EU Law Analysis
Expert insight into EU law developments
Thursday 21 March 2024
Resistance is futile: the new Eurodac Regulation – part 4 of the analysis of new EU asylum laws
Sunday 10 March 2024
Climate case against ING: what does it mean for monetary policy?
Annelieke Mooij, Assistant Professor, Tilburg University
Photo credit: Sandro Halank, via Wikimedia
Commons
The Dutch climate
organization “milieudefensie” had threatened to start a case
against the Dutch ING bank. The 14th of February 2024 the ING
has responded that it will not give in into the demands of the climate
organization. Hence making it highly likely that the climate policy of the ING
will face legal challenges. Prima facie the case seems without EU relevance as it
concerns a national climate organization suing a national bank. Though the case
may seem to lack European relevance, the opposite is true. The decision by the
Dutch judiciary may have serious European consequences. In particular for the Monetary
Union and may even bypass the independence of the ECB.
Milieudefensie v. ING
The climate organization
(plaintiff) asks
the court to order the ING to take four concrete steps. The first is to
align its climate policy with the target of 1.5C as stipulated by the Paris Agreement.
The second demand is that the ING reduces its own emissions by 48%CO2 and 42%
CO2e by 2030. Third that it stops financing large corporate clients who have
adverse climate impacts. The fourth and final demand is that ING engages in
discussion with the plaintiff about how to substantiate these demands. The
demands made by the plaintiff are serious claims. Raising the question of the
likelihood these demands are met by the Dutch court.
Whilst the court summons is
not yet finalized it is likely that the plaintiff will refer to two earlier
cases. The first is to an earlier case won against the Dutch state. In the Urgenda
case the Dutch Supreme Court ruled that the state had to reduce its
emissions in accordance with the Paris Agreement. The Supreme Court did not
state how the state had to comply, simply that it had to comply. The case gave
a strong message to the state that it had the obligation to meet the climate
agreements. Urgenda provided the foundation for the second case.
The second case that the
plaintiff will likely reference is that of Milieudefensie
v. Shell. This case still has an appeal pending. The case concerned the
climate responsibilities of Dutch oil concern Shell. The judiciary decided that
Royal Dutch Shell (RDS) was responsible for the emission reductions of the
global shell activities. In this capacity it had to reduce its global emissions
by 45% by 2030 in comparison to 2019 levels. This was considered a
revolutionary case as it is one of the first where the judiciary recognized
climate duties against a legal person. The
legal foundation was article
6:162 of the Dutch Civil Code, this article is a form of tort law. The
court considered that the emission reduction plans of Shell were not concrete enough.
Shell thereby violated an unwritten duty of care. Prima facie the case against
ING therefore looks strong. There are, however, two obstacles to overcome.
The first minor challenge is
that of the impact of ING’s financial products on their clients. In the case
against Shell the court considered that the mother company RDS determined the
policy of the entire group (paraf. 4.4.4). It therefore had the influence to
change the companies’ policies and directions. Arguably a bank can have a similar
steering influence upon the direction of its clients. In particular the ING may
refuse loans intended to buy polluting machines. On the other hand banks can
approve loans for investment in greener operations. Loans can thereby have a
powerful impact upon the direction of a consumer. Operating credit on the other
hand will have a less likely impact on the course of a business. To demand that
all financing is discontinued to corporate clients who do not have a climate
plan provides a broad interpretation to the duty of care of the banking sector.
In particular, as the Dutch judge will have to weigh the right to a clean
environment against the right to operate a business.
The second difficulty is that
unlike RDS, ING’s emissions (in)directly result from a varied investment
portfolio. As stated by the response
of ING measuring merely the emissions can lead to a negative climate
result. An increased investment in heat pumps, increases the emission portfolio
of ING but can decrease global emissions. The emissions in the Shell case were
the direct result of the company’s own activities. Redirecting its efforts from
fossil fuels to sustainable energy will have a positive impact upon the fight
against climate change. In length of this argument Ferrari
and Landi argue with regard to central banks that investments should be
made not by simply investing in the lowest emitters. Instead of this so-called “best-in-universe”
approach, banks should invest in companies that do well within their substitute
production group. The so-called best-in-class method of investment. Through
this approach global demand can be shifted to green products. Therefore unlike
the Shell case the court will have to decide between a blanket reduction of
emissions which may have a negative environmental impact, or a best-in-class
approach. The difficulty is that the court will then have to provide
instructions not on what goals to achieve but rather on how to achieve emission
reductions. The methods of achievement has been something the court has
refrained from doing in both Shell and Urgenda. The decision on methodology may
have a large impact on the future European Central Bank’s purchasing
programmes.
Impact on the Monetary Union
The right to (private) life
codified in the European Convention for Human Rights (ECHR) played a
significant role in these cases. Article 52(3) of the EU Charter states that
the ECHR provides a minimum level of protection. The CJEU may therefore award a
higher level of protection but not lower than the ECHR. The interpretation of
the ECHR therefore has a large influence on the fundamental rights protected
within the EU Charter of Fundamental Rights.
The judgements of national
judges are not binding for the European Court on the Convention of Human Rights
(ECtHR). However, when there appears to be a consensus among the majority of
members the ECtHR considers
there is common ground. The existence of common ground decreases the margin
of appreciation for the member states. The case of Urgenda directly involved an
appeal to human rights against the state, specifically the right to life
(article 2) and private life (article 8). Similar cases have been successfully tried
in Ireland
and France.
The ECtHR is yet to rule on the climate
change cases that are pending. There however seems a likelihood
of a positive outcome for the plaintiffs. The CJEU will have to consider
the scope of these cases and can decide on the same or a higher standard of
protection. There is, however, a difference with the case of ING.
The cases against the states
directly invoked human rights. In the Shell case the Dutch judge only
indirectly applied the fundamental rights when interpreting the duty of care.
It will likely do the same in the case of ING. This provides a less strong
signal about common ground to the ECtHR that the right
to a clean environment includes specific obligations for banks and other
legal persons. It will take more national judges to reach similar judgements to
provide the ECtHR with to conviction that there is common ground. The court in
the Shell case, however, included the in its considerations the UN Guiding
principles. These principles create a large common understanding throughout the
ECHR members. The states obligation to enforce direct obligations for legal
persons through its courts are likely to be accepted by the ECtHR. If so
it cannot be ignored especially by the largest bank in the EU; the European
Central Bank (ECB).
The ECB has a tiered mandate.
