Brexit Roundup: Human Rights and the Draft Withdrawal Agreement

Nicole Busby | 16 April 2018

© 2017 SCER

19 March 2018 marked an important milestone in the negotiations between the EU and the UK, with the reaching of consensus regarding the terms of the draft withdrawal agreement (‘the draft agreement’). As well as the terms of the financial settlement, the issues on which provisional agreement was reached include the implementation period and the rights of EU citizens residing in the UK and UK nationals living in the EU. What, if anything, does the draft agreement tells us about the future protection of human rights in a post-Brexit UK?

Citizens’ rights

Although it would appear that consensus has been reached in relation to citizens’ rights during the transition period, there is still a lack of clarity on whether the fundamental right to free movement will continue to apply in the longer term. The draft agreement published by the UK government is colour-coded and we are told that, ‘text in green is agreed at negotiators’ level and will only be subject to technical legal revisions in the coming weeks.

The section on citizens’ rights is marked in green. It states that the agreement is to cover all EU and British citizens who exercised their right to reside in Britain or the EU in accordance with the freedom of movement under EU law before the end of the transition period, and that it will continue beyond that if they have exercised that right. EU citizens who have resided in the UK lawfully for a period of five years before 31 December 2020 will be entitled to a ‘settled status’ as a means of securing their continued right to reside in the UK, which will require the submission of an application to the Home Office.

Those who have not been living in the UK for the minimum period of five years will be allowed to apply for temporary status, followed by a settled status application once they have acquired five years of residence. Family members will be able to apply for a status document if they were legally residing in the UK on 31 December 2020, with those wishing to join an EU citizen in the UK after that date allowed to so as long as evidence can be provided of an ongoing relationship.

Whilst this may sound as if some certainty has been established, what the draft agreement doesn’t tell us is whether free movement rights will continue after Brexit. It is therefore unclear whether those who have already exercised those rights, particularly UK citizens in the EU27, will be effectively stranded in one EU country as a result of the loss of the freedom of movement beyond Brexit.

Fundamental rights

Whilst the protection of fundamental rights beyond Brexit in areas currently underscored by EU law, such as equality and employment, will be a matter for the UK government, the draft agreement does appear to protect them during the transition period, which will begin on 29 March 2019 and end on 31 December 2020. During this time, EU law will have the same effect in the UK as in EU member states, which means the continued protection of all rights, including those covered by the EU Charter of Fundamental Rights.

However, in order to ensure such protection, specific UK legislation will be required by way of the Withdrawal Agreement and Implementation bill, which will simply transpose those rights protected by the final withdrawal agreement into UK law. As always, the devil is likely to be in the detail and there is a danger that, as with certain provisions of the EU Withdrawal bill currently being considered by the House of Lords, the UK government will seek to use the repatriated powers to amend or even repeal human rights and equality laws with little or no parliamentary scrutiny.

The withdrawal agreement also covers areas in which the UK and EU wish to continue formal cooperation, including justice, security and data transfers. Standalone treaties in these areas are being negotiated separately and there are concerns regarding the possible content of these agreements and their potential impact on fundamental rights. In the area of justice and security, the UK had opted out of a range of rights protections relating to cross-border extraditions and investigations.

While the UK remained a member of the EU, such gaps in protection posed less of a threat, as the overall EU framework including the Charter of Fundamental Rights plugged the potential gaps. However, as we know from the EU Withdrawal bill, the Charter’s future application in the UK is extremely unlikely and so the effect of such opt-outs will need to be carefully considered in relation to rights protections offered under future treaties.

Of course, Brexit is a negotiated process which is still ongoing and the text of the final agreement between the EU and the UK will not be known until later on in the process – as we have been constantly reminded, ‘nothing is agreed until everything is agreed’. However, the draft agreement does offer some food for thought and, at the very least, demonstrates what both sides would be willing to accept in certain respects. It also highlights how much will be left to domestic law beyond Brexit and there are some worrying developments taking place in this context.

In the last Queen’s Speech, a number of specific legislative proposals were announced to deal with particular issues related to UK law’s disentanglement from EU law. One of these initiatives, the Trade bill, is currently making its way through the parliamentary process. This bill, which forms the basis for the UK’s future trading relationships post-Brexit, provides that a minister ‘may by regulations make such provision as the authority considers appropriate for the purpose of implementing an international trade agreement to which the United Kingdom is a signatory’, including by ‘modifying primary legislation that is retained EU law’.

This raises serious concerns that UK ministers may use these broad discretionary powers to amend primary legislation containing rights, including the Equality Act 2010. With no constitutional guarantee of equality within the UK’s domestic framework and no savings clause protecting existing rights beyond Brexit in the EU Withdrawal bill, such concerns appear to be very well founded.

Overall, the Brexit process highlights a number of fundamental human rights concerns. The outcome of the process, including the UK-EU negotiations concerning the future relationship and the UK government’s approach to domestic legislation, suggest that we will need to be vigilant in ensuring that the cost of Brexit isn’t the protection of human rights.

Nicole BusbyNicole Busby

University of Strathclyde

Prof Nicole Busby is Professor of Law at the University of Strathclyde. Her research interests include labour and employment law, discrimination law and European social law and policy. She currently serves as a member of the Equality and Human Rights Commission’s Scotland Committee.