What next after the UK vote to leave the EU?

Professor Steve Peers

Many of the consequences of the UK’s vote to leave the EU will not be clear for some time. However, here’s my initial take on some of the key issues, in their broader political context.

1 Is the referendum vote binding?

Legally, no. But it is politically unthinkable that it will be ignored, in particular by MPs whose constituency voted to leave.

2 Could the UK simply renegotiate its EU membership again, and then hold a referendum on those results, rather than actually Leave the EU?

This is technically possible, and some on the Leave side hinted at this as a possibility. However, a lot of Leave voters might resent this idea, as they probably thought that they were actually voting to leave the EU – although they would of course have the chance to confirm that position in the second referendum.

This option would also require the remaining EU to be willing to offer such a re-renegotiation, and it might also be difficult to put into effect, since it would probably need a Treaty amendment (limiting the free movement of people, for instance) ratified by all Member States.

3 What is the process to leave the EU?

The official process is set out in Article 50 of the Treaty of European Union. I’ve blogged about that in detail here, and there’s a shorter version of my analysis here.

It would also be possible to leave the EU by amending the Treaties, although it is hard to see why that would be an attractive option to the UK, since it would require long ratification periods and unanimous voting on the EU side.

Some on the Leave side have hinted that they think there is some alternative mystery process to leave, although they have not defined why they think this or what that would entail. The likelihood is therefore that Article 50 will be used. Any alternative approach would likely face a successful legal challenge.

4 What does Article 50 say?

The UK notifies a withdrawal decision to the EU. That triggers a two-year period at the end of which the UK is no longer an EU member. That time can be shorter (if an EU/UK withdrawal treaty provides for this). It could also be longer if all Member States and the UK agree.

It is up to the UK when exactly to notify the withdrawal decision. It could delay making the notification, although a very long delay could possibly increase economic uncertainty and fuel distrust by Leave voters.

The negotiation concerns a withdrawal agreement. It is not clear if this is a technical agreement limited to the fiddly details of the UK leaving, or whether it would also govern the EU-UK future relationship. The point is relevant since otherwise the EU-UK relationship would have to be negotiated separately, and different rules would apply. While the withdrawal agreement is subject to majority voting among the remaining EU Member States, it is more likely that a separate deal would be subject to unanimous voting and national ratification.

It is also not clear if a notification to leave the EU can be withdrawn after it is made. That would be relevant if the plan were to negotiate the future UK/EU relationship, then ask the public in another referendum whether they wanted to leave on those terms or not.

5 Can the UK amend laws relating to EU membership already?

Can the UK change its law to contradict EU law – repealing the European Communities Act, restricting the entry of EU citizens – while still an EU member? As a matter of domestic law, the answer is yes: the UK courts will accept and apply any Act of Parliament as the law of the land, regardless of whether it contradicts EU or other international law.

However, this approach would indeed contradict EU and international law, as Professor Kenneth Armstrong has pointed out here. The question is whether that might prompt a retaliatory response from the rest of the EU as regards EU business, or complicate the withdrawal negotiations.

6 What will be the future relationship between the EU and the UK?

What is the best model for a future UK/EU relationship? The Vote Leave side seemed to prefer a new treaty not based on the model of previous treaties with non-EU countries. This would of course require the consent of the EU, and would likely take longer to negotiate than using an existing model.

Looking at existing models, the EU/Turkey arrangement is unsuitable since it is a customs union, meaning that the UK cannot negotiate its own trade deals with third countries. The EU/Swiss deal does not give full access to EU services, including financial markets, although this is a key UK export. Equally the EU’s various free trade agreements do not give such access either.

The most attractive option is, for at least a temporary period, for the UK to continue with the ‘Norway option’, which means continuing to remain part of the European Economic Area (EEA), the association agreement between the EU, Norway, Iceland and Liechtenstein.

There are a number of reasons to prefer this approach. It would provide legal security for exports of most goods and all services exports from the UK to the EU (and vice versa). A deal on this could be done quickly, thus reducing the damaging effects of uncertainty about the UK and EU economies, since the UK is already a part of the EEA, and so arguably does not need to go through any process to join it. (There could be a legal dispute on this point, though, since there is no express rule in the EEA treaty on what happens if the UK leaves the EEA: see the comments on this blog post). The EEA option is clearly the simplest way to leave the EU sooner, rather than later – which should appeal to opponents of the EU.

EEA membership would leave the UK free to sign its own trade deals with other countries. The UK would not be bound by the EU’s fisheries or agriculture or VAT policy, so could change its law in those areas too. The EEA doesn’t cover foreign policy or criminal law or policing issues, although the UK could seek to negotiate a separate deal with the EU on those issues (on this aspect of Brexit, see my discussion here).

The EEA does cover most EU laws on workers’ rights and the environment – so signing up to the EEA would guarantee the continued application of those laws in the UK. That's a big advantage for those who support such laws.

There are limitations to the EEA option, although they could be addressed. First of all, staying in the EEA does entail continued free movement of people, and that is one of the key reasons for the Leave vote. However, unlike between EU members there is a special safeguard. A Member State can disapply part of the EEA ‘If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising.’

This decision is unilateral, although an arbitrator can rule on the ‘scope and duration’ of the safeguard. Also, the EEA specifies remaining EU could retaliate against any such UK decision (limiting UK car exports or financial services exports), although again an arbitrator can rule on the scope of this retaliation.

In short, the UK could invoke a safeguard clause to limit the free movement of persons under the EEA – but it would not be cost-free. Having said that the EEA option would probably only be politically viable in the UK if the government announced its immediate intention to trigger immediately the safeguard clause as regards free movement of people. 

Another limitation of the EEA is that the UK would no longer have a vote on EU laws as the EU adopted them. Those laws would in principle still have to be applied in the UK despite the absence of a vote. Two points on this though. First of all, the UK would not be subject to as many EU laws as is now – since agriculture, fisheries, tax and non-EU trade are not within the scope of the EEA. Secondly, for any EU law to apply to the non-EU members of the EEA it must be approved by those non-EU members. So the UK could veto the application of that new EU law to the UK at this stage – although again, the EEA provides for possible retaliation by the EU if it does so.

Finally, the EEA provides expressly for the non-EU members to pay towards poorer EU Member States. Some claimed during the campaign that Norway provides this money wholly voluntarily, but that’s false. Article 116 of the EEA Treaty says as follows:

A Financial Mechanism shall be established by the EFTA States to contribute, in the context of the EEA and in addition to the efforts already deployed by the Community in this regard, to the objectives laid down in Article 115.

The details of the sums involved are set out in separate Protocols. The UK would have to negotiate one of these with the EU.

Overall, then, there are pros and cons to the Norway option. In my view, the pros hugely outweigh the cons – considering that the EEA could be used as a purely interim measure while negotiating a longer-term arrangement, which could take the form of amendments to the EEA itself.

