The legitimacy of the EU referendum requires that citizens are informed of the implications of their decision

The campaign over whether to leave the EU or remain a member has predictably focused on matters such as immigration and the economy. However, at stake at the referendum later this year are a set of rights that UK citizens have accrued by virtue of their EU citizenship. Here, Katie Boyle argues that the democratic legitimacy of a genuinely deliberative referendum process requires that citizens are kept informed of the implications of their decision at the vote.

The UN Human Rights conucil (AK Rockerfeller, CC BY SA 2.0)

Under section 7 of the Referendum Act 2015, the Government is under a duty to publish information relating to rights and obligations arising from the UK’s membership of the European Union. On 14 April 2016 the Government published the paper, ‘Rights and Obligations of European Union Membership.’ This report set out the rights and obligations associated with a number of areas including agriculture and fisheries; animal health and welfare; and transport. It also contains chapters on citizenship; fundamental freedoms; and employment law and non-discrimination.

According to principles of deliberative democracy, research indicates that constitutional referendums, such as the forthcoming EU referendum, ought to be preceded by informed, deliberative, inclusive, participative, democratic and fair processes. Stephen Tierney and I have previously highlighted here and here that legitimacy in the outcome of a referendum is very much engendered by a fair process in the lead up to the vote. The publication of a report on rights and obligations derived from EU law is therefore an important step in ensuring legitimacy in the referendum process. However, the degree to which it is able to contribute to a genuinely deliberative and informed process is questionable – particularly in so far as it overlooks the potential implications for many EU derived rights following the referendum outcome.

In the area of citizenship and rights there is much uncertainty in the UK as to what the direct implications of a potential Brexit would be for UK citizens – or what human rights framework might develop in the event of a remain scenario. Whilst the Government paper touches on some of the rights derived from EU law it does not set out the implications or potential future roadmap for human rights in the event of either outcome. Granted the paper does clarify that it is not intended to be ‘exhaustive and does not seek to cover every right and obligation arising under EU law.’ Instead, it aims ‘to provide a balanced overview of the most important rights and obligations.’ Nonetheless – for a process to be genuinely deliberative and informed the electorate ought to have access to as much information as possible on the potential implications of the outcome. This means not just setting out the existing framework – but explaining what might happen if the UK either stays within or leaves the European Union.

In the case of rights and citizenship this is of particular importance within the context of the unique constitutional arrangement that exists in the UK. Without a written constitution many rights enjoyed by citizens are guaranteed through the UK’s relationship with two (completely separate yet intertwined) regional legal frameworks – the EU and the Council of Europe. It is of course within the power of the UK to change its relationship with either or both of these regional frameworks and to choose to protect rights in its own way (and it has done for many years through the development of common law rights for example). However, if any such changes are to occur to the existing frameworks it is imperative that the alternative legal structures envisaged to replace them in the context of rights are explained to citizens in advance.

In other words, without a written constitution, and without the legal protections afforded by both the EU and Council of Europe, there could be a potential human rights legal deficit where access to rights and remedies are diminished without proper checks or safeguards.

Informing citizens of the implications for human rights in connection with the EU referendum is a particularly difficult undertaking. Leanne Cochrane and I have recently highlighted the problematic nature of fulfilling the section 7 statutory duty in so far as it requires explaining a super-complex, contested and confusing legal framework. Of course, the Government report is a welcome intervention in helping to ensure the electorate is informed in advance of the referendum. Nonetheless, the degree of uncertainty about the implications of a vote to either remain or to leave are still very unclear. Here I briefly highlight some of the complex issues relating to rights and citizenship in the context of the EU referendum in the event of either a ‘Brexit’ or ‘Bremain’ outcome.

Citizenship rights

At the moment, UK citizens derive EU citizenship through the UK’s membership of the European Union (Article 20(1) of the Lisbon Treaty). Since the Lisbon Treaty came into force in 2009 there has been a formal constitutionalisation of rights in the EU legal order. Citizenship rights include rights such as free movement – i.e. that as citizens of the EU we are able to move freely to work and reside in other EU Member States. So, for example, there are currently over 2 million UK citizens living in other parts of the EU. If the UK votes for Brexit a period of transition is triggered which requires states to negotiate their exit from the EU (within a 2 year period under Article 50). The outcome of those negotiations is of course uncertain – meaning we cannot know at this stage 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.

