Merris Amos

14 November 2016

A while ago I speculated that the UK leaving the EU would engage a variety of Convention rights (Articles 8, 14 and Article 1 Protocol 1) and that in order for the Government to win any subsequent human rights challenge, it would have to ensure that its interference with these rights met the requirements of the Human Rights Act 1998 (HRA) - in accordance with the law and necessary in a democratic society. As constitutional lawyers tie themselves in knots debating the correctness, or otherwise, of the High Court’s Article 50 judgment in Miller, few have observed that this judgment actually strengthens the human rights case. The purpose of this post is to further explain how the HRA is relevant to Brexit by utilising the example of rights enjoyed by British citizens as citizens of the EU including the right to move and reside freely within the territory of the Member States. My intention is not to argue that Parliament is the appropriate institution to trigger Article 50, or to try to put a stop to the “will of the people”. It is simply to point out to the Government that in order to “judge proof” their Brexit plans, they need to take seriously the prospect of a successful human rights challenge.
Citizenship of the EU
In its judgment in Miller the High Court identified three different categories of rights arising under EU law: rights capable of replication in the law of the UK; rights enjoyed in other Member States of the EU; and rights that could not be replicated in UK law. It is the second category which is the focus of this post, rights “enjoyed by British citizens and companies in relation to their activities in other Member States”. In the judgment of the High Court, withdrawal from the European Union pursuant to Article 50 would undo such rights, contrary to the intention of Parliament, therefore this could not be done by exercise of prerogative power. This being the subject matter of the claim before it, the High Court did not go on to consider whether such rights could also fall within the scope of one of the Convention rights and examine the lawfulness under the HRA of “undoing” such a right. But its use of the language of rights, encourages such an analysis.

At present, pursuant to Article 20 of the Treaty on the Functioning of the EU, every British citizen is also a citizen of the European Union which is additional to, and does not replace, national citizenship. As citizens of the Union, we enjoy the rights and are subject to the duties provided for in the Treaties including the right to move and reside freely within the territory of the Member States. In its judgment in Rottmann v Freistaat Bayern (20 March 2010) the Court of Justice of the EU effectively concluded that there were two types of citizenship – national citizenship and EU citizenship and that a loss of national citizenship would also result in a loss of EU citizenship. Brexit presents a slightly different problem, the loss of EU citizenship but not the loss of national citizenship. Nevertheless, a citizenship presently enjoyed by British citizens may be lost and it is clearly arguable that this falls within the scope of Article 8 ECHR, the right to respect for private life.

Citizenship as an aspect of private life
To fit citizenship within the scope of a person’s private life is actually a straightforward task. There is no need to work from first principles as two very clear authorities from the Supreme Court and the European Court of Human Rights establish that this is now the case. Recently in Johnson [2016] UKSC 56 the Supreme Court unanimously held that the “denial of citizenship, having such an important effect upon a person’s social identity, is sufficiently within the ambit of article 8 to trigger the application of the prohibition of discrimination in article 14”. An even clearer authority is provided by the recent judgment of the European Court of Human Rights in Ramadan v Malta (21 June 2016). Here the Court considered whether the revocation of the applicant’s citizenship was incompatible with Article 8. It concluded that denial of citizenship might in certain circumstance raise an issue under Article 8 “because of the impact of such denial on the private life of the individual” given that this was a concept “wide enough to embrace aspects of a person’s social identity”. In the judgment of the Court, a “loss of citizenship already acquired or born into can have the same (and possibly a bigger) impact on a person’s private and family life”.

Therefore, the loss of EU citizenship for all the citizens of the UK, should this be the terms of Brexit negotiated, will engage Article 8, the right to respect to private life, and must be justified.

Justifying the interference - the law
Establishing that a Brexit resulting in the removal of EU citizenship from British citizens will engage their Article 8 rights, as protected by the HRA, is only a first, but important step. As already noted, the purpose of this post is to point out to the Government how it should now proceed in order to protect itself against such a challenge. Article 8 is not an absolute right and breaches can be justified if these are “in accordance with the law” and “necessary in a democratic society” in the interests of an objective set out in the wording of Article 8.