7 Do EU and UK migrants have 'acquired rights'?  

In human terms, the biggest issue for Brexit is what happens to EU citizens in the UK, and to UK citizens in the EU. That issue is discussed in the linked blog posts, but there’s also the question of whether the legal position of all such persons is protected by the principle of ‘acquired rights’, as referred to in the Vienna Convention on the Law of Treaties. The Leave side argued that it was, but others (for instance, Professor Sionadh Douglas-Scott) have argued that it was not.

I won’t get into that abstract legal debate about the meaning of the Vienna Convention, because in my view it’s necessary to have complete legal certainty on this issue. I don’t believe we can simply leave it to an international legal principle, which may not always be enforceable in national courts, to protect such rights. There’s also a question of the scope of the rule: what about rights in the process of acquisition, like future permanent residence, or a teenager’s future status as regards equal treatment in tuition fees?

The better view is that the EU/UK withdrawal treaty should contain a specific clause on this, which is legally binding in itself, defines the exact scope of the rule, can be supplemented by further measures, and must be fully applied in national law. It could read something like this:

1.       Any citizens of the UK residing in the EU as of [Brexit Day], and any EU citizens residing in the UK as of that date, shall retain any rights which they acquired pursuant to EU free movement law before that date. They shall also continue to acquire rights which were in the process of acquisition as of that date.

2.       The parties shall give full effect to this principle in EU or national law, as the case may be.

3.       The EU/UK Joint Committee may adopt further measures to implement this rule.

It should be noted that his issue would be irrelevant if the UK retains its participation in the EEA, as discussed above.

Some argue that people cannot be ‘deprived’ of their EU citizenship by a Member State leaving the EU. In my view, that’s untenable. The Treaties define citizens of the Union as being nationals of Member States. If a country ceases to be a Member State of the European Union, then obviously its nationals therefore cease to be citizens of the Union.

8 Will Scotland now leave the UK and join the EU?

The question of whether Scotland might now leave the UK, and seek to retain membership of the EU, is a huge political question, which also raises domestic legal issues. I won’t comment on the national legal issues. On the EU law issues, see my earlier analysis of the possible legal complications for an independent Scotland seeking to join the EU – although some of this analysis is specifically based on the assumption that the UK, along with Scotland, would be an EU Member State.

Furthermore, the political context is possibly now different than it was in 2014, at the time of the Scottish independence referendum. It may be that the remaining EU could have more political will to welcome Scotland as an EU member than it might have had in 2014, in the interests of stemming any perception that the EU is falling apart. Indeed, it might be more willing to waive the usual criteria of single currency membership and Schengen participation. The Spanish government in office in 2014, which was a principal obstacle to Scottish EU membership, might not be in office any more: we should know after this weekend. Possibly some Member States poured cold water on Scottish EU membership in 2014 out of loyalty to the UK – but now they have the opposite motivation. The political context of the issue would now be different: unlike in 2014, facilitating Scottish EU membership would not be now seen as creating a kind of incentive for a Member State to split up, given that the UK is leaving the EU anyway.

Coming back to the EEA, it may be an attractive option for an independent Scotland – either as an interim step toward joining the EU or as a long-term arrangement. Scotland would not be covered by EU fisheries policy and would clearly not be obliged to join Schengen or the single currency. (Norway and Iceland are part of Schengen, but by means of a separate treaty from the EEA). This option may also be more palatable for those Member States worried about their own separatist movements, since it falls short of EU membership.

9 What happens to the remaining EU?

The EU is obviously a key player in what happens next, and not only in the context of negotiations with the EU. Some on the Leave side have hoped for the break-up of the EU following Brexit – although it’s hard to see how turmoil in, or the collapse of, its biggest trading partner is in the UK’s interests. Certainly there are some politicians in EU countries calling for withdrawal referendums of their own – although none of them are in government, and it would remain to be seen what the vote would be if those referenda were held. We'll obviously have to wait and see what happens.

The countervailing possibility is that the remaining EU countries make renewed efforts to win back public support by changes to some unpopular EU policies and practices. I’ll write more soon about what such changes might be. One point though: although the UK’s position on Brexit negotiations won’t be confirmed until after the Conservative party leadership election, and then possibly not until after a general election, the EU may well formulate its negotiation position in the meantime.

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Are you an undecided or uncertain voter? Here’s the case to Remain in the EU

Professor Steve Peers

It’s nearly the end of this long referendum campaign. If you’re still an undecided voter, or wavering about your choice, or if you know someone who is either of those things, I’d like to set out the arguments why I believe you should vote to stay in the European Union.  

I’ll start out by setting out the case for a Remain vote, then discuss the counter-arguments made by the Leave side.

The case to Remain

In my view, there are a series of reasons to stay in the EU: economic benefits, security, workers’ rights and the environment. I’ll take each of these in turn.

Economic issues

EU membership gives the UK access to the world’s biggest market, plus 50 more countries which the UK has trade deals with via the EU. It might be possible to renegotiate that access from scratch if we left the EU – but it might not. Why take the risk that it isn’t?

The only way to guarantee market access to the EU and 50 other countries is a vote to Remain. So it’s no wonder that the large majority of British businesses support the UK’s EU membership, and are worried about their prospects if we vote to Leave.

Loss of that guaranteed market access wouldn’t just affect those whose jobs are linked to trade with the EU. It would also affect the broader economy, due to the impact on investment and because the government would have less to spend on public services in a smaller economy.

Many people are suspicious of economic forecasts. But the risks of a Brexit vote have already manifested themselves in the last few weeks. The value of the pound and stock markets (which include pension assets) dropped when a Leave vote seemed more likely, and increased again when the odds of a Remain vote went back up. There are reports of capital flight from the country. There’s surely a reason that the Bank of England has drawn up crisis plans in the event of a Leave vote – but no such plans in the event of a Remain vote.

Let’s look further at those economic forecasts. It’s true that many forecasters failed to predict the 2008 crash. But one who did, Nouriel Roubini, has also warned of the economic effects of a Leave vote. And the forecasting record of the few economists on the Leave side is not great either: Patrick Minford predicted that the UK would lose millions of jobs when the minimum wage was first introduced.

In fact, it’s striking to note that some pro-Brexit economists also predict less economic growth for some time following Brexit, although they have no reason to lie about that – just the reverse. Andrew Lilico expects less economic growth until 2030:

And Patrick Minford argues that Brexit can only work if the UK mostly eliminates manufacturing – hardly a pleasant prospect for British workers in manufacturing jobs, and their families and communities.

Security

EU membership comes with a host of laws regarding police and criminal law cooperation. As I discuss here, those laws have helped the UK get hold of far more fugitives for trial in the UK, and also remove more criminals for trial abroad. The amount of data exchanged between police services on alleged terrorists or other criminals has increased too. Moreover, the UK’s justice system is not threatened by EU law in this field: we have an opt-out which the government has frequently used.

