The Weekly Round-Up: Brexit, Brexit, Brexit: done and dusted?

27 December 2020 by Calla Randall

Four and a half years after Britain voted to leave the EU, and 12 months after Boris Johnson was elected Prime Minister with his ‘oven-ready’ Brexit deal, the UK and European Union finally concluded a trade agreement on Christmas Eve. The deal, yet to be ratified by Parliament, is expected to gain approval without difficulty on 30^th December, with the Leader of the Opposition, Keir Starmer, whipping his MPs to approve it. So did this deal supply the Christmas joy we’ve been missing in 2020? What does the deal contain?

• Tariffs: The deal guarantees tariff-free and quota-free trade between the UK and the EU. However, this was only agreed in return for a ‘level playing field’ where a minimum level of environmental, social, and labour standards must be maintained by both sides.
• Trade: The agreement focused on free trade in goods. UK producers will have to comply with both UK and EU trading standards. Despite the absence of tariffs, the deal will significantly restrict the UK’s ability to trade with the EU because the UK is leaving the Single Market and Customs Union. Indeed, the Office for Budget Responsibility has predicted that this ‘limited’ deal will leave UK GDP 4% smaller than it would have been by 2035.
• Freedom of Movement: UK citizens no longer have the right to work, live, set up businesses, or study in EU countries. They will now have to apply for a visa for visits lasting over 90 days in any period of 180 days.
• Fishing: Seemingly one of the most problematic areas of the negotiations, an agreement has been reached on fishing quotas, albeit one that will have to be re-negotiated in five years. EU fishing boats currently catch €630 million worth of fish in UK waters each year. The deal created a transition period during which EU vessels will give up a quarter of their catch, to be ‘repatriated’ to UK boats.
• Science: The UK will continue its membership of Copernicus, Eurotom, and the Horizon Europe programme as a paying associate member for seven years.

However, several crucial issues remain unresolved:

• Human Rights: The UK is no longer a member of the Charter of Fundamental Human Rights of the European Union. While it has been argued that this will have a limited effect on domestic rights, as its main purpose was to reaffirm rights that already existed, the Charter also led to the development of new rights which will no longer be enforced in the UK (such as the ‘right to be forgotten’ derived from existing rights to privacy and personal data). Furthermore, the Charter allowed UK citizens to bring legal action to challenge domestic legislation which was incompatible with fundamental human rights, which is no longer possible. Finally, it remains unclear whether the Conservative government will repeal or replace the HRA, which incorporates the rights set out in the ECHR into national law. This uncertainty represents a significant threat to the protection of human rights in the UK.
• Security and law enforcement: The UK is no longer a member of Europol, the EU’s policing agency, or Eurojust, which is responsible for judicial coordination in criminal cases across member states; this is likely to lead to significant difficulties in organising cross-border investigations. The UK is also no longer party to the European Arrest Warrant, and most detrimentally, the UK will lose access to the Schengen Information System II, a database of alerts about wanted or missing people and stolen items such as firearms, which British police previously accessed more than 1.65 million times a day.
• Services: The services sector, accounting for roughly 80% of the UK economy, and where the UK has a large trading surplus, was largely excluded from the Brexit deal. Insurance, banking, and accountancy firms are among those who will face severe restrictions from 1 January unless new arrangements are made.

In other news

• On Monday, the CPS stated that they intend to pursue the case against Anne Sacoolas despite the High Court’s recent ruling that she did in fact enjoy diplomatic immunity at the time of the car accident that killed Harry Dunn in 2019. In a letter sent to the Dunn family by the East Midlands Chief Crown Prosecutor, Janine Smith, the CPS stated that despite the High Court’s judgement, ‘there remains sufficient evidence for a realistic prospect of conviction and that it remains in the public interest for the prosecution to continue’. The Dunn family were given leave to appeal the High Court’s decision on the ground of immunity, and will also seek to take the case up with President-Elect Joe Biden, following Donald Trump’s refusal to permit Ms Sacoolas’ extradition from the United States last year.
• A new strain of coronavirus, which may have a higher infection rate than existing variants, has been identified in England, resulting in an extension of the Tier 4 lockdown restrictions to a further six million people on Boxing Day. The restrictions impose a ‘stay at home’ order and all non-essential and entertainment venues must close. This extension of Tier 4 came days after Boris Johnson reversed the previously planned relaxations on restrictions for Christmas.
• Figures obtained by legal reform organisations Transform Justice and the Howard League for Penal Reform show that 87% of children in remand in London are from a black, Asian, or minority ethnic background. The number of BAME children on remand in the UK as a whole has also increased this year. The figures prompted justice reform campaigners to call for the full implementation of the 2017 Lammy Report, which demonstrated systemic racial bias in the criminal justice system.

