Civil Society and Brexit: Key Issues in Public Law and Human Rights
Joe Tomlinson - Research Director, Public Law Project; Lecturer in Public Law, King's College London
Byron Karemba - Research Fellow, Public Law Project
Oliver Butler - Associate Research Fellow, Bonavero Institute of Human Rights; Fellow in Law, Wadham College, University of Oxford
It is an understatement to say Brexit is shaping up to be a significant development in the UK’s constitutional arrangements. Whatever final settlement emerges from this unfolding development, Brexit presents many challenges and opportunities for civil society organisations concerned with public law and human rights. Brexit has also inadvertently created an opportunity to reflect more widely on the major social, political, and economic challenges we face as a country, and the corresponding challenges and opportunities arising out of this for civil society. Produced as part of an initiative between the Public Law Project, Liberty, and the Bonavero Institute of Human Rights (University of Oxford), this blog sets out a summary of discussions held at a recent workshop, which focused on the following question: what are the major challenges for civil society organisations arising from the United Kingdom’s withdrawal from the European Union? While we cannot capture all the topics covered at the workshop, this blog reports on some of the key issues identified at the workshop.
The workshop started with a discussion of the prospective changes to immigration law and policy. This centred on the scope of rights to be enjoyed by resident EU citizens and their family members in a post-Brexit Britain. In respect of the present immigration system, there are multiple well-known barriers to administrative justice. Findings from ‘action research’ were also cited which highlight that mistakes often go undetected in regard to the administration of entitlements of EU citizens by different Government agencies. Problems identified at the workshop ranged from the Home Office simply getting things wrong, the system itself being framed in a way that leads to mistakes, and a tolerance of a culture of delay. Legal transitions can make these administrative problems more acute and, in this respect, Brexit poses multiple challenges.
That challenge can be broadly understood as giving rise to three types of issue. First, there are issues of awareness of schemes of redress. Second, there are issues relating to the exclusion of individuals from a status or a welfare benefit to which they are entitled to. Third, there are issues arising from what can be best described as administrative friction, i.e. problems emerging from the resistance by Government agencies to applying new regulatory regimes or implementing new entitlement schemes. It is noteworthy that one proposal which has been made in regard to the Settled Status Scheme being implemented to regularise the immigration status of EU citizens and their family members after Brexit is that the Home Office will treat applicants with more understanding than is typically the case. In this context the participants at the workshop discussed the credibility of the commitments made by the UK Government regarding favourable exercises of discretion and evidential flexibility in dealing with applications. There are questions, however, about the plausibility of the implementation of such a scheme by a large machine bureaucracy which historically has appeared to operate with a different ethos. Moreover, even in the best-case scenario, there would be an immigration administration which treats different categories of EU citizens differently. There are questions about the desirability of such parallel regimes. Additionally, the expected increase in divergence between the EU and UK system risks increased confusion and less supranational coordination—levels of coordination within the EU are already far from ideal. The mechanisms for redress are also unclear at present.
In respect of equality law, there are multiple possibilities. On the one hand, the Equality Act 2010 may be at risk of being changed in a way that reduces the protection it offers. On the other, Brexit may also offer opportunities to enhance protections. A central issue will likely be whether the Equality Act ought to be considered to be retained EU Law for the purposes of the European Union (Withdrawal) Act 2018. There are various possible answers to this question depending on the construction of both the Withdrawal Act and the Equality Act. The question of whether the Equality Act is a constitutional statute—and indeed, the nature and status of that category itself—may be relevant to this question. The participants at the workshop discussed whether the courts would continue to support the developing jurisprudence on equality after Brexit, and perhaps even recognise the 2010 Act as a constitutional statute.
In relation to Parliament, there are two interrelated major challenges: the scale of change and the duration of the wide-ranging change. There may be opportunities for political compromises and creative solutions, possibility supported by civil society. Equally, there are clear difficulties in both the politics and timescales involved. In many respects, the Withdrawal Act avoids the controversial questions and clear answers are still to materialise. There are three main potential tasks ahead. First, it will be necessary to legislate to implement the Withdrawal Agreement and the Framework for a Future Partnership between the UK and EU. Second, it may be necessary to legislate for areas of divergence between the EU and UK. Third, it may be necessary to legislate for a ‘no deal’ Brexit if that come to pass. There will be a need to ensure that, at a time of quick and extensive change, compatibility with constitutional standards are maintained. The participants at the workshop noted the efforts of different Parliamentary Select Committees to engage the academy, civil society, and the public on the conduct of business in Parliament. Inquiries by the Procedure Committee in particular have provided scope for civil society organisation to engage with different aspects of Parliamentary procedure within the context of Brexit.