Countries outside the EU have access to only a small fraction of these EU measures, and there would be legal complications if the UK sought to renegotiate access to police data exchange after Brexit. There’s clear proof of this – even a non-EU country like the USA has faced repeated legal and political challenges trying to obtain such access in practice.

Again, the only way to guarantee being part of these laws is a vote to Remain – while a vote to Leave would remove the UK from much of this cooperation between police and prosecutors.

Workers

Despite some attempts to deny it, it’s clear (as I discuss in detail here) that EU laws have increased the level of protection for workers’ rights – including equal treatment of women in the workplace – above the level it would otherwise be in the UK. 60% of EU cases involving equal treatment of women in the UK, and 62% of other EU cases involving workers’ rights in the UK, have led to increased protection.

These rulings have improved rights as regards (among other things) pregnant workers and maternity leave, equal pay for work of equal value, paid holidays for more workers, and the protection of occupational pensions when an employer goes broke. It’s no wonder that the large majority of trade unions support the UK’s EU membership.

Many senior figures on the Leave side have explicitly admitted they want to scrap these protections. Indeed, Nigel Farage says that women who have had children are ‘worth less’ to their employers. So, again, the only way to guarantee these rights is a vote to Remain. A Leave vote would risk the future of these employment and equality law protections, by putting their fate in the hands of people who are implacably opposed to them.

Environment

There is a raft of EU laws protecting the environment: from air pollution, to clean beaches, to nature protection, among many more. It’s no wonder that the Green party and environmental NGOs support the UK’s EU membership.

On the other side, the pro-Brexit environment minister has admitted that there are many EU environmental laws he would scrap in the event of a Brexit. The businesses backing the Leave side have drawn up a hit list of dozens of environmental laws they want to rip up.

So, again, the only way to guarantee these rights is a vote to Remain. As with workers’ rights, a Leave vote would hand over environmental protection in this country to those who have admitted their intention to reduce protection.

What about the case to Leave?

What are the risks to Remain?

The Leave side have argued that there are a number of risks to remaining in the EU. As I point out in detail here, these arguments are unfounded. The UK has a veto over tax laws, defence, foreign policy, future enlargement of the EU, the basics of the EU budget (including the EU rebate), trade deals with non-EU countries (including the controversial planned ‘TTIP’ deal with the USA), and transfers of powers to the EU.  Turkey is not about to join the EU: it has agreed only one out of 35 negotiating chapters in 11 years of negotiations. The UK has an opt out from the single currency, bail outs of Eurozone states, joining Schengen and EU asylum and criminal law.

You may not trust British politicians to keep these safeguards. But in the large majority of cases, it’s not up to them to decide on that – it’s up to us, the voters. British law already says that in the case of any transfer of powers to the EU, including the creation of an EU army or joining Schengen or the single currency, another referendum would be needed to approve the decision, as well as our government and parliament voting in favour.

Economic

Is there an economic case to leave the EU? It’s true that the EU has common rules on trade with non-EU countries, so the UK would in theory be able to sign separate trade deals with those countries where the EU has not done a deal yet.

The problem is that this theory would be hard to put into practice. As discussed in detail here, the UK would have to start from scratch negotiating trade deals with those non-EU countries which already have a trade deal with the UK, via the EU. (These include the majority of Commonwealth countries, as I discuss here). Some of these EU-wide trade deals are very advantageous to the UK – for instance our exports to Korea have hugely increased since the EU trade deal with that country.  The head of the World Trade Organisation has also warned that this would be a difficult task.

In the meantime, the UK would have to renegotiate access to its largest trading partner – the EU. It’s true that both sides would have an economic interest in such a deal. But nevertheless, trade deals take years to negotiate, either with the EU or non-EU countries. There are plenty of cases where a deal is never struck at all, despite the economic interests on both sides.

Moreover, the Leave side say they want a free trade deal with the EU, not continued participation in the EU’s single market. That doesn’t bode well for the UK’s trade with the EU after Brexit, because (as explained here) a single market gives better access to services markets – and the UK has a big net surplus in services exports.

When asked about economic issues, those on the Leave side have often said ‘I don’t know’ or ‘so what’. Some have expressed indifference to a negative impact a Leave vote might have on the economy, or said that an economic downturn is a ‘price worth paying’ for leaving the EU.

A good example of this attitude was Nigel Farage’s attitude in one of the debates to the pharmaceutical industry – a huge UK employer (see the graph) with big net exports to the rest of the EU. He was indifferent to what might happen to this industry if the UK left the EU, referring to the UK’s ‘domestic market’ and ‘alternative medicine’ instead.

While Boris Johnson has promised to apologise if leaving the EU causes a recession, that would be cold comfort to anyone losing their job. The Leave side has no coherent economic plan for what happens after a Leave vote and appear indifferent to the prospect of economic loss if we leave.  

On a related point, it’s true that the UK is indeed a net contributor to the EU budget. But the Leave side has exaggerated the amount the UK pays. As discussed here, the British rebate money is never sent to the EU, and the UK has control over the EU money that it sent back to the UK. In all, the net contribution is 1% of public spending, or 12p per day for the average taxpayer:

That amount of money will not save the NHS or end austerity. Anyway, as the independent Institute of Fiscal Studies has pointed out, even a small drop in economic growth as a result of Brexit would have a much bigger impact for the UK government’s budget – and therefore taxpayers – than the UK budget contribution to the EU.

Sovereignty

The Leave side have argued that the UK needs to leave the EU to be a ‘sovereign’ country. But as pointed out here, decisions on new EU laws aren’t made by EU Commissioners, but by elected ministers from each EU country and elected Members of the European Parliament. Moreover, the UK has voted in favour of 95% of EU legislation:

As for the proportion of UK laws which come from the EU, the House of Commons has estimated that it’s only 13%. That doesn’t include EU regulations, but as pointed out here, most EU regulations aren’t laws in the ordinary sense, but administrative decisions. So if you counted also all the administrative decisions made in the UK as well (like every approval of longer pub opening hours, or home extension), the proportion of British laws coming from the EU would still be small.

Anyway, the key test for sovereignty is not the percentage of UK laws that come from the EU, but the percentage of UK laws that were imposed on the UK against our will by the EU. It’s ridiculous to say that UK laws which were already on the books, or which we agreed to change at the same time as other Member States, are an invasion of sovereignty.

Applying this test, since the UK voted for 95% of EU law, the percentage of UK law imposed against the UK’s will is only 5% of those 13% of national laws which come from the EU – or 0.65% of the statute book. Even if you believe the claims of some on the Leave side that 60% of UK laws come from the EU, the percentage of our laws that were imposed against our will by the EU would only be 3%. So the sovereignty issue has simply been hugely exaggerated by the Leave side.

Immigration

The Leave side have argued against the level of immigration to the UK. But as I have pointed out in detail here, the majority of those coming to the UK are non-EU citizens, where the UK controls the numbers. That’s demonstrated by this graph:

EU law does govern the number of EU citizens who come to the UK. But they can’t stay unless they have a job or are self-sufficient. The UK can (and does) deny them social benefits until they have worked here for a time; and the UK’s renegotiation deal will allow us to deny them key in-work benefits as well. The UK can (and does) expel or refuse entry to EU citizens who pose a security risk or who have a criminal record too.

