EU LAWS AS CULTIVARS IN THE UK BEFORE AND AFTER BREXIT

Elspeth Attwooll*, Noreen Burrows** and Esin Örücü***

Abstract: This paper analyses principles of equal treatment and rights of residence of EU citizens in the UK before and after Brexit, regarding EU laws as cultivars. By using horticultural metaphors such as cultivars, runners, cuttings and layering for the laws, and cultivators and gardeners for the actors, the analysis brings a new set of metaphors into the plethora of metaphors used by comparative lawyers, in the hope of illustrating the status of EU laws in the UK, regarded here as our allotment. Before Brexit, after Brexit and the form that Brexit might take are all considered.1

Keywords: legal transplants; horticultural metaphors: cultivars; layering; runners; allotment; cultivators; gardeners; EU laws: equal treatment; rights of residence of EU citizens

I. A Conceptual Search

A. In general Comparative lawyers have always been rather fond of metaphors.2 The choice usually hails from a number of sources such as medicine (transplants, implants, inoculation, digestion), music (transposition, tuning), the culinary world (blending, salad bowl, salad plate, melting pot, broth, infusion, diffusion) and horticulture and

* Lectured at Glasgow University for more than thirty years, specialising in Jurisprudence and Comparative Law. From 1999 to 2009, she was a Scottish Member of the European Parliament. Her time there included participation in its High Level Group on Gender Equality and in its Committee on Employment and Social Affairs. She is currently an Honorary Affi liate of Glasgow University. [email protected]. ** Emeritus Professor of European Law, Glasgow University. [email protected]. *** Professor Emerita of Comparative law, Glasgow University; Emeritus Professor of Comparative Law, Erasmus University Rotterdam; Honorary Research Fellow, Glasgow University. Esin.Orucu@glasgow. ac.uk. 1 This paper was submitted in February 2019 and updated on 8 July 2019. It is based on the information available at that time. Specifi cally, it has since become unclear, and remains unclear, as to if and when and how the UK will exit the EU. 2 See David Nelken, “Legal Transplants and Beyond: Of Disciplines and Metaphors” in Andrew Harding and Esin Órücü (eds.), Comparative Law in the 21st Century (Kluwer International, London, 2002) p.19 and David Nelken, “Beyond the Metaphor of Legal Transplants? Some Consequences of Autopoiesis Theory for the Study of Cross-Cultural Legal Adaptations” in J Priban and D Nelken (eds.), Law’s New Boundaries: The Consequences of Autopoiesis (Dartmouth: Ashgate 2001).

[(2019) 6:2 JICL 331–346]

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gardening (transplants, propagation, stem cuttings, grafting, potting, re-potting, pruning, pollination, fertilisation, cross-pollination, cross-fertilisation, laying, layering, hybrids).3 Although the use of metaphors has sometimes been regarded as an excuse for lack of analytical theory, the metaphoric language of comparative law is extremely fruitful — even when it is just a visual aid to understanding — and can be put to a new use in an analysis of the state of affairs in the UK legal scene before and after Brexit. Comparative law has many functions past, present and future, and our approach in this paper can demonstrate how one of the major areas of comparative law, transplants and trans-frontier mobility of law, and the horticultural options we decided to employ, can help us understand future developments in the UK, which, in this analysis, we will refer to by another metaphor, as our allotment.4 The incoming laws in this process could be fi nely tuned to the needs of the domestic market, pruned, re-fertilised and re-potted, thus creating cultivars. Cultivars are distinct from varieties, requiring human intervention to exist, their characteristics being maintained during propagation. Cultivars, our choice in demonstrating the changes that have already been created and will create new breeds of EU laws while being re-transferred to the UK, is a horticultural, botanical metaphor. Although we will be looking at the fi nal products, the cultivars, the process itself, of becoming, will also be in our sights. “Cultivars” is an organic metaphor that is accompanied by others such as runners, bulbs, pruning, grafting and layering. Soil, fertiliser, setting root and blossoming can also be used. In the birth of the cultivars, there is an instance of adaptation to the new soil. In fact, cultivars are propagated in order to achieve this fi t into the new soil and conditions. They gain their own genetic diversity, which means adaptability and resilience to changing conditions. In the process of retaining EU laws in the UK soil after Brexit, the process of hybridisation may produce new cultivars. In the natural world, these are plants that have been produced in cultivation by selective breeding. Here the word selective is of utmost importance. The new varieties could be related to, and even be the result of, the new breeding pot, the soil mixture that is different, the different fertiliser used and bits to be pruned, such as cutting off dead branches. In our case, the cultivator, the re-potter, the grafter, the soil and the fertiliser are

3 For transplants and other metaphors, see Alan Watson, Legal Transplants: An Approach to Comparative Law (Scotland: Scottish Academic Press, 1974) and (Athens, Georgia: University of Georgia Press, 2nd ed., 1993) footnote 53, p.30 where he also mentions imposed reception, solicited imposition, crypto reception and inoculation. Also see for a more complete list, Esin Örücü, “A Theoretical Framework for Transfrontier Mobility of Law” in Rob Jagtenberg, Esin Örücü, and Annie de Roo (eds.), Transfrontier Mobility of Law (The Hague: Kluwer Law International, 1995) p.5. Here, we see cross pollination, engulfment, emulation, infi ltration, seepage, infusion, digestion, salad bowl, melting pot and transposition. 4 In its literary meaning, allotment refers to a small area (especially in the UK) as part or share of public land rented as a vegetable garden. In our metaphoric use, this is not a rented land and happens to be a garden in the UK, where we grow our fl owers, vegetables and fruit. It is the UK legal terrain, where laws borrowed, domestic or domesticated, are planted.

