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

 

Professor Colin Murray, Newcastle Law School

Photo credit: Wknight94, via Wikimedia Commons

 

Introduction

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

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

Article 2

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

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

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

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

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

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

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

That Northern Ireland law was underpinned by EU law.

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

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

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

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

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

The Illegal Migration Act

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

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

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

The High Court Judgment

 

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

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

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

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

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

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

Conclusion

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

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

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

 

Allister Round 2: a deeper dive into the Mariana Trench of UK constitutional law

 

Anurag Deb, PhD student, Queen’s University Belfast School of Law

Photo credit: Dom0803, via Wikicommons

 

Introduction

In UK constitutional law, it is a truth universally (though not empirically) acknowledged, that an issue in want of a single determination must instead yield to multiple, overlapping conclusions. So too, was the case with Allister and others v Prime Minister and others [2022] NICA 15, handed down by the Northern Ireland Court of Appeal (NICA) on 14 March 2022. Before I begin my analysis, it is important to note that the NICA has granted permission to appeal this case to the UK Supreme Court, so this is by no means the last analytical piece you will read about this case.

 

Facts

For those who remain blissfully unaware of the facts and issues surrounding Allister, you have my admiration. Briefly: Allister is a case which essentially challenges the Protocol on Ireland/Northern Ireland to the UK-EU Withdrawal Agreement (Protocol) as a breach of (1) the Acts of Union 1800, (2) section 1(1) the Northern Ireland Act 1998 (NIA), (3) section 42 of the NIA, (4) the European Convention on Human Rights (ECHR) and (5) EU law.

Following the judgment handed down by Mr Justice Colton in the High Court, Sarah Kay did a detailed post on this blog about the facts, issues and implications of that judgment. I also offer my own modest take in the pages of the Northern Ireland Legal Quarterly, freely available without subscription.

Briefly, the claimants firstly argued that the Protocol established differential treatment between NI and GB, thereby breaching the “same footing” provisions under Article VI of the Acts of Union 1800 (which united GB and Ireland until 1920). Secondly, because the Protocol had been agreed and incorporated into UK domestic law without seeking popular consent in NI, the claimants argued this breached the NIA insofar as the Protocol altered the constitutional position of NI within the UK. Thirdly, the Protocol allows for the Stormont Assembly to have periodic votes on the application of EU laws (relating to the single market on goods only), which disapply the cross-community consent underlying major aspects of the NIA (and thus are in breach). Fourthly, the Protocol suffers from democratic deficit, because it continues to subject NI to EU law in circumstances where NI residents can no longer elect representatives to the European Parliament, in breach of Article 3 of Protocol 1 of the ECHR. Fifthly, the EU lacked the necessary powers to agree an agreement like the Protocol and thus breached its own constitutive laws.

In the High Court, as in the NICA, all 5 grounds were dismissed. The difference between the two courts, however, was how each court construed the first ground, namely a breach of the Acts of Union. Here, we begin to plumb some truly murky depths of statutory interpretation. Captain Nemo would not find freedom in these waters.

 

What happened to Article VI?

In the High Court, Colton J left the question whether Article VI (“same footing” between GB and NI) had been repealed, rendered obsolete or spent, unanswered. Instead, he focussed on the reality of what faced him: the UK Parliament had enacted the European Union (Withdrawal Agreement) Act 2020 (2020 Act), thereby making the Protocol part of domestic law. In particular, this Act had inserted section 7A into the European Union (Withdrawal) Act 2018, which made every UK statute, whenever enacted, subject to the Withdrawal Agreement (including the Protocol). Colton J merely concluded that Article VI no longer had the effect it once did in 1800, because parliamentary sovereignty dictated that the more recent statute (and thus expression of the will of Parliament) prevailed over the less recent one. This is because one sovereign Parliament cannot bind its equally sovereign successors, so a sovereign legislative body had merely acted in accordance with its own sovereignty. QED.

In the NICA, two different (and somewhat overlapping) views emerged. For the majority, the Lady Chief Justice considered that the 2020 Act had “subjugated” Article VI. In his concurrent judgment, Lord Justice McCloskey considered that Article VI had been modified in its effect. Both were explicit that Article VI had not been repealed – expressly or implicitly.

This is where the divergence of views gets tricky. Both the Act of Union and the 2020 Act are “constitutional” statutes – this much is uncontroversial. What this means was explained by Lord Justice Laws in Thoburn v Sunderland City Council (sometimes known as the Metric Martyrs case): “In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” Constitutional statutes, according to this principle, are not subject to implied repeal, but are subject either to express words of repeal or by words so clear that repeal is the “irresistible” conclusion.

Now, Thoburn had been a case between a constitutional statute and an ordinary one. Allister involved two constitutional statutes. One prevailing theory, explained by Mark Elliott, was that the constitutional status of two statutes cancel each other out, so, the more recent one can impliedly repeal the older one. Colton J did not cite this exact argument but appeared more or less to reason his judgment in a similar way.