Non-EU citizens do try to enter the UK from the EU, but they would do that even after Brexit, since it wouldn’t alter the law in any way on this point. In fact, after Brexit the UK would no longer be part of the EU’s Dublin system for sending asylum-seekers back to other EU countries, so in some respects migration control would be harder, not easier.

There’s a clear trade-off between EU migration and the economic benefits of EU membership. As the Leave side points out, countries like Norway and Switzerland are wealthy outside the EU. But they’ve also signed up to free movement of people with the EU, and have a greater share of migrants in their population than the UK does.

Is there a left-wing case to leave the EU?

Some on the left-wing side of British politics believe there is a left-wing case to leave the EU (a so-called ‘Lexit’). There’s an obvious flaw in their logic: there’s no ‘Lexit’ box on the ballot paper. A Brexit vote tomorrow would not deliver a left-wing government to office. Rather, as Owen Jones, Paul Mason and George Monbiot have pointed out, it would shift power to those on the right wing of the Conservative party who favour austerity and loathe the NHS.

Although, as noted above, those same people have announced their intention to scrap environmental and employment laws after Brexit, Lexit supporters plan to rely on the kindness of Tories to protect those rights. Never in the course of human history have so many left-wingers had so much faith in their traditional opponents – with so little reason to do so. If you want a vision of the future after Brexit, imagine Iain Duncan-Smith fist-punching – forever.

Conclusion

Of course, the UK has many problems. But the question is, which of those problems would actually be solved by leaving the EU? Our EU contribution accounts for 1% of public spending, and EU laws which we didn’t vote for make up a tiny proportion of our statute book.

Rather, it was our government that decided to implement austerity cuts. Our government decided to reorganise the NHS. Our government brought in a bedroom tax, and planned cuts to disability benefits, while cutting income tax for high earners. Our government nearly tripled university tuition fees (in England). Our government reduced trade union rights, hiked industrial tribunal fees, and encouraged zero-hour contracts – and sets the level of the minimum wage.

Our government sets rates of income tax, national insurance contributions, inheritance tax and company tax, and controls what local governments charge as council tax. EU law sets minimum rates of VAT and excise tax, but the government voted for those laws (it has a veto on EU tax law), and anyway our government has set the rate of those taxes well above the EU minimum.

Our government decides on how much to spend on pensions, on other benefits, on the NHS, on schools, on roads, on housing, and on foreign aid – on everything except the 1% of the government spending that goes to the EU. Our national debt stems from our government’s decisions on how much to spend, compared to how much to tax.

Simply put, our government controls nearly every decision that affects the UK, including the majority of migration to the UK. There’s no point voting to Leave based on any of those decisions which are within our country’s control.

The case to Remain in the EU is that it enhances our country’s strengths. Membership gives us a guarantee of trade with our largest market, and 50 other countries besides. It guarantees continued cooperation on policing and criminal law, and continued protection of workers’ and environmental rights.

Outside the EU, there are no guarantees – only risks. The economic risks that trade and investment are reduced. The security risks that we have less cooperation with police and prosecutors in the EU. The social and environmental risks of fewer protections for workers and the environment.

And this would all be for an illusory gain of sovereignty: when our EU contribution accounts for 1% of public spending; when we vote for 95% of EU laws; when at most 3% of our laws were imposed upon the UK against its will by the EU. In effect, the Leave side want to cut down a forest because they don’t like one tree.

The best way to ensure economic growth, while retaining other benefits of EU membership, with only marginal impact on our sovereignty, is to vote to Remain in the EU. 

Photo credit: newlovetimes.com

EU Referendum Briefing 6: A Bonfire of Rights? EU Employment and Equality Law after Brexit

Professor Steve Peers

It’s been suggested that there would be a ‘bonfire of rights’ if the UK left the EU – in particular rights relating to employment and equality. As a response, some have suggested that the EU has nothing to do with employment and equality law in the UK – that all such rights are actually home-grown.

As I will demonstrate in detail in this blog post, it is undeniably the case that EU law has significantly raised the level of employment and equality rights in the UK – particularly as regards equality for women in the workplace.

My study of all the cases reaching the EU court concerning UK law on these issues shows that 60% of all the EU court cases about equal treatment of women in Britain resulted in a finding that UK law breached EU law – therefore raising the standards of protection for women in the workplace. 62% of the other cases on workers’ rights led to the same result.

As for what would happen in the event of Brexit, we cannot be absolutely certain – but a large number of the most prominent supporters of Brexit have admitted in detail their intention to lower those standards.  

I’ll first summarise the main points, and then set out the facts in detail.

Summary

The EU has not set uniform standards on every aspect of employment and workplace equality law – and it never will.  Its role, according to the Treaties, is to set minimum standards in certain areas of employment and equality law. So where the EU hasn’t acted at all – such as on zero hours contracts, trade union laws or minimum wages – Member States can do as they like. The blame (or credit) for the choices which the UK makes on those issues must go entirely to this country’s government.

On the other hand, where the EU has acted – such as on holiday pay and equality in the workplace – Member States can set higher standards, but not lower ones. The EU rules in effect set a floor below which Member States can’t go; but there is no corresponding ceiling.

It’s been argued during the referendum that because the UK has sometimes adopted laws on certain employment or equality issues before the EU did, the EU therefore added nothing. This argument profoundly misunderstands the law in this area. Just because the UK put the Equal Pay Act on the statute books before it was covered by EU laws on equal pay for men and women doesn’t mean that those EU laws had no added value. That’s because British laws in this area have often contained many exclusions or exceptions, and EU law has often removed them.

In this blog post, I prove that point by looking at every single ruling of the EU court concerning UK law on employment or equality issues. As I noted in the introduction in 60% of cases, regarding women’s equality at work, and 62% of other workers’ rights cases, UK law fell below EU standards.

In practical terms, this increased protection regarding (among other things): equal pay for work of equal value for women; protection at work during pregnancy and maternity leave; better protection of pensions when an employer goes broke; and extension of paid holidays to include more workers.

However, a significant number of the relevant laws have been targeted for removal by serious supporters of Brexit.

In conclusion, European Union law has significantly increased the level of protection in a number of areas of employment and equality law. Leaving the EU would not automatically mean that those protections are lost, but they would no longer be guaranteed – and many of the most senior figures supporting Brexit have expressed their intention to remove some of them.

Detailed analysis

The following analysis looks at (a) the main features of EU involvement in employment and equality law; and (b) the prospect of the rules stemming from EU law being repealed after Brexit.

