Thursday, 28 May 2020

How is Part Two of the Withdrawal Agreement (citizens' rights) enforceable in the courts?





Professor Tamara Hervey, Natalia Miernik and James C Murphy (UG students), University of Sheffield

The support of the ESRC for Health Governance after Brexit and UK in a Changing Europe is gratefully acknowledged

1. Introduction

Some 3.6 million EU citizens, and their families, live in the UK. An estimated over 185,000 work in the health and social care sector, as highlighted in recent news reports. Part Two of the Withdrawal Agreement, on ‘Citizens’ Rights’ gives these people continuity of many of the rights they enjoyed in EU law. This blog post builds on earlier posts on the EU (Withdrawal Agreement) Act 2020; and the relevant parts of the Withdrawal Agreement itself. It considers what happens if those rights are not upheld. How can people affected enforce the Withdrawal Agreement? This is an important practical consideration: rights on paper without the means to enforce them are meaningless.

The ‘Citizens Rights’ provisions of the Withdrawal Agreement will continue to apply after the end of transition. They give residence rights and rights to access health care, pensions and other social security entitlements. Note, there are equivalent provisions in the EEA/EFTA Separation Agreement and the Swiss Citizens Rights Agreement (which the Withdrawal Agreement Act also gives domestic legal effect to in the UK).

Our focus here is the enforceability of the ‘Citizens Rights’ provisions of the Withdrawal Agreement in the UK. The question of their enforceability in EU Member States is a matter of EU law and of domestic constitutional law in each relevant Member State. However, because the Withdrawal Agreement is intended to impose reciprocal obligations (Article 4 (1) WA), where necessary, we also explain the enforceability of those provisions in the EU.

The starting point, which will be the relevant legal position for all instances where the UK brings into domestic law its relevant obligations under the Withdrawal Agreement, is the EU (Withdrawal Agreement) Act 2020. This gives power to adopt regulations to implement the Citizens Rights parts of the Withdrawal Agreement. If the UK executive adopts regulations that fully implement the citizens’ rights contained in the Withdrawal Agreement, then enforcing those rights in UK courts or tribunals will be a matter solely of domestic law: a claimant will be relying on rights found in UK regulations.

But what if the UK does not do so adequately? Can a claimant who believes this is the case bring a claim based on an infringement of their rights under the Withdrawal Agreement in UK courts or tribunals?

2. Enforceability of the Withdrawal Agreement in the UK

In EU law, two legal doctrines interact so as to have the effect that certain parts of EU law are enforceable by citizens using their national courts. These doctrines are known as ‘supremacy’ and ‘direct effect’. They are currently (pre the end of transition) recognised by UK courts, and applied accordingly, as required by the European Communities Act 1972.

In order for the Withdrawal Agreement to be enforceable in the UK, that effect must be created by an Act of Parliament. This is necessary because the UK is a ‘dualist’ country, where international treaties are not enforceable in the domestic legal system, unless there is domestic legislation which gives effect to them.

The EU (Withdrawal Agreement) Act 2020, section 5(1), which inserts a new section 7A into the European Union (Withdrawal) Act 2018, gives domestic legal effect to the Withdrawal Agreement, after the transition period:

‘all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement… are without further enactment to be given legal effect or used in the UK.’

This provision uses very similar wording to the European Communities Act 1972, section 2 (1), which is the part of UK law which gave EU law supremacy and direct effect in the UK legal order.

The supremacy, or primacy, of EU law means that it must be applied in preference to contradictory national law, even if the contradictory national law has been enacted later than the relevant EU law.

2.1 Supremacy

The UK House of Lords case of Factortame confirmed that the 1972 Act gave EU law supremacy in the UK. The House of Lords found that it was required to ‘disapply’ or disregard any domestic legislation that was contrary to European Community law. Lord Bridge’s judgment expressed it thus:

“under the terms of the Act of 1972 it has always been clear that it was the duty of a UK court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law”.

In the same sense, it is possible that section 7A of the European Union (Withdrawal) Act 2018 will have the same effect in that any domestic provision that contradicts the Withdrawal Agreement will be disregarded. In other words, Parliament may have given the Withdrawal Agreement supremacy in the same way the European Communities Act 1972 gave EU law supremacy.

