Rights and Equality Law in Northern Ireland Post Brexit: An unfolding reality

 

Colin Murray, Reader in Public Law, Newcastle University

Photo credit: Chmee2, via Wikimedia commons

 

All of the talk of Getting Brexit Done, as it turns out, was hokum. The UK Government have made it clear that they are unhappy with the Protocolon Ireland and Northern Ireland that they negotiated with the EU and want to see it radically changed. That much is well known. But, at a deeper level, much of the task of understanding what Brexit, and the Protocol, means in practice is only beginning. The Withdrawal Agreement, and indeed the Protocol as part of it, is not in terms of UK domestic law an unincorporated treaty; section 7Aof the European Union (Withdrawal) Act 2018 (inserted as part of the European Union (Withdrawal Agreement) Act 2020) makes it operative as part of the UK’s domestic jurisdictions.

This produces a series of complex interactions between the Withdrawal Agreement’s requirements, new legislation and retained EU law that are only now being subject to litigation. This post examines the level of indeterminacy inherent in Article 2 of the Withdrawal Agreement’s Protocol on Ireland and Northern Ireland, the provision which is supposed to secure the operation of EU law’s rights and equality protections in Northern Ireland post Brexit, and the first judicial efforts to understand how it works.

 

Article 2

Northern Ireland has frequently been at the forefront of Brexit debates. Notwithstanding the attention paid to the unique relationship that it continues to have with the EU after Brexit, comparatively little has been said about the human rights and equality dimensions of the Protocol than its trade provisions. Under Article 2(1) of the Protocol, significant parts of EU rights and equality law continue to apply to Northern Ireland:

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.

It might not be immediately apparent, Article 2 provides for two separate obligations. The first relates to the EU law measures listed in Annex 1. At present, this covers six directives which make up the backbone of EU law’s protections against discrimination on the basis of protected characteristics; the Racial Equality Directive, Employment Equality (Framework) Directive, Gender Goods and Services Directive, Equal Treatment (Employment) Directive, Self-Employment Equal Treatment Directive, Equal Treatment in Social Security Directive. The full scope of these protections is only evident when Article 2 is read alongside Article 13(3) and 13(4) of the Protocol, which place the United Kingdom under a general obligation to ensure the law applicable in Northern Ireland reflects developments in European Union law relating to the Annex 1 directives. In other words, Northern Ireland law must be reformed to “keep pace” with developments in these aspects of EU law.

The second, more general, obligation upon the UK is to avoid any diminution, as a result of Brexit, of the protections provided by EU law which underpin the terms of the Rights, Safeguards and Equality of Opportunity section of the Belfast/Good Friday Agreement 1998. This is a lot to unpack, but taken at face value it is designed to preserve the operation of a range of EU law related to rights and equality in the context of Northern Ireland. Much of this continues to operate, post Brexit, as retained EU law, but as the UK Government moves to overwrite retained measures this opens up the possibility that the non-diminution guarantee will prevent or restrict divergences in Northern Ireland law. The more that Westminster seeks divergence for Great Britain from EU law with rights and equality elements (setting devolved competences in Wales and Scotland aside for the moment), the more prominent Article 2 will become in sustaining a distinct set of arrangements for Northern Ireland.

The Northern Ireland courts are responsible for administering the EU law relevant to Article 2 without direct oversight by the EU’s courts. This is perhaps surprising given the zeal with which the CJEU ordinarily guards its function to oversee the application of EU law, and operates very differently in this regard from the Protocol’s provisions on the marketing of goods in Northern Ireland (Article 12). Under Article 13(2), however, the courts in Northern Ireland are required to interpret the provisions of the Protocol ‘in conformity’ with relevant CJEU case law. This is a more extensive obligation than that set out in Article 4 of the Withdrawal Agreement; the Northern Ireland courts must continue to track CJEU case law as it develops.

