European Union (Withdrawal Agreement) Bill: interim report Contents

Chapter 3: Citizens’ rights (Part 3)

Introduction

42.Part 2 of the Withdrawal Agreement (Articles 9–39) provides a scheme for ensuring that those exercising EU rights in the UK prior to withdrawal may continue to enjoy certain core rights to reside, work and otherwise remain indefinitely in the UK after withdrawal. The rights are guaranteed indefinitely by the Withdrawal Agreement and under the Bill, though references to the Court of Justice will end eight years after the expiry of the implementation period. The same is true of Title 2 of both the EEA EFTA Separation Agreement and of the Swiss Citizens’ Rights Agreement. The primary way the Bill ensures citizens’ rights is by giving these provisions direct effect and supremacy through the operation of clause 5. The function of Part 3 of the Bill (clauses 7–17) is to provide further additional powers of implementation for those provisions of the Agreements which require it.

43.Clauses 7–9 and 11–14 each create a delegated powers scheme, each accompanied by a Henry VIII clause. These regulation-making powers are constrained by the terms of the Agreements and the direct effect of many of their provisions through Part 2 of the Bill. Clause 15 creates an Independent Monitoring Authority (IMA), a new body with a complex mandate and structure which merits further careful scrutiny. Schedule 2 makes further provision about the IMA.

Specific clauses

44.Clause 7 provides an illustration of how the regulation-making powers are circumscribed topically and legally by the provisions of the Agreements. Article 18 of the Withdrawal Agreement (and corresponding provisions of the other agreements) permits a host state to require a person exercising residence rights to apply for documentation. Clause 7(1)(a) empowers a minister to “make such provision as the Minister considers appropriate for … specifying the deadline that applies for the purposes of … the first sub-paragraph of Article 18(1)(b).” That sub-paragraph of Article 18(1)(b) specifies that “the deadline for submitting the application shall not be less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period.” The regulation-making power in clause 7(1)(a) is therefore the power to set a deadline, subject to the requirement in the Withdrawal Agreement which itself has direct effect and supremacy. The powers under clause 7(1)(a) will be unable to derogate not only from Article 18(1)(b) but from any of the other provisions of the Withdrawal Agreement, Part 3 of which, covering citizens’ rights,42 spans 48 pages of the published Withdrawal Agreement.

45.This degree of specificity, and the relevance of the other provisions of the Agreements, are for the most part mirrored in the other delegated powers provisions of the Bill, except where specified in the analysis below. It further illustrates the point made in relation to Part 1 of the Bill that, although various delegated powers in the Bill appear to be very broad, the role they play in giving effect to directly effective obligations under the Agreement circumscribes their practical effect in important ways.

46.Clause 7(1)(b)–(d) provides a regulation-making power to provide protection to EU citizens in the period prior to the deadline for the submission of applications for new residence status. Clause 7(1)(e)–(g) extends protection to those applying for such residence status. The first regulations issued under clause 7(1)(b)–(g) are subject to the affirmative procedure in paragraph 1 of schedule 5.

47.Clause 7(2)–(3) is intended to extend the protection afforded by the Agreements to EU citizens to persons not in that category but which have acquired rights as family members thereof under the Surinder Singh principle.43 Clause 7(4) confers a Henry VIII power to modify any provision made under an enactment. The first regulations made under this clause are subject to the affirmative procedure where they amend or repeal primary legislation or retained direct principal EU legislation.44 Otherwise, the first exercise of these powers is subject to the negative resolution procedure. Later exercises of the power, even where they modify primary legislation, are subject to negative procedure.

48.Clause 8 confers powers to extend protection to frontier workers in line with Articles 24(3) and 25(3) of the Withdrawal Agreement, which guarantee the right to enter and exit the state and enjoy the rights they exercised there if they meet certain conditions specified in Directive 2004/38/EC.45 The Henry VIII power in clause 8(3) is limited to modifying any provision made by or under the Immigration Acts—which includes the power to amend the Immigration Acts themselves.46

49.Clause 9 provides powers to restrict rights of entry and residence as specified in Article 20(1), (3) and (4) of the Withdrawal Agreement. That article incorporates chapter VI of EC Directive 2004/38/EC, Articles 27–33 of which contain detailed provisions covering permissible grounds of public policy for restricting entry or exit for Union citizens and their family members. The powers in clause 9 must be exercised in conformity with those provisions. Clause 9(4) provides that regulations may modify any primary legislation.

50.Clause 10 (retention of existing grounds for deportation) is unique in Part 3 of the Bill insofar as it provides for amendments to the Immigration Acts rather than for regulation-making powers.

51.Clause 11(1) provides powers to make provision for appeals against citizens’ rights decisions. Clause 11(3) extends analogous powers in connection with reviews (and judicial reviews) of decisions relating to “any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom”.47 The scheme suggests that the judicial review procedure can be extended but does not imply that such powers could operate to circumscribe access to judicial review that is otherwise available under the common law.

52.Clause 12 provides powers to ministers and devolved authorities, acting jointly or separately, to make provision for the recognition of professional qualifications in accordance with the provisions of Articles 27–29 of the Withdrawal Agreement (and analogous provisions of the other Agreements). Those articles of the Agreements themselves incorporate several provisions from applicable EU law standards. Clause 12(6) is a Henry VIII power allowing the amendment or repeal of any enactment, but the sunset clause in clause 12(7) prevents it from applying to primary legislation passed after the implementation period.

53.Clause 13 similarly provides for a scheme to implement social security coordination. The Explanatory Notes indicate that these powers are intended to be operated in conjunction with a planned Immigration and Social Security Co-ordination (EU Withdrawal) Bill.48 Clause 13(5) provides Henry VIII powers to modify any provision made by or under an enactment. There is no sunset clause limiting the operation of the powers in clause 13. In light of the detailed statutory scheme that will be provided in a future bill, it is not clear why the powers in clause 13 are required beyond the implementation period.

54.Clause 14 provides delegated powers empowering central and devolved authorities to implement articles of the Agreements relating to prohibiting discrimination on grounds of nationality, the right to equal treatment, and rights of workers, frontier workers and the self-employed. The articles detailing such rights are less technical and constrained than most of the other citizens’ rights articles of the Agreements. The Henry VIII power is not accompanied by a sunset provision. The powers are intended to supplement and further protect the enumerated rights, rather than condition or restrict them.

55.Clause 15 creates a new corporate body, the Independent Monitoring Authority. Schedule 2 sets out its powers and functions. This body is established pursuant to Article 159 of the Withdrawal Agreement. The structure, independence and remuneration provisions of this body may be constitutionally significant, as may be its provisions for appointing members with knowledge of conditions in devolved areas (see paragraph 5 of schedule 2). Its primary functions include keeping the adequacy of the UK legislative framework securing citizens’ rights under review and conducting inquiries on request from central or devolved government, in response to a complaint or on its own initiative. Paragraph 27 provides that where an inquiry is held, the IMA will report and the relevant public authority must publish a response, indicating what action it plans to take. Schedule 2 raises several important if localised constitutional questions relating to the creation, independence and functions of an independent complaints and monitoring body, as well the relationship between the IMA and the court system as well as between the IMA and the devolved authorities.

56.Clause 16 provides that any power to implement a provision of the Agreements includes a power to supplement the effect of section 7A of the 2018 Act (a new section inserted by clause 5 of the Bill).


42 HM Government, New Withdrawal Agreement and Political Declaration, 19 October 2019, Articles 7–39

44 European Union (Withdrawal Agreement) Bill, schedule 5, para 1(1)(a)

45 Directive 2004/38/EC concerns “the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States”.

46 Schedule 1 to the Interpretation Act 1978 states that the “Immigration Acts” has the meaning given by section 61(2) of the UK Borders Act 2007.

47 Those set out in clause 11(2)(g).




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