Chapter 7: The protection of EU rights under alternative sources of law
The European Convention on Human Rights
The right to peaceful enjoyment of one’s possessions
73.The first paragraph of A1P1 ECHR provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”92
74.Professor Lowe explained that the ECtHR, which oversees and interprets the ECHR, had drawn a parallel between the notion of possessions, as used in the first paragraph of A1P1, and the notion of property rights: “Because the notion of possessions is wide, it spills over into interests in pension rights and other matters of that kind. It is a fairly wide concept, more like the continental concept of patrimony or bien”.93 He thought the following definition of the scope of A1P1 provided a good summary of the property rights covered:
“In ‘substance’ this provision is ‘guaranteeing the right of property.’ In a series of decisions, the [European Court of Human Rights] has recognized that this includes the right to use, to transfer, and to exclude others from the covered possessions. The ‘possessions’ covered by this right include movable and immovable things, including intangibles such as intellectual property, contracts, judgments, licences, and public benefits.”94
75.Professor Lowe said that “legitimate expectations” were also protected as an aspect of possessions. For example, the legitimate expectation of planning consent arising from the grant of outline planning permission was regarded as a component of the property rights in the land concerned. This approach had “considerable potential for flexible and innovative application”95 post-Brexit.
76.Mr Anthony Speaight QC of 4 Pump Court agreed that “possessions” under A1P1 extended to intangible possessions such as patents, contractual rights and entitlements to non-contributory social security benefits. They could also include assets which a person did not yet possess, but of which they had a legitimate expectation. For example, a licence would be protected by A1P1 provided the licence holder had a reasonable and legitimate expectation as to the lasting nature of the licence. The Appellate Committee of the House of Lords was willing to assume that “possessions” could cover the right to the renewal of a government licence to fish in the waters around South Georgia.96
The right to private and family life
77.Article 8 ECHR provides as follows:
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
“(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”97
Preventing deportations
78.Professor Douglas-Scott thought Article 8 would be useful in preventing deportations of EU nationals in the UK, or UK nationals in other EU States, who no longer had a right to reside.98 Professor Barnard agreed, saying that both Article 8 and A1P1 could be invoked to help prevent any deportations. The rules under those Articles were “much more stringent”99 in preventing deportation than the current rules on expulsion in the Citizens Directive.100
79.ILPA agreed, saying that the right to private life could encompass the right to establish and develop relationships with other human beings and the physical and psychological integrity of a person, as well as those features which were integral to a person’s identity or ability to function socially as a person.101 They explained that, although each Article 8 challenge was case specific, certain principles could be derived from the ECtHR’s approach to determining whether a breach of Article 8 had taken place.
Box 4: The approach of the ECtHR in determining a breach of Article 8
|
The Immigration Law Practitioners’ Association summarised the ECtHR’s approach as follows:
|
Source: Written evidence from ILPA (AQR0004)
Protecting EU citizenship
80.Professor Barnard did not think that the ECHR could be invoked to preserve the right to EU citizenship for UK nationals, once the UK had withdrawn from the EU:
“Under EU law that [ECHR] argument just will not wash because, in order to be able to enjoy EU citizenship, the precursor is to be a national of a Member State.102 Since the UK will be leaving the EU, I will no longer be a national of a Member State and therefore will not enjoy EU citizenship.”103
Mr Speaight agreed: “I cannot think of a legal argument giving UK citizens here any sort of rights to hold on to EU citizenship.”104
81.On the other hand, Susie Alegre, an international human rights lawyer and Associate Tenant at Doughty Street Chambers, considered that EU citizenship was such “a core part of the social identity of many British nationals”105 that its loss could fall within the ambit of protection provided by Article 8 ECHR. She referred to a judgment of the ECtHR in which it stated (in relation to national citizenship):
“While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article.”106
82.Ms Alegre concluded that the removal of EU citizenship for the “many people who will be profoundly affected by the loss of their European identity” could be said to interfere with their right to private life under Article 8 ECHR.
