Rights and Justice

How does the EU affect the rights that we have access to in the UK? What is the EU’s role in protecting our rights and how would these be affected if the UK votes to leave the EU? What influence does the EU have over criminal justice in the UK? These are just some of the big questions being asked in the run up to next week’s referendum.

Much of what we hear about the European Court of Human Rights and the European Convention of Human Rights (ECHR) is not relevant to the EU. The ECHR is a part of the Council of Europe, an entirely separate international organisation established after the Second World War and with 47 member states (including all of those within the EU plus 19 others including Turkey, Russia, Ukraine and Azerbaijan). The Council of Europe is also responsible for the flag of twelve yellow stars on a blue background, which was adopted by the EU in the 1980s. So, anything you hear about the ECHR, such as its ruling on the protection of voting rights for prisoners, is not related to the EU and will not be affected by the outcome of the referendum. It is interesting to note however that the ECHR has little power to sanction the UK government for not complying with its rulings, so whilst it has ruled that prisoners should be granted the right to vote, the UK government has so far ignored this and is yet to give prisoners voting rights.

Nonetheless, the EU’s Charter of Fundamental Rights, written in 2000 but made a compulsory part of EU law in 2009, includes everything within the ECHR and is entirely compatible with it. It does however go further, including areas such as bioethics and data protection, which are not covered by the ECHR. The Charter is applicable when EU member states are putting EU law into practice, so it can only be referred to when an individual person (or legal entity) feels their rights have been violated as a consequence of the way the national government has implemented an EU law. If someone felt for example that the UK government was infringing their right to data protection in implementing a piece of EU law, that person could apply first to the UK courts, and then the UK courts could refer the case to the European Court of Justice which could ask the European Commission to begin infringement proceedings against the UK government. The EU has the power to enforce any rulings made by the Court of Justice within the UK. However, there is a protocol to the 2009 treaty that said that the treaty did not extend the powers of the European Court of Justice in evaluating UK laws’ compliance with the Charter, but it has been confirmed by the EU and the UK that the protocol did not exempt the UK courts from complying with the Charter.

The areas included in the Charter of Fundamental Rights are:

• dignity, including right to life and personal integrity, prohibition of torture and slavery;
• freedoms, including right to private life, freedom of religion, data protection, right to education and property;
• equality, including gender equality, non-discrimination, rights of children, the elderly and the disabled;
• solidarity, including fair working conditions, right to collective action, prohibition of child labour, social security, health care, environmental and consumer protection;
• citizens’ rights, including the right to vote and stand for election, right to petition and to ombudsman, and diplomatic protection;
• and justice, including the right to a fair trial, the right to defence and the presumption of innocence.

The UK also has its own Human Rights Act, which is compatible with the ECHR and the Charter of Fundamental Rights. The effect of this will not change if the UK leaves the EU, though the current Government has committed to removing the Human Rights Act from UK law and replacing it with something else by 2020, as a separate issue. If the UK leaves the EU and the Human Rights Act is repealed, UK people will still have human rights protections from the ECHR.

There are many basic rights protected by the EU for people in the UK. One particular area of rights that the EU protects is with regard to the rights of workers and women. Examples of rights that the EU gives workers are:

• The right to a minimum 20 days paid holiday a year.
• Maximum weekly working hours and rest periods (known as the Working Time Directive).
• Equal pay for men and women for equal work.
• Protections for part-time workers and agency workers.
• Workplace health and safety.
• Four months parental leave.

These are minimum standards however, and in several areas the UK extends some of these, for example:

• The right to a minimum 28 days paid holiday a year.
• The National Minimum Wage (the EU has no power to make a law in this area).
• Twelve months parental leave.

It is probably the case that the areas where the UK has passed laws protecting rights at a higher level than the minimum the EU states will continue to be protected at that higher level if the UK votes to leave the EU. In the areas where the EU has set minimum standards that the UK has not exceeded through its own legislation, it is possible that these standards will be lost.

One thing I have been asked is what influence the EU has on criminal justice in the UK. The EU’s role in justice and home affairs issues is relatively new and limited, compared for example with the EU’s role in trade and the single market. However the area is developing, and currently involves agreements such as the European Arrest Warrant (whereby someone wanted for a criminal investigation in one EU country can be arrested in any other EU country and moved to the country issuing the warrant – I discuss this further in my post on security and defence), Europol (an organisation designed to support member states’ police forces in tackling serious international crime), and a series of agreements that are intended to make criminal proceedings compatible in all member states. The UK would no longer be part of these agreements if it voted to leave the EU.

The EU treaties do give the European Parliament and Council of Ministers the ability to introduce directives (laws that national governments can interpret and implement as they deem appropriate) suggesting minimum rules of defining and sanctioning certain serious crimes with a cross-border dimension. These crimes are listed in the treaty as: “terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime”. The capacity to extend this list is also given in the treaty to the Council of Ministers, though this must act unanimously and with the support of the European Parliament, so all member states must agree to any changes before they take place. As of June 2016, the EU has introduced one directive with minimum definitions and sanctions for the criminal offence of counterfeiting the Euro. Outside of the areas listed, the EU has no influence (or potential influence) over criminal sanctions in the UK.