Katie Boyle and Leanne Cochrane: Rights Derived from EU law: Informing the Referendum Process

Boyle-CochraneThis week the UK Government is under a duty to publish information about rights and obligations that arise under European Union (EU) law as a result of the UK’s EU membership (see section 7, European Referendum Act 2015).  EU law applies domestically under the European Communities Act 1972, section 2 of which provides that all rights, powers, liabilities, obligations and restrictions arising out of EU law apply in UK law.

As highlighted by Tierney and Boyle (see here and here), referendum processes ought to be informed by fair, inclusive, informed and participative deliberation. A genuinely deliberative referendum process helps engenders legitimacy in the outcome. The forthcoming statutory report will require to address a super-complex, contested and confusing legal framework. This makes fulfilling the statutory obligation to inform the electorate very difficult. As a result, the deliberative nature of the referendum process in itself may be undermined because the deep complexity and technical nature of the legal framework make access to easily understood, informed and evidence led information difficult to package in a way that can ensure a fully participative process for citizens.

Here, we take a brief look at the contemporary EU human rights framework and how these rights engage at the domestic level. This contribution is made with a view to in some way informing the lead up to the EU referendum, the result of which could mean retaining or relinquishing the human rights framework derived from EU law and directly impacting on UK citizens.

The EU is founded upon “respect for human rights” (TEU, Article 2) and aims toward a “social market economy” (TEU, Article 3).  Over time, it has developed a complex and multifaceted human rights framework which can be relied upon to contest measures adopted by the UK Government which concern the implementation of, or derogation from, EU law.  Explicit sources of EU human rights law include the judge-made ‘general principles of EU law’, rights contained in the treaties, as well as the Charter of Fundamental Rights (CFR).  Implicit sources include the jurisprudence on citizenship rights and secondary legislation, such as directives which engage rights issues.  As a final and well known point worthy of reiteration, EU human rights law is supreme when in conflict with national law (European Communities Act 1972; Factortame, Case C-213-89).

i. General Principles of EU law

The CJEU recognised fundamental rights as ‘general principles of EU law’ long before implementation of Article 6 TEU, which now enshrines the principle (Stauder, Case 29-69, Internationale Handelsgesellschaft, Case 11-70).  Fundamental rights in this context constitute the rights guaranteed by the European Convention on Human rights (an instrument of the Council of Europe) and rights derived from the “constitutional traditions common to the Member States”.  The legal significance of fundamental rights that are general principles is that the CJEU will not uphold incompatible measures (Nold, Case 4-73). As a result, such rights can be relied upon in the context of legal disputes between private parties (Mangold, Case C-144/04 concerning non-discrimination on the grounds of age).

ii. Charter of Fundamental Rights

The Lisbon treaty which came into force in 2009 made the most constitutionally significant alteration to the EU human rights framework by placing the CFR on the same legal footing as the treaties (Article 6 TEU).  This means that the CFR constitutes EU primary legislation and has binding legal effect.  The CFR is unique as a European human rights instrument for its comprehensive reflection of the indivisibility of rights including explicit provision for civil, political, economic, social and cultural rights.  On closer inspection however, the CFR makes a distinction between ‘rights’ and ‘principles’ each of which has a different legal effect (Article 52(5) CFR).  Before a principle can be enforced, it appears that it must first be given specific expression in either EU or national law (Association de Médiation Sociale (AMS), Case C-172/12).  One notable complexity of the CFR is its lack of clarity on whether some provisions constitute rights or principles – making the enforceability of some EU human rights provisions unclear.

This lack of clarity has its roots in the fact that the EU may only pass law in an area of its competence (TFEU, Title I).  Article 51 CFR makes clear that the CFR does not extend EU law.  Instead it was intended to consolidate and codify the obligations that already existed on EU Member States.  The UK, through Protocol 30, attempted to limit the application of an expansive Charter (the CJEU has determined that Protocol 30 does not carry the legal effect of opting the UK out of its obligations (N.S., Case C-411/10)).  What remains unclear is to what extent the section of the CFR dealing with social rights (Title IV ‘Solidarity’) reflects ‘rights’ or ‘principles’ (e.g. AMS case on Article 27 which guarantees workers the right to information and consultation). The UK’s obligations, and EU rights, in this respect remain mostly unchartered territory.

Nevertheless, it has been suggested that the CFR still serves as a catalyst for an increased focus on fundamental rights (Kosta) which could ensure to them a stronger protection (Safjan and Miklaszewicz). Indeed, what constitutes the scope of EU law thereby allowing the CFR to be engaged has been given a broad meaning (Åkerberg Fransson, Case C-617/10).

On the basis of DEB, Case C-279/09, where the CJEU determined that legal persons also had a right to an effective remedy, de Vries argues that the CJEU may be “generating its own meaning” for rights. This comes as no surprise given that the Charter was drafted without giving a fully substantive account of what was intended – particularly in relation to the rights v principles distinction.