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all different. In some areas, the soil is well conditioned and maintained and the gardeners have successfully pruned, such as in equal treatment, whereas in others, such as the rights of residence of EU citizens, there is a question mark about the long-term health of the plant. The metaphor “cultivars” brings with it a few others, one of which is the cultivator. Indeed, here the gardener has changed and the transfer, grafting and re- potting have also thereby changed. Lord Denning, when talking of English common law abroad in the ex-colonies, said that the English common law resembled the “English oak”, which only fl ourished in the English soil, and when exported to a new soil, in order to take root and prosper, had to be pruned to fi t this new soil.5 Thus, EU laws in certain areas where they are not already imbedded will take new forms in order to fi t the needs of the society here in the UK and, more important, its sub-divisions, England and Wales, Scotland and Northern Ireland, adapting to the new soils and climates. At the level of directives, regulations, decisions, principles and rules, changes have to be traced, analysed and assessed. The gardeners, that is the legislator and the courts involved in implementation, will be the cultivators: Courts will water and fertilise the new variants created by the legislator. Courts in the UK will become even more important as gardeners in the coming years, in their efforts to keep the garden in shape and fl ourishing. The legal systems in the UK are already the results of reciprocal infl uences between common law and civil law at work, intermingling and intertwining. This historical fact was of vital importance when EU law came into this soil in many of its forms, either directly applicable or to be acclimatised. Obviously, there was also cross-fertilisation and cross-pollination going on between the UK and the EU as well as between the UK and the other Member States. The mixing of metaphors here could be apt, as the visual image becomes more helpful in the analysis of EU laws in the UK after Brexit. Terminologies used by comparatists in classical statements of legal movements, such as transplant, imposition and reception, have been for quite some time supplemented by a colourful vocabulary highlighting nuances in individual instances of this mobility such as grafting, implantation, re-potting, cross-fertilisation and so on. New notions and bases for analysis are constantly being developed such as collective colonisation, contaminants, legal irritants, layered-law, hyphenated-law and competition of legal systems. Images such as contamination, inoculation, irritation, diffusion, infusion, seepage and infi ltration are all appropriate in describing present day encounters, and the terms reception, imposed reception and concerted parallel development, the activities. Surveying all these, we decided to stick with horticultural metaphors, springing from the original metaphor of “transplant”.6

5 Nyali Ltd v Attorney General [1955] 1 All ER 646, 653 (CA). 6 The term transplant used as a noun dates back to 1756 in the context of botany, especially in forestry (eg, to refer to a seedling transferred once or several times). As a verb, it is dated to 1440 (in late Latin)

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Although the term “legal transplant”7 has been the usual and general one applied to all import and export activities by comparative lawyers,8 the term “transposition”9 has been used by European lawyers for the transfer of institutions and norms of the EU into the legal systems of the Member States. Transposition here covers the possibility of suiting the particular socio-legal culture and needs of the recipient. In our study, we started with legal transplants as the mother metaphor, not as hailing from medicine but from horticulture. Some cultivars have already been propagated during the process of transfer of EU law into the UK soil. Alongside these, we will be looking at new ones, as new varieties will be cultivated by our cultivators following Brexit. This is not only a panacea for failed transplants, if any, but through this process, new plants will come to life. Our concern in this paper is EU laws as cultivars in the UK before and after Brexit. Therefore, we are dealing with new gardeners, new soil, new pots, new fertilisers in our allotment called the UK sitting alongside other allotments, the other Member States making up the EU and other legal systems further afi eld. Lord Denning famously said about the Treaty of Rome, which became part of the UK law, that “The Treaty is like an incoming tide. It fl ows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforth to be part of our law”.10 In our rearranged allotment, our cultivars will fl ourish alongside the more established plants (the already incorporated institutions and rules) that have been replanted here. Let us not forget that they also have been modifi ed in implementation as they were cut off from the bulk of the roots of the mother plant. The cultivator, the head gardener and the under-gardeners will tend to all of them to grow. The already existing plants can blossom under the new conditions and produce workable new sub-groups that intermingle to enrich even

