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

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 estimatedover 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 Factortameconfirmed 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 expliciton 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 closerintegration 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 appointedbefore 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 agendafor 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

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

How do you solve a problem like Suella? The legal aspects of breach and termination of the withdrawal agreement

Professor Steve Peers, University of Essex

Today’s papers bring another storythat the UK might be planning to breach the Brexit withdrawal agreement – including the report that the new Attorney-General Suella Braverman is poised to attempt to justify this legally. So what happens if the UK (or the EU) breaches the withdrawal agreement is not a hypothetical issue. I’ve previously discussed the dispute settlement rules in the agreement, as well as the Withdrawal Agreement Act giving effect to the treaty in the UK, but it’s useful to bring the key issues together, and also to look at the issues from the point of view of international law.  This blog post summarises in turn the dispute settlement provisions of the withdrawal agreement and the rules on termination etc of treaties in international law, discussing the interaction between them.  (Update, Feb 24 2020: I've summarised the main points of this blog post in a Twitter thread)

A few basic parameters first. It’s likely that any (alleged) breach of the withdrawal agreement would have political consequences as well as face legal action. Political consequences might include not only reaction from the EU, but reluctance of the US Congress, concerned about the position of Ireland, to agree to the legislation implementing a US/UK trade deal. Which of the two would be most important is hard to guess in advance. It’s also harder to guess the route that the political aspects of the dispute would take, as compared to the legal route, which in principle follows a set of rules laid down in advance. Also the two routes will overlap: as discussed below, there’s political discretion as to whether and how to pursue legal proceedings.

Second, international law aims for treaties to remain in force if possible. A breach of a treaty by one side does not trigger its automatic collapse, or even an automatic reciprocal breach by the other party. The goal is to resolve disputes about treaties, not terminate them with every passing spaff.

Third, it’s not just the view of the parties to the agreement (the UK and EU) that will be relevant. Arguments about the breach of the treaty can be brought via the courts of both sides by individuals; and even the termination of the treaty could be challenged via the national courts and the CJEU, at least on the EU side. 

Fourth, the withdrawal agreement is distinct from the political declaration on the future relationship (discussed here), which is not binding as such. While the withdrawal agreement does require the parties to negotiate their future relationship in good faith, it might be difficult to establish a breach of such a vague obligation. The withdrawal agreement, including in particular the provisions on citizens’ rights (discussed here) and the Northern Ireland protocol, is also distinct from any failure to negotiate any treaties on the future relationship: in the event that negotiations on future treaties between the UK and EU are unsuccessful, this does not lead to automatic termination of the withdrawal agreement.

Finally, I am not assuming that the UK government has breached or will breach the withdrawal agreement, just discussing what might happen if it did from a (mainly) legal perspective. Recent statements by the UK government refusing to carry out checks in the Irish Sea have not been framed as an intention to breach the agreement, and the relevant part of the treaty doesn’t apply yet, so can’t yet be breached in practice. Although the title of this blog post focusses on the UK, because it’s the UK government’s recent statements that have caused some people to doubt its intentions to apply the withdrawal agreement, it’s also possible that the EU might breach the withdrawal agreement. The blog post therefore applies equally to any breach that might be committed on the EU side.

It’s obviously relevant that, as things stand, the UK has passed an Act of Parliament to give effect to the withdrawal agreement in domestic law. While a further Act of Parliament could amend the current Act in order to give effect to an intention to breach the agreement, there’s no proposal to do so at present. Any secondary legislation or government action in breach of the agreement could be struck down by the courts; although the government has indicated an intention to restrain judicial review of government action, it has not put its intentions into effect yet. (While the recent Withdrawal Agreement Act gives the executive powers to direct the judiciary how to interpret retained EU law, such powers do not apply to the withdrawal agreement itself). 

   

Dispute settlement and the withdrawal agreement: an overview

There are two distinct parts to the withdrawal agreement (and the UK legislation giving effect to it fully reflects this). During the transition period (discussed here), applying to the end of 2020 unless the two sides agree to an extension of one or two years (which the UK currently opposes in principle), substantive EU law as such, including all the usual rules of CJEU jurisdiction (references from national courts on the interpretation of EU law, Commission infringement actions for alleged breach of EU law) still apply to the UK. There’s no provision to reduce the transition period, either unilaterally or bilaterally, whether as a ‘punishment’ for not complying with the agreement or for any other reason.

