Brexit: the final countdown

Posted by George Wilson on 29 March 2018

With exactly a year until Brexit and negotiations on the UK’s future relationship with the European Union starting to heat up, we’re looking ahead to the Withdrawal Agreement. This is the divorce settlement, determining who gets what and how – for the sake of the kids – each party should behave in the future.

The Withdrawal Agreement

The first draft of the Agreement – published by the UK and EU last week – gives legal form to many of the hot topics of Brexit, from the rights of EU nationals living here, to how much money the UK owes the EU.

The final Agreement will also set out everyone’s fundamental rights for the transition period – set to begin one year from today and end on 31 December 2020. The draft Agreement says EU law will apply in full during this period and must have the same effect in the UK as in EU member states. So  rights protected by laws like the EU Charter of Fundamental Rights must continue to be enforced until the end of 2020 at the earliest. So far, so good.

The concern is what will be done to make it legally binding in the UK. For this, a dedicated piece of legislation will be required – likely to be called the Withdrawal Agreement and Implementation Bill.

This Implementation Bill should be a straightforward, technical piece of legislation enshrining the rights protected by the Withdrawal Agreement in UK law.

But, as our experience with the Withdrawal Bill cautions, the Government is more than capable of using Brexit laws as an opportunity to claim powers for itself. These broadly-drawn powers could be used by ministers – with little to no Parliamentary oversight – to change or even repeal human rights and equality laws.

Future treaties

The Withdrawal Agreement also covers areas like justice, security and data transfers, where the UK and EU wish to continue cooperation. Negotiations have already begun on standalone treaties in these areas, which could be concluded as early as next year.

The potential content of these treaties raises serious concerns for fundamental rights. Taking justice and security as an example, the UK opted out of a raft of rights protections relating to cross-border extraditions and investigations. These gaps in protection were tolerated while the UK remained a member of the EU – arguably because laws like the Charter of Fundamental Rights provided a backstop – but with the Charter’s future in the UK uncertain, it’s vital that any future treaty  explicitly protects rights we’ve opted out of in the past.

There are similar concerns about the proposed UK/EU data treaty. Without access to tools like transnational databases containing DNA profiles and alerts on suspected and wanted criminals, the UK’s ability to fight serious and organised crime and terrorism will be seriously damaged.

But the UK’s data protection framework could stand in the way of a future agreement on data transfers. The Data Protection Bill – currently passing through Parliament – contains weaker rights protections on things like the use of data for immigration enforcement purposes, while the Investigatory Powers Act allows the Government to conduct mass surveillance without any safeguards for fundamental rights.

Parliament has limited abilities to scrutinise international treaties, so the fight is on to protect our fundamental rights. As the Government negotiates our future relationship with the EU, we will be working tirelessly to warn ministers, MPs and the European Commission that any future agreement cannot be made at the expense of human rights.

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George Wilson

EU Law and Policy Specialist