Archive for the ‘UK and European law’ Category

The Article 50 ruling explained – in a sticky note

joelle groganWhat does the European Court of Justice’s ruling on Article 50 mean for Brexit? Joelle Grogan (Middlesex University) explains in a sticky note (@StickyTrickyLaw).

 

 

This post represents the views of the author and not those of the Brexit blog, nor the LSE.

Joelle Grogan is a Senior Lecturer in Law at Middlesex University.

LSE Continental Breakfast 15: the ‘meaningful vote’

The latest in the series of LSE Continental Breakfasts – discussions held under Chatham House rules – tackled the issue of the Commons’ role in Brexit, and the ‘meaningful vote’ in particular. Oliver Garner (European University Institute) reports on the event.

On 25 November 2018, the European Council endorsed the Withdrawal Agreement between the UK and the EU – concluding the European dimension to the ‘two-level game’ of the Brexit negotiations. The Brexit endgame has now shifted back to the domestic level with the announcement that Parliament will hold its ‘meaningful vote’ on whether to accept the Agreement on 11 December. The impasse within Parliament on the deal secured by the Prime Minister means that there is great uncertainty regarding the outcome.

The strengths and weaknesses of the ‘meaningful vote’

Some claim that Brexit has opened fissures in the informal constitutional process upon which the UK relies. First, the paucity of deliberation on the EU (Referendum) Act 2015 led to a lack of clarity concerning the popular vote in 2016. The legal nature of the referendum as ‘advisory’, and the transposition of the General Election franchise, prompted legal claims of inequity from those disenfranchised.

Secondly, following the confirmation of the Miller judgment that the authority to provide notification under Article 50 lies with Parliament rather than executive prerogative power, the legislature promptly acted to confer statutory authority upon the Prime Minister through the EU (Notification of Withdrawal) Act 2017. Parliament thus abdicated the right to shape the mandate for the negotiations and to scrutinise the conduct of the government. These failures have been mitigated, however, by the scrutiny of parliamentarians during the reading of the EU (Withdrawal) Act 2018. This resulted in the ‘bespoke mechanism’ to scrutinise the Withdrawal Agreement provided for in section 13(1)(b) of the Act.

The requirement that the Withdrawal Agreement may only be ratified upon fulfilment of the condition of approval through a resolution of the Commons has led some to claim that Parliament is in one of the most powerful positions it has ever held in relation to the executive. The strengths of this meaningful vote provision are evident when compared to the processes for accession in 1972. On that occasion the decision to accede was approved by Parliament without any sight of the accession treaty. By contrast, the publication of the draft agreement on 14 November means that Parliament will have had full access to the content for nearly a month before the vote. This is supplemented by the concession by the government to publish the legal position of the Attorney General on the Agreement, though it had to be forced to publish his full advice. The gap between publication and the vote has also allowed space for the process of scrutiny in the Procedure Committee.

The government’s Business of the House motion allows for five days of debate with up to 8 hours of debate on each day. The motion allows for six amendments to be selected by the Speaker and voted on at the end of the final day of debate. These amendments could play a crucial role in shaping the outcome of the vote.

Despite these features, the meaningful vote procedure has weaknesses. The crucial issue is that the structure of section 13 has ostensibly left the Commons with a binary choice between the Prime Minister’s deal and no deal. Furthermore, the government has treated the political declaration on the framework for future relations as equivalent to the Withdrawal Agreement. This does not reflect the reality that, whereas the Withdrawal Agreement signifies the end of a treaty negotiation, the political declaration signifies the start of a new process. This point is exacerbated by the complete lack of any timetable for the negotiation of the future agreement. Article 184 of the Agreement provides the linkage between the two documents, and it will remain to be seen what approach the government takes towards Parliament’s treatment of the political declaration.

Finally, Article 13(1)(d) clarifies that a further condition for the ratification of the Withdrawal Agreement is the passage of an Act of Parliament for the domestic implementation of its provisions. No draft Bill of this Act has been provided to parliamentarians and therefore it is unclear how the ratification of the Agreement could change the domestic constitutional order.

