HMG's Enforcement and Dispute Resolution Position Paper

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Jane Lambert

Earlier today HM Government published the position paper Enforcement and dispute resolution. It adds to the fears that I expressed in Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017 that dispute resolution could lead to our crashing out of the European Union at the end of March 2019 without any kind of withdrawal agreement and without any immediate prospect of a free trade agreement with our largest trading partner.

The problem with the position paper is that governments resile from or fail to implement international agreements. I like to think that HMG is a better global citizen than most governments but it is susceptible to domestic political pressures like any other democracy and it is not impossible to anticipate a situation where Parliament would enact legislation that would be incompatible with the terms of the withdrawal agreement. And then what?

At present, it is possible for citizens of a member state to sue their national government for damages if it fails to implement Union legislation (see C-479/93 Andrea Francovich v Italian Republic [1995] ECR I-3843) and the courts of this country have power even to disallow provisions of British statutes if and in so far as they are incompatible with a treaty obligation (see R v Secretary of State for Transport (ex parte Factortame Ltd. and others [1990] 3 CMLR 375, [1991] 1 All ER 70, (1991) 3 Admin LR 333, [1991] 1 Lloyd's Rep 10, [1990] UKHL 13, [1990] 3 WLR 818, [1991] 1 AC 603, [1991] AC 603).

If and when we leave the European Union those rights of action evaporate.  Para 17 of the position paper offers instead rights of redress under national law:

"When it implements these agreements in its domestic law, the UK will also as appropriate provide for an effective means for individuals to enforce rights under the agreements, and challenge decisions of the competent authorities concerning those rights. The exact means of redress will depend on the nature of the dispute, and the approach taken to disputes of that nature in UK legal systems. However, in each case the mechanism will be effective and meaningful, in accordance with the normal principles of administrative law."

That position is amplified by para 22:

"The UK’s position is that where the Withdrawal Agreement or future relationship agreements between the UK and the EU are intended to give rise to rights or obligations for individuals and businesses operating within the UK then, where appropriate, these will be given effect in UK law. Those rights or obligations will be enforced by the UK courts and ultimately by the UK Supreme Court. UK individuals and businesses operating within the EU should similarly be provided with means to enforce their rights and obligations within the EU’s legal order and through the courts of the remaining 27 Member States."

The one-sidedness of that position is clear from the next paragraph:

"This means, in both the UK and the EU, individuals and businesses will be able to enforce rights and obligations within the internal legal orders of the UK and the EU respectively, including through access to the highest courts within those legal orders. This would be the case in respect of both the Withdrawal Agreement, including an agreement on citizens’ rights, and the future partnership."

If for example, the Hungarian government passed legislation incompatible with the withdrawal agreement a British business or individual could sue for compensation under Francovich or seek an injunction suspending the Hungarian statute under Factortame.  If the Hungarian courts failed to apply the withdrawal agreement the Court of Justice of the European Union would put them right. If the British Parliament did the same the courts of the United Kingdom would have no choice but to give effect to that statute.

None of the dispute resolution proposals in paras 30 to 39 offers any comfort to an EU or even a British citizen in dispute with HMG.  Although the courts had started to retreat from the position of the House of Lords in Livesidge v Anderson  [1942] AC 206, [1941] UKHL 1, [1941] 3 All ER 338 that decision has never been overruled or reversed by statute.

Should anyone wish to discuss the position paper or any aspect of the Brexit negotiations, he or she should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.