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

The Withdrawal Agreement Act: Implementing the Brexit Withdrawal Agreement in the UK

Professor Steve Peers, University of Essex

What are the legal consequences of leaving the EU for the UK? Those consequences are manifold, but some of the key aspects are set out in the Withdrawal Agreement Act (the ‘new Act’), which Parliament passed in January. The main purpose of the new Act is to implement the revised withdrawal agreement in the UK. This was necessary given that the UK is a ‘dualist’ country, where international treaties are not enforceable in the domestic legal system unless there is domestic legislation to give effect to them. For those who wish to enforce rights provided by the withdrawal agreement in the UK, the new Act is the starting point.

In contrast, there is no equivalent to the Act passed by the EU, under the assumption that the withdrawal agreement meets the criteria for ‘direct effect’ of an international treaty in EU law – meaning that it can be enforced by the courts without any EU legislation to that effect. There will be some national measures relevant to UK citizens staying on the basis of the withdrawal agreement, however; and the decision concluding the withdrawal agreement on the EU side contains some procedural rules, as noted below.

The new Act does other things too: partly addressing the future relationship with the EU; partly regulating the UK’s position as regards the joint implementation of the withdrawal agreement with the EU; and most significantly, changing the way in which EU law is dealt with in the UK post-Brexit.

This blog post seeks to provide an overview of how the new Act provides for the application of the withdrawal agreement in the UK. It’s a complex Act, and this post does not claim to be comprehensive. Nor does it offer legal advice. If you are a party to relevant legal proceedings or contemplating litigation under the Act – or under the withdrawal agreement as a UK citizen in an EU Member State – you should consult a lawyer.

Since the new Act is closely related to the revised withdrawal agreement, my earlier analyses of that agreement (overview; transition period; dispute settlement; and citizens’ rights) are relevant in explaining the details of these key issues further (see also my analysis of the jointly agreed political declaration on the future UK/EU relationship). 

It should be noted that the new Act differs somewhat from the Withdrawal Agreement Bill tabled back in October (which I commented on here). That’s because, after the election, the government tabled a different version of the bill (which then passed Parliament without any amendment) than the version initially tabled in October. This was not an amendment of the withdrawal agreement (as agreed with the EU) itself, as some thought, but rather a change to the implementation of that treaty in the UK. If the EU had misgivings about these changes, it nevertheless did not stop the European Parliament and EU Council from concluding the treaty on the EU side in January.

How does the final Act differ from the original version of the bill tabled in October? There’s a useful track changes comparison of the two here. In short, compared to the original bill, the final Act:

-          added a power for ministers to give courts instructions about interpretation of EU law converted into UK law (other than the withdrawal agreement itself);

-          removed parliamentary control over extension of the transition period (replacing it with a ban on extension) and the future relationship negotiations;

-          added a clause on transparency of dispute settlement;

-          removed all provisions on workers’ rights;

-          banned the UK agreeing to a written procedure in the Joint Committee set up by the withdrawal agreement; and

-          repealed an additional chunk of prior legislation related to Brexit, including an obligation to attempt to negotiate on family reunion of unaccompanied child asylum-seekers, as well as the Benn Act (discussed here) which required the final extension of EU membership.

  

Furthermore, the new Act does not simply concern the withdrawal agreement: it also implements in the UK two other treaties relevant to Brexit: the EEA EFTA Separation Agreement and the UK-Swiss Citizens’ Rights Agreement. These two agreements respectively protect acquired citizens’ rights as between the UK and Norway, Iceland and Liechtenstein and the UK and Switzerland, in a very similar way to the citizens’ rights provisions in the main withdrawal agreement. The former treaty also contains a few separation provisions on issues like goods and judicial cooperation (ie where goods from the UK have been placed on the market of the EEA EFTA States, or vice versa, before the end of the transition period) – in this case a truncated form of the separation provisions in the withdrawal agreement.