to signify moving a plant from place to place. The term has been used to refer to the moving of people since 1555 (and of nations since 1813). The surgical meaning is dated to 1786 (see the Shorter Oxford Dictionary, 1973/1978), much later than the botanical meaning. 7 For various aspects of legal transplants, see Chapter 8 in Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, 2nd ed., 2018); Gunther Teubner, “Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences” (1998) 61 Modern Law Review 11; Roger Cotterrell, “Is There a Logic of Legal Transplants?” and Lawrence Friedman, “Some Comments on Roger Cotterrell and Legal Transplants” in David Nelken and J Feest (eds.), Adapting Legal Cultures (Oxford: Hart Publishing, 2001); Mathias Siems, “The Curious Case of Overfi tting Legal Transplants” in Maurice Adams and Dirk Heirbaut (eds.), The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke (Oxford: Hart Publishing, 2014) p.133; David Nelken, “Comparatists and Transferability” in Pierre Legrand and R Munday (eds.), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, 2003) p.437. 8 We must remember that there is some substantial criticism of this metaphor also. See, for example, Pierre Legrand, “What ‘Legal Transplants?’” in David Nelken and J Feest (eds.), Adapting Legal Cultures (Oxford: Hart Publishing, 2001) p.57. 9 See another use of the metaphor, this time hailing from music in Esin Órücü, “Law As Transposition” (2002) 51 International and Comparative Law Quarterly 205–236. 10 See Esin Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (Leiden: Martinus Nijhoff Publishers, 2004) p.100.

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the soil. The fact that the identity is fundamentally altered is of no concern if the new species are expertly and creatively handled. Good fruit does indeed grow on grafted plants. It is the “rooting powder” provided by the gardeners that often makes the difference. It is also worth noting that plants grow in a number of ways. Seeds fall from a plant and new plants grow. Sue Farran makes the observation that is worth noting:

The parable of the sower who scatters seed, some fall on the stony ground and do not grow, some fall on the fertile ground and thrive. To this might be added: some fall on ground which while fertile changes the type of crop that is produced.11

Seeds may fall into adjacent allotments, and they may fall from other allotments into our own. Plants can also be grown from cuttings, either directly planted to form another plant or grafted onto a plant of a different species. New shoots may sprout from the roots of an old plant and grow into a new one. Bulbs can be separated; layering may also occur. Runners may creep in later from other allotments. The possibilities seem endless. After all, it is worth remembering that legal systems and legal cultures are porous.

B. EU laws in the UK — the varieties Various types of EU law have been applicable in the UK since its accession to the European Economic Community (EEC), as put in place by the European Communities Act 1972 (ECA). First, there are the rights stemming from the treaties.12 Second, there are regulations. These are directly applicable and need no primary legislation to bring them into force.13 Third, there are directives. These require Member States to take action to achieve certain results, usually requiring amendments to existing domestic law. Fourth, there is tertiary legislation, where commonly the Commission has been given the power to make detailed rules in relation to particular enactments.14 Fifth, there are judgements of the Court of Justice of the EU (CJEU).15 These mandate particular interpretations, at the

11 See “Introduction” Sue Farran, James Gallen, Jennifer Hendry and Christa Rautenbach (eds.), The Diffusion of Laws: The Movement of Laws and Norms Around the World (Juris Diversitas Series, Farnham: Ashgate Publishing, 2015). 12 Including certain aspects of the European Economic Area (EEA) Agreement. 13 They may, however, need some secondary legislation to ensure their correct implementation. 14 For example, the Waste Framework Directive where an issue for the UK was whether tallow should be classifi ed as a product or a waste. See Commission Decision 2011/753/EU. 15 Formerly, the European Court of Justice. For simplicity sake, CJEU is used throughout the text even where the timing of the case coincides with the earlier title.

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domestic level, of what is contained in the treaties or specifi c enactments. The Court also has the power to invalidate what has been enacted by the EU.16 It should be noted that not all EU laws have been relevant to the UK. A number of opt-outs (and opt-ins) have been negotiated — notably on the Euro, Schengen, various aspects of Justice and Home Affairs, the Common Foreign and Security Policy and from justiciability where the Charter of Fundamental Rights is concerned. This may afford some clue as to just how fertile UK soil may prove, after Brexit, to other aspects of the law that has stemmed from the EU. This way of describing the process is a useful one when using the metaphor of cultivars, since “layering” is a common method of plant propagation. It involves producing a new plant utilising a stem from the parent. In some cases, such as blackberries and raspberries, the tip of the stem is simply bent into the soil. In others, such as rhododendron and honeysuckle, the stem is buried under the soil, with the tip emerging. New roots and shoots will be produced. These can then be severed from the parent. The method of reproduction is an asexual one, and the new plant is a clone. Where law is concerned, this is of the essence when uniformity is required between Member States as, for example, in the coordination of social security systems. In consequence, treaty rights, regulations and tertiary legislation, once rooted into the soil, cannot be altered by domestic activity and remain as clones. If wrongly treated, the damage has to be repaired. By contrast, a directive requires Member States to do as much, but no more, than needed to achieve certain results. That said, this does not preclude Member States from adding features of their own. The layering analogy, therefore, seems inappropriate for directives, since the new plant may well take the form of a hybrid. This seems more to resemble a form of sexual reproduction, where the pollen of one plant is carried to another. The seed produced has characteristics derived from both of its parents. Yet, the seeds produced by the new plant itself may not be true to it (or even prove sterile), although there are methods available for stabilising them. Where hybridisation does occur, there are both advantages and disadvantages. If handled correctly, it may lead to a useful organic growth in the law. Alternatively, it can result in over-regulation, with this being laid at the door of the EU rather than that of the Member State concerned.17 Conscious of the problem, in 2000, the Lisbon Summit called for a deregulation agenda, a call that has been heeded by a number of Member States.18 How, then, would all of the above be affected by Brexit? Basically, the EU (Withdrawal) Act of 2018 specifi es that all EU laws (including the rights, powers,

