Paying attention to the Brexit effect
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Marc Bloomfield
When I first started leading Public Law Project’s (PLP’s) Brexit work, some people were surprised that we had chosen this as a focus area. Unsurprisingly, perhaps, that is no longer the case.
PLP takes no position on the UK’s decision to leave the EU. Our objectives are: to strengthen our democratic settlement by ensuring that parliament is appropriately sovereign, that the executive is held to account, and that the interests of disadvantaged groups are properly and effectively represented; and to ensure procedural fairness for those most likely to be affected by the Brexit process. We aim to achieve these goals through strategic use of research, policy, training, casework and litigation.
We have been active members of the Brexit Civil Society Alliance, which aims to bring together civil society organisations from all parts of the UK to ensure our voices (and those of our beneficiaries) are heard in the Brexit process. This has enabled PLP to participate in advocacy around the scope of delegated powers in the EU (Withdrawal) Act 2018 (EU(W)A) and subsequent Brexit-related legislation, and to build strong connections with other civil society organisations that share our concerns. Through the work of the alliance, we have used our public law expertise to support scrutiny and advocacy.
Whole new systems are effectively established by way of secondary legislation. This almost completely restricts meaningful parliamentary scrutiny and allows virtually no opportunity for civil society stakeholders to contribute to the process.
To address widely articulated concerns about the breadth of the delegated powers conferred by the EU(W)A, we established the SIFT Project, described in my colleague Alexandra Sinclair’s column earlier this year (see June 2019 Legal Action 9). One of the consequences of copying and pasting EU law into domestic law, and then giving ministers powers to ‘prevent, remedy or mitigate’ ‘deficiencies’ (EU(W)A s8), is that whole new systems are effectively established by way of secondary legislation. This almost completely restricts meaningful parliamentary scrutiny and allows virtually no opportunity for civil society stakeholders to contribute to the process. By systematically monitoring the statutory instruments produced through this process, PLP has identified and highlighted significant policy changes made in this way, and worked collaboratively with civil society partners to raise concerns with civil servants, parliamentarians and government.
We are also seeking, as always, to raise awareness of judicial review as a mechanism for challenging executive overreach through delegated legislation. That mechanism is particularly important in the context of the massive law-making project that is Brexit, with necessarily reduced opportunities for effective pre-legislative scrutiny.
Another significant focus of PLP’s Brexit work is the EU Settlement Scheme. We have recently published an administrative justice analysis of the scheme, the result of phase 1 of a major research project based on an end-to-end analysis of the scheme. Quick and uneasy justice (16 July 2019) is essential reading for anyone concerned about the fairness of this scheme, which will decide the future immigration status of the nearly four million EU nationals and their family members living in the UK.
Its key finding is that the scheme represents ‘an acceleration of an existing trend towards quick justice at the expense of important safeguards’ (page 5). The likely result of this shift, in the longer term, is that there will be greater divergence in individual experiences of administrative justice within the context of immigration. The scheme is also a forerunner and testing ground for the type of automated decision-making that may be rolled out across our justice system as part of HM Courts and Tribunals Service’s court reform programme.
PLP has also established a specialist support hub to provide public law expertise to front-line organisations working on the EU Settlement Scheme. We will provide training and consultancy to front-line advice organisations, to increase their ability to identify public law challenges to individual decisions as well as systemic problems, particularly where these affect those whose access to justice is impeded by poverty or other barriers. We will monitor the roll-out of the scheme, including through further research, and identify public law issues that can be tackled through policy advocacy, casework and litigation.
There is no doubt that Brexit is the most significant constitutional challenge facing this country, and that there is an important role for public law, and for social welfare lawyers, in holding the executive to account and ensuring fair treatment and access to justice for those most affected.
Our aim – as always – is to work collaboratively with colleagues with immigration and public law expertise, as well as those on the front line. Anyone interested in finding out more about this project should contact Ollie Persey at o.persey@publiclawproject.org.uk.

About the author(s)

Description: Alison Pickup - author
Alison Pickup is a barrister and legal director of the Public Law Project. She was previously a barrister at Doughty Street Chambers.