can be prolonged with one-year extensions then who’s to say the temporary protection cannot be reactivated a third time or cannot be implemented for many years. Therefore, if the EU decides to reactivate the Directive or prolong its implementation without any further limits, this would also contravene the principles of proportionality and necessity and the existence of mass influx after so many years will not provide a valid reason to derogate from the relevant EU and international law instruments.

 

Conclusions

 

Temporary protection should be time-limited. Without such limits, temporary protection becomes not a practical framework to manage mass influx situations by granting protection to groups seeking refuge but a tool to undermine the Refugee Convention as well as the EU instruments and principles. The idea that the Temporary Protection Directive can be reactivated or prolonged without any limitation is just legally wrong. Moreover, aside from legal implications, the main risk is the uncertainty of extension. Leaving more than four million Ukrainians in limbo for many years without any durable solutions in sight is wrong and would undermine the success of the EU’s temporary protection regime implemented since 2022.  

 

 

Monday 20 May 2024

Compatibility of Member States’ Alcohol Health Warning Labelling with EU Law

 



Dr Nikhil Gokani, Lecturer in Consumer Protection and Public Health Law at the University of Essex, Chair of the Alcohol Labelling and Health Warning International Expert Group at the European Alcohol Policy Alliance, Vice President of the Law Section at the European Public Health Association, and member of the Technical Advisory Group on Alcohol Labelling at WHO.

 *This blog is a condensed version of the following article: N Gokani, ‘Booze, Bottles and Brussels: Member States’ Dilemma on Alcohol Health Warnings’ (2024) 13(2) Journal of European Consumer and Market Law 97-102. The full article is available here. An open access version is also available here.

Art credit: William Hogarth, Gin Lane

 

Alcohol and the need for effective alcohol labelling

Alcohol is a causal factor in more than 200 diseases, injuries and disabilities. Even at lower levels of consumption, alcohol is associated with increased risks of heart diseases and stroke, liver cirrhosis, cancers and foetal alcohol disorders. In the EU, alcohol consumption causes between 255,000 and 290,000 deaths per year. Beyond health, alcohol results in significant social and economic losses to individuals and society at large.

Despite negative consequences of drinking alcohol, consumer awareness of its harms is low. The World Health Organization (‘WHO’) has repeatedly called on States to provide consumers with essential information through alcohol labelling. The EU has itself acknowledged the importance of consumer alcohol information, reflecting the foundation of EU consumer protection policy that consumers can be empowered through becoming well informed.

EU level regulation of alcohol labelling

Current EU rules in Regulation 1169/2011 on the provision of food information to consumers (‘FIC Regulation’) require alcoholic beverages with a content over 1.2% alcohol by volume (‘ABV’) to include alcohol strength on the label. Other health-related information, including ingredients list and a nutrition declaration, which are required on the labels of most food products, are exempt for alcoholic beverages above 1.2% ABV. EU law does not require any other health-related information to appear on the label. 

Member State developments on alcohol labelling

Health-related warnings are not explicitly addressed under EU law and several Member States have introduced national mandatory labelling rules. These have focused on two forms on messaging: mandatory labelling relating to the age of consumption, and messaging against drinking during pregnancy. 

In October 2018, Ireland signed into law its Public Health (Alcohol) Act 2018. In May 2023, Ireland signed into law as its Public Health (Alcohol) (Labelling) Regulations 2023. From May 2026, non-reusable alcohol containers will be required to include the following labelling. 


While feedback from civil society organisations representing public health and consumer protection expressed strong support, industry bodies from across the globe responded opposing the measure. The feedback questioned the compatibility of the Irish Regulations, and warning labelling in general, with EU law in three key ways, which are addressed in turn below.

Legal objection 1: The Irish rules constitute a discriminatory barrier to free movement

National labelling rules fall within the scope of the FIC Regulation, adopted under the competence the EU shares with Member States in the internal market.