Finally, it should be noted that a big chunk of the new Act consists of amendments to the EU Withdrawal Act, originally adopted in 2018, which is the main statute governing the domestic legal effects of Brexit. (Here’s the Withdrawal Act before amendment and after amendment, and here’s a track changes version, which also includes the changes to the Withdrawal Act which have not yet been commenced). There are explanatory notes on the bill, and a memorandum on delegated powers.  There’s also some secondary legislation already adopted to implement the new Act – namely the commencement order and rules on appeal rights relating to EU citizens (discussed here). There may be more secondary legislation implementing the new Act in future. (Update, March 24 2020: a second commencement order has been adopted, bringing more of the Act into force).

Approval of the withdrawal agreement

The immediate impact of the new Act was that it provided the domestic legal basis for the UK ratifying the withdrawal agreement in international law. It switched off both the specific rules for approval of the withdrawal agreement in the EU Withdrawal Act (the so-called ‘meaningful vote’, which Theresa May lost three times on the previous version of the withdrawal agreement), and the general rules for approval of international treaties in the Constitutional Reform and Governance Act (CRAGA). (See respectively section 31 and section 32 of the new Act). The effect of this was that as soon as the new Act obtained Royal Assent, the government had the power to ratify the withdrawal agreement without holding a further vote, which it duly did.

The transition period

The Act makes specific provision for the transition period in the withdrawal agreement, which ensures the continued application of EU law to the UK until at least the end of 2020. In particular:

-          section 1 of the new Act inserts a new section 1A into the Withdrawal Act, which switches back on the European Communities Act, the main domestic law basis for EU membership, for the duration of the transition period;

-          section 2 of the new Act inserts a new section 1B into the Withdrawal Act, which keeps in force domestic legislation based on EU membership for the duration of the transition period;

-          section 3 of the new Act inserts a new section 8A into the Withdrawal Act, which gives the government wide powers to adopt secondary legislation in relation to the transition period. This includes “Henry VIII” powers to amend Acts of Parliament (although those powers cannot apply to Acts of Parliament adopted after the end of the transition period). These powers run out two years after the end of the transition period;

-          section 4 of the new Act inserts a new Part (sections 11A to 11F) into the Withdrawal Act, which gives devolved bodies in Scotland, Wales and Northern Ireland powers in relation to implementation of the transition period.  

Although the withdrawal agreement provides for a possible extension of the transition period for one or two years, subject to agreement of both sides and conditional on agreement on other issues relating to budget contributions, it is UK government policy to oppose any extension. That government policy is now set out in section 33 of the Act (inserting a new section 15A of the Withdrawal Act), which prevents the government agreeing to any such extension. Of course, the government could ask Parliament to amend the law if it changed policy, but as it stands the law prevents the government agreeing an extension unless the Act is amended.  As noted above, this is one of the changes made as compared to the original version of the withdrawal agreement bill, which provided for Parliament to approve any government decision to agree to any extension of the transition period, but did not rule such decisions out.

Note that the provisions in the withdrawal agreement on citizens’ rights, the financial settlement, Northern Ireland and other issues will not expire at the end of the transition period. In fact, for the most part that’s when the provisions on citizens’ rights and Northern Ireland kick in. Similarly that’s when most of the changes to the status of EU law in the UK will now apply. Section 25 of the new Act amends a chunk of the Withdrawal Act to delay much of the effect of that Act to the end of the transition period, instead of Brexit day as such.  (Schedule 5 to the new Act makes further amendments to the same end to the Withdrawal Act, secondary legislation and other primary legislation of Westminster and devolved bodies).  

One provision of the new Act deals with the process of adopting new EU legislation during the transition period, given that it will apply to the UK. Section 29 inserts a new section 13A into the Withdrawal Act, which provides for possible parliamentary debate over a new EU measure in some cases. But this is lipstick on a pig squared: the government is not bound by the result of any parliamentary debate, and would have no vote on the issue at EU level even if it were.

Implementing the withdrawal agreement

Section 5 of the Act inserts a new section 7A into the Withdrawal Act: a general clause giving domestic legal effect to the rest of the withdrawal agreement, other than the transition period. It requires those rights to be recognised and enforced in the UK’s legal systems. All legislation must be read and have effect subject to this rule.

