Wednesday 28 December 2016

Hard Brexit Benefits? Change Britain’s £24 billion of unicorns

Professor Steve Peers

On Boxing Day, the pro-Leave group ‘Change Britain’ produced a ‘report’ (actually a press release with an annex) claiming £24 billion worth of benefits from a ‘hard Brexit’ – leaving the EU without participating in the single market or customs union. This claim was widely repeated uncritically by the press – although a later critique of the economics by Jonathan Portes was published, and the economic analysis in the report was also fisked by Sam Bowman.

Their comments cover a lot of ground, but it’s worth standing back and looking at the report as a whole – and at how poor the debate over Brexit has become.

The report produces its £24 billion sum from three sources: a) no further contribution from the EU budget; b) future trade deals; and c) cutting back ‘red tape’. Let’s look at each of these in turn, and then note what the report neglected to mention.

EU budget contributions

The report starts with the UK’s contribution to the EU budget: £19 billion if the UK budget rebate is not counted; £14 billion if the rebate is taken off; and £10 billion if the amount spent from the EU budget in the UK (on things like farm subsidies, research and regional development) is deducted. Change Britain accepts that the possible savings are £10-14 billion.

So this necessarily admits that the £19 billion figure – which was the basis for the £350 million/week number ‘on the side of the bus’ during the referendum – was a lie all along. It was a lie because as I point out here, with further details and links, the rebate money is never ‘sent’ to the EU, and the UK has full control over how that rebate money is spent and whether the rebate is retained in future.

Starting by admitting (albeit only indirectly) that they previously told a huge lie is not a good beginning for the report’s authors, since it puts the credibility of anything else they say in question. But let’s give them the benefit of the doubt and examine their other claims separately.

Cutting back ‘red tape’

The report estimates possibly several billion pounds savings from scrapping some EU laws – concerning the issues of air pollution, animal welfare, data protection, GM foods, chemicals regulation, air passenger compensation, battery pollution and company law. These estimates should have been accompanied by numerous health warnings.

First, as Portes points out, these estimates (and the trade estimates), taken with the estimates on contribution savings, mix up several different things: public finances and business costs. Adding the numbers together is economically incoherent.

Secondly, most or all of the ‘red tape’ referred to has a non-economic value: many people prefer cleaner air, more privacy and better treatment of animals, for instance, quite apart from the impact on GDP. There may, in any event, be indirect economic costs from pollution and less secure data, among others.

Thirdly, in some cases there may be savings to business but not the overall economy. Take air passenger compensation: if passengers are not compensated for delayed flights, the airlines save money – but passengers no longer have that compensation money to spend. True, airlines might pass their savings on to passengers in general – but still the passengers who previously received the compensation money will no longer be getting it. Either way, how would the overall economy benefit? The same goes for cuts to workers’ holiday pay and other worker benefits that business groups sometimes campaign for (though not on this occasion): cuts will save businesses money, but how will the corresponding cuts in workers’ spending power make the economy as a whole better off?

Fourthly, some of the laws concerned are related to market access to the EU – most obviously, the biggest proposed saving, data protection law. As I discuss here, EU data protection law limits data transfers from non-EU countries without an ‘adequate’ level of data protection. Scrapping that law (which would be complicated anyway by the right to privacy in the ECHR and the separate Council of Europe data protection Convention) would mean limits on market access to the EU. This would surely have an impact on the economy. 

Future trade deals

The report claims that the UK would generate exports to non-EU countries by signing its own trade deals. It calculates these increased exports by taking EU estimates of the trade effect of new deals with certain countries and assuming that the UK would benefit from 15% of that increase, because the UK has 15% of the EU’s trade with non-EU countries. As Bowman points out, this is nonsense: the percentage of EU trade with non-EU countries which is held by the UK varies widely and depends on many factors.

Moreover, country where the biggest possible trade benefit exists in the ‘asked for a trade deal’ list – Korea – already has a trade deal with the EU, under which UK trade has already increased. (The EU document which the Change Britain report links to even refers to the EU/Korea deal as being in force already. Change Britain either a) did not read this document – which it uses as a key source – and is moreover ignorant of the EU/Korea deal generally; or b) it is simply telling a blatant lie.)

So while it’s theoretically possible that the UK could sign a better trade deal with Korea than the EU did, the benefit of that deal would not be anything like the £25 billion claimed. Certainly, the report provides no evidence of this. Indeed, the UK will be worse off re exports to Korea after Brexit unless it convinces Korea to agree to a UK-only version of the existing deal.

Moreover, several other countries referred to in the report have agreed a trade deal with the EU which is not in force yet: Canada and two ASEAN states (Vietnam and Singapore). Others are negotiating with the EU (USA, India, Japan, Mercosur, several other ASEAN states). The report’s estimates could therefore only be valid if (a) the EU trade deals agreed or under negotiation are respectively either not ratified or not agreed; and (b) the UK is able to negotiate trade deals with those states.

Note that trade deals are not that easy to negotiate or ratify: the US has also had trouble doing a trade deal with the Mercosur states in South America, and the Change Britain report itself notes that the trans-Pacific trade deal might not be ratified. The report also fails to refer to the obvious increase in imports from the countries concerned that would follow from such trade deals. Finally, it one reason there is no EU/India trade deal is a dispute between the UK and India during the talks. Obviously Brexit will not solve that problem.

In any event, if the UK stayed in the single market but fully left the customs union (like Norway), it could still sign its own trade deals with non-EU countries. 

Costs of leaving

The report says nothing about costs of leaving the single market – estimated at 4% of GDP by the IFS, for instance. Maybe those forecasts are incorrect, but the Change Britain report doesn’t even acknowledge their existence, never mind try to rebut them. In practical terms, for instance, how much will it cost to hire extra customs officers after leaving the customs union, or extra border guards and other immigration staff after ending free movement of people? In Change Britain’s fantasy world, these people must be invisible, or work for free.


An interesting coda to the Change Britain report: late last night, Michael Gove, the head of the official Leave campaign, went on Twitter to debate with Jonathan Portes about it. Portes repeatedly asked Gove to confirm if he had read the report, and Gove repeatedly avoided answering. Instead he demanded Portes first tell him how he voted in the referendum. How is that relevant to a debate over the issues?

And how can Gove assert simultaneously that he is certain Brexit will be economically beneficial and sneer that he is tired of ‘expert’ economic forecasting? The Change Britain report – or any other economic assessment of Brexit – necessarily involves making some hypothetical assumptions. The alleged ‘savings’ from red tape reduction and new trade deals both rely on such assumptions. So Gove is in effect taking the effect of Brexit on faith, assuming without evidence (since he won’t debate the issue in detail) that the ‘experts’ he agrees with must be right about the future, and the ‘experts’ he disagrees with are wrong about it. That’s not an argument against experts; it’s just confirmation bias. To be fair, though, the number on the side of the bus wasn’t confirmation bias. Rather, it was a lie.  