All of this makes for a dizzyingly complex set of arrangements. EU law works as an interconnected whole, underpinned by the operation of general principles. In terms of equality and rights, however, the Protocol maintains the operation of some parts of EU law in full as it develops, a frozen in time version of other parts of EU law, and accepts that the UK can remove other parts of EU law (not covered by Annex 1 or connected to the 1998 Agreement). The non-diminution guarantee is particularly challenging for the courts to operate; the Northern Ireland courts will have to take account of CJEU case law as it develops and potentially retrofit it to apply to the operation of the version of EU law which was in place during the Brexit transition/implementation period. The scope of this guarantee, moreover, depends on the extent to which the courts accept that an EU law measure can be connected to the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement and its non-exhaustive collection of rights and equality aspirations which was not, at the time, intended to be determinative in legal disputes.

 

The SPUC Decision

For the last couple of years, therefore, the extent of the non-diminution guarantee has been the subject of considerable debate, but litigation was always going to be required to determine how the Northern Ireland courts approach these obligations. The first of these challenges has come from the Society for the Protection of Unborn Children (SPUC), questioning the legality of the Abortion (Northern Ireland) Regulations 2021. SPUC claimed that the new legislation was discriminatory in its impact on persons with disability and that, because EU law protects against disability discrimination, these measures could not, because of Article 2, undermine these protections.

Colton J, in the Northern Ireland High Court, rejected these claims. Although an appeal has been launched, there were multiple grounds on which this challenge failed, most significantly the need to connect the operation of Article 2 to something that would, prior to Brexit, have been an EU competence; EU law’s protections against disability discrimination do not extend to cover how EU Member States provide for reproductive rights. Moreover, the challenge was, in essence, a disguised effort to challenge parts of the 2020 Regulations, which, being in place before the end of the Brexit transition/implementation period, could not have been treated as being consequent upon Brexit. The significance of the case is not, therefore, the outcome, but the detail in which Colton J worked through the stages of a non-diminution claim under Article 2, providing a blueprint for how this will be tackled in future cases.

Colton J first affirmed that Article 2 has direct effect and can be relied on by legal persons in domestic courts. This was not contentious in the case, but is nonetheless significant. For all that the scope of the Annex 1 directives is clear, the extent of EU law covered by the non-diminution guarantee is more of a challenge to ascertain, and the first way to curtail the operation of these elements of Article 2 would be to deny direct effect within the scope of Article 4 of the Withdrawal Agreement. Colton J, not only accepted direct effect, but prominently flagged UK Government commitments to allowing Article 2 to be relied on in this way (at [77]).

Colton J then affirms that the Withdrawal Agreement potentially allows for a broad sweep of EU rights and equality law to apply under Article 2 of the Protocol (at [78]):

The combined effect of section 7A EUWA 2018 and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit.  

It is worth noting an error in the judgment in this paragraph – it isn’t Article 4 of the Protocol but of the Withdrawal Agreement that is at issue here. But the point remains the same; direct effect and supremacy apply to the EU law which falls within the ambit of Article 2 of the Protocol, and that can include the Charter of Fundamental Rights and EU General Principles notwithstanding section 5 of the Withdrawal Act 2018 excluding the Charter from retained law.

Having set out this broad playing field, Colton J then summarises the necessary connection between the rights and equalities section of the 1998 Agreement and EU law (at [83]):

[T]here must be a 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” that is, there must have been a protection that existed before the withdrawal of the United Kingdom from the European Union which does not exist after, and as a consequence of, that withdrawal.

Having set up the key hurdle for SPUC to cross, this is where the claim breaks down (at [132]):

[T]he applicant cannot establish, as he was required to do if he was to rely upon Article 2, that the equality of opportunity protection identified in the 1998 Agreement has been given effect in the legal order of Northern Ireland on or before 31 December 2020.  The alleged right relied upon was not underpinned by EU law prior to 31 December 2020 and therefore there has been no change in Northern Ireland law on this issue as a result of the UK’s exit from the EU.

The most important feature of this decision is that Colton J does not seek to read the provisions of the 1998 Agreement restrictively. Instead, he puts much of the weight of his decision on requiring SPUC to demonstrate how EU law protected this right prior to the end of the transition/implementation period (31 December 2020). Hence the “frozen in time” nature of EU rights and equality law in Northern Ireland. EU law textbooks from around 2020 will continue to attract a premium in this small jurisdiction for anyone seeking to rely on Article 2’s non-diminution guarantee will have to show how EU law operated at this time.

 

The Fights to Come

Now that the SPUC decision has laid some of the groundwork for managing complex non-diminution claims, stronger claims could be waiting in the wings following the passage of the Elections Act 2022 and Nationality and Borders Act 2022. These need to be considered in turn.