There are also specific, more detailed rules on implementing certain parts of the withdrawal agreement such as citizens’ rights (discussed further below), but the new Act uses the words ‘See also’ these other provisions – indicating that any of these more detailed rules apply on top of the more general entrenchment of the withdrawal agreement in domestic law. That means that anyone seeking to enforce the new Act (EU citizens seeking to enforce their rights, for instance) could rely on either these more specific provisions (and the secondary legislation based on them), or the general implementation obligation, or both – depending on which rule in the withdrawal agreement they were trying to enforce. 

In very similar terms, Section 6 of the Act inserts a new section 7B into the Withdrawal Act: a general clause giving domestic legal effect to the EEA EFTA Separation Agreement and the UK-Swiss Citizens’ Rights Agreement. Again, there are more additional, more detailed rules in the rest of the Act.

Citizens’ rights

The citizens’ rights provisions of the withdrawal agreement aim to preserve most of the same status that EU27 citizens in the UK, and UK citizens in the EU27, have on the basis of EU free movement law, if they moved before the end of the transition period in the withdrawal agreement.

The specific provisions in the new Act mainly set out further powers for the government to implement the withdrawal agreement (and the EEA EFTA separation agreement and UK/Swiss citizens’ rights treaty) as regards:

-          the deadline for EU27 citizens to apply for status under the withdrawal agreement, including protection pending the deadline (June 2021 if the transition period is not extended) and while applications are being processed (section 7);

-          frontier workers, and their documentation (section 8)

-          restrictions of entry and residence (section 9);

-          appeals and judicial review (section 11);

-          recognition of professional qualifications (section 12);

-          social security (section 13); and

-          non-discrimination and workers’ rights in the context of free movement (section 14).

All of these provisions refer back to the withdrawal agreement; they are not general power to do anything the government likes, even in breach of it. They confer ‘Henry VIII’ powers to amend Acts of Parliament, and mostly extend beyond those covered by the withdrawal agreement. The last three sets of powers also extend to devolved bodies (see further Schedule 1 to the new Act). Note that the powers in section 11 have already been used to adopt secondary legislation providing for appeal rights for EU27 citizens, as noted above.

Similarly, section 10 of the new Act amends other Acts of Parliament so that the grounds for deportation of EU citizens and their family members are consistent with the withdrawal agreement.

In addition, the withdrawal agreement requires the UK to set up an independent monitoring authority for EU27 citizens’ rights. This is established in section 15 of the new Act, and schedule 2 to the new Act sets out more details. EU27 citizens can complain to this body about their treatment, and it can launch inquiries or court proceedings as a follow-up.

Finally on citizens’ rights, section 16 specifies that for some of the powers mentioned above, the government power to adopt secondary legislation includes power to supplement the general implementation of the withdrawal agreement. Section 17 defines the terms used in the citizens’ rights section. The application scheme for EU27 citizens widely referred to as ‘settled status’ is, in the legalese of Brexit legislation, known as “residence scheme immigration rules”.

Remember that these sections of the new Act, and the secondary legislation adopted under them, come on top of the general implementation of the withdrawal agreement in domestic law discussed above – which may well also be relevant for any EU citizens in the UK who have legal difficulties concerning their status.

Separation issues

Section 18 of the new Act, which inserts a new section 8B into the Withdrawal Act, confers power to adopt secondary legislation to give effect to the lengthy and detailed ‘separation provisions’ of the withdrawal agreement, which deal with issues like what happens to European Arrest Warrants which are pending at the end of the transition period. It also applies to the more limited number of separation issues dealt with by the EEA EFTA separation agreement. This includes ‘Henry VIII’ powers to amend Acts of Parliament, but there is a safeguard ruling out use of this power to amend or repeal the Human Rights Act or the legislation on devolved parliaments or assemblies.

Section 19 of the new Act amends a schedule to the Withdrawal Act to give devolved bodies similar powers to give effect to the separation provisions of the two treaties.

Financial settlement

Section 20 of the new Act is a general authorisation to spend the money required to be spent by Part Five of the Withdrawal Agreement – the participation in the EU budget to the end of 2020, the payment of previously accrued obligations, and sundry other sums like pensions.