In respect of matters not “specifically harmonised” by the FIC Regulation, there appears to be minimum harmonisation: Article 38(2) permits Member States to adopt certain national measures. Health warnings are not explicitly mentioned in the FIC Regulation, which might suggest health warning labelling is not “specifically harmonised”. Therefore, Member States may introduce national measures providing these do not undermine the protection in the FIC Regulation and are not contrary to general Treaty provisions.

In respect of matters which are “specifically harmonised” by the FIC Regulation, there appears to be maximum harmonisation: a declared desire to create uniform protection; an exclusivity clause, which prohibits the sale of non-compliant goods; and a market access clause which precludes national measures unless authorised by EU law. The mandatory particulars have been fully considered and listed, suggesting that mandatory labelling particulars have been “specifically harmonised” and therefore subject to maximum harmonisation. If alcohol health warning labelling is “specifically harmonised”, Member States may not undermine the protection in the FIC but may exceed it subject to general Treaty rules where the FIC Regulation itself allows. In this respect, the FIC Regulation includes a derogation which could allow Member States to exceed the standards under Article 39(1) to adopt rules requiring additional mandatory particulars justified on public health or consumer protection grounds.

Therefore, irrespective of whether health warnings labelling is specifically harmonised or not, under existing harmonisation, Member States are able to move forward with national warning labelling.

Legal objection 2: That the Irish rules are not consistent with existing EU harmonisation

The base protections set out in the FIC Regulation, which Member States may not undermine, are set out in Article 7 FIC as “fair information practices”. Food information shall be “accurate”, “clear and easy to understand”, and “not be misleading” particularly as to the “characteristics of the food” or “by attributing to the food effects or properties which it does not possess”.

Accurate: The Irish labelling is accurate when assessed against ordinary principle of scientific consensus. The evidence that “Drinking alcohol causes liver disease” is well-established, even with relatively lower levels of consumption and increasing with higher consumption. The evidence on the dangers of drinking during pregnancy is also clear. Alcohol intake can affect ability to conceive; brings about pregnancy complications; and interferes with foetal development known as foetal alcohol spectrum disorders, including low birth weight, small for gestational age and preterm birth. No amount of alcohol is considered safe during pregnancy. There is also well-established evidence that “There is a direct link between alcohol and fatal cancers”. Alcohol is classified as a group 1 carcinogen by the WHO International Agency for Research on Cancer as there is a proven causal link between alcohol and at least seven cancers. The risks arise irrespective of the type of alcohol consumed, exist at lower levels and increase with higher consumption.

Clear: The requirement that information is “clear” relates to legibility and visibility. The Irish warnings are likely to meet this requirement not least as they appear against a white background, are within a black box and have a minimum size.

Not misleading: The Irish labelling is also not misleading. In line with broader consumer protection in the internal market, compliance with information rules is assessed against the behaviour of the “average consumer who is reasonably well informed and reasonably observant and circumspect taking into account social, cultural and linguistic factors”. This notional average is an active player in the market who reads information, has background knowledge, is critical towards information, does not take information literally, and will not be misled easily if sufficient information is available. This average consumer is likely to understand the meaning in the labelling. Indeed, the pregnancy warning simply advises women not to drink during pregnancy as per national health guidance. The message that “There is a direct link between alcohol and fatal cancers” communicates association with fatal cancers but does not go as far as communicating a direct causal relationship notwithstanding the well-established evidence on causation. The warning that “Drinking alcohol causes liver disease” is not misleading as liver disease occurs with even relatively lower levels of consumption.

Legal objection 3: That the Irish rules are not proportionate

National alcohol labelling must also be proportionate, which it is when it is suitable and necessary to achieve its objective.

Legitimate objective: The primary objective for health messaging labelling is to inform consumers. While informing consumers appears to be the primary objective, this is part of a broader, secondary objective of reducing consumption. As the Irish Regulations have been introduced under the Article 39 derogation, the objectives are limited to “the protection of public health” and “the protection of consumers”. Alcohol control clearly falls within these broad grounds as the CJEU has consistently held that combating alcohol-related harm is an important and valid goal.

