RIGHTS AFTER : 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 of Great Britain and from the 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 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 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.

18 Case C-684/16 Max-Planck-Gesellschaft ​ http://curia.europa.eu/juris/document/document.jsf?docid=207328&doclang=en 19 Lang, A et al. (2017), “EU (Withdrawal) Bill: the Charter, general principles of EU law, and ‘Frankovich’ ​ damages”, HC Library 8140. https://commonslibrary.parliament.uk/research-briefings/cbp-8140/ ​ 20 For analysis see, for example, the evidence provided by Marie Demetriou QC, Brick Court Chambers; Aidan ​ O’Neill QC, Matrix Chambers; Angela Patrick, Doughty Street Chambers: Select Committee on the European Union Justice Sub-Committee,(2019) “Corrected oral evidence: Rights after Brexit”. http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-justice-subcommittee/rig hts-after-brexit/oral/102030.pdf 21 https://www.equalityhumanrights.com/en/legal-responses/parliamentary-briefings ​

The other section in the European Union (Withdrawal Agreement) Act 2020 that is a cause for concern is Section 26. This section gives ministers the power to make regulations which set out the circumstances in which lower courts can depart from judgments made by the Court of Justice of the European Union (although note that these regulations are subject to consultation with the judiciary). This risks reducing equality and human rights protections and creating legal uncertainty, with the result that people will have less legal protection for their fundamental rights. Lower courts are not bound by each other’s decisions, and if Ministers use Section 26 to allow lower courts to depart from CJEU case law, it could cause fragmentation in the interpretation of discrimination and human rights protections arising from retained EU law, potentially creating gaps in protections and obstacles for individuals trying to assert their rights.

In the following section, we we set out what is currently known and what to look out for:

Residence, Employment and Benefits EU citizens with settled and pre-settled status will have: ● Access to the NHS; ● Right to work; ● Right to enroll in education; ● Right to rent.22

Citizens with settled status will have access to all public benefits to which they are entitled, for example child benefit and disabled living allowance. Those with pre-settled status should still get access to these benefits but will often need to prove their right to reside23. Although administratively cumbersome, those with pre-settled status should qualify by this route. The requirements are proof of being an EEA national via passport or other relevant identification evidence; and being a qualified person i.e. seeking work, employed, self-employed, self-sufficient; or being the family member of a qualified person24.

Frontier workers entering the UK for employment will need to apply for a frontier document from January 2021. The details of this scheme has not yet been published by the government25 but you can monitor this page for further updates. ​ ​

22 https://www.gov.uk/settled-status-eu-citizens-families/what-settled-and-presettled-status-means ​ 23 https://www.citizensadvice.org.uk/benefits/claiming-benefits-if-youre-from-the-EU/before-you-apply/check-if-you-c an-get-benefits-if-youre-from-the-eu/ 24 https://www.entitledto.co.uk/help/Right_to_Reside_Test ​ 25 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 ● The Political Declaration set out the intention of the UK and EU countries to allow for visa-free travel for short-term visits26. This is not binding and it will be worth monitoring what becomes defined as a “short-term visit”. It is likely that visits of a longer duration will require a visa. ● EU citizens without settled status will be required to use their passports rather than ​ national ID cards when travelling in and out of the UK27. ● EU citizens with settled-status will be required to use passports rather than ID cards when travelling in and out of the UK from 202528. ● Right to travel with a pet - restrictions and requirements for travel are subject to negotiation and will vary according to the agreement made29. ● No agreement has been made to continue the mutual recognition of driving licenses. In the event of a “no deal” at the end of the transition period, EU driving licenses will stop being valid in the UK, and visa versa for UK citizens in the EU.

Workers’ Rights Employment rights derived from the EU will be retained unless the government brings in primary legislation to repeal or supersede these laws. Existing primary legislation in the UK protects the following rights in any event: ● Pregnancy/Maternity Rights - entitlement for paid time to attend antenatal appointments during working hours; right to partners to attend antenatal appointments during working hours; right for paid time to attend adoption appointments during working hours30; statutory maternity leave31; and prohibition of dismissal32. Shared parental leave is legislated for in domestic legislation only and therefore there will be no change. ● Discrimination - the Equalities Act 2010 protects workers from discrimination on the grounds of age, disability, gender reassignment, marriage and civil aprtnership, race, religion or belief, sex, and sexual orientation. ● Working Time - the right to request flexible working33.

In 1998 the provisions of the Working Time Directive were introduced into UK law via The Working Time Regulations. As this covered provisions such as paid holiday, previous legislation governing these rights such as the Holidays with Pay Act 1938 were rendered redundant whilst being

26 HM Government, (2019) “Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom”. 27 https://www.gov.uk/guidance/visiting-the-uk-after-brexit ​ 28https://www.gov.uk/guidance/visiting-the-uk-after-brexit 29 https://www.gov.uk/guidance/pet-travel-to-europe-after-brexit ​ 30 Sections 55; 57ZE; 57ZJ Employment Rights Act 1996. 31 The Maternity and Parental Leave etc. Regulations 1999. 32 Section 75 Employment Rights Act 1996. 33 The Flexible Working Regulations 2014 ​

retained on the statute book. In 2004 this legislation was repealed and as a result there is no domestic legislation about paid holiday entitlement other than that incorporated from the EU34. However it is unlikely that any changes will be made in relation to this right: the UK has a history of being ahead in this area and it would cause great political difficulties to any government proposing changes35.

The Government announced that workers rights would be addressed in an Employment Bill. There is no indication as to when this will be introduced and what it will contain. The Political Declaration committed to there being a level playing field on labour standards, which has been a requirement of all of the EU's trade agreements with third countries, however the government has said it will not agree to alignment purely for the purposes of achieving a level playing field36.

The Right to Vote The right to vote in local elections for EU citizens in the UK and GB citizens in the EU will be subject to bilateral agreements. It is likely that these will be established but that there will be a period during which these are being negotiated.

Voting rights relating to the devolved parliaments are determined by those parliaments. EU citizens living in Scotland will have the right to vote further to the Scottish Elections (Franchise and Representation) Bill which was passed on 20 February 202037. Wales and Northern Ireland continue to advertise the voting rights of EU citizens but have not made any statements confirming this will continue in the future38.

There have been calls from campaign groups such as the 3 million39 to give EU citizens with settled status the right to vote in general elections. The current government has made no indication that they would be amenable to this, but certainly worth watching out for particularly in party manifestos at the next general election.

Fundamental Rights As already mentioned, the actual act of leaving the EU does not have an immediate impact on the protection of core human rights under the ECHR in the UK. However EU membership had become contingent on being signed up to the European Convention on Human Rights, to which

34 A number of pieces of legislation were repealed on the same grounds further to the Statute Law (Repeals) Act ​ 2004. 35 https://www.bbc.co.uk/news/uk-politics-eu-referendum-36029217 ​ 36See House of Commons library report at https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8834 37 https://www.gov.scot/news/right-to-vote-extended/ ​ 38 https://www.eoni.org.uk/Vote/Which-elections-can-I-vote-at; ​ ​ https://www.electoralcommission.org.uk/i-am-a/voter/types-elections/national-assembly-wales 39 https://www.the3million.org.uk/let-us-vote-campaign ​

the EU itself is negotiating becoming a signatory40. A key aspect of the negotiations regarding the future relationship will be over whether the UK will remain a signatory, with reports that the government will refuse these demands41. The Conservative party pledged in their 2019 manifesto to update the Human Rights Act, while no further details have been provided yet it is likely that we will see legislation will be tabled in relation to this.

The European Union (Withdrawal) Act 2018 explicitly excludes the EU Charter of Fundamental Rights from being incorporated into domestic legislation. Accordingly from the end of the transition period there will be changes to how individuals can rely on the rights set out in the Charter. The most important points to note are as follows: ● Whilst the rights set out in the Charter are included in the body of EU law retained in domestic legislation, they lose their status as ‘fundamental’. This means that they can be repealed or amended by subsequent legislation according to political will. ● Courts will no longer have the ability to to prioritise rights over contravening domestic legislation. ● Where there had been an overlap in rights protection between the ECHR and the Charter, for example the respect for private and family life, individuals can now only enforce their rights under the HRA which is more limited in scope and has less effective remedies. ● The Charter has developed as a living document, being updated to include contemporary rights such as data protection. The ability for future rights to be protected is therefore lost.

The EU Justice Subcommittee took evidence last summer in relation to human rights after Brexit and have now reopened their inquiry. This will no doubt address the gap in rights left by the loss of the Charter of Fundamental Rights. Whilst we await the outcome, we are certainly in an “uncertain human rights landscape” (Joint Committee on Human Rights, 201842).

40 https://www.coe.int/en/web/human-rights-intergovernmental-cooperation/accession-of-the-european-union-to-the- european-convention-on-human-rights 41 https://www.telegraph.co.uk/politics/2020/02/29/boris-johnson-rejects-eu-demands-bind-uk-european-human-righ ts/ 42 https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/774/774.pdf ​