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Rights After Brexit: What Will Change?

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Rights After Brexit: What Will Change? RIGHTS AFTER BREXIT: WHAT WILL CHANGE? Author: Kathryn Sturgeon, Research and Events Assistant, Brexit Civil Society Alliance 11 March 2020 31 January 2020 has passed and Great Britain & NI is no longer a part of the EU. So far not a lot has changed: our MEPs are no longer sitting in the European Parliament, and Westminster wrangling has changed its focus from whether the Withdrawal Agreement would pass parliament to negotiating the future relationship. Here we address the question on the lips of many members of the public: what does this actually mean for me right now and what does it mean once the transition period has ended? The Transition Period During this period there are three categories of citizens whose rights we shall be considering: GB citizens in GB, EU citizens in GB, and GB citizens in the EU. Residence, Employment and Benefits Until 30 June 2021 all EU/UK citizens continue to have the same rights as the nationals of the state in which they are residing in relation to travel, housing, employment and social security1. To keep these rights from 1 January 2021 it is important that any EU citizen who intends to continue living in the UK applies to the EU Settlement Scheme by 30 June 20212, and any British citizens living in an EU members state applies for their equivalent scheme. Frontier Workers living in the UK are able to apply to the EU Settlement Scheme and will be able to continue to work in the EU during the transitional period. Those who commute into the UK from the EU are able to continue working for the time being but should look out for a registration programme which will allow them to continue from 1 January 202013. 1 Articles 13; 14; 22; 23; 24; 27 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01) implemented by the EU (Withdrawal Agreement) Act 2020. 2 https://www.gov.uk/settled-status-eu-citizens-families ​ 3 https://www.gov.uk/government/publications/rights-and-status-of-frontier-workers-in-the-uk-from-1-january-2021/ working-in-the-uk-as-a-frontier-worker-from-1-january-2021 Travel ● All UK and EU citizens have the right to unrestricted travel within the EU. ● Those with GB driving licenses can continue to use these within the EU4. ● Those with EU driving licenses and who are residents or students in Great Britain can continue to drive in Great Britain5. ● Visitors to Great Britain can use EU driving licenses as long as they carry vehicle insurance documentation. If the vehicle is insured in a country outside the EU, Andorra, Iceland, Liechtenstein, Norway, Serbia, or Switzerland you must carry an insurance green card or insure your vehicle in the UK6. ● Visitors to Northern Ireland from GB and EU can continue to use their national driving licenses7. Workers’ Rights Much UK employment law and practices comes from the minimum standards which have been set by the EU. These rights will continue to exist during the transition period as they are retained though the European Union (Withdrawal) Act 2018. ● Working Time8 - workers are entitled to: a minimum daily rest period of 11 consecutive hours; rest breaks in working period of six hours of more; an interrupted rest period of 24 hours per each seven day period; a maximum working week of 48 hours9. ● Night Work - normal workings not to exceed eight in a 24 hour period, additional protections in relation to special hazards and physical strain, and provision of health assessments10. ● Paid Annual Leave - at least four weeks per year11. ● Pregnancy/Maternity Rights - protection for pregnant and breastfeeding women from undertaking activities considered dangerous to their health or safety; the right to day work during pregnancy and shortly after birth; the right to 14 weeks of maternity leave; the right to time off for ante-natal examinations; the prohibition of dismissal12. ● Discrimination - Governments are required to prevent discrimiantion on the grounds of religion or belief, disability, age, sexual orientation13 or race14, with exceptions in which 4 https://www.gov.uk/driving-abroad ​ 5 https://www.gov.uk/driving-nongb-licence ​ 6 https://www.gov.uk/driving-nongb-licence ​ 7 https://www.nidirect.gov.uk/articles/advice-foreign-driving-licences-northern-ireland ​ 8 Workers, with the exception of some staff working in the transport industry, can be asked to opt out of these ​ directives. This is a voluntary agreement. See: https://www.gov.uk/maximum-weekly-working-hours/weekly-maximum-working-hours-and-opting-out 9 Articles 3- 6, Working Time Directive (2003/88/EC) ​ 10 Articles 8-9, Working Time Directive (2003/88/EC) ​ 11 Article 7, Working Time Directive (2003/88/EC) ​ 12 Directive 92/85/EEC 13 Equality Framework Directive (2000/78/EC) different treatment is required in order to enable the engagement of certain individuals, for example making adjustments for disabled employees. The Right to Vote EU citizens living in the UK continue to have the right to vote in elections to local and regional authorities and to the devolved parliaments unless domestic legislation is passed to the contrary. There is no legal guarantee that this legislation would not be passed during the transition period- meaning that EU citizens in the UK may lose the right to vote during local and regional elections. This is prescient considering there will be local elections across the UK on 7 May 2020. Agreements have been made with Spain, Luxembourg, and Portugal guaranteeing ongoing voting rights for their citizens within Great Britain and NI15. British citizens living in the EU no longer have the automatic right to vote in local or European Parliament elections as these rights are determined by membership of the European Union. Those living in Spain, Luxembourg and Portugal have been promised the right to vote further to the above agreements. Fundamental Rights The vast majority of core human rights protection in the UK is drawn from the European Convention of Human Rights (ECHR), to which we are a signatory and which is incorporated into our national law through the Human Rights Act 1998 (HRA). This includes the prohibition of torture and slavery, the right to liberty and security, the right to a private life, freedom of throught, conscience and religion, and freedom of expression. Our withdrawal from the EU does not affect the status of these rights within the UK. Membership of the European Union provided an additional source of rights: the EU Charter of Fundamental Rights16. This was introduced in 2000 and became legally binding further to the Lisbon Treaty in 2009. The Charter became applicable in UK courts whenever a question was being decided within the scope of EU law i.e., if it is ultimately governed by EU law17. This applies not only when a directive or regulation is being implemented in domestic legislation but any decision or ruling which came under that substantive area. The effect on this for citizens is that if 14 Race Equality Directive (2000/43/EC) ​ 15 https://commonslibrary.parliament.uk/brexit/the-eu/eu-voters-in-england-and-wales-rights-regions-and-registers/ 16 Full text available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT ​ ​ 17House of Commons European Security Committee, (2014) “The application of the EU Charter of Fundamental Rights in the UK: a state of confusion”, HC 979. https://www.parliament.uk/business/committees/committees-a-z/commons-select/european-scrutiny-committee/in quiries/parliament-2010/the-application-of-the-eu-charter-of-fundamental-rights-in-the-uk/ they begin a legal challenge in relation to an area governed by EU law, for example the type of pesticides allowed for use by farmers or employment rights under the Working Time directive, they principles of the Charter can be relied on in domestic courts. This extends to legal disputes between individuals provided the question in issue is governed by EU law18. The Charter brings together all of the rights enshrined throughout EU law into a single document. These rights are more wide ranging than the set of human rights included in the ECHR, including for example the rights to fair and just working conditions, environmental protection, and data protection. A wider scope of applicants can rely on the Charter to challenge a government decision or legal provision: under the HRA only victims of the violation can bring a legal claim whilst the test under the Charter is anyone with ‘sufficient interest’19. Finally, there are more effective remedies for breaches of the Charter than under the HRA: if a law is found to contravene the ECHR, the most the courts can do is to make a declaration of incompatibility, whilst the supreme and directly effective nature of the Charter means that contravening domestic legislation can be disapplied20. During the transition period the UK continues to be subject to the EU Charter of Fundamental Rights and therefore individuals can continue to rely on these rights until 1st January 2021. The Future Relationship As the future relationship is under negotiation and with little known about whether retained EU law will be replaced there is significant uncertainty about the future of rights. In particular, there are certain provisions in the European Union (Withdrawal Agreement) Act 2020 which presents some concerns that rights may be weakened over time. The Withdrawal Agreement Act 2020 implemented the EU-UK Withdrawal Agreement in domestic law and doing so, gives ministers very broad powers to implement the agreement. These ministerial powers traditionally receive little scrutiny and there is a concern that they may be used to weakened rights currently protected by EU law, such as rights to protection of personal data, children’s rights and the general rights in EU law to non-discrimination21.
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