This seems to be the intention of the Withdrawal Agreement. Its Article 4 (1) provides that the Withdrawal Agreement’s provisions “shall produce in respect of and in the United Kingdom the same legal effects” as they produce in the EU. Article 4 (2) of the Withdrawal Agreement imposes an explicit obligation on the United Kingdom to secure compliance with this agreement, ‘including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.’ (italics added).

But whether the supremacy of the Withdrawal Agreement, in the sense that contradictory domestic legislation must be ‘disapplied’ is secured by the EU (Withdrawal Agreement) Act 2020, and its amendments to the EU (Withdrawal) Act 2018 remains moot. It might be argued, for example, that the provisions of the EU (Withdrawal) Act 2018, as amended by the 2020 Act, represent a Parliamentary intention to free UK courts from the constraints implicit in the supremacy doctrine. The UK would then be in breach of the Withdrawal Agreement, because the Withdrawal Agreement would not have ‘the same legal effect’ in the UK as in the EU. But the remedy for that breach would lie elsewhere than in a claim brought by a citizen relying on a provision of the Withdrawal Agreement as disapplying contradictory national law.

2.2 Direct Effect

Whether the Withdrawal Agreement has the quality of ‘disapplying’ contradictory UK legislation or not, a further crucial question is whether the Withdrawal Agreement contains rights which can be enforced by individuals in UK courts and tribunals, such as the Social Security and Child Support Appeal Tribunals. This quality of EU law is known as ‘direct effect’.

There are two questions to be decided: first, whether the Withdrawal Agreement’s provisions on citizens’ rights have direct effect; and second whether that direct effect is effectively enacted as a matter of domestic law in the UK. The two are inter-related, because, as noted above, the Withdrawal Agreement itself provides that the agreement is to produce ‘the same legal effect’ in the UK as it does in the EU. If the Withdrawal Agreement did not provide for direct effect of the Citizens Rights provisions, then the UK need not effectively enact such direct effect into its domestic legal system.

2.2.1 Direct effect of the citizens’ rights provisions of the Withdrawal Agreement as a matter of EU law

The Withdrawal Agreement provides in Article 4 (1) that

‘... legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law’. (italics added)

The term ‘the conditions for direct effect under Union law’ could be interpreted in two ways. Either it means the conditions for direct effect of EU law itself; or it means the conditions for direct effect in EU law of international agreements to which the EU is a party. The wording of Article 4, taken literally, might suggest the latter. Article 4 WA provides for ‘the conditions for direct effect under Union law’, not ‘the conditions for direct effect of Union law’.

EU law itself is directly effective where provisions meet a set of criteria developed by the European Court of Justice in the 1970s and 80s. They are relatively generous: the provision must set out entitlements for the benefit of individuals, and impose direct duties on a Member State authority to protect those entitlements. There is a (controversial, but accepted) presumption that the nature of the EU legal order is such that individuals enjoy enforceable rights within that novel legal order.

By contrast, provisions of international agreements to which the EU is a party are directly effective in a narrower range of circumstances. First, the agreement itself, taken as a whole, in terms of its overall nature and logic, must be capable of granting enforceable rights. Second, the specific provision at issue must contain a sufficiently precise legal obligation. Both conditions must be met. The CJEU’s approach makes a distinction between the novel legal order of EU law, and ‘ordinary’ international law. There is no presumption that provisions of international agreements to which the EU is a party, even if identically worded to provisions of EU law, have direct effect. The CJEU takes account of the political context as a whole: it is not simply a decision based on legal criteria alone.

Which interpretation of Article 4 WA is correct is a moot point, and could be the subject of litigation.

Adopting the former approach would lead to the conclusion that the Citizens’ Rights provisions of the Withdrawal Agreement have direct effect. The provisions set out entitlements for the benefit of individuals, and impose direct duties on a Member State authority to protect those entitlements. They are worded almost identically to directly effective provisions of EU law.

Adopting the latter approach would, in our view, lead to the same conclusion. But the steps of legal reasoning to reach that conclusion are more complex.