16 For example, art.5(2) of the Directive on Equal Access to Goods and Services 2004/113/EC, which is given below. 17 An example cited for the UK is the complexity of the rules introduced for record keeping under the Working Time Directive. 18 Notably, the UK, the Netherlands and Sweden, with provision being made for it in the 2010 Coalition Agreement in the UK, with guidelines fi nalised in 2011.

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liabilities, obligations, restrictions, remedies and procedures derived from them) in force on exit day shall remain in force after exit day. The Charter of Fundamental Rights is made an exception, although fundamental rights and principles that exist independently of the Charter will remain in place. Another exception is for any rights, powers, etc. arising under an EU directive that have not been recognised by the CJEU or a UK court or tribunal before exit day.19 The CJEU ceases to have jurisdiction and the Supreme Court and the High Court of Justiciary are no longer to be bound by related case law.20 Procedures are also set out for the legislative modifi cation of the law that has been retained.21 The effect of the legislation is to cut plants that have been layered off at the stem and to block any further pollination of those that have been grown from seeds. Complications arise, however, from the controversial (in the UK) draft Withdrawal Agreement with the EU. This introduces a transition period,22 during which, with very limited exception,23 EU law has the same force as it did before exit day. This includes maintaining the jurisdiction of the CJEU during the transition period and, on a reference from the European Commission, for up to four years after it. In this period, our allotment should be maintained to the same standard as before. The Agreement also makes provision for various aspects of EU law to be maintained after the transition period.24 In the longer term, this includes matters such as the maintenance of the recognition of professional qualifi cations25 and the coordination of social security systems26 but places much of its emphasis on sustaining equal treatment for individual citizens.27 Now, to further concretise our research, we move on to some discussion in context, specifi cally looking at the fi elds of equal treatment and the rights of residence of EU citizens.

II. Discussions in Context

A. Case study in equal treatment Equal treatment is an area where EU law has developed markedly over the years and provides an interesting case study in relation to its reception in the UK. In 1970,

19 See especially ss.1–4. 20 Section 6. 21 Section 7. See Merris Amos, “The Future of Human Rights Law in the United Kingdom” (2019) 6(1) Journal of International and Comparative Law 87–115. 22 Due to expiry on 31 December 2020 but with provision for renewal. 23 The Charter of Fundamental Rights is one such exception. 24 Including the “backstop” to prevent a hard border between Ireland and Northern Ireland until a comprehensive trade agreement is in place (see the Protocol to the Agreement). The “backstop” is controversial in the UK for many Brexiteers and alternatives are being discussed at the time of writing. 25 See Title II Ch.3. 26 See Title III. 27 See arts.12 and 23.

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in preparation for entry, the Westminster Parliament passed the Equal Pay Act. This was in the light of art.119 of the Treaty of Rome,28 which required Member States to implement the principle of equal pay for equal work. In Gabrielle Defrenne v Sabena,29 the CJEU held that the article had horizontal direct effect in the Member States. The 1970 Act required only equal pay for the same work. In 1975, however, The Equal Pay Directive30 specifi ed that equal pay meant equal pay for work of equal value. The UK did not implement the Directive until 1983; after the Commission had taken it to the CJEU for failure to do so.31 Since then, there have been numerous cases heard domestically on what is actually covered by the concept of equal pay for work of equal value. In January 2019, the Court of Appeal, on appeal against the decision of the Employment Appeal Tribunal, ruled that the supermarket Asda was not entitled to differentiate between distribution centre workers and shop fl oor workers.32 Although leave to appeal to the Supreme Court was refused, an attempt may still be made, particularly as the issue affects a number of supermarkets. Whether this might ultimately fi nd its way to the CJEU remains a matter of considerable uncertainty.33 Despite tardiness in this respect, the UK has been both infl uential and progressive in terms of certain aspects of equality legislation. Admittedly, it was following a US precedent when it introduced the concept of indirect discrimination into both the Sex Discrimination Act 1975 and the Race Relations Act 197634 (both repealed and replaced by Equality Act 2000). This in turn helped the development of EU law, with the concept also being recognised by the CJEU in the Jenkins judgment.35 Similarly, the Race Relations Act 1976 pre-dated EU developments in this area. Yet, at the same time, domestic interpretations of directives actually in place tended to favour the economic interests of the employers rather than the rights of the employees.36 For example, the exemption for small fi rms introduced under the Disability Discrimination Act 1995 was found to be incompatible with the Equal Treatment Directive of 197637 and had to be removed.38 Equally, the Pregnant

