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01 December 2017

Times of challenge and controversy: a handy, crowdfunded guide

9 mins

Article 50 was triggered eight months ago, so a third of the two year period it allows the UK (as a departing EU member state) to secure an agreement on its withdrawal terms has now passed. Despite the reported in principle agreement on the UK’s outstanding EU liabilities, talks on a future trade deal have not even begun and the UK/EU Commission negotiations have, so far, failed to produce any practical proposals for the UK/Republic of Ireland or Spain/Gibraltar borders. In the UK, the first of a series of controversial Bills intended to shape the UK’s legal system post-Brexit is being hotly debated by Parliament.

 What lies ahead? 

That question is, of course, impossible to answer with any confidence.  But the CrowdJustice-funded group that intervened in the Miller case to champion individual rights issues, The People’s Challenge, has now published an updated version of its Legal Milestones Guide to give readers a sense of the direction of travel, the points at which the politics of Brexit must give way to the demands of the law and how some of the fundamental rights individuals currently enjoy, thanks to the UK’s membership of the EU, might be protected for the future.

Here are three highlights from the updated Guide

An EU law safety net below the tightrope? 

First, some progress has been made on the citizens’ rights element of a UK withdrawal agreement, as set out in the uninspiringly-titled but important Joint technical note on EU-UK position on citizens’ rights after fourth round of negotiations. 

The extent of that progress should not be overstated, though. A glance at the note shows multiple areas of disagreement remain, such as family reunification, exporting social benefits and rights enforcement. There many others where agreement has been reached in principle about the protection of rights currently in use, for instance by ‘residents’ and students part way through their courses, but practical questions around precisely who will benefit are unresolved. This is far from comforting, given that reports for the EU Parliament and by the House of Lords EU Committee both concluded that the primary means of protecting EU rights currently being exercised would be in a comprehensive withdrawal agreement. 

But there is a further problem. There is no prospect whatsoever of a withdrawal agreement preserving all EU rights that have been exercised in the past by UK nationals elsewhere in the EU or other EU nationals here in the UK in a form that means they will be freely available for future use (the tantalising prospect of ‘associate citizenship’ of the EU during UK nationals’ lifetimes has been raised again recently but gained little political traction). So there will be many social and business interests developed, along with professional and personal investments that have been made, over the last 40 years in the expectation that the UK would remain an EU on which any agreement will be silent. The value of some business investments may be preserved by the UK’s bilateral investment treaties with individual EU states, but there are no obvious equivalents for individual interests. 

What then might affected individuals and groups do if the UK and EU Commission do reach an agreement on citizen’s rights, but they are left out of it?  One possible answer may lie in EU law, which remains fully enforceable until actual withdrawal. The hands of the UK and EU Commission negotiators are perhaps not quite as free as they might like them to be because, to be lawful, any withdrawal agreement must itself be compatible with the basic principles of the existing EU treaties, the EU Charter of Fundamental Rights and the European Convention on Human Rights (of which the UK but also the EU as an institution are signatories). 

So, suppose the UK/EU withdrawal agreement favoured Irish nationals commuting from the Republic for work in Northern Ireland over Spanish nationals commuting to work in Gibraltar. That would amount to discrimination between EU nationals which would be very difficult to reconcile with the basic anti discrimination principles of EU law. Or suppose the definition of ‘resident’ that is ultimately agreed excludes UK nationals who have regularly spent a few months of the year working or retired in another EU state, but spend most of their time here. Or suppose it excludes agricultural workers who spend each summer working in the UK. These groups might well have a complaint based on the Treaties, Charter or Convention that insufficient account had been taken of their fundamental rights, based on them having been meaningfully exercised in the past, in the framing of the agreement.

The EU Court of Justice rules on sufficient interest to bring an EU level legal challenge are strict. Individuals might not be able to take legal action to protect their own positions until any withdrawal agreement is approved. But if fundamental rights are imperilled, there is some scope for an effective intervention on behalf of them before then. An obscure provision of the TFEU, Article 218(11) allows member states, such as Ireland or Spain, or EU institutions including the EU Parliament, to seek the EU Court of Justice’s opinion on whether draft agreements are lawful. Any of these bodies could ask the Court whether citizens left behind by the UK and the EU Commission had been left behind lawfully. 