Similar to Mangold, the CJEU determined that the equivalent CFR provision on non-discrimination (Article 21 CFR) could be applied in disputes between private individuals (Kücükdeveci, Case C-555/07, recognised by the UK domestic courts in Benkharbouche [2015] EWCA Civ 33). However, not all provisions of the CFR have been elevated to this level (see AMS case above), while other fundamental rights could not by their very nature have a horizontal effect, even on a narrower reading.  The precise nature of the relationship between the CFR with the rights recognised as general principles has not yet been worked out.  In Yoshikazu Iida, Case C-40/11, the CJEU was asked this very question but did not provide an answer.  Some have argued that the the CFR could “contribute significantly to the discovery of general principles” (Lenaerts and Gutiérrez-Fons).

iii. Citizen’s rights

The CJEU has a developing jurisprudence which recognises human rights as crucial to the enjoyment of EU citizenship rights. Citizens of the UK are also EU citizens by virtue of the UK’s membership of the EU (Article 20(1) of the Lisbon Treaty). Rights derived from EU citizenship, which each UK citizen enjoys, include (amongst many others) rights relating to equal pay for equal work between men and women, the right to adequate rest and limited working hours (the Working Time Directive), the right to move and reside within different member states, the right to vote and stand for election within the EU political framework and the right to work in other member states – and in some circumstances to seek social assistance in other member states.

Citizenship rights are reciprocal rights, meaning rights enjoyed by UK citizens outside of the UK are also granted to non-UK citizens from other EU member states to enjoy within the territory of the UK.

EU citizenship rights associated with free movement are not absolute, however for the moment, EU membership means that UK citizens can move, reside and work across the different Member States. It is unclear at present to what extent an alternative arrangement might be negotiated should the UK vote to leave the EU. As highlighted here, a Brexit vote would trigger the Article 50 procedure for a negotiated exit and the rights derived from citizenship for the 2 million UK citizens living in other EU countries would no doubt form part of the negotiations.

iv. Directives which engage rights concepts

Even before the CFR gained binding force, EU secondary legislation in the form of directives, already embodied many of the rights and non-discrimination provisions contained within the CFR.  Although not always explicit, directives help develop the content of fundamental rights, such as the Data Protection Directive, the Gender ‘recast’ Directive, the Racial Equality Directive, and the Trafficking in Human Beings Directive.  Directives do not strictly speaking have horizontal direct effect (Marshall I, Case C-152/84 and the AMS case), and while treaties will prevail over secondary legislation (such as in a conflict between a fundamental freedom and a directive), where the directive is giving expression to a fundamental right which is already a general principle of EU law, the law can become more complex.  That is, the underpinning fundamental right that is a general principle will be taken into account by the Court (Kücükdeveci and Mangold cases).

Some final thoughts

Human rights have now become so constitutionalised in EU law that de Vries considers a battle between economic freedoms and fundamental rights would in fact represent a “clash of the titans”.  As the EU human rights framework becomes better known, questions for the public relate to how rights are balanced as well as what rights can be substantively enforced. In the lead up to the referendum more questions need to be answered on what the implications will be in the event of a yes or no vote in relation to those rights and obligations which are derived from EU law. The above gives some idea of the complex and vast arrangements that require to be considered.

As such, the statutory obligation to publish information on rights and obligations under section 7 of the Referendum Act 2015 is a critical part of ensuring that the electorate is informed. At the same time, we can see that fulfilling such an obligation is a difficult one given the deep complexity, contested and unchartered nature of much of the legal framework – particularly in relation to those areas of socio-economic rights covered by the Charter which may or may not have binding legal effect depending on the rights v principle distinction.

The forthcoming report due for publication will require to disentangle many of these issues and, at the same time, explain the super-complex relationship between those rights enjoyed under the EU system and those rights derived from the Council of Europe – membership of which does not form part of the referendum question on 23 June 2016 – in order to ensure that the electorate is fully informed of what rights framework might exist following the referendum result. This is no easy task. It is further exacerbated by a looming consultation process on whether the UK retains the separate human rights framework codified under the Human Rights Act 1998 and partially incorporated European Convention of Human Rights (ECHR) – an instrument of the completely separate (yet intertwined) Council of Europe. One emerging conclusion that could be drawn is that ensuring voters have access to the necessary information for an informed vote is becoming increasingly difficult. This in turn may have a significantly detrimental impact on the deliberative quality of the constitutional referendum process in and of itself.

Dr Katie Boyle (@katieanneboyle) is Senior Lecturer in Law and qualified constitutional and human rights lawyer, Crucible Centre for Human Rights Research, Roehampton Law School, University of Roehampton.

Leanne Cochrane (@RightsUKEU) is Research Fellow at the University of Roehampton and a Ph.D. Candidate at Queen’s University Belfast.

(Suggested citation: K. Boyle and L. Cochrane, ‘Rights Derived from EU law: Informing the Referendum Process’, U.K. Const. L. Blog (13th Apr 2016) (available at https://ukconstitutionallaw.org/))