THE FUTURE OF NATIONAL DATA RETENTION OBLIGATIONS – HOW TO APPLY DIGITAL RIGHTS IRELAND AT NATIONAL LEVEL?

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG ( JULY 25, 2016)
By Vanessa Franssen

 

On 19 July, Advocate General (AG) Saugmandsgaard Øe delivered his much awaited opinion on the joined cases Tele2 Sverige AB and Secretary of State for the Home Department, which were triggered by the Court of Justice’s (CJEU) ruling in Digital Rights Ireland, discussed previously on this blog. As a result of this judgment, invalidating the Data Retention Directive, many Member States which had put in place data retention obligations on the basis of the Directive, were confronted with the question whether these data retention obligations were compatible with the right to privacy and the right to protection of personal data, guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights (Charter). Hence, without a whisper of a doubt, several national legislators eagerly await the outcome of these joined cases, in the hope to get more guidance as to how to applyDigital Rights Ireland concretely to their national legislation. The large number of Member States intervening in the joined cases clearly shows this: in addition to Sweden and the UK, no less than 13 Member States submitted written observations. The AG’s opinion is a first – important – step and thus merits a closer look.

National and European shock waves after Digital Rights Ireland

The Digital Rights Ireland case was ground-breaking in many respects, and caused a real shock effect across the EU. As a result of the CJEU ruling, national data retention legislation was invalidated in several Member States. For instance, the District Court of The Hague struck down the Dutch national data retention legislation on 11 March 2015, and shortly afterwards, on 11 June 2015, the Belgian data retention law was annulled by the Constitutional Court, which largely copy-pasted the CJEU’s reasoning. This situation creates great uncertainty about the further potential use of traffic and location data of electronic communications in national and transnational criminal investigations (see eg the Workshop on data retention organized by the Consultative Forum and the Luxembourg Presidency), especially because such data are used in an increasingly large number of criminal cases, not just as incriminating, but also as exculpatory evidence.

In other Member States, the legislator very quickly launched the process for amending the national data retention legislation. For instance, in the UK, the Data Retention and Investigatory Powers Act was adopted only three months after the CJEU’s ruling. By contrast, in Luxembourg, which has invested significantly in the digital economy in the last few years while also emphasizing the importance of the protection of privacy and personal data, the legislative process kicked off in January 2015 but has still not resulted in new legislation.

At the European level, the legislator has so far shown little appetite to adopt a new Data Retention Directive, despite some attempts of the Luxembourg Presidency in the Autumn of 2016 to initiate such legislative process, or at least to stimulate the discussion. This should not come as a real surprise. On the one hand, the CJEU has been very active in the field of data protection over the last two years, addressing a large number of questions and raising new ones (some of which have been discussed previously on this blog: see here, here and here). On the other, the EU was already busy tackling other urgent and delicate data protection issues, such as the adoption of the new General Data Protection Regulation, repealing Directive 95/46/EC, and the Data Protection Directive with respect to the processing of personal data for criminal investigations, repealing Council Framework Decision 2008/977/JHA, and the negotiations and adoption of the new Umbrella Agreement with regard to EU-US law enforcement cooperation.

Short background to the cases

Immediately after the Digital Rights Ireland ruling, Tele2 Sverige AB (a provider of electronic communications) notified  the Swedish competent authority that it would no longer comply with the Swedish national data retention obligations as it considered those obligations were not meeting the CJEU’s conditions. This decision obviously caused great concern for the national authority, ordering Tele2 Sverige to resume its retention of data. Yet, Tele2 Sverige persevered and appealed this order before the Administrative Court in Stockholm and subsequently before the Administrative Court of Appeal, which referred the matter for a preliminary ruling to the CJEU. (Opinion, §§ 50-55)

In the meantime in the UK, the 2014 Data Retention and Investigatory Powers Act was challenged before the High Court of Justice of England and Wales and declared invalid on 17 July 2015, because the data retention regime did not provide for adequate safeguards in order to protect the right to privacy and the right to protection of personal data laid down in the Charter. In other words, the UK data retention regime did not comply with the conditions put forward by the CJEU inDigital Rights Ireland. However, the Home Secretary appealed this judgment and the Court of Appeal decided to refer two questions to the CJEU for a preliminary ruling. (Opinion, §§ 56-60)

Questions submitted to the CJEU

Interestingly, the approach of both referring courts is quite different, as results clearly from the way they formulate their respective questions for the CJEU.

The Swedish referring court asks the CJEU, first of all, whether

a general obligation to retain data in relation to all persons and all means of electronic communication and extending to all traffic data, without any distinction, limitation or exception being made by reference to the objective of fighting crime (…) [is] compatible with Article 15(1) of Directive 2002/58, taking into account Articles 7, 8 and 52(1) of the Charter?’ (Opinion, § 55)

Should such a general data retention obligation not be compatible with the Charter, could a data retention obligation then nevertheless be compatible with the Charter if the access of the competent authorities to the retained data is regulated as it is under Swedish law, if the protection and security of the data are regulated as they are under Swedish law, and if all relevant data must be retained for a period of 6 months before being erased, as imposed by Swedish law?

By contrast, the Court of Appeal of England and Wales is of the view that the CJEU did not set out ‘specific mandatory requirements of EU law with which national legislation must comply, but was simply identifying and describing protections that were absent from the harmonised EU regime.’ (Opinion, § 59)

Nevertheless, to be absolutely sure, it asks the CJEU to clarify this point:

Does the judgment of the Court of Justice in Digital Rights Ireland (including, in particular, paragraphs 60 to 62 thereof) lay down mandatory requirements of EU law applicable to a Member State’s domestic regime governing access to data retained in accordance with national legislation, in order to comply with Articles 7 and 8 of the [Charter]?’ (Opinion, § 60)

Furthermore, the Court of Appeal would like to know whether Digital Rights Irelandexpands the scope of Articles 7 and/or 8 of the Charter beyond that of Article 8 of the European Convention of Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR). Put differently, the referring court wonders whether the level of protection offered by the Charter is higher than that under the ECHR.

The AG’s opinion

The latter question raised by the Court of Appeal in the UK case should be rejected as inadmissible according to the AG, because it is only ‘of purely theoretical interest’ (§ 82) and not ‘relevant to the resolution of the disputes’ (§ 75). Even if the Court would want to address the question, EU law does of course not prevent the Court (or the legislator) from going beyond the protection offered by the ECHR (§ 80). On the contrary, in my view it may be quite desirable to go beyond the minimum safeguards guaranteed by the ECHR, and not just with respect to Article 8. Unfortunately, EU legislation – for instance also with respect to procedural safeguards in criminal proceedings – does not pass, or barely passes, the minimum level of protection granted by the ECHR (see, for instance, the analysis on this blog regarding the recently adopted Presumption of Innocence Directive).

Subsequently, the AG addresses the first question of the Swedish referring court, regarding the compatibility of a general data retention obligation with Article 15(1) ofDirective 2002/58/EC (the Directive on privacy and electronic communications) and Articles 7 and 8 of the Charter. In a first step, the AG affirms that a general data retention obligation falls within the scope of Directive 2002/58/EC, despite the exclusion of State activities relating to criminal law by Article 1(3) of the Directive. Indeed, it is not because the data retained can be accessed and used by police and judicial authorities for criminal investigations that the data retention rules, which address private actors providing electronic communications services (service providers), would themselves be excluded from the scope of the Directive (§§ 87-97). Next, the AG scrutinizes whether the possibility offered by Article 15(1) of Directive 2002/58/EC to restrict the rights and obligations of the Directive allows for the creation of a general data retention regime by national law. Unlike some of the civil liberties organisations intervening in the joined cases, the AG considers that the wording of Article 15(1) of Directive 2002/58/EC (‘Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period’) indicates that data retention obligations are not, as such, inconsistent with the Directive. The same goes for general data retention obligations, yet only if they ‘satisfy certain conditions’ (§ 108). Recital (11) of the Directive confirms this as it states that the Directive

does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security (…) and the enforcement of criminal law.