Scribbled without numeracy by incompetent interns; published without scrutiny by hungover journalists; cheered without irony by back-stabbing politicians. Six months after the referendum vote, the debate over Brexit deserves better than this report. We can only cross our fingers for 2017.

Barnard & Peers: chapter 27

Photo credit: Imgur

Friday 23 December 2016

EU/Morocco relations and the Western Sahara: the ECJ and international law

Markus W. Gehring: University Lecturer, University of Cambridge; J.S.D. (Yale), LL.M. (Yale), Dr jur. (Hamburg), MA (Cantab); Deputy Director, Economic Law at CIGI 

On Wednesday 21 Dec 2016 the Court of Justice rendered its appeals decision in the case C-104/16 P Council v. Front Polisario. This was a Grand Chamber judgment under the expedited procedure which overturned the decision by the EU General Court in T-512/12 Front Polisario v Council decided a little over a year ago.


The Front Polisario (Frente Popular de Liberación de Saguía el Hamra y Río de Oro) aims to end Moroccan presence in the Western Sahara territory and has been recognised internationally by over 40 countries with Algeria being regarded as its main backer. It had a difficult year (see here and here) after its leader died and Morocco, after a thirty-year absence from the African Union, applied to re-join (a vote will be held in January 2017). While Polisario did not win this case, the judgment will hardly be welcomed by Morocco either.

General Court judgment

As discussed by Geraldo Vidigal in EJILTalk, the decision by the General Court had been seen as an extraordinary victory by the Polisario as it was granted standing to bring a case against the Council decision concerning reciprocal liberalisation of certain agricultural products between the EU and Morocco (Liberalisation Agreement). The General Court recognised, contrary to objections by the Council and Commission, that Polisario had legal personality and could prove direct and individual concern (the standing requirement to challenge a decision in the EU courts, unless the challenger is an EU institution or Member State).

Polisario was concerned because the agreement, despite differing interpretations of its territorial scope between Morocco and the EU, was applied to Western Sahara. Polisario in particular argued that 140 undertakings based in Western Sahara were included in the EU Commission’s website list of approved Moroccan exporters, and both the Council and Commission had indicated at the oral hearing that the contested decision was de facto applied to the territory of Western Sahara (para 87). The General Court cited the C-386/08 Brita judgment by the CJEU extensively because in that judgment the Court had rejected products produced in the West Bank as being covered by the EU/Israel trade agreement, but did not rely on this judgement because neither the EU nor any of its Member States had ever recognised Polisario as representing Western Sahara as a sovereign state. However, the General Court confirmed direct and individual concern for Polisario to sue because the EU institutions by not including a clause excluding the Western Sahara territory from the application of the EU-Morocco Association Agreement had ‘at least implicitly’ accepted the interpretation of the Association Agreement which applied it to the part of Western Sahara controlled by Morocco (para 102).

On the substance, the General Court rejected all of Polisario’s substantive claims bar one. It agreed with Polisario that the Council had overstepped its wide margin of discretion in international relations by not ensuring that the exploitation of natural resources of Western Sahara under Moroccan control is beneficial to the population of that territory and thus does not violate the population’s fundamental rights. It said the “Council must examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights, including, in particular, the rights to human dignity, to life and to the integrity of the person (Articles 1 to 3 of the Charter of Fundamental Rights), the prohibition of slavery and forced labour (Article 5 of the Charter of Fundamental Rights), the freedom to choose an occupation and right to engage in work (Article 15 of the Charter of Fundamental Rights), the freedom to conduct a business (Article 16 of the Charter of Fundamental Rights), the right to property (Article 17 of the Charter of Fundamental Rights), the right to fair and just working conditions and the prohibition of child labour and protection of young people at work (Articles 31 and 32 of the Charter of Fundamental Rights)” (para 228). 

By leaving the question solely to the Moroccan authorities, the Council failed to fulfill its obligation to examine all elements of the case. As a consequence the General Court annulled the Council decision. Several international commentators hailed the decision as beneficial for the international protection of human rights. Eyal Benvenisti strongly welcomed the decision because it highlighted that even indirect contributions to human rights violations through trade could violate international law.

ECJ judgment 

In this week’s appeal judgment, the ECJ Grand Chamber saw things differently. It largely followed, though in much fewer words, the Opinion of Advocate General Wathelet who on 13 September 2016 had concluded that the Court should set aside the General Court decision and dismiss the action by Polisario as inadmissible. He also expressed the opinion that the General Court erred in law when it applied the EU Charter of Fundamental Rights to the population of the Western Sahara (para. 272), although he did accept that international human rights law generally could apply to the EU’s decision.

The Council, supported by the Commission, alleged six errors of law of which the Grand Chamber only examined one in detail. It focussed on the standing of Polisario and the question whether the Liberalisation Agreement applied to Western Sahara. The Court of Justice did not see the finding that the Liberalisation Agreement applied to that territory as a finding of fact, but rather a legal interpretation by the General Court. The Court of Justice concluded that the General Court went too far when it ruled that the absence of an application clause in the Association Agreement meant that the EU had accepted the view by the Moroccan authorities which see Western Sahara as an integral part of the Kingdom of Morocco.

The Court of Justice then proceeded to analyse: a) the principle of self-determination; b) Article 29 of the Vienna Convention on the Law of Treaties, on treaties' territorial scope (“Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”); and c) the relative effect of treaties. The Court of Justice concluded that given the erga omnes nature of the right to self-determination by the peoples of a Non-Self-Governing Territory and its status as an essential principle of international law, the General Court erred in law when assuming that the Association Agreement also applied to Western Sahara. 

With regards to Article 29 of the Vienna Convention the Court of Justice clarifies that ‘its entire territory’ only refers to the territory internationally recognised, and not the territory under its jurisdiction which would be the wider expression. As such, the Court sided with the Commission which argued that any extension of the application must be expressed in the agreement. Finally the Court of Justice also invoked the pacta tertiis principle by which “treaties do not impose obligations, or confer any rights, on third States without their consent” (para 100). It concluded that the people of Western Sahara according to the ICJ Advisory Opinion on Western Sahara constituted a third party in this respect and had not expressed their consent. In the view of the Court, the Liberalisation Agreement as a subsequent agreement is incapable of expanding the scope of the previous Association Agreement. This interpretation can also not be altered by the rule on subsequent practice in Art. 31 Vienna Convention. Though the Commission and the Council were aware that the Moroccan authorities had been applying the Association Agreement to Western Sahara for many years and the institutions never opposed such application and though certain tariff preferences de facto applied to product originating in Western Sahara, this did not constitute clear subsequent practice. As such, the agreements did not apply to Western Sahara and therefor Polisario lacked standing in the European Courts. 