The prohibition against discrimination
83.Article 14 ECHR states:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”107
UK citizenship rights
84.Ms Alegre explained that UK citizenship law allowed for dual nationality.108 Many UK citizens would be able to acquire the nationality of another EU Member State, thereby maintaining their EU citizenship rights. Citizenship of other Member States could be acquired without taking residence in the Member State by various routes such as through the nationality of parents or grand-parents (e.g. Italy, Germany and Ireland), the nationality of a spouse (e.g. France) or through significant financial investment in the Member State (e.g. Cyprus). In addition, those born in the Island of Ireland, including Northern Ireland before 2005, were automatically entitled to dual UK and Irish citizenship. This meant that there would be some UK citizens who lost their EU citizenship and others who did not.109 Ms Alegre argued that, if a right to EU citizenship were protected under Article 8 ECHR, those UK nationals who were not entitled to dual nationality could be said to be discriminated against on grounds “such as their national or social origin, association with a national minority, property, birth or other status,”110 in breach of Article 14 ECHR. She cited a recent judgment of the Supreme Court concerning UK citizenship, in which Lady Hale stated:
“It is clear, therefore, that the denial of citizenship, having such an important effect upon a person’s social identity, is sufficiently within the ambit of Article 8 to trigger the application of the prohibition of discrimination in Article 14.”111
85.Mr Speaight also thought that the loss of EU citizenship could lead to unlawful discrimination, but between EU nationals in the UK and nationals from other countries in the UK, if the residence rights of EU nationals were not safeguarded. Mr Speaight thought this was a “significant” issue,” and imagined “a Convention argument succeeding”:
“That is the situation of EU or EEA citizens, or their dependants, who on Brexit day will have been in the UK for more than five years. Under EU law, currently embodied in regulations here, a day before Brexit they will have a permanent right of residence in this country. The day after Brexit, if the EEA immigration regulations are no longer in force, on the face of things they will have no right to remain. On the other hand, a third-country person who has come to this country and been here for five years has the possibility of applying for indefinite leave to remain.”112
86.Professor Barnard saw a similar possibility for an unlawful discrimination challenge, but from the opposite perspective. Assuming that the residency rights of EU nationals were safeguarded in the withdrawal agreement, she asked: “under European Convention law, to what extent is it justifiable to carry on treating ex-EU citizens better than and differently from third-country nationals—Indian, Pakistani and so forth?”113
Enforcement of ECHR rights
87.Professor Lowe thought any claims against the UK arising from Brexit would be brought under the ECHR (and bilateral investment treaties, which we consider below), for two principal reasons. First, the ECHR had “easily-activated dispute settlement provisions”, which could be invoked by private litigants (individual or corporate) against a State. Unlike the typical procedure for a claim under international law, in which the national State of the injured person brings the claim against the respondent State, there was no need for the injured person to persuade his or her government to take up the claim. Second, the protections specifically given to property rights were part of a “web of protections” established by the ECHR, so that if the claim failed under A1P1 it might still succeed under one of the associated provisions of the ECHR.114
Conclusions
88.In the absence of a negotiated settlement on which EU rights will be maintained, the ECHR offers a more likely route for successful litigation post-Brexit than the international law doctrine of acquired rights. A greater number of EU rights will overlap with ECHR rights, and the ECHR has an effective national enforcement mechanism in the Human Rights Act 1998.
89.The two most relevant ECHR rights are the right to family and private life under Article 8 and the right of peaceful enjoyment of possessions under Article 1 of the First Protocol. Article 8 is likely to be invoked in cases of deportations of EU nationals post-Brexit (should such a policy ever be implemented), to seek to prevent the deportation taking place. Article 1 of the First Protocol will be invoked to protect EU rights to tangible and intangible property that overlap with the scope of “possessions” under that Article.
90.We are not confident that the right to private and family life under Article 8 of the ECHR would prevent the status of EU citizenship from being removed as a consequence of Brexit. The ECHR case law on the protection of citizenship to which we were referred relates to national citizenship. It is arguable whether EU citizenship can be conflated with national citizenship for this purpose: Article 20 of the Treaty on the Functioning of the EU makes clear that EU citizenship “shall be additional to and not replace national citizenship”.
91.There is a risk that the loss of EU citizenship could lead to unlawful discrimination between UK nationals, EU nationals and third-country nationals in the UK post-Brexit, where an ECHR right is engaged, as it could for other UK nationals in other EU Member States. We expect this risk of unlawful discrimination to lead to a high volume of litigation, unless it is addressed in the withdrawal agreement.
92.The overlap between EU and ECHR rights should, however, be kept in context: the full range of EU rights is not covered by the ECHR. In cases where there is no overlap the ECHR will not provide any protection. This appears to be the case for many of the EU rights about which UK nationals living in other Member States are worried, such as the right to work, to study, to retire, to access affordable healthcare and other public services, and to equal treatment.