After the end of the transition period, things change significantly. Most substantive EU law stops applying to the UK, along with most CJEU jurisdiction. There are special rules for cases pending at the end of the transition period, along with pending proceedings that might lead to litigation later. There is also special jurisdiction for the CJEU over citizens’ rights (for eight years after the end of the transition period), for disputes over EU budget legislation, and for cases concerning parts of the Irish border protocol and the whole protocol on UK army bases in Cyprus.

Furthermore, the main dispute settlement system then also kicks in. It provides for disputes on the interpretation of the agreement between the two sides to go to arbitration, if they cannot be settled by negotiation.  There’s nothing in the agreement to rule out parallel cases under national and EU courts on the one hand, and the dispute settlement system on the other.

There’s a general obligation for the parties to stick to the processes in the withdrawal agreement to settle disputes about that agreement (Article 168, which applies from Brexit day already):

For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.

If a dispute is not settled after three months of consultation, either side may request an arbitration panel to be set up. The two sides could jointly agree to start arbitration even before that point. The panel will consist of five arbitrators, from a list of 25 to be drawn up jointly (the EU and UK have not agreed this list yet). It must be set up within 15 days of the request to set it up. If the two sides cannot agree on a list of arbitrators, or the arbitrators who will serve on a particular case, there are tie-break rules. So it will not be possible to paralyse the dispute settlement system by refusing to agree on these names. The arbitration panel must give a ruling within 12 months. If it agrees to a request to give its ruling urgently, that deadline is reduced to six months.

If a dispute raises questions of EU law (which is likely as regards citizens’ rights in particular), the arbitrators must ask the CJEU to rule on it. The CJEU’s judgment will bind the arbitrators. Asking the CJEU to rule on the EU law stops the clock on the deadline for the arbitrators to give their ruling. 

An arbitration decision is binding on both sides. But when does it have to be complied by, and what happens if it isn’t? If the arbitrators have determined a breach of the agreement, the losing party has 30 days to notify the complainant of how long it thinks it needs to implement the ruling. If the complainant is unsatisfied by this, the issue of how long is necessary to comply with the ruling can go back to arbitration.

At the end of the deadline to comply with the ruling, if the winning party is unsatisfied with what the losing party has done to comply with the ruling, it can go back to the arbitrators to ask if the losing party has properly complied with it. The CJEU might again be asked to rule on an issue of EU law.

If the arbitrators rule that the losing party has not complied with the prior ruling, then at the request of the winning party, they may impose a ‘lump sum or penalty payment’ on the losing party. The arbitrators must consider ‘the seriousness of the non-compliance and underlying breach of obligation, the duration of the non-compliance and underlying breach of obligation’ when deciding how big the financial penalty should be.

If the losing party refuses to pay up after one month, or refuses to comply with the ruling confirming its non-compliance with the first ruling after six months, further sanctions might apply. The winning party can suspend any part of its obligations under the withdrawal agreement other than the citizens’ rights part, or under another treaty as agreed between the two sides (obviously, no such other treaties exist yet). This suspension has to be ‘proportionate’, and must take into account ‘the gravity of the breach and the rights in question’. If the losing party thinks that the suspension is disproportionate, it can ask the arbitrators to rule on the point within 10 days; the suspension is postponed from taking effect until the arbitrators rule on the point.

Suspensions are meant to be temporary until the losing party complies with its obligations, or the two sides agree to settle the overall dispute. If the losing party claims later on that it is now complying with its obligations and the winning party disagrees, the arbitrators can be asked to rule on the point; again the CJEU could be involved if there is an EU law issue. If it’s agreed, or the arbitrators rule, that the losing party is now complying with its obligations, the financial penalties or suspension of obligations by the winning party have to end.

As we can see, the dispute settlement system is not a means to terminate the withdrawal agreement. Even if part of the agreement is suspended by one side, the citizens’ rights provisions cannot be suspended. The intention is that any suspension or financial penalty is temporary, until the party breaching the agreement complies with its obligations. This suggests that termination is not a possible remedy – as does the provision stating that the parties must settle disputes in accordance with the agreement.