Suitability: Under the suitability limb of proportionality, it is necessary to determine whether the proposed labelling can attain its objectives of informing consumers and contributing to reduction in consumption as part of a broader suite of measures. In respect of the primary objective, evidence demonstrates that there is a deficit of knowledge about the health consequences of alcohol consumption and labelling informs consumers. Studies show that alcohol health warnings specifically lead to increased knowledge of health risks, including cancer, liver disease and pregnancy. Indeed, EU law already requires certain food products to be labelled with health warnings. As regards the secondary objective, there is also evidence supporting the contribution of labelling to reduction in harms and consumption.

Necessity: Under the necessity limb of proportionality, it must be determined whether a less intrusive measure can be equally effective as the proposed labelling to attain the objectives. Other measures are not equally effective. Labelling is available at both the point of purchase and point of consumption. Labelling is available on every container. It is targeted so that everyone can see the label when they see alcohol. It mitigates the effect of promotional marketing messaging on labelling. Ongoing costs are minimal. Moreover, the CJEU has consistently held that labelling is less restrictive than other interventions.

Moving towards effective alcohol health warning labelling

The objections raised by industry, that EU food law is a barrier to national rules on alcohol health warning labelling, are legally unsustainable. Therefore, in the absence of EU level action, Member States must take responsibility for moving forward independently. Let us hope the rest of the EU follows Ireland’s lead.

Nevertheless, EU institutions must also support Member States to tackle alcohol-related harm. Tides appeared to be turning with Europe’s Beating Cancer Plan, in which the Commission committed to introduce proposals on alcohol health warning labelling by the end of 2023, but the deadline has passed with no formal action. Let us also hope the EU decides to prioritise the health of consumers over the interests of economic actors.

 

 

 

 

Saturday 18 May 2024

Will the AI Act Bring More Clarity to the Regulation of Text and Data Mining in the EU?

 



 

Maryna Manteghi, PhD researcher, University of Turku, Finland

 

Photo credit: mikemacmarketing and Liam Huang, on Flickr via Wikimedia Commons

 

 

Background

 

The Artificial Intelligence Act (AIA), “the first-ever legal framework on AI, which addresses the risks of AI and positions Europe to play a leading role globally” (according to the European Commission), contains two provisions which are relevant to copyright. In particular, Article 53 (1) (c) (d) requires providers of general-purpose AI models first, to comply with “Union law on copyright and related rights…in particular to identify and comply with…a reservation of rights expressed pursuant to Article 4(3) of Directive (EU) 2019/790,” and second, to “draw up and make publicly available a sufficiently detailed summary about the content used for training of the general-purpose AI model…”. The provisions have been added to the text of the Act to address the risks associated with the development and exploitation of generative AI (GenAI) models such as ChatGPT, MidJourney, Dall-E, GitHub Copilot and others (see the Draft Report of the European Parliament).

 

TDM in the context of copyright

 

AI systems have to be trained on huge amounts of existing data including copyright-protected works to be able to perform a wide range of challenging tasks and generate different types of content (e.g., texts, images, music, computer programs etc.,) (for technical aspects see e.g., Avanika Narayan et al). In other words, GenAI models have to learn the inherent characteristics of real-world data to generate creative content on demand. AI developers employ various automated analytical techniques to train their systems on actual data. One example is text and data mining (TDM), the concept which involves techniques and methods needed to extract new knowledge (e.g., patterns, insights, trends etc.,) from Big Data (for a general overview of TDM techniques and methods see e.g., Jiawei Han et al). A computer typically makes copies of collected works to be able to mine (train) AI algorithms.