EU citizens resident in Member States other than their home state enjoy rights with regard to local government (EU Charter of Fundamental Rights, Article 40 and Treaty on the Functioning of the European Union, Article 22). This is significant in the Northern Ireland context, because the local government franchise also provides the basis for the franchise for Northern Ireland Assembly elections. Under the Elections Act, Westminster legislated to connect electoral rights to whether or not a reciprocal arrangement exists for UK citizens resident in European Union Member States (such arrangements have already been concluded with Spain, Portugal, Luxembourg and Poland). This is a complex set of arrangements; it relates to EU citizens who became resident in the UK since the start of 2021 (because of the Withdrawal Agreement’s protections for existing resident EU citizens) and is constrained in its ambit because local elections are devolved matters in Wales and Scotland.

Insofar as the Act seeks to curtail a right underpinned by EU law which was operative in 2020, the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission,  which have responsibility for overseeing the operation of Article 2, have identified that this raises potential Article 2 issues around its operation in Northern Ireland (which do not apply to the restriction of these rights in England). Democratic participation rights are explicitly covered by the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement.

On a direct application of the Article 2 test, had it not been for Brexit, UK legislation could not restrict this right without breaching EU law. The UK Government has made two responses to the possibility of an Article 2 challenge in the course of parliamentary discussion over the new law. First, ministersclaim that voting rights for EU citizens must be treated as ancillary rights, and that Brexit has restricted freedom of movement:

[T]he UK is no longer a Member State, EU citizens self-evidently no longer enjoy the right to reside here under the EU Treaties and so the ancillary Article 22 TFEU right to vote and participate in municipal elections is no longer applicable …

Second, ministers note that the new legislation maintains ‘the voting and candidacy rights of EU citizens who were resident here by the end of the Withdrawal Agreement transition period (31 December 2020)’, buttressing the claim that the law is Article 2 compliant on the basis that EU citizens who enjoyed the right during the implementation/transition period will not be adversely affected by the new measures. Litigation is thus likely to test how the courts approach the ‘but for’ test under Article 2. If the courts do not accept the Government’s assertions, section 7A of the European Union (Withdrawal) Act 2018 will operate to disapply the restrictions insofar as they conflict with the Protocol. A similar case for an Article 2 protection, however, cannot be made regarding Northern Ireland Assembly elections. As EU law does not provide EU citizens with a right regarding such regional elections, it is not possible to construct a legal challenge to restrictions to such participation.

The Nationality and Borders Act 2022 disapplies elements of the Trafficking Directive (Directive 2011/36/EU) which had hitherto been part of retained EU law. Although the Trafficking Directive is not listed in the Annexes to the Protocol, this measure is ‘closely linked to’ the Victims’ Directive, which the UK Government has generally accepted is included within the non-diminution commitment contained in Article 2 of the Protocol. This removal of protections for trafficked persons, insofar as they apply to Northern Ireland, therefore raises potential Article 2 issues.

The UK Government again dismiss these concerns, asserting that the Trafficking Directive is too far removed from the substance of the rights of victims under the Rights, Safeguards and Equality of Opportunity provisions;

It is clear from the language used in this section, from the object and purpose of the Agreement and from its overall context, that the drafters had in mind the victims of violence relating to the conflict in Northern Ireland as opposed to all victims in a broad, general sense.

As was noted above, however, this part of the Agreement does not function as a closed list of rights, as the UK Government appears to assert. Once again, the profound disagreements over the operative extent of Article 2’s terms will likely only be settled by the litigation of such contentious issues.

Where to next?

Last year, even as it tried to secure a major reworking of the Protocol's operation, the UK government continued to claim that the workings of Article 2 were 'not controversial'. It's tempting to say, perhaps, that they are not yet controversial. There is considerable scope for controversy to emerge as changes to the operation of retained EU law by Westminster open up divergences with the ways rights and equality provisions operate in Northern Ireland post Brexit, especially as the battles over the Protocol's provisions relating to goods look set to be renewed following the outcome of the Northern Ireland Assembly elections. If controversy does develop around Article 2, however, it will be all the more important that the groundwork for judicial approaches to the Protocol is already being set, and as new challenges emerge, we will start to get a better picture of how Northern Ireland's judges use the considerable latitude its terms allow them.  