This judgment contributes to the practice of international law, like many domestic courts would, in that it clarifies the rules of interpretation in the Vienna Convention on the Law of Treaties. It clarified how the territorial scope of the international agreements of the EU cannot be interpreted without reference to general public international law. The fact that the EU and Morocco ‘agree to disagree’ about the application of the Association and Liberalisation Agreements (AG Opinion para 67), could not alter the fact that in the EU’s view said agreements only applied to the territory of Morocco as internationally recognised.

Overall the Court’s judgement highlights that its practice is becoming more sophisticated, carefully evaluating the international legal arguments and not just accepting the Commission’s or Council’s view on the matter. In many ways this highlights that EU External Relations law has a greater body of international case law to rely upon. The impact on EU-Morocco relations as highlighted by Geraldo Vidigal might become a bit trickier. While the Council tried to side with Morocco by highlighting that despite the restrictive scope of the Association Agreement it could be seen as “application without recognition” (AG Opinion para 67), the Court very clearly asserted that the application of the Association Agreement to Western Sahara required an explicit treaty provision. This might make future relations between these two important partners more difficult. So, in some ways this judgment constitutes a bit of a pyrrhic victory for Morocco.

It remains to be seen if Polisario might bring a new case trying to challenge the de facto application of the agreements to the territory also administered by Morocco. (Note that another case on these issues is already pending before the ECJ, following a reference by a UK court, discussed further on the UK Human Rights Blog).  Unfortunately, the Court of Justice did not venture, beyond self-determination, further into the territory of human rights application to trade agreements. As Thomas Cottier wrote in 2002, this will remain an important field to be discovered.           
Barnard & Peers: chapter 24


Wednesday 21 December 2016

The EU's future trade policy starts to take shape: the Opinion on the EU/Singapore FTA

Professor Steve Peers

What is the scope of the EU’s powers over trade agreements? The issue has been disputed for decades in the case law of the ECJ, for it has a significant impact on the allocation of powers between the EU and its Member States as regards external economic policies. A number of Treaty amendments over the years – in particular the Treaty of Lisbon – have amended the rules.

The issue has gained added salience given the controversies surrounding some EU trade negotiations (in particular with Canada and the USA), and the trade talks between the UK and EU in light of Brexit. Today’s opinion of an ECJ Advocate-General is not binding, but is very thorough and will likely have a significant impact on the Court’s final judgment, expected in the spring.

This post will summarise the lengthy opinion succinctly and suggest its likely implications for the FTAs with Canada, the USA and the UK in particular. For further reading, see the earlier posts on this blog on the background to the Opinion and on the hearing before the ECJ.  


The Court has been asked to rule on whether the various provisions of the EU’s draft trade deal with Singapore fall within the scope of the EU’s exclusive powers, or whether powers are shared with the Member States, or whether only Member States can conclude them. If the EU only can conclude them, there can be no national ratification and also probably (depending on the exact content of the agreement) the EU will approve the deal by qualified majority, ie Member States will not have a veto.

If both the EU and its Member States can conclude the provisions, the agreement is ‘mixed’, but the EU has a choice to conclude the agreement without the Member States, if a qualified majority (assuming, again, that no veto applies due to the subject matter) agree to this.

If an issue is within exclusive Member State competence, then Member States must be parties to the treaty in order to conclude it. National ratification, and a de facto national veto for each Member State, therefore applies.

When is a power exclusive to the EU? Article 3(1) of the Treaty on the Functioning of the European Union (TFEU) lists a number of powers that are inherently exclusive, including the common commercial (ie trade) policy (CCP) and fisheries conservation. The CCP is further defined in Article 207 TFEU: it particularly applies to ‘goods and services’, the commercial aspects of intellectual property’ and ‘foreign direct investment.’ The EU/Singapore case concerns the interpretation of each of these aspects.

Besides Article 3(1), Article 3(2) TFEU goes on to provide that exclusive EU powers over an international treaty can also derive from the exercise of EU internal powers, in three cases: (a) ‘its conclusion is provided for in a legislative act of the Union’ or (b) it ‘is necessary to enable the Union to exercise its internal competence’, or (c) ‘in so far as its conclusion may affect common rules or alter their scope.’ The EU/Singapore case concerns the interpretation of both (a) and (c), which I will refer to as the ‘legislative authorisation’ ground and the ‘affect common rules’ ground.  (Note that ground (b) is rarely applied, as the ECJ case law interprets it very narrowly).

Summary of the opinion

The Commission argues that the EU has exclusive competence to conclude the deal. It’s supported by the European Parliament, which will have the power to consent to the deal as long as part of it relates to the CCP, or indeed to most other EU powers. Member States argue for mixed competence of much of the agreement, and exclusive national competence for some parts of it.

In general, the Advocate-General argues that much of the agreement is solely within the EU’s exclusive powers, mostly (but not entirely) as part of the CCP. A significant part falls within the EU’s mixed competence, while a small part is purely national competence.

First of all, she makes some general points about the scope of the CCP. She restates prior ECJ case law: the CCP applies to a measure which regulates and has direct effect on trade; mere implications for trade are not sufficient. She also interprets the exceptions in Article 207(6) TFEU, which states that the CCP ‘shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation.’ In her view, this clause must be narrowly interpreted and has limited effect: for instance, it does not restrict the EU from agreeing measures on trade in culture and health services, as long as it does not harmonise the laws on those issues within the EU.

The opinion does not address the potentially important exceptions in Article 207(4) TFEU, which call for unanimous voting where ‘unanimity is required for the adoption of internal rules’ or ‘(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity’, or ‘(b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.’

On the other hand, the opinion does discuss the exception in Article 207(5) TFEU, which states that the CCP does not apply to agreements concerning transport. As a general rule, the Advocate-General argues that this exception applies whenever a treaty has rules ‘specifically concerning transport’. The further implications of this are discussed below.  

The Opinion then examines the specific provisions of the EU/Singapore deal. First of all, the opening provisions of the FTA, referring to the creation of a free trade area, fall within the scope of the CCP. Next, following pre-Lisbon case law, the Opinion concludes that the FTA provisions on trade in goods are also within the scope of the CCP (Paras 144-155).

Thirdly, the Opinion examines the FTA provisions on services, establishment and e-commerce (paras 195-269). In general, other than transport issues, these fall within the scope of the CCP powers over services. In particular, immigration of service providers falls within the scope of the services powers, and therefore not under the immigration powers of the EU, where the UK and some other Member States have an opt-out (para 203). Financial services are covered by the CCP (para 204), since its scope is not dependent on prior harmonisation of the relevant law by the EU (unlike Article 3(2) TFEU). Professional qualifications are also covered (para 205).