Bilateral Investment Treaties
93.Professor Lowe explained that bilateral investment treaties (BITs) were intended to serve anyone who set up a business in one of the States party to the BIT. The investor would be protected against “discriminatory, unreasonable and other measures; expropriation and things of that sort. So anything that was done to the property of somebody who had set up a business in a State party would be protected.”115 The UK had over 100 BITs. Each defined the scope of investments that were protected. For example, the UK-Malta BIT defined investments as:
“Every kind of asset and in particular, though not exclusively … (i) movable and immovable property and any other property rights such as mortgages, liens or pledges; (ii) shares in and stock and debentures of a company and any other form of participation in a company; (iii) claims to money or to any performance under contract having a financial value; (iv) intellectual property rights and goodwill; (v) business concessions conferred by law or under contract, including concessions to search for, cultivate, extract or exploit natural resources.”116
94.The extent of the protection is also defined in each BIT. The UK-Malta treaty was again typical. The most relevant provisions were as follows:
“(1) Each Contracting Party shall encourage and create favourable conditions for nationals or companies of the other Contracting Party to invest capital in its territory, and, subject to its right to exercise powers conferred by its laws, shall admit such capital.
“(2) Investments of nationals or companies of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. Neither Contracting Party shall, in any way, impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory of nationals or companies of the other Contracting Party. Each Contracting Party shall observe any obligation it may have entered into with regard to investments of nationals or companies of the other Contracting Party.”117
95.As with the ECHR, Professor Lowe thought that the “key thing about … investment treaties is that they … have mechanisms that are available to individual litigants. An individual or a company can themselves initiate a case against the State … in a way that would not be possible under international law generally.”118 Some uncertainty arose, however, from the fact that the European Commission had taken the view that BITs ceased to be effective between EU Member States by virtue of EU membership: “They are, in effect, displaced by the legal regime under EU law. It is unclear whether this argument would prevail, and if so whether such treaties may revive after one State leaves the EU, either automatically or by action of the States Parties.”119
96.Professor Barnard was less sure of the value of BITs as an alternative source of protection for EU rights. They were restricted to investments only, so the overlap with EU rights was limited; their dispute-resolution mechanisms were not transparent and litigation under them was very expensive: “in reality, those who benefit from it are big companies”.120
97.Professor Barnard also referred to the fact that the CJEU “does not like the fact that there are arbitral tribunals ruling in areas that might have an effect on EU law. So BITs raise a lot of interesting questions, but their role is at best limited and, from a natural justice point of view, they raise difficult questions about transparency and the reporting of what is agreed.” There was also the issue of enforceability: “A number of States, particularly in Latin America, think that the costs are so great that they have refused to pay.”121
Conclusions
98.We question whether the UK’s bilateral investment treaties (BITs) will provide effective alternative protection for many EU rights which have been lost as a consequence of the EU’s withdrawal from the EU. We do so for two reasons. First, the scope of BITs is limited to commercial investor rights, with the consequence that the overlap with individual EU rights is unlikely to be wide. Secondly, where there is an overlap with EU rights, EU law would appear to take precedence over a BIT.
99.Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement.
92 Article 1, Protocol 1 to the European Convention on Human Rights: http://www.echr.coe.int/Documents/Convention_ENG.pdf [accessed 7 December 2016]
94 Supplementary written evidence from Professor Vaughan Lowe QC (AQR0003), citing John G Sprankling, The International Law of Property, 1st edition (Oxford: Oxford University Press, 2014), section 1.2.C(3)
96 Written evidence from Anthony Speaight QC (AQR0008); R (Quark Fishing Ltd) v Secretary of State for Foreign & Commonwealth Affairs [2006] 3 WLR 837
97 Article 8, European Convention on Human Rights
102 Article 20(1) TFEU states that: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.” (OJ C 202, 7 June 2016, pp 1–388)
106 Genovese v Malta (2011) 58 EHRR 25, para 33: http://hudoc.echr.coe.int/eng?i=001-106785
107 Article 14, European Convention on Human Rights
111 R (on the application of Johnson) (Appellant) v Secretary of State for the Home Department (Respondent), (19 October 2016) (2016) EWCA Civ 22, para 27: http://www.bailii.org/ew/cases/EWCA/Civ/2016/22.html