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The updated draft of the Brexit Withdrawal Treaty has been published today, 19th March, 2018. Does "or" mean or?

March 19th 2018

 

This EU Task Force sourced document was sent to the EU27 Member States, to the Brexit Steering Group of the European Parliament and published on the TF50 website on 19th March 2018.  It is not yet what might be termed a final draft as the EU Member States and the European Parliament have yet to comment.

 

The colour coded draft reflecting various degrees of agreement as to text and possible amendments can be found  here.

Green shows the text agreed at negotiators' level and will only be subject to technical legal revisions in the coming weeks.

Yellow shows the text agreed as to the policy objective but indicates that drafting changes or clarifications are still required.

White shows the text corresponding to that proposed by the European Union upon which discussions are  continuing and upon which no agreement has been reached as yet.

 

What is clear is that the legal distinction between a "national" and a "citizen" has been deployed so as to remove any vestige of European citizenship for British citizens in Europe, indicating that the EU Treaty will be interpreted on the basis that only nationals of continuing Member States are to be treated as citizens of the Union. There is no vestige of EU citizenship, which is therefore shown to be no longer a stable concept but a dependent one

The Treatment given to Channel Islanders and Manxmen over the transitional period will therefore be bundled up with United Kingdom nationals in the Withdrawal Treaty, subject to their already limited rights. They will no longer enjoy the status of European citizens with Union residence rights, as opposed to freedom of movement and establishment  post-Brexit, certainly after the end of the Transitional Period.

Note however the current drafting of the proposed Article 4:

" Methods and principles relating to the effect, the implementation and the application of this Agreement

1. Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States.

In particular, Union citizens and United Kingdom nationals shall be able to rely directly on the provisions contained or referred to in Part Two. Any provisions inconsistent or incompatible with that Part shall be disapplied.

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities, through domestic primary legislation."

The potential ambiguity arises when taken with Article 3:

"Territorial scope

1.  Unless otherwise provided in this Agreement or in Union law made applicable by this Agreement, any reference in this Agreement to the United Kingdom or its territory, shall be understood as referring to:

(a) the United Kingdom ;

(b) Gibraltar to the extent that Union law was applicable to it before the date of entry into force of this Agreement;

(c)  the Channel Islands and the Isle of Man to the extent that Union law was applicable to them before the date of entry into force of this Agreement,…."

There is an ambiguity in the term or terms "United Kingdom or its territory", insofar as the wording in the draft might need to refer to either the United Kingdom or its territory or to both as one in certain situations in the process of "unwinding" the Protocol 3 arrangements for the CDs and the other arrangements for each of the other territories concerned.  The answer to the question "does  or mean or" may be as follows.

There is no "and" or "or" or other indication between Article 3 1. (e) and (d) , nor any indication such as "as the case may be. The article might have fallen victim to its continental drafting style were it not for  specific phrases in article 3 1. (b) - (e)

For example, at article 8(c) the term "United Kingdom" is used, rather than "territory". That effectively means that EU citizens who have established themselves in the Crown Dependencies or territories listed at Article 3 1. (c) to (e) as opposed to the United Kingdom and/or Gibraltar will therefore become subject to the territories' respective internal and domestic legislation alone. They will not have the citizens rights referred to in Part 2 which are granted to their peers in the United Kingdom.

The Crown Dependencies will probably wish to maintain their own domestic preferences, and rights to regulate, as each Dependency has put different mechanisms in place to address the particular aspects of the Protocol in particular article 4.  They ued to be refered to as Crown Peculiars to indicate their distinct and independent status from each other and the mainland Crown.

Constitutionally, the drafting might appear to cohabit with the concept that the United Kingdom is responsible for the international relationships of the Crown Dependencies and that it is therefore justifiable to bundle all the eggs into one basket or under one hen. However that in turn could override several internal constitutional safeguards as to the independence of these islands in areas currently covered by the Treaty and the arrangements in Protocol 3.

There may need to be a note assisting the understanding of the scope and intention of the term "United Kingdom or its territory" , or even a redafting to make it clear how the jurisdictions cited in (c) through to (e) are each specifically actually affected by the remainder of the Treaty if its general princples are to apply to them.

So, given the somewhat crucial constitutional context: "does "or" mean or"?

The answer will probably lie in the drafting of Article 3.1. (b) and (c) which restricts the application of the Brexit Withdrawal Treaty to the CDs and Gibraltar to the areas in which Union law was applicable to them prior to the Withdrawal. Article 3 1. (d) through to (e) would provide a similar answer insofar as those jurisictions are concerned.

However, the term used is qualified by the phrase "to the extent that Union law was applicable to them .....".  That term is considerably wider in scope than a mere reference to Protocol 3, and could include references even further afield than for example the principles laid down by the then ECJ on the application of article 4 of that Protocol thus ranging for example to competition in goods and to State Aid.