As for the transport exception from the CCP, it applies not just to the services themselves, but those indissolubly linked to those services – ie cargo handling, transport repair, and computer reservation – but not to customs clearance, since that applies also to trade in goods.  But does the EU have exclusive power over the transport issues, by applying Article 3(2) TFEU instead? As regards aircraft repair, the ‘legislative authorisation’ ground doesn’t apply, since the EU legislation creating an aircraft safety agency doesn’t address this issue in detail. As for the ‘affect common rules’ ground, there is insufficient internal harmonisation as maritime transport, air transport (other than computer reservation systems), and inland waterways – but sufficient internal harmonisation as regards road and rail transport for the powers to become exclusive as regards the EU/Singapore FTA. Other aspects of transport remain a shared competence.

Fourthly, on the issue of investment (paras 305-398), the opinion again examines both the CCP and Article 3(2) TFEU. The opinion offers a definition of the EU’s CCP powers over foreign direct investment: investments ‘which serve to establish or maintain lasting and direct links, in the form of effective participation in the company’s management and control, between the person providing the investment and the company to which that investment is made available in order to carry out an economic activity. In applying that definition, I consider that the fact that the direct investor owns at least 10% of the voting power of the direct investment enterprise may offer evidentiary guidance but is certainly not determinative’. Crucially, the opinion argues (paras 324-342) that the CCP power covers the issue of investor protection.

As for other forms of investment – referred to as ‘portfolio investment’, it was agreed that the CCP didn’t apply. Could Article 3(2) TFEU apply, though? Here, there was no legislation on the issue, but there are EU Treaty provisions on capital movements to non-EU countries, which the Commission believes fall within the scope of the ‘affect common rules’ ground. However, the Opinion argues in principle that this ground for exclusive competence can only apply where the prior EU harmonisation results from legislation, not the Treaty. But the EU and its Member States still shared competence on most investment issues, except for the termination of bilateral investment treaties.

Fifth, on the issue of government procurement, previous prior case law said that the CCP only applied to procurement relating to goods and limited aspects of services. The Opinion concludes that in light of the Lisbon Treaty provisions made to the scope of the CCP, that EU power now fully applies to government procurement issues – other than those within the scope of the transport exception (paras 401-408).

Sixth, the Opinion examines the scope of the CCP power relating to intellectual property (paras 424-456). Although prior case law had concluded that the CCP fully applied to the ‘TRIPS’ (ie the intellectual property deal forming part of the World Trade Organisation system), the Opinion argues that this ruling did not necessarily apply by analogy to intellectual property rules in the EU’s FTAs (IP rules found in FTAs are often called ‘TRIPS+’ clauses).

To determine if a TRIPS+ clause falls within the scope of the CCP, the test (para 435) is not based on the remedy which applies, but rather whether: the substantive obligation governs trade rather than harmonises IP law; there is a direct and immediate effect on trade; and if the measure aims to avoid distortions to trade caused by monopolies. Again, application of the CCP does not depend on whether the EU has harmonised an IP issue internally. The Opinion also argues that rules on court procedures do not necessarily fall outside the scope of the CCP.

Appling this test to the facts: enforcement and plant variety rights are part of the CCP, but some parts of the draft EU/Singapore are not: namely moral rights, which also are not covered by Article 3(2) because the EU has not harmonised them internally. But the EU does have shared competence over this issue, since it could harmonise them on the basis of its internal market powers.

Seventh, the Opinion looks at competition law (paras 459-466). The FTA rules on this issue fall within the scope of the CCP, since they extend EU rules to Singapore and there is a a strong link with trade in goods and services.

Eighth, the Opinion looks at the FTA provisions on environment and sustainable development (from para 478). Here the rules on renewable energy fall within the scope of the CCP, since there is a strong link to trade and investment. However, the rules on labour and environmental standards are not closely linked with trade, so the EU shares competence with its Member States (no one had made an argument that Article 3(2) applied). The rules on fish stocks fell within the scope of another EU exclusive competence: fisheries conservation.

Finally, the rules on transparency and judicial review were ancillary to the substantive provisions of the FTA (paras 508-13). So were the rules on dispute settlement and mediation (paras 523-44); here the Opinion points out that the controversial rules on investor-state dispute settlement were not at issue in this case (para 536). (Note that Belgium has promised to ask the Court about the relevant provisions in the EU/Canada FTA). And the final provisions are either accessory or minor, so change none of the legal assessment (paras 548-553).


The Advocate-General’s analysis as regards goods, services and intellectual property is unsurprising in light of prior case law. However, the analysis as regards the fresh issue of investment is more disputable. Her case that investor protection falls within the scope of the CCP is convincing, on the grounds that people might not invest in the first place without adequate protection (ie, there is a link back to market access). On the other hand, the analysis relating to portfolio investment puts form over substance: why should it matter that ‘common rules’ derive from the Treaties, rather than EU legislation? Also, the termination of bilateral investment treaties should more logically be seen as the corollary of the exercise of the EU’s other (exclusive or shared) competence, rather than a purely national competence. And it is unfortunate that the Commission missed this opportunity to ask the Court to rule already on the controversial investor-state dispute settlement rules.

What are the implications for other FTAs, and for Brexit? That depends in part on the exact commitments in those other treaties, since this Opinion analyses the commitments that would be made under the EU/Singapore FTA, and commitments under other treaties might differ. In particular, it’s conceivable that other FTAs might arguably require unanimity on the basis of Article 207(4) TFEU, discussed above, which was not at issue in this case.

In general, for other FTAs it seems likely that a mixed agreement may be necessary, in light of the interpretation here relating to the transport exception, portfolio investment, and labour and environmental standards. Apart from the question of termination of investment treaties, then, it will be a purely political question whether Member States are content to agree those trade treaties on behalf of the EU alone, or will continue to insist (as they traditionally have done) on Member States being parties as well.

As for a post-Brexit FTA in particular, different issues may arise. The UK and the EU might not have any interest in negotiating measures relating to investment or intellectual property, at least in the form that EU FTAs now address them. So if the UK and EU want to focus on goods and services only, then the EU’s exclusive CCP competence would apply except as regards transport – and the EU often signs separate transport agreements with non-Member States.  It could be argued that a deal might need unanimity on the basis of Article 207(4) TFEU, but the counter-argument is that a post-Brexit trade deal would simply be preserving (some of?) the existing UK market access into the EU, so could not threaten health or audiovisual services.

Even on transport issues, or as regards labour and environmental standards, case law suggests that exclusive competence on the basis of Article 3(2) applies where the EU seeks to extend its own laws to non-EU states. If the UK is willing to sign up to a treaty that preserves market access in return for compliance with EU rules, it would follow that today’s opinion – if followed by the ECJ – has possibly drawn a road map for the negotiation of an agreement based on free trade in goods and services and compliance with selected EU legislation which could avoid national ratification and (depending on the subject matter) national vetoes.