Hence, it

does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the [ECHR]

provided that those

measures [are] appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and (…) subject to adequate safeguards in accordance with the [ECHR].

In sum, what matters, is that (general) data retention rules meet certain requirements, which ensure striking an acceptable balance between the purposes pursued by those rules and the individual’s fundamental rights. These rights are not just the ones laid down in the ECHR, but also the ones of the Charter as data retention rules ‘constitutes a measure implementing the option provided for in Article 15(1) of Directive 2002/58’ (§ 121). In other words, national legislation encompassing data retention obligations are ‘governed’ by EU law, which triggers the application of the Charter, as the CJEU clarified in the Åkerberg Fransson case(discussed on this blog) and refined in later case law (eg Siragusa, also analysed on this blog, and Julian Hernández and others, §§ 32-49). By contrast, whether the Charter also applies to the national rules determining under what conditions police and judicial authorities can access the retained data is less obvious, because Directive 2002/58/EC does not cover ‘activities of the State in areas of criminal law’ (Art. 1(3)). While the AG is inclined to conclude that the Charter does not apply to those rules (§§ 123-124), he also stresses that

the raison d’être of a data retention obligation is to enable law enforcement authorities to access the data retained, and so the issue of the retention of data cannot be entirely separated from the issue of access to that data. As the Commission has rightly emphasised, provisions governing access are of decisive importance when assessing the compatibility with the Charter of provisions introducing a general data retention obligation in implementation of Article 15(1) of Directive 2002/58. More precisely, provisions governing access must be taken into account in the assessment of the necessity and proportionality of such an obligation.’ (§ 125, emphasis)

In other words, does this mean that the Charter indirectly applies to national rules regulating the access to the retained data? It will be interesting to see if and how the CJEU addresses this point, adding another piece to what Benedikt Pirker described on this blog as ‘the jigsaw puzzle of earlier decisions on the scope of EU fundamental rights’.

This brings the AG to the biggest and most tricky questions submitted for a preliminary ruling, combining the second question of the Swedish court and the first question of the Court of Appeal, concerning the conditions national legislation should respect when creating a general data retention obligation. Without a doubt, general data retention obligations constitute a serious interference with the right to privacy (Article 7 of the Charter) and the right to the protection of personal data (Article 8 of the Charter) (§ 128). So the crucial question is whether such interference may be justified and on what conditions (§ 129).

Based on a reading of Article 15(1) of Directive 2002/58/EC and Article 52(1) of the Charter, the AG identifies six cumulative conditions that must be met to justify the serious interference caused by a general data retention obligation:

–        the retention obligation must have a legal basis;

–        it must observe the essence of the rights enshrined in the Charter;

–        it must pursue an objective of general interest;

–        it must be appropriate for achieving that objective;

–        it must be necessary in order to achieve that objective;

–        it must be proportionate, within a democratic society, to the pursuit of that same objective.’ (§ 132)

While most of these requirements were already put forward by the CJEU in Digital Rights Ireland, when evaluating the legal regime laid down in the Data Retention Directive, the AG nevertheless wishes to revisit them, ‘[f]or the sake of clarity and given the facts which distinguish the present cases from Digital Rights Ireland’ (§ 133). In particular, he wants to have a closer look at the requirement of a legal basis (which was not addressed in Digital Rights Ireland) and the necessity and proportionality of data retention obligations in a democratic society.

The first requirement, imposing the need for a legal basis, should be interpreted in light of Article 52(1) of the Charter, stating that limitations to the rights of the Charter should be ‘provided for by law’ – a phrase that resonates the wording of the ECHR (‘in accordance with the law’, Article 8 ECHR) and the case law of the ECtHR (§ 141) – as well as in light of Article 15(1) of Directive 2002/58/EC. As a result, a regime of general data retention should be established on the basis of measures adopted by a legislative authority, that are accessible and foreseeable while offering adequate protection against arbitrary interference with the rights of privacy and data protection (§ 153). That being said, considering the differences in the various language versions of Article 15(1) of Directive 2002/58/EC (§§ 145-147), the AG acknowledges that regulatory measures adopted by an executive authority might also suffice, although he would personally prefer to give the executive authority only the responsibility of implementing the measures adopted by the legislative authority (§§ 152-153).

Second, any general data retention regime should observe the essence of the rights enshrined in Articles 7 and 8 of the Charter, as the CJEU also highlighted inDigital Rights Ireland. As long as the national data retention obligations do not concern the content of the electronic communications and as long as they provide for safeguards that ‘effectively protect personal data’ retained by service providers ‘against the risk of abuse and against any unlawful access and use of that data’ (§ 159), this requirement does not seem to create particular problems in the cases submitted to the CJEU.

Third, the interference with the rights to privacy and data protection caused by a general data retention obligation can only by justified if the latter pursues ‘an objective of general interest recognised by the European Union’. As the CJEU pointed out in Digital Rights Ireland, the objective to fight serious crime (such as international terrorism) is definitely recognized by EU law; Article 6 of the Charter does not only warrant the right to liberty, but also the right to security. Yet, whether data retention obligations are also justifiable, more generally, to combat ordinary crime, or even in proceedings other than criminal proceedings, as the UK government argues in its submission before the CJEU, is much less obvious. It should be acknowledged that limitations allowed for by Article 15(1) of Directive 2002/58/EC are not confined to ‘serious crime’. Indeed, this provision allows Member States to adopt restrictions that are necessary, appropriate and proportionate within a democratic society ‘to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences’. Nevertheless, in the AG’s view, the interferences caused by a general data retention regime are so serious that the fight against ‘ordinary offences and the smooth conduct of proceedings other than criminal proceedings’ are not ‘capable of justifying a general data retention obligation’ considering the ‘considerable risks that such obligations entail’ (§§ 172-173).

Moving forward, the AG evaluates the proportionality of general data retention obligations, which he splits up in three separate (sub-)requirements: are they appropriate (fourth requirement) as well as strictly necessary (fifth requirement) to achieve the aforementioned objective of fighting serious crime and proportionate in a democratic society (sixth requirement). Like the CJEU in Digital Rights Ireland, the AG sees no obstacle in the appropriateness of general data retention obligations to fight serious crime (§ 177). He even insists on the usefulness of such data, which allow police and judicial authorities to ‘examine the past’, even with respect to persons who were not suspected of a serious crime at the time of the electronic communications (§§ 178-181). Considering the current safety threats and the numerous terrorist attacks that took place after the Digital Rights Irelandjudgment, any other viewpoint would have surprised.

Next, the AG addresses the fifth requirement: are general data retention obligations really (ie strictly) necessary to combat serious crime? This requirement unfolds in two questions. For one, is a general data retention obligation strictly necessary, or on the contrary, does it go ‘beyond the bounds of what is strictly necessary for the purposes of fighting serious crime, irrespectively of any safeguards that might accompany such an obligation’ (emphasis added)? For another, if a general data retention does not exceed what is strictly necessary, ‘must it be accompanied by all the safeguards mentioned by the Court in paragraphs 60 to 68 of Digital Rights Ireland’ (§ 189).

As regards the first of these two questions, the AG adheres to the point of view that most parties (in particular the Member States) took in their written submissions:  a general data retention obligation as such does not exceed the limits of strict necessity. According to the AG, paragraphs 56 to 59 of Digital Rights Irelandshould indeed be interpreted as meaning that a general data retention obligation does not pass the strict necessity test but only if ‘it is not accompanied by stringent safeguards concerning access to the data, the period of retention and the protection and security of the data’ (§ 195, original emphasis).

One may wonder whether this is a correct reading of the CJEU’s judgment, which emphasized that the Data Retention Directive required the retention of all traffic data relating to all means of electronic communications and regarding all persons (‘practically the entire European population’), ‘without any differentiation, limitation or exception being made in light of the objective of fighting against serious crime’ (§§ 56-57). That being said, as some governments pointed out, if the Court would have considered that a general data retention obligation by itself exceeds the threshold of what is strictly necessary, then why did it bother to spell out in the subsequent paragraphs the safeguards that should apply? The upcoming judgment will undoubtedly tell us which interpretation is the right one.