Continue reading Rights and Equality Law in Northern Ireland Post Brexit: An unfolding reality

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: Allisteris 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 takein 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. Allistercomes 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.

 

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

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 decisionof 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

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

The Protocol on Ireland/ Northern Ireland: What it says is not what it does

Professor Stephen Weatherill, Somerville College and Law Faculty, Oxford University

Political misdirection

On Wednesday 11 March 2020, at a meeting of the Future Relationship with the European Union Committee of the House of Commons, the following exchange took place:

Hilary Benn: “On goods moving from GB to Northern Ireland under the Northern Irish Protocol, we know there are some regulatory checks at the moment …  there will be additional checks once the Northern Ireland Protocol is implemented won’t there?”.

Michael Gove: “That’ll be a matter for the Joint Committee”.

No it won’t. No it isn’t. There will be additional checks. Mr Gove is wrong.

He’s not alone. Failing to grasp what are the UK’s legal obligations under the Protocol seems contagious. Interviewed on SKY television on 2 February 2020 Dominic Raab claimed that the imposition of extra checks would be “directly in conflict” with the agreements reached with the EU. He is wrong. He could not be more wrong: the absence of extra checks would be directly in conflict with those agreements. Brandon Lewis, who took over as Secretary of State for Northern Ireland in February 2020, also moved quickly to insist there would be no border down the Irish Sea. He is wrong too, unless the UK plans to violate its international obligations.

But Mr Gove and his colleagues were following a well-trodden trail of misdescription. The Prime Minister has been even more blatantly wrong, and repeatedly so. Interviewed on SKY television in December 2019, shortly before the General Election, he said:

“… there’s no question of there being checks on goods going NI/GB or GB/NI … We’re a UK government, why would we put checks on goods going from NI to GB or GB to NI? It doesn’t make sense.”

On the campaign trail in November Mr Johnson had encouraged exporters to Great Britain from Northern Ireland who were confronted by forms to throw them in the bin: he insisted there would be no checks. He did not change his tune once he had banked victory in the December General Election. In the House of Commons on 22 January 2020 Jeffrey Donaldson of the DUP welcomed the PM’s “assurance that there will continue to be unfettered access for Northern Ireland businesses to the UK single market”, but asked whether that commitment also applies “to goods moving from Great Britain to Northern Ireland?”. “Emphatically it does”, replied Mr Johnson.

Emphatically it does not, as is clear from an understanding of the Protocol.

The purpose of the Protocol

The Protocol on Ireland/ Northern Ireland attached to the Withdrawal Agreement is driven by the perception that, as its Preamble affirms, “the United Kingdom's withdrawal from the Union presents a significant and unique challenge to the island of Ireland” and “that the achievements, benefits and commitments of the peace process will remain of paramount importance to peace, stability and reconciliation there”. Its most high-profile concrete aim is to guarantee avoidance of “a hard border, including any physical infrastructure or related checks and controls” at the frontier between Ireland and Northern Ireland, as the Preamble to the Protocol has it. So the current physically invisible state of the political border on the island of Ireland should not change at all as a result of the UK’s withdrawal from the EU. This matters to the economy, this matters to the preservation of peace.

And, since the checks required at the external frontiers of the EU must occur somewhere, the aim of ensuring that they do not occur at the border between Ireland and Northern Ireland is achieved by ensuring that they shall occur elsewhere, at the border between Great Britain and Northern Ireland. There will be a hardened border within the UK. The Protocol is carefully written: it avoids saying this. But that is what it does. It is what Mr Johnson accepted in abandoning Mrs May’s deal which would not have placed any new restrictions between Northern Ireland and GB but which would have accepted UK-EU regulatory alignment and a single UK-EU customs territory. Mr Johnson’s oven-ready election-winning deal reduced the scope of regulatory alignment to NI-EU alone in order to unleash GB’s regulatory autonomy both domestically and in external trade policy. This inevitably entails new restrictions on trade in goods between Northern Ireland and GB as a result of the absence of regulatory alignment between GB and the EU.

Mr Gove and Mr Johnson and other members of the Cabinet are denying what they have already accepted.

