Brexit: acquired rights Contents

Chapter 1: Introduction

The EU and acquired rights

1.Over time the European Union has provided individuals, companies, public bodies and government agencies with thousands of rights and obligations in fields ranging from employment law to free trade, from intellectual property to financial services. The UK has been an active participant in their creation. This complex framework of rules is enforced through EU law, which is either directly effective in the EU’s Member States, or is transposed by them into national law.

2.What will happen to these rights and obligations after the UK leaves the EU, when EU law will no longer apply? Will EU nationals in the UK, or UK nationals in other EU Member States, be able to rely on them as ‘acquired rights’ under international law, as has been widely reported, or any other source of law? Or will it be necessary for the UK’s withdrawal agreement, should one be agreed, to specify which EU rights are to be maintained? And what if no withdrawal agreement is agreed before the UK is obliged to withdraw from the EU? In our view, these are some of the most pressing questions to have arisen from the result of the June referendum.

Our approach to the inquiry

3.This report of the EU Justice Sub-Committee seeks to answer these questions. Much of its focus is on EU nationals living, working and studying in the UK, many of whom are currently facing uncertain futures, and on UK nationals facing similar uncertainty in other EU Member States. We are conscious that many significant commercial rights are enforced by EU law, and that their future enforceability is of considerable concern. While this report does not focus on commercial rights, many of the legal principles it considers apply as much to companies as to individuals.

4.Chapter 2 of the report explains the current framework of EU citizenship rights, and Chapter 3 considers the consequence of those rights being removed for EU nationals in the UK and UK nationals in other Member States. Chapter 4 considers the evidence we received from the Ambassadors to the UK of Poland, Romania and France on the concerns of their nationals in the UK. Chapter 5 considers the evidence we received on the concerns of UK nationals in other EU Member States. Chapter 6 considers the extent to which the doctrine of acquired rights under international law will be able to safeguard EU rights post-Brexit, and Chapter 7 the extent to which the European Convention on Human Rights or bilateral investment treaties will be able to do so. Chapter 8 considers whether the withdrawal agreement itself should protect pre-existing EU rights, and, if so, how it should do so. Chapter 9 considers the role of EU law, and the Court of Justice of the EU (CJEU), in enforcing rights protected under the withdrawal agreement. Lastly, Chapter 10 considers the case for giving a unilateral undertaking, or seeking early agreement, on which EU citizenship rights should be maintained post-Brexit.

5.We met in September and October 2016 to take oral evidence from the witnesses listed in Appendix 2. We are very grateful to them, and to all those who submitted evidence in writing, for their participation in this inquiry.

The Government’s approach to the inquiry

6.The Foreign and Commonwealth Office provided written evidence to the inquiry on the concerns of EU nationals in other EU Member States, which is reflected in chapter four of the report.

7.In early October we invited a Minister from the Home Office, which leads on UK immigration policy, to give evidence to the inquiry. The Home Office declined to do so for the following reasons:

“We have considered the request for the Minister to give evidence to the committee but … the government has been clear that it wants to protect the rights of EU nationals already living in the UK, and the only circumstances in which that would not be possible are if UK citizens’ rights in other EU Member States were not protected in return. The government has provided repeated assurances on this point but this issue must be addressed as part of the wider negotiations on the UK’s exit from the EU. The government has committed to invoking Article 50 by the end of March 2017 once it has clear objectives for negotiations. Therefore the government will not be able to provide any further detail at this time and we fear the session will not be particularly constructive if done at this time.”1

8.We wrote to the Home Office again, on 27 October, to explain that questions had arisen in the course of the inquiry on which we felt the Government ought to be given an opportunity to comment before we reported. We asked whether it still maintained that it would have no useful evidence to give to the inquiry. If its view had changed, we explained that we would need to receive the Government’s evidence by early-to-mid November, as the inquiry planned to report in December.2 We did not receive a reply to the letter.

The EU Committee’s work

9.Following the referendum on 23 June 2016, the European Union Committee and its six sub-committees launched a coordinated series of short inquiries, aimed at providing an analysis of the most important issues that will arise in the course of negotiations on Brexit. The pace of events means that these inquiries will be short, but with this constraint, we are seeking to outline a wide ranging and thorough view on important issues and how they might affect the United Kingdom and our European Union partners.

10.Our inquiries are running in parallel with the work currently being undertaken across Government, where departments are engaging with stakeholders, with a view to drawing up negotiating guidelines. But while much of the Government’s work is being conducted in private, our aim is to stimulate informed debate, in the House and beyond, on the many areas of vital national interest that will be covered in the negotiations.

11.We make this report to the House for debate.

1 Email from the Home Office dated 5 October 2016, as set out in the letter from Lord Boswell of Aynho to Baroness Williams of Trafford, 27 October 2016:

2 Letter from Lord Boswell of Aynho to Baroness Williams of Trafford, 27 October 2016.

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