Furthermore, the AG insists on the fact that national courts will have to assess whether there are no equally effective and less restrictive means available in the national system to achieve the same goal as a general data retention obligation (§§ 206-215), thereby passing on a difficult but very important balancing exercise to the national courts.

Assuming a general data retention obligation is strictly necessary, then all the safeguards put forward by the CJEU in Digital Rights Ireland (§§ 60-68) should respected by national law. Any other approach which would allow for a further balancing exercise between the different safeguards (as, for instance, the German government suggested, using the metaphor of ‘communicating vessels’) would, according to the AG, empty those safeguards of their practical effect (§§ 221-227). This means that national data retention rules should

1) make sure that the ‘access to and the subsequent use of the retained data [are] strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto’ (§ 229);

2) make the access to those data ‘dependent on a prior review carried out by a court or by an independent administrative body’ in order to assess the strict necessity of the access and subsequent use of the data (§ 232);

3) require service providers ‘to retain data within the European Union, in order to facilitate the review’ and to make sure that the EU safeguards apply (§§ 238-240), and

4) limit the retention period in function of the usefulness of the data (§ 242).

While it is again for national courts to evaluate whether the safeguards provided for by national law are sufficient, the AG does not hide his opinion that both the Swedish and the UK regime reveal a number of deficiencies in this respect (§§ 230, 233 and 239).

Sixth and last, the AG emphasizes the need to evaluate the ‘proportionality stricto sensu’ of a general data retention obligation, which consists in weighing the advantages and disadvantages of such an obligation within a democratic society (§ 248). Once more, the AG argues this is a task for national courts, but he nonetheless points out that a general data retention obligation entails a considerable risk of mass surveillance (§ 256). Based on an analysis of a large amount of (meta-)data, authorities could easily find as much, or even more, about an individual as they can by means of targeted surveillance measures, including the interception of content data (§§ 254 and 259). Unlike the content of communication, meta-data ‘facilitate the almost instantaneous cataloguing of entire populations’ (§ 259). If one just considers the large amount of requests service providers in Sweden and the UK receive from the competent authorities, one realizes that the risk of abusive or illegal access to the retained data is far from ‘theoretical’ (§ 260).

Some first thoughts

As the above analysis suggests, the AG’s opinion offers a lengthy and mitigated assessment of the six cumulative requirements that general data retention obligations under national law should meet. Some of these requirements (eg the requirement of a legal basis) can easily be fulfilled. Yet others will raise many problems for national legislators when delineating the domestic data retention framework.

For instance, the requirement that general data retention obligations must pursue ‘an objective of general interest recognised by the European Union that is capable of justifying a general data retention obligation’ will undoubtedly raise many problems at the national level. Is the fight against serious crime indeed the only acceptable objective? For sure, the ‘material objective’ of the Data Retention Directive was ‘to contribute to the fight against serious crime and thus ultimately to public security’, which made the CJEU decide that the Directive satisfied an objective of general interest (Digital Rights Ireland, §§ 41-44). But does this mean, as the AG advocates, that it is the only possible justifiable objective for nationaldata retention obligations, considering the seriousness of the interferences with the right to privacy and the right to protection of personal data? Furthermore, assuming it is, what offences are sufficiently ‘serious’ to justify a general data retention obligation? In Digital Rights Ireland, the CJEU explicitly stated that this is to be ‘defined by each Member States in its national law’ (§ 41). Yet, the AG suggest a different approach, by stressing that it should be ‘an objective of general interest recognized by the European Union’. Hence, how much leeway do Member States have? If an EU-wide understanding of the label ‘serious crime’ is to be preferred, would the list of Eurocrimes (which are in fact broad categories of crimes) in Article 83(1) TFEU then be of sufficient guidance?

Another concern of police and judicial authorities, which national legislators will want to take into account, is that what starts out as a simple, ‘ordinary’ criminal case, may very well turn out to be much more ‘serious’ in a later stage of the investigation. It may not be so easy to reconcile this concern with the safeguard to limit the data retention period in light of the usefulness of the data, ie considering the objective pursued or according to the persons concerned.

One may also wonder whether the AG’s opinion provides as much clarity as national legislators hope to get from the CJEU. Many issues will still need to be addressed by national legislators (eg to design safeguards that pass the Digital Rights Ireland test) and national courts (eg to evaluate whether there are no less restrictive alternatives than a general data retention obligation and whether the risk of mass surveillance does not outweigh the benefits offered by a general data retention obligation).

For sure, this is only a first reflection. Further reflection will undoubtedly follow after the Grand Chamber of the CJEU will have rendered its ruling. In the meantime, national legislators will have to be patient and uncertainty will persist about the potential use in criminal proceedings of traffic and location data retained on the basis of a general data retention obligation.

What Role for the European Parliament under Article 50 TEU?

ORIGINAL ON EU LAW ANALYSIS

by Darren Harvey, (PhD Candidate in Law, Darwin College, Cambridge)

Introduction

Last week, Alyn Smith MEP for Scotland received a standing ovation from the European Parliament following a passionate speech in which he expressed the desire for Scotland to remain within the European family of nations: link here.

This immediately brings to mind a further aspect of the debate surrounding the UK’s position regarding the Article 50 TEU withdrawal process which, to my mind at least, has not been given full consideration to date; namely, the need for consent of the European Parliament before any withdrawal agreement may be completed.

The relevant paragraph of Article 50 reads as follows:

  1. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

Leaving to one side the question of how the Article 50 process may be triggered in accordance with the UK’s domestic constitutional requirements (under Article 50(1)), it is clear from Article 50(3) TEU that once notification to withdraw has been made, the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2. In other words, the two-year clock starts ticking from the moment notification is made by the UK of its intention to leave the EU, unless of course the European Council votes unanimously with the UK to extend this period, or the UK withdraws the notification (if that is even possible; Article 50 is silent on this point).

This means that, should no deal be reached within the two-year period and should no unanimous agreement be reached in the European Council to extend the negotiations (a distinct possibility in my view), it is clear that the UK’s membership of the EU would simply come to an end.

However, in the event that a deal is reached, not only will its entry into force be dependent upon a qualified majority vote in favour in the Council, but also, and crucially, prior to such a vote taking place, the consent of the European Parliament is first required.

This raises two questions: first, how does the European Parliament give or withhold its consent? And second, what happens if that consent is not forthcoming?

Giving Consent

Turning to the first of these questions, the default decision-making rule for the European Parliament is set down in Article 231 TFEU which provides: ‘Save as otherwise provided in the Treaties, the European Parliament shall act by a majority of the votes cast. The Rules of Procedure shall determine the quorum.’ According to Rule 168(2) of the European Parliament’s Rules of Procedure ‘A quorum shall exist when one third of the component Members of Parliament are present in the Chamber.’

Given that Article 50 TEU is silent on this issue, the default rule in Article 231 TFEU would appear to apply. However, Article 82 of the European Parliament’s Rules of Procedure, entitled “Withdrawal Agreements” provides: ‘If a Member State decides, pursuant to Article 50 of the Treaty on European Union, to withdraw from the Union, the matter shall be referred to the committee responsible. Rule 81 shall apply mutatis mutandis. Parliament shall decide on consent to an agreement on the withdrawal by a majority of the votes cast.’

It therefore appears to be the case that the default quorum rules in Article 168(2) Rules of Procedure apply. This means that, should the full European Parliamentary chamber vote on the UK’s withdrawal agreement (which seems likely), a simple majority of votes cast shall determine the Parliament’s position.

However, unlike the rule for accession treaties set down in Article 49 TEU which requires Parliamentary consent by a majority of its component members: i.e. a number of votes greater than one half of the European Parliament’s total number of MEPs; Article 50 TEU merely requires a majority vote of at least one third of the total number of MEPs.