Also, as noted above, the dispute settlement system co-exists with some jurisdiction for the CJEU (as distinct from the CJEU jurisdiction within the dispute settlement system), as well as possible litigation in national courts. Traditionally, the CJEU has said that WTO dispute settlement rulings do not form part of EU domestic law, since the EU institutions preserve their political discretion whether to comply with WTO dispute settlement rulings or face proportionate suspension of trade from the winning party under the WTO rules – which are broadly similar to the dispute settlement system in the withdrawal agreement. On the other hand, the big difference between the WTO and withdrawal agreement dispute settlement systems is that the CJEU must be involved under the withdrawal agreement, where there is an issue of EU law. Whether that is enough to convince the CJEU that it should take a different approach remains to be seen. 

For the UK, the Withdrawal Agreement Act makes no specific reference to dispute settlement rulings forming part of UK law or not. The UK’s ‘dualist’ approach to international treaties (treaties do not form part of domestic law unless Parliament says otherwise) would suggest that they do not form part of UK law, unless it could be argued that Parliament’s implementation of the withdrawal agreement in domestic law was implicitly intended to apply to dispute settlement rulings too. Also, given that the CJEU still has jurisdiction to rule on citizens’ rights via the UK courts for awhile yet, the approach that the CJEU takes to the legal effect of the dispute settlement system is relevant to the UK as far as EU citizens are concerned.

Termination of treaties

As it relates to treaties, international law has two sources: customary international law and the Vienna Convention of the Law of Treaties (VCLT). The VCLT sought to codify the customary rules but differs in some respects. Some EU countries have not ratified the VCLT; nor has the EU, as the Convention is open to States only.

The starting point in the VCLT is that the validity of a treaty or a State’s consent to be bound by it can only be impeached under the VCLT. Termination, suspension, denunciation or withdrawal can only take place under the treaty or the VCLT. Other international law still applies between the parties even if the treaty no longer does.

Denouncing, withdrawing from or suspending a treaty (as provided for in that treaty, expressly or by implication) must apply to the whole treaty unless the treaty otherwise provides. Invalidating, terminating, withdrawing from or suspending a treaty as provided for in the VCLT must apply to the whole treaty, except (among other exceptions) if there is a ‘material breach’ of the treaty, or if the ground for termination etc relates to certain parts of the treaty and they are severable from the others and they were not an ‘essential basis’ of the consent to the treaty. A State loses its ‘right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty’ if it agrees expressly that the treaty is valid or remains in force, or its conduct suggests the same.

The conclusion of a treaty can be invalid where a State’s consent to be bound was very obviously in violation of its internal law, if an error in a treaty was an ‘essential basis’ the consent to be bound, by fraud by another negotiating State, corruption of the State’s representative procured directly or indirectly by another negotiating State, or coercion (acts or threats against the State’s representative, or the threat or use of force against the State in violation of the UN Charter). A treaty is void if it conflicts with ‘a peremptory norm of general international law (“jus cogens”)’.  

States can terminate or withdraw from a treaty only in accordance with its provisions or consent of the parties. If a treaty does not provide for termination, denunciation or withdrawal, a State cannot denounce or withdraw from it unless either: ‘(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.’ Twelve months’ notice to leave is required in that case.

As for suspension of a treaty, this is possible ‘in conformity with the provisions of the treaty’ or if all the parties consent. Either termination or suspension is possible in the event of a ‘material breach’ by one party, which ‘entitles’ the other party ‘to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part’. The VCLT defines a ‘material breach’ of a treaty as ‘(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty’. But all this is ‘without prejudice to any provision in the treaty applicable in the event of a breach’ and does ‘not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties’.

A party can also terminate or withdraw from a treaty due to the ‘impossibility’ of applying it if that ‘results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty’, but this cannot be invoked if the impossibility was caused by the party which wants to escape its obligations. Termination, withdrawal or suspension could also follow a ‘fundamental change of circumstances’ since the treaty was concluded, if it was ‘not foreseen by the parties’, if the original circumstances were an ‘essential basis of the consent of the parties to be bound by the treaty’ and ‘the effect of the change is radically to transform the extent of obligations still to be performed under the treaty’. Again, this cannot be invoked if the change in circumstances was caused by the party wanting to end its obligations.