Northern Ireland protocol

Section 21 of the new Act inserts a new Article 8C into the Withdrawal Act which confers power to adopt secondary legislation to implement most of the controversial withdrawal agreement protocol on Northern Ireland. Section 22 amends a Schedule to the Withdrawal Act to confer powers on devolved bodies to the same end. (Presumably the Northern Ireland Assembly and Executive are the most important bodies here). Section 23 provides for a new Schedule 3, which sets out details of enforcing the EU equality law which is preserved for Northern Ireland by the protocol. Finally, section 24 amends the Withdrawal Act to limit the UK government from agreeing to any extension of North-South cooperation or creating any new implementation bodies to that effect in the Joint Committee implementing the withdrawal agreement.

As with the rest of the Act, the general implementation of the withdrawal agreement into domestic law may also be relevant here. But some of the controversial aspects of the Northern Ireland protocol refer to further Joint Committee measures, and so unlike other aspects of the withdrawal agreement, the trade provisions of the protocol might need such further measures to give them full effect in domestic law. Also, unlike (say) EU citizens resisting deportation or challenging a refusal of settled status, companies in Northern Ireland do not have an obvious interest in litigating enforcement of the withdrawal agreement, as it might make them worse off (creating a barrier to trade with Great Britain) rather than better off.

Joint Implementation of the withdrawal agreement

The EU and the UK can jointly agree on certain measures to implement the withdrawal agreement within the Joint Committee which the agreement has set up. The new Act regulates some aspects of how this will work, on the UK side. First of all, as noted above, section 33 of the new Act (inserting a new section 15A of the Withdrawal Act) prevents the government agreeing to any extension of the transition period, and section 24 amends the Withdrawal Act to limit what the government can agree to as regards certain Northern Ireland issues.

The new Act also regulates what the UK will agree to as regards the procedure in the Joint Committee. Section 34 of the new Act adds a new section 15B to the Withdrawal Act, which states that the UK co-chair of the Joint Committee must always be a minister acting in person. Furthermore, section 35 of the new Act adds a new section 15C to the Withdrawal Act, which prohibits the UK from agreeing to use the written procedure in the Joint Committee.

These parts of the new Act do have a rough parallel on the EU side, where the decision concluding the withdrawal agreement on the EU side sets out how the EU institutions will deal with some of the procedural issues of implementation.

As regards dispute settlement, the new Act aims to enhance transparency. Section 30 of the new Act adds a new section 13B to the Withdrawal Act, which provides for:

-          information to parliament 14 days after either side requests an arbitration panel to be set up under the dispute settlement system, setting out the details;

-          information to Parliament 14 days after a CJEU ruling interpreting EU law at the request of the arbitrators under the dispute settlement system has been published in the EU Official Journal, setting out the details; and

-          yearly reports on the number of consultations aimed at settling disputes under the dispute settlement system.

Note that this does not give Parliament any power to direct the government’s position during dispute settlement. Furthermore, this provision is a fairly superficial attempt at transparency.  There is no obligation to publish information about final arbitration decisions, which can address a number of issues – not only the substance of the dispute, but the time period to implement a ruling, a failing to implement a ruling, and retaliation for not implementing a ruling.  Information about CJEU judgments published in the Official Journal adds little, since the Official Journal only publishes the operative part of the ruling, not the full text, weeks or months after the judgment, which anyway is usually published immediately on the Court’s website. Information on the number of dispute settlement consultations (rather than the content of the dispute, or the details of any settlement) is not that significant, especially if it is only provided annually.

Future relationship

The first version of the bill contained a lot about the future relationship between the UK and the EU, including a requirement that the government's negotiating strategy must be approved by Parliament, that ratification of the resulting treaties must be approved by Parliament, and that any negotiating guidelines had to be ‘consistent with the political declaration’ on the future relationship. However, the second version of the bill, and hence the final Act, dropped these provisions.

Furthermore, section 37 of the new Act amended section 17 of the Withdrawal Act, which required the government to negotiate with the EU on family reunion for unaccompanied child asylum seekers. Instead the government only needs to give a statement about its policy intentions. This did not remove any rights for asylum-seekers, as some believed – it rather removed an obligation to negotiate, which might not have been successful. (It’s not clear whether the EU is even interested in negotiating on this subject). But it may well have reduced the likelihood that the UK and EU agree upon this issue in the end.