In the courts

• Steer v Stormsure Ltd [2020] UKEAT 0216_20_2112: The Employment Appeal Tribunal (EAT) dismissed the appeal of the Appellant, Ms Steer, ruling that the lack of interim relief for unfair dismissals on the basis of discrimination does not breach EU law, and that while it does breach Article 14 of the ECHR, this extension of interim relief cannot be read into the Equality Act 2010. Given that the EAT does not have jurisdiction to make a declaration of incompatibility with the ECHR, the court granted the Appellant leave to appeal on this issue to the Court of Appeal. The Equality Act currently only offers interim relief in cases of unfair dismissal concerning trade union activities or whistleblowing. The Appellants’s argument that this lack of remedy violated the principle of ‘effectiveness’ in EU law was dismissed by Mr Justice Cavanagh, as was the assertion that the Appellant was entitled to rely on fundamental principles of EU Law via horizontal direct effect. However, given Ms Steer’s right to appeal, if the Court of Appeal makes a declaration of incompatibility, this could mark a significant change in employment law, most likely resulting in amendments to the Equality Act which would equalise the remedies available for discrimination dismissals in comparison to other unlawful grounds.

• MN v The Secretary of State for the Home Department (Rev 3) [2020] EWCA Civ 1746: The Court of Appeal clarified the approach in deciding whether an individual is a victim of human trafficking in two appeals, heard together, where both original orders were quashed and ordered to be considered afresh. In both cases, the Appellants (MN and IXU) were appealing against the result of judicial reviews which upheld the Competent Authority’s (CA) decision that neither of them was a victim of trafficking. The Appellants were successful in arguing that the CA had taken the wrong approach in deciding to attach no significant weight to expert evidence concerning the psychological state and credibility of the Appellants, and that the previous court should have overturned the CA’s decision on this ground. In particular, the court held that the CA must evaluate the relevance of the expert evidence by considering each potentially supportive claim in turn and assessing its importance, rather than listing general problems with the document as a whole; in other words, a far more detailed approach is needed.

• Sicri v Associated Newspapers Ltd (Rev 1) [2020] EWHC 3541 (QB): The High Court awarded damages to the Claimant, Alaedeen Sicri, after ruling that his reasonable expectation of privacy was violated when the defendant, MailOnline, printed a story identifying him as an arrested suspect in the Manchester Arena bomb attack. Mr Sicri had been arrested on suspicion of terrorist offences, but was subsequently released without charge. Given that Mr Sicri had a reasonable expectation of privacy, the court then considered whether the right of the defendant to disseminate information outweighed the Claimant’s right to privacy. The Court held that MailOnline did not have a sufficient public interest justification for identifying the Claimant; the fact that other publishers had also violated the Claimant’s right to privacy was not held to defeat or weaken the Claimant’s right to privacy from MailOnline.

On the UKHRB

• Jonathan Metzer surveys the ten cases which defined 2020, from the Covid-19 lockdown challenge to commercial surrogacy arrangements.
• David Hart QC discusses the ramifications of the recent planning case R (Finch) v. Surrey County Council et al [2020] EWHC 3559 (QB) which concerns the extent to which developers have to research the environmental ramifications of projects.
• David Hart QC also considers the recent Supreme Court judgement in R (o.t.a Friends of the Earth et al) v. Heathrow Airport Ltd [2020] UKSC 52, regarding the lawfulness of Heathrow’s proposed third runway.