The NICA, however, rejected any kind of repeal of Article VI, preferring the subjugation/modification paradigm. But this is even murkier. The UK Supreme Court had, in The Continuity Bill Reference, defined “modification” as follows:

“Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. That will be the position if the later enactment alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force as before, so that the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one.”

Although this case dealt with the Scottish Parliament’s competence to enact legislation dealing with new powers available following Brexit, the point here is that an Act of the UK Parliament is only unmodified if it has “unqualified” continuation in force, i.e. that its effect in law is unchanged by any other statute. This is far from an uncontroversial view – a recent devolution reference which draws heavily from the Continuity Bill Reference (also dealing with the Scottish Parliament) has ignited debate among public lawyers about how precisely the Supreme Court views devolution (see this post by Mark Elliott and Nicholas Kilford). The point, however, is that the NICA’s reasoning appears to be at odds with that of the Supreme Court. If a later statute modifies the effect of a previous one, then according to the Supreme Court, the previous one can be taken to have been impliedly repealed. But this itself is not a settled question because of the different parliaments which enacted the two statutes.

 

History and logic

The Acts of Union were parallel statutes enacted by the (then) Parliaments of Great Britain and Ireland, which by operation of the same Acts, ceased to exist in favour of a Parliament of the United Kingdom of Great Britain and Ireland.

The Acts of Union were thus the statutes upon which the modern UK Parliament was (generally) built. The question is whether the modern UK Parliament has the legal ability to repeal (explicitly or implicitly) the very laws under which it came into existence. In MacCormick v Lord Advocate, the Lord President of the Court of Session (Inner House) said this of a similar question raised in respect of the Treaty and Acts of Union which united England (and Wales) and Scotland into one Kingdom of Great Britain:

“The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law … I have not found in the Union legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that that Parliament should be free to alter the Treaty at will.”

MacCormick did not feature in the NICA’s judgment but remains as an uneasy reminder that the UK Parliament is not entirely immune to a legal grandfather paradox being unleashed. The problem, indeed, the main problem with the entire Allister case, is the process of reconciling the layered reasoning of the law, with the unconcerned facts of reality. This is especially true of matters involving constitutional law, which require clear, cogent and consistent interpretation in order to enable states to function at all.

 

Implications

The Protocol is not only a matter of lively debate in academic circles – it is a very real matter of social and political tension in NI. Allister comes at a fraught time in NI politics – Executive collapse, electoral uncertainty and increasing public fatigue. No court can solve any of that.

However, I await the Supreme Court’s views on the matter with a mixture of excitement and trepidation: excitement that constitutional law (my field of research) continues to enjoy something of a renaissance beyond the pages of academic publications, and trepidation that we, like the Nautilus, are heading into a maelstrom.

 

Is the Northern Ireland Protocol unlawful? Analysis of the High Court judgment

 

Sarah Kay, human rights lawyer 

Brexit has not been kind on Northern Ireland. Then again, it was never meant to be. Five years after the referendum, almost to the day, the High Court in Belfast released a decision of intense political nature, with strong echoes of Miller 1, concerning a legal challenge to the Northern Ireland protocol to the withdrawal agreement. Northern Ireland is often described as sitting on a political powder keg, which was on the brink of exploding during the Easter riots. Egged on by political division and the ever so difficult nature of Northern Irish sense of belonging(s), Brexit managed to fulfil the one expectation everyone had predicted: expose every systemic failure.

 

The oral arguments, presented on behalf of two main applicants - Clifford Peeples, objecting to the establishment of a border in the Irish sea, and unionist members including (now former) First Minister Arlene Foster, opposing the Protocol itself as damaging a unionist position by furthering a separation of Northern Ireland from Great Britain, often were nonsensical. Pushing forward that the European Union was akin to the Vichy regime in its “occupation” of Northern Ireland has no place in a courtroom. Stating that Brexit was never debated in Parliament was simply and painfully inaccurate - and immediately rebuked by Lord Justice Colton (“It was not only debated in Parliament, but outside of Parliament, too, and for some time”, he replied during the hearing). For purposes of time, and clarity, this will focus on two important points of contention.

 

Acts of Union 1800

 

As my esteemed colleague Anurag Deb helpfully pointed out in a thread, every single point is politically contentious. Returning to the Acts of Union shows that the core focus would not just be the Withdrawal Agreement and the “Northern Irish backstop”: it was the constitutional existence of Northern Ireland. The question was whether the Protocol overrides the Acts of Union. The decision relied heavily on the very nature of constitutional statute and precedent laid by the Supreme Court. The opposition to articles 6 and 10 of the Acts of Union do not relate to the access of goods and services from Northern Ireland to Great Britain, but from Great Britain to Northern Ireland. The imbalance, that would have been fixed by the Internal Market Bill (in its original form), tips the scale in favour of the EU market. It is worthwhile at this stage to highlight that the implementation is still in progress, therefore leaving some unknowns at this stage of a judicial review. But the decision stands: the Protocol in itself does not create those tariffs, rather provides for payments of tariffs to be made if there is a risk of goods being diverted to the EU (see para. 56 of the judgement)