Barnard & Peers: chapter 24, chapter 27

Photo credit: Singapore Hotels and Guide

Data retention and national law: the ECJ ruling in Joined Cases C-203/15 and C-698/15 Tele2 and Watson (Grand Chamber)

Lorna Woods, Professor of Internet Law, University of Essex


Today's judgment in these important cases concerns the acceptability from a human rights perspective of national data retention legislation maintained even after the striking down of the Data Retention Directive in Digital Rights Ireland (Case C-293/12 and 594/12) (“DRI”) for being a disproportionate interference with the rights contained in Articles 7 and 8 EU Charter of Fundamental Rights (EUCFR).  While situated in the context of the Privacy and Electronic Communications Directive (Directive 2002/58), the judgment sets down principles regarding the interpretation of Articles 7 and 8 EUCFR which will be applicable generally within the scope of EU law. It also has possible implications for the UK’s post-Brexit relationship with the EU.

Background and Facts

The Privacy and Electronic Communications Directive requires the confidentiality of communications, including the data about communications to be ensured through national law. As an exception it permits, under Article 15, Member States to take measures for certain public interest objectives such as the fight against terrorism and crime, which include requiring public electronic communications service providers to retain data about communications activity. Member States took very different approaches, which led to the enactment of the Data Retention Directive (Directive 2006/24) within the space for Member State action envisaged by Article 15.  With that directive struck down, Article 15 remained the governing provision for exceptions to communications confidentiality within the field harmonised by the Privacy and Electronic Communications Directive.  This left questions as to what action in respect of requiring the retention of data could be permissible under Article 15, as understood in the light of the EUCFR.

The cases in today’s judgment derive from two separate national regimes. The first, concerning Tele2, arose when – following the DRI judgment – Tele2 proposed to stop retaining the data specified under Swedish implementing legislation in relation to the Data Retention Directive. The second arose from a challenge to the Data Retention and Investigatory Powers Act 2014 (DRIPA) which had been enacted to provide a legal basis in the UK for data retention when the domestic regime implementing the Data Retention Directive fell as a consequence of the invalidity of that directive.  Both sets of questions referred essentially asked about the impact of the DRI reasoning on national regimes, and whether Articles 7 and 8 EUCFR constrained the States’ regimes.

The Advocate General handed down an opinion in July (noted here) in which he opined that while mass retention of data may be possible, it would only be so when adequate safeguards were in place.  In both instances, the conditions – in particular those identified in DRI – were not satisfied.


Scope of EU Law

A preliminary question is whether the data retention, or the access of such data by police and security authorities, falls within EU law.  While the Privacy and Electronic Communications Directive regulated the behaviour of communications providers generally, Article 1(3) of that Directive specifies that matters covered by Titles V and VI of the TEU at that time (e.g. public security, defence, State security) fall outside the scope of the directive, which the Court described as relating to “activities of the State” . Further Article 15(1) permits the State to take some measures resulting in the infringement of the principle of confidentiality found in Art 5(1) which again “concern activities characteristic of States or State authorities, and are unrelated to fields in which individuals are active” [para 72]. While there seems to be overlap between Article 1(3) and Article 15(1), this does not mean that matters permitted on the basis of Article 15(1) fall outside the scope of the directive as “otherwise that provision would be deprived of any purpose” [para 73]. 

In the course of submissions to the Court, a distinction was made between the retention of data (by the communications providers) and access to the data (by police and security services).  Accepting this distinction would allow a line to be drawn between the two, with retention as an activity of the commercial operator regulated by the Privacy and Electronic Communications Directive within its scope and the access, as an activity of the State lying outside it. The Court rejected this analysis and held that both retention and access lay within the field of the Privacy and Electronic Communications Directive [para 76]. It argued that Article 5(1) guarantees confidentiality of communications from the activities of third parties whether they be private actors or state authorities. Moreover, the effect of the national legislation is to require the communications providers to give access to the state authorities which in itself is an act of processing regulated by the Privacy and Electronic Communications Directive [para 78]. The Court also noted that the sole purpose of the retention is to be able to give such access.

Interpretation of Article 15(1)

The Court noted that the aim of the Privacy and Electronic Communications Directive is to ensure a high level of protection for data protection and privacy. Article 5(1) established the principle of confidentiality and that “as a general rule, any person other than the user is prohibited from storing, without the consent of the users concerned, the traffic data”, subject only to technical necessity and the terms of Article 15(1) (citing Promusicae) [para 85].  This requirement of confidentiality is backed up by the obligations in Article 6 and 9 specifically dealing with restrictions on the use of traffic and location data. Moreover, Recital 30 points to the need for data minimisation in this regard [para 87]. So, while Article 15(1) permits exceptions, they must be interpreted strictly so that the exception does not displace the rule; otherwise the rule would be “rendered largely meaningless” [para 89].

As a result of this general orientation, the Court held that Member States may only adopt measures for the purposes listed in the first sentence of Article 15(1) and those measures must comply with the requirements of the EUCFR.  The Court, citing DRI (at paras 25 and 70), noted that in addition to Articles 7 and 8 EUCFR, Article 11 EUCFR – protecting freedom of expression – was also in issue. The Court noted the need for such measures to be necessary and proportionate and highlighted that Article 15 provided further detail in the context of communications whilst Recital 11 to the Privacy and Electronic Communications Directive requires measures to be “strictly proportionate” [para 95].

The Court then considered these principles in the light of the reference in Tele2 at paras 97 et seq of its judgment. Approving expressly the approach of the Advocate General on this point, it  underlined that communications “data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained” and that such data is no less sensitive that content [para 99]. The interference in the view of the Court was serious and far-reaching in relation to Articles 7, 8 and 11.  While Article 15 identifies combatting crime as a legitimate objective, the Court – citing DRI - limited this so that only the fight against serious crime could be capable of justifying such intrusion.  Even the fight against terrorism “cannot in itself justify that national legislation providing for the general and indiscriminate retention of all traffic and location data should be considered necessary” [para 103].  The Court stressed that the regime provides for “no differentiation, limitation or exception according to objectives pursued” [para 105].  The Court did confirm that some measures would be permissible:

… Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, does not prevent a Member State from adopting legislation permitting, as a preventive measure, the targeted retention of traffic and location data, for the purpose of fighting serious crime, provided that the retention of data is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary. [para 108]

It then set down some relevant conditions:

Clear and precise rules “governing the scope and application of such a data retention measure and imposing minimum safeguards, so that the persons whose data has been retained have sufficient guarantees of the effective protection of their personal data against the risk of misuse” [para 109].

while “conditions may vary according to the nature of the measures taken for the purposes of prevention, investigation, detection and prosecution of serious crime, the retention of data must continue nonetheless to meet objective criteria, that establish a connection between the data to be retained and the objective pursued” [110].

The Court then emphasised that there should be objective evidence supporting the public whose data is to be collected on the basis that it is likely to reveal a link, even an indirect one, with serious criminal offences, and thereby contribute in one way or another to fighting serious crime or to preventing a serious risk to public security. The Court accepted that geographical factors could be one such ground, on the basis that “that there exists, in one or more geographical areas, a high risk of preparation for or commission of such offences” [para 111].


…Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for the general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication [para 112].

Acceptability of legislation where (1) the measure is not limited to serious crime; (2) where there is no prior review; and (3) where there is no requirement that the data stays in the EU.

This next section deals with the first question referred in the Watson case, as well as the Tele 2 reference.

As regards the first point, the answer following the Court’s approach at paragraphs 90 and 102 is clear: only measures justified by reference to serious crime would be justifiable.  As regards the second element, the Court noted that it is for national law to law conditions of access so as to ensure that the measure does not exceed what is strictly necessary.  The conditions must be clear and legally binding. The Court argued that since general access could not be considered strictly necessary, national legislation must set out by reference to objective criteria the circumstances in which access would be permissible.  Referring to the European Court of Human Rights (ECtHR) judgment in Zakharov, the Court specified:

access can, as a general rule, be granted, in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime [para 119].

It then distinguished the general fight against crime from the fight against terrorism to suggest that in the latter case:

access to the data of other persons might also be granted where there is objective evidence from which it can be deduced that that data might, in a specific case, make an effective contribution to combating such activities [para 119].

The conditions set down must be respected. The Court therefore held that, save in cases of genuine emergency, prior review by an independent body must be carried out on the basis of a reasoned request by the investigating bodies. In making this point, the Court referred to the ECtHR judgment in Szabó and Vissy v. Hungary, as well as its own previous ruling in DRI. Furthermore, once there was no danger to the investigation by so doing, individuals affected should be notified, so as to those affected people the possibility to exercise their right to a remedy as specified in Article 15(2) read with Article 22 of the Data Protection Directive (Directive 95/46).

Article 15(1) permits derogation only in relation to specified provisions in the directive; it does not permit derogation with regard to the security obligations contained in Article 4(1) and 4(1a). the Court noted the quantity of data as well as its sensitivity to suggest that a high level of security measures would be required on the part of the electronic communications providers. Following this, the Court then stated:

…, the national legislation must make provision for the data to be retained within the European Union and for the irreversible destruction of the data at the end of the data retention period (see, by analogy, in relation to Directive 2006/24, the Digital Rights judgment, paragraphs 66 to 68) [para 122].

The Court noted that as a separate obligation from the approval of access to data, that States should ensure that independent review of compliance with the required regulatory framework was carried out by an independent body. In the view of the Court, this followed from Article 8(3) EUCFR. This is an essential element of individuals’ ability to make claims in respect of infringements of their data protection rights, as noted previously in DRI and Schrems

The Court then summarised the outcome of this reasoning, that Article 15 and the EUCFR:

must be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. [para 125]

Relationship between the EUCFR, EU law and the ECHR

The English Court of Appeal had referred a question about the impact of the ECHR on the scope of the EUCFR in the light of Article 52 EUCFR. While the Court declared the question inadmissible, it –like the Advocate General – took the time to point out that the ECHR is not part of EU law, so the key issue is the scope of the EUCFR; and in any event Article 52(3) does not preclude Union law from providing protection that is more extensive than the ECHR. As a further point, the Court added that Article 8 EUCFR, which provides a separate right to data protection, does not have an exact equivalent in the ECHR and that there is therefore a difference between the two regimes.


Given the trend of recent case law, the outcome in this case is not surprising.  There are some points that are worth emphasising.

The first relates to the scope of EU law, which is a threshold barrier to any claim based on the EUCFR.  The Advocate General seemed prepared to accept a distinction between the retention of data and the access thereto (although conditions relating to the latter could bear on the proportionality of the former).  The Court took a different approach and held that the access also fell within the scope of the Directive/EU law, because the national regime imposed an obligation on the communications service provider to provide access to the relevant authorities. Given this was an obligation on the service provider, it fell within the regulatory schema.  This approach thus avoids the slightly unconvincing reasoning which the Advocate General adopted.  It also possibly enlarges the scope of EU law.

In general terms, the Court’s reasoning looks at certain provisions of the Privacy and Electronic Communications Directive.  While the reasoning is set in that context, it does not mean that the Court’s interpretation of the requirements deriving from the EUCFR is limited only to this set of surveillance measures.  The rules of interpretation of particularly Articles 7 and 8 could apply more generally – perhaps to PNR data (another form of mass surveillance) - and beyond.  It is also worth noting that according to a leaked Commission document, it is proposed to extend the scope of the Privacy and Electronic Communications Directive to other communications service providers not currently regulated by the directive, but who may be subject to some data retention requirements already.

Whilst the Court makes the point that Articles 7 and 8 EUCFR are separate and different, and that data retention implicates also Article 11 EUCFR, in its analysis of the impact of national measures providing for retention it does not deal with Articles 7 and 8 separately (contrast DRI where a limited consideration was given to this). Having flagged Article 11 EUCFR, it takes that analysis no further.  This is the leaves questions as to the scope of the rights, and particularly how Article 11 issues play out.

Note that the Court does not state that data retention itself is impermissible; indeed, it specifies circumstances when data retention would be acceptable. It challenges the compatibility of mass data retention with Articles 7 and 8 EUCFR, however, even in the context of the fight against terrorism.  In this, it is arguable that the Court has taken a tougher stance than its Advocate General on this point of principle.  In this we see a mirror of the approach in DRI, when the Court took a different approach to its Advocate General.  In that case too, the Advocate General focussed on safeguards and the quality of law, as has the Advocate General here. For the Court here, differentiation – between people and between types of offences and threats – based on objective, evidenced grounds is central to showing that national measures are proportionate and no more than – in the terms of the directive – strictly necessary. This seems to go close to disagreeing with the Opinion of the Advocate General that in DRI, the Court ‘did not, however, hold that that absence of differentiation meant that such obligations, in themselves, went beyond what was strictly necessary’ (Opinion, para 199). The Advocate General used this point to argue that DRI did not suggest that mass surveillance was per se unlawful (see Opinion, para 205). Certainly, in neither case did the Court expressly hold that mass surveillance was per so unlawful, so the question still remains. What is clear, however, is that the Court supports the retention of data following justified suspicion – even perhaps generalised suspicion – rather than using the analysis of retained data to justify suspicion.

In its reasoning, the Court did not –unlike the Advocate General – specifically make a ruling on whether or not the safeguards set down in DRI, paras 60-68, should be seen as mandatory – in effect creating a 6 point check list. Nonetheless, it repeatedly cited DRI approvingly. Within this framework, it highlighted specific aspects – such as the need for prior approval; the need for security and control over data; a prohibition on transferring data outside the EU; the need for subjects to be able to exercise their right to a remedy. Some of these points will be difficult to reconcile with the current regime in the United Kingdom regarding communications data.