28 Now art.157 Treaty on the Functioning of the EU (TFEU). 29 No.2 (1976) C-43/75. 30 75/117/EEC. 31 C-61/81. 32 Asda Stores Ltd v Brierley [2019] EWCA Civ 44 (CA). 33 A longstanding but not dissimilar dispute concerning workers at the Glasgow City Council has recently been settled. 34 See Griggs v Duke Power Co 401 US 424 (1971). 35 C-96/80 EU. 36 Note also the UK’s insistence on maintaining the employees’ capacity to opt out of the 48-hour limit on working time in the Working Time Directive (1973/104/EEC & 2003/88/EC) and initially lukewarm attitude to the adoption of the Temporary Agency Workers Directive (2008/104/EC). 37 76/207/EEC, recast 2006/54/EC. 38 By the Disability Discrimination (Exemption for Small Employers) Order 1998.

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Workers Directive39 introduced protection for pregnant women, for women who had recently given birth and those breastfeeding. Following a reference to it, in Webb v EMO Air Cargo (UK) Ltd,40 the CJEU,41 in rejecting earlier judgments in the UK, held that a woman, who had been hired to replace a woman on maternity leave, dismissed because of her own pregnancy had been discriminated against. Pregnancy was a specifi c protected state distinct from that afforded to both men and non-pregnant women.42 Further, it was reaffi rmed that dismissal of a female worker because of pregnancy amounted to direct discrimination on the grounds of sex and could not be justifi ed. Noticeably, early legislation on equality at EU level was centred on gender and protection in employment. Over time, however, its scope has widened considerably. Since 1997 and the Treaty of Amsterdam, there has been an express prohibition of discrimination on the grounds of nationality43 — although this is seen as implicit in the treaties — and power to take action to combat discrimination on the basis of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.44 In 2000 came the Charter of Fundamental Rights, with which all EU legislation must comply.45 This expands protection to cover social origin, genetic features, political or any other opinion, membership of a national minority, property and birth.46 Reverting to the metaphor of cultivars, the EU fashioned itself a whole new variety of tools with which to tend its garden and used them to create new varieties of plant. The early twenty-fi rst century saw signifi cant efforts to recreate them in Member States. These included the Employment Equality Framework Directive,47 the Racial Equality Directive,48 a directive on equal access to goods and services49 and another updating the provisions on equal treatment and equal pay between men and women.50 The Employment Equality Framework Directive is not limited to employer/ employee situations but also covers occupation, vocational training and workers’ organisations. The Racial Equality Directive, however, goes beyond employment and occupation, extending to social protection (including health care), education

39 92/85/EEC. 40 [1995] I WLR 1454 (HL). 41 (1994) C-32/93 ECR1-3567. 42 An attempt to change the law by the Equality (Sex Discrimination) Regulations 2005 was deemed inadequate in Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327. The issue was fi nally resolved in the Equality Act 2010. 43 Article 12 TEC, now art.18 TFEU. 44 Article 13 TEC, now art.19 TFEU. 45 (2000/6 364/01) OLJ 18.12.2000. 46 See Ch.3. 47 2000/78/EC. 48 2000/43/EC. 49 2004/113/EC. 50 2006/54/EC.

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and access to services available to the public, including housing.51 The Directive on Equal Access to Goods and Services is of wider scope still but deals with the issues in relation to gender alone. As with equal pay and protection against dismissal on the grounds of pregnancy, gender equal access to goods and services demonstrated a tension between individual rights and business economics. The most controversial aspect involved insurance premiums, with the directive allowing Member States to keep an exemption, unlimited by time, in relation to these.52 In Association Belge de Consommateurs Test-Achat ASBL v Conseil des ministres,53 the CJEU invalidated this, on the basis that it was incompatible with arts.21 and 23 of the Charter of Fundamental Rights. Notwithstanding its support for the original version of the directive where insurance was concerned, the UK, in introducing the Equality Act 2010, actually widened its scope by including equal access to facilities as well as to goods and services.54 In a similar vein, despite pressure from both the Commission55 and the European Parliament for greater coherency, EU rules on equality and anti- discrimination rules are dispersed across a variety of instruments, whereas in the UK, the Equality Act 2010 has consolidated equality law into one Act of Parliament. This not only goes beyond what is strictly necessary to comply with the directive but has allowed a more integrated approach, as evidenced by Bull v Hall,56 where a refusal to provide bed and breakfast accommodation to a couple on the grounds of their sexual orientation was found to be unlawful, even though EU law only covered such discrimination in relation to matters of employment. The Act, further, introduces positive requirements — such as public sector duties — to combat discrimination.57 Reverting to the metaphor of cultivars, it can be argued that whilst at EU level there exist a number of separate, though vigorous, equality plants, in Britain, these have merged together to form a species of ground cover. All this suggests that, in the area of equality, EU law is securely bedded into UK soil and that local “gardeners” have introduced new varieties derived from it. This implies that Brexit — even with no deal — does not, initially at least, pose any signifi cant risk in this regard. That said, rights and remedies, where not secured by some constitutional means, are always vulnerable to economic pressures. The UK Prime Minister, Theresa May, gave assurances,58 during speeches in the House of Commons, initially on gender equality and later on environmental