The possible outcomes of the meaningful vote

Option 1: (Conditional) approval of the deal

The first and simplest potential outcome, despite its unlikelihood in light of the current parliamentary arithmetic, is that the Commons passes a resolution to approve the Withdrawal Agreement and the political declaration. Concessions by the government could be offered to parliamentarians reluctant about the deal in three main areas.

First, increasing the rights for Parliament over the future relationship negotiations could be offered. This could offer an opportunity to implement the lessons learned from the lack of scrutiny over the withdrawal negotiations. For example, concessions could be extracted whereby Parliament would need to formally approve the substantive mandate for the future relationship negotiations, in addition to ensuring for itself greater procedural rights such as access to negotiating documents.

Secondly, the government could offer Parliament more control over the way in which the Withdrawal Agreement is implemented domestically, for example by extending the transition period envisaged in Article 133 of the Withdrawal Agreement. This could be particularly salient for the control that Parliament may have over the highly controversial ‘Northern Ireland backstop’.

A final concession could be to provide parliamentarians with more control over the actual policy choices concerning the future relationship with the EU. Such a move could help to unite the diverging factions behind the deal. Those who support a far looser relationship with the EU through a reversion to WTO terms and those who support a closer relationship through a ‘Norway-style’ relationship by joining the European Economic Area (EEA) could both be persuaded to support the Withdrawal Agreement. The logic would be that this preserves the space to fight for their vision in the future.

This raises the live question of how extensively the motion can be amended so as to propose changes in relation to the political declaration whilst still allowing for the ratification of the Withdrawal Agreement. A strict position would hold that the statements on respecting the result of the 2016 referendum, including ‘with regard to’ the ending of free movement, contravenes concessions towards an EEA-style arrangement. A counter-argument is that the Commons can suggest any change in relation to this document because it is not legally binding and is only a statement of intent for a future negotiation. This differentiates the situation from attempts to amend the Withdrawal Agreement itself, which would require re-approval at the European level that the Presidents of the Commission and European Council have explicitly ruled out. The language used presents any option for the future relationship as a ‘sliding scale’ which allows for great flexibility.

It should be noted, however, that shifting contestation to the future could still jeopardise the ratification of the Agreement should there be a failure to agree to the terms of the domestic legislation. These concessions have been described as ‘low hanging fruit’ for MPs who oppose Brexit and/or the government. These politicians may be more interested in the ‘forbidden fruit’ of a General Election or a People’s Vote.

Option 2: Rejection of the deal

The Labour leadership has already published the substance of its amendment to the motion. The Opposition would decline to approve the negotiated withdrawal agreement, whilst simultaneously declining to approve the UK leaving without an agreement. Accordingly, they would pursue ‘every option’ as an alternative to these two scenarios. It has been suggested that this wording obscures the fact that the vote of the Commons is only legally meaningful in the negative sense that it can torpedo the Agreement. The amendments can only have a positive effect in a political sense. Parliament missed the opportunity of seeking to lay down legally-binding conditions on how the UK’s exit from the EU should be negotiated when it passed the Notification Act without amendments imposing such conditions.

Consequently, the suggestion that parliament could ‘decline to approve’ the UK’s departure without an Agreement obscures the reality that this is not an active choice that is within the direct control of Parliament. The reality is that withdrawal without an agreement is the default legal position upon failure to ratify the Agreement, due to the automatic operation of EU law per Article 50(3) TEU. However, this is not to say that the political effect of such an amendment would be insignificant.

Subsections 13(4)-(6) of the EU (Withdrawal) Act 2018 make provision for the situation in which the Commons does not pass a resolution approving the Withdrawal Agreement and the framework for the future relationship. Within 21 days a minister is obliged to make a statement on how the government ‘proposes to proceed in relation to negotiations’, and within 7 sitting days after that statement the minister must make arrangements for a ‘motion in neutral terms’, meaning that no amendment may be tabled, that the Commons has ‘considered the matter of the statement’. This period of up to a month of reassessment following a rejection could open up the possibility of the Government making concessions to try and secure support in a possible second vote. However, the route back to the European negotiation table seems to have been foreclosed and thus such concessions could only operate within the domestic level (e.g. as to the future domestic role of Parliament in approving the later treaty on the future relationship). Indeed, the possibility has also been raised by the Prime Minister of asking the same question again of MPs without any amendments and in contravention of the usual convention in the Commons.