Should the government eventually proceed to trigger Article 50 via prerogative act, on the assumption that this will lead to the removal of EU citizenship, this will raise the first problem with its defence to an Article 8 challenge – it is very doubtful that a prerogative act of this nature would satisfy the requirement that it be “in accordance with the law”. Whilst there may be a prerogative power to make and unmake treaties, it is not clear that there is a prerogative power to remove the EU citizenship of British citizens. In his judgment in Gillan [2006] UKHL 12, Lord Bingham explained that the exercise of power by public officials “must be governed by clear and publicly-accessible rules of law”. Whilst, at a stretch, it might be argued there is a legal basis in national law to take away EU citizenship, this is not accessible or precise.

Justifying the interference - necessity
The second difficulty will arise when trying to demonstrate that the interference is “necessary in a democratic society”. To be “necessary”, relevant and sufficient reasons for the interference must be given; the interference must correspond to a pressing social need; and the interference must be proportionate to the legitimate aim pursued. Of the interests set out in Article 8 which can justify an interference, the only possible two are the “economic well-being of the country” and “protection of the rights and freedoms of others”. Economic well-being will be a difficult argument to make given the differing perspectives on the economic impact of Brexit. A more satisfactory approach would be to argue that the interference is necessary to give effect to the wishes of the British people, as expressed in the Referendum on 23 June 2016. Human rights jurisprudence indicates that such arguments can carry great weight. In its judgment in ABC v Ireland (16 December 2010) the ECtHR held that the restrictions on abortion the subject of challenge, were based on “profound moral values” which were “reflected in the stance of the majority of the Irish people against abortion during the 1983 referendum”.

However, our own referendum was very different. Here the question posed was “should the United Kingdom remain a member of the European Union or leave the European Union?”. It was not “should you retain your EU citizenship including your rights to freedom of movement and establishment in other EU Member States?”. As the High Court observed in its judgment in Miller, “a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language is used in the referendum legislation in question.” It concluded that no such language was used in the Referendum Act 2015 and that it was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Whilst the referendum gave the government a mandate to do something in relation to the UK’s membership of the EU, it very clearly did not give it a mandate to remove the EU citizenship of British citizens.

Judge-proofing Brexit
For the Government to proceed with initiating Brexit via triggering Article 50 using prerogative powers, without any Parliamentary approval, will constitute a breach of Article 8, the right to respect for private life. It is also likely a number of other human rights will be breached including the Article 1 Protocol 1 rights of many businesses affected by the termination of free movement of persons and capital, and freedom of establishment, in other EU Member States. The question then becomes, how can this be averted?

As noted above, in order to fulfil the requirement of lawfulness, there must be primary or at least secondary legislation providing for the termination of EU citizenship. This could form a part of any Article 50 exit legislation. In order to meet the requirement of necessity, there would have to be as full a discussion of the reasons for termination of EU citizenship as possible. This could take a variety of forms: a second referendum on the specific question of EU citizenship; a general election where this was a clear manifesto commitment of the winning party; or detailed and rigorous parliamentary debates. The latter option is the most practical, the courts have a tendency to respect rigorous parliamentary debate on human rights questions (Animal Defenders International [2008] UKHL 15) although there does remain a risk that it would be impossible to ever establish the proportionality of the interference, regardless of the extent of debate. Ideological motivations carry very little weight, for obvious reasons.

The academic discussion of Miller has exposed the traditionalists and the modernists but not yet provided a rigorous discussion of human rights law. Ancient prerogative powers, which can be used with such devastating effect, have little place in a modern constitutional democracy, particularly one with parliamentary sovereignty at its heart. By contrast, human rights law, a modern check and balance can do much to head off the worst excesses of executive power by insisting that if human rights are to be taken away this must be necessary and proportionate, and done in accordance with the law. Ultimately our EU citizenship may be removed but human rights law will ensure that the path followed is one much more in keeping with the UK’s continuing strong record as a defender and protector of human rights.