Brexit is scheduled to become effective at the end of 29 March 2019 and will take place either with a Withdrawal Agreement or without one having been entered into between the UK and the EU-27. At this point in time it is possible that the Article 50 TEU notice is withdrawn by the UK Government. Whether the Brexit Date 29 March 2019 is postponed upon application of the UK and agreed with the unanimous consent of the other 27 Member States is still undecided.
Upon Brexit becoming effective the UK will cease to be party to the existing Free Trade Agreements and Association Agreements the EU currently has entered into with a multitude of countries and regional free trade zones around the world in the last decades. The UK is currently striving to enter into its own binding agreements with such other countries to come into force on 30 March 2019 but so far only continuity agreements with Switzerland and a number of smaller UK trading partners have been inked.
There is no difference between a “Deal” and a “No Deal” Scenario in relation to the termination of the existing Free Trade Agreement and Association Agreements on 29 March 2019. Even if the UK House of Commons should change its mind and ratify the Withdrawal Agreement, and even if the Transition Period until 31 December 2020 contemplated in the Withdrawal Agreement under Articles 126 and 127 thereof would then come into force, such Transition Period only applies in the relationship between the UK and the EU-27, but does not bind any other country around the world without their express consent.
Article 129 of the Withdrawal Agreement provides that the UK shall be bound by the obligations stemming from the international agreements concluded by the EU, but binds only the UK. In the context of Article 129 it is contemplated that the EU will notify the other parties to such international agreements that during the Transition Period the UK is to be treated as a Member State for the purposes of such agreements, but that is not binding on such other countries.
Shipping goods from the UK to destinations around the world can take several weeks and if such goods arrive after 29 March 2019 in countries with which the EU has Free Trade Agreements (for example Japan, South Korea, Canada, Mexico, Columbia, Ecuador, Peru, South Africa) then the import and customs regime will have changed and the import of such goods will be handled under a different set of rules. That applies both in a Deal as well as in a No Deal Scenario.
Shipping goods from Japan, South Korea, Canada, Mexico, Columbia, Ecuador, Peru, South Africa or other exporting countries to the UK can of course also take several weeks and if such goods arrive in the UK after 29 March 2019, then the import and customs regime will have changed and the import of such goods will be handled under a different set of rules. That applies, subject to any internal legislation in the UK, in the “No Deal Scenario”. In case of the “Deal Scenario” the UK will be obliged under Article 129 of the Withdrawal Agreement to apply those rules which currently exist under Free Trade Agreements and Association Agreement entered into in the past by the EU even if the relevant exporting other country does not apply them any longer after 29 March 2019 to goods shipped from the UK to such other country.
It is completely uncertain whether individual exporters exporting to the UK will have direct recourse under Article 129 of the Withdrawal Agreement against the UK or whether Article 129 is a simple international obligation owed by the UK to the EU only, without having direct effect in favour of exporters exporting to the UK.
A key public law discussion in recent months concerns the vast number of statutory instruments (SIs) government is using to implement Brexit. Initially, it was said by government that c.800-1,000 SIs were required. That estimate has now been revised down to c.600 (while the estimated number of SIs has decreased the size of individual SIs has also increased). This aspect of the Brexit process is worthy of study for multiple reasons, perhaps most notably because of the level of democratic scrutiny that will be (realistically) provided. In this post, we introduce one aspect of Brexit SIs that, we argue, is worthy of close attention by public lawyers: the deletion of administrative functions.
Assume, delete, or coordinate?
In the UK, we are governed by a complex set of structures which exist across a range of layers. Government exists on the local, devolved, national, supranational level etc. Administrative functions—in the forms of powers and duties—exist throughout these levels. In respect of these functions, Brexit represents a process of redistributing powers and duties from the EU to domestic administrative bodies (or that is at least what is expected).
The key choice for government vis-à-vis any administrative function presently held by the EU is effectively three-fold: delete the function; assume the function on the national level (either on behalf of the UK or through the devolved nations); or continue to co-ordinate with the EU in the administration of the function. While each of these three options raise important questions of law and administration, we are concerned here with the range of administrative powers and duties government is choosing to simply ‘delete’ via SI in the course of the Brexit process.
What is being deleted?
We are already seeing some administrative functions effectively deleted. They range in their apparent significance from minor to potentially very serious. There are also partial deletions, e.g. where a power is to be assumed on the national level but requirements about how a power should be exercised are removed.
Finding examples is not an easy task: the explanatory notes attached to SIs do not necessarily explain this type of change and the content of the SIs typically makes little sense unless it is placed within the wider legislative jigsaw of which it is a piece. The following examples serve as illustrations of a wider pattern.
- In the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018, BEIS removed access to online dispute resolution for UK consumers by revoking Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes.