The VCLT also regulates the process of termination or other forms of ending a treaty. A party seeking to end a treaty must give the other party three months’ notice. It can then proceed as planned if there’s no objection. But if there is an objection, the parties must try to find a solution. This does not affect anything in force regarding dispute settlement between the parties, so it is obviously possible that either the EU or UK would invoke the dispute settlement provisions in the withdrawal agreement.

If there is no negotiated solution within 12 months from raising the objection, one party may ask the International Court of Justice to rule, or both can ‘agree to submit the dispute to arbitration’, or the conciliation process set up by the VCLT itself might apply. The process of termination etc must be in writing and communicated formally, and can be revoked at any time before it takes effect.

As for the consequences of termination etc, an invalid treaty is void and has not legal force. In case of termination, ‘[u]nless the treaty otherwise provides or the parties otherwise agree’, the parties have no further obligation to perform the treaty, but this ‘does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination’.

As for suspension, ‘[u]nless the treaty otherwise provides or the parties otherwise agree’, suspension means that the treaty does not apply ‘during the period of the suspension’ and ‘does not otherwise affect the legal relations between the parties established by the treaty’. The parties must ‘refrain from acts tending to obstruct the resumption of the operation of the treaty’. As noted already, however, the withdrawal agreement has specific provisions on suspension.

In general, the various references in the VCLT to suspension and termination of a treaty unless the treaty otherwise provides need to be read in light of the rules in the withdrawal agreement itself, as summarised in the dispute settlement section above. These rule out dealing with disputes otherwise than in accordance with the treaty, allow for suspension as a possible outcome of the dispute settlement process except for the citizens’ rights chapter, and make no mention of termination of the withdrawal agreement, referring instead to the ‘temporary’ nature of partial suspension or financial penalties. The only reference to termination of the withdrawal agreement is in the Irish protocol, which provides (in Article 18 of the protocol) for the unilateral termination of part of that protocol (not the whole withdrawal agreement) in the event that it lacks continued consent in Northern Ireland, following a particular detailed procedure in that protocol. One can therefore argue that termination of the entire withdrawal agreement in response to a breach of it is therefore ruled out by the agreement itself.

In the alternative, what happens if the EU or UK believe that it is still possible to terminate the entire withdrawal agreement on the grounds set out in the VCLT? Even if actions by one side are arguably a ‘material breach’ of the withdrawal agreement as defined by the VCLT, it’s important to remember that invoking that breach in order to terminate that treaty is an option: as pointed out at the outset, a breach of a treaty by one side does not automatically terminate or suspend that treaty.  So in the event, for instance, of a breach of the Irish protocol by the UK, the EU might judge that it would be unwise to invoke its right to terminate the withdrawal agreement, as that would (among other things) throw the rights of EU citizens in the UK under the proverbial bus.

What about the role of individuals in all this? More than you might think, at least on the EU side. The international law rules on termination of treaties have been applied by the CJEU in the context of cases brought by individuals. In Racke, the EEC (as it was then) terminated the EEC/Yugoslavia cooperation treaty immediately (rather than in accordance with the terms of that treaty) on grounds of a fundamental change in circumstances, when the Yugoslav war broke out. An importer of wine from Yugoslavia, being affected by the termination of the treaty, challenged the EEC’s decision in the German courts, which asked the CJEU if the EEC’s termination of the treaty was valid.

According to the CJEU, ‘even though the Vienna Convention does not bind either the Community or all its Member States, a series of its provisions, including Article 62 [on change in circumstances], reflect the rules of international law which lay down, subject to certain conditions, the principle that a change of circumstances may entail the lapse or suspension of a treaty.’ The International Court of Justice had ruled already that on this point, the VCLT ‘may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances’.

Next, the Court asserted that it had jurisdiction to rule on the validity of an EEC act in light of the rules of public international law.  Before it applied those rules, it insisted that the rules in the treaty which the importer sought to invoke had to confer rights on individuals. It found that they did, based on its usual test for ‘direct effect’ of an international treaty in EEC (now EU) law. (This test should easily be satisfied as regards the citizens’ rights provisions of the withdrawal agreement).

The Court then observed that international treaties concluded by the EEC (now EU) form an integral part of EU law, and that if the termination of the treaty were invalid, the company would still have rights regarding the import of Yugoslavian wines.  So the EU has to ‘respect international law in the exercise of its powers’ and ‘is therefore required to comply with the rules of customary international law when adopting a regulation suspending the trade concessions granted by, or by virtue of, an agreement which it has concluded with a non-member country’. On that basis ‘[i]t follows that the rules of customary international law concerning the termination and the suspension of treaty relations by reason of a fundamental change of circumstances are binding upon the Community institutions and form part of theCommunity legal order.’

Applying these rules, the Court noted that international law was based on compliance with treaties (the pacta sunt servanda principle), ‘which constitutes a fundamental principle of any legal order and, in particular, the international legal order. Applied to international law, that principle requires that every treaty be binding upon the parties to it and be performed by them in good faith (see Article 26 of the Vienna Convention).’ Its importance had been further underlined by case law of the International Court of Justice, ruling that 'the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases‘.

Individuals could therefore invoke ‘obligations deriving from rules of customary international law which govern the termination and suspension of treaty relations’ to challenge the EU’s termination of a treaty. (Note that the Court did not confine itself to the ‘fundamental change in circumstances’ rule here). However, since the rules in question were complex and imprecise, the Court limited its judicial review to whether ‘the Council made manifest errors of assessment concerning the conditions for applying those rules’. It decided that the civil war in Yugoslavia met the conditions to justify terminating the treaty.

As for application of the procedural rules for terminating treaties in the VCLT (ie sufficient notice and consultation), the CJEU thought that prior warnings of termination were sufficient, and that ‘[e]vven if such declarations do not satisfy the formal requirements laid down by’ the VCLT, ‘the specific procedural requirements there laid down do not form part of customary international law.’

The Court came back to these procedural requirements in the recent well-known judgment in Wightman(discussed here), on the issue of whether the UK could unilaterally revoke its notification to leave the EU. In the Court’s view, its various reasons for ruling that unilateral revocation was possible were ‘corroborated’ by the provisions of the VCLT, ‘which was taken into account in the preparatory work for the Treaty establishing a Constitution for Europe’ (which later became Article 50 TEU). So the ‘clear and unconditional’ possibility in the VCLT to revoke a notification of withdrawal from a treaty before it takes effect supported the view that the Article 50 notification could be revoked too.

How would this work in practice for the withdrawal agreement? If the EU terminated or suspended the agreement, anyone who argued that their rights conferred by the agreement (UK citizens in the EU, or traders with Northern Ireland, for instance) were affected as a result could bring a challenge to the EU’s decisions, arguing that they were in violation of public international law generally and/or the withdrawal agreement in particular. A direct challenge before the EU courts would likely lack standing, but a challenge via the national courts (as in Racke), which could request the CJEU to rule on the issue, probably would not. Challenges concerning the Brexit process and withdrawal agreement are hardly hypothetical, as we have seen over the last two years.

Even if suspension or termination is valid, there are specific issues relating to citizens’ rights. As we have seen, suspension of the agreement expressly cannot affect them. And while the VCLT provisions concerning retention of rights in the event of termination of a treaty, or the ban on reprisals in the event that a treaty of a ‘humanitarian character’ is terminated for a material breach, arguably do not literally cover those covered by the citizens’ rights rules, it could be argued that in conjunction with the EU law principle of legitimate expectations, such rights cannot be removed.

What about the UK side? Public international law rules do not form part of the domestic legal order. But there are domestic legal and political issues nonetheless. In the event that the government aims to breach or terminate the withdrawal agreement by primary legislation, the House of Lords can delay it by up to a year. It rarely uses such powers, but it could be argued that there’s a ‘reverse Salisbury convention’ justifying it doing so when a government explicitly aims to reverse a commitment in its election manifesto – throwing its own ‘oven-ready deal’ in the bin. If the government aims to breach or terminate the withdrawal agreement by secondary legislation or executive action, there could be legal challenges on the basis that the secondary legislation is ultra vires the Withdrawal Agreement Act, or that executive action cannot simply suspend rights which are guaranteed by an Act of Parliament – leading to litigation which we might dub ‘Miller III’. But this brings us back to the government’s reported intention to nobble the judges.  

Barnard & Peers: chapter 27

Photo credit: dw.com

Continue reading How do you solve a problem like Suella? The legal aspects of breach and termination of the withdrawal agreement