Under the Radar
August 19, 2020
UNDER THE RADAR: Key concerns with recent UK Govt Brexit consultations
With the end of the Transition Period fast-approaching (31 December 2020) the UK government in recent weeks has moved to advance a number of important public consultations on Brexit related issues that it clearly wishes to see resolved before the end of the transition period. The two consultations, one on the power to departure from retained EU law by UK courts and tribunals and the other on legislation to develop the UK internal market have clear implications for human rights in Northern Ireland.
The first concern for both consultations is the timing and length of the consultation process themselves which have left a very narrow opportunity for proper scrutiny by the public or civil society. Despite the norm of the UK government consulting with stakeholders for 12 weeks, these two consultations have a mere 4 and 6 week timeframe, two weeks of which are during August. The UK government itself advises that consultations should generally not span a holiday period and includes the month of August as the ‘summer holiday period’. This is even more problematic in the current period given that many stakeholder organisations within the voluntary and community sector may also be understaffed, furloughed or have had to turn their priorities elsewhere given the ongoing CVD19 pandemic. Both 4 or 6 weeks is an entirely inadequate time frame given the constitutional and rights implications in question.
The first consultation looks at the power to depart from retained EU case law, which was granted to the Supreme Court and the Scottish High Court of Justiciary in the 2018 Withdrawal Act and asks whether this power should be extended to other courts and tribunals. In our response we raised concerns about such an extension.
With the 2018 Withdrawal Act the UK government made the case that while significant elements of EU law were retained within UK law it was necessary to have a common understanding of how it applied and therefore designated that only the Supreme Court could decide if there was to be a departure from existing case law. If lower courts are now granted this power there could be divergence in how and when that power is used, which may result in more cases going before the various appeal courts and ultimately in cases going to the Supreme Court. As justice is a devolved matter this also raises the possibility of significant differentiation between the various legal jurisdictions within the UK and leading to legal uncertainty.
The consultation is not clear in how the Ireland/Northern Ireland Protocol of the Withdrawal Agreement will intersect with any departure from EU case law. The UK government is committed ‘to ensuring that no diminution of rights is caused by its departure from the EU, including in the area of protection against forms of discrimination enshrined in EU law’ by way of the legally binding Article 2 (‘Rights of individuals’) of the Protocol. This commitment therefore already allows for an asymmetric protection of EU case law within the United Kingdom by placing Northern Ireland in a different position from the rest of the UK. While this is an important aspect of the NI/Ireland Protocol, in our submission we questioned the wisdom of potentially creating a system that could see an even greater disparity in rights protections across the UK if lower courts have new powers to move away from retained law but also cautioned on the unanswered questions around how such powers would intersect with the non-diminution elements of Art 2.1 of the Protocol given that we will not see the limitations of those protections exercised or tested this side of the transition period. In this context, seeking to give lower courts with a more limited scope and capacity to address complex issues the power to diverge for retained law seems a premature and potentially dangerous suggestion at this point.
The second consultation relates to proposals to develop legislation to underpin the operation of an Internal Market as the UK moves outside of the structures of the European Single Market and seeks to create coherence and easy internal market access across all four regions of the UK before the end of the Transition Period.
The White Paper sets out proposals for a future framework to the Internal Market that is based around the principles of mutual recognition (MR) and non-discrimination. The details of these proposals raise a number of concerns including the fact that the approach on offer seems inflexible given the complexities of the devolved nature of government across the UK; the difficulties of navigating such a system against the provisions of the EU/UK Withdrawal Agreement and the Ireland/Northern Ireland Protocol; and the unknown trading context with the EU given ongoing delays and disagreements about the future trading relationship between GB and the EU.
There are numerous powers that previously rested within EU competencies that will now be returned to devolved Governments. Previous work to develop Common Frameworks sought to establish areas where closer cooperation or agreements were needed across the four regions in order to ensure the development of a coherent internal market. This approach is ongoing and collaborative in nature and at face value seems to respect the differences and autonomy of the devolved governments. The White Paper proposals in contrast seeks to establish a legislative approach to harmonising standards across the UK through the use of MR ‘to ensure that compliance with regulation in one territory is recognised as compliance in another’.
A number of concerns arise about this approach. It seems inflexible and devoid of the type of partnership and collaborative approach that seems necessary in relationships across a devolved context. The need to achieve trade without friction does not seem to be balanced against the need to uphold the autonomy of the devolved regions. Indeed the system seems itself to be designed out of fear that the devolved governments may seek to use their devolved powers to diverge from England on issues that may create barriers to trade despite there being no logical reason to do so given the advantageous trading relationship the three devolved regions have with England. Our colleagues in the Wales Governance Centre have also pointed out that there are also no mechanisms for derogating from the alignment to be set out in this legislation nor is there provision for dispute resolution mechanisms across jurisdictions. This also raises concerns about the balance to be struck between devolved autonomy and frictionless trade and questions whether the ability to challenge standards set through this legislation may only be open to businesses through costly civil litigation. In turn creating concerns about standards perhaps only being lowered in response to commercial challenges.
Also, in the context of continued uncertainty around a future UK/EU Free Trade Agreement and its overlap with the provisions of the NI/Ireland Protocol these proposals seem particularly unclear. The White Paper affirms the security provided to businesses by the Ireland/Northern Ireland Protocol and provides assurance that NI products that have approval and certification from EU authorities and bodies will also be accepted within the GB market. What is much less clear is how such a system would work in regard to goods from GB entering the NI market. Under the terms of the Protocol GB goods will not be allowed to enter the Northern Ireland Market unless they are in compliance with the EU rules maintained for NI under the Protocol. It is currently impossible to predict whether the UK Government will commit to such standards, but their current positioning with the ongoing negotiations casts serious doubts on such a prospect. As Gravey & Jordan highlight, if standards in the rest of the UK were to be dropped below the levels contained in the NI Protocol it would signal an automatic barrier to trade between GB and NI. That in turn could decrease the availability of goods to NI consumers and create higher prices in the Northern Ireland market. This would have clear knock on implications for living standards, poverty levels and other existing inequalities. While the likelihood of divergence from existing standards seems, as Katy Hayward outlines, the unlikely worst-case scenario, the trajectory of current trade talks suggest that this could easily emerge as an outcome before the end of the transition period if talks continue to falter. This leads to the broader sense of uncertainty and anxiety shared by many that a negative outcome to current trade talks could lead to a race to the bottom for many areas of the internal market that have important overlaps with human rights such as labour standards, environmental protections and key equality measures.
The White Paper is also unclear on how its proposals will overlap with the Withdrawal Agreement and simply states that it plans ‘to take account of the Northern Ireland Protocol’. In the context of continued uncertainty about this overlap, the failure to yet find clarity on the future EU/UK trading relationship and concerns about what impact Internal Market proposals will have on devolved autonomy, the proposals in the White Paper seem premature, inflexible and absent of any appropriate consideration of key human rights and equality impacts for Northern Ireland and other devolved regions.
Both of these consultations have flown relatively under the radar over the summer months and clearly haven’t received the breadth of scrutiny and exploration they deserve. In the context of such uncertainty about how the plans in both consultations may interact with the NI Protocol and devolved circumstances, there is continuing cause for concern about the human rights implications of these proposals.
The HRC submissions on the UK Internal Market and on powers to Depart from EU case law can be downloaded below.