Its primary
objective is to obtain price stability which has been defined as keeping
inflation under but close to two percent on the medium term. To achieve this
goal the Treaty on the Functioning of the European Union (TFEU) has granted the
ECB
with a high level of independence. This means that neither the EU or
national legislators cannot determine or influence how the ECB executes its
monetary policy. The ECB is therefore likely to argue that it cannot be
influenced as to how it conducts is monetary policy even with regard to climate
change. The ECB, however, is not immune from other primary or secondary
legislation. In the Olaf
case the CJEU considered that the ECB falls within the EU legal framework.
Its independence only protects the ECB against political influence when it
conducts monetary policy.
In addition to its primary
mandate the ECB has a secondary mandate to abide by. This mandate includes “[…]the
sustainable development of the Earth”. The ECB has to comply with its
secondary mandate if it does not violate its primary mandate. Currently this is
interpreted
by the ECB to mean that when the ECB has a choice in how to achieve its
price stability objectives, the secondary mandate is guiding. The secondary
mandate, however, has various goals. Some of these goals can be achieved
simultaneously but some are independent
or even substitute goals. This makes it currently difficult to pinpoint to
the legal obligations of the ECB from the secondary mandate. When it comes to
climate change, however, the ECB considers itself bound
by the Paris Agreement. In addition the ECB
has to abide by the EU Charter of
Fundamental Rights. It is however unclear what precise duties these
treaties bring to the ECB when it carries out its private sector funding
programmes. The ECB states that it is trying to decarbonize
its corporate sector portfolio’s by using a method called tilting. The
green bonds in the sector are given preference to the brown bonds. The
difficulty is that when green bonds run out the ECB will continue by purchasing
brown bonds if it considers this necessary for its monetary aim. The case of Milieudefensie
v. ING, can provide clear guidance with regard to the ECB’s fundamental right climate
responsibilities in its corporate sector programmes. The Dutch court’s reasoning can provide the
balance between a bank’s obligations to climate against the right to operate a
business. This reasoning can be incorporated by the ECB.
The ECB makes
choices with regard to how (intense) to pursue price stability. These
choices should be guided by human rights such as climate change and economic
needs. The ING decision can create a guiding framework on how to balance these
different interests. However before such guidelines can be considered binding
more national cases need to be tried, or the ING case would have to reach the
ECtHR. Still quite a road to be travelled.
Friday 8 March 2024
The Dillon Judgment, Disapplication of Statutes and Article 2 of the Northern Ireland Protocol/Windsor Framework
Anurag Deb, PhD
researcher, Queens University Belfast, and Colin Murray, Professor of
Law, Newcastle Law School
Photo credit: Aaronward, via Wikicommons media
Extensive provisions of an Act of
Parliament have been disapplied by a domestic court in the UK for the first
time since Brexit. That is, in itself, a major development, and one which
illustrates the power of the continuing connections between the UK and EU legal
orders under the Withdrawal Agreement. It is an outcome which took many by
surprise, even though we have argued at length
that the UK Government has consistently failed to recognise the impact of
Article 2 in rights cases. So here is the story of this provision of the
Withdrawal Agreement, the first round of the Dillon
case, and why understanding it will matter for many strands of the current
government’s legislative agenda.
Article 2 of the Windsor
Framework, as the UK Government insists on calling the entirety of what was the
Northern Ireland Protocol (even though the Windsor Framework did nothing to
alter this and many other provisions), is one of the great survivors of this
most controversial element of the Brexit deal. Whereas other parts of the
Brexit arrangements for Northern Ireland have been repeatedly recast, the
wording of this provision has remained remarkably consistent since Theresa May
announced her version of the Brexit
deal in November 2018 (although it was Article 4 in that uncompleted
version of the deal).
The provision was tied up
relatively early in the process. Indeed, it suited the UK Government to be able
to claim that rights in Northern Ireland were being protected as part of the
Withdrawal Agreement, to enable them to avoid claims that Brexit was
undermining the Belfast/Good Friday Agreement of 1998. Although the 1998
Agreement makes limited mention of the EU in general, it devotes an entire
chapter to rights and equality issues, and EU law would play an increasing role
with regard to these issues in the years after 1998.
The UK Government made great play
of explaining, in 2020, that its Article 2 obligations reflected its ‘steadfast
commitment to upholding the Belfast (“Good Friday”) Agreement (“the Agreement”)
in all its parts’ (para
1). Even as it appeared ready to rip up large portions of the Protocol, in
the summer of 2021, the Article 2 commitments continued to be presented as ‘not
controversial’ (para
37). It might more accurately have said that these measures were not yet
controversial, for no one had yet sought to use this provision to challenge the
operation of an Act of Parliament. In a powerful example of Brexit “cake-ism”,
the UK Government loudly maintained that Article 2 was sacrosanct only because
it had convinced itself that the domestic courts would not be able to make much
use of it.
Little over a month ago, the Safeguarding
the Union Command Paper all-but sought to write the rights provision out of the
Windsor Framework (para
46):
The important
starting point is that the Windsor Framework applies only in respect of the
trade in goods - the vast majority of public policy is entirely untouched by
it. … Article 2 of the Framework does not apply EU law or ECJ jurisdiction, and
only applies in the respect of rights set out in the relevant chapter of the
Belfast (Good Friday) Agreement and a diminution of those rights which arises
as a result of the UK’s withdrawal from the EU.
Article 2 is a complex and
detailed provision, by which (read alongside Article 13(3)) the UK commits that
the law in Northern Ireland will mirror developments in EU law regarding the
six equality directives listed in Annex 1 of the Protocol and, where other
aspects of EU law protect aspects of the rights and equality arrangements of
the relevant chapter of the 1998 Agreement, that there will be no diminution of
such protections as a result of Brexit. But notwithstanding the complexity of
these multi-speed provisions, by no construction can it be tenable to suggest
that ‘the Windsor Framework applies only in respect of the trade in goods’.
The Dillon
judgment marks the point at which the Government’s rhetoric is confronted by
the reality of the UK’s Withdrawal Agreement obligations, and the extent to
which they are incorporated into domestic law by the UK Parliament’s Withdrawal
legislation. The case relates to the controversial Northern Ireland
Troubles (Legacy and Reconciliation) Act 2023, heralded by the UK
Government as its vehicle for addressing the legal aftermath of the Northern
Ireland conflict. This Act, in preventing the operation of civil and criminal
justice mechanisms in cases relating to the conflict, providing for an
alternate body for addressing these legacy cases (Independent Commission for
Reconciliation and Information Recovery) and requiring this body to provide for
immunity for those involved in causing harms during the conflict, has provoked
widespread concern within and beyond Northern Ireland.