It did not, however, touch on acceptable periods for retention (even though it – like its Advocate General – referred to Zakharov). More generally, the Court’s analysis – by comparison with that of the Advocate General – was less detailed and structured, particularly about the meaning of necessity and proportionality. It did not directly address the points the Advocate General made about lawfulness, with specific reference to reliance on codes (an essential feature of the UK arrangements); it did in passing note that the conditions for access to data should be binding within the domestic legal system. Is this implicit agreement with the Advocate General on this point? It certainly agreed with him that the seriousness of the interference meant that data retention of communications data should be restricted to ‘serious crime’ and not just any crime.

One final issue relates to the judicial relationship between Strasbourg and Luxembourg.  Despite emphasising that the ECHR is not part of EU law, the Court relies on two recent cases from the ECtHR, perhaps seeking to emphasis the consistency in this area between the two courts – or perhaps seeking to put pressure on Strasbourg to hold the line as it faces a number of state surveillance cases on its own docket, many against the UK. The position of Strasbourg is significant for the UK. While many assume that the UK will maintain the GDPR after Brexit in the interests of ensuring equivalence, it could be that the EUCFR will no longer be applicable in the UK post-Brexit. For UK citizens, the ECHR then is the only route to challenge state intrusion into privacy. For those in the EU, data transfers to the UK post-Brexit could be challenged on the basis that the UK’s law is not sufficiently adequate compared to EU standards. Today’s ruling – and the UK’s response to it, if any – could be a significant element in arguing that issue.

Barnard & Peers: chapter 9

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Tuesday 20 December 2016

Scotland's Place in Europe: Comments on the Scottish Government's new proposals

Professor Steve Peers

Today, the Scottish government published its long-awaited discussion paper on ‘Scotland’s Place in Europe’. Although, as the paper points out, that government supports both EU membership and Scottish independence, the paper focusses on what should happen in the event of Brexit with Scotland remaining part of the UK. It would therefore be quite dishonest for anyone to dismiss the paper as simply ‘rejecting the referendum result’ (either the Brexit or the Scottish independence referendum result) or as ‘banging on about independence’.

So what does the paper propose? Essentially it discusses two options: a) a UK-wide approach to Brexit that would address the concerns of Scottish voters (among others); and b), failing that, a distinct approach for Scotland. It also makes c) the argument for further devolution of powers within the UK in light of the Brexit process. I’ll address mainly points a) and b), although there’s a necessary link between b) and c) – ie a distinct approach for Scotland/EU relations post-Brexit would more obviously require further devolution. Some of this ground is covered in a previous blog post, but it makes sense to revisit the issues in light of the new paper.

UK-wide response to Brexit

The paper primarily argues that the UK should stay in the EU’s single market as extended to non-EU countries like Norway and Iceland, in the form of the European Economic Area (EEA) treaty. It also argues that the UK should remain inside the EU’s customs union, which governs EU trade relations with non-EU states. As the paper rightly points out (at para 104), these are two separate issues – it would be possible to join one but not the other. It’s sometimes argues that being part of the single market entails being part of the customs union, but this is false, as the case of Norway (in the single market, but not the customs union) and Turkey (in the customs union, but not the single market) indicate. Although to date no non-EU state is part of both the single market and the customs union, there is no legal reason this cannot take place.

While it’s sometimes argued that staying in the single market is the same as staying in the EU, and would therefore be a rejection of the referendum result, this is false. As already noted, the EEA agreement doesn’t include the customs union, so the UK would be free to reach trade agreements with non-EU countries. It also does not extend to issues such as fisheries and agriculture (as the Scottish government paper points out), as well as EU foreign and defence policy, tax, and justice and home affairs issues. Norway and Iceland have agreements with the EU on some of these issues, such as participation in the Schengen open borders deal, but these are separate from EEA membership.

Today’s paper tackles a number of the objections to EEA membership.  It correctly notes (at para 100) that EEA membership does not mean being subject to the jurisdiction of the European Court of Justice (ECJ), which is a ‘red line’ for the UK government. However, it does mean being subject to the jurisdiction of an EFTA Court, which usually follows the ECJ where a case concerns an issue within the scope of the EEA treaty. It should be remembered, though, that some EFTA Court judgments (those following references from national courts) are not binding, unlike EU court rulings.

As regards the UK’s budget contribution to the EU, it points out correctly (at para 103) that contributions by non-EU EEA members are calculated differently (they don’t go straight to the EU budget, for instance), and may end up being less for the UK than at present. On the issue of immigration from the EU, the report fails to mention (at para 101) that a safeguard clause could be used to limit EU citizens coming to the UK. The Scottish government would have no interest in using this clause, but it could be invoked on a regional basis – for instance allowing screening of job applications from EU migrant workers at the employer level in England and Wales. While the report notes that non-EU EEA countries are consulted on new EU laws within the scope of the EEA, it doesn’t mention the possibility of non-EU EEA states rejecting the extension of those new laws to them.

Some things could be clearer in the report. There’s a list of areas besides trade where it advocates UK retains a strong relationship with the EU, but it’s not always clearly spelled out whether these are part of the EEA or not. For instance, private law (para 78), discrimination law besides sex discrimination law (para 79), EU funding to Scotland (para 89), research funding (para 92), refugee  issues (para 94) and criminal law (para 91) are outside the scope of the EEA, and so would need to be the subject of separate deals between the UK and the EU. Conversely, consumer law (para 79) and employment law (para 81) are within it. The report does make clear that many – though not all – EU environmental laws are inside the scope of the EEA (see para 93).

In particular, while the report advocates an interim arrangement for the UK leaving the EU, it does not suggest any details of what that might entail – and does not discuss the possibility, favoured by some ‘liberal Leavers’, that the UK could stay in the EEA only on an interim basis, pending negotiation of a comprehensive trade agreement.

Scotland-only approach

The report correctly notes that there is already geographical asymmetry (ie different application of the law in different parts of a country), not only in the application of EU law to parts of Member States and in the application of the EEA, but also in the UK’s planned response to Brexit. It proposes to follow the same approach to Scotland, which would participate in the EEA either via ‘sponsorship’ of the UK or directly (while still part of the UK).

This raises issues concerning the movement of goods or people between Scotland and the rest of the UK, if the two have different arrangements as regards relations with the EU. Some of these issues are discussed in detail in the paper, but it largely relies on arguing that whatever solutions are found for the Northern Ireland/Irish Republic border (as promised by the UK government) can be applied by analogy to relations between Scotland and the remaining UK.


The prospect of the UK staying in the EEA (or a comparable system) is legally much easier to arrange and negotiate than any Scotland-only approach to Brexit. However, as the report notes, EEA membership seems unlikely for political reasons, since the UK government seems unenthusiastic about any obligations regarding the free movement of people. On this point the report could have done more to address these concerns by discussing the possible use of the EEA safeguard clause. It could also at least have advocated participation in the EEA as an interim measure, given that the UK government in recent weeks has appeared increasingly open to the idea of some interim arrangement following Brexit in principle.  