As noted already, the final Act dropped the provision on workers’ rights in the original bill. This means that any retention of such rights will be based on the rules on conversion of EU law into law in the UK post-Brexit (discussed below) – unless the UK makes further commitments to this effect in any future relationship treaties with the EU. (I have discussed the proposed EU position on a ‘level playing field’ in the future relationship talks, including labour law and other issues, here).

The new Act also dropped the requirement in the Withdrawal Act to propose an Environment Bill – given that the government has tabled such a bill in the meantime. Similarly it dropped the requirement for the government to report on a customs arrangement with the EU by October 2018, as that date has passed. The rather pointless provision stating that the UK could optionally align with EU law or sign up to EU agencies has been repealed too.

Conversion of EU law in the UK post-Brexit

The basic idea behind the Withdrawal Act is that EU in force on Brexit day is converted into law in the UK at that point, until it is amended by Parliament, secondary legislation, devolved bodies, or the courts. In the new Act, section 25, as noted already, postpones this effect until the end of the transition period.

The big change here is section 26 of the new Act, which amends the Withdrawal Act rules on the interpretation of retained case law of the CJEU interpreting EU law. Previously, it was possible for the Supreme Court, or the High Court of the Justiciary (the supreme Scottish criminal court) in certain cases, to depart from CJEU case law post-Brexit – in the same limited circumstances in which those courts would depart from their own prior case law.

However, the new Act dramatically widens the possibilities of courts in the UK departing from CJEU case law – and does so by blurring the distinction between the independent judiciary and the executive. It gives power to adopt secondary legislation to do several things:

-          widen the list of courts and tribunals not bound by retained EU case law;

-          regulate ‘the extent to which, or circumstances in which’ a court or tribunal ‘is not to be bound by retained EU case law’,

-          set out ‘the test’ which would apply ‘in deciding whether to depart from any retained EU case law’, including the 'considerations’ are ‘relevant to’ any court applying the ‘test’ for when to depart from such case law. 

This may include not being bound by domestic case law which relates to EU case law, and ‘other matters’ relating to such domestic case law, including the creation of tests when that domestic case law should be disregarded too.  However, before adopting such secondary legislation a minister must consult specified senior judges, and the power to adopt such measures expires at the end of the transition period.

Furthermore, these extensive powers relating to previous case law ‘are subject to relevant separation agreement law’, which is set out in a new section 7C added to the Withdrawal Act. This new section concerns the interpretation of the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement. It provides that any question on ‘the validity, meaning or effect of any relevant separation agreement law’ must be decided ‘in accordance with the withdrawal agreement’ or the other two treaties, ‘having regard…to the desirability of’ interpreting these treaties consistently where they have provisions corresponding to each other.

To this end, the new section refers to ‘(among other things)’:

- Article 4 of the withdrawal agreement, which requires interpreting the agreement consistently with CJEU case law and EU law principles;

- Articles 158 and 160 of the withdrawal agreement, which give the CJEU jurisdiction to interpret the citizens’ rights and financial settlement provisions in relation to the UK, even after the transition period;

- Articles 12 and 13 of the Protocol on Northern Ireland, which again give the CJEU jurisdiction over parts of that protocol, and govern its interpretation consistently with EU law; and

- the clauses on interpretation of the EEA EFTA separation agreement and the Swiss citizens’ rights agreement.

It also defines “relevant separation agreement law” as meaning the provisions on general implementation of the withdrawal agreement, its separation provisions or the Northern Ireland protocol, or any secondary legislation adopted on that basis; or the “citizens’ rights and financial provision” sections of the withdrawal agreement; or anything else which is domestic law related to the rest of the withdrawal agreement (other than the transition period) or the other two treaties.

Taken together, these two chunks of legalese mean that Parliament has given the UK executive extensive power to tell courts in the UK how they may or must depart from CJEU case law. It’s too early to know how the executive will use this power: it could, for instance, be used to determine that courts are free to depart from EU case law relating to weekly working time, holidays or the protection of employees when their employer changes hands.   