 

TDM requires processing of huge amounts of data, thus training datasets may also contain copyright-protected works (e.g., books, articles, pictures, etc.,). However, unauthorised copying of protected works may potentially infringe one of the exclusive rights of copyright holders, in particular the right to reproduction granted to authors under Article 2 of the Directive on copyright in the information society (the InfoSoc Directive). To prevent the risk of copyright infringement, providers of GenAI have to negotiate licenses over protected works or rely on a so-called “commercial” TDM exception provided under Art. 4 of EU Directive 2019/790 on copyright in the digital single market (CDSM), which, as we have seen above, is referred to in the AI Act. The provision has been adopted alongside the “scientific research” TDM exception (Art. 3 of CDSM) to provide more legal certainty specifically for commercially operating organisations.

 

However, providers of GenAI models have to meet two-fold requirements to enjoy the exception of Art. 4 of CDSM. First, they need to obtain “lawful access” to data they wish to mine through contractual agreements, and subscriptions, based on open access policy or through other lawful means, or use only materials which are freely available online (Art. 4 and Recital 14 of CDSM). Second, AI developers have to check whether rightholders have reserved the use of their works for TDM by using machine-readable means, including metadata and terms and conditions of a website or a service or through contractual agreements or unilateral declarations, or not (Art. 4 (3) and Recital 18 of CDSM).

 

The copyright-related obligations of the AI Act: a closer look

 

It appears that Article 53 (1) (c) of the Artificial Intelligence Act ultimately dispelled all doubts regarding the relevance of Article 4 of CDSM to AI training by obliging providers of GenAI to comply with the reservation right granted to rightholders under this provision. The arguments in favour of this idea could also be derived from the broad definition of TDM included in the text of CDSM (“any automated analytical technique aimed at analysing text and data in digital form in order to generate information…” Article 2 (2) CDSM) and the aim of Article 4 of CDSM that is to enable the use of TDM by both public and private entities for various purposes, including for the development of new applications and technologies (Recital 18 of CDSM) (see e.g., Rosati here and here; Ducato and Strowel; and Margoni and Kretschmer).

 

Further, the new transparency clause of the AI Act requiring providers of GenAI models to reveal data used for pre-training and training of their systems (Article 53 (1) (d) of AIA and recital 107) could also bring more certainty in the context of AI training and copyright. Recital 107 of the Act clarifies that providers of GenAI models would not be required to provide a technically detailed summary of sources where mined data were scraped but it would be sufficient to list “the main data collections or sets that went into training the model, such as large private or public databases or data archives, and by providing a narrative explanation about other data sources used”. This clarification could make the practical implementation of the transparency obligation less burdensome for AI developers taking into account huge masses of data used for mining (training) of AI algorithms. The transparency obligation under Article 53 (1) (d) of the Act would allow rightholders to determine whether their works have been used in training datasets or not and if needed, opt out of them. Therefore, the provision would literarily enable the work of an “opt-out” mechanism of Article 4 (3) of CDSM.

 

However, the “commercial” TDM exception may not be a proper solution for AI developers as their ability to train (and thus develop) their systems would depend on the discretion of rightholders. What does it exactly mean? Put simply, there are some issues which could restrict or even prohibit the application of TDM techniques. First, the exception can be overridden by a contract under Article 7 of the CDSM Directive. Second, rightholders may restrict access to their works for TDM by not issuing licenses or raising licensing/subscription fees. Moreover, even if users would be lucky enough to obtain “lawful access” to protected works rightholders can prohibit TDM in contracts, terms and conditions of their websites or by employing technological protection measures. Third, rightholders may employ an “opt-out” mechanism to reserve the use of their works for TDM, thereby obliging TDM users to pay twice- first to acquire “lawful access” to data and a second time to mine (analyse) it (see Manteghi). In this sense, rightholders literally would control innovation and technological progress in the EU as the development of AI technologies heavily relies on TDM tools.