First, taking into account the nature and logic of the Withdrawal Agreement as a whole, is the Agreement such an agreement as capable of creating enforceable rights? It might be argued that the Withdrawal Agreement aims to provide for as smooth an exit from the EU as possible for the UK, but at the same time taking account of what is possible given the nature of the EU. The Withdrawal Agreement must be interpreted taking into account the UK’s position that it seeks to be outside of the control of EU law. The consequent effect of that position is that citizens in an EU-UK cross border situation will cease to enjoy the many benefits of EU membership. In other words, it is in the nature of the Withdrawal Agreement that citizens in a cross-border situation will find themselves worse off after Brexit. An aspect of that consequence could be the lack of enforceability of the Withdrawal Agreement.

But the better argument is that the whole point of the Withdrawal Agreement in this context is to secure the acquired rights of citizens who are in a cross-border position, who have relied in good faith on the ‘safety net’ of EU law, and on the benefits that EU membership had hitherto given those citizens. It is not possible to secure all such rights, as the UK is no longer an EU Member State. But the aim of the Withdrawal Agreement should be understood to be to secure as many such rights and benefits as possible. Therefore, the Withdrawal Agreement should be interpreted to be the type of agreement capable of direct effect. To this argument, we might add that where the EU has intended an agreement not to have direct effect, it has more recently been explicit on the matter, excluding direct effect in the text of the agreement itself, or in the Council Decision which concludes the agreement on behalf of the EU. The EU has emphatically not done so in the case of the Withdrawal Agreement, suggesting an intention that the Agreement taken as a whole is of a type which is capable of direct effect.

Second, what of the requirement that the specific provision at issue must contain a sufficiently precise legal obligation? This is an extraordinarily technical and complex area of EU law, where the CJEU’s approach has been criticized. It is difficult to draw general principles from the CJEU’s case law. Some authors have distinguished between association, cooperation and trade agreements, where the CJEU is more likely to find provisions directly effective, and other types of international agreements to which the EU is a party, where it is less likely to do so. This observation does not help with the Withdrawal Agreement: are we to consider it more similar to an association, cooperation or trade agreement, which all aim to bring closer integration between the parties (whereas the effect of the Withdrawal Agreement is to create divergence) or another type of international agreement?

Turning to the specific measures at issue, the relevant part of the Withdrawal Agreement contains many provisions which provide precise legal obligations, imposing specific duties on national authorities and granting rights to individuals: for instance, Articles 13-28, 31-35, 39 WA all have this quality, especially when combined with the definitional/scope provisions in Articles 9, 10 and 30 WA.

We conclude that, whichever approach is taken, many of the Citizens Rights provisions of the Withdrawal Agreement are directly effective as a matter of EU law.

2.2.2 Direct effect of the citizens’ rights provisions of the Withdrawal Agreement in UK law

What about the position in UK law?

The starting point here is the interpretative presumption that Parliament intends to implement the obligations on the UK found in the Withdrawal Agreement. The European Union (Withdrawal Agreement) Act 2020 inserts section 7C into the European Union (Withdrawal) Act 2018, which makes this presumption explicit.

7C Interpretation of relevant separation agreement law

(1) Any question as to the validity, meaning or effect of any relevant separation agreement law is to be decided, so far as they are applicable—
(a) in accordance with the withdrawal agreement, ... and ...
(2) See (among other things)—
(a) Article 4 of the withdrawal agreement (methods and principles relating to the effect, the implementation and the application of the agreement),

Any question as to, inter alia, the effect of any relevant law is to be decided in accordance with the Withdrawal Agreement. Section 7C refers explicitly to Article 4 WA in this regard.

The national implementation of the obligation to secure the direct effect of relevant provisions of the Withdrawal Agreement is found in section 7A of the European Union (Withdrawal) Act 2018, as amended. It reads:

7A General implementation of remainder of withdrawal agreement

(1) Subsection (2) applies to—

(a) all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement, and
(b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement, as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom.

(2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be—

(a) recognised and available in domestic law, and
(b) enforced, allowed and followed accordingly.

(3) Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (2).

This provision, as already noted, is similar to section 2, on ‘General implementation of Treaties’ of the European Communities Act 1972:

(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.
...
(4) The provision that may be made under subsection (2) above includes … any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; ...

Just as section 2 of the European Communities Act 1972 secures direct effect of EU law in the UK’s legal system until the end of transition, so sections 7C and 7A of the European Union (Withdrawal) Act 2018 secure direct effect of the Withdrawal Agreement after transition.