Rights derived from EU law

Further to these citizenship rights, there are additional rights derived from other sources of EU law. These type of rights cover areas of EU competence where the EU has in some way or another introduced protection mechanisms for EU citizens. For example, the EU Working Time Directive ensures entitlement to paid leave and restricts the maximum number of hours employees can work per week. The government report also highlights rights associated with maternity and paternity leave and pay and fair treatment for different groups of workers.

If the UK were to negotiate an exit from the EU it is most likely much of the EU legislation already in force would continue to apply in the UK until such time as Parliament intervened to change it. This is what is called ‘the continuation of laws’ and has been used as a transitional arrangement during times of constitutional transformation in other countries (see here for a discussion on this in relation to the proposals under the Scottish independence referendum process).

This does not mean that a continuation of laws is guaranteed. It would be within the power of legislature to continue to protect these types of EU derived rights but also within the power of legislature to repeal them – meaning citizens could face change in those areas where the EU currently exercises competence – including rights and non-discrimination provisions relating to employment.

Fundamental human rights

The Charter protects a wide array of human rights including socio-economic rights relating to education, health and employment. The scope and effect of the Charter is contested and problematic – particularly in relation to the distinction made between ‘rights’ and ‘principles’ which is not properly accounted for in the text of the Charter itself – leaving much ambiguity as to the effect of its provisions in areas such as social rights.

Leaving the EU system means the EU Charter would no longer apply in the UK – and access to the protections it affords would be lost.

As highlighted in a recent explainer this means that the remedies available under the EU, which are much more robust than those applying under the ECHR system under the Human Rights Act 1998, would also no longer be available.

What about the ECHR and Human Rights Act 1998?

The UK also derives human rights from a separate European legal framework – the Council of Europe which contains the European Convention of Human Rights (ECHR). The ECHR 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). The Secretary of State for Justice Michael Gove has promised that proposals to do so are imminent – and awaiting the Prime Minister’s approval. The devolved regions have additional mechanisms in place that would mean the ECHR would continue to apply in devolved matters (see here).

The proposals to change the Human Rights Act and potentially introduces a UK Bill of Rights is a completely separate process to the EU referendum and membership of the Council of Europe and European Convention of Human Rights. It does not form part of the referendum on membership of the EU on 23 June 2016.

This has potentially has implications for the unity of the UK. Some of the devolved regions are actually on a path to improving human rights protections. In Scotland, Wales and Northern Ireland the devolved systems already include more robust remedies for human rights protection than in England. 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.

In particular – it could leave England in an isolated position with less access to rights or remedies than other parts of the UK. Alternatively, it might provide an opportunity to bring the constituent parts of the UK together under a robust UK Bill of Rights or potentially a formal written constitution. Either way, it is critical that the Government provide UK citizens with a clear picture on the potential implications of these changes – particularly if it may lead to the erosion of rights or further fragment UK unity. At the moment the fact these proposals are not yet available mean that the referendum on EU membership does not include an opportunity to reflect on what kind of rights system might exist post potential Brexit.

Some final thoughts

In conclusion, whilst much uncertainty remains in place, it is imperative that citizens are kept informed of potential implications as much as possible at all times. This is no easy task. Rights derived from EU law – under the Charter, general principles of EU law and Directives – form a complex, contested and confusing picture.

The implications for removing the UK from the EU framework are further complicated by the UK and EU’s relationship with the legally separate Council of Europe and European Convention of Human Rights. The EU itself is under an obligation to accede to the ECHR and negotiations are in a period of reflection after the Court of Justice of the European Union raised concerns over the autonomy of EU law under the draft accession agreement.

The implications of a potential Brexit or Bremain should therefore also be contextualised in the wider constitutional processes relating to human rights change across the devolved regions, the UK and Europe (including the forthcoming proposed Bill of Rights consultation) in order to give voters a chance to make as informed a decision as possible.

As highlighted above, the democratic legitimacy of a genuinely deliberative referendum process requires that citizens are kept informed of the implications of their decision.

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Note: the author wishes to thank Leanne Cochrane for her research assistance in connection with this post

This post represents the views of the author and not those of Democratic Audit or the LSE. An earlier version of this post was previously published in University Business.

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Dr Katie Boyle is Senior Lecturer in Law and a qualified constitutional and human rights lawyer based at the Crucible Centre for Human Rights Research, Roehampton Law School, University of Roehampton. She is on Twitter at @katieanneboyle