The Act has been the subject of
challenges under the Human Rights Act 1998 and an inter-state action against
the UK launched before the European Court of Human Rights by Ireland. In the
interest of brevity, however, this post will explore only the challenges under
the Protocol/Windsor Framework. This is not the first case to invoke Article 2
(see here
and here
for our analysis of earlier litigation to which the UK Government should have
paid more attention), but this remains the most novel element of the
litigation, testing the operation of this element of the Withdrawal Agreement.
It is also offers the most powerful remedy directly available to those
challenging the Act; disapplication of a statute to the extent that it
conflicts with those elements of EU law which this provision preserves.
These requirements are explained
by the operation of Article 4 of the Withdrawal Agreement, which spells out
that elements of the Withdrawal Agreement and the EU law which continues to be
operative within the UK as a result of that Agreement will continue to be
protected by the same remedies as applicable to breaches of EU law by Member
States. Section 7A of the European
Union (Withdrawal Act) 2018 reflected this obligation within the UK’s
domestic jurisdictions, as accepted by the UK Supreme Court in the Allister
case (see here
for analysis). For Mr Justice Colton, his task could thus be summarised
remarkably easily; ‘any provisions of the 2023 Act which are in breach of the
WF [Windsor Framework] should be disapplied’ (para 527). All he had to do,
therefore, was assess whether there was a breach.
The rights of victims are a
prominent element of the Rights, Safeguards and Equality of Opportunity chapter
of the 1998 Agreement. These rights were, in part, given protection within
Northern Ireland Law through the operation of the Victims’
Directive prior to Brexit and, insofar as this EU law is being implemented,
through the operation of the EU Charter of Fundamental Rights with regard to
its terms. The key provision of the Victims’ Directive is the guarantee in
Article 11 that applicants must be able to review a decision not to prosecute,
a right clearly abridged where immunity from prosecution is provided for under
the Legacy Act. The breach of this provision alone was therefore sufficient to
require the application of extensive elements of the Legacy Act (sections 7(3),
8, 12, 19, 20, 21, 22, 39, 41, 42(1)) (para 608):
It is correct
that article 11(1) and article 11(2) both permit procedural rules to be
established by national law. However, the substantive entitlement embedded in
article 11 is a matter for implementation only and may not be taken away by
domestic law. The Directive pre-supposes the possibility of a prosecution. Any
removal of this possibility is incompatible with the Directive.
The UK Government cannot claim to
have been blindsided by this conclusion. They explicitly acknowledged the
specific significance of the Victims’ Directive for the 1998 Agreement commitments
in their 2020 Explainer on Article 2 (para
13). Moreover, in the context of queries over the application of Article 2
to immigration legislation, the UK
Government insisted that in making provisions for victims the 1998
Agreement’s ‘drafters had in mind the victims of violence relating to the
conflict in Northern Ireland’. Exposed by these very assertions, the Government
hoped to browbeat the courts with a vociferous defence of the Legacy Act (going
so far as to threaten consequences against Ireland for having the temerity to
challenge immunity arrangements which raised such obvious rights issues).
The strange thing about the Dillon
case, therefore, is not that the court disapplied swathes of the Legacy Act. This
outcome is the direct consequence of the special rights protections that the UK
agreed for Northern Ireland as part of the Withdrawal Agreement. The strange
thing is that Mr Justice Colton arrived at this position so readily, in the
face of such a determined efforts by the UK Government to obscure the extent of
the rights obligations to which it had signed up. In the context of the UK’s
full membership of the EEC and its successors, it took many years and many
missteps to get to Judicial Committee of the House of Lords applying the remedy
of disapplication of statutory provisions which were in conflict with EU law
(or Community law, as it then was) in Factortame (No. 2).
The Northern Ireland High Court was not distracted from recognising that these
requirements remain the same within Northern Ireland’s post-Brexit legal
framework when it comes to non-diminution of rights as a result of Brexit.
Indeed, the Court could not be so
distracted. As we set out above, once Colton J determined that relevant
sections of the Legacy Act had breached the Victims’ Directive, the judge had
no discretion in the matter of disapplying the offending sections. This marks
perhaps one of the strangest revelations to emerge from Brexit. Disapplication of
inconsistent domestic law (of whatever provenance) as a remedy extends across
much of the Withdrawal Agreement, covering any and every aspect of EU law which
the Agreement makes applicable in the UK. This fact – spelled out in the crisp terms
of Article 4 of the Withdrawal Agreement – was nowhere to be found in the 1972
Accession Treaty by which the UK became part of the (then) EEC. This is
unsurprising, considering that the primacy of Community law over domestic law
was then a relatively recent judicial
discovery. In the decades since then, however, the principle of EU law
primacy and the requirement that inconsistent domestic laws be disapplied have
become a firm and irrevocable reality. Small wonder then, that the UK
Government accepted it as a price to pay for leaving Brussels’ orbit without
jeopardising the 1998 Agreement – no matter how it has since spun the notion of
“taking back control”.
Where the government might have
its own interests in attempting to obscure the clarity of Article 2 and its
attendant consequences, Dillon is by some measure a wake-up call for
Westminster. The report
of the Joint Committee on Human Rights’ scrutiny of the Bill which became
the Legacy Act contained no reference to the Windsor Framework, notwithstanding
consistent work by the statutory Human Rights and Equality Commissions in
Northern Ireland (the NIHRC and ECNI) to highlight the issue. Dillon marks
not only some of the most extensive disapplication of primary legislation ever
enacted by Parliament, but also the first such outcome after Brexit. But Dillon
is only the beginning. It will be followed in the weeks to come by a challenge
to the Illegal
Migration Act 2023 by the NIHRC, where there are clear arguments that relevant
EU law has been neglected. The Government, and Westminster in general, have not
woken up to the legal realities of the Brexit deal. Dillon makes clear
that Parliament needs to pay far greater attention to the Windsor Framework;
not as a legal curio that only occasionally escapes its provincial relevance,
but as a powerful source of law which impacts law-making and laws which are
intended to apply on a UK-wide basis.