On the other hand, this power to tell the courts to disregard case law does not concern the withdrawal agreement or other related treaties, and the jurisdiction of the EU court over the withdrawal agreement in the UK after the transition period is expressly accepted (as regards citizens’ rights and the financial settlement), or accepted by necessary implication (referring to the relevant clauses in the Northern Ireland protocol). The reference to ‘among other things’ arguably captures the CJEU’s jurisdiction over pending cases and proceedings in the withdrawal agreement.

Finally, section 27 of the new Act amends the government’s power to adopt secondary legislation to address ‘deficiencies in EU law’ related to withdrawal from the EU to cover measures adopted during the transition period.

Conclusion

In recent years – and especially recent months – it’s often asserted that the law doesn’t matter that much, given the government’s perceived intentions of disregarding it and of preventing judges from applying it. The application of the new Act in practice will put that assertion to the test.

It’s not so remarkable that the government wanted to remove parliamentary constraints upon its future relationship talks with the EU, and that the provisions in the new Act on accountability regarding the implementation of the withdrawal agreement are limited (besides ruling out an extension of the transition period – but that was government policy anyway). This simply gives effect to the traditional view that the executive’s conduct of international relations is not a matter to be regulated by Parliament.

However, it’s equally traditional that an international treaty which regulates the position of individuals should be given effect by an Act of Parliament so that it fully applies in domestic law. That is the approach taken by the new Act, which contains, as we have seen, provisions which implement the transition period in particular and the rest of the withdrawal agreement in general, giving the government further powers to adopt secondary legislation to implement specific points. While there are bound to be issues of interpretation and application of the withdrawal agreement on the ground (on the EU side too), in principle the UK has met its obligation to give effect to the treaty in domestic law.

The adoption of an Act of Parliament to give effect to the withdrawal agreement limits the ability of the government to renege on its obligations in the agreement, as some fear. Any intention to do so would be dependent upon amending the new Act. How likely is that? Although section 38 of the new Act reasserts the principle of parliamentary sovereignty, suggesting that parliament could choose to breach the UK’s international obligations as a matter of domestic law if it chooses to, and a tame majority in the Commons might well nod along, the House of Lords could at least, under the Parliament Acts, delay such a measure by a year. The Salisbury convention, under which the Lords will not seek to block legislation giving effect to a winning party’s manifesto commitments, hardly applies where that winning party reneges on those commitments, seeking to chuck its own ‘oven ready deal’ in the bin. But after a year, if the Lords did choose to invoke that power of delay (and they rarely do) an amendment to the Act is possible. It would then be up to the dispute settlement system in the withdrawal agreement to address the issues arising from any resulting breach of the agreement.

This may miss the point though, for two reasons. First of all, on the most contentious issue – the Northern Ireland protocol – as discussed above, the obligations might be hard to enforce under the Act anyway, given the reference to implementing measures and a possible reluctance to litigate. It would likely be the dispute settlement system and/or the CJEU’s (implied) jurisdiction over infringement actions under the Northern Ireland protocol that would come into play here.

Secondly, there’s the government’s reported intention to ‘sort out the judges’. Reliance on implementing a treaty via means of domestic law has limited effect if the judges are being told what to do by the executive – or, in effect, pre-emptively censoring their judgments due to fear of executive control. On this point, though, as discussed above, it’s striking that the parts of the new Act with a pronounced ‘nobbling the judges’ vibe concern retained EU law outside the scope of the withdrawal agreement, with the withdrawal agreement itself being safeguarded from the use of such powers. For issues outside the scope of the withdrawal agreement, there will be no legal obligations on the UK once the transition period is over, so it can’t be claimed that these powers undermine any substantive legal obligation. Conversely, there is a genuine concern that these powers might overrule judicial independence, depending on how exactly they are used: a helpful clarification of the limited circumstances where CJEU legal precedents need no longer be followed, or overturning legal certainty to own the libs?  

It seems possible that the new Act was a gateway drug as far as nobbling judges is concerned, and the government might soon wish to go beyond it. And it’s certainly understandable that EU citizens in particular distrust a government full of people involved with a campaign which broke electoral spending law, and who reneged on their campaign’s promise to give all EU citizens automatic indefinite leave to remain. But exactly what the government might do, and what impact that might have on implementation of the withdrawal agreement, remains to be seen.

Barnard & Peers: chapter 27

Photo credit: Mdbeckwith, via Wikicommons