- The Explanatory Note to the Social Security Coordination Regulations, relaid in January 2019, states they have removed the requirement on the UK to make provisional payments to a claimant in the UK while a dispute is being resolved between the UK and EU member states relating to which state has the social security obligations to make payments.
- The Equality (Amendment and Revocation) (EU Exit) Regulations 2018 retain Regulation 4(1) of the Equality Act 2010 (Amendment) Regulations 2012 which provides for the Treasury to publish a report from time to time reviewing whether women and men are receiving equal treatment in access to insurance services in the UK. However, the amending regulations removed regulation 4(3), which stated that the insurance services report must set out the objectives to be achieved by the Equality Act’s regulatory system as regards insurance services, and whether those objectives were being achieved.
There are also some trends in deletion we are observing that cut across multiple SIs and different policy areas. For instance, we are observing the deletion of articles in EU Regulations that require effective, dissuasive, and proportionate penalties. For instance, Article 5(8) of Council Regulation (EC) No. 2173/2005 provides for member states to impose effective, proportionate, and dissuasive penalties for breaches of the EU timber importation licensing scheme. This article has been deleted by the Timber and Timber Products and FLEGT (EU Exit) Regulations 2018 with no alternative penalties regime or in fact any reference to penalties inserted into Council Regulation (EC) No. 2173/2005. The justification for the removal is unknown because its removal is not recorded in the accompanying explanatory note. Similarly, Article 36(3) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council on the Common Fisheries Policy is removed by the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2018. Article 36(3) states ‘Member States shall adopt appropriate measures for ensuring control, inspection and enforcement of activities carried out within the scope of the CFP, including the establishment of effective, proportionate and dissuasive penalties.’ Again, this omission was not noted in the explanatory note to the regulations. In an entirely different sector, the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 omits an EU law requirement for the imposition of effective, proportionate, and dissuasive penalties for the illicit manufacture of drug precursors. The explanatory note makes no reference to the removal of this Article, despite references to penalty provisions elsewhere in the explanatory note.
Why is deletion worthy of analysis?
SIs which, as part of the Brexit process, delete administrative functions presently held by the European Union constitute a subject worthy of analysis for multiple reasons. By the end of the process, the State may well have been redefined, with aspects of its responsibilities carved out as functions transferred from the EU to the UK are deleted. There are various—potentially very significant—practical implications of this, as demonstrated by the examples we have offered above. From a wider perspective, however, this category may also reveal something important about the difference between the governing styles and priorities of the European Union and the UK. Alternatively, it could be said that the deletion of functions may just be a government under pressure taking an easier route. If that is true, it will tell us something about the Brexit reform process and the quality of the SI legislative process in scrutinising such choices. Finally, if the category of deleted functions is large, we may find reasons to be sceptical of any suggestion—which Richard Rawlings raised the prospect of in an important recent report—that the Brexit process may lead to the ‘filling back in’ of the UK state that was, in part, ‘hollowed out’ by the transfer of power to the European Union in recent decades.
Alexandra Sinclair is a Research Fellow at the Public Law Project. She is leading on the SIFT Project, which, in partnership with the Hansard Society, is tracking qualitative trends in Brexit SIs.
Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.
(Suggested citation: A. Sinclair and J. Tomlinson, ‘Deleting the Administrative State?’, U.K. Const. L. Blog (7th Feb. 2019) (available at https://ukconstitutionallaw.org/))
On the 10 December 2018 we launched the findings of our research project funded by Joseph Rowntree Charitable Trust (JRCT) about the next steps for a Northern Ireland Bill of Rights. The 10 December 2018 was symbolic as it marked both the 10th anniversary of the Northern Ireland Human Rights Commission’s (NIHRC) advice to the British Government (as mandated under the Belfast Agreement/Good Friday Agreement-the B/GFA) and the 70th anniversary of the Universal Declaration of Human Rights.
To help promote debate and progress the Bill of Rights, this project produced a draft model Bill of Rights based on the NIHRC’s 2008 advice. The idea was to turn the NIHRC’s recommendations into something that looked like draft model legislation. The report notes five key findings and makes 10 recommendations. It should be read in the context of the current human rights and equality crisis in Northern Ireland.
The publication of a draft legislative model Bill produced several responses. First, the draft model Bill was welcomed by participants as a meaningful contribution. Second, most participants felt that the draft model Bill did not go far enough regarding certain rights/areas and noted that the NIHRC’s advice was submitted 10 years ago. As such, while much of the advice remains persuasive and holds, and the extent to which the NIHRC included a full range of rights is impressive, the advice was also the subject of disagreement. It was, however, a compromise document then and there are areas where further thought is needed, including for example, women’s rights, including reproductive rights; stronger provisions on children’s rights; a stronger equality provision, with particular emphasis on disability and the need to protect younger people; refugee rights; and marriage equality. Although the report notes that there has been public comment about the extent of the advice, we believe this has clouded and obscured the voices of those who still believe the advice never went far enough. The advice was and remains a compromise.