Thursday 1 February 2024
Saying Nothing much at all, to General Acclaim – The Windsor Framework Relaunch
Colin Murray,
Professor of Law, Newcastle Law School
Photo credit: en:User:Dom0803,
via Wikimedia
Commons
The landing space in which to do
a deal on the Windsor Framework and make it stick, second time round, was
remarkably small. The hard work of agreeing with the EU an approach to the
rules covering trade in goods involving Northern Ireland which would produce as
little friction as possible between different parts of the UK whilst
simultaneously safeguarding the EU Single Market had been done almost 12 months
ago. This, however, had not brought an end to the Democratic Unionist Party’s
(DUP’s) boycott of the Northern Ireland Assembly.
This meant that the UK Government
had appease multiple parties as it tried to persuade the DUP that the special
post-Brexit trading arrangements for Northern Ireland are not a threat to its
place in the UK. It had to be seen to provide further concessions to the DUP to
finally get the deal over the line, while simultaneously not doing anything
that could be regarded as threatening to the EU single market access for Northern
Ireland goods provided by the reworked Protocol. Looming over this difficult
balancing act was the threat of Brexit’s most ardent supporters within Rishi
Sunak’s own party, who remained anxious lest the new deal introduce an enhanced
degree of alignment between UK law and EU law post Brexit (as unhelpfully
splashed in the Telegraph).
It turns out that Sunak’s formula
for performing such a complex feat has been to announce as little as possible
as loudly as possible (a masterclass in the Yes, Prime Minister,
“radical tie for sober announcement” approach to policy). The new Command
Paper is more than twice as long as the Windsor Framework Command
Paper of February 2023 and proclaims just how much it matters (derivatives
of “important” appear more than 50 times in the text, buttressed by nearly 30
uses of forms of “significant”). In appreciation of how well a ship building
metaphor plays in Northern Ireland, commitments are “copper fastened” fully
five times in the text.
Announcing the new package in Parliament,
the Northern Ireland Secretary declared that the Conservative Party was “the
party of the Union”. You could be forgiven for thinking at this point that he
had not read the document, for it is repeatedly damning of the Conservatives’
record in office. The Command Paper laments that failing to respond to Unionist
concerns during negotiations over Brexit had “undermined economic and political
stability in Northern Ireland” (para 16) and lamented that “The decision of the
then Government to drop UK Internal Market Act clauses that would have
protected NI-GB trade meant that unfettered access was placed in legal
jeopardy” (para 27). If only Rishi Sunak could find out who was Chancellor of
the Exchequer at the time of that decision.
Such is the DUP’s fury over the
undermining of their position by the Conservatives, however, that the efforts
to address these concerns are a necessary part of the package, notwithstanding
the deflection of blame onto “the then Government”. What is perhaps more
surprising are some of the tonal slips. There are repeated reference to “the
sense” or “the perception” of the Union being under threat, so as to give
Sunak’s government enough cover to claim to be addressing DUP concerns without
ever acknowledging that it accepts them wholesale.
The most practically significant
elements of the Command Paper relate to the expansion and rebranding of the
“green lane” arrangements by which goods not generally believed to be at risk
of onward movement into the EU as they are moved from Great Britain into Northern
Ireland are subject to a minimal regime of checks based around specific risks.
These risks are identified on the basis of analysis of real-time trade flow
data shared with the EU. It is important
to note that these developments were to a large extent foreshadowed in the
Windsor Framework, as the operation of data sharing and risk management
processes became embedded. We are less than a year on from the acknowledgment
that “[t]hese protections are also not static, with specific recognition in the
agreement of the need to monitor, and as necessary adapt to, other changes in
the future” (Windsor Framework Command Paper, 2023, para 50). That the
rebranded internal market lane has been pledged to be operative “as soon as
possible” speaks to the need for the EU to accept the adequacy of the processes
in meeting the UK’s obligations.
Alongside these changes come an
agreement with the EU, and a draft legal text, which when concluded at the next
Joint Committee meeting will enable businesses operating in Northern Ireland to
have full access to goods imported into the UK under the UK’s post-Brexit trade
agreements. Much as hill farmers in Tyrone are unlikely to be jumping for joy
at the prospect of direct competition from New Zealand lamb, this development
does close off a complaint that Northern Ireland is experiencing post-Brexit
trading rules in a way that is distinct from (and for some, disadvantageous to)
the arrangements for the rest of the UK.
The DUP’s Gavin Robinson was
eager to draw attention to this change:
“We were told
that there would be no legal change to the Windsor framework or the EU text,
yet—this was part of the process of ensuring trust and commitment—colleagues
will have noticed the publication just yesterday of more than 60 pages of
legislative changes to text on the European perspective”
It is accurate to state that
Joint Committee decisions have legal status equal to Withdrawal Agreement
provisions, but this is better regarded as an outworking of the Windsor
Framework rather than a change to its core text. The Windsor Framework Command Paper
made it clear that this development was a priority for the UK and the EU (see
para 15), it is just one that has taken some months come to fruition given the
complexity of the subject matter. As the new Command Paper notes, “There is
always the potential for issues to emerge, and for challenges to need to be
addressed. That capacity for ongoing dialogue, and for further development as
may be required, is acknowledged in the Windsor Framework and its accompanying
political declaration” (para 35). No one should be jumping up to say that
Brexit is finally done.
One key take away, which extends
from the Windsor Framework into the new Command Paper, is that the UK
Government’s focus has been on trading rules and not goods production. The
DUP’s Carla Lockhart put the issue directly to Chris Heaton-Harris in the
Commons; “Will the Secretary of State therefore confirm whether Northern
Ireland still remains under the EU’s single market laws for the production of
food and agrifood?” This drew a terse response from the Secretary of State;
“May I recommend that she re-reads the Windsor framework and indeed the Command
Paper?” If anyone does reread the documents they will find very little relevant
to goods production, and the UK Government might be better advised not to
attempt to obscure the reality that their efforts have been focused on securing
(dual) market access for Northern Ireland produced goods, not attempting to
reset the rules governing goods production established under the Protocol.
In parts of the Paper, the UK
Government become quite shrill in their insistence about the limitations to the
operation of EU law in Northern Ireland after Brexit; “The important starting
point is that the Windsor Framework applies only in respect of the trade in
goods - the vast majority of public policy is entirely untouched by it” (para
46). It is impossible not to see this as predominantly for the consumption of
its own MPs, because the discussion is couched entirely in terms of the Windsor
Framework having no impact on the Rwanda policy.
