Leaving the European Union – the rights implications

Guest piece by Chief Commissioner Les Allamby for the Public Interest Law Alliance (PILA) Leaving the European Union – the rights implications

The outcome of the European Referendum in the United Kingdom has enormous political, economic and social implications. There remains, however, considerable uncertainty as to what those ramifications will be. This article explores the implications for human rights of the UK’s withdrawal of the European Union.

One immediate impact has been on the plans to consult on the repeal of the Human Rights Act and its replacement with a British Bill of Rights. The consultation document has been completed and the send button was ready to be pressed based on a vote to remain. Instead the consultation has been put on hold until after the new Conservative leader/prime minister is in post. Already the front runner Theresa May, the current Home Secretary has softened her stance saying if elected she will not withdraw from the European Convention of Human Rights. As late as April 2016 Theresa May was insisting on withdrawal. The Convention overseen by the Council of Europe and enforced by the European Court of Human Rights is of course entirely separate from the European Union. Nonetheless, membership of the European Union carries with it certain human rights obligations.

The referendum result will have no immediate impact on the UK being required to meet its human rights and other European Union related obligations including in the fields of equality, employment, social security and free movement rights. The referendum outcome will almost certainly be debated in the Westminster Parliament and the UK government has to trigger its withdrawal under Article 50 of the Lisbon Treaty by notifying the EU Council. From this period, the negotiations for withdrawal can formally begin for a period of up to two years. Currently, a political stand-off is in place as to whether informal negotiations will begin prior to the triggering of the Article 50 mechanism to withdraw. In effect, the earliest the UK will leave the EU and its legal obligations is late 2018 – it may of course turn out to be much later if Article 50 is not swiftly invoked.

At this point the UK government could repeal the European Communities Act 1972 which provides that all UK legislation including primary legislation is subject to directly applicable European Union law. In the Factortame case the (then) House of Lords confirmed that EU law prevailed over conflicting UK domestic legislation. In practice, an exercise will need to be undertaken to decide what legislation will be amended or repealed based on it originally being implemented to meet European Law requirements.

All member states have signed up to the European Union Charter of Fundamental Rights. The Charter was given legal status in 2007 through the Lisbon Treaty and introduced in December 2009. The Charter complements the European Convention and recognises at Article 52(3) that where Charter rights correspond to Convention rights the meaning and scope of the rights are the same as those laid down by the Convention. This provision does not prevent European Union law providing more expansive protection. The scope the of Charter is narrower than the Convention in that it applies the convention rights to public bodies only when they make decisions within the scope of EU Law. Moreover, the Charter has not been incorporated into domestic law through the Human Rights Act. However, in other respects the Charter offers greater scope through enforcement at the Court of Justice of the European Union (CJEU). The CJEU can disapply national law and provide compulsory remedies for damages. In contrast, breaches of Convention rights in primary legislation can lead to a declaration of incompatibility leaving any remedy to parliament. Moreover, the Strasbourg court’s remedy of damages is a discretionary one. The failure to implement Strasbourg court decisions from (Hirst v UK onwards) in the case of the blanket legislative ban on prisoners voting is a long-standing example of Westminster Parliament defying the Strasbourg court. The Charter itself also goes beyond the Convention in outlining social and economic rights alongside civil and political rights under the headings of dignity, freedom, equality, solidarity, citizen’s rights and justice. Leaving the European Union is likely to mean no longer being subject to the EU charter.

Elsewhere European Union directives have created important rights for people within the United Kingdom. Employment rights developed significantly due to European legislation and CJEU case law. The end to automatic dismissal of people for reaching a compulsory retirement age stemmed from a European Directive. Other directives created equal treatment in access to social security benefits, occupational pension schemes, access to training and promotion and access to and supply of goods and services.

Secondary legislation has set standards for treatment of asylum seekers, dealing with human trafficking, combatting child sexual abuse and exploitation and victims rights. There is also a focus on special safeguards for child suspects which require that all children must be provided with a lawyer – a right that could previously be waived under domestic legislation.

Further, the question of social security entitlement for cross-border workers has been resolved through European Union legislation which determines which Member State has the responsibility for paying benefits and the recognition of social security insurance contributions paid elsewhere within the EU and the exporting of benefits. The options here are to seek a bilateral agreement with individual European countries an approach broadly adopted by Switzerland. Alternatively, an EU wide deal could be negotiated which is much closer to the position of Norway and its relationship with the EU. This is one of a number of issues, that has particular significance for the relationship between the UK and Ireland

It is clear that people derive significant rights as a result of being within the European Union. How many of these rights will be maintained once the United Kingdom government negotiates its way out of the European Union remains to be seen.

Notes to Editors

1. This Article was published on 06 July 2016 for PILA. It is available here

2. The Northern Ireland Human Rights Commission has an information note on the rights issues affected by membership of the European Union available here.