One possibility is that the result of the failure of the Government to secure the Commons’ agreement on the biggest issue of the day would be for the Government to fall, despite the detailed procedure in the Act for the Government’s response to a negative vote. This is based upon the constitutional convention that the Prime Minister must be able to command the support of the House, and if not, then the Government should resign or there should be a General Election.

This situation has now been complicated by the legal procedures mandated for such events in the Fixed Term Parliaments Act 2011. Early parliamentary general elections are provided for in two situations: an explicit motion to hold a General Election passed by two-thirds of the House, or a simple motion of no confidence that is not overturned within 14 days. It is assumed that the Government would resign upon losing such a vote; the Act does not deal with this point because government resignation has always been a matter of constitutional convention, not law. However, as the Act provides for a General Election if a no confidence is passed and no other Government can procure the passage of a positive confidence motion within the statutory 14 day period, such an avenue would not suit Conservative MPs who may oppose the Prime Minister and her deal, but do not want to take a risk of a General Election that could see their party lose power.

Such MPs could therefore table a non-statutory no confidence motion (which might force the PM to resign but would not trigger the 2011 Act’s provisions for an early General Election). Alternatively, dissatisfied Conservative MPs could trigger a leadership contest through the Conservative Party’s internal processes, challenging May’s role as party leader, rather than as PM.

Option 3: Rejection of Brexit

The momentum for a third option that rejects both the Government’s deal and a ‘no deal’ exit has been building. The campaign for a ‘People’s Vote’ calling for a second referendum has been explicitly endorsed by numerous backbench MPs and former ministers. Furthermore, the possibility of ‘no Brexit’ has now ostensibly been recognised by the PM and the EU’s institutions. Labour’s leadership, whilst reluctant to endorse any one strategy, has left the door open to a second referendum through its party conference pledge to ‘keep all options on the table’. This has now found its way into the amendment proposals for the 11 December vote.

Such an option would, however, be subject to tight procedural constraints. In order to enable sufficient time for legislation on a referendum to be passed and to hold a period of purdah it could take 22 weeks before a second referendum might be held. In the first instance this would require the unanimous consent of the EU27. There have been intimations at the European level that such a decision could be made in order to enable democratic re-appraisal within the UK. Such an extension would, however cause spill-over effects into the EU’s governance timetable. The UK would be obliged to participate in the European Parliament elections held from 23-26 May 2019 if it were still a member.

The European Council has attempted to ‘internalise’ this problem in its decision on the re-allocation of the composition of seats in the European Parliament following Brexit. Such an eventuality could also raise the domestic issue of the EU (Withdrawal) Act possibly requiring amendment. Schedule 9 makes provision for the additional repeal of the European Parliamentary Elections Act 2002 in addition to the European Communities Act 1972 on ‘exit day’. It is therefore unclear whether the retention of existing EU law provided for in section 2 and section 3 could currently provide the legal basis for the elections.

There has been a counter-argument that such considerations would not arise in practice because the timetable of 22 weeks is overstated.

Just as Parliament’s initial power to authorise an Article 50 notification was confirmed through a court challenge, so too the question of whether the UK has the power to revoke that notification has become the subject of judicial proceedings. On 27 November the Court of Justice of the European Union hearing in the Wightman case took place. This seeks to answer the question referred by the Scottish Court of Session of whether a Member State may unilaterally revoke its notification of intention to withdraw. The petitioners in the case include Scottish MPs, MSPs, and MEPs who are explicitly seeking legal certainty in order to guide their voting on the Agreement in the various chambers.

The expedited procedure adopted by the European court has also shown sensitivity to the timeframe of the Commons vote – the non-binding Advocate-General Opinion was published on 4 December with the full judgment scheduled before the 11 December vote. The Advocate-General has proposed that the Court of Justice should declare that Article 50 allows the unilateral revocation of the notification through a formal act to the European Council before the expiry of the two-year period. Such a revocation would have to be in accordance with the national constitutional requirements and would also have to respect the principles of good faith and sincere cooperation at the EU level.