During the negotiations of the Withdrawal Agreement, the UK government published an (undated) Technical Note which stated that direct effect is a principle specific to EU law and that it will cease to apply in the UK once the UK is no longer a Member State. Moreover, the note contends (para 3) that direct effect is not necessary for individuals to be able to enforce their rights under the Withdrawal Agreement:

‘The same substantive result can be achieved if the Withdrawal Agreement requires the UK to give citizens specified rights, and the UK enacts domestic legislation whose effect is to bestow those rights … EU citizens [will] be able to enforce those rights through the UK’s domestic legal system...’.

We do not agree with the analysis here. A ‘Technical Note’ as part of negotiations can only have a persuasive effect in terms of interpreting the legislative text. As explained above, the better interpretation of the legislation is that it expresses Parliamentary intention to comply with the obligations in the Withdrawal Agreement by granting relevant provisions of that agreement the legal quality of direct effect in UK law.

We note that several influential commentators, for instance, Richard Eccles, of the international law firm Bird & Bird; Emily McKenzie of Brick Court Chambers; and Steve Peers on this blog share our view that relevant provisions of the Withdrawal Agreement have direct effect in the UK post-transition.

2.3 Independent Monitoring Authority

Section 15 of the European Union (Withdrawal Agreement) Act 2020 establishes an Independent Monitoring Authority. Its general duties, laid down by statute, are to ‘promote the adequate and effective implementation and application in the United Kingdom of Part 2 of the withdrawal agreement …’ (schedule 2, section 23 (1)). Further details about the IMA are in schedule 2 of the Act. They include the independence of the authority from government; provisions on membership, including expertise on relevant matters in Northern Ireland, Scotland and Wales; provisions for payment of non-executive members; provisions for staffing; powers to delegate functions.

The IMA is to have powers to carry out inquiries, bring judicial review claims or intervene in judicial proceedings. But it is not obliged to do any of these things. The IMA is to be obliged only to carry out a preliminary review of a complaint brought by a person claiming to have a relevant right, to the effect that the UK has failed to comply with its duties in Part 2 of the Withdrawal Agreement, or a UK public authority has acted in a way which prevents that person from exercising the relevant right.  The preliminary review is so that the IMA may decide whether to carry out an inquiry. In reaching that decision, the IMA is obliged to ‘consider whether it would be more appropriate for the person who made the complaint to deal with its subject matter by other means (for example, court proceedings) than for the IMA to carry out an inquiry’.

The provisions in the 2020 Act conform with the UK’s obligations under Article 159(1) WA. This provision gives such an independent authority the power to: conduct inquiries concerning breaches of Part Two by administrative authorities; receive complaints from Union citizens and their family members for the purposes of conducting inquiries; and bring legal action before UK courts or tribunals following such complaints.

The IMA is to be appointed before the end of the transition period.

According to the government’s information, the Independent Monitoring Authority will report annually to Parliament, and will be sponsored by the Ministry of Justice.

The European Union (Withdrawal Agreement) Act 2020 provides that the IMA’s role may be transferred to another authority, by executive act, if this meets the requirements of ‘efficiency, effectiveness and economy’, taking into account the need for continued operational independence, impartiality and appropriate resourcing to carry out its functions. The government also has the power to abolish the IMA altogether (schedule 2, section 40),

‘if it appears to the Secretary of State that, in accordance with Article 159(3) of the withdrawal agreement ..., it is no longer necessary for the IMA to continue to exist’.

While the IMA, or a successor authority, is operating, those who feel that their rights under the Withdrawal Agreement have not been adequately implemented or upheld by the UK authorities may make a complaint to the independent monitoring authority (IMA). The IMA will then be able to launch an inquiry into how the UK authority has implemented the citizen’s rights under the agreement. If the IMA believes that the UK authority has failed to implement or apply the relevant rights, it has the power to bring legal proceedings against the authority. The IMA will act as the equivalent to the European Commission, which will monitor the implementation and application of citizens’ rights under the Withdrawal Agreement in the EU. This implementation process falls far short of ‘direct effect’.

The independent legal charity, the Public Law Project, has pointed out:

‘The IMA will have a key role in monitoring and protecting EU citizens’ rights after Brexit. As such, the Secretary of State should not be able to make fundamental changes, or even abolish it, by secondary legislation. Any amendments to the IMA must be by primary legislation and in accordance with the WA.’