51 There are, however, some exceptions relating to the private sphere that limit its scope. 52 In art.5(2). 53 (2011) C-236/09. 54 This relates particularly, but not exclusively, to disabled people. 55 For example, a proposal in 2008 that would have extended the coverage to all areas except that of sex discrimination in education. 56 [2013] UKSC 73, [2014] EqLR 76. 57 See, especially, Parts I and II of the Act. 58 In an attempt to win support, particularly from Labour MPs, for the Withdrawal Agreement.

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protection and employment rights, to the effect that laws derived from the EU in these areas shall remain in place. Given, however, the doctrine of the sovereignty of the UK Parliament and it being said that the current government wishes to reconsider the extent of the UK’s participation in the European Convention on Human Rights, there can be no certainty as to just how far these plants will continue to be nurtured.

B. Case study in rights of residence of EU citizens Forming part of one of the central tenets of EU law, free movement of persons was at the heart of some of the controversial discussions during the debates before the Brexit referendum, immigration control apparently being the cause of a substantial number of people supporting the leave vote. After the referendum, the UK Government agreed that taking control of UK borders against free movement of persons was one of the most crucial issues to be negotiated with the EU. At the same time, the UK Government announced that EU citizens lawfully resident in the UK at the time of Brexit could acquire a new status, “settled status”.59 Prior to Brexit, residence rights of EU citizens were guaranteed by EU law found in articles of the TFEU, in the case law of the CJEU and, most importantly, in Directive 2004/38/EC of the European Parliament and Council.60 This later effectively codifi ed several existing instruments and case laws. Originally confi ned in the Treaty of Rome to the right of workers to take up offers of employment in another Member State, free movement of EU citizens has been enhanced in terms of both its personal and substantive scope. Not just workers but the self-employed, job seekers, students and people of self-suffi cient means are free to move within the EU, subject to certain limitations laid down in EU law; to reside in any Member State and to have members of their family live with them: the defi nition of family members also being a construct of EU law. Underpinning these rights is the general principle of non-discrimination on the grounds of nationality found in art.18 of the TFEU. These EU-derived rights are guaranteed at the EU level by the European Commission, which has the power to institute action in the CJEU against any Member State that fails to fully comply with EU law. Individual citizens have recourse to their domestic courts and tribunals to enforce their rights, with these courts having the freedom to refer a question of interpretation of EU law to the CJEU if necessary. During UK membership of the EU, several million EU citizens have made UK their home either temporarily or permanently. At the time the UK is due to leave the EU, it is estimated that some 3.7 million EU citizens will be lawfully resident in the UK having exercised their EU free movement rights, of which 2.2 million are in employment.61

59 See for guidelines https://www.freemovement.org.uk/how-to-apply-for-settled-status-temporary-status- brexit/ (visited 14 June 2019). 60 OJ No L158/77 of 30.4.2004. 61 On numbers, see http://fullfact.org (visited 20 February 2019).

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Unlike equality laws discussed above, which appear to have become deeply embedded in both the substance and culture of UK law, free movement rights are set to come to an end completely. At a date in the future, discussed below, the rights currently exercised by EU citizens residing in the UK will become permissions, as a rights-based legal order is replaced by a rules-based order and enforced exclusively at the domestic level. Legislation to introduce new immigration rules is being debated in the UK Parliament. A new Immigration and Social Security Coordination (EU Withdrawal) Bill was introduced in December 2018. The explanatory notes to the Bill make it clear that its purpose is to “make provision to end rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration”, which in effect will impose immigration controls over EU citizens. The new immigration legislation will apply to EU citizens who wish to enter the UK in the future once the UK has left the EU and any transitional period is spent. Although it is not yet clear, it seems likely that EU citizens will be subject to the same immigration regime as citizens from any other part of the world and will require permission to enter the UK. At the time of writing (February 2019) and revising (July 2019), it is not yet clear if, and how, the rights of residence of EU citizens and their families currently in the UK are to be protected. Two different legal models exist. The fi rst is based on the Withdrawal Agreement62 negotiated between the UK Government and the EU and the other 27 Member States. This Agreement was voted down in the House of Commons in January 2019 and at the time of writing its status remains problematic as it has still not been approved by the Parliament. The second model is based on the UK leaving the EU on 31 October 2019, without a withdrawal agreement. In this case, the rights of EU citizens would then be covered by the EU (Withdrawal) Act. There are fundamental differences between these models. Neither of them offers complete reassurance, and both create uncertainties as to the long-term legal status of EU citizens lawfully resident in the UK on the Brexit day. The UK Government has stated that EU citizens who are legally resident in the UK before Brexit and their family members will be able to stay with “the same access to work, study, benefi ts and public services” and “existing close family members will be able to join them in the future”.63 Precisely, how this statement of intent will be translated into legal form depends on whether the UK leaves the EU with or without an agreement. In November 2018, the UK and the EU concluded a draft Withdrawal Agreement. The Withdrawal Agreement is an international treaty negotiated by the UK on one part and the EU and 27 Member States on the other part. It is effectively

