Ensuring the Enforceability of EU Citizens’ Rights in the UK Post-Brexit
Professor Tamara Hervey, Natalia Miernik and James C Murphy (UG students), University of Sheffield
Acknowledgement is given to the ESRC for its support of Health Governance after Brexit and UK in a Changing Europe.
1. Introduction
Approximately 3.6 million EU citizens and their families reside in the UK. A significant number, estimated to be over 185,000, contribute to the health and social care sector. The ‘Citizens’ Rights’ section of the Withdrawal Agreement, Part Two, promises these individuals the continuation of many rights previously granted under EU law. This piece examines the mechanisms for enforcing the Withdrawal Agreement if these rights are disregarded, emphasizing the significance of practical enforcement for rights to hold meaning. It is important to note that these ‘Citizens Rights’ provisions remain applicable post-transition, encompassing residence rights, healthcare access, pensions, and other social security benefits. Similar provisions exist within the EEA/EFTA Separation Agreement and Swiss Citizens Rights Agreement, both of which are granted domestic legal effect in the UK through the Withdrawal Agreement Act.
This analysis primarily focuses on the enforceability of the Withdrawal Agreement’s ‘Citizens Rights’ provisions within the UK. While their enforceability in EU member states falls under EU law and the domestic laws of each respective state, this piece will also touch upon the enforceability of these provisions within the EU due to the reciprocal nature of the Withdrawal Agreement’s obligations.
The foundation of this process lies in the EU (Withdrawal Agreement) Act 2020, which empowers the UK to enact regulations that implement the Citizens Rights aspects of the Withdrawal Agreement. Full implementation of these rights through UK regulations would make their enforcement within UK courts and tribunals a matter of domestic law, with claimants relying on rights enshrined in these UK regulations.
However, the question remains: what recourse do individuals have if the UK inadequately implements these rights? Can they bring a claim before UK courts or tribunals based on an infringement of their rights as stipulated in the Withdrawal Agreement itself?
2. Enforceability of the Withdrawal Agreement in the UK
EU law utilizes the doctrines of ‘supremacy’ and ‘direct effect’ to enable citizens to enforce specific EU laws within their national courts. Currently, pre-transition, UK courts recognize and apply these doctrines as mandated by the European Communities Act 1972.
For the Withdrawal Agreement to hold legal weight in the UK, an Act of Parliament must expressly grant it enforceability. This requirement stems from the UK’s ‘dualist’ system, where international treaties lack enforceability in domestic courts unless domestic legislation enacts them.
The EU (Withdrawal Agreement) Act 2020, specifically Section 5(1) which introduces a new Section 7A into the European Union (Withdrawal) Act 2018, grants domestic legal effect to the Withdrawal Agreement post-transition. The language in this provision mirrors the European Communities Act 1972, Section 2(1), responsible for establishing the supremacy and direct effect of EU law within the UK legal framework.
The supremacy of EU law dictates its precedence over any contradictory national law, even if enacted later.
2.1 Supremacy
The UK House of Lords case, Factortame, established the supremacy of EU law within the UK based on the 1972 Act. The ruling asserted the requirement for UK courts to ‘disapply’ or disregard any domestic legislation conflicting with European Community law. Lord Bridge’s judgment emphasized this, stating that UK courts were obligated to prioritize directly enforceable Community law over any conflicting national rule when issuing a final judgment.
Similarly, Section 7A of the European Union (Withdrawal) Act 2018 could potentially lead to the ‘disapplication’ of any domestic provision contradicting the Withdrawal Agreement, effectively granting the Agreement supremacy within the UK legal system. This aligns with the intention of the Withdrawal Agreement, as stated in Article 4(1), which aims for uniform legal effects within the UK and the EU. Furthermore, Article 4(2) obligates the UK to ensure compliance with the Agreement, including empowering judicial and administrative authorities to disregard conflicting domestic provisions through primary legislation.
However, whether the EU (Withdrawal Agreement) Act 2020 genuinely ensures the supremacy of the Withdrawal Agreement by enabling the ‘disapplication’ of conflicting domestic legislation remains debatable. One could argue that the provisions within the EU (Withdrawal) Act 2018, as amended by the 2020 Act, signal Parliament’s intention to release UK courts from the constraints of the supremacy doctrine. Such a scenario would place the UK in breach of the Withdrawal Agreement, as it wouldn’t have ’the same legal effect’ as within the EU. However, the remedy for such a breach wouldn’t lie in a claim by a citizen invoking a provision of the Withdrawal Agreement to ‘disapply’ contradictory national law.