The content and duration of the Protocol

Let us be clear what the Protocol requires – or, put another way, what the UK has already committed to in the legally binding Withdrawal Agreement.

The Protocol locks Northern Ireland (but not the wider UK, i.e. not Great Britain) into regulatory alignment with a weighty body of EU rules governing manufactured and agricultural goods. The detail is found in Annex 2 to the Protocol: 287 EU legislative instruments are listed, all of which are to be applied in Northern Ireland, in order to ensure it is sufficiently aligned to the EU’s internal market acquis for the EU to be prepared to treat the Northern Ireland - Ireland border as soft in the same way that borders found internally within the EU are soft. That NI-EU alignment is extended by the Protocol also to cover key trade rules including those concerning the EU’s customs regime, VAT and excise rules, those governing the single electricity market and state aid rules in respect of measures which affect the trade between Northern Ireland and the EU which is subject to the Protocol.

The Protocol applies after the expiry of the transitional period. That is currently set for the end of 2020, and although the Withdrawal Agreement allows for a one-time extension of up to two years, the UK government has pledged not to seek such extension. (The Coronavirus may change that attitude, but it will not change the content of the Protocol). The Protocol is terminable by a subsequent EU-UK agreement which shall indicate the parts of the Protocol which it supersedes (Article 13(8) Protocol) but for such an agreement to remove the need for the Protocol in its entirety would require the type of comprehensive UK-EU regulatory alignment which is exactly the opposite of what Brexit is intended to achieve, according to the speechdelivered by the UK’s lead negotiator David Frost recently in Brussels, though one should not forget that a rather different tale was told by cherry-picking Brexiters back in 2016. The parts of the Protocol which concern trade rules can be set aside according the procedure foreseen by the Protocol’s Article 18, “Democratic Consent in Northern Ireland’, whereby alignment may be brought to an end by decision of the Northern Ireland Assembly according to a managed timetable set out therein. Since this would bring back into play the hard border on the island of Ireland that the Protocol is designed to prevent any such decision seems for the time being improbable. So the likelihood is that the Protocol is here to stay for some time to come. Its true meaning has long-term importance.

But what is its true meaning? The Protocol is not an easy read. The Protocol is not intended to be an easy read. It is an exercise in studied deception. But the key to understanding it is not to look at what it says, but instead to look at what it does.

To which customs territory does Northern Ireland belong?

The Protocol says that Northern Ireland is part of the customs territory of the United Kingdom (Article 4). And this is backed up by Article 5(1) which provides that no customs duties shall be payable for a good brought into Northern Ireland from another part of the United Kingdom by direct transport unless that good is at risk of subsequently being moved into the Union, whether by itself or forming part of another good following processing. So – it seems – the norm is no duties on GB to NI trade, while the exception – where the good is at risk of onward movement to the EU – is payment of duties.

But what the Protocol does in its Article 5(2) is to reverse the presumption expressed in Article 5(1). A good brought into Northern Ireland from GB is considered to be at risk of subsequently being moved into the Union unless it is established that that good will not be subject to commercial processing in NI and fulfils criteria to be established in due course by the Joint Committee. The shaping of the governing criteria by the Joint Committee will plainly be important but the key point right now is that goods are deemed to be at risk of onward movement and so attract an obligation to pay duties – unless it is shown they are not. The burden is on the trader to show that the relatively tightly drawn exception for goods only destined for Northern Ireland and not for processing applies. Article 5(6) grants the UK a power to reimburse duties levied on goods pursuant to the provisions of EU law made applicable by the Protocol – but that assumes that payment has already been made and in any event any such reimbursement must comply with the EU’s state aid rules contained in Article 10 of the Protocol.

The starting point, then, is that duties are payable. So what the Protocol does is not to treat Northern Ireland as part of the customs territory of the UK. That point is strengthened when one understands that, notwithstanding its calculatedly evasive language, what the Protocol does in its Article 5(3) is to lock Northern Ireland into the entirety of the EU’s Customs Code, the Common Customs Tariff, legislation setting up a Union system of relief from customs duty, and international agreements containing customs provisions in so far as they are applicable in the EU (subject only to a reservation to the Joint Committee of the job of establishing the conditions applicable to certain fishery and aquaculture products) and via its Article 5(4) also a number of other customs-related measures, among them the EU’s trade defence instruments covering inter alia anti-dumping and anti-subsidy measures.