A third finding is that Brexit has created a receptive environment for putting the Bill of Rights centre stage, to help ensure there is a legal framework in Northern Ireland that will assist in clarifying and underpinning social, economic and citizenship rights, among other things. In light of Brexit, the draft model Bill therefore needs to be updated and augmented to reflect the changing particular circumstances in Northern Ireland. The following rights/issues were highlighted during our discussions (some of which are impacted by Brexit): citizenship equality; freedom of movement; equivalence of rights on the island of Ireland; EU citizenship rights; and voting rights. The report also highlighted that close attention should be paid to all aspects of the B/GFA mandate when taking this work forward. The focus on the term ‘particular circumstances’ of Northern Ireland should not distract from the other aspects of the remit, for example, the need to consider ‘international instruments and experience’.
Several participants also referred to another significant source of rights protection under threat, namely the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA). The British Government has committed to repeal the HRA and replace it with a British Bill of Rights; it has even referred to possible withdrawal from the ECHR. While such a threat has been delayed due to Brexit, it appears to be only temporary, and this raises the spectre of a further lowering of the threshold of rights protection and further undermining the B/GFA. The final key finding is that Brexit, combined with the repeal of the HRA and possible withdrawal from the ECHR, simply increases the need for an inclusive and comprehensive Bill of Rights.
The report then shows how a Bill of Rights could be one ‘solution’ to the plethora of current rights and equality challenges, and makes a number of recommendations including, the need for the Bill of Rights process to be acknowledged and celebrated as a significant contribution towards fostering a robust human rights culture in Northern Ireland. As envisaged in the B/GFA the advice submitted by the NIHRC, and all associated contributions towards the creation of a Bill of Rights should inform the next steps. There is no need or desire to start from a blank page.
The report also notes that the failure to give effective domestic legal force to the concept of equal citizenship and the rights/equality components of the peace process has disturbing, ongoing and underreported consequences. It has contributed more than is often acknowledged to the societal and other pressures on the power-sharing institutions. This is what we term a ‘formalisation failure’ with respect to core concepts; the pursuant unwillingness of statutory and other institutions to intervene has left major principles of the peace process to be fought out in the political arena, with familiar and predictable outcomes. The attempt by the NIHRC to confront this trend, in its advice, has never been adequately recognised.
The Bill of Rights should be taken forward as Westminster legislation in the way provided for in the NIHRC’s advice (HRA plus). This should not prevent preparatory initiatives that seek to build momentum or provide clarification. Any such work must commence from completed documentation and not be a further exercise in prevarication, obstruction and delay. This fact is also no impediment to the Assembly and Executive advancing specific human rights and equality goals within the context of this overriding constitutional framework. In particular, the Northern Ireland Assembly and Executive should be proactive and imaginative in their work of ‘observing and implementing’ existing international human rights obligations.
The British and Irish Governments have a responsibility as co-guarantors of the B/GFA, to address this outstanding element of the B/GFA. The British Irish Intergovernmental Conference (due to meet again in Spring 2019) provides a formal setting for such work. We accept that there are competing views about the status of the process, and how it might be taken forward. However, our view is that it is a reasonable expectation, flowing from a generous and purposive reading of the B/GFA (and subsequent developments), that a Bill of Rights enacted at Westminster would be the final outcome. In other words, we agree with those who believe this is an outstanding legacy issue that requires urgent attention.
Finally, the report acknowledges that the process, since inception (officially launched on 1 March 2000) has been marked by a lack of cross-community party political consensus. That remains a major obstacle to progress, and will present a formidable challenge to, for example, any new ad hoc Assembly Committee (referred to in the leaked draft ‘agreement’ document) that is established. It was apparent throughout, however, that unionist/nationalist divisions did not always neatly map on to the views of individuals and communities. If a new political process can unlock progress and break the current stand-off then it can be tentatively welcomed, but questions will remain about how it will be structured, how participation will be ensured and, perhaps of most significance, how an acceptable outcome will be delivered.
We share the view, heard often in our discussions, that we should be ambitious for human rights and equality in Northern Ireland and that the time is right to re-open this conversation. For this to happen both the British and Irish Governments, as co-guarantors of the B/GFA, must adhere to and fulfil their international obligations to ensure the progression and the eventual implementation of a Northern Ireland Bill of Rights.
Dr Anne Smith, Transitional Justice Institute/School of Law, Ulster University
Professor Colin Harvey, Queen’s University Belfast
(Suggested citation: A. Smith and C. Harvey, ‘Where Next for a Bill of Rights for Northern Ireland?’, U.K. Const. L. Blog (6th Feb. 2019) (available at https://ukconstitutionallaw.org/))
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