Fuelled by the generous donations of our supporters to our ‘core funding’ GoFundMe campaign, we have been preparing in earnest for the next stages of The People’s Challenge. Here’s a short update on what we and our lawyers have been up to.
To begin with, we asked our solicitor, Bindmans’ John Halford, for a full update of our unique Legal Milestones Guide on the direction of travel, the points at which the politics of Brexit must give way to the demands of the law and how some of the fundamental rights which individuals currently enjoy, thanks to the UK’s membership of the EU, might be protected for the future.
Here then is the updated Guide packed with hyperlinks to the information that underpins it.
John and some of our barristers have also been busy identifying where legal and other action might most effectively safeguard rights and genuinely democratic accountability. They have identified five pressure points where we are actively considering action, or supporting others in taking it.
- Helping enforce information rights. Parliament has secured a “compendium” of the much-mentioned sectoral impact assessments, but the public has yet to see even that. Depending on developments in Parliament, we may take or intervene in litigation to press for full disclosure of civil servants’ view of the impact of Brexit in all of its forms.
- Shining a spotlight on the EU ‘fundamental rights safety net’. There is no prospect whatsoever of a withdrawal agreement preserving all EU rights that have been exercised in the past by UK nationals elsewhere in the EU or other EU nationals here in the UK in a form that means they will be freely available for future use.
But, to be lawful, any withdrawal agreement must itself be compatible with the basic principles of the existing EU treaties, the EU Charter of Fundamental Rights and the European Convention on Human Rights (of which the UK but also the EU as an institution are signatories).
We are investigating who might be ‘left behind’ by the citizens’ rights chapter of any UK/EU withdrawal agreement, and how MEPs may intervene to test whether this is lawful.
- Enforcing anti-discrimination rights. Pending Brexit, EU law remains fully enforceable within the UK too. Besides the Charter, there are the free movement and anti-discrimination provisions of the Treaties and particular directives. And this is complemented by the UK’s own domestic anti-discrimination framework, found in the Equality Act 2010 and relevant parts of the Human Rights Act 1998. We are on the lookout for systemic policies and practices of discrimination against EU and EEA nationals in the UK that might be decisively challenged by ourselves, or affected people, using existing law.
Brexit must not become a licence to discriminate against anyone.
- Unpacking the EU (Withdrawal) Bill. It is well known that the Bill is riddled with Henry VIII clauses – power granting provisions that purport to allow Ministers to amend the law without further Parliamentary scrutiny to manage the consequences of Brexit behind closed Whitehall doors.
It is far less well understood how that might be challenged, especially when fundamental rights end up overridden. We are planning a citizens’ guide to the Bill, the true extent of what it could permit and the dangers that presents.
- Securing Parliament’s final say. The current Withdrawal Bill cannot satisfy the UK constitution’s loudest demand – that Parliament always has the final say when citizens’ rights may be lost.
This applies to any withdrawal agreement – and to departure from the EU if talks break down. And the demand will not be met by the Bill being amended to set 29 March 2019 as an EU departure date. That is because the negotiations are not yet concluded, the Bill is likely to be passed ahead of any agreement and, at best, the Bill is concerned only with those rights that can be transposed into UK law.
Once the extent to which rights will be abrogated or extinguished it becomes clearer, and if at that time the Government is unwilling to seek Parliament’s authority for withdrawal in an Act, a further Miller-style challenge may be mounted by way of judicial review.
Ultimately, this issue would need to be determined by the UK’s Supreme Court. As in Miller, it would need to decide who must ultimately take responsibility for Brexit on the terms that will then be known – the Government or Parliament itself.
We are pleased to see that our and other groups’ efforts on one subject are starting to produce results: Guy Verhofstadt has said that UK citizens living in the EU 27 having their EU freedom of movement rights guaranteed post-Brexit should be one of the EU Parliament’s red-lines.
It’s a start, and it’s one of the topics we covered when writing to Messrs Barnier, Juncker, Tajani, Tusk and Verhofstadt in October.
We also made a submission last month to the House of Lords EU Justice sub-committee on how the currently-proposed protections fall short of providing “reciprocal protection for Union and UK citizens, to enable the effective exercise of rights derived from Union law and based on past life choices, where those citizens have exercised free movement rights by the specified date”.
As we have said all along, for UK citizens resident in the EU 27, right to reside on its own is insufficient for them to retain parity of rights with EU 27s resident in the UK, let alone their existing rights.
Nor will the currently-proposed protections stop major losses of rights for UK citizens currently living in the UK who have made life choices based on the EU freedoms they currently enjoy.
In order to develop and publicise these issues further, we will be compiling a categorised list of people directly affected by Brexit-related loss of rights, and more information about what they stand to lose (rights, guarantees, recourse, etc.) as things currently stand.
This list will be a “roadmap” for a (hopefully) clearer understanding of who is affected and how. Although we have written quite extensively on this subject, we feel that a lot of people will still be unpleasantly surprised by the extent of the losses and the numbers affected.
This list will be as exhaustive as we can make it, but we have to produce it in a meaningful timescale. We hope to co-operate with other groups in this endeavour in order to minimise any duplication of effort and to produce a consolidated and verified list.
- EU Commission Press Release on “sufficient progress” having been made;
- The Three Knights Opinion on the revocability of the Article 50 notification;
- The People’s Challenge “Legal Milestones on the road to Brexit”.
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Our aim is to help people see what’s going on, understand what they are, or aren’t, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.