So the Protocol says that Northern Ireland is part of the customs territory of the United Kingdom (Article 4) but that is not what it does. De facto Northern Ireland is part of the EU’s customs territory.

Does the Protocol secure unfettered trade within the UK’s internal market?

The Protocol says that it is dedicated to the protection of the UK internal market (Article 6) and that nothing shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market (Article 6(1)).

But that is not what it does. The UK’s existing internal market is not protected, because what the Protocol does is to require that new barriers be introduced to regulate trade between GB and NI (in both directions, but especially east to west). Some will be required to implement the new customs regime, mentioned above, but others, likely far more significant, will be required to address the point that after the expiry of the transitional period (probably at the end of 2020, pacecoronavirus) the GB part of the UK is no longer locked into the “ecosystem” of binding rules and institutional and constitutional disciplines which make up the EU internal market for goods. The point is that given the absence of commitment to persisting regulatory alignment between the EU and GB, the risk arises that goods originating in GB or imported into it from a third country will be routed through Northern Ireland and over the soft border into the EU’s internal market without any payment of tariffs or checks for compliance with EU rules, thereby harming the integrity of the EU’s customs union and internal market. Therefore compliance with EU rules on matters covered by the Protocol such as product composition, safety, technical standards and sanitary and phytosanitary requirements will need to be checked, because GB will no longer be bound by these rules. The Protocol does not say exactly how these checks shall occur, nor exactly how intense they shall be: it is in principle for the UK to implement and apply the EU rules made applicable by the Protocol to the United Kingdom in respect of Northern Ireland, subject to the proviso that EU representatives have the right to be present during any such activities pertaining to implementation and application (Article 12). But it is clear that what the Protocol does is to require that there shall be such checks.

So Article 6(1) of the Protocol’s claim that nothing shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market (presumably deliberately) misses the point that it is GB to NI – east to west – trade which is the main problem. It will not be unfettered. There will be customs and other regulatory checks on goods exported from Great Britain to Northern Ireland. But Article 6(1) is not even true on its own limited terms. West to east trade within the UK is affected too. What the Protocol does – via, once again, evasive language buried in Article 6 - is to require that the normal formalities applicable to goods leaving the EU’s customs territory shall apply to goods leaving NI for GB. Pursuant to Regulation 952/2013 on the EU Customs Code that means the completion of an exit declaration. Although less intrusive than the impediments on East-West trade within the UK that must be introduced, it is still a requirement that did not previously apply to trade between Northern Ireland and Great Britain.

There will doubtless be a desire to minimise the level of inconvenience to economic operators, and Article 6(2) of the Protocol commits the EU and the UK to use their best endeavours to facilitate trade between Northern Ireland and other parts of the United Kingdom, but some new restrictions there certainly will be. “Unfettered” is not a legal term of art but it is a stretch to describe trade which involves such administrative encumbrances as “unfettered”. At the very least it is plain that what the Protocol does is to change the long-standing terms of trade between NI and GB, and to place them on a different and more cumbersome footing than trade between England, Scotland and Wales. The Protocol saysit is protecting the UK’s internal market. What it does is to damage it.

None of this is news to those whose eyes and ears are open. The UK government’s own impact assessment, published on 21 October 2019, is open about the prospect of increases in costs as a result of an obligation to submit to processes and regulatory checks and to complete declarations, both West-East and East-West, albeit that it felt unable to place precise figures on the consequent costs pending detailed policy decisions to be taken by both the UK and the EU. That is: the precise nature and intensity of the additional burdens is not known, but the fact that they will exist is known. This is not what Mr Gove said in March 2020. Both the then Brexit secretary Stephen Barclay, before the House of Lords Select Committee on the European Union on 21 October 2019, and Julian Smith, the then Secretary of State for Northern Ireland, before the Northern Ireland Affairs Committee of the House of Commons two days later accepted that that some new formalities would be introduced on trade between NI and GB. That is not what Mr Johnson said on repeated occasions.  Moreover a leaked Treasury document entitled “NI Protocol: Unfettered access to the UKIM” revealed clearly that there was full awareness of and anxiety about how fettered trade might turn out to be. That is not how senior members of the UK government are now addressing the consequences of the Protocol agreed last year.

