The European Union (EU) was formally established in 1993 following the Maastricht Treaty and was derived from the European Coal and Steel Community, and the European Economic Community (EEC), formed in 1951 and 1958 respectively.
On 23rd June, the referendum held in the United Kingdom (UK) on the issue of whether the country should remain a member of the EU ended with a small majority in favour of ‘leave’. Despite rife criticism originating from the close result, and although the fact that any referendum is not binding under British law, new Prime Minister Theresa May stated that she felt bound by the decision and would lead the country throughout the Brexit process. Surveys have also conveyed that the general public had a rather vague knowledge of the EU – a finding supported by the fact that on the day following the referendum, the second most frequent Google query in the UK was ‘what is the EU?’, emphasising the lack of knowledge of many of the British people in the lead up and after this pivotal referendum.
As a result of this referendum, the UK government must now invoke Article 50 of the Treaty on the European Union (TEU), which regulates the voluntary withdrawal of a Member State from the EU. However, there is inevitably more depth to this process than a simple exit procedure. The consequence of the referendum on Britain’s membership of the EU, and impending withdrawal, carries clear implications for the protections and freedoms in this country. The process of withdrawing from the EU will impact highly on the legal framework that protects human rights in the UK. A complete withdrawal would result in the UK no longer having to adhere to the human rights obligations contained within the EU Treaties, the General Principles of EU law, which include respect for fundamental rights, or EU directives and regulations safeguarding these rights.
Currently, fundamental rights in the UK are protected by three interlinked operations: EU law and the EU Charter of Fundamental Rights; the European Convention on Human Rights (ECHR), whose effectiveness is enhanced by the Human Rights Act 1998; and domestic rights protection.
By becoming a member of the EEC over 40 years ago, the UK accepted provisions of prior treaties which primarily placed rights upon its citizens. Most significantly, the right to depend on EU law when domestic law created no solution. The case of Van Gend En Loos ascertained that European Union law establishes individual rights which are capable of being directly enforceable in national courts. This case was the beginning of the development of policies deriving from the Court of Justice of the European Union (CJEU)
The Charter of Fundamental Rights of the EU integrates in to a single document the fundamental rights protected as part of the EU. Proclaimed in 2000, the Charter has become legally binding on the EU with the entry into force of the Treaty of Lisbon, in December 2009. The rights of individuals within the EU were established at different times and in different ways and forms, providing the framework to clarify these variations and include them all in a document which has been updated in the light of societal changes. Britain’s decision to leave the EU, this Charter would cease to apply, but it is likely to carry residual effects in domestic law.
However, the United Kingdom has signed the European Convention on Human Rights, which is an international treaty advocated by the Council of Europe and would continue to apply after Britain’s withdrawal as the Council of Europe and the European Union are separate organisations.
One of the most urgent and critical matters stemming from Britain’s withdrawal from the EU relates to the residence rights of EU nationals currently in the UK and UK nationals in the EU. It is estimated that currently 2.9 million EU nationals reside in the UK and approximately 1.2 million UK nationals are thought to live in the 27 other EU Member States. The Secretary of State for International Trade, Rt Hon Liam Fox MP, has reportedly characterised EU nationals in the UK as one of the primary “main cards” in negotiations surrounding this pending withdrawal and Minister of State for Human Rights Sir Oliver Heald mentioned that the Prime Minister was seeking an “early agreement” on the status of UK nationals in Europe and EU nationals in the UK. He confirmed that the Government’s belief was that to recognise a unilateral position on the issue would be ineffective.
A directive is a legislative act which sets out a goal that all EU countries must achieve. Directives from the EU require implementation into UK law in order to be effective, which develops an onerous task for any UK government overlooking the ‘Brexit’ process of determining whether to begin examining Acts of Parliament and statutory instruments with an objective to ascertain whether or not to maintain, replace or repeal each piece of legislation. Therefore, in order to uphold the protection of the rights of persons throughout and after the withdrawal process.
A regulation is specific form of European act which must be applied in its entirety, unless the member state has secured a treaty opt-out in the area covered by the regulation. They are dominant legislative means for the EU due to their instant application. On the other hand, this could lead to an instant erosion of their impact following Brexit when compared with directives, as there would be no national legislation to depend on throughout any period of progression
Great repeal bill
Despite the advantage across Britain of leaving the EU in the June referendum, in Scotland, there was a considerable edge in favour of remaining a member of the European Union of 68% to 38%, with all regions voting to remain.. Primary Scottish politicians have been highly vocal of their opposition to the result of the referendum, with the leaders of all five parties with seats in the Holyrood Parliament all being against the concept of being removed from the EU.
The issue of membership of the EU is a reserved matter to Westminster and thus, Scotland’s input to this issue is highly limited.
Britain’s withdrawal will inevitably impact devolved matters, as EU law is embedded in the Scottish legal system. Devolution, notwithstanding the UK Parliament, is sovereign, meaning that Parliament has the legal authority to enact, amend or repeal any law. Additionally, Westminster continues to have the authority to legislate on behalf of Scotland, however, it is acknowledged that ‘the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’, the concept of which is emphasised in the Sewel Convention.
The UK Government have adhered to the Sewel Convention throughout devolution, so it would be a significant issue for Westminster to pass legislation regarding withdrawal despite opposition from the Scottish Government so shortly after legislating to acknowledge the consent convention.
The Supreme Court case of R (Miller) v Secretary of State for Exiting the European Union concluded that consent of the devolved legislatures, Holyrood included, is not required for an Act of Parliament to be passed triggering Article 50. The court stated that the Sewel Convention ‘has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law’. Prior to this judgement, Davis Lidington, the Europe Minister, asserted that the ‘clear legal position’ was that Scotland has to exit the European Union with the rest of the UK.
The EU referendum outcome has the possibility to impact significantly on Scotland’s relationship with the EU and indeed with the other countries in the United Kingdom. This result has stimulated calls from Scotland’s First Minister to ‘take all possible steps and explore all options to give effect to how people in Scotland voted’. One possible option is a second independence referendum, which in the immediate aftermath of the EUreferendum, was seen to be ‘highly likely’ and ‘on the table.’