Will Brexit rights have direct effect? The Human Rights Act may show us the answer

by Carl Gardner on August 23, 2017

The government published its latest “future partnership paper” today on “Enforcement and dispute resolution”, and most of the attention it’s gathered—and the government’s spin—has been about its “dispute resolution” aspect. In other words, what role the European Court of Justice may have in the UK’s future relations with the EU.

But I want to focus on the other bit—enforcement. I think the paper is at least ambiguous about the relationship it envisages between what we might call “post-EU law” and our domestic legal system. It’s a very interesting ambiguity.

Both the UK withdrawal agreement and any “future relationship agreements” between the UK and EU are likely to confer rights on UK and EU citizens and firms. Rights to trade, rights to work and so on. Enforcement is about how citizens and firms will be able to claim those rights in national courts, and get redress if their rights are denied.

Currently, EU law rights are enforced in UK courts partly through a concept called direct effect. This isn’t something laid down in EU treaties, but an idea invented by the European Court of Justice to ensure we can enforce EU law rights even, if need be, over the heads of governments and national laws. Direct effect means that, if the UK laws on equal pay don’t properly match EU equal pay law, for instance, you still get the full EU equal pay rights in your local employment tribunal, because you can rely on EU law directly. You are not able to enforce only the UK simulacrum of EU equal pay law; you can enforce EU law itself.

Ted Heath’s government knew all about the concept of direct effect, and it’s section 2(1) of the European Communities Act 1972 that brought the concept into our own law. The result is that EU law rights themselves are “recognised and available in” our own domestic law, and are “enforced” accordingly by our courts.

Direct effect is a unique EU law concept, though. An example of a treaty the UK abides by that does not use the concept of direct effect is the European Convention on Human Rights. Over the decades we’ve been bound by that treaty, the UK has given effect to it in two different ways.

In the 20th century, we simply complied with the ECHR as a matter of external, international law. There were lots of British laws that delivered your right to a fair trial, for instance, and of course you could use those laws in British courts. But what you couldn’t do was actually make arguments in a British court based on your ECHR right to a fair trial. You could do that, as it happened, by applying to the European Court of Human Rights but in a British court, all you had to rely on was the UK simulacrum or simulacra of the right. Let’s call this the “pre-HRA model”.

That changed in 2000 with the Human Rights Act, which (to simplify slightly) for the first time gave domestic legal effect to the ECHR rights themselves. Under the Human Rights Act, you can go to a court in Britain and rely on Convention rights in much the same way as you rely on EU law rights. The UK has, in other words, chosen voluntarily to incorporate Convention rights into its own national law in a way that’s similar to the direct effect of EU law. We can call this “the HRA model”.

Now, let’s turn to today’s “enforcement and dispute resolution” paper. Most observers are I think reading it as saying the UK intends to comply with future UK-EU relationship agreements using the pre-HRA model, simply enacting UK laws to give effect to whatever rights those agreements create, and allowing firms and citizens to go to court to enforce those UK laws. But is that what the paper actually says? I’m not sure it is.

The first key passage addressing this issue is in para. 17, which says:

When it implements these agreements in its domestic law, the UK will also as appropriate provide for an effective means for individuals to enforce rights under the agreements, and challenge decisions of the competent authorities concerning those rights.

The literal meaning of para. 17 is that it’s rights under the agreements that will be enforceable in our courts; not simply the UK simulacra of those rights.

The second key passage is in para. 22, which says:

where the Withdrawal Agreement or future relationship agreements between the UK and the EU are intended to give rise to rights or obligations for individuals and businesses operating within the UK then, where appropriate, these will be given effect in UK law. Those rights or obligations will be enforced by the UK courts and ultimately by the UK Supreme Court. UK individuals and businesses operating within the EU should similarly be provided with means to enforce their rights and obligations within the EU’s legal order and through the courts of the remaining 27 Member States.

Again, the plain meaning of this is that it’s those rights or obligations in the WA and “FRAs” that will be enforced in national courts; not simply the UK laws reflecting them.

If the reading I’m suggesting is right, then ministers may have in mind something like the HRA model: a unilateral UK choice to incorporate “future relationship rights” into our legal system in such a way that individuals and firms can rely on them directly in UK courts, in much the same way as they can rely on EU law and Convention rights now.

This isn’t the only way of reading the paper: some will read it as setting its face against anything like direct effect and spelling out the pre-HRA model instead. That view is lent some support by a technical note on implementation of the withdrawal agreement (thanks to Raphael Hogarth for bringing it to my attention). It says (para. 3)

It would be both inappropriate and unnecessary for the agreement to require the UK to bring the EU concept of direct effect into its domestic law. 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.

This seems on its face to be describing a pre-HRA model. But wait. Strictly speaking, all it’s rejecting is the EU law concept of direct effect, which obviously won’t apply if we’re out of the EU. It may not be rejecting something similar, but of purely domestic origin. Look for instance at para. 9:

The EU Treaties are unique in requiring parties to implement them by incorporating the concept of direct effect into their domestic legal orders. That concept is specific to EU law, and reflects the fact that the Treaties have created their own legal system which forms an integral part of the legal systems of the Member States. The principle will therefore cease to apply to the UK when it ceases to be a Member State, and it would be inapt to require the UK to maintain it in its domestic law when it is no longer part of the legal order of which direct effect is a corollary.

All this is saying is that the EU law concept of direct effect won’t have any place in UK law. That’s uncontroversial, and compatible with either the pre-HRA or the HRA model.

Para. 11 intriguingly refers to “domestic concepts”, a funny phrase to use if all you mean is workaday British legislation:

There is nothing in principle to prevent the UK from implementing [a requirement in the withdrawal agreement] using domestic concepts, as long as those concepts are sufficient to achieve the result required by the agreement.

Para. 12 innocently explains that

There is nothing unusual in the idea that international agreements should be implemented by different parties in different ways. It is normal for agreements between the EU and third countries to be implemented in different ways in the internal legal orders of the EU and the third countries, even if the obligations are expressed in reciprocal terms.

but introduces footnote 6, which makes specific reference to the EEA agreement, saying:

the EEA Agreement does not require the non-EU States to implement it using the concept of direct effect … They may choose to implement it using a domestic concept that has the same consequences as direct effect, but that is their decision …

which would be a domestic concept very like the HRA model.

Perhaps I’m wrong. Perhaps all the lawyers, civil servants and DExEU ministers who’ve worked on and cleared these papers are of one mind, and envisage implementing the withdrawal agreement and future relationship agreements using the pre-HRA model.

But that would make paras. 17 and 22 of today’s “enforcement and dispute resolution” paper misleading, read literally; and it would be unfortunate if DExEU had ended up allowing a former government lawyer like me to see at least ambiguity in its drafting. I suspect the ambiguity is real, and may reflect disagreement and uncertainty about what UK implementation will look like.

If people in Whitehall do have the HRA model in mind, it’s a model some of them may be learning belatedly to love.

{ 1 comment… read it below or add one }

1 A Layman August 23, 2017 at 18:25

If the preferred means of dispute resolution were to be commercial arbitration – recognised by the New York Convention 1958 (NYC) – then the supervising court would be a National Court of the juridical Seat of the Arbitration.

EU Courts would be able to refer to the ECJ; UK Courts – both E&W and Scotland – would be supervised by the Supreme Court of the United Kingdom, with no need for the ECJ.

Enforcement in all Countries is a matter for the NYC.

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