In other words, provided that more than one third of the total members of the European Parliament turn up to vote on any future withdrawal agreement, a simple majority of votes cast shall be sufficient to determine the European Parliament’s position.

Withholding Consent

What happens if the European Parliament withholds its consent from the UK’s withdrawal agreement? According to Article 50(2) TEU the answer appears clear: without European Parliament’s consent, there can be no move to a qualified majority vote in the Council and thus the withdrawal agreement cannot be concluded. Should this consent be withheld for the duration of the two-year period running from the moment the UK signals its intention to withdraw, it seems that the UK would once again be facing the prospect of having its EU membership come to an end without a deal.

Alternatively, should a deal be reached within the two-year period but the European Parliament signals its intention to withhold consent, it is conceivable that this may prompt a move to extend the negotiating period via a unanimous vote of the European Council and, in so doing, perhaps provide the European Parliament scope to have some input into the substance of the withdrawal agreement.

In light of this, the role of the European Parliament is not to be taken lightly in the months and years that follow – not least because national governments will have much less control over their MEPs than their representatives in the European Council and the Council.

Furthermore, whereas Article 50 (4) TEU makes it clear that for the purposes of Article 50 (2) and 50 (3) the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it, nothing is said about the MEPs of the withdrawing state. Will the UK’s MEPs be involved in the vote to give consent to the withdrawal agreement prior to moving to Qualified Majority Voting in the Council?

To my mind this brings an additional and as yet largely unexplored question to the table regarding the role that Scotland (and perhaps Northern Ireland) can play in the Article 50 withdrawal process. Whilst it may not be possible as a matter of UK domestic law for the devolved governments to block Brexit (see Mark Elliott’s post), there would appear to be scope for Scottish and Irish MEPs to begin building alliances across the European Parliament to withhold consent from any future withdrawal agreement lest their interests be protected. The great risk with this, of course, is that the European Parliament withholds consent, no extension to the negotiations is agreed in the European Council, and Scotland, with the rest of the UK, leaves the EU with nothing.

The above is of course speculative in nature and much negotiating lies ahead before we begin to build up a clearer picture of what any future UK-EU relationship will look like. Following last week’s standing ovation in the European Parliament for a MEP who is a member of the Scottish National Party, however, the European Parliament may yet prove to be a key player in how that future relationship takes shape.

Brexit : questions de frontières entre l’Union et le Royaume Uni

ORIGINAL PUBLISHED ON CDRE SITE 

Henri Labayle

Les commentaires du feuilleton politico médiatique accompagnant le feuilleton du Brexit ne sont pas à la hauteur de ses enjeux. Les mêmes qui stigmatisent les mensonges et approximations de la campagne référendaire britannique, trouvent logique de sacraliser le procédé référendaire qui l’a conclue, comme si cette technique était un modèle à révérer dans une démocratie accomplie. Elle appelle pourtant presque par nature de prendre de telles libertés avec la vérité.

Oublieux qu’ils sont des conditions dans lesquelles les « non » de 2005 s’étaient agrégés, ils persistent à penser que l’on peut répondre de façon binaire à des questions complexes et nourrissent l’illusion démocratique. L’inconséquence de Boris Johnson a-t-elle quoi que ce soit à envier aujourd’hui au « plan B » de Laurent Fabius et mêler les voix de Jean Luc Mélenchon et du Front national avait-il un sens à l’époque ?

C’est dire si les nouveaux chantres de la (dé)construction européenne ignorent l’essentiel. Parmi les questions brûlantes passées par pertes et profits dans le débat et que découvrent les citoyens britanniques, celle de la redéfinition des frontières extérieures du Royaume Uni n’est pas la moindre. Qu’il s’agisse du maintien de situations antérieures, à Gibraltar comme aux abords du tunnel sous la Manche, ou de l’appréhension nouvelle des relations avec la République d’Irlande, les défis sont sérieux. Ils ne sont pas de même nature.

1. La plaie ouverte de Calais

Vu du continent, le Brexit a immédiatement ravivé les polémiques liées à la situation anormale qui prévaut dans la région de Calais depuis plus de dix ans. Au prétexte aisément compréhensible que, le Royaume Uni quittant l’Union, plus rien ne justifierait que la France garantisse sur son territoire le contrôle de la frontière britannique.

La chose est un peu plus compliquée que cela.

En droit, d’abord, le problème est essentiellement placé sous un régime bilatéral et la situation actuelle résulte de la conjonction de différents facteurs réglés par des textes de nature et de portée différente. Le premier de ces facteurs est lié au fait que le tunnel sous la Manche et le trafic l’empruntant réclamaient des solutions particulières en matière de contrôle des flux de personnes, sans parler des contraintes liées au trafic maritime.

Dès 1986 et le Traité de Cantorbery , les autorités des deux Etats, dont François Mitterrand et Margaret Thatcher, avaient convenu de déroger aux procédés classiques de contrôle des frontières. Déconnectant la question de la délimitation de la frontière physique, située en mer sur la ligne de démarcation des deux plateaux continentaux, de celle des contrôles policiers et douaniers, opérés sur le territoire de chacun, respectivement à la gare du Nord et de Saint Pancrace, la coopération bilatérale des deux Etats allait rapidement prendre la forme d’un véritable chemin de croix.

Le 25 novembre 1991, afin de compléter le traité du 12 février 1986, les deux pays signaient le protocole relatif aux contrôles frontaliers et à la police, à la coopération judiciaire en matière pénale, à la sécurité civile et à l’assistance mutuelle, concernant la liaison fixe transmanche, dit « Protocole de Sangatte », texte renforcé par un protocole additionnel relatif à la création de bureaux chargés du contrôle des personnes empruntant la liaison ferroviaire reliant la France et le Royaume-Uni, signé le 22 mai 2000. Ces deux accords visaient à accentuer les moyens de lutte contre l’immigration clandestine, mis rapidement dans l’incapacité de répondre à la situation dramatique de Sangatte, dont la sinistre réputation était justifiée.

Attirés comme des papillons par la lumière pour les raisons que l’on sait par un système britannique vécu par eux comme un eldorado, des milliers de ressortissants de pays tiers, le plus souvent en situation irrégulière et parfois demandeurs de protection internationale aboutissaient en effet à l’impasse du Calaisis. Dans des conditions inhumaines autant qu’indignes, comme la CNCDH eut l’occasion récente de le stigmatiser vigoureusement dans un avis en 2015.

D’où la conclusion du traité du Touquet , en 2003, sous l’impulsion du ministre de l’Intérieur de l’époque Nicolas Sarkozy, permettant de fermer le camp de Sangatte et d’accentuer et de pérenniser la collaboration des autorités britanniques, moyennant compensations financières et humaines. Le tout conservant des conséquences toujours évidentes : enkyster la pression migratoire sur quelques kilomètres carrés situés en France en vue d’un hypothétique passage clandestin vers le Royaume Uni. D’où un renforcement, dans un nouvel arrangement en 2014, des moyens mis en œuvre sans que la pression migratoire se relâche, quoi qu’en prétende l’actuel ministre de l’Intérieur français.

Le plus baroque de cette situation est rarement dénoncé à son juste prix : l’impasse de Calais démontre qu’il est plus facile de pénétrer de façon irrégulière dans l’espace Schengen, ce qu’on fait les migrants présents à Grande-Synthe, que d’en sortir en direction d’un Etat non membre de cet espace, ce qu’est la Grande Bretagne …

Bien évidemment, le caractère strictement bilatéral de cette construction n’a échappé à personne et ce avec une force d’autant plus grande que l’hypothèse d’un départ de la Grande Bretagne se précisait. L’idée d’une dénonciation de ces accords s’est alors posée.

Elle est juridiquement possible, en vertu de l’article 25 §2 du traité franco-britannique qui dispose que « chaque partie peut y mettre un terme à tout moment en informant l’autre par la voie diplomatique, laquelle prendra effet deux ans après la dite notification ». Tout dépendrait alors d’un acte de volonté politique des autorités françaises.