Of course, all this becomes academic if there is no UK/EU withdrawal agreement. But if there is a near-miraculous acceleration in the progress of the negotiations, and an in principle agreement on citizens’ rights is reached between the UK and EU Commission, many will want to study it carefully to see if their fundamental rights are compromised and, if they are, to establish whether their MEPs or another state will step up to defend them.

Challenging post-Referendum discrimination 

Pending Brexit, EU law remains fully enforceable within the UK too. Besides the Charter, there are the free movement and anti-discrimination provisions of the Treaties and particular directives. The UK’s own domestic anti discrimination framework, found in the Equality Act 2010 and relevant parts of the Human Rights Act 1998, remains wholly unchanged. 

Despite all this, and Ministers’ rhetoric, many EU nationals have experienced a fundamental shift in the way they are treated within the UK.  For instance, the practice of at least two Government Departments have undoubtedly shifted to the detriment of EU nationals  and there are reports of local authorities, and even charities, treating EU nationals differently than before, for example in relation to homelessness support decisions. Hate crime has also risen very significantly. 

Much of this is open to challenge, however. The compatibility of public authorities’ polices and clear practices with EU law can be tested with judicial review, as can nationality-based discrimination and failure to have due regard to the need to “eliminate discrimination, harassment, victimisation and any other prohibited conduct”, “advance equality of opportunity” and “foster relations” between people with different protected characteristics, including nationality, something which all public authorities are required to do under the 2010 Act’s public sector equality duty. Public bodies can also be the subject of complaints to the EU Commission (which can bring infraction proceedings against the UK), to the EU Ombudsman and to the UK’s Equality and Human Rights Commission which has investigatory, enforcement and litigation-funding powers under the Equality Act 2006

Individuals also have some further options beyond judicial review. Individual discrimination claims against public authorities based on s.29 of the 2010 Act and damages claims can be brought for any serious failure to implement EU measures intended to confer enforceable rights on individuals, contrary to the principles set out in the Francovich and Brasserie du Pêcheur / Factortame (No. 4) cases. And discrimination by private bodies, such as landlords or employers, can also be tacked effectively under the 2010 Act. 

Parliament’s final word 

There has been real, sustained and encouraging effort by MPs – particularly Dominic Grieve, Anna Soubry and Chris Leslie – to hardwire Parliamentary accountability into the EU (Withdrawal) Bill, most importantly with what is proposed at page 66 of the current draft amendment list. If made, this amendment would guarantee that Parliament had to pass an Act positively approving any withdrawal agreement. This is what the Three Knights Opinion, also commissioned and published thanks to crowdfunding, argues is legally necessary. That is because only Parliament has the constitutional authority to authorise, and give legal effect to, the changes in domestic law and existing legal rights that will follow from a decision to leave the EU. When the UK’s intention to withdraw was notified, Parliament could not know what rights would be lost or retained following withdrawal. Parliament must, and can only, take the decision when it is clear what the consequences will be for existing rights. So, if there is a withdrawal agreement, Parliament can give informed consent to it, or withhold that consent, as it chooses. 

But what if there simply is no withdrawal agreement? On this, the Three Knights Opinion is just as clear. Fundamental changes in the law and legal rights will still come about and so authorisation for that change must take the form of primary legislation. There must be a final, further withdrawal Act to before the UK steps off the metaphorical cliff and hurtles towards a future with no certainty save that its relationship with the EU will be governed by WTO principles.  

The current Withdrawal Bill cannot satisfy this constitutional demand, even if it is amended to set the 29th of March 2019 as an EU departure date. That is because the negotiations are not yet concluded, the Bill is likely to be passed ahead of any agreement and, at best, the Bill is concerned only with those rights that can be transposed into UK law. 

It follows that, once the extent to which rights will be abrogated or extinguished it becomes clearer, and if at that time the Government is unwilling to seek Parliament’s authority for withdrawal in an Act, a further Miller-style challenge may be mounted by way of judicial review. Ultimately, this issue would need to be determined by the UK’s Supreme Court. And, as in Miller, it would need to decide whether the Government or Parliament itself must ultimately take responsibility for the impact Brexit will have on individual’s rights which, by then, will be all too clear.  

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