62 Agreement on the Withdrawal of the UK of Great Britain and Northern Ireland from the EU and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018, available at https://www.gov.uk/government/publications/withdrawal- agreement-and-political-declaration (visited 14 June 2019). 63 Home Offi ce EU Settlement Scheme Statement of Intent 21 June 2018.

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the terms on which the UK will leave the EU. Part two of the Agreement relates to citizens’ rights. Effectively both parties agree to maintain in force the existing rights of residence of EU citizens where those rights have been exercised before the end of the implementation period of the Withdrawal Agreement. That date is set to be 31 December 2020 but may be extended by mutual agreement. The technique used in the Withdrawal Agreement to maintain these rights is to reference existing EU provisions. Thus, the defi nition of the personal scope of the Agreement is defi ned in art.9, by reference to the defi nition of the personal scope of Directive 2004/38/EC. Article 12 of the Agreement, which governs residence rights, references arts.21, 45 and 49 of the TFEU as well as specifi c provisions of Directive 2004/38/EC. The principle of non-discrimination on the grounds of nationality is now incorporated into the Withdrawal Agreement art.11 by reference to art.18 of the TFEU. In this way, existing EU law rights are carried forward and EU law becomes public international law as far as the UK is concerned. Just as the substantive provisions of the Withdrawal Agreement refl ect EU law, so do the institutional provisions designed to ensure correct implementation. One striking feature is art.4, which retains the principle of direct effect regarding provisions in the Agreement and “provisions of Union Law made applicable by this Agreement”. EU citizens may therefore rely on the provisions of the Agreement in the courts and tribunals of the UK, which will have the power, in accordance with art.4, to “disapply inconsistent or incompatible domestic provisions”. In other words, the principles of direct effect and supremacy of EU law are transplanted as “Association Agreement” law. Reference to the CJEU in respect of citizens’ rights is also maintained by the Withdrawal Agreement. Article 158 provides that for a period of eight years after the end of the transitional period, a court or tribunal in the UK may make a reference to the CJEU for a preliminary ruling concerning the interpretation of its provisions relating to citizens’ rights. Furthermore, art.159 provides for an independent authority to monitor the implementation of the provisions on citizens’ rights and to endow the authority with powers equivalent to those currently exercised by the European Commission in terms of investigating enquiries and in bringing cases before a court or tribunal. Finally, art.164 provides for a Joint Committee to oversee the application of the Agreement and art.165 provides for the establishment of Specialised Committees, including one on citizens’ rights, comprising representatives from the EU and from the UK. There is however a major difference between the ways in which EU citizens will be able to continue to enjoy their rights after Brexit. In the past, the UK did not require EU nationals to register or to demonstrate to a public authority that they were lawfully resident in the UK, although other Member States had required such registration. Post Brexit, in order to exercise and guarantee their rights of residence, EU citizens will be required to apply for either settled or pre-settled status under a

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new scheme devised by the Home Offi ce and contained in new Immigration Rules. Failure to do so will result in their inability to demonstrate their rights of residence. The new registration scheme is set out in Immigration Rules made in January 2019. Under these Rules, the terminology of settled status gives way to the already existing legal status of persons having indefi nite leave to remain. The application process is comparatively straightforward compared to that which other overseas nationals have to follow to achieve the same status, but it is nonetheless a hurdle that had previously not existed. EU citizens will need to demonstrate their identity, undergo a criminal record check and provide evidence of their residency. To acquire settled status/indefi nite leave to remain, they must have lived continuously in the UK for fi ve years. If they do not meet the fi ve-year requirement, they may apply for a pre-settled status and reapply at the expiry of the fi ve-year period. It is not clear what the future status will be of those EU citizens who, for whatever reason, fail to apply for settled status. Applying our horticultural metaphor to this model, we see that EU rules have been transplanted into an international agreement. As far as our UK allotment is concerned, the original plant has been uprooted and has been replaced by a cutting. Functionally equivalent institutions have been created to protect the new cutting staffed by some new under-gardeners in the form of the Specialised Committee on Citizens’ Rights and the Independent Authority, whilst existing under-gardeners — domestic courts and tribunals — stay in place. However, the new cutting will only be planted in our allotment temporarily. At the end of the transition period, this cutting will itself be uprooted and those citizens remaining in the UK, provided they have applied for it, will have their status guaranteed by entirely domestic provisions, the Immigration Rules. Applying our metaphor further, these Immigration Rules are entirely domestic plants, which can also be uprooted by any future UK Government or replaced with an entirely different specimen. Should the UK and the EU fail to reach agreement on an orderly withdrawal, then, evidently, the provisions in the draft Withdrawal Agreement will not come into force. In these circumstances, the alternative model for a legal framework to ensure the rights of EU citizens is to be found in an entirely domestic model: the EU (Withdrawal) Act 2018. Assuming that the UK Government retains its commitment to upholding the rights of EU citizens in its Statement of Intent discussed above, the question arises as to whether the Withdrawal Act is a suffi cient legal measure to underpin that commitment. As discussed earlier, the EU (Withdrawal) Act, which repeals the ECA, was originally intended to come into effect as of midnight on 29 March 2019. The ECA is the legislation that enabled provisions of EU law to enter directly into the legal orders of the UK. The Act retains most provisions of EU law as they are in force on the date of exit until these provisions are repealed or amended. This retained EU law derives its force henceforth from the Withdrawal Act rather than from its origin in EU law.

