We are at a momentous point in history in terms of how we are governed and what kind of constitutional arrangements we live under. The forthcoming referendum on EU membership carries with it many implications, some of which will impact on the rights and type of citizenship we enjoy in the UK. These changes, together with other ongoing constitutional processes, could possibly lead to the erosion of rights protection and could further fragment UK unity.
Under section 7 of the Referendum Act 2015, the government has a duty to publish information relating to rights and obligations arising from the UK’s membership of the EU at least 10 weeks before the referendum date.
At the moment, UK citizens are also EU citizens as a result of the country’s membership of the EU. The EU rights framework is complex: There are citizenship rights, rights derived from EU law and additional human rights contained in the EU Charter of Fundamental Rights.
Citizenship rights include rights such as free movement, ie that as citizens of the EU we are able to move freely to work and reside in other EU member states. If the UK votes to leave the EU a period of transition is triggered which requires states to negotiate exit within two years.
We do not know to what degree UK citizens will be able to continue to move, work and reside in other parts of Europe – or to what extent EU citizens will be able to take up reciprocal rights in the UK.
Further to these citizenship rights, there are additional rights derived from other sources of EU law. For example, the EU Working Time Directive ensures entitlement to paid leave and restricts the maximum hours employees can work each week.
If the UK were to negotiate an exit from the EU it is most likely much of the EU law already in force would continue to apply in the UK until such time as Parliament intervened to change it.
Finally, in addition to citizenship rights and rights derived from the EU legal order there are rights protected under separate European human rights instruments.
The EU Charter of Fundamental Rights forms part of EU law and protects a wide array of human rights including socio-economic rights relating to education, health and employment. Leaving the EU system means the EU Charter would no longer apply in the UK – and access to its rights and remedies would be lost.
The UK is also a member of the Council of Europe – which is not the same thing as the EU – and Council of Europe membership will not be determined by the referendum (Russia, for example, is a member of the Council of Europe, and not the EU). The European Convention of Human Rights (ECHR) is a Council of Europe human rights instrument that applies in the UK under the Human Rights Act 1998.
At the moment there is the potential that the UK could exit the EU and repeal the Human Rights Act 1998 (as promised by the UK Government). This means potentially changing our relationship with two separate European systems that both separately protect human rights. What kind of system might replace the European ones, if at all, has not been explained by the UK Government.
This has implications for the unity of the UK. Some of the devolved regions are actually on a path to improving human rights protections. And in Scotland, Wales and Northern Ireland the devolved systems already include more robust remedies for human rights protection than in England. Scotland may even hold a second independence referendum. Without looking at these processes holistically we could end up in a position where there is further fragmentation in the UK constitution and different kind of rights available depending on where you live.
Research indicates that constitutional processes should be preceded by informed, deliberative, inclusive, participative, democratic and fair processes. In essence, the legitimacy of the EU referendum’s outcome will be engendered by a fair process in the lead up to the vote. To ensure genuine deliberation citizens must be kept informed of the implications of change and what alternative systems might be introduced – particularly if it may lead to the erosion of rights or further fragment UK unity.
Dr Katie Boyle is a Senior Lecturer in Law at the University of Roehampton specialising in constitutional transitions and economic, social and cultural rights. Dr Boyle is leading a project funded by the Economic and Research Council on ‘Human Rights in Transition: Impact for the UK in a Changing Europe’