Mainly the EU’s impact in this area has been in the form of laws that set minimum standards on some workers’ rights issues, and on discrimination against workers on some grounds. EU law also bans discrimination outside the workplace on grounds of sex or race. In a lot of these areas, the UK had its own laws beforehand. For instance, the Race Relations Act dates back to 1965. However, there have been some areas where UK law changed because of a new EU law which the UK implemented, or because of a ruling of the EU courts, or the UK courts interpreting EU law. A complete list and summary of all the relevant EU court cases is set out in the Annex. Some of the key cases are discussed further in the main part.

While some argue that the rights concerned anyway derive from Conventions (international treaties) agreed within the framework of the International Labour Organisation (ILO), ILO treaties are not enforceable in British law. The very fact that the EU court has ruled on UK breaches of EU employment and equality law proves that the existence of ILO treaties does not by itself guarantee employment or equality law protection in individual cases.

Employment law

The EU does not deal with every employment law issue. In fact, it can’t. The EU treaties rule out any EU laws on pay or trade union rights. So there are no EU laws on those issues, although in some cases the EU has an indirect impact on these topics.  There are also some areas where the EU could act if all Member States agreed, such as rights on the termination of employment. But it is hard to reach unanimous agreement on employment law issues, and so there are few laws in these areas either.

What topics does EU law address? First and foremost, there are a number of EU laws on health and safety. The most prominent of these is the law on working time, which guarantees a minimum amount of four weeks’ paid holiday. Although the UK had a law in force on this issue before the EU law, it did not guarantee paid holidays for all workers. The EU court case law has specified in particular that the UK has to ensure paid holidays for fixed-term workers (BECTU), and to include allowances (Williams) and commissions (Lock) in holiday pay.

Next, there are EU laws on major changes to workers’ employment contracts. In particular, there are EU laws on three issues: rights in the case of mass redundancies; rights when an employment contract is affected by the transfer of the employer; and rights when a business goes broke.

The mass redundancies law doesn’t ban or limit the grounds for redundancies, or provide for rules on redundancy payments – so the UK and other EU countries can regulate those issues however they want to. First and foremost, this law it sets out a waiting period before large numbers of redundancies can be made, once the employer has decided in principle to make a lot of its workers redundant. The employer must give a detailed explanation of its plans to the workers who are set to lose their jobs. During the waiting period, the workers’ representatives and the employer must hold discussions with a view to helping as many affected workers as possible, for instance by saving jobs or retraining. If the employer fails to do this then there must be some form of sanction.

The EU court has ruled that the UK had not applied this law properly when it said that employers only had to consult the workforce when there was a trade union recognised by the employer. This was a breach of the EU law because that law required workers to be consulted about mass redundancies whether there was a trade union representing the workforce or not, and whether the trade union was recognised by the employer or not. Also the UK had not provided enough of a sanction for employers who breached the law. While employers were in principle subject to a fine for breaking the law, they could deduct it from the redundancy payments which they had to pay to workers anyway.

If a business goes broke, EU legislation provides that a minimum amount of workers’ back pay which may be owing at the time of insolvency has to be guaranteed. This law also requires a basic protection of occupational pensions where businesses go broke. The key EU court case of Robins said that the UK was not doing enough to protect pensions in such cases. British law was changed as a result.

Another issue addressed by EU law is so-called ‘atypical work’. This refers to work which is different from the traditional full-time open-ended contract with one employer. In particular, there are different EU laws for three types of atypical work: part-time work, fixed-term work and agency workers. There are no EU laws on ‘zero-hour’ contracts or internships, however.

Basically these EU laws say that the atypical workers who are covered by them should be treated equally with regular employees as regards their pay and conditions. Also, employers should make it easier for part-time workers or agency workers to join the regular workforce, and for full-time workers to switch to part-time work if they wish.  For fixed-term workers, there must be limits on the number of times a contract can be renewed over and over, to protect against exploitation.

Finally, another issue addressed by EU laws is worker consultation and information. There is both a general law on worker consultation and information in large companies, and a specific set of rules of ‘European works councils’, which applies to multinational companies with over 1000 employees across the EU. These laws allow the employers and the workforce to reach alternative arrangements if they wish. There are no EU rules requiring small businesses to inform and consult their workers, except in the special case where the employee contracts are transferred.

Discrimination law

There are EU laws banning discrimination on six grounds: sex, race, age, disability, religion and sexual orientation. The laws on sex and race discrimination go beyond employment, and also ban sex or race discrimination in access to goods or services, like insurance. However, the laws on the other four grounds only extend to discrimination in employment.

These laws ban direct discrimination, ie discrimination purely based on someone’s age, race, sex, etc. However, they also ban indirect discrimination: unequal treatment for another reason, but which mostly affects people of a particular age, sex, etc. For instance, unequal treatment of part-time workers will affect both male and female workers, since there are some men working part-time. But it mostly affects women, since they make up the majority of part-time workers. So it would be an example of indirect sex discrimination, although since the adoption of an EU law devoted to the issue of part-time workers (see above in this chapter), the sex discrimination angle is no longer as relevant.

 

How do these laws affect the UK? As noted above, the UK usually had laws on these issues before the EU did. However, the EU laws have had an impact on some of the details that are important to large numbers of individual cases.

Looking at the case law of the EU court, there have been important rulings which improved UK standards in particular on:

equal pay for work of equal value;

prohibiting the dismissal of women earlier than men due to retirement age difference;

effective remedies (removing the cap on damages for sex discrimination);

dismissal due to pregnancy;

equal treatment after returning from maternity leave; and

dismissal of transsexuals.

Effect of Brexit

Leaving the EU has no automatic effect on employment law. But a number of Brexit supporters, including cabinet ministers like the employment minister, have specifically stated that they want to use the opportunity that Brexit would create in order to remove protections guaranteed by EU law.

In particular, in their own words, they aspire to scrap the laws on:  collective redundancies; atypical workers; working time (including paid holidays); driving time limits for the self-employed; rights for pregnant workers and women on maternity leave;  and worker consultation rights.

For his part, Nigel Farage has argued that women who have children are ‘worth less’ to an employer.

It should be noted that changes like these would not even have to go through as an Act of Parliament – Vote Leave supporters plan to fast-track the abolition of EU laws after Brexit.

Conclusion

As we have seen, EU law has had a demonstrable impact on UK employment and discrimination law. It is not the source of all UK law but it definitely provides protection which would not otherwise exist in certain areas, such as holiday pay and equality for women in the workplace. It is highly likely, based on the expressed intentions of senior supporters of Brexit, that there would be a ‘bonfire’ of some of these rights after Brexit.

Further reading:

Analyses of EU effect on UK employment law by:

Sean Jones, employment law QC

Martin Ford, employment law QC

EU employment law legislation

EU sex equality legislation

Other EU equality legislation

EU Court website

Barnard & Peers: chapter 20

Photo credit: jerseyeveningpost.com

Annex

EU court cases: UK employment and equality law

The following is a list of all EU court cases involving UK employment and equality law. I have grouped them by topic and indicated for each case what the subject matter was, and whether the UK law was in breach of EU law or not in each case.

Equality at work – 32 breach, 23 no breach: breach of EU law in 55% of cases

(Sex equality: 32 breach, 21 no breach: breach in 60% of cases)

Burton – no breach – sex discrimination – voluntary redundancy

Garland – breach – art 119 – after-work benefit

Jenkins – breach – art 119 – part-time work

Worringham – breach – art 119 – pension contributions

McCarthys – breach – art 119 – previous employee

Commission v UK – C-165/82 breach – sex discrimination - private household, small business

Commission v UK – C-61/81 breach – art 119 – job classification

Johnston – breach – sex discrimination – women on police force

Marshall – breach - sex discrimination – dismissal at retirement age

Roberts – no breach – pension age sex discrimination

Newstead – no breach – pension contributions

Drake – breach – social security directive

Clark – breach – social security directive

Barber – breach – art 119 and occupational pensions 

Foster – breach - sex discrimination – dismissal at retirement age

Johnson – no breach - social security directive

Jackson and Cresswell – no breach – income support and sex discrimination

Ex parte EOC – no breach - social security contributions

Smithson – no breach – social security and housing benefit

Neath – no breach - actuarial benefits and occupational pensions

Thomas – breach – social security and invalidity pension

Marshall II – breach – limits on compensation for sex discrimination

Coloroll – breach - occupational pensions

Enderby – breach – Art 119

Birds Eye – no breach - occupational pensions

Bramhill – no breach – social security

Johnson – no breach – social security

Smith v Avdel – breach - occupational pensions

Webb – pregnancy dismissal – breach

Gillespie – art 119 and maternity leave – no breach

Graham – social security – no breach

P v Cornwall CC – transsexual dismissal – breach

Richardson - social security – breach – prescription charges

Atkins - social security – bus concessions - no breach

Meyers – sex discrimination and family credit – breach

Sutton – social security and interest – no breach

Magorrian – art 119 – breach – time limits

Levez – sex discrimination – breach – remedies

Grant – sex discrimination – no breach re sexual orientation

Boyle – pregnancy – breach in part

Brown v Rentokil – pregnancy dismissal – breach

Sirdar – women in military – sex discrimination – no breach

Coote – sex discrimination – breach - remedies

Seymour-Smith – sex discrimination – no breach

Preston – sex discrimination – breach

Hepple – social security – no breach

Taylor – social security – breach – winter fuel

KB – transexuals and pensions – breach

Allonby – equal pay – (mostly) no breach

Alabaster – maternity leave and pay rise – breach

Cadman – art 119 – no breach

Richards – transsexual and pension - breach

Coleman – disability discrimination – breach

Age Concern – age discrimination – no breach

CD – surrogate mothers and maternity leave – no breach

Employment law: 13 higher standards, 7 no breach, 1 lower standard: 62% higher standard

Comm v UK – breach – collective redundancies

Comm v UK – breach – TUPE

Everson – insolvency – breach

Allen – TUPE – breach

BECTU – working time and fixed-term work – breach

Bowden – working time and transport work – no breach

Martin – TUPE and early pensions – breach

Celtec – TUPE and transfer date – breach

Robinson-Steele – working time and ‘rolled-up’ holiday pay – breach

Comm v UK – working time – breach

Comm v UK – health and safety – employer liability – no breach

Robins – insolvency and pensions – breach

Stringer – working time and sick leave – partial breach

Williams – working time and allowances  - breach

Nolan – collective redundancies and US airbase – no breach

Alemo-Herron – TUPE – breach (but case in favour of employer)

Lock – working time and commissions – breach

Lyttle – collective redundancies – no breach

USDAW and Wilson – collective redundancies and Woolworths – no breach

O’Brien – part-time work – breach

Greenfield – part-time work – no breach

Viking Line – trade unions and freedom of establishment – not included in stats; case left to national court to decide, then settled

EU Referendum Brief 5: How would Brexit impact the UK’s involvement in EU policing and criminal law?

Professor Steve Peers

What impact does EU membership have on policing and criminal law in the UK – and what would be the impact of Brexit? I’ll give the shorter summary version of the answer to those questions first, followed by a longer more detailed version.

Summary

The UK had a veto over EU laws in this area adopted before the Treaty of Lisbon came into force (1 December 2009). Since then, it has had two opt-outs instead: a) it can opt in (or out) of any new EU law in this field adopted after that Treaty; and b) it could go back and opt out of any old EU laws which were adopted before that Treaty. The UK used the latter power to opt out of the majority of pre-Lisbon laws.

There are five main areas of EU criminal law and policing. One area is the definition of crime, where the UK has opted into a small number of EU laws on issues such as child abuse. A second area is criminal procedure, where the UK has opted into some EU laws on suspects’ rights and crime victims’ rights. These are basically domestic areas of law, and there’s no reason to think the UK would change its rules after Brexit.

However, the other three areas concern international cooperation, where it is impossible for any individual country to act alone. Those areas are: a) recognition of criminal decisions (on arrest warrants or gathering evidence, for instance); b) the exchange of police information; and c) EU agencies like Europol, the EU police intelligence agency.

On criminal law mutual recognition, there are other international rules on some of these issues – such as extradition – but they do not go as far as the EU rules. In some cases, there are no alternative international rules on the same issue. The UK could seek to negotiate a treaty with the EU on these issues, but the past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws.

On EU agencies, non-EU countries can participate as associates, but this means a more limited involvement in each agency than they would have as EU Member States.

The UK’s involvement in police information exchange with the EU would also be subject to renegotiation if the UK left the EU. Again, past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws. And if the UK did not continue to sign up to EU data protection laws fully, there would be difficult legal disputes that could limit the transfer of policing data to the UK’s law enforcement authorities from the EU.

It cannot be seriously argued that the UK has ‘lost control’ over its law enforcement and intelligence agency operations to the EU, given the UK’s opt-out, the focus of EU law on cross-border issues, and the lack of any EU law on intelligence issues.

Overall, a Brexit is very likely to lead to a significant reduction on cooperation in criminal and policing matters between the UK and the EU.

The details

First and foremost, while the EU has adopted a number of laws in this area, the UK only participates in some of those laws, and has an opt-out over future laws in this area too. This blog post will in turn: (a) describe the basics of EU law in this area, including the UK opt-out; (b) summarise the main EU laws in which the UK does (or does not) participate in; and (c) indicate what could happen in the event of ‘Brexit’. For a full academic treatment of these issues, see the fourth edition of my EU Justice and Home Affairs Law book (volume 2).

(a) The basics of EU policing and criminal law 

Before the entry into force of the Treaty of Lisbon (on 1 December 2009) police and criminal law matters were subject to a different legal framework from ordinary EU (or European Community) law. The powers of the EU institutions (Commission, European Parliament, EU Court) were more limited, and each Member State, including the UK, had a veto over all laws.

The Treaty of Lisbon repealed these special rules, bringing EU criminal and policing law into the general framework of EU law. From this point on, the usual rules of EU law have applied to this field, with a few exceptions. However, the key point for the UK is that in place of a veto, it got not just one but two opt outs from EU law in this field.