Mr Johnson is simply denying what he agreed. Mr Gove seems to be hoping to use the Joint Committee to re-negotiate what was agreed.

What happens next?

If the UK does not comply with the obligations it has agreed under the Protocol, the methods of enforcement are far more closely aligned to those which prevail under orthodox EU law than those associated with the dispute resolution mechanisms based on arbitration found in the Withdrawal Agreement. Article 12 of the Protocol provides that for the key provisions concerning trade regulation in the Protocol the Commission retains its capacity to pursue infringement proceedings against the UK and the Court of Justice too has the jurisdiction provided for in the Treaties, which includes the preliminary reference procedure by which national courts ask the Court of Justice to interpret EU law. Article 13(2) adds that “the provisions of this Protocol referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union”.

Article 4 of the Withdrawal Agreement ensures that the domestic courts of the UK may be called on to hold the UK government to the binding promises it has made: it declares that “The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States”, which embraces the legal principles of the direct effect and primacy of EU law. This is imported into the UK’s domestic legal order by the European Union (Withdrawal Agreement) Act 2020 (see discussion here). So here the familiar features of EU law live on in the UK. This might surprise those who imagined that blocking the role of the Court in particular and that of EU law more generally was a UK red line in the negotiation of the Withdrawal Agreement.

The law will doubtless take its course, but it is the political consequences of Mr Gove and Mr Johnson’s apparent disinclination to take seriously the Protocol which are even more pressing and alarming. And they become more so as every day passes and the UK fails to make the preparations necessary to meet its obligations under the Protocol, entailing most of all the construction of border infrastructure at west-facing ports in England, Scotland and Wales as well as at ports in Northern Ireland. Assuming the UK government sticks to its determination not to seek an extension to the transitional period – a militancy which may yet be subdued by the spread of the coronavirus – those obligations become live already at the end of 2020. This is imminent and it is urgent – yet it is not being treated as such by the most prominent politicians in the UK government.

It has been a consistent feature of Brexit that its principal cheerleaders appear to have only a dim understanding of what it might realistically entail, and moreover that they appear to assume that firm commitments made in consequence on negotiation with the EU can be lightly cast aside when they are seen to unsettle the preferred narrative of a Brexit crafted on British terms. But ripping up promises made with reckless bravado during a referendum or an election campaign is very different from treating binding legal commitments as disposable once the time to meet them looms. There is a dismaying sense that the current Cabinet has been assembled to exclude those such as Geoffrey Cox and Julian Smith who understood and respected the nature of the legal obligations undertaken pursuant to the Protocol, leaving the field clear for Mr Gove, Mr Johnson and others who decline to accept responsibility for fulfilment of the obligations imposed by the agreement which was concluded with the EU last Autumn. The whole point of that deal – the key that unlocked Mrs May’s deal and allowed its replacement by Mr Johnson’s – was that it significantly increased the legal, political and economic significance of the Irish Sea as a frontier within the UK. That the Protocol says things – that Northern Ireland is in the UK’s customs territory, that it secures protection of the UK internal market – which it does not do was doubtless politically convenient for the UK government, and probably a matter of misleading packaging in which the EU felt able last year to acquiesce. One wonders if the EU is now regretting not having insisted that the Protocol more clearly sayswhat it does.

Photo credit: Oliver Dixon via Wikimedia

Continue reading The Protocol on Ireland/ Northern Ireland: What it says is not what it does

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 jointimplementation 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 analysisof 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 rightsrelating 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 31and 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 1of 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 2of 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 3of 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 4of 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 33of 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 25of 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 5to 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 29inserts 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 5of 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 1to 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 10of 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 15of the new Act, and schedule 2to 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 16specifies 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 17defines 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 18of 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 19of 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 20of 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 21of 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 22amends 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 23provides 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 24amends 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 33of 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 24amends 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 34of 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 35of 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 37of 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 requirementin the Withdrawal Act to propose an Environment Bill – given that the government has tabled such a billin the meantime. Similarly it dropped the requirementfor the government to report on a customs arrangement with the EU by October 2018, as that date has passed. The rather pointless provisionstating 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 26of 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 27of 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 38of 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

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