Tobias Lock
LERU Brexit Seminar
What consequences will Brexit have for rights in the European Union? While there has been some discussion on the consequences of Brexit for rights protection in the UK, the potential impact of the UK’s withdrawal for rights protection in the rest of the EU has hardly been touched upon. One can identify three areas in which Brexit may have an impact on the future rights development in the EU and its Member States: first, the lack of input from UK courts via preliminary rulings; second, a potential overall weakening of the rights protection in Europe as a whole, should the UK also choose to leave the ECHR; and third, the removal of the UK’s ability to stand in the way developments at the EU level, in particular with respect to social rights.
Background Assumptions
It is axiomatic that withdrawal from the EU results in the extinction of the withdrawing Member State’s (future) obligations under the EU treaties.[1] As a consequence, from Brexit day onwards, the UK will no longer be bound by the EU Charter of Fundamental Rights; the right to equal pay laid down in Article 157 TFEU; and EU secondary law providing in particular for social and equality rights. The latter include the EU’s anti-discrimination Directives[2] as well as numerous Directives on workers’ rights.[3] Coupled with this, UK courts will – in all likelihood – lose their right to request preliminary rulings from the European Court of Justice on questions relating to the interpretation of these rights.
Furthermore, EU membership will no longer stand in the way of a UK withdrawal from the European Convention on Human Rights (ECHR). There are good reasons to suggest that being signed up to the ECHR and compliance with it is a prerequisite for EU membership as it is a confirmation of a prospective Member State’s adherence to the Union’s values laid down in Article 2 TEU.[4] And even if one doubts there to be a legal duty to be a party to the ECHR, there is certainly a political obligation to that effect. After all, no country has ever been admitted to the EU without being a party to the ECHR. The European Commission’s practice when assessing compliance with the Union’s Article 2 values shows that adherence to ECtHR judgements plays a significant role. The following attempts to address three potential consequences of Brexit for the protection of rights in the EU.
UK Input in the Interpretation and Development of Rights by the ECJ
The jurisprudence of the ECJ is instrumental in the development of rights at the European level. It helps to define their content and their limits. Most rights cases reach the ECJ as requests for preliminary rulings under Article 267 TFEU. Hence the development of the ECJ’s rights jurisprudence relies heavily on the cooperation of domestic courts. Apart from a willingness to engage with the preliminary ruling mechanism – which in the case of UK courts has been below average – the ECJ also needs good quality references (ie those that are (1) relevant for the development of the case law and (2) that pose clear questions in that regard). Moreover, after Brexit UK lawyers will no longer be able to represent clients in direct actions as admission to the bar of one of the Member States is a precondition for the right of audience in the ECJ.[5]
One can identify two areas of rights jurisprudence where references from UK courts can be considered to have left a particular mark: anti-discrimination law and procedural rights. The reason for this would appear to be that these are areas in which UK courts – and counsel pleading in front of them – are particularly well-versed. Anti-discrimination law was first introduced into the law of the UK in 1965 with the Race Relations Act. This was then followed by a number of other anti-discrimination acts, such as the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Race Relations Act 1976.
By contrast, anti-discrimination law – apart from equal pay and sex discrimination – appeared in EU law only in 2000.[6] Some domestic legal orders of the Member States – notably Germany – only started to introduce anti-discrimination law because of these European developments. Hence UK courts were – and probably still are – somewhat ahead when it comes to this technically difficult area of the law, which may explain why some ground-breaking cases in this area originated there. Famous examples include a string of sex discrimination cases now mainly known for their contribution to developing the doctrine of direct effect of directives. These are inter alia the cases of Marshall and Foster.
Furthermore, there were a number of cases – partly successful, partly not – pushing the boundaries of anti-discrimination law as it existed at the time. P v S is an example, where a reference from an English court induced the ECJ to extend the protection against sex discrimination to discrimination against a transsexual person for a reason related to their gender reassignment. In a similar vein, the ECJ introduced the concept of discrimination by association in the case of Coleman v Attridge Law, which meant that the parent of a disabled child was able to claim disability discrimination on the part of her employer where the employer treated her less favourably than other employees because of her child’s disability.