 

We then reach the issue of hierarchy of statutes in matters of constitutional standing: the impact of Miller 1, in this situation, can’t be overstated. To declare a constitutional statute unlawful, in the event of conflict, one must understand how said statute came into force. The Protocol was itself negotiated as part of the Withdrawal Agreement 2019, and whilst treaties are not up for review, this is where parliamentary sovereignty comes to assert its fundamental nature: the very approval of the Withdrawal Agreement and all appendices therein by Parliament; those issues were effectively considered, at large, by Parliament, over the course of several votes. Resting on the “forever” qualifier in the Acts of Union omits that the United Kingdom has known various iterations since 1800, due to claims of independence, least of them the emergence of a separate Irish Free State in 1922. There was no loss to be expressed in the fight for self-determination in Ireland. The Acts of Union must then be inclusive of the nature of partition. It has not escaped commentators that this year marks the centennial of said partition.

 

 

Good Friday Agreement and fundamental rights

 

In the very early days following the 2016 referendum, the question as to whether Brexit would breach the Good Friday Agreement (GFA) was raised, and would continue to be raised during negotiations. The European Union reiterated at every given turn that it would never compromise on the Northern Irish peace process, which led to the need for the backstop. Both sides, in this case, argued that they brought their position in order to protect the GFA. The argument over the Article 3 of Protocol No. 1 to the European Convention on Human Rights, helpfully referred to as A3P1, poses the difficult question of how the European Union could continue to implement certain laws and Directives in and to Northern Ireland, without Northern Ireland having access to direct representation in the European Parliament.

 

The hearing saw many extremely unhelpful parallels. The Vichy analogy notwithstanding, the appellant went as far as to push a US analogy, reproducing the “no taxation without representation” motto. It had been presented several times in Stormont that the Protocol would lead to a diminution of voting rights. The Court considered that the negotiations, especially on future relations between the UK and the EU, would be made in the presence of MPs - that Northern Ireland can vote for in addition to its MLAs. The long debated “democratic deficit” is a political position for which the Court might be later asked to revisit this judgment, should it be appealed. It was considered through the Fourth Recital of the Protocol, highlighting the importance of ensuring there is no diminution of rights arising from the withdrawal agreement, now an interpretation on the interplay between legal and political issues, a perfect summary of this case.

 

The Court considered that the constitutional nature of Northern Ireland was not changed in the absence of a referendum - which is provided for in the GFA under the principle of consent. The GFA is not incorporated into domestic law. The Court further notes that, generally, the arguments are opposing the arrangements made under the Withdrawal Agreement, rather than the Protocol itself. Perhaps this is the one element that is more widely misunderstood: the Protocol protects the GFA, but does not seek to incorporate it into domestic law. The Protocol is a shield between the Withdrawal Agreement and the GFA. It is therefore very possible this case could be considered a proxy for directly addressing the Withdrawal Agreement. Remorse could be worse than regret, as one MP - Ben Habib (Brexit Party) voted for the Agreement, and is now party to this case. The grievances should then be replaced outside of the courtroom and into the way the arrangements are being negotiated politically, outside of the scope of judicial review, and into the political arena.

 

Judicial review was refused on all grounds presented to the Court

 

This decision is not of strictly constitutional interest, but then, when is public law ever just a matter of legal arguments in courtrooms held in remote locations, never to be accessible? This decision - and the motivation behind the application for judicial review - is about identity. In a region where nothing is as contested, conflicted, and tested on a regular basis, it is unsurprising the decision was met with attacks on the judge, Lord Judge Colton; on the barristers presenting the arguments, including former Attorney General for Northern Ireland, John Larkin QC; and by large misinterpretations of the Protocol.

 

It is July, and protests and riots over the DUP’s interpretation of the role of the Protocol have already led to threats of violence, threats of instability, and threats of attacks against anti-Brexit figures in Northern Ireland. The Protocol, aimed at, by and large, lessening the intense blow Theresa May’s hard Brexit would have inevitably inflicted upon Northern Ireland. The grievances aimed at the Protocol are two-fold: one, they misunderstand that all those concerns were not created by the Protocol, but by Brexit itself. The DUP, having allowed Theresa May to remain in power by entering into a confidence arrangement with the Conservatives, holds little political legitimacy to now oppose the consequences of May’s policies. Two, it is about the very nature of the presence of Northern Ireland as a devolved region, part of the United Kingdom. Whilst not fully phrased as such, the fear of a reunified Ireland - actively discussed and campaigned for since summer 2020 - feels like a death toll for unionism. The Protocol is a protective shield between the Good Friday Agreement and Brexit. The principle of consent will be respected; Article 2 of the Protocol guarantees no diminution of rights. Lest we forget that, in 1998, the DUP refused to vote in favour of the Good Friday Agreement. It is now catching up to them.

Photo credit: via Wikimedia Commons

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