Toujours en droit, la réponse à cette question est moins évidente qu’il n’y paraît. Certes, se dégageant de l’Union, le Royaume Uni a toutes chances de se dégager aussi de sa politique d’asile et notamment du règlement Dublin qui faisait obligation de reprendre les demandeurs d’asile aux Etats par lesquels ces demandeurs avaient transité. Contribuant à permettre aux britanniques de se défausser sur des tiers, malgré quelques gestes timides envers les mineurs isolés justement désignés par la CNCDH, cette situation était scandaleuse mais protectrice de la quiétude britannique.

Il reste que, du point de vue des frontières, la frontière franco-britannique était déjà et demeure une frontière extérieure à l’espace Schengen, dont le Royaume Uni n’a jamais fait partie. Son retrait ne change pas fondamentalement la donne concernant les obligations pesant sur les uns et les autres et d’autres obligations pèsent sur la France.

Ainsi, le Code frontières Schengen, auquel la France est soumise, souligne expressément et notamment dans son article 8 l’obligation de contrôle, même minimal, pesant sur les Etats membres lors du franchissement des frontières extérieures en vue de sortir de l’espace commun… Le tout pour des raisons d’ordre public aisément compréhensibles, indépendamment du traité du Touquet. Que n’a-t-on dit de la libre circulation des terroristes dans l’espace Schengen lors des attentats de Paris et Bruxelles à cet égard …

Au delà de cette situation juridique, dans les faits, il s’ajoute une série de considérations expliquant les prises de position publiques des autorités françaises hostiles à tout changement.

La première est incontestablement liée à la précarité de la situation migratoire en France. Si la lâcheté française sur le front de la crise des migrants de l’année 2015/2016 l’a relativement mise à l’abri de la tempête ayant frappé ses principaux voisins, ce qui est visible dès lors que l’on raisonne en volume et non en pourcentage d’immigrants parvenus en France, Paris entend persister dans ce créneau. Sa crainte est en effet de déclencher un véritable « appel d’air » en dénonçant les accords du Touquet. Cette dénonciation enverrait selon elle un message d’ouverture au monde d’extérieur, quitte à le surévaluer. La difficulté de franchir la Manche demeurant tout aussi grande en pratique avec ou sans coopération franco-britannique, ce message ne se traduirait d’ailleurs pas nécessairement par une amélioration des chances de franchir le Channel. La posture française étant celle de la dissuasion, tout élément allant à l’encontre de cette stratégie est donc proscrit.

La seconde raison est d’ordre sécuritaire. Elle est systématiquement mise en avant par le ministre de l’Intérieur pour balayer les discours qui estiment que les flux migratoires cesseront dès lors que les contrôles au profit du Royaume Uni disparaitront et que les britanniques doivent en quelque sorte « payer » leur sortie. Ce discours est tenu dans l’opposition mais aussi à ses cotés au gouvernement, à entendre le ministre de l’Economie. Incontestablement de ce point de vue, la prise en compte de la traite des êtres humains et des trafics en tous genres, les préoccupations liées au terrorisme comme la sécurisation des lieux et des équipements conduisent au statu quo.

Quitte à mettre en balance les avantages et les inconvénients d’un tel statu quo et d’une dénonciation, malgré le prix politique à en payer auprès de l’opinion publique, la première option paraît avoir été arbitrée si l’on en croit les déclarations concordantes du Président de la République, du ministre des affaires étrangères et du ministre de l’Intérieur. D’autant que la relation franco-britannique n’est pas faite que de cette question et qu’il n’est pas douteux que la partie française tire argument de cette situation désavantageuse pour obtenir compensation dans un autre secteur en discussion.

Enfin, un simple raisonnement de bon sens oblige à la prudence : comment imaginer concrètement un démantèlement des installations portuaires et ferroviaires garantissant actuellement la frontière, au contact de milliers de personnes, immédiatement rejointes par des flux équivalents et prétendant forcer le passage britannique ? Comment envisager sereinement l’hypothèse d’éventuels passages maritimes clandestins à l’image de ceux de la Méditerranée dans l’une des voies maritimes les plus fréquentées de la planète, au seul prétexte de « faire payer » un partenaire défaillant. Les migrants mal traités par la République et refusés par le Royaume Uni ont donc toutes chances de ne trouver durablement que l’appui compatissant des ONG pour toute réponse à leur calvaire.

2. L’imbroglio de l’Irlande du Nord

Vue des îles britanniques, la question la plus sensible est vraisemblablement la question irlandaise. Toute insulaire qu’elle soit, la position des îles britanniques pose désormais problème : deux Etats y disposeront d’un statut différent au regard de l’Union européenne.

Jusqu’à présent en effet, la force des liens qui unissait le Royaume Uni et la République d’Irlande expliquait que, malgré certaines velléités irlandaises contraires, ces deux Etats membres aient adopté une même attitude de refus à l’encontre de l’espace de libre circulation Schengen. D’où une relation transfrontalière très particulière entre ces deux Etats, à la fois de manière générale mais aussi des deux cotés des 500 kilomètres de frontières les unissant et destinées demain, selon toute vraisemblance, à les séparer.

En d’autres termes, la frontière irlandaise deviendrait la seule frontière terrestre extérieure de l’Union avec le Royaume Uni, en réservant la question de Gibraltar, et ceci dans un contexte où, jamais, il n’a existé de contrôle de l’immigration à cet endroit.

Cette relation est faite de deux textes majeurs, l’accord de paix pour l’Irlande du Nord, dit « accord du Vendredi Saint » signé le 10 avril 1998 et, surtout, la Zone de Voyage Commune (Common Travel Area) instituée depuis les années 20 et dont le Protocole sur l’application de certains aspects de l’article 7 A du traité instituant la Communauté européenne au Royaume-Uni et à l’Irlande a officialisé l’importance à Amsterdam, réitérée à Lisbonne.

Son existence signifie que les citoyens britanniques et irlandais circulant entre les deux Etats ne sont pas soumis à des contrôles de passeport, peuvent en être dépourvus mais aussi que les deux Etats ont développé une coopération bilatérale sur les questions relatives à l’immigration et au contrôle des frontières (Amendment Order de 1975).

Faisant contre mauvaise fortune bon cœur, la République d’Irlande s’était donc alignée sur le refus sans concession du Royaume Uni d’adhérer à l’espace Schengen, considérant que les inconvénients d’un renoncement à la CTA l’emportaient. Néanmoins, dans sa déclaration n° 56 jointe au traité sur l’Union, l’Irlande se déclarait « attachée à l’Union en tant qu’espace de liberté, de sécurité et de justice dans le respect des droits fondamentaux et des différents systèmes et traditions juridiques des États membres à l’intérieur duquel les citoyens jouissent d’un niveau élevé de sécurité » et rappelait « que, conformément à l’article 8 du protocole, elle peut notifier par écrit au Conseil son souhait de ne plus relever des dispositions du protocole ».

Que la frontière séparant l’Irlande du Nord et la République d’Irlande ne soit plus une frontière intérieure aux îles britanniques mais devienne une frontière extérieure de l’Union pose évidemment une question majeure. Pour les 20 à 30 000 personnes qui les franchissent quotidiennement bien sûr mais aussi pour l’Union et les deux Etats concernés.

L’Irlande du Nord ne s’y est pas trompée, qui a voté majoritairement pour demeurer dans l’Union, l’impact économique et politique d’un départ lui apparaissant immédiatement. Que le restant du Royaume Uni ait décidé autrement, les sirènes du départ présentant l’exemple norvégien comme un modèle à atteindre, met chacun désormais au pied du mur.