This is a strange flex in the
middle of a document about trade and Northern Ireland, and amounts to an
attempt to deny any general significance to the “non-diminution” of rights
commitment under Article 2. The problem for these claims is that the
non-diminution commitment does encompass elements of EU law like the Trafficking
Directive which means that different rights protections are at issue in
Northern Ireland by comparison to the rest of the UK. The Command Paper,
perhaps unsurprisingly, makes no mention of the fact that the Northern Ireland
Human Rights Commission is currently engaged in litigation challenging the Illegal
Migration Act 2023 for what it regards as breaches of Article 2.
The new legislative protections
for Northern Ireland’s place in the Union is where the document goes full
Houdini. In discussing the UK Supreme Court’s Allister judgment, the Command
Paper is at pains to assert that the UK Parliament is fully sovereign and has
“taken back control” post Brexit (“Importantly, the Supreme Court importantly
recognised the UK’s sovereignty, exercised through Parliament”, at para 51,
which I guess must mean it is doubly important). But just a few pages after
this reminder that nothing is “permanent or irreversible” in this Government’s
account of the UK Constitution, come the supposed guarantees of Northern
Ireland’s place in the Union.
The most significant of these
come in the form of statutory instruments (the Windsor Framework
(Constitutional Status of Northern Ireland) Regulations 2024, the Windsor
Framework (Internal Market and Unfettered Access) Regulations 2024 and the Windsor
Framework (Marking of Retail Goods) Regulations 2024), which, promulgated under
the European Union Withdrawal Act, allow for far ranging changes to primary
legislation, including the Act itself. This allows these blocks of the deal to
be put in place rapidly, and Stormont restored. It also, of course, allows for
the whole process to be completed with cursory parliamentary scrutiny.
The Windsor Framework
(Constitutional Status of Northern Ireland) Regulations 2024 begins with an
amendment to section 38 of the European
Union (Withdrawal Agreement) Act 2020, asserting that the Windsor Framework
operates without prejudice to the “constitutional status of Northern Ireland as
part of the United Kingdom”. This is constitutional surplusage. The whole point
of the legislation is to implement an international agreement, and it is
therefore to be read in light of that agreement. And Article 1 of the Northern
Ireland Protocol, as remixed by the Windsor Framework, affirms that it operates
“without prejudice” to Northern Ireland’s constitutional status.
This Statutory Instrument then
takes an interesting turn. It inserts section 38A into the 2020 Act, which purports
to ban any future UK Government from ratifying any new agreement with the
European Union “that would create a new regulatory border between Great Britain
and Northern Ireland”. Two observations can be made of this pledge. The first
is that the horse has very much bolted. The Windsor Framework provides a
continuing mechanism for new and amended EU law relating to trade in goods to
apply to Northern Ireland (subject to the requirements of the Stormont veto,
which UK Governments can ultimately override if they disagree with a use of
it). There is thus no need for any new Agreement – a process of response to
change in EU law is baked into the existing arrangements and this new stricture
will not apply to it. Second, anyone who seeks to put much weight on this
pledge was not paying attention to the UK Government’s explanation of
parliamentary sovereignty just a few pages earlier. This commitment is a gimmick,
not unlike the statutory “tax lock” once promised by David Cameron.
The Statutory Instrument then
sets out an amendment to section 7A of the European
Union (Withdrawal) Act 2018. This is the closest that the whole process
comes to a live wire, because this provision is the connective tissue which
allows EU law to have legal effect within the domestic legal order insofar as
it gives effect to the Withdrawal Agreement (including the Protocol). Great
play has been made of this amendment as the end to the “automatic” application
of EU law in Northern Ireland. But that is not what this amendment does. A
large body of EU rules applies because of the Withdrawal Agreement, although
the amendment of some of these rules, or the addition of new EU measures, is
subject under the Windsor Framework to the operation of the Stormont Brake.
This new provision simply makes
that reality explicit in the statute. This perhaps has a clarificatory
function, but it suffices once again to note that this is a statute
implementing an international agreement and the operation of section 7A has
been assumed to operate to take account of the working of the Stormont Brake
since the Brake was introduced. It is worth noting explicitly that the
obligation on the law of Northern Ireland to automatically track developments in
the equality directives contained within Annex 1 of the Protocol, as modified
by the Windsor Framework, remains in full effect as it is not subject to the
Stormont Brake.
The Statutory Instrument then
amends the 2018 Act to require a ministerial acknowledgement before the
Parliament of whether a Bill affects trade between Northern Ireland and the
rest of the UK. This has been likened to the process under the Human Rights Act
by which ministers have to make a statement on the compliance of new legislation
with human rights. And there is an irony to this present government lifting and
repurposing such a provision. In this instance, however, the assessment does
not have to be conducted before every piece of legislation, but only where
ministers think there might be an issue. Plenty of scope exists for this
element to be overlooked, and it has no legal impact on the operation of a
statute in which it is not included. Very soon such ministerial statements will
become background noise.
The last piece of legislative
reform that I will address in this piece has also been accompanied by noisy
speculation; the UK Government has promised to banish from the statute book any
duty to have “due regard” to the all-island economy. This is very much in the
weeds of Brexit, but when Theresa May was having difficulty securing the
passage of the Withdrawal Agreement legislation she was obliged to concede the
Patten amendment, which became section 10 of the European Union (Withdrawal)
Act 2018. This was meant to restrict any ministerial attempts to use the
wide-ranging powers of delegated legislation under the Act to ignore the UK’s
commitments as part of the negotiating process made in the 2017 Joint Report.
Ministers had to have “due regard” to maintaining regulatory alignment which
supported the “all-island economy” in their use of these powers.
This phrase is a particular
bugbear of Unionism, and the Command Paper makes great play of the dangers of
“the divisive and misguided political notion of the ‘all-island economy’” (para
71), but it is a stretch to say it is still playing any part in informing
government policy. For one thing, new powers to implement the Protocol were
created in the 2020 Act, and it is arguable that the strictures imposed on the
original powers in the 2018 Act do not apply to them. Second, read in context,
the commitment in paragraph 49 of the 2017
Joint Report is about the backstop. A lot of water has passed under the
bridge since then; it is not relevant to interpreting the UK’s subsequent
(distinct) obligations. At best, this is the cleaning up of an outdated
provision on the statute book.