The second area of rights protection in which UK lawyers can claim special expertise are procedural rights, which is due to the traditionally stronger protection that the common law offers in this regard. An example of a challenge mounted by UK lawyers on behalf of a UK company that led to important improvements in the procedural rights of companies framed by the European Commission is AM&S v Commission. Here the question arose in how far the company’s lawyers were able to rely on legal professional privilege in competition proceedings before the Commission. Legal professional privilege is a fundamental common law principle under English law, but in this pure form was not recognised in EU law. The question was therefore whether AM&S had to disclose potentially compromising communications with its lawyers to the European Commission. The ECJ decided to strengthen the company’s procedural rights by recognising a principle akin to legal professional privilege under EU law.
These examples suggest that the input of UK legal expertise – be it through the UK courts or through UK lawyers appearing in front of the ECJ – has had an impact on the development of rights in certain areas where the law of the UK can be considered particularly developed. It is in the nature of ECJ decisions that the effects of these rulings are not confined to the case at hand, but have consequences in similar cases in all Member States. Therefore the input of UK lawyers has helped to develop rights standards in these areas throughout the EU. The consequence of Brexit will (naturally) be that this type of influence will become much less pronounced. Of course this does not mean that EU law cannot develop independently, but it would appear fair to suggest that developments in these particular areas will be slower without the potential input from an experienced and big legal order capable of producing opportunities for the ECJ to hone its own approach.
Damage to the European Human Rights System in Case of Withdrawal from the ECHR
The relationship between the ECHR, and in particular the European Court of Human Rights (ECtHR), and the UK government can fairly be described as being as dysfunctional as that between the UK and the EU. Human rights have a bad reputation in some political quarters of the UK and the Conservative party has promised to reform the UK’s human rights laws,[7] which currently mirror the UK’s ECHR obligations.[8] Human rights reform in the UK would take the shape of a reduction in protections, in particular as far as the extraterritorial application of human rights law, the right to family life for serious criminals, and terrorists who are being expelled from the country are concerned. If such reforms came to fruition, they would result in a violation of ECHR standards, resulting in successful challenges in the ECtHR. If there were a series of such clashes, then it is fair to assume that calls to withdraw from the ECHR would become widespread.[9] As explained above, once the UK has ceased to be an EU member, a potential withdrawal from the ECHR would meet fewer legal and political hurdles.[10]
The consequences of such a withdrawal would not be confined to the UK, however. It would lead to a weakening of the Council of Europe’s human rights system as a whole if a highly compliant party that is also a permanent member of the UN Security Council were to leave. There is evidence that the UK’s failure to comply with the ECtHR’s Hirst judgement on prisoners’ voting rights has been used by other parties to the Convention to justify non-compliance with their human rights obligations. For instance, a senior Ukrainian official was quoted as justifying Ukraine’s non-implementation of ECtHR judgements by pointing to the UK and stating that ‘Great Britain would very much like to leave the European Convention on Human Rights.’[11] If the UK took the step to fully withdraw from the Convention, one can imagine that there would be other countries to follow. In the words of the CoE’s Commissioner for Human Rights Nils Muižnieks:
No surprise, then, that the current debate in the UK has broader European ramifications. Every step of this debate and its outcome is closely scrutinised by other European states, in particular those with a much less flattering performance in protecting human rights. Many are in fact eager to exploit any backsliding in Westminster’s commitment to the Convention system to justify measures reducing their own citizens’ and residents’ ability to obtain justice through the Convention system.[12]
If this materialised, withdrawal from the ECHR would result in a regression of human rights standards in many parts of Europe.