 

Concluding thoughts

 

To sum up, the copyright-related obligations of the AI Act could alleviate (to some extent) the conflict of interest between copyright holders and providers of GenAI models, providing that training of AI models should be covered by the specific copyright exception and be subject to a transparency obligation would bring more clarity to the regulation of AI development. However, major concerns remain regarding the excessive power granted to rightholders under the “lawful access” requirement and the right to reservation of Article 4 of CDSM. The author of this blog does not support the idea of making copyright-protected works freely available for everyone but rather wants to emphasise the risks of the deceptively broad “commercial” TDM exception. The future of AI development, innovation and research should not be left at the discretion of copyright holders. The purpose of AI training is not to directly infringe copyright holders' exclusive rights but to extract new knowledge for developing advanced AI systems that would benefit various fields of our lives. Therefore, the specific TDM exceptions should balance the competing interests in practice and not tip the scales in favour of a particular stakeholder that would only create more tension in the rapidly evolving algorithmic society.

Wednesday 15 May 2024

We’re all trying to find the Guy who did this … The Disapplication of the Illegal Migration Act in Northern Ireland


 

Professor Colin Murray, Newcastle Law School

Photo credit: Wknight94, via Wikimedia Commons

 

Introduction

The courtroom was anything but packed on a grey Monday morning in Belfast. There were no camera crews outside. And yet, for a small band of cognoscenti who gathered to hear Humphreys J’s decision, something significant was about to happen. The UK Government’s keystone migration legislation, the Illegal Migration Act 2023 (providing for the “outsourcing” of asylum claims to third countries), was about to be confronted with the fact that it had made extensive rights commitments specific to Northern Ireland within the UK-EU Withdrawal Agreement. Either these immigration measures were going to be found not to apply to Northern Ireland, or some violence was going to be inflicted upon the rights commitments made to Northern Ireland.

The momentousness of this moment should not have come as a surprise; the workings of Article 2 of the Windsor Framework were settled as far back as 2018, whereas other special post-Brexit provisions for Northern Ireland have been repeatedly redrawn. In 2021, its operation was described by the UK Government as “not controversial”, at a time when they were eager to see significant changes to other parts of the then Protocol. The significance of Article 2 has been highlighted many, many, many times on this blog. So how did the judgment in Re NIHRC’s Application sneak up on the UK Government?

Article 2

Article 2 of the Northern Ireland Protocol (as was) was a vital provision for the UK’s Brexit policy. It provides:

1. The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies set up pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland, in upholding human rights and equality standards.

Whereas trade elements related to Northern Ireland could be connected to the 1998 Agreement (better known as the Belfast or Good Friday Agreement) through the operation of cross-border bodies, the connection with regard to rights and equality law was direct. The 1998 Agreement set out a new basis for a post-conflict governance order in Northern Ireland based on the rights of everyone in the community, and in the years since the Agreement, extensive elements of those rights protections were grounded in EU law. The UK Government would have faced an uphill struggle to maintain that Brexit did not impact its commitment to the “letter and spirit” of the 1998 Agreement without providing specific rights and equality assurances in the Northern Ireland context.

In the SPUC case of 2023 the Northern Ireland Court of Appeal refined this commitment into a six stage test (para 54):

A right (or equality of opportunity protection) included in the relevant part of the Belfast/Good Friday 1998 Agreement is engaged.

That right was given effect (in whole or in part) in Northern Ireland, on or before 31 December 2020.

That Northern Ireland law was underpinned by EU law.

That underpinning has been removed, in whole or in part, following withdrawal from the EU.

This has resulted in a diminution in enjoyment of this right; and

This diminution would not have occurred had the UK remained in the EU.

Every element of this test must be fulfilled if a case based around non-diminution is to succeed.