For all that attention devoted to
minor or inconsequential issues, a remarkable aspect of the Command Paper is
the extent to which it still leaves important issues unresolved. Paragraph 121
of the Paper makes an eye-catching commitment:
“The
Government can also confirm that there will be no Border Control Post at
Cairnryan. While goods that do not qualify for unfettered access to the UK’s
internal market - such as goods moving from Ireland via Northern Ireland - will
need to comply with the formalities required of any other third country goods
movements, we will develop an approach to checks and formalities on those goods
that does not pose any risk to the free and unfettered movement of qualifying
Northern Ireland goods.”
The commitment, however, obscures
a continuing problem. The UK Government has not finalised its definition of
Qualifying Northern Ireland Goods (despite talking about expanding the
definition for months).
With the Border
Target Operating Model now taking effect in Great Britain there remains no
clarity on what the government will do to check whether goods shipments moving
from Northern Ireland into Great Britain involve goods which qualify for
unfettered access and those which should be checked. There is no easy answer to
this issues that does not require some assessment of whether goods movements
meet the criteria, but the failure to address the issue in detail in the Paper
must generate suspicions that Unionists might find the approach the UK is
contemplating unpalatable.
The final thirty pages of the
Command Paper consists of “make weight” content, with Annex 1 addressing the
history of barriers to trade which have existed since the conclusion of the
Acts of Union and the creation of Northern Ireland. This content amounts to a
repost to claims that the “Acts of Union are the Union” or that Article VI must
somehow be “restored” or “fulfilled”. They speak to the incompleteness of the
UK’s removal of barriers to trade which came with incorporating Ireland into
the Union, and to the amount of times subsequent legislation has impinged upon
trade.
But they also speak to an
opportunity lost. These realities have been known, and discussed,
for years. Successive UK Governments, however, have cultivated inaccurate
impressions of the workings of the extent to which the Union operated to remove
barriers to trade for their own purposes. This is not a summary that the
Johnson Government, which talked relentlessly of “the provisions of the Acts of
Union playing a key role in keeping markets open” (Internal
Market White Paper, 2020, para 63) would have produced. Instead it is a
belated effort to redress that narrative. It is also a rushed effort, with
large sections of it apparently lifted from Professor Henry Patterson’s account
of trade between different parts of the UK since the Acts of Union published in
the Belfast Newsletter
earlier this week.
No such package would be complete
without reheating some existing promises. The Castlereagh Foundation was
announced in the New
Decade, New Approach deal (para 26) as a means “to support academic
research through Universities and other partners to explore identity and the
shifting patterns of social identity in Northern Ireland”. The fact that
Castlereagh’s biographer, John Bew, is the
great survivor amongst special advisers to recent UK Prime Ministers is surely
not coincidental to this enduring fixation with a politician best remembered
for being maligned by Shelley after
Peterloo, for the Castlereagh Foundation is once again promised, indeed
guaranteed, in Annex 2. Given the overall tenor of the Paper, perhaps the
inclusion of reheated promises was inevitable, but it does flag the extent to
which the UK Government’s supposed commitments to Northern Ireland fade in and
out depending on the extent to which it is in crisis. What might Shelley say of
the whole thing; Very smooth, yet grim.
At this juncture, this account
might give the impression that these new developments are so insubstantial as
to not warrant Jeffrey Donaldson’s return to power sharing. But that is only
the case because all of the heavy lifting was done in the Windsor Framework’s
mitigations. Where these changes are at their most substantive, they are a
continuation of developments explicitly planned as part of the Windsor
Framework. Where they are window dressing, and there is a large amount of
window dressing, all of this could have been asserted many months ago.
The sour taste that the whole arrangement
leaves is that of a lost year in Northern Ireland’s governance. A year in which
politicians in Northern Ireland could have been governing in the interests of
the people of Northern Ireland and helping to address the cost of living
crisis. The conclusion of needs-based funding arrangements did not have to
become bound up in the story of the Windsor Framework, but the parties
returning to power sharing could not contemplate governing Northern Ireland
effectively without something being done to address the unsustainable pressure
on its finances.
The UK Government reached a
workable compromise with the EU in the Windsor Framework and the new
arrangements are in large part no more than outworkings of that deal. Had Sunak
been less concerned with looking over his shoulder at the threat posed by his
predecessors, so much more could have been done to involve the Northern Ireland
parties directly in the Windsor Framework negotiations and to arrive at
something that landed first time, without the need to confect this second deal.
Wednesday 31 January 2024
Would’ve, Could’ve, Should’ve: Preliminary Reflections on the EU’s New Corporate Sustainability Due Diligence Directive
Tara
Van Ho, Senior Lecturer in Law, University of Essex
Photo credit: Infrogmation
of New Orleans, via Wikimedia
commons
The European Union’s Council and
Parliament have agreed to a provisional text for a new directive that would
require certain large corporations to undertake human rights and environmental
due diligence.
I was reminiscing just the other
day while having coffee all alone, and Lord, it took me away, back to a
first-glance feeling during my first UN Forum. My hope was mixed with equal
levels of scepticism about the likelihood that laws like this would be adopted
let alone be effective. Over the past twelve years, the hopes and scepticism
have been met in equal measure, but never more so than with this law.
While
the final text is not yet public, a press release indicates the key
expectations and components of the agreed text. MEP Axel Voss has posted the
side-by-side comparator of the various drafts, including the new draft
agreement. This draft
confirms:
-
The directive will apply to large EU companies
with a worldwide net turnover of €150million and 500+ employees;
-
It will eventually capture non-EU companies with
€300 million net turnover generated in the EU and the Commission will publish a
list of applicable non-EU companies the law;
-
Affected businesses will need to address actual
and potential adverse human rights and environmental impacts in their “business
chain of activities” which covers their own operations, their subsidiaries, and
“the upstream business partners of the company and partially the downstream
activities, such as distribution or recycling”;
-
The financial sector is (temporarily?) excluded
pending a review and “a sufficient impact assessment;
-
There is a specific list of human rights and
environmental protections that businesses will be expected to respect and
address, and a list of obligations the breach of which will constitute “an
adverse human rights impact”;
-
That list excludes from application certain ILO
core conventions because not all EU member states have ratified them;
-
Large companies will have an obligation of means
to develop and implement an effective plan to mitigate their impact on climate
change;
-
Those who are negatively affected (including
civil society or trade unions) can bring claims for civil liability within a
five-year period; and
-
At times, as a matter of last resort, businesses
may need to end their business relationships where negative impacts cannot be
prevented or ended.