First, the UK can opt out of (or into) any individual EU laws on criminal law or policing proposed after the entry into force of the Treaty of Lisbon.

Secondly, the UK got the power to opt out of EU criminal laws which it had already agreed to before the entry into force of the Treaty of Lisbon. It could invoke this power as of 1 December 2014. The UK government used this to opt out of all but 35 of the EU criminal laws adopted before the Treaty of Lisbon. (See the discussion of that process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law touches on five main issues:

(a)    substantive criminal law (ie the definition of crimes);

(b)   mutual recognition in criminal matters (ie applying another EU Member States’ criminal law decision, where there is a cross-border issue like gathering evidence in another EU country, or asking another country to hand over a fugitive to face a trial or serve a sentence);

(c)    harmonisation of criminal procedure;

(d)   exchange of police information; and

(e)   EU agencies.

The effect of the two sets of opt-outs is that the UK has been highly selective about the EU law in this area which it wishes to apply. Taking the five areas of law in turn, first of all the UK has opted out of almost all EU substantive criminal law. It is covered by the EU Directives adopted since the Lisbon Treaty defining offences relating to trafficking in persons, sexual abuse of children and attacks on information systems (a form of cyber-crime), but not by EU laws defining offences relating to terrorism, organised crime, fraud, drugs, market abuse by bankers, racism, or currency counterfeiting. 

Secondly, the UK is far more engaged in mutual recognition in criminal matters, in particular the flagship law on the European Arrest Warrant (EAW), which is a fast-track extradition system. The UK has also signed up to EU laws on:

(a)    mutual recognition of investigation orders (gathering physical evidence, or interviewing witnesses, in another EU country);

(b)   victim protection orders (where the victim of domestic violence moves to another EU country and wants a restraining order against her abuser to be transferred to that country when she moves there);

(c)    pre-trial supervision (so a criminal suspect can be released on bail to await trial on less serious offences back in Britain, rather than spend a long time in pre-trial detention in a foreign prison);

(d)   confiscation of assets and freezing orders (to ensure that the proceeds of crime held by alleged or convicted criminals in another EU country can be frozen pending trial, and seized if the suspect is convicted);

(e)   the effect of prior sentences or other judgments (so that previous criminal offences committed in another EU country are counted when assessing whether someone is a repeat offender); and

(f)     the transfer of prisoners and criminal sentences (simplifying the movement of foreign prisoners to jails in their EU country of origin, and recognizing fines imposed by a criminal court too – including any penalties imposed against companies for breach of criminal law).

Conversely, the UK has opted out of only one measure in this field, concerning the mutual recognition of probation and parole orders.

Thirdly, as regards the harmonisation of criminal procedure, the UK participates in the EU Directive on crime victims’ rights. However, the UK has only opted in to two of the six EU laws which set out criminal suspects’ procedural rights. In particular, it has opted into the laws on translation and interpretation, and giving suspects information on their rights; but it has opted out of laws on access to a lawyer, presumption of innocence, child suspects’ rights, and a proposed law on legal aid (not yet agreed).

Fourthly, the UK is particularly keen to participate in the exchange of police information. It participates in every significant measure in the field:

(a)    the Schengen Information System (information on wanted persons and stolen objects, including terrorist suspects under surveillance);

(b)   the Customs Information System (used particularly in drug trafficking cases);

(c)    the ‘Prum’ decisions (which give access to other EU countries’ police databases on fingerprints, licence plates and DNA); and

(d)   the laws on exchange of criminal records.

Finally, as regards EU agencies, the UK participates in Europol (the EU police intelligence agency) and Eurojust (the agency which coordinates work of prosecutors in cross-border cases) at present. However, it has opted out of a new law concerning Europol, and a proposed new EU law concerning Eurojust, which set out (or would set out) revised rules for those agencies following the entry into force of the Treaty of Lisbon, although it might decide to opt in to those Regulations after they are adopted. The UK used to host the European Police College (a training agency), but refused to continue hosting it and opted out of a new version of the relevant law.

There has been some concern particularly about the prospect of the UK participating in a law to create a European Public Prosecutor. While the EU Commission proposed a law to create a European Public Prosecutor in 2013, the UK has opted out of that proposal. Indeed, the UK would have to hold another referendum before it opted in to that law, according to the European Union Act 2011.

(c) What would the impact of ‘Brexit’ be?

It’s sometimes argued that EU laws on policing and criminal law are irrelevant to the UK’s membership of the EU, because the UK can simply do everything it wishes to do in this field in its domestic law. That’s a valid argument for two of the five areas of law described above: substantive criminal law and harmonisation of procedure. But it doesn’t work for the three other areas – mutual recognition, exchange of information and participation in EU agencies – which necessarily require some cooperation with other states. Put simply, a British Act of Parliament cannot regulate how France or Germany issue extradition requests.

What would happen if the UK left the EU? In each case, as with other areas of EU law and policy, it would depend on what the UK and EU negotiated afterward. But it is possible to give some general indication of the consequences.

In the area of mutual recognition, the UK can fall back on Council of Europe treaties, which address some of the same issues (note that the Council of Europe is a separate body from the EU, which includes non-EU European countries like Turkey and Russia; some of its treaties can be signed also by non-European states like the USA).

However, the relevant treaties do not go into as much detail as the EU laws, and are often less effective.  As an indication of this, see the UK government information about the application of EU law in this area. Extradition from the UK has gone from 60 people a year (to all countries) before 2004 to 7000 since 2004 on the basis of the European Arrest Warrant. Over 95% of those sent to other Member States are not British.

Moreover, in some cases the UK and/or some other Member States have not ratified the relevant treaties. For instance, fewer than half of all Member States have ratified the Council of Europe Convention on validity of criminal judgments; the UK has not ratified it either. But the EU law on mutual recognition of criminal penalties sets out rules on one of the key issues in that Council of Europe treaty: the recognition of criminal financial penalties imposed by another Member State’s court. Some issues have not been the subject of Council of Europe treaties at all, such as the pre-trial supervision rules set out in EU law. In these cases, the EU law is the only means of ensuring the cooperation in question.

Another alternative is to negotiate treaties with the EU on these issues.  The EU has been willing in practice to negotiate access to some aspects of its criminal law measures: a form of the EAW for Norway and Iceland, an extradition treaty with the USA, and mutual assistance (exchange of evidence) with Norway and Iceland, the USA and Japan. But the extradition treaty with Norway and Iceland took years to negotiate, is still not in force at time of writing, and does not oblige States to extradite their own citizens – meaning that the UK would not be able to ask Germany to extradite Germans, for example. That restriction cannot easily be negotiated away in the event of Brexit, because some EU countries have constitutional problems which prevent them extraditing their own citizens outside the EU. (On these sorts of issues, see E Guild, ed, Constitutional challenges to the European Arrest Warrant).

Overall, there are no such treaties agreed with any non-EU countries on the large majority of EU criminal law mutual recognition measures. Of the treaties which are agreed, not a single one goes as far as the relevant EU legislation in force.

A particular concern of critics of the EU rules on extradition is the ‘sufficient evidence’ (‘prima facie’) test which was traditionally applied by the UK before accepting an extradition request. While it is sometimes argued that the EAW abolished the ‘prima facie’ test as regards EU countries, this is not correct. In fact, the UK waived the right to apply this test to European countries when it signed up to the Council of Europe extradition treaty back in 1990, over a decade before it signed up to the EU’s EAW: see the Extradition Act 1989, section 9(4), which was implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507). In other words, the test was not abolished because of EU law, but was already abolished well before the EU had any involvement in extradition law.

Why did the UK abolish the prima facie test? As noted in the 2011 Baker review of UK extradition law, the decision was made because of the difficulties it posed for extradition in practice: a White Paper of 1986 stated that it ‘did not offer a necessary safeguard for the person sought by the requesting State but was a formidable impediment to entirely proper and legitimate extradition requests’. Ultimately the Baker review recommended that there was ‘no good reason to re-introduce the prima facie case requirement’ where it had been abolished, and that ‘No evidence was presented to us to suggest that European arrest warrants are being issued in cases where there is insufficient evidence’.

The prima facie test is sometimes described as an aspect of the ‘presumption of innocence’, although in fact a fugitive who is extradited pursuant to this test still either has to be convicted pursuant to a trial in the requesting State, or has already been convicted but fled the country. In other words, the presumption of innocence still applies when the substantive criminal trial takes place (or took place).

As regards the EU agencies, the UK can enter into agreements to cooperate with Europol and Eurojust, like other non-EU countries. However, as the Director of Europol points out, such agreements don’t allow the UK to have direct access to databases, to lead investigation teams, or to take part in the management of those agencies: both Europol and Eurojust have had British Directors.

Finally, as regards policing, the EU has given some non-EU states access to the Schengen Information System, and to the ‘Prum’ rules on access to each Member State’s national policing databases. But this was linked to those countries fully joining the Schengen system. The UK would obviously not do that after a Brexit.

The EU has also signed treaties on the exchange of passenger name records with non-EU countries (the USA, Canada and Australia), as well as a treaty on the exchange of financial information (concerning alleged terrorists) with the USA, so might be willing to sign similar treaties with the UK. It has also recently agreed an ‘umbrella’ treaty on general exchange of police information with the USA, although this is not yet in force.

However, the EU has not extended access to its system on exchange of criminal records to any non-EU countries. While there is a Council of Europe treaty on mutual assistance in criminal matters (which the UK and all other Member States are party to) that provides for some exchange of information of such records, it results in far less information exchange. The exchange of criminal records is particularly important for the UK: the government has reported that the UK is one of the biggest users of the EU system, and that criminal records checks of foreign nationals in the criminal justice system have increased 1,650% since 2010.

However, there is a particular issue that has complicated the exchange of personal data between the EU and with non-EU countries, particularly as regards policing data. Are their data protection standards sufficient as compared to the standards maintained by the EU? If not, then the European Parliament may be reluctant to approve the deal, or it might be challenged in the EU Court. This isn’t a hypothetical possibility – it has happened several times already.

I have discussed this issue in more detail in a recent blog post for The Conversation, but I will summarise the main points there again. As regards deals between non-EU countries and the EU itself, the EU Court of Justice has struck down a Commission decision on the transfer of personal data to the USA, because there was insufficient examination of the data protection standards applied by US intelligence agencies as regards access to personal data on social media. A replacement deal is planned, but will also be challenged in court. A further case is pending, where the EU Court has been asked to rule on the legality of the most recent EU/Canada treaty on the exchange of passenger records data, to ascertain if it meets EU standards for data protection.   

If the UK left the EU, any UK/EU agreement on the transfer of personal data would have to meet the same requirements. Those requirements cannot simply be negotiated away, since they stem from the EU Charter of Rights – part of the primary law of the EU. The Charter can be amended, but to have legal effect the EU Treaties would also have to be amended to refer to that revised text. It is hard to believe this could happen at the behest of a country which has just left the EU.

Would UK legislation meet the test of being sufficiently similar to EU standards? The Court of Justice has been asked in the pending Davis and Watson case whether the rules on police access to personal data comply with the EU law that binds the UK as a Member State. Another Bill on this issue is pending before the UK Parliament, and would likely become an Act of Parliament before Brexit. Since many privacy campaigners are critical the draft Bill, there would almost certainly be similar legal challenges to transfers of personal data to and from the UK after Brexit, unless the UK agrees to continue fully applying EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet summarising the position of the two sides in the referendum campaign contains a number of relevant claims from each side. For the Remain side, the pamphlet says that the EAW ‘allows us to deport criminals from the UK and catch those fleeing justice across Europe’, and that EU membership helps to tackle ‘global threats like terrorism’. For the Leave side, the pamphlet says that the EU ‘will continue to control…vital security policies such as counter-terrorism’ and the EU Court ‘will keep taking powers over how our intelligence services fight terrorism’.

Are these claims valid? As for the first Remain claim, as noted above the statistics show that the number of persons extradited to and from the UK have indeed increased since the EAW has been applied – although some extradition would still take place even if the UK did not apply the EAW.

In light of the official UK government information referred to above, other operational cooperation via Europol and other forms of EU police and criminal law cooperation presumably has some impact on combating threats like terrorism and other serious crimes in practice. However, it is not possible to estimate their impact compared to purely national actions and other forms of international  cooperation.

As for the arguments by the Leave side, it is clear from the description of the laws which the UK applies that the EU does not ‘control…vital security policies’. The functioning of the UK law enforcement authorities is up to the UK, and there is no EU regulation of intelligence agencies. EU law impacts only cross-border issues.

As we have seen, the only EU case law to date impacting intelligence agencies concerns non-EU intelligence agencies. The ruling restricts transfers of data gathered by social networks to those non-EU countries in that context, unless those countries apply EU data protection law. If the UK left the EU, it would therefore be subject to the same restrictions on obtaining personal data in criminal cases from the EU. Leaving the EU is therefore more likely to impede UK intelligence agencies’ work, than it is to facilitate it. 

Conclusion

The UK’s participation in EU criminal and policing law has led to an increase in cooperation in areas such as extradition and the exchange of police information. In these cases, there are question marks about what would happen after Brexit – mainly political but to some extent legal too. In the event of Brexit, there is a very high likelihood that cooperation between the UK and the remaining EU would be reduced (although not to zero). And in light of the UK’s opt-outs and the limited effect of EU law on purely domestic matters, it cannot seriously be argued that UK law enforcement and intelligence agencies are ‘controlled by’ the EU.  

JHA4: chapter II:3, chapter II:4, chapter II:7

Barnard & Peers: chapter 25

Photo credit: calvinayre.com