Reliance by the UK only on this method of enforcement, especially given the executive powers to remove it without external scrutiny, would comply with the UK’s obligations under Article 4 WA, if, and only if, the relevant provisions of the Withdrawal Agreement did not have the quality of direct effect, under the terms of the Withdrawal Agreement. Given that they do have that quality (see above), we conclude, therefore, that the European Union (Withdrawal Agreement) Act 2020 expresses parliamentary intention that the relevant provisions of the Withdrawal Agreement are directly effective.

2.4 Joint Committee

The IMA is not the only body that implements the Withdrawal Agreement into UK law. Article 164(1) WA establishes a UK-EU Joint Committee which ‘shall be responsible for the implementation and application of this Agreement’. Moreover, Article 166(1) WA gives the Joint Committee the power to adopt decisions with regards to any matter within this agreement. The effect of such decisions shall be binding on the UK and the Union; they must implement such decisions under international law. While the Joint Committee does not receive complaints about breach of the provisions in the Withdrawal Agreement, it is obliged to assess, no earlier than 8 years after the end of the transition period (31st December 2028) the functioning of the IMA. The Joint Committee even has the power to decide that the UK may abolish the IMA.

The first meeting of the EU-UK Joint Committee under the Withdrawal Agreement took place on Monday 30 March 2020 by means of teleconference. The agenda for this meeting included UK / EU updates on implementation of the Withdrawal Agreement on Citizens’ Rights. During this meeting, the vice-president of the European Commission, both ‘welcomed the UK’s commitment to continue to ensure that EU citizens can register as lawful residents in the UK, so that they can enjoy their rights granted by the Withdrawal Agreement’ as well as confirming ‘that the Commission will support Member States in making sure that UK nationals in the EU will be in a position to exercise their rights under the Withdrawal Agreement, and will continue to monitor that this is done correctly.’ Both the UK and the EU agreed to ‘launch the work of the six Specialised Committees on the key areas for the implementation of the Withdrawal Agreement.’ The establishment of such Specialised Committees, most importantly the Committee on Citizen’s Rights, can be found in Article 165(1)(a) WA.

2.5 Preliminary Reference Procedure

Another element of the enforcement the Citizens Rights provisions of the Withdrawal Agreement in the UK post-transition is through a preliminary reference procedure. Article 158(1) WA provides that UK courts may refer questions of interpretation of Part 2 to the CJEU where a case commenced within 8 years from the end of the transition period before a UK court or tribunal. The legal effect of this on the UK is to be the same as the legal effect of the preliminary reference procedure governed by Article 267 TFEU (binding on the national court that submitted the question).

This aspect of the Withdrawal Agreement is brought into UK law by section 7C of the European Union (Withdrawal) Act 2018. This provides that questions about the interpretation, validity or effect of relevant law concerning the Withdrawal Agreement are to be decided in accordance with the Withdrawal Agreement. Section 7C (2)(b) refers explicitly to Article 158 WA and the jurisdiction of the CJEU under Part 2 of the Withdrawal Agreement.

3. Conclusion and summary

Until December 2020, (unless the EU and the UK agree, before July 2020, to extend the period for up to two years) EU law remains applicable. When the transition period ends, the UK’s obligations under the Withdrawal Agreement will take effect in UK law via the EU (Withdrawal) Act 2018, as amended by the EU (Withdrawal Agreement) Act 2020. These measures include the Citizens Rights provisions in the Withdrawal Agreement.

Post-transition, at least five bodies will have a role to play in the enforceability of those rights:
-       The UK executive will implement the UK’s obligations in UK law using statutory instruments, relying on powers given in the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020.
-       Also reliant upon these powers, an Independent Monitoring Authority will be set up in the UK to ensure the application and implementation of Part 2 of the Withdrawal Agreement. It will receive complaints from individuals and will have the power to conduct reviews.
-       This part of the Agreement is directly effective, and can be relied upon by individuals before domestic courts and tribunals in the UK.
-       Questions relating to interpretation of these parts of the Withdrawal Agreement may also be determined by the CJEU through a preliminary reference procedure, whereby domestic courts and tribunals refer such questions to the CJEU. 
-       General enforcement of the Withdrawal Agreement will be ensured by the Joint Committee, who will discuss and oversee implementation methods.

Barnard & Peers: chapter 26
Photo credit: Michael Reeve, via Wikimedia Commons

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