This law represents progress for
many in the world. If implemented in good faith, it could provide better access
to remedies for victims who are negatively impacted by business operations. It
should also lead to the adoption of better and greater preventative measures,
avoiding the need for remediation in the first place.
It is the first mandatory human rights due diligence
legislation to address climate change, not just environmental damage. It
anticipates civil liability for businesses that breach their responsibilities.
It suggests compliance with the law as a criterion for public procurement,
placing the power of Member States’ purses beyond the law. The recognition that
at times business relationships will need to be terminated to ensure compliance
is significant and can help fill in gaps the negotiation has otherwise left
unaddressed, like the issue of conflict-affected and high-risk areas (which
I’ll return to later in the post).
I’d like to express my
appreciation to the NGOs and Parliamentarians who have gotten us to this point:
it is clear from the Council’s approach during negotiations that if you
would’ve blinked then they would’ve looked away at the first chance. I
particularly appreciate those who fought for the inclusion of international
humanitarian law and specific language on conflict-affected and high-risk
areas. This was needed and I was shocked by early rumours that the draft
agreement excluded this issue. I’m happy those were wrong.
The long-awaited human rights
requirements are intended to implement the 2011
United Nations Guiding Principles on Business and Human Rights (UNGPs). I
remember it all too well how the EU celebrated the adoption of the UNGPs and
how, together with the US and other capital-exporting states, promoted the
UNGPs as the standard for businesses when addressing human rights. The EU long
opposed proposals for an international
treaty on business responsibility for human rights because they felt that
it was unnecessary in light of the UNGPs’ existence and could distract states
from implementing the UNGPs.
Only recently, and only because Parliament
required it, the EU has joined the negotiations with all
the enthusiasm of a 6-year-old child called to dinner when they’re playing
with their dinosaurs (meaning: none). The new directive evidences strong
disconnects from the EU’s demand that the UNGPs lead is pretty and what the EU
advocates for in the binding treaty and what the directive now requires for
reasons I set out below.
In this post, I provide a list of
things the EU would’ve, could’ve, and should’ve done had the Council been as
serious as Parliament about implementing the UNGPs. The would’ves apply to an
ideal application of the UNGPs: applying to all businesses and with a more
robust and comprehensive understanding of human rights. The could’ves represent
those areas in need of greater development: consulting with rightsholders
abroad; and clarifying that contractual clauses are not enough. Finally, the
“should’ve” is applying the law to the financial and arms sectors, a bare
minimum expectation under the UNGPs, the exclusion of which should embarrass
Council members for decades to come (I would have said generations but that
felt a tad bit dramatic).
Would’ve: Applied to all
businesses
First, the UNGPs are explicit
that the responsibility to respect human rights applies to all businesses at
all times including small and medium-sized enterprises (SMEs). In the Geneva
treaty negotiations the EU has always walked a very thin line, insisting that the
treaty, like the UNGPs, should apply to all businesses, not just
transnational corporations. The initial Parliamentary
proposal for a directive would’ve (largely) continued this approach and
complied with the UNGPs. Yet, it was clear from the Commission’s
proposal and the Council’s response that we were never going to get a
UNGP-compliant directive. The Directive will now only apply to large companies
(and not in the financial sector, an issue I’ll return to). The press release
does not indicate an intention to expand the scope of the Directive in the
future.
Including SMEs is admittedly
difficult. In the transnational context, large European companies have
long forced SMEs in places like Bangladesh and Pakistan to absorb the cost of
social auditing processes while insisting on contracts that limit the legal
liability of European buyers and parents. This often leads to corrupt practices
for certifications or in redirecting revenue for the certification away from
protections or living wages for employees. That would defeat the purpose of the
law.
EU SMEs, on the other hand, often
already have a language of human rights, practices that facilitate due
diligence, and networks that can support their efforts to develop in this area.
A graduated expansion coupled with clauses aimed at protecting SMEs from the
abusive practices we’ve seen elsewhere could’ve provided an important example
of how SMEs can be included in mandatory human rights due diligence legislation.
It also would’ve strengthened the EU’s position in the Geneva-based
negotiations.
Instead, whenever the EU pushes
for an expansion of the treaty, I hope states like Pakistan and Bangladesh point
out the hypocrisy.
Would’ve: Taken a broader
approach to human and labour rights
The UNGPs also call for
businesses to account for all human rights. In Principle 12, it states that
businesses should account for, “at a minimum,” the International Bill of Human
Rights (the Universal Declaration of Human Rights, the International Covenant
on Civil and Political Rights, and the International Covenant on Economic,
Social and Cultural Rights) and the ILO Core Conventions. Where relevant,
businesses need to rely on other standards as well.
The EU’s press release suggests
that the directive will only invoke treaties that are universally ratified by
EU member states. That would mean most of the major UN treaties are addressed but
there are some disturbing omissions, including the International
Convention on the Protection of All Migrant Workers and of their Families
and the ILO Core Conventions. Those are rather significant omissions given
issues of modern
slavery in EU food supplies, and more broadly problems with the treatment
of migrant workers throughout EU corporate supply chains.
The list also prioritises EU
commitments over relevant obligations where the law has extraterritorial
impacts. There should have been a recognition that at times the Inter-American
and African systems on human rights can be applicable. This recognition is
important as the Inter-American and African systems have produced stronger
jurisprudence on various issues, including indigenous rights and
community rights than Europe
(significantly stronger in the Inter-American system) while the
Inter-American system also produces more progressive jurisprudence on the
definition and nature of reparations, and the direct
responsibility of businesses. While the African system has more limited
jurisprudence, its jurisprudence on land rights and community rights is
similarly more advanced than the European system’s.
Sometimes, I miss who I used to
be when I could naively believe the absence of reference to the other human
rights systems was an oversight, but I fear this strengthens the case for the
laws as a form of neo-coloniality by suggesting a hierarchy of rights and
systems that centres European expectations in legislation that is supposed to
reflect broader standards.
Could’ve: Undertaken Direct
Consultations with Foreign Rightsholders
The failure to recognise the
relevance of Inter-American and African jurisprudence reflects a broader
procedural failure by the Commission to consult foreign rightsholders who will
be affected the law. I cannot do greater justice to this criticism than Caroline Omari Lichuma
has done already in her TWAIL
critique of European human rights due diligence laws.
While my experience suggests that
many victims groups and rightsholders want mandatory laws, what they want in
those mandatory laws matters just as much as the desire for a law. They
had a right not just to voice their support for (or criticism of) the law but
to make substantive demands for the law itself. What would the additional
demands of rightsholders look like? Well, sometimes you just don't know the
answer ‘til someone's on their knees and asks you for a particular legislative
proposal, but a very recent study suggests that consultation might have led to
different approaches to remediation, particularly for climate-related harms.
I often find that memories feel
like weapons. In this field, we have often seen European businesses and states
undertake “new” initiatives they claim are for the benefit of others without
actually talking to the “others.” For example, studies suggest “social
auditing” and certification schemes do not deliver on the promises European
companies and social initiatives claim. This is unsurprising. Writing in the
U.S., the founding father of critical race theory, Derek Bell, has explained
that many “anti-racist” developments really represent interest convergence of
White and Black leaders. As such, the concessions are less radical or
responsive than what racialised communities would seek themselves. These
additional demands, however, are often dismissed or ignored. When Dr Lichuma
provided an overview of her critique at the 2022 UN Forum on Business and Human
Rights, one European delegate infamously responded that Europe’s position
wasn’t a matter of imperialism but of “leadership.” Real leadership, however,
would reflect the results of consultations with rights-holders not just the
political interests and concessions of European leaders.
Could’ve: Clarified that Contractual
Clauses are not Enough
Recital 34, para 43 in the table
contains an extensive discussion of the kinds of measures companies can take to
comply with their human rights responsibilities. One of those is the
development of contractual clauses with business partners. I worry that I've
seen this film before and I
didn't like the ending.
I’ve now mentioned twice that
social auditing is a sham. There will be exceptions to this rule and I can
point people to a few of my favourite exceptions, but let me reiterate what
existing research
indicates: social auditing is generally ineffective and often detrimental for
rights-holders, providing a veneer of respectability for disrespectful
practices.
Increasingly, it is clear that
this is equally true of index listings meant to advise institutional investors
on their human rights risks. Last year, the US advisory company Morningstar
adopted rules aimed at exempting Israel that so fundamentally misunderstand the
UNGPs that it renders all its human rights reporting questionable (short story:
Morningstar concluded Israel isn’t a conflict-affected area…). More recently,
index provider MSCI accepted audits from Xinjiang, China, as evidence that the
car company Volkswagen was seriously addressing the issue of Uyghur forced
labour. No company can adequately address the issue of Uyghur forced
labour when operating in Xinjiang and (again, I cannot emphasise this enough) it
is irresponsible to rely on a social audit in this context. Because these
indexes set their own rules, and have no professional board standards, I can’t
actually accuse them of professional malfeasance but these responses are
shockingly inept.
Human rights due diligence is not
supposed to be the same as an audit, but often businesses looking for a quick
and dirty misdirection will use social audits and contractual clauses as a
substitution for due diligence. I fear that if contractual clauses are allowed,
due diligence will start to look more and more like social auditing and
indexing and less like the robust and circular mechanism of assessment,
responsiveness, and reparations than it is supposed to be.
The directive could and should
clarify that while contractual clauses can be important they cannot transfer
legal liability.
Should’ve: Applied to the
Financial and Arms Sectors
At Recital 18, para 27, and Recital 19, para 28, we find an effective
exemption from the law for the arms and financial sectors, respectively. In
Recital 19, the CSDDD excludes “downstream business partners” from the scope of
due diligence obligations. I knew this was true from the press release, but
seeing the blatant language was surreal. I’m laughin', but the joke's not funny
at all.
I’m going to set aside the arms
sector for now (because I’m working on a lot regarding that sector right now), but
the exemption for the financial sector is gross (gross being a legal term of
art, just ask anyone…). The draft agreement says that “as regards regulated
financial undertakings, only the upstream but not the downstream part of their
chain of activities is covered by this Directive.” In other words: the bank is
not responsible for breaches caused by its financing of another’s activities no
matter how much the bank should have known how its financing would be used for
human rights violations.
Out of every group you’re
concerned with protecting, out of every business and industry, it is the banks
you the Council thinks can’t do due diligence?
Really?
The banks that kept looted Nazi
material from their rightful Jewish owners for decades?
The banks that repeatedly
financed South Africa’s apartheid regime, saving it when it was on the brink of
collapsing?
The banks accused of facilitating
money laundering for drug lords and terrorists?
The ones who facilitate tax
evasion?
The banks that finance dam
projects in indigenous lands with such disregard for human rights that many of
their logos should just be “Hi, it’s me, I’m the problem. It’s me.”
The banks that know how to do extensive
due diligence on operational impacts when it’s in their financial interests?
Those banks? That’s
who needs protecting with this law?
You cannot be serious about human
rights if you are not serious about tackling the responsibility of the
financial sector. When it comes to the Council members who betrayed the
rights-holders with this clause, I got a list of names and yours is in red,
underlined, France and Austria. France was the first to indicate resistance to
the application to the financial sector, but it is Austria’s recent pressure on
Ukraine, in which it
leveraged international assistance for the war on the removal of Austrian
Raiffiesen Bank from the list of international sponsors of war, that is perhaps
the worst development in this area. People need to know this, so they know
where to put pressure moving forward.
It appears there will be an
“impact assessment” to determine if the law should apply to this industry, but
that will be too little and far too late.
It’s also wholly unnecessary.
There is nothing particularly
special about banks or the financial industry that makes human rights due
diligence hard. They just don’t want to pay for it to be done properly. That’s
not surprising. No company wants to pay for it. Disney once complained about
reporting requirements before we even had any human rights due diligence laws
because they didn’t way to cut into CEO bonuses or shareholder profits. The
desire to not spend money on human rights due diligence is not an adequate
reason for allowing those complicit in the Nazi genocide or South African
apartheid or Russia’s unlawful war of aggression in Ukraine to continue to
evade human rights responsibilities. If anything, their focus on profits and
finances over people is exactly why this law is needed.
Concluding note
So that’s it: my would’ves,
could’ves, should’ve for the EU. At times, the CSDDD provides me with hope
about the direction of travel for this field, but in other areas it represents
a crisis of my faith.
PS, Taylor Swift’s birthday was
on the same day as the final trilogue.
As a fun Easter Egg hunt for my fellow Swifties, I’ve sprinkled her lyrics
throughout this post (13 times, obviously). I’ll send a friendship bracelet to
the first Swiftie who emails me a list of all the hidden gems. Please use the
subject line “T-Swift Easter Egg Hunt” in your email. My email address can be
found on my Essex
profile.