The non-diminution commitment is not simply an international law obligation upon the UK; under section 7A of the European Union (Withdrawal) Act 2018, Article 2 appears to operate within the UK’s domestic jurisdictions with the same effect as EU law had prior to Brexit. In other words, reflecting the commitment in Article 4 of the Withdrawal Agreement to retaining the legal effect of EU law as regards the withdrawal agreement, this provision enables the courts to disapply statutes which conflict with its terms. And yet, in a bizarre hostage to fortune, when it was aware that legal challenges to the Illegal Migration Act under Article 2 were already underway, the UK Government issued assurances as part of the Safeguarding the Union Command Paper in January 2024 that ‘the Windsor Framework applies only in respect of the trade in goods’ (para 46). The new judgment undermines this claim (which, even at first glance, was always inaccurate).

The Illegal Migration Act

Section 2 of the Illegal Migration Act 2023 imposes a duty on the Home Secretary to make arrangements for the removal of the vast majority of asylum seekers who entered the UK after the Act was passed, including the sending of such individuals to Rwanda. Section 5 makes this duty applicable implicitly notwithstanding a range of international law, from the terms of the Refugee Convention to those of the European Convention on Human Rights (ECHR), which might ordinarily be asserted by the individual in question.

The 2023 Act is thus a difficult statute to effectively challenge on the basis of rights concerns. It excludes the use of the interpretive duty under section 3 of the Human Rights Act 1998 (ie the obligation to interpret domestic law compatibly with the ECHR ‘[s]o far as it is possible to do so’), leaving the domestic courts only able to declare the statute incompatible with the incorporated ECHR rights under section 4 of the Act (an outcome which does not impact the validity of the statute.) Although Humphreys J did find swathes of the Act incompatible with the ECHR rights as part of the Re NIHRC judgment, and therefore issued a declaration of incompatibility, this does not lead to any effective remedy.

The 2023 Act does not, however, negate the effect of claims made under Article 2 of the Windsor Framework insofar as it applies to Northern Ireland – a separate question from the compatibility of that Act with the Human Rights Act. And so the main arguments relating to the Act were thus channelled through the non-diminution commitment and into the way EU law still works in the Northern Ireland context, which held out the possibility of disapplication of the Illegal Migration Act.

The High Court Judgment

 

Disapplication of a statute is a significant outcome – as Humphreys J recognised in his decision “parliamentary sovereignty remains a fundamental tenet of our constitutional law” (para 37). But he also acknowledged that for as long as the UK was part of the EU, national law could not have legal effect insofar as it undermined EU law (the position reached in the Factortame case in the early 1990s). The issue was whether this approach continued to apply in the same way with regard to Article 2 of the Windsor Framework. For the UK Government Article 2 was simply an “an obligation of result”; it was not that the relevant elements of EU law continued to be “made applicable” in Northern Ireland law, but rather that Article 2 “set a benchmark by which rights can be measured and no diminution ensured” (para 49). The problem with this argument is that it flies in the face of the wording of Article 4 the Withdrawal Agreement and Parliament’s commitments under section 7A of the European Union (Withdrawal) Act; “its provisions … shall produce in the UK the same legal effects as those which they produce in EU Member States” (para 54). The Windsor Framework is an integral part of the Withdrawal Agreement and therefore “Factortame is still in play since the rights and obligations under the WA must prevail over any inconsistent domestic law” (para 57). There was nothing of legal significance to the UK Government’s supposed distinction between the provisions of the Agreement and EU law made applicable under it.  

The Government’s next ploy was to claim that the human rights obligations contained within the 1998 Agreement could not be applied to asylum seekers. In the Government’s view, that Agreement was all about “warring factions” in Northern Ireland, something that had no relevance to immigration policy. Remember that under the first limb of the SPUC test there must be a connection between the right being claimed and the 1998 Agreement (the whole point of the UK Government’s commitment was, after all, to insulate Brexit from claims that the 1998 Agreement was being undermined). Humprhreys J acknowledged that, in some cases, it will be a difficult task for the courts to establish the relevant connection:

Article 2 of the WF is an unusual provision in that it seeks to incorporate into law a chapter of the B-GFA which was never intended to create binding legal rights and obligations. It was the product of lengthy negotiations between political parties, the UK and Irish Governments, and contains statements of aspiration as well as legal right. A document renowned for its ‘constructive ambiguity’ does not lend itself easily to the tenets of statutory construction. (para 67)

This, however, is not one of those cases. The 1998 Agreement makes explicit commitments over the “civil rights … of everyone in the community”. A natural reading of these terms encompasses asylum seekers, and for Humphreys J, although the 1998 Agreement “did not expressly reference immigration or asylum, there is no basis to exclude such individuals from the wide compass of “everyone in the community” (para 69). The brilliance of this judgment is to directly face down the high-handed assumptions which underpinned the Government’s case. After decades of conflict, the 1998 Agreement made a commitment to ground the governance of Northern Ireland in the human rights of all; it did not treat human rights as being particularised to a sectarian context.

After these (always tenuous) arguments failed, the Government’s legal position collapsed. Most of the  public case around the Illegal Migration Act was that it was a great triumph of Brexit; the UK Government was able to put the Rwanda scheme in place because it could now depart from the requirements of the Qualification Directive, the Procedures Directive, the Dublin III Regulation and the Trafficking Directive. And so, time and again in the judgment, the Government accepted that the legislation involved a diminution of the protections mandated by these aspects of EU law; “the respondents accept that, in a category of case, the IMA, once in force, will result in a diminution of right” (para 116, see also para 133). For all the bluster that has accompanied the judgment, the UK Government knew (it did not need the court to rule) that it was acting to hollow out these EU law requirements. Indeed, it was able to do so, with regard to Great Britain, because of Brexit. It had not, however, given sufficient consideration to the implications of the specific commitments it had made in the Northern Ireland context.

It was thus straightforward for the Court to conclude that “there is a diminution of rights brought about by the enactment of the IMA” (para 117) and the remedy of disapplication of extensive provisions of the statute within the law of Northern Ireland flowed as a direct consequence of this. And who is responsible for this? Once again, Humphreys J is clear: “This outcome does not occur at the whim of the courts but represents the will of Parliament as articulated in the Withdrawal Act” (para 175).

Conclusion

The outcome in the High Court is therefore far from legally controversial. The UK Government’s efforts towards asserting that Article 2 was an obligation as to result, entirely within its keeping, was a desperate ploy, which would have denuded the entire provision of legal significance without any basis for doing so. Once this proposition was rejected, the Government’s case was lost, and it has found itself in a fluster ever since. Tom Pursglove went as far as to mislead Parliament in responding to an Urgent Question about the decision with an assertion that ‘our approach is compatible with international law’. It isn’t, and the UK Government accepted that it wasn’t when it enacted the legislation (it acknowledged, on introducing the legislation that, it could not issue a statement that the legislation was compatible with the ECHR). And yet it sticks doggedly to its claims that the court’s decision involved an unwarranted “expansion” of the 1998 Agreement.

The question remains, however, why this decision came as such a shock? Why were the media not primed and ready for a Northern-Ireland-shaped hole to be knocked in UK immigration policy? As so often in debates over Brexit, this surprise is largely the product of neglect of commitments made towards Northern Ireland. Article 2 was agreed as an essential part of closing off claims that Brexit undermined the rights elements of the 1998 Agreement, so many of which had come to be underpinned by EU law. But once this part of the deal was done, it quickly faded into the background.

The recurring crisis over trade policy consumed such attention that the UK Government lost sight of the fact that it had agreed to a higher baseline of rights commitments for Northern Ireland by comparison to the rest of the UK. When the law related to Northern Ireland is complex and unique it is all too easy for wishful thinking to become dominant in the corridors of Westminster and Whitehall. The Article 2 commitment doesn’t fit with the narrative of “take back control”, but the UK’s Conservative Government remains all too eager to present commitments it willingly made as hardships that have been inflicted upon it.