Who will oversee post-Brexit rights

The House of Commons has passed with a comfortable majority (358 votes to 234) the withdrawal agreement bill, paving the way for the UK exit from the European Union on 31 January 2020.

The bill enables the UK government to ratify the withdrawal agreement negotiated with the EU. It gives the deal and the corresponding agreements with Norway, Iceland, Liechtenstein and Switzerland (EEA EFTA countries, which are not EU members but apply EU legislation) legal effect domestically. It also creates powers for ministers to make secondary legislation where this is necessary for measures to “operate as intended.”

The bill allows legal or natural persons to rely directly on the withdrawal agreement in UK courts.

Finally, it creates an Independent Monitoring Authority to oversee how the citizens’ rights sections of the agreements will work in practice.

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Supervision of the withdrawal agreement

The EU and the UK will set up a Joint Committee to supervise the overall implementation of the Brexit agreement. The UK bill specifies that the government will have to report to parliament if any dispute arises and if the European Court of Justice is required to rule about it.

Similarly, there will be a Joint Committee to oversee the agreements with Norway, Iceland and Liechtenstein, and Switzerland.

Under the EU-UK Joint Committee, a Specialised Committee will supervise the citizens’ rights part of the agreement. This will be made of representatives from the UK and the EU and will meet at least once a year.

Another Specialised Committee will oversee the implementation of the Protocol on Ireland-Northern Ireland, which is part of the withdrawal agreement too. The Northern Ireland Human Rights Commission will monitor the rights of individuals included in the Protocol (free movement of people will continue between the UK and Ireland).

The practical implementation of the citizens’ rights chapter will be monitored by the European Commission in the 27 EU countries and by an independent authority in the UK. The withdrawal agreement bill passed by the House of Commons establishes this authority.

The Independent Monitoring Authority for the Citizens Rights Agreements

The Independent Monitoring Authority will consist of a chair (a non-executive member), at least 2 but not more than 6 other non-executive members, the chief executive (an executive member) and at least 1 but not more than 3 other executive members. The Secretary of State will appoint non-executive members, who will appoint executive members. The non-executive members will have to consult the Secretary of State before appointing the chief executive.  

The bill specifies that members of the Authority are disqualified from being members of the House of Commons, the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly.

The role of the Authority is to “promote the adequate and effective implementation” of the citizens’ rights agreements and ensure that persons are not prevented from exercising their rights. This will involve identifying potential breaches of the deals, conducting inquiries in response to requests by public authorities or complaints, or on own initiative.

The body will have the power to bring legal action before UK courts and intervene in other legal proceedings if necessary.

The Authority will provide annual reports to the Specialised Committee on Citizens’ Rights and to the EEA EFTA Joint Committee. Its administrative records will be public and its documents will be subject to the Freedom of Information Act.

The Authority will have to exercise functions conferred to it by the Gibraltar legislature too, if required.

The cost of setting-up the Authority is expected to be £36.5 million and the government anticipates annual running costs of around £14.86 million.

The Secretary of State may remove functions of the Authority or abolish it all together, the bill states. According to the withdrawal agreement, such decision is responsibility of the Joint Committee and cannot be made earlier than 8 years after the end of the transition period.

The Public Law Project, a legal charity, warned that the bill might provide “unjustifiably broad delegated powers” to ministers, including the removal of the Independent Monitoring Authority by secondary legislation.

Broad rights covered by the bill

The withdrawal agreement bill also set in national law the rights of EU nationals living in the UK before the end of the transition period (31 December 2020), in line with the Brexit deal.

These include the right of residence, the prohibition of discrimination on grounds of nationality, the right to equal treatment, the coordination of social security, the recognition of professional qualifications before the end of the transition period and the rights of frontier workers.

Ilse Mogensen of citizens’ rights group the3million told Europe Street that campaigners are still fighting to obtain a simple registration, rather than an application system, or EU nationals who do not apply in time for the new residence scheme (the ‘settled status’) risk becoming illegal after the transition period.

Given the large government majority, the bill is however unlikely to change. After the vote in the House of Commons on December 20, the discussion will continue in parliament from 7 January 2020.

The withdrawal agreement will also have to be approved by the European parliament before the end of January.

Under the agreement, the European Court of Justice will continue to have jurisdiction in the UK on citizens’ rights for a period of 8 years after the end of the transition period.

Claudia Delpero © all rights reserved.

Image via Wikimedia Commons.

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