In terms of the broader constitutional implications of Brexit, this can be divided broadly into three phases: the triggering of Brexit (e.g. Miller); delivery (the present phase); and post-Brexit. In relation to the post-Brexit phase, there has been little longer-term analysis but there are a range of possible challenges here. One issue will likely be the long-term growth of executive power and, in particular, the ability of the Government to legislate. In this respect, Brexit may normalise the idea that, when a significant administrative issue arises, it is appropriate to delegate a substantial amount of broad rule-making authority to the executive. This could even change the accessibility of the law reform process and have various other important consequences. Another issue is devolution, where it seems trust between the UK Government and the devolved administrations has been undermined by Brexit. The foundational problem here is that the present devolution settlements are in many ways a response to the question: given EU membership, what is the appropriate distribution of powers in the UK? Without EU membership, the coherence of arrangements may be further challenged. The participants at the workshop emphasised the importance of civil society organisations being active in all four constituent parts of the UK in a post-Brexit Britain.
A further issue discussed at the workshop is the institutional deficits which will arise from the UK’s withdrawal from the EU. While the discussion at present is focused on which rights will be kept and which will not, the enforcement of laws requires effective institutions. As such, reconfigured institutions will be needed to ensure proper protection of rights. As they have done in the past, civil society organisations could do some of thinking on the institutional framework needed to replace what is currently provided at EU level. At the same time, some contributions at the workshop focused on the risk of wholesale constitutional reform being carried out because of Brexit. Comprehensive reforms such as codification, an entrenched bill of rights or federalism may carry significant risks in the present climate of political instability.
In respect of human rights, differences in the material scope of the EU Charter of Fundamental Rights and the ECHR will increasingly become apparent and consequential. There will also be questions of how far retained general principles of EU law overlap with the content of the Charter and how far the developing common law will be influenced by the Charter. Participants at the workshop thought, practically, UK judges will likely rely on CJEU cases if they are instructive and helpful. Such cases may also have important role as comparative jurisprudence. More broadly, economic arguments about human rights may become more important, especially as they become a factor in trade agreements. There may also be a need to monitor developments in the EU human rights sphere and to consider how the UK may respond, if at all, to them.
The effect of Brexit on the Freedom of Information Act 2000 may also be worth tracking. No Government has ever repealed FOI laws and there seems to be little risk of this. However, the present Government has, by modern standards, been very secretive. FOIA has played its role in pressing against this, e.g. in relation to the Brexit impact assessments. Furthermore, while this Government has tried to be secretive, it has also been one of the leakiest in modern history. The risks that can be presented to FOIA by Brexit can be put into three categories. First, Brexit may create a smokescreen and a distraction which allows for substantive changes to be made to FOIA. Second, Brexit creates a moment in which FOI rules in secondary legislation may be vulnerable to change with little oversight. Finally, there is a risk of subversion by circumstance. For instance, if economic instability results from Brexit then there will be fewer people working on FOI in government, it may become deprioritised area of administration.
Finally, there is the effect of Brexit on data protection. There is considerable pressure on the Government to maintain international data flows post-Brexit. This may have a stabilising effect. However, the disapplication of national legislation which is incompatible with EU law will not be available in respect of post-Brexit legislation. There is likely to be a shift towards evaluating the effect of changes in data protection on the ability of the UK to secure or maintain an adequacy decision from the European Commission. Such a decision is important for reducing transaction costs on international data flows. 75% of UK data flows are currently to other EU Member States. Civil society advocacy on data protection will therefore have to adapt to this new frame. This may enable civil society groups to make progress on reform of surveillance laws, as such laws are considered in relation to adequacy, whereas they fall outside the scope of the GDPR for Member States. On the other hand, there are two key sources of pressure to diverge from EU law: public authority pressure to exploit administrative data more effectively and pressure to develop and implement innovative technology without the restrictions of the GDPR. These pressures may come together in particular sectors, such as the use of technology in the NHS. These areas will require scrutiny and advocacy by civil society organisations.