On pourrait en effet concevoir que, dans l’idéal, une zone de libre circulation aussi grande que possible puisse être maintenue entre les deux parties, comme l’ont prétendu certaines autorités nord irlandaises, mais ce souhait se heurte à un obstacle majeur. La libre circulation des personnes faisant partie intégrante des exigences communautaires remises en cause par le « non » britannique, lequel faisait masse de l’immigration intra et extra-communautaire, il est difficile d’imaginer de céder sur cette question de principe. Y compris pour la partie britannique qui a fait du contrôle de sa frontière extérieure un argument de campagne et qui ne saurait oublier, à l’image de Boris Johnson et Nigel Farage, que la Norvège fait partie intégrante, elle, de l’espace Schengen …

Cette impasse ouvre donc un double risque politique, que l’Union devra assumer car il ne s’agira plus là d’un dossier irlandais mené par des négociateurs irlandais mais d’un dossier européen conduit à ce titre, dans la transparence qui convient. Risque intérieur à l’Irlande du Nord d’abord, tant on sait que la pacification opérée dans les deux dernières décennies doit beaucoup justement à ce régime de libre circulation et tant on peut craindre que le retour de la frontière ravive les tensions sur le plan de la paix civile.

Risque interne au Royaume Uni ensuite tant l’Irlande du Nord commence à mesurer les conséquences concrètes d’un départ de l’Union pour son économie, son agriculture autant que pour sa relation avec le voisin du Sud.

3. La menace de Gibraltar

Vue d’un autre Etat membre, le Royaume d’Espagne, le Brexit relance une autre polémique, celle relative au statut de Gibraltar. Peuplés de 33 000 habitants et d’un nombre non négligeable de singes, ses 6 kilomètres carrés sont placés sous souveraineté britannique depuis 1713 et le traité d’Utrecht.

De la gestion d’une partie de sa piste d’aéroport aux incursions des pêcheurs en passant par l’organisation des élections aux Parlement européen vérifiée par le juge européen, tout est régulièrement prétexte et objet de tensions entre les deux Etats membres, allant parfois jusqu’au blocage de la frontière et de l’accès au territoire. Le Brexit devenu réalité, force est donc pour les protagonistes d’imaginer une solution.

Le point de vue espagnol n’est évidemment, pas de dentelle. Son ministre des Affaires étrangères l’a immédiatement signifié : « il faudra désormais trouver quel type de relation Gibraltar veut avoir ». Sa vision est simple et sa conclusion limpide : « notre formule est celle d’une co-souveraineté britannico-espagnole pendant une période limitée, qui débouche sur la restitution de Gibraltar » à l’Espagne et « la perspective de voir le drapeau espagnol flotter sur Gibraltar se rapproche ».

Les autorités du Rocher, quoique farouchement favorables au statu quo depuis le référendum plébiscitaire de 2002, se résignent donc à explorer des voies leur permettant de conserver leur accès au marché commun européen et leur statut de paradis fiscal, quitte à s’aligner sur la position diplomatique de l’Ecosse. Si le spectre des Malouines s’éloigne après le Brexit, faudra-t-il alors revisiter celui du statut de Hong Kong

Leaving the EU: UK Parliament’s Role in the Process

Published Thursday, June 30, 2016

Following the result of the referendum held on 23 June 2016, this House of Lords Library briefing examines what Parliament’s role would be in the process of withdrawing from the European Union in several key areas: invoking Article 50; overseeing the negotiation process; ratifying agreements; repealing and reviewing domestic legislation.

Jump to full report >>

Following a vote in the referendum on 23 June 2016 in favour of the UK leaving the European Union, the Prime Minister said that this decision “must be accepted”, adding that “Parliament will clearly have a role in making sure that we find the best way forward”. Drawing on parliamentary material and recent legal and constitutional comment, this Library briefing examines what Parliament’s role would be in the process of withdrawing from the European Union in several key areas:

Invoking Article 50—The Prime Minister has said it would be for his successor and his or her Cabinet to decide whether the House of Commons should have a vote on the decision to trigger Article 50, the formal process set out in the Treaty on European Union for member states to follow should they decide to leave the EU. Some legal commentators agree that prerogative powers would enable a Prime Minister to take this decision; some have suggested that Parliament could have a role, and others have gone further, arguing that prior parliamentary approval would be required before Article 50 could be invoked.

Overseeing the Negotiation Process—Formal negotiations between the UK and the European Union would not begin until the UK made a notification under Article 50 of its decision to withdraw from the EU. Parliament’s involvement in overseeing or scrutinising such negotiations has not yet been set out in great detail. The chair of the House of Lords European Union Committee has called for Parliament to be “fully involved” in the process.

Ratifying Agreements—Parliament would have a statutory role in ratifying an eventual withdrawal agreement and any other international agreements arising from the negotiations if they were subject to the usual procedure for ratifying treaties. The House of Commons potentially has the power to block the ratification of a treaty indefinitely; the House of Lords does not. Under the terms of Article 50, the UK’s membership would cease two years after it gave formal notification of its intention to leave, if no withdrawal agreement had come into force by that point, although the two-year period could be extended on the unanimous agreement of all EU member states.

Repealing and Reviewing Domestic Legislation—As part of the process of leaving the EU, decisions would need to be made about how to deal with existing domestic legislation passed to enable EU law to have effect in the UK, a process which the House of Lords European Union Committee has described as “domestic disentanglement from EU law”. Parliament would have an important role to play in reviewing, repealing, amending and replacing legislation, a process which is predicted by many to be complex and time-consuming. Once the UK had formally triggered Article 50, its timescales would apply independently of Parliament approving domestic legislative changes associated with leaving the EU.

Jump to full report >>

What next after the UK vote to leave the EU?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Professor Steve Peers

Many of the consequences of the UK’s vote to leave the EU will not be clear for some time. However, here’s my initial take on some of the key issues, in their broader political context.

1 Is the referendum vote binding?

Legally, no. But it is politically unthinkable that it will be ignored, in particular by MPs whose constituency voted to leave.

2 Could the UK simply renegotiate its EU membership again, and then hold a referendum on those results, rather than actually Leave the EU?

This is technically possible, and some on the Leave side hinted at this as a possibility. However, a lot of Leave voters might resent this idea, as they probably thought that they were actually voting to leave the EU – although they would of course have the chance to confirm that position in the second referendum. This option would also require the remaining EU to be willing to offer such a re-renegotiation, and it might also be difficult to put into effect, since it would probably need a Treaty amendment (limiting the free movement of people, for instance) ratified by all Member States.

3 What is the process to leave the EU?

The official process is set out in Article 50 of the Treaty of European Union. I’ve blogged about that in detail here, and there’s a shorter version of my analysis here. It would also be possible to leave the EU by amending the Treaties, although it is hard to see why that would be an attractive option to the UK, since it would require long ratification periods and unanimous voting on the EU side.

Some on the Leave side have hinted that they think there is some alternative mystery process to leave, although they have not defined why they think this or what that would entail. The likelihood is therefore that Article 50 will be used. Any alternative approach would likely face a successful legal challenge.

4 What does Article 50 say?

The UK notifies a withdrawal decision to the EU. That triggers a two-year period at the end of which the UK is no longer an EU member. That time can be shorter (if an EU/UK withdrawal treaty provides for this). It could also be longer if all Member States and the UK agree.

It is up to the UK when exactly to notify the withdrawal decision. It could delay making the notification, although a very long delay could possibly increase economic uncertainty and fuel distrust by Leave voters.

The negotiation concerns a withdrawal agreement. It is not clear if this is a technical agreement limited to the fiddly details of the UK leaving, or whether it would also govern the EU-UK future relationship. The point is relevant since otherwise the EU-UK relationship would have to be negotiated separately, and different rules would apply. While the withdrawal agreement is subject to majority voting among the remaining EU Member States, it is more likely that a separate deal would be subject to unanimous voting and national ratification.

It is also not clear if a notification to leave the EU can be withdrawn after it is made. That would be relevant if the plan were to negotiate the future UK/EU relationship, then ask the public in another referendum whether they wanted to leave on those terms or not.

5 Can the UK amend laws relating to EU membership already? Continue reading

EU Referendum Briefing 6: A Bonfire of Rights? EU Employment and Equality Law after Brexit

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by  Steve Peers

It’s been suggested that there would be a ‘bonfire of rights’ if the UK left the EU – in particular rights relating to employment and equality. As a response, some have suggested that the EU has nothing to do with employment and equality law in the UK – that all such rights are actually home-grown.

