Another round of negotiations, another day of deadlock on citizens’ rights.
But over the last two rounds, there has been some progress. EU Chief Negotiator Michel Barnier said today that the UK and EU have “two common objectives” on citizens’ rights: to give the withdrawal agreement "direct effect", and to ensure citizens’ rights are interpreted consistently in the UK and EU.
Brexit Secretary Davis Davis confirmed this is common ground – he reiterated that the UK would incorporate the withdrawal agreement fully into UK law so that individuals can invoke their rights before domestic courts, and that the UK would take steps to “ensure consistent interpretation of the concepts of EU law”.
Davis and Barnier are speaking the same language, but there are still major stumbling blocks to agreement – even on direct effect. For a start, the UK and EU do not seem to agree on what "direct effect" means.
Direct effect alone will not insulate citizens’ rights from repeal, which is what the EU really wants
In September, the EU summarised its position on direct effect as follows: “Directly effective provisions of agreement [are to be] enforceable through the domestic courts of EU27 and UK. (i.e. individuals can rely directly on withdrawal agreement provisions in front of domestic courts to override domestic implementing legislation).”
This implies that it is not just direct effect that the EU wants. It is also wants supremacy, of the kind currently enjoyed by EU law. At present, unless an Act of Parliament expressly repeals the 1972 European Communities Act, then the UK courts regard EU law as taking priority over any new UK law. This ensures that Parliament remains sovereign (since it can still repeal the European Communities Act), but also that EU law gets a degree of entrenchment.
The Government has not yet said whether it will give try to give the withdrawal agreement supremacy of this kind. However, in Dispute resolution after Brexit, we point out that is not wholly up to government, or even Parliament, whether the courts treat the implementing legislation in this way – as a so-called ‘constitutional statute’.
It depends on the content of the bill. What makes a law ‘constitutional’ in the view of the courts, according to Lord Justice Laws, is not that Parliament says so, but that the law “(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”.
The Government intends to implement the withdrawal agreement using secondary legislation, under clause nine of the EU (Withdrawal) Bill. But it is unlikely, bordering on impossible, that the courts would regard secondary legislation as constitutional. Secondary legislation sits lower in the constitutional hierarchy. Unlike primary legislation, it is subject to judicial review.
If the Government wants to have any chance of entrenching citizens’ rights, it needs to commit to implementing the deal in an Act of Parliament.
Barnier says that the only way to translate the two sides’ common objectives into reality is to give the European Court of Justice (ECJ) a role in interpreting the withdrawal agreement.
The UK is committed to ending the jurisdiction of the ECJ, but in that case, the Government needs to bring forward its own proposals for UK-EU dispute resolution after Brexit. The UK needs a view on what should happen when the UK courts interpret the withdrawal agreement differently from courts in the EU, and on what should happen if Parliament legislates in a way that the EU deems incompatible with the agreement.
We set out a range of options in Dispute resolution after Brexit. Here is a cheat sheet with the pros and cons.
The different ways of giving effect to the withdrawal agreement in UK law are discussed in greater detail in Chapter 7 of Dispute resolution after Brexit.