Equally – although the report does not discuss this – a Scotland-only approach has political problems, as neither the UK government nor the remaining EU seem willing to discuss the idea.

However, the Scottish government might in theory have more success with its proposals relating to devolution. As it correctly notes, devolution issues are bound to arise once the Westminster Parliament examines the planned ‘Great Repeal Bill’ next year – since the conversion of EU law to UK law necessarily raises the question of how this process relates to the powers of the UK’s devolved governments. And on this issue, there is possibly more broad political support: the paper refers in particular to the interest of the Labour party in rethinking devolution, whereas that party does not seem interested in EEA membership for the whole UK and has not (to my knowledge) expressed any view on Scotland-only solutions for Brexit.

In this context, there is the prospect of a coalition of opposition MPs and rebel Conservatives with a number of common (and linked) concerns about the future Bill: ruling out lower standards for environment and employment law, addressing concerns of the devolved legislatures, and limiting the executive’s power to amend Acts of Parliament to reduce standards.

Beyond that is the specifically Scottish political context. If the Scottish government’s proposals on all three issues are rejected by the UK government – given the willingness of today’s report to accept both Brexit and Scotland remaining in the UK – this might be the occasion to argue that a further referendum on Scottish independence is justified, although other factors (such as opinion polling) will also play a big role in that decision.

Barnard & Peers: chapter 27

Photo credit: Business for Scotland

Thursday 15 December 2016

Brexit and the Future of Human Rights Law in the UK

Steve Peers

*The following is adapted from my comments at the launch of Conor Gearty’s book On Fantasy Island: Britain, Europe and Human Rights last week

What’s the future for human rights law in the UK after Brexit? The starting point in the debate is what happens to the Human Rights Act – the subject of Professor Gearty’s new book On Fantasy Island. It has a thorough grasp of detail, but also makes the case for the Act in its social, political and historical context. It has a command of the whole subject, but also demonstrates the importance of human rights cases to the individuals concerned.

In particular, On Fantasy Island demolishes the myth of a glorious past for human rights as part of the common law (see also his blog post on this theme). As Professor Gearty notes, it’s true that the Salvation Army had the right to march joylessly to demand that people endure grinding poverty with tedious sobriety. But many others were unsuccessful asserting such rights – or were subject to wrongful convictions which sometimes either turned into wrongful executions or would have done so if the death penalty were still applied.

The book also punctures the misunderstandings of the Human Rights Act (HRA) that portray it as entrenching excessive judicial power constraining elected politicians – pointing out that the courts (in the UK, or the European Court of Human Rights) cannot overturn Acts of Parliament on human rights grounds.

Indeed, in light of this conscious compromise between parliamentary sovereignty and human rights protection – comparable to that in ‘poster child’ common law Commonwealth states Canada and New Zealand – coupled with British involvement in drawing up the ECHR, it could be said that the UK’s human rights system is already so ‘red, white and blue’ that even Pavlov’s bulldogs should salivate at the mention of its name.

Of course, the public perception of the UK’s human rights system does not see it as closely linked to our legal heritage, despite several provisions of the ECHR and HRA that resemble Magna Carta. I’ll return to that problem below.

The Brexit context

There’s a substantive dimension to the links between Brexit and the Human Rights Act, as well as a broader political and advocacy dimension. Substantively, human rights are protected as a matter of EU law whenever the issue in the particular case is linked to EU law, for example in areas such as data protection, discrimination and asylum law. In that case, the EU Charter of Rights applies – with rights corresponding to the ECHR as well as some rights drawn from other sources. There’s also a stronger system for protecting those rights: UK courts at any level can set aside an Act of Parliament if necessary to that end, as seen in Vidal-Hall and Benkharbouche.

After Brexit, such protection will be governed by the detailed rules in the planned ‘Great Repeal Act’, which will convert EU law into UK law until individual measures are amended or repealed. This raises issues similar to the ‘post-HRA’ scenario discussed in On Fantasy Island. In particular: will CJEU case law still apply? Will the Charter of Rights still apply? What will the legal effect of the Act be, as a matter of domestic law? Will it be considered a ‘constitutional statute’, with a form of privileged status compared to other Acts of Parliament? How easy will be for the executive to repeal ex-EU laws (an issue discussed further here).

As for the political dimension, there is some overlap between the debate over the Human Rights Act and Brexit, but some differences too. Most notably, the dynamics of a referendum do not apply to the debate over the HRA.

And yet, the debate over HRA repeal will take place in Brexit Britain – a country which, to update Dean Acheson’s famous phrase, has now lost its post-war role but cannot refound its empire. Frustrated by this unavoidable fact, it is unlikely the critics of all things ‘European’ will feel full after Brexit. The Human Rights Act looks likely to be their next snack.

There is, however, a theoretical possibility – canvassed in Professor Gearty’s book – that a new British Bill of Rights or somesuch could be fashioned, while avoiding the weak points in the common law system for the protection of human rights. Frankly, while this might (with perfect hindsight) have been the best way to establish ‘constitutional patriotism’ for the Human Rights Act from the outset, this seems unlikely to happen in the current political context.  

First of all, leaked government plans indicated the intention was to remove effective remedies while handing the constitutional equivalent of a ‘bung’ to tabloid newspaper editors.

More broadly, the level of public debate since the referendum vote has been diabolically poor. One side basically repeats ‘You lost. Shut up!’ while the other repeats ‘We won’t. You lied!’ ad infinitum. This ‘debate’ has been punctuated by political murder, escalating threats of violence, and a large part of government and media opinion showing visceral contempt for the rule of law and parliamentary democracy.

Towards a new defence of the Human Rights Act

So there’s a strong case for retaining the Human Rights Act; but if we want to retain it, we have to defend it. It’s important to think of the best way to defend it, however. As lawyers or law professors we have to teach and practice human rights law technically – to understand deadlines for filing better than the Home Secretary, for instance. I’ve been called ‘forensic’ so many times that I should probably have my own CSI spin-off.

Moreover, some of the argument in defence of the HRA is defensive. As I pointed out already, Professor Gearty’s book rightly argues that the Act doesn’t allow the Courts to overrule Parliament. But reading arguments like these reminds me of the EU referendum arguments that the UK can overrule major changes to the EU, or that ‘unelected bureaucrats’ do not make all EU laws. Perfectly accurate arguments – but they did not win the day.

It’s also necessary to focus on a more positive case for the Act (including the ECHR more broadly). Some claimants are undeniably hard to love. But human rights law also helped a gay man kicked out of his home because the love of his life died. It protected the elderly in care homes left in their own filth. It safeguards children beaten so badly by their parents that they need to visit the hospital. It offers justice to grieving family members trying to find out why their loved one died. And it exposed wrongdoing leading to the tragic fate of many children whose mothers took the thalidomide drug.

This is the rational but passionate, reasoned yet humane, case that we have to make for the preservation of the Act.

Photo credit: University of Essex