2.2 Direct Effect
Whether or not the Withdrawal Agreement holds the power to ‘disapply’ contradictory UK legislation, a crucial question arises: can individuals directly enforce the rights outlined in the Withdrawal Agreement within UK courts and tribunals, including those handling social security and child support appeals? This characteristic of EU law is known as ‘direct effect.’
Two questions require answers: firstly, do the Withdrawal Agreement’s provisions on citizens’ rights possess direct effect, and secondly, does UK law effectively enact this direct effect? These questions are intertwined because the Withdrawal Agreement itself aims to ensure uniform legal effects within the UK and the EU. If the Agreement doesn’t inherently grant direct effect to its Citizens Rights provisions, the UK isn’t obligated to enact such direct effect within its domestic legal framework.
2.2.1 Direct Effect of Citizens’ Rights Provisions in the Withdrawal Agreement under EU law
Article 4(1) of the Withdrawal Agreement states that legal and natural persons can directly rely on provisions within the Agreement that meet the criteria for direct effect under Union law. The interpretation of ’the conditions for direct effect under Union law’ is open to debate. It could imply the conditions for the direct effect of EU law itself or the conditions for direct effect within EU law of international agreements to which the EU is a party. The literal interpretation of Article 4 leans towards the latter.
EU law itself has direct effect when provisions satisfy specific criteria established by the European Court of Justice. These criteria are relatively broad: provisions must outline entitlements for individuals and impose direct obligations on Member State authorities to protect those entitlements. This stems from the (debated but accepted) presumption that the nature of the EU legal order inherently grants individuals enforceable rights.
Conversely, provisions within international agreements involving the EU as a party have direct effect under more limited circumstances. Firstly, the agreement itself, in its entirety and logic, must be capable of granting enforceable rights. Secondly, the specific provision in question must outline a sufficiently precise legal obligation. Both conditions are essential. This approach by the CJEU distinguishes between the novel legal order of EU law and traditional international law. It avoids the presumption that provisions within international agreements involving the EU, even if mirroring provisions within EU law, automatically possess direct effect. The CJEU considers the broader political context, going beyond purely legal criteria.
The correct interpretation of Article 4 WA remains a point of contention and could lead to litigation.
Adopting the first interpretation would suggest that the Citizens’ Rights provisions within the Withdrawal Agreement possess direct effect. These provisions clearly define entitlements for individuals and impose direct obligations on Member State authorities to safeguard those entitlements, closely mirroring directly effective provisions within EU law.
The second interpretation, in our view, would lead to the same conclusion, albeit through a more complex legal reasoning process.
Firstly, considering the nature and aim of the Withdrawal Agreement, does it inherently possess the capacity to create enforceable rights? It could be argued that while the Agreement aims to ensure a smooth EU exit for the UK, it’s constrained by the inherent nature of the EU. Its interpretation must acknowledge the UK’s desire to operate outside the jurisdiction of EU law. This stance implies that citizens in EU-UK cross-border situations will inevitably lose benefits associated with EU membership. Consequently, a lack of enforceability for the Withdrawal Agreement could be one such consequence.
However, the stronger argument posits that the central aim of the Withdrawal Agreement is to safeguard the acquired rights of citizens in cross-border situations who have relied on the protections of EU law and the advantages of EU membership. While replicating all such rights is impossible due to the UK’s non-EU member status, the Agreement’s objective should be to preserve as many of these rights and benefits as feasible. Therefore, the Withdrawal Agreement should be interpreted as an agreement inherently capable of direct effect.
Adding to this argument is the EU’s recent practice of explicitly excluding direct effect within the text of agreements or related Council Decisions when such an outcome is intended. This wasn’t done with the Withdrawal Agreement, suggesting the EU’s intention for the Agreement to be capable of direct effect.
Secondly, what about the requirement for a sufficiently precise legal obligation within the specific provision at issue? This area of EU law is particularly intricate, and the CJEU’s approach has drawn criticism due to the difficulty in deriving general principles from its case law. Some have differentiated between association, cooperation, and trade agreements, where the CJEU is more inclined to find provisions directly effective, and other types of international agreements involving the EU. This distinction doesn’t offer much clarity with the Withdrawal Agreement. Is it closer to an association, cooperation, or trade agreement, all of which aim for closer integration between parties (contrary to the Withdrawal Agreement’s goal of divergence), or another type of international agreement?
Examining the specific measures, the relevant section of the Withdrawal Agreement contains numerous provisions outlining precise legal obligations, imposing specific duties on national authorities and granting rights to individuals. Articles 13-28, 31-35, and 39 WA, especially when considered alongside the definitions and scope provided in Articles 9, 10, and 30 WA, exemplify this characteristic.
Therefore, we conclude that regardless of the chosen interpretation, many of the Citizens’ Rights provisions within the Withdrawal Agreement are directly effective as per EU law.
2.2.2 Direct Effect of Citizens’ Rights Provisions in the Withdrawal Agreement under UK law
Moving to UK law, the interpretive presumption is that Parliament intends to fulfill the UK’s obligations outlined in the Withdrawal Agreement. Section 7C, introduced into the European Union (Withdrawal) Act 2018 by the European Union (Withdrawal Agreement) Act 2020, solidifies this presumption.
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),
Essentially, any question regarding the effect of any relevant law, including the effect of any relevant law, must be decided in alignment with the Withdrawal Agreement, with explicit reference to Article 4 WA.
Section 7A of the European Union (Withdrawal) Act 2018, as amended, outlines the national implementation of the obligation to ensure the direct effect of relevant Withdrawal Agreement provisions. It states:
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 mentioned previously, mirrors Section 2, “General implementation of Treaties,” from 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; …
In essence, just as Section 2 of the European Communities Act 1972 ensured the direct effect of EU law within the UK legal system until the transition’s end, Sections 7C and 7A of the European Union (Withdrawal) Act 2018 ensure the direct effect of the Withdrawal Agreement post-transition.
During Withdrawal Agreement negotiations, the UK government issued a Technical Note (undated) arguing that direct effect is specific to EU law and would cease to apply in the UK post-EU membership. Furthermore, it contended that direct effect wasn’t essential for individuals to enforce their rights under the Withdrawal Agreement. The note suggested that achieving the same outcome is possible if the Agreement mandates the UK to grant citizens specific rights, and the UK subsequently enacts domestic legislation granting those rights, enabling EU citizens to enforce these rights through the UK’s legal system.
We disagree with this analysis. A Technical Note from negotiations holds limited persuasive value in interpreting legislative text. As explained, the stronger interpretation is that the legislation reflects Parliament’s intent to fulfill the UK’s obligations under the Withdrawal Agreement by granting its relevant provisions direct effect within UK law.
It’s worth noting that influential commentators, such as Richard Eccles from Bird & Bird, Emily McKenzie from Brick Court Chambers, and Steve Peers on this blog, share our view that relevant provisions of the Withdrawal Agreement will possess direct effect in the UK post-transition.
2.3 Independent Monitoring Authority
The European Union (Withdrawal Agreement) Act 2020, Section 15, establishes an Independent Monitoring Authority (IMA). Its primary statutory duty is to promote the effective implementation and application of Part 2 of the Withdrawal Agreement within the UK (Schedule 2, Section 23(1)). Further details regarding the IMA’s structure, including its independence from government, membership requirements, provisions for non-executive member payments, staffing, and delegation of functions, are outlined in Schedule 2 of the Act.
The IMA is empowered to conduct inquiries, pursue judicial review claims, or intervene in legal proceedings. However, these actions are discretionary. The IMA’s only obligation is to conduct a preliminary review of complaints alleging that the UK has failed to comply with its obligations under Part 2 of the Withdrawal Agreement, or that a UK public authority has hindered an individual’s exercise of relevant rights. This review helps the IMA determine if a full inquiry is warranted, considering whether alternative means, such as court proceedings, might be more appropriate for the complainant.
The provisions within the 2020 Act align with the UK’s obligations under Article 159(1) WA, which grants such an independent authority the power to investigate breaches of Part Two by administrative bodies, receive complaints from EU citizens and their families to facilitate inquiries, and initiate legal action before UK courts or tribunals based on these complaints.
The IMA is to be appointed before the transition period ends.
The government has indicated that the IMA will be accountable to Parliament through annual reports and will receive funding from the Ministry of Justice.
The European Union (Withdrawal Agreement) Act 2020 allows for the transfer of the IMA’s role to another authority through executive action if deemed more efficient, effective, and economical, while safeguarding its operational independence, impartiality, and adequate resources. The government also retains the power to abolish the IMA altogether (Schedule 2, Section 40).
While the IMA, or a succeeding authority, is operational, individuals who believe their rights under the Withdrawal Agreement haven’t been adequately implemented or upheld by UK authorities can lodge complaints. The IMA can then investigate the UK authority’s implementation of citizens’ rights under the agreement. If the IMA finds that the UK authority has failed to properly implement or apply the relevant rights, it can pursue legal action against the authority. Essentially, the IMA will function similarly to the European Commission in monitoring the implementation and application of citizens’ rights under the Withdrawal Agreement within the EU. However, this implementation process falls short of guaranteeing ‘direct effect.’
The Public Law Project, an independent legal charity, highlights that the IMA plays a crucial role in monitoring and protecting EU citizens’ rights post-Brexit. Therefore, the Secretary of State shouldn’t be able to enact significant changes to the IMA or abolish it through secondary legislation. Any amendments to the IMA must be executed through primary legislation and must adhere to the Withdrawal Agreement.
Relying solely on this enforcement mechanism, particularly given the executive powers to modify or dismantle it without external scrutiny, would only fulfill the UK’s obligations under Article 4 WA if the relevant provisions of the Withdrawal Agreement lack direct effect under the terms of the Agreement. Given that they do possess direct effect, we conclude that the European Union (Withdrawal Agreement) Act 2020 signifies Parliament’s intention for the relevant provisions of the Withdrawal Agreement to be directly effective.
2.4 Joint Committee
The IMA isn’t the sole body tasked with incorporating the Withdrawal Agreement into UK law. Article 164(1) WA establishes a UK-EU Joint Committee responsible for the Agreement’s implementation and application. Article 166(1) WA further empowers the Joint Committee to issue binding decisions on matters within the Agreement’s scope. These decisions are binding on both the UK and the EU, requiring implementation under international law. While the Joint Committee doesn’t handle individual complaints regarding breaches of the Withdrawal Agreement, it’s tasked with assessing the IMA’s effectiveness no sooner than eight years after the transition period concludes (December 31, 2028). The Joint Committee even holds the authority to determine whether the UK can abolish the IMA.
The inaugural meeting of the EU-UK Joint Committee convened via teleconference on March 30, 2020. The meeting’s agenda included updates from both the UK and EU on the implementation of the Withdrawal Agreement’s Citizens’ Rights provisions. During this meeting, the vice-president of the European Commission welcomed the UK’s commitment to ensure that EU citizens could register as lawful residents in the UK to exercise their rights under the Withdrawal Agreement. Conversely, the UK acknowledged the Commission’s support for Member States in ensuring UK nationals within the EU could exercise their rights under the Agreement. Both parties agreed to initiate the operations of six Specialized Committees focusing on key areas of the Withdrawal Agreement’s implementation. The establishment of these Specialized Committees, most notably the Committee on Citizen’s Rights, is detailed in Article 165(1)(a) WA.
2.5 Preliminary Reference Procedure
Another crucial element in enforcing the Citizens’ Rights provisions of the Withdrawal Agreement within the UK post-transition is the preliminary reference procedure. Article 158(1) WA allows UK courts to refer questions regarding the interpretation of Part 2 to the CJEU for cases initiated within eight years of the transition period’s conclusion. This procedure carries the same legal weight in the UK as the one governed by Article 267 TFEU, making the CJEU’s interpretation binding on the referring national court.
UK law incorporates this aspect of the Withdrawal Agreement through Section 7C of the European Union (Withdrawal) Act 2018, which mandates that questions concerning the interpretation, validity, or effect of laws related to the Withdrawal Agreement be resolved in accordance with the Agreement. Section 7C (2)(b) explicitly references Article 158 WA and the CJEU’s jurisdiction under Part 2 of the Withdrawal Agreement.
3. Conclusion and Summary
Until December 2020 (unless the EU and UK mutually agree to an extension of up to two years before July 2020), EU law remains applicable. Once the transition period ends, the UK’s obligations under the Withdrawal Agreement, including the Citizens Rights provisions, will take effect through the EU (Withdrawal) Act 2018, as amended by the EU (Withdrawal Agreement) Act 2020.
Post-transition, at least five entities will play a role in enforcing these rights:
The UK executive will implement the UK’s obligations through statutory instruments, exercising the powers granted by the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020.
Utilizing the same powers, an Independent Monitoring Authority will be established within the UK to oversee the proper application and implementation of Part 2 of the Withdrawal Agreement. The IMA will handle individual complaints and conduct reviews.
The relevant sections of the Agreement are directly effective, allowing individuals to invoke them before domestic courts and tribunals within the UK.
The CJEU retains the authority to address questions regarding the interpretation of these parts of the Withdrawal Agreement through a preliminary reference procedure, whereby domestic courts and tribunals can refer such questions to the CJEU.
The Joint Committee will ensure general enforcement of the Withdrawal Agreement by facilitating discussions and overseeing implementation methods.
References:
Barnard & Peers: chapter 26
Photo credit: Michael Reeve, via Wikimedia Commons