As I will demonstrate in detail in this blog post, it is undeniably the case that EU law has significantly raised the level of employment and equality rights in the UK – particularly as regards equality for women in the workplace.

My study of all the cases reaching the EU court concerning UK law on these issues shows that 60% of all the EU court cases about equal treatment of women in Britain resulted in a finding that UK law breached EU law – therefore raising the standards of protection for women in the workplace. 62% of the other cases on workers’ rights led to the same result.

As for what would happen in the event of Brexit, we cannot be absolutely certain – but a large number of the most prominent supporters of Brexit have admitted in detail their intention to lower those standards.

I’ll first summarise the main points, and then set out the facts in detail.

Summary

The EU has not set uniform standards on every aspect of employment and workplace equality law – and it never will.  Its role, according to the Treaties, is to set minimum standards in certain areas of employment and equality law. So where the EU hasn’t acted at all – such as on zero hours contracts, trade union laws or minimum wages – Member States can do as they like. The blame (or credit) for the choices which the UK makes on those issues must go entirely to this country’s government.

On the other hand, where the EU has acted – such as on holiday pay and equality in the workplace – Member States can set higher standards, but not lower ones. The EU rules in effect set a floor below which Member States can’t go; but there is no corresponding ceiling.

It’s been argued during the referendum that because the UK has sometimes adopted laws on certain employment or equality issues before the EU did, the EU therefore added nothing. This argument profoundly misunderstands the law in this area. Just because the UK put the Equal Pay Act on the statute books before it was covered by EU laws on equal pay for men and women doesn’t mean that those EU laws had no added value. That’s because British laws in this area have often contained many exclusions or exceptions, and EU law has often removed them.

In this blog post, I prove that point by looking at every single ruling of the EU court concerning UK law on employment or equality issues. As I noted in the introduction in 60% of cases, regarding women’s equality at work, and 62% of other workers’ rights cases, UK law fell below EU standards.

In practical terms, this increased protection regarding (among other things): equal pay for work of equal value for women; protection at work during pregnancy and maternity leave; better protection of pensions when an employer goes broke; and extension of paid holidays to include more workers.

However, a significant number of the relevant laws have been targeted for removal by serious supporters of Brexit.

In conclusion, European Union law has significantly increased the level of protection in a number of areas of employment and equality law. Leaving the EU would not automatically mean that those protections are lost, but they would no longer be guaranteed – and many of the most senior figures supporting Brexit have expressed their intention to remove some of them.

Detailed analysis

The following analysis looks at (a) the main features of EU involvement in employment and equality law; and (b) the prospect of the rules stemming from EU law being repealed after Brexit.

Mainly the EU’s impact in this area has been in the form of laws that set minimum standards on some workers’ rights issues, and on discrimination against workers on some grounds. EU law also bans discrimination outside the workplace on grounds of sex or race. In a lot of these areas, the UK had its own laws beforehand. For instance, the Race Relations Act dates back to 1965. However, there have been some areas where UK law changed because of a new EU law which the UK implemented, or because of a ruling of the EU courts, or the UK courts interpreting EU law. A complete list and summary of all the relevant EU court cases is set out in the Annex. Some of the key cases are discussed further in the main part.

While some argue that the rights concerned anyway derive from Conventions (international treaties) agreed within the framework of the International Labour Organisation (ILO), ILO treaties are not enforceable in British law. The very fact that the EU court has ruled on UK breaches of EU employment and equality law proves that the existence of ILO treaties does not by itself guarantee employment or equality law protection in individual cases.

Employment law

The EU does not deal with every employment law issue. In fact, it can’t. The EU treaties rule out any EU laws on pay or trade union rights. So there are no EU laws on those issues, although in some cases the EU has an indirect impact on these topics.  There are also some areas where the EU could act if all Member States agreed, such as rights on the termination of employment. But it is hard to reach unanimous agreement on employment law issues, and so there are few laws in these areas either.

What topics does EU law address? First and foremost, there are a number of EU laws on health and safety. The most prominent of these is the law on working time, which guarantees a minimum amount of four weeks’ paid holiday. Although the UK had a law in force on this issue before the EU law, it did not guarantee paid holidays for all workers. The EU court case law has specified in particular that the UK has to ensure paid holidays for fixed-term workers (BECTU), and to include allowances (Williams) and commissions (Lock) in holiday pay.

Next, there are EU laws on major changes to workers’ employment contracts. In particular, there are EU laws on three issues: rights in the case of mass redundancies; rights when an employment contract is affected by the transfer of the employer; and rights when a business goes broke.

The mass redundancies law doesn’t ban or limit the grounds for redundancies, or provide for rules on redundancy payments – so the UK and other EU countries can regulate those issues however they want to. First and foremost, this law it sets out a waiting period before large numbers of redundancies can be made, once the employer has decided in principle to make a lot of its workers redundant. The employer must give a detailed explanation of its plans to the workers who are set to lose their jobs. During the waiting period, the workers’ representatives and the employer must hold discussions with a view to helping as many affected workers as possible, for instance by saving jobs or retraining. If the employer fails to do this then there must be some form of sanction.

The EU court has ruled that the UK had not applied this law properly when it said that employers only had to consult the workforce when there was a trade union recognised by the employer. This was a breach of the EU law because that law required workers to be consulted about mass redundancies whether there was a trade union representing the workforce or not, and whether the trade union was recognised by the employer or not. Also the UK had not provided enough of a sanction for employers who breached the law. While employers were in principle subject to a fine for breaking the law, they could deduct it from the redundancy payments which they had to pay to workers anyway.

If a business goes broke, EU legislation provides that a minimum amount of workers’ back pay which may be owing at the time of insolvency has to be guaranteed. This law also requires a basic protection of occupational pensions where businesses go broke. The key EU court case of Robins said that the UK was not doing enough to protect pensions in such cases. British law was changed as a result.

Another issue addressed by EU law is so-called ‘atypical work’. This refers to work which is different from the traditional full-time open-ended contract with one employer. In particular, there are different EU laws for three types of atypical work: part-time work, fixed-term work and agency workers. There are no EU laws on ‘zero-hour’ contracts or internships, however.

Basically these EU laws say that the atypical workers who are covered by them should be treated equally with regular employees as regards their pay and conditions. Also, employers should make it easier for part-time workers or agency workers to join the regular workforce, and for full-time workers to switch to part-time work if they wish.  For fixed-term workers, there must be limits on the number of times a contract can be renewed over and over, to protect against exploitation.

Finally, another issue addressed by EU laws is worker consultation and information. There is both a general law on worker consultation and information in large companies, and a specific set of rules of ‘European works councils’, which applies to multinational companies with over 1000 employees across the EU. These laws allow the employers and the workforce to reach alternative arrangements if they wish. There are no EU rules requiring small businesses to inform and consult their workers, except in the special case where the employee contracts are transferred.

Discrimination law

There are EU laws banning discrimination on six grounds: sex, race, age, disability, religion and sexual orientation. The laws on sex and race discrimination go beyond employment, and also ban sex or race discrimination in access to goods or services, like insurance. However, the laws on the other four grounds only extend to discrimination in employment.

These laws ban direct discrimination, ie discrimination purely based on someone’s age, race, sex, etc. However, they also ban indirect discrimination: unequal treatment for another reason, but which mostly affects people of a particular age, sex, etc. For instance, unequal treatment of part-time workers will affect both male and female workers, since there are some men working part-time. But it mostly affects women, since they make up the majority of part-time workers. So it would be an example of indirect sex discrimination, although since the adoption of an EU law devoted to the issue of part-time workers (see above in this chapter), the sex discrimination angle is no longer as relevant.

How do these laws affect the UK? As noted above, the UK usually had laws on these issues before the EU did. However, the EU laws have had an impact on some of the details that are important to large numbers of individual cases.

