Wednesday 13 April 2016

UK and the EU (7) - Your rights

The EU Referendum on 23rd June is very much bound up with YOUR RIGHTS as a citizen and it is vital that the voter considers the possible impact of Brexit on these rights.  Would rights guaranteed or underpinned by the law of the European Union continue to have the same protection?  Is there a possibility that some of those rights could be lost?

This is Number 7 in a series of posts seeking to inform the EU Referendum debate by looking, in as straightforward a way as possible, at various aspects of the European Union (EU) and its relationship to the UK.  Links to previous posts in the series are below.  We all value our rights and wish those to be enforceable at law.  This post aims to look at the topic of Rights and the EU.

Council of Europe:

Given that there always seems to be confusion on the point, let's say at the outset that
the European Convention on Human Rights (ECHR) is NOT a product of the EU.  It emanates from the Council of Europe - a separate body with 47 Member States.  The UK has been a Council of Europe member since it was founded in 1949 and the UK is bound, within international law, to give effect to the ECHR.  Currently, within the UK, effect is given to human rights by means of the Human Rights Act 1998 though it is well known that the government is planning changes in this area.

The court operating under the aegis of the Council of Europe is the European Court of Human Rights based in Strasbourg.

The European Union:

The European Union has 28 Member States and the UK has been a member since 1973 - UK and the EU (1) - History and Background.  It is founded on various Treaties - UK and the EU (2) - The EU Treaties - key points.  In December 2007, the EU proclaimed a Charter of Fundamental Rights (CFR) for the EU and it has the same legal value as the Treaties.   The CFR contains a wider menu of rights than those in the ECHR.

The court operating under the aegis of the EU is the Court of Justice of the EU (CJEU) based in Luxembourg - UK and the EU (3) - The Parliament, the Commission and the Court.

The EU and rights:

So far, so good!  Complications arise because:

1) The EU as a body is committed to acceding to the ECHR though this matter is the subject of on-going negotiations. 

In December 2014, the Court of Justice of the EU gave an opinion that was unfavourable to EU accession to the ECHR - Opinion 2/13

(Note: The European Court of Human Rights has developed the so-called "Bosphorus presumption" on the relationship between EU law and the ECHR - see EU Law Analysis 24th May 2016).  

2)  The EU Treaties require that fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the members States, shall constitute general principles of the Union's law.

3)  The Charter of Fundamental Rights (CFR) has to be read within the UK in the light of what is referred to as "Protocol 30" - (a Protocol to the Treaty on the Functioning of the EU).  This post does not analyse Protocol 30 further save to note that it has been the subject of confusion and somewhat divided legal opinion.  It can now be confidently said that the Charter only applies to those areas of national law coming within the (wide) scope of EU law.  Where the CFR does apply it is supreme over any inconsistent national law and the Court of Justice of the EU has jurisdiction in relation to the Charter.  (This Parliamentary Report is worth reading though it is rather lengthy). 

The Charter of Fundamental Rights (CFR):

Full text of the Charter.

The broad nature of the CFR can be seen via this link - Charter of Fundamental Rights (General Overview)

There are 7 "Titles" within the CFR: DIGNITY (Title I); FREEDOMS (Title II); EQUALITY (Title III); SOLIDARITY (Title IV); CITIZEN's RIGHTS (Title V); JUSTICE (Title VI) and then Title VII deals with interpretation and application of the Charter.  The rights in Title IV are of particular importance to workers.

Rights derived from EU citizenship, which each UK citizen enjoys, include (amongst many others) rights relating to equal pay for equal work between men and women, the right to adequate rest and limited working hours (the Working Time Directive), the right to move and reside within different member states, the right to vote and stand for election within the EU political framework and the right to work in other member states – and in some circumstances to seek social assistance in other member states.  See the UK Constitutional Law Blog - Rights derived from EU law

Impact of Brexit?

It cannot be said with any confidence what the impact of Brexit would be for UK citizens on the rights established by the EU.  It is unclear at present what alternative arrangements might be negotiated should the UK vote to leave the EU.

Citizens of the UK are also EU citizens by virtue of the UK’s membership of the EU.

Citizenship rights are reciprocal rights.  Rights enjoyed by UK citizens outside of the UK are also granted to non-UK citizens from other EU member states to enjoy within the territory of the UK.

For the moment, EU membership means that UK citizens can move, reside and work across the different Member States.

A Brexit vote would trigger the procedure for a negotiated exit and the rights derived from citizenship for the 2 million UK citizens living in other EU countries would no doubt form part of the negotiations.

Brexit is not therefore likely to be a simple process - UK and the EU (6) -Will Brexit be a simple process?

An independent view:

Brexit could risk legal and commercial chaos and would cause years of uncertainty for employers and employees - argues Michael Ford QC.  The opinion was commissioned by the TUC.  In the opinion, Ford comments that "It is easy to contemplate a complete reversal of the gradual increase in social regulation protecting workers which has taken place since the 1960s".  The reader will need to consider the extent to which the present British government has a Deregulatory Agenda.

Worker's rights from the EU: The impact of Brexit - Michael Ford QC

Another view:

Writing for the UK Human Rights Blog 6th May 2016, Marina Wheeler QC has put an interesting viewpoint about the stance of the present Home Secretary (Theresa May MP) to the European Convention on Human Rights and the Charter.

"In a speech about Brexit last week, the Home Secretary shared what she called her “hard-headed analysis”: membership of an unreformed EU makes us safer, but – beware the non-sequitur – we must withdraw from the European Convention on Human Rights, which does not.

It is surely time for some clearer Government thinking about these questions. If politicians could put politics to one side, they might recognise that the Convention and the Strasbourg court are not enemies of our sovereignty, but there are aspects of EU law as applied by the Court of Justice in Luxembourg which are."

Wheeler concludes -

"It is not coherent to argue that the Convention places unacceptable constraints on national decision-making, while EU law and the Charter do not. Although government policy on human rights is a closely guarded secret, how about we force it into the light? Let’s rein in the Charter, keep the Convention and talk about tweaking the Human Rights Act."

Previous posts in this series:

20th February - Brexit ~ referendum ~ a few points - including link to the deal secured by the Prime Minister

UK and the EU (1) - History and Background

UK and the EU (2) - The EU Treaties - key points

UK and the EU (3) - The Parliament, the Commission and the Court

UK and the EU (4) - Freedom of movement of persons

UK and the EU (5) - Referendum - People need facts not slogans (Lord King)

UK and the EU (6) -Will Brexit be a simple process?

Other reading:

Rights derived from EU law - UK Constitutional Law blog - K. Boyle and L. Cochrane, ‘Rights Derived from EU law: Informing the Referendum Process’, U.K. Const. L. Blog (13th Apr 2016) (available at

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