Removal of UK Influence Might Pave the Way for a Progressive Rights Agenda
The final point to be addressed here is that Brexit might have positive consequences, if the EU wanted to pursue a more progressive rights agenda. This would be so particularly in the area of social rights, to which there is certain hostility in the UK. That hostility is evidenced in the UK’s initial opt-out from the EU social chapter[13] and in Protocol No 30 to the Lisbon Treaty, which (allegedly) gives the UK an opt-out of Title IV (solidarity) of the EU Charter of Fundamental Rights. This scepticism is mirrored in the voting pattern of the UK in the Council and of UK MEPs in the European Parliament. As has been noted by Hix and others, ‘British MEPs from the three main delegations (Conservatives, Labour and UKIP) have traditionally supported a more flexible labour market, being of the opinion that this is needed in order to strengthen the competitiveness of the European enterprises. They have also voted against the introduction of minimum wages across the EU’.
Equally, together with Germany, the UK is the country with the most abstentions and votes against employment and social affairs measures in the EU Council. Admittedly, both the UK and Germany only abstained or voted against proposals (between 2009 and 2017) on five occasions, when there were a total of thirty measures adopted.[14] Nonetheless, the vast majority of Member States opposed none of the proposed measures. And as the data available appears to only reveal the voting pattern of successfully adopted measures, there is no clarity as to the UK’s voting behaviour on legislative proposals that fail in the Council.[15] Judging from the voting patterns both in the European Parliament and in the Council, it can be assumed that the departure of the UK from the EU will make the adoption of social rights legislation easier at the EU level.
Conclusion
The withdrawal of the UK from the EU results in a somewhat mixed picture when considering its implications for the EU as a whole. On the one side, there will be downsides like fewer well-argued preliminary reference requests that might incentivise the Court of Justice to push out the boundaries of human rights law in the EU legal order. In addition, if the UK went further down the route of withdrawing from pan-European post-war organisations, it could do damage to human rights protection in countries elsewhere. At the same time, the UK has traditionally been a reluctant supporter of social rights in the EU and its departure may change the power-dynamics in the Council and the European Parliament to pave the way for more social legislation at EU level.
[1] This follows from Article 50 (3) TEU
[2] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16
[3] See Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time [2003] OJ L299/9; Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies [1998] OJ L225/16; Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding [1992] OJ L 348/1
[4] See Article 49 TEU
[5] Article 19 of the Statute of the Court of Justice
[6] With the two anti-discrimination directives mentioned in fn. 3. The transposition period ended in 2003, but could be extended to 2006
[7] See Tory party manifestos for the general elections in 2015 and 2017. The 2017 manifesto kicks the can in the long grass in this regard (until ‘the process of leaving the European Union concludes’)
[8] With the exception of Article 13 ECHR
[9] It should be noted that the 2017 Tory party manifesto only promises to stay in the ECHR ‘for this Parliament’
[10] Withdrawal is possible under Article 58 ECHR by giving six months’ notice
[11] See Philip Leach and Alice Donald, ‘Russia Defies Strasbourg: Is Contagion Spreading?’. Further examples can be found in Tobias Lock, Human Rights Reform and the UK’s International Human Rights Obligations, British Academy Briefing
[12] Nils Muižnieks, ‘Reforms to UK Human Rights Laws Must Not Weaken Protection’ Huffington Post. He issued similar warnings in August 2016 and pointed explicitly to the non-implementation of the prisoner voting judgements by the UK
[13] The UK signed up to it in 1997
[14] According to the statistics available on votewatch.eu
[15] See the 2008 Commission proposal on ‘health and safety at work: workers who are pregnant, have recently given birth or are breastfeeding’ COM (2008) 0637, which was to amend Council Directive 92/85
Tobias Lock
University of Edinburgh
Dr Tobias Lock is Senior Lecturer in European Union Law and Co-Director of the Edinburgh Europa Institute at the University of Edinburgh. His research focuses on the EU’s multilevel relations with other legal orders, including the European Convention on Human Rights.
Shortlink: edin.ac/2C8CSY7 | Republication guidance
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