Looking at the case law of the EU court, there have been important rulings which improved UK standards in particular on:

  • equal pay for work of equal value;
  • prohibiting the dismissal of women earlier than men due to retirement age difference;
  • effective remedies (removing the cap on damages for sex discrimination);
  • dismissal due to pregnancy;
  • equal treatment after returning from maternity leave; and
  • dismissal of transsexuals.

Effect of Brexit

Leaving the EU has no automatic effect on employment law. But a number of Brexit supporters, including cabinet ministers like the employment minister, havespecifically stated that they want to use the opportunity that Brexit would create in order to remove protections guaranteed by EU law.

In particular, in their own words, they aspire to scrap the laws on:  collective redundancies; atypical workers; working time (including paid holidays); driving time limits for the self-employed; rights for pregnant workers and women on maternity leave;  and worker consultation rights.

For his part, Nigel Farage has argued that women who have children are ‘worth less’ to an employer.

It should be noted that changes like these would not even have to go through as an Act of Parliament – Vote Leave supporters plan to fast-track the abolition of EU laws after Brexit.

Conclusion

As we have seen, EU law has had a demonstrable impact on UK employment and discrimination law. It is not the source of all UK law but it definitely provides protection which would not otherwise exist in certain areas, such as holiday pay and equality for women in the workplace. It is highly likely, based on the expressed intentions of senior supporters of Brexit, that there would be a ‘bonfire’ of some of these rights after Brexit.

Further reading:

Analyses of EU effect on UK employment law by:

 

Annex

EU court cases: UK employment and equality law

The following is a list of all EU court cases involving UK employment and equality law. I have grouped them by topic and indicated for each case what the subject matter was, and whether the UK law was in breach of EU law or not in each case.

Equality at work – 32 breach, 23 no breach: breach of EU law in 55% of cases
(Sex equality: 32 breach, 21 no breach: breach in 60% of cases)
Burton – no breach – sex discrimination – voluntary redundancy
Garland – breach – art 119 – after-work benefit
Jenkins – breach – art 119 – part-time work
Worringham – breach – art 119 – pension contributions
McCarthys – breach – art 119 – previous employee
Commission v UK – C-165/82 breach – sex discrimination – private household, small business
Commission v UK – C-61/81 breach – art 119 – job classification
Johnston – breach – sex discrimination – women on police force
Marshall – breach – sex discrimination – dismissal at retirement age
Roberts – no breach – pension age sex discrimination
Newstead – no breach – pension contributions
Drake – breach – social security directive
Clark – breach – social security directive
Barber – breach – art 119 and occupational pensions
Foster – breach – sex discrimination – dismissal at retirement age
Johnson – no breach – social security directive
Jackson and Cresswell – no breach – income support and sex discrimination
Ex parte EOC – no breach – social security contributions
Smithson – no breach – social security and housing benefit
Neath – no breach – actuarial benefits and occupational pensions
Thomas – breach – social security and invalidity pension
Marshall II – breach – limits on compensation for sex discrimination
Coloroll – breach – occupational pensions
Enderby – breach – Art 119
Birds Eye – no breach – occupational pensions
Bramhill – no breach – social security
Johnson – no breach – social security
Smith v Avdel – breach – occupational pensions
Webb – pregnancy dismissal – breach
Gillespie – art 119 and maternity leave – no breach
Graham – social security – no breach
P v Cornwall CC – transsexual dismissal – breach
Richardson – social security – breach – prescription charges
Atkins – social security – bus concessions – no breach
Meyers – sex discrimination and family credit – breach
Sutton – social security and interest – no breach
Magorrian – art 119 – breach – time limits
Levez – sex discrimination – breach – remedies
Grant – sex discrimination – no breach re sexual orientation
Boyle – pregnancy – breach in part
Brown v Rentokil – pregnancy dismissal – breach
Sirdar – women in military – sex discrimination – no breach
Coote – sex discrimination – breach – remedies
Seymour-Smith – sex discrimination – no breach
Preston – sex discrimination – breach
Hepple – social security – no breach
Taylor – social security – breach – winter fuel
KB – transexuals and pensions – breach
Allonby – equal pay – (mostly) no breach
Alabaster – maternity leave and pay rise – breach
Cadman – art 119 – no breach
Richards – transsexual and pension – breach
Coleman – disability discrimination – breach
Age Concern – age discrimination – no breach
CD – surrogate mothers and maternity leave – no breach
 

Employment law: 13 higher standards, 7 no breach, 1 lower standard: 62% higher standard
Comm v UK – breach – collective redundancies
Comm v UK – breach – TUPE
Everson – insolvency – breach
Allen – TUPE – breach
BECTU – working time and fixed-term work – breach
Bowden – working time and transport work – no breach
Martin – TUPE and early pensions – breach
Celtec – TUPE and transfer date – breach
Robinson-Steele – working time and ‘rolled-up’ holiday pay – breach
Comm v UK – working time – breach
Comm v UK – health and safety – employer liability – no breach
Robins – insolvency and pensions – breach
Stringer – working time and sick leave – partial breach
Williams – working time and allowances  – breach
Nolan – collective redundancies and US airbase – no breach
Alemo-Herron – TUPE – breach (but case in favour of employer)
Lock – working time and commissions – breach
Lyttle – collective redundancies – no breach
USDAW and Wilson – collective redundancies and Woolworths – no breach
O’Brien – part-time work – breach
Greenfield – part-time work – no breach
Viking Line – trade unions and freedom of establishment – not included in stats; case left to national court to decide, then settled

EU Referendum Brief 5: How would Brexit impact the UK’s involvement in EU policing and criminal law?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

What impact does EU membership have on policing and criminal law in the UK – and what would be the impact of Brexit? I’ll give the shorter summary version of the answer to those questions first, followed by a longer more detailed version.

Summary

The UK had a veto over EU laws in this area adopted before the Treaty of Lisbon came into force (1 December 2009). Since then, it has had two opt-outs instead: a) it can opt in (or out) of any new EU law in this field adopted after that Treaty; and b) it could go back and opt out of any old EU laws which were adopted before that Treaty. The UK used the latter power to opt out of the majority of pre-Lisbon laws.

There are five main areas of EU criminal law and policing. One area is the definition of crime, where the UK has opted into a small number of EU laws on issues such as child abuse. A second area is criminal procedure, where the UK has opted into some EU laws on suspects’ rights and crime victims’ rights. These are basically domestic areas of law, and there’s no reason to think the UK would change its rules after Brexit.

However, the other three areas concern international cooperation, where it is impossible for any individual country to act alone. Those areas are: a) recognition of criminal decisions (on arrest warrants or gathering evidence, for instance); b) the exchange of police information; and c) EU agencies like Europol, the EU police intelligence agency.

On criminal law mutual recognition, there are other international rules on some of these issues – such as extradition – but they do not go as far as the EU rules. In some cases, there are no alternative international rules on the same issue. The UK could seek to negotiate a treaty with the EU on these issues, but the past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws.

On EU agencies, non-EU countries can participate as associates, but this means a more limited involvement in each agency than they would have as EU Member States.

The UK’s involvement in police information exchange with the EU would also be subject to renegotiation if the UK left the EU. Again, past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws. And if the UK did not continue to sign up to EU data protection laws fully, there would be difficult legal disputes that could limit the transfer of policing data to the UK’s law enforcement authorities from the EU.

It cannot be seriously argued that the UK has ‘lost control’ over its law enforcement and intelligence agency operations to the EU, given the UK’s opt-out, the focus of EU law on cross-border issues, and the lack of any EU law on intelligence issues.

Overall, a Brexit is very likely to lead to a significant reduction on cooperation in criminal and policing matters between the UK and the EU.

The details

First and foremost, while the EU has adopted a number of laws in this area, the UK only participates in some of those laws, and has an opt-out over future laws in this area too. This blog post will in turn: (a) describe the basics of EU law in this area, including the UK opt-out; (b) summarise the main EU laws in which the UK does (or does not) participate in; and (c) indicate what could happen in the event of ‘Brexit’. For a full academic treatment of these issues, see the fourth edition of my EU Justice and Home Affairs Law book (volