Brexit and EU Nationals: Options for Implementation in UK Law

Abstract

The purpose of this paper is to explore how the United Kingdom can give legal to the Article 50 TEU agreement it proposes to reach with the European Union on the rights of EU nationals. Although both sides seem to agree that the Withdrawal Agreement should have direct effect in the UK, there has been little or no discussion of the mechanisms available to make the rights enshrined in the Withdrawal Agreement effective in UK courts in the post-Brexit legal order. In this paper, we canvass a range of options. In Part 1, we discuss – and dismiss – the possibility of giving to the rights only by means of an international treaty. In Part 2, we discuss the that ordinary domestic legislation could confer on the rights enshrined in the Withdrawal Agreement and identify the limitations of such an approach. In Part 3, we analyse the most plausible means of giving sufficient force in domestic law to the rights enshrined in the Withdrawal Agreement: adapting the machinery of the Human Rights Act 1998 or of the European Communities Act 1972 – our view is that the safest option would be to use the Human Rights Act 1998 model, given the doubts over the continued effectiveness of the European Communities Act 1972 post Brexit. In Part 4, we consider the possibility of a ‘No Deal’ scenario, in which the Article 50 negotiations are unsuccessful, and the consequences for the rights of EU nationals in the UK. Our focus in this paper is on the rights of EU nationals, but the models we analyse could be adapted and adopted to give domestic legislative force to the whole of the Withdrawal Agreement. We hope that our analysis will provide a useful framework for future discussion about the means by which obligations negotiated under Article 50 could be given legal in the UK after it has left the EU.