May's hunger for a Brexit deal seen in citizens' rights compromise

25 September 2017. By Matthew Holehouse.

Prime Minister Theresa May hopes this week to break a Brexit stalemate over the future rights of EU citizens currently residing in the UK.

She announced on Friday that the withdrawal agreement — which would petrify the EU-derived rights of three million people living in the UK and one million Britons living on the continent — can be cited before the UK courts.

EU lawmakers regarded the move as a potential breakthrough. British officials hope it is enough to convince the bloc's negotiators to drop their claim that citizens' rights should sit under the direct oversight of the EU Court of Justice.

UK officials will explain the position in more detail to their EU counterparts for the fourth round of talks in Brussels this week.

But so far, it has provoked little reaction among pro-Brexit lawmakers, who have previously been swift to sound the alarm at any sign of "backsliding" on the UK's constitutional revolution.

This is surprising. The position May outlined on Friday had been dismissed by UK government lawyers in July as "inappropriate and unnecessary." As the clock ticks, the UK's red lines are proving to be more flexible than previously thought.

Policy

Under the terms of Article 50, the EU Treaty's exit clause, Britain and the EU will make a Withdrawal Agreement. What May announced in Florence was that the UK would enshrine that agreement, which both sides hope will contain guarantees on citizens' working rights and welfare entitlements, within domestic law.

That means an EU citizen will be able in future years to cite directly from the agreement before a British judge. In a further concession, those judges will be able to interpret the provisions of agreement in line with future rulings of the EU Court of Justice.

EU negotiators demanded both these elements. They argue that if citizens' rights were preserved only in domestic statute, they could be diluted by future British parliaments.

"I am clear that the guarantee I am giving on your rights is real," May said. "But I know there are concerns that, over time, the rights of EU citizens in the UK and UK citizens overseas will diverge. I want to incorporate our agreement fully into UK law and make sure the UK courts can refer directly to it."

Although she didn't use the term, this effectively preserves the EU law principle of "direct effect" — the concept that the bloc's treaties pierce the domestic legal order and confer rights upon individuals. These rights can be invoked before the courts, and override domestic statute.

A reversal

This is a significant step by the UK, which until recently maintained that direct effect could have no role in the UK's constitution post-Brexit.

Britain's earlier proposals were to implement the provisions of the exit treaty, including citizens' rights, entirely through domestic statute. An international treaty, backed up with clauses on dispute resolution and enforcement, would compel the UK to keep these laws in place.  

But crucially, in line with the UK's "dualist" constitution, the Withdrawal Agreement wouldn't penetrate into domestic law. "Under the UK's constitutional arrangements, the agreement will not automatically be part of the UK's domestic legal order," UK government lawyers said in a technical note published in July.

"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 paper said. "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 option was modeled on the means by which EU law is implemented in Norway, Iceland and Liechtenstein under the European Economic Area Agreement. The principle, known as "quasi-direct effect," was intended to balance the binding implementation of EU law against respect for those states' sovereignty.

Flexibility

In an address the day before May's speech, chief EU negotiator Michel Barnier stressed that rights should be enforceable in national courts. British courts could have the "possibility" of referring EU law questions to the bloc's Court of Justice, he said.
 
UK officials hope their shift will be enough to satisfy the EU's position — while allowing them to claim that they had stuck to the letter of their pledge to end the "direct jurisdiction" of the Court of Justice in the UK.
 
The fact remains that May has signaled a major change of course, however, and clearly highlights how the urgency of striking a deal is prevailing over previously stated constitutional red lines.

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