In the event that the Court follows this opinion and finds that the UK may indeed unilaterally revoke its notification without the approval of the European Council, the issue of the legal basis for revocation in domestic law arises. It has been suggested that a fresh Act of Parliament would be necessary for revocation; alternatively, the argument has been made that the exercise of such a power could fall within the terms of the 2017 Notification Act. Given the clear parliamentary intention to leave the EU manifest in various provisions of the EU (Withdrawal) Act 2018, legislation authorising revocation would be needed to avoid legal uncertainty. In either situation, however, the dramatic possibility emerges of such a revocation being exercised without the requirement of a popular mandate through a second referendum. The argument is that Parliament could consider such a move if it were ‘staring down the barrel’ of a no deal exit in the New Year. What may appear as a barrel of a gun to those opposed to Brexit, however, may appear as an escape hatch to freedom for hard Brexiteers drawn towards a no-deal Brexit.

Despite the options canvassed above for preventing Brexit in theory, the rejection of the Withdrawal Agreement and the political declaration on the framework for the future relationship with the European Union could lead to a situation in which Parliament is ultimately disempowered in practice. Parliament is undoubtedly sovereign, but there remains the practical question of how it would take control of the end-game of Brexit. Under Standing Order 14, the business of the House of Commons remains under the control of the government of the day, which also has control of when Opposition days or back-bench days are granted. The only operative convention would be that any decision to hold a no confidence vote under the Fixed Term Parliaments Act would take precedence over the ordinary business of the House. It has been claimed that it is fanciful to imagine that Parliament could suddenly gain control of the business of the Commons to such an extent that it could pass the legislation necessary to revoke Article 50 and/or hold a second referendum.

Even in the moment in which the government could be facing near unanimous disapproval of its policy on Brexit, the procedural rules may still ensure that it ultimately retains control over the direction of the end-game. Therefore, it may be suggested that the only realistic ways in which the catch-22 could be broken is if the PM herself decided that the only escape route would be to go back to the public, or if a new Government emerged following the resignation or defeat of the old.

The procedural and substantive limitations on Parliament

The Commons’ ‘meaningful vote’ on 11 December will see Parliament occupy a position of great political power in relation to the executive. Indeed, the effects of this position have already been witnessed in the unprecedented barrage of criticism she has faced in her defences of her deal in the Commons.

Crucially, however, the capacity of this political power to secure legal results is constrained by the procedural rules of Parliament, which maintain the government’s control over Commons business. The power is further constrained by the operation of EU law contained in Article 50 that is beyond the direct control of Parliament and will see the UK automatically leave on 29 March 2019 regardless of whether the Withdrawal Agreement is ratified or not.

These are the explicit formal constraints on Parliament. One may also detect a more implicit yet no less powerful substantive constraint that has constrained Parliament over the government’s policy on Brexit. Despite Parliament’s theoretical sovereignty to make or change law as it wishes, in the context of withdrawal the legitimacy of the exercise of this power has been bound by the political obligation to respect the ‘will of the people’ expressed in the Leave vote. It remains to be seen whether the only way to resolve the present disjuncture between popular will and parliamentary sovereignty is through a reversion to the people on the question of EU membership.

This post represents the views of the author and not those of the Brexit blog, nor the LSE.

Oliver Garner is a PhD researcher in the Law Department of the European University Institute.

The Great Brexit Crisis: we are in for an unprecedented shake up of the UK constitution, laws, conventions, and politics

The UK seems to be rapidly heading for one of the most tangled and tumultuous political periods in modern history as Brexit nears its apogee, writes Colin Talbot. Whether you think we’re headed to Valhalla or Ragnarok, the constitution, law, conventions and politics are all set to be tested in ways rarely seen. In this blog, he presents a quick guide to some of the institutions that will be severely tested over the next days and weeks.

Constitution

The UK is fairly unique amongst big, advanced, democracies in not having a written constitution. It’s not that there aren’t any written ‘bits’ of a constitution, on the contrary, there are many, many, bits – but there is a not a single document. And many of the written bits and pieces that make up our ramshackle constitutional arrangements have highly dubious status, and some aren’t even written down at all.

It’s sometimes claimed that everything from Magna Carta (1215), the Petition of Right (1628), the Parliament Acts (1911 and 1949), Standing Orders of the House of Commons and Lords, Erskine May (first published in 1844), the Fixed Term Parliaments Act (2011 FTPA) etc all form part of our constitution. Some of these are really just historical curios, like Magna Carta. Others have no constitutional or even legal standing (like Erskine May, the so-called ‘parliamentary bible’).

Countries that do have written constitutions – probably the most famous example being the Constitution of the United States of America – also have a special set of rules about how they can be changed. In the USA an amendment can be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures (the latter process has never happened).

In the UK, by contrast, a simple Act of Parliament can effectively change the constitutional arrangements (as the 2011 FTPA recently did in quite far-reaching ways). There is a serious debate about whether the various pieces of legislation relating to the UK’s membership of, and departure from, the European Union were ‘constitutional’ in nature. Some would argue, for example, that the 2016 EU Referendum was constitutional in nature and therefore should have required a ‘super-majority’ (as in the USA). This was raised in Parliament at the time but was dismissed on the grounds the Referendum was purely ‘advisory’.

Laws

Laws are in theory much simpler – they just have to be passed through Parliament on simple majorities to become an Act. Except that actually also isn’t true. Law – precedents – can also be effectively made my courts – including now a Supreme Court. These are only supposed to fill in gaps or provide interpretations of laws passed by Parliament, but in practice, they can go further. And whilst the UK remains part of the EU structures some of these decisions will be taken by the ECJ.

The role for the courts in both adjudicating legal disputes and cases and in setting precedents is another fundamental pillar of modern representative democracies. The courts provide a check on both executive and legislative power. An important point to make about both constitutions and laws in a democracy is that they both require what is sometimes called “Losers Consent”. In other words, citizens, and political parties agree to ‘play by the rules’ and if they lose accept the right of the winners to pass laws or, in the case of constitutions, alter them. But “Losers Consent” in democracies is also based on the basic principle that at some point in the future – sometimes the fairly near future – there will be opportunities for the losers to become the winners. Without that democracy would rapidly cease to exist.

C00 Public Domain

Conventions

Conventions are rules of political practice that have evolved over time and are generally accepted by the participants in the political game. Some of them have huge import – for example, the (fairly recent) convention (which exists nowhere in law) that the UK Monarch must act on the advice of Her Prime Minister and Cabinet. Breaking such a convention by the Monarch would provoke a massive constitutional crisis and is unlikely to happen (but not impossible).

Other conventions are far flimsier and are, to coin a phrase, not worth the paper they are not written on. They exist only so long as the participants – and especially the government – want them to. A good example of the latter is the ‘convention’ that Law Officer’s advice to government is not published. This ‘sacred principle’ has been broken by governments when they wanted to – not often, but it has happened.

Another dramatic example comes from the USA. The ‘conventions’ that a US President publishes their tax returns and distances themselves from any business interests whilst in office has been shredded by Donald Trump with the acquiescence of the Republican-controlled Congress.

‘Conventions’ can also be over-ridden by new laws (or constitutional changes). A good example here is the Fixed Term Parliaments Act. Before FTPA there were said to be various conventions about when a government might lose a vote of confidence in the House of Commons, forcing it to resign and call an election (in reality, many of these conventions were fuzzy at best). Since FTPA was passed all such conventions have been superseded by the precise process set out in the Act. Which does not mean there may not be circumstances in which a government – such as the current minority one – might not be forced politically by a major policy defeat to activate the FTPA mechanism to call an election. But they would not be compelled, legally, to do so.

Politics

Which brings us to politics. Conventions only exist as long as there an effective political consensus that they do. Governments may choose to stick to conventions even when they are to the advantage of the Opposition purely because they know one day, they will probably be the Opposition themselves.

But what about when they don’t care? President Trump clearly doesn’t and is riding rough-shod over many conventions that have survived for decades in US government. It’s simply a question of power – if you have enough and don’t care, you can override conventions. You cannot do that with laws or the constitution, as Trump is finding out. The courts have already thwarted various gambits and the new Democrat-controlled House will undoubtedly block from 2019.

The Great Brexit Crisis of 2018/19 may well be about to shake up the UK constitution, laws, conventions and politics in ways we have not seen for a very long time.

This post represents the views of the author and not those of the Brexit blog, nor the LSE. 

Professor Colin Talbot (@colinrtalbot ) is a Research Associate at the University of Cambridge and Professor of Government (Emeritus) at the University of Manchester.

A strange irony: How the EU withdrawal process ended up saving the Human Rights Act

Even though it looks increasingly likely the Brexit deal will not survive its first hurdle in parliament, there is yet more evidence in its pages that Brexit has saved the Human Rights Act and secured Britain’s long term future as party to the European Convention on Human Rights (ECHR), writes Frederick Cowell (Birkbeck). In the Political Declaration on the Framework of Future relations with the EU, the document accompanying the withdrawal agreement, under the heading ‘core values and rights there is a commitment to ‘respect the framework of the European Convention on Human Rights’. In the text of the withdrawal agreement itself – which would be a legally binding on the government – there are provisions in the Protocols on Northern Ireland, which seem to assume the UK remains a party to the ECHR.

The Brexit process has in short pushed the UK government away from what was until recently a clearly stated policy – to repeal the Human Rights Act 1998 (HRA), replace it with a British Bill of Rights and eventually withdraw from the ECHR. Both a referendum on Britain’s membership of the EU and HRA repeal, were in the Conservative Manifesto for the 2015 General Election. Repeal of the HRA, which brings the ECHR into UK law and requires UK judges to take the decisions of the European Court of Human Rights into account, has been a stated aim of the Conservative Party since 2006. In fact its position on the HRA was clearer in its 2010 manifesto than its commitment to EU withdrawal. Coalition with the Liberal Democrats and the creation of the Commission on a British Bill of Rights appeared to kill the idea but in 2014 the Conservative Party Published its proposals for a British Bill of Rights to replace the HRA.

Entitled Protecting Human Rights in the UK it proposed breaking the link between UK courts and the European Court of Human Rights and withdrawing from the ECHR if that was not possible. If implemented this would have left the UK the only nation in continental Europe (apart from Belarus) that was outside the ECHR. It would likely have been incompatible with the Treaty on the European Union, which commits EU member states to respecting human rights, as defined by the ECHR, as a core EU value. However, as the 2014 policy document went onto note ‘our relationship with the EU will be renegotiated in the next parliament’ and if there were any problems with the UK’s new bespoke human rights agreement this would be addressed ‘as part of the renegotiation.’ Linking leaving the EU with ECHR withdrawal made sense in terms of political framing. Although being outside the EU has no bearing on ECHR membership – Norway and Switzerland are not EU member states but have been party to the ECHR for almost half a century – the European Court of Human Rights was considered another ‘foreign court’ in the newspapers and political circles that would go onto become the most enthusiastic Brexit supporters.

Image by francois (Wikipedia), licence under CC BY 2.0.

There is no evidence that renegotiating EU values so as to allow the UK to withdraw from the ECHR but remain in the EU, was ever seriously discussed during David Cameron’s attempted renegotiation of EU membership in late 2015. Given that both the EU Justice Commissioner and the President of the European Commission had indicated a few years earlier that any member state attempting to withdraw from the ECHR would raise concerns ‘as regards the effective protection of fundamental rights’, it is highly unlikely that Cameron would have been successful even if he had tried. After winning the 2015 General Election the entire project appeared to slow down; the then Justice Secretary Michael Gove promised proposals on a British Bill of Rights to repeal the HRA within months, but by the end of 2015 nothing had been published. By then academics and legal commentators had started to highlight the constitutional difficulties of HRA repeal, especially in relation to devolution, but the government continued to signal they were fully committed to HRA repeal.

In June 2016 when Theresa May became Prime Minister she was expected to continue with the policy – she was a long-time opponent of the HRA from her days asHome Secretary, when she infamously and incorrectly claimed that HRA had blocked her from deporting someone because of their pet cat. But in December 2016 the Attorney-General Jeremy Wright announced that HRA repeal was delayed until after the conclusion of Brexit. In the 2017 Conservative General Election Manifesto HRA repeal and ECHR withdrawal was effectively cancelled for the duration of the next parliament. This was far from popular among the Conservative Brexit supporters but the numbers in the 2015-2017 parliament made repeal difficult (a problem which worsened after the 2017 election). Also with all of the constitutional difficulties over Brexit there was little appetite to create an additional set of constitutional problems.

Since the autumn of 2017 the European Parliament has been clear that an important component of a future EU-UK relationship would be the UK’s continued ECHR membership. In the summer of 2018 the European commission draft report on future security cooperation again made membership of the ECHR an essential condition. Theorists of international relations and international law have argued that one the core reasons for states joining the ECHR was to create a form of democratic lock-in where the rights contained in it and the frameworks designed to protect them would be locked in place, in part because it would be hard for states to leave the Convention. Although it is superficially easy for a country to leave the ECHR, an exit mechanism is contained in Article 58 of the Convention and there no direct economic consequences to a state for doing so, the ECHR’s interconnection with other European institutions creates a layer of political restraints constraining exit. The prospect of an exit agreement was clearly used as a lever by the European Parliament in their March 2018 resolution, which required any future trade agreement to be in “strict accordance” with EU values, effectively keeping the UK in the ECHR.

This could be important for securing the HRA’s future because there remains a significant political appetite for its repeal. Human Rights campaigners in the UK are often reassured by polling showing that HRA repeal is not a high public priority. But polling taken over a number of years in response to controversial or high profile decisions from the European Court of Human Rights has identified a significant degree of sympathy for the arguments advanced by the ECHR’s critics. Many of the arguments ranged against both the EU and the ECHR deploy what Fiona de Londras calls the ‘new sovereigntism’ argument – the idea that states should only engage and comply with international courts as and when they want to. Dominic Cummings, the leading political strategist for the Vote Leave campaign, announced earlier this year that he wants a referendum on the ECHR, noting that many leave voters would be ‘mad’ when they realise the UK was still party to it. Given this context the external economic and political forces locking the UK into being a party to the ECHR as part of the Brexit process have probably secured the HRA’s future – for now.

This article gives the views of the authors, and not the position of LSE Brexit, nor of the London School of Economics and Political Science.

Dr Frederick Cowell is a Lecturer in Law at Birkbeck, College University of London.

Distress signals: how Brexit affects the Digital Single Market

alison harcourtThe government prizes the creative industries as a key part of the UK’s industrial strategy. Yet some of them depend on the Digital Single Market, which is jeopardised by Brexit. Alison Harcourt (University of Exeter) explains how sectors like broadcasting, online financial services and online gaming could be affected.

A key component of the EU’s Single Market is its Digital Single Market (DSM), which has been a particularly important for the UK. Currently, the UK’s largest export market for digital services is Europe and the DSM enables access to European markets. Brexit is expected to affect the UK substantially in the areas of broadcasting, creative content production, data protection and privacy, copyright and e-commerce.

Post-Brexit there is a risk that UK service providers, such as broadcasters, platforms providing on-demand content, internet sales, online financial services and online gaming, may lose their passports to EU markets. This is because companies need an EU base (i.e. to be headquartered in the EU) to access service markets under Directives and Regulations which contain the country of origin (COO) principle (e.g. under AVMSD, SatCab, E-commerce and Copyright Directives).

Theresa May highlighted broadcasting in her March 2018 speech on the future economic partnership with the EU as an area of key importance for the UK. No fewer than 1523 UK-based television channels target other EU countries (65% of the EU market) and 515 on-demand services such as video and catch-up services over DTT, cable, satellite, IPTV channels, online and mobile phones (20% share of the EU market). Under the COO principle, British-based companies would need to re-locate headquarters to an EU Member State in order to continue to maintain access.

If the UK does join aspects of the Digital Single Market (DSM) under a future bilateral agreement, companies could continue to broadcast to Europe from the UK. However, a number of companies have already left in anticipation of Brexit including Discovery and Viacom. Post-Brexit, the UK would lose voting rights for DSM legislation within the Council of Ministers and European Parliament. This loss of decision-making could affect the UK in key areas: rules governing right of reply, the definition of an economic service, editorial responsibility and effective control; a potential change in definition of the COO; incitement to hatred and the protection of minors; public health, public security, and consumer protection; the loss of subsidiarity for media markets under EU law. Similar to Norway, the UK would move to ‘association status’ in EU coordinated self-regulatory fora such as the Body of European Regulators of Electronic Communications (BEREC) and the European Regulators Group for Audio-visual Media Services (ERGA).

The ‘creative industries’ were named in the 2017 green paper, Building our Industrial Strategy, as one of the five key sectors which the UK government aims to support post-Brexit. The paper was published following a period of consultation, most notably the Culture, Media and Sport Committee inquiry into the Impact of Brexit on the creative industries, tourism and the digital single market. Most respondents pointed out the need to maintain free movement for sector workers – particularly high-skilled workers – the loss of access to EU markets post-Brexit under the COO principle and loss of access to EU funding programmes. In terms of funding loss, the report cited that the EU’s Creative Europe programme had invested €28.5 million into the UK’s audio-visual sector benefitting 82 UK companies and supporting distribution of 84 British films in Europe with another €12.5 million of investment going to training and support activities since 2014. Content producers also expressed concern that UK-produced content could be excluded from national quotas in favour of EU-produced content in catalogues and channels under the AVMSD. Predicted problems with VAT regimes were also highlighted as well as “over-complicated and expensive administration regimes for remittance of international taxes on digital products”.

Importantly, with Brexit, the UK will lose EU-negotiated exceptions for cultural goods under GATT; MFN exemptions for audio-visual services under GATS; and is excluded from EU bargaining in TTIP and bilateral treaty agreements the EU has established with third countries. Exemptions under these agreements include: screen quotas, subsidies, duties, deposits and taxes for film, the transmission of radio and television and video on-demand packages (linear and non-linear). The funding of public service broadcasting is also protected by EU negotiated Most Favoured Nation exemptions to the WTO’s 1995 Agreement on Subsidies and Countervailing Measures which determines whether or not a subsidy can be used by a WTO member. In addition to having to negotiate an independent state on cultural goods and audiovisual services, the UK will also need to negotiate separately from the EU in spectrum policy agreements at international levels (ITU, WRC) and CEPT) coordination bodies and over international standards post-Brexit.

The DSM promotes internet commerce and fintech services via its E-commerce, Services, e-Privacy, GDPR, ODR and Consumer rights Directives and Regulations. Its European Consumer Centres Network facilitates cross-border dispute resolutions. New directives have been proposed on geoblocking, product liability, ePrivacy (including rules on data localisation) and the Payment Services II Directive. The UK government announced that its existing commitments under the PSD II, under which certain powers were delegated to the European Banking Authority, and the GDPR will continue post-Brexit. However, when the UK becomes a third country, its relationship with the EBA and the GDPR’s European Data Protection Board (EDPB) remain uncertain.

Lastly, concerns have been expressed as to whether the UK will be deemed adequate under EU data protection rules for cross-border data transfer. The Investigatory Powers Bill (and existing DRIPA) may not be adequate under the 2016 General Data Protection Regulation, e-commerce and e-privacy Directives which permit the free flow of data within the EU based upon the COO principle. These problems can currently be avoided by the use of standard contractual clauses but there are current legal challenges to the validity of these. Divergence is also expected between the UK and EU on ‘deep packet capture’; analyses of metadata, and the harvesting of location data. For this reason, access to markets for digital services may be the biggest issue, not only for the creative industries, but the UK digital economy as a whole.

This post represents the views of the author and not those of the Brexit blog, nor the LSE.

Alison Harcourt is Professor of Public Policy and Director of the Centre for European Governance at the University of Exeter. She specialises in regulatory change in communications markets.

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