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As noted above, the key provisions of EU law in respect of residence rights are to be found in provisions of the TFEU, case law of the CJEU and Directive 2004/38/EC. Section 2 of the Withdrawal Act states: “European Union-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day”. Thus, domestic legislation implementing Directive 2004/38/EC will remain in force. EU law in this area is implemented in the UK by provisions in the Immigration Act 1988 and by the Immigration (European Economic Area (EEA)) Regulations 2016.64 These provisions will be retained in the UK by virtue of the Withdrawal Act until they are repealed. As noted above, it is the intention of the current UK Government to introduce new immigration laws that, in the case of no deal, would come into effect as soon as the Government could get its legislation through the Parliament. Under the no deal scenario, therefore, immigration from the EU would have ended in March 2019 and the rights of existing EU citizens lawfully resident in the UK would in the immediate term be guaranteed by existing domestic provisions but only until new legislation is introduced. The major difference in this model is the absence of any international dimension either in the delineation of the scope of rights or in the method of enforcement. Any dispute as to the personal or substantive scope of rights of residence would fall to be decided entirely by the Home Offi ce and domestic courts and tribunals who will have lost the right to make a reference to the CJEU on a disputed interpretation.65 However, the case law of the CJEU prior to Brexit has the status of retained law and domestic courts may “have regard to anything done on or after exit day by the European Court”. At least in the short term, the courts are bound to apply existing case law to new cases before them and may take into consideration any future case law. Applying our metaphors to this model, we see that there has been a complete transformation in our allotment. Once exotic and foreign plants have been uprooted and thrown on the compost heap, very little remains of these precious plants in our allotment. New plants will be tended by new gardeners. The European Commission and the CJEU are replaced by the Home Offi ce and national courts. The environment around immigration in the UK is both toxic and hostile so, without persistent and constant care, perhaps even by guerrilla gardeners in the form of non- governmental organisations and pressure groups, our rules protecting EU nationals from deportation or exclusion from social and political rights in the longer term remain under a real threat. We have only to remember the easy promises made by the UK Government to West Indian settlers of the Windrush generation, who came to the UK at the invitation of the UK Government in the years following the second

64 SI 2016 No 1052. 65 EU (Withdrawal) Act 2018 s.6(1)(b).

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world war, which have been so easily discarded, to realise that, without some form of external control, immigration policy in the UK can be inhumane.66

III. Concluding Remarks

Obviously, metaphors can only be taken so far. So, let us get back to law. When we talk of EU laws, we know the incoming tide that was mentioned earlier brought in legal culture, legal structure and legal substance. The trans-frontier movement of structure and substance can be achieved with less diffi culty than legal culture, which is itself part of socio-culture. However, since distortions occur in the process of this movement; this impacts on how the structure and the substance work. Going back to our allotment, we can therefore say that even the well-established plants cannot be the same as when they started. In fact, they were already cultivars when they were originally re-planted here, not exactly the same as the mother plant, with differences occurring at inception and during implementation. In order to prosper, they have to adapt to the soil and the climatic conditions of the new terrains. In terms of equality laws, it seems that our cultivars have become well established and are fl ourishing in our UK allotment. One important question is whether after Brexit, they will be maintained as they are or further adapted to suit UK soil and improved. However, the future social, political and economic cultures may change, threatening the viability of our equal treatment cultivars. The social, political and economic cultures underpinning free movement rights have already changed. Depending on the model governing Brexit, transplanted rules protecting EU citizens’ residence rights, our cultivars, will be uprooted and placed on the compost heap sooner or later. Our allotment may no longer contain the original plant, cuttings from it or a hybrid. Instead, domestic plants will populate this neglected part of our allotment. Crucial to the fertility or otherwise of our allotment in all areas of law post Brexit will be the assiduity of our gardeners and under-gardeners in maintaining the health of our plants. In our analysis, judicial, executive and administrative branches of the State all have a role to play in maintaining the environment in which our allotment can fl ourish.

66 See “Windrush Generation: Who Are They and Why Are They Facing Problems?” BBC News (18 April 2018), available at https://www.bbc.co.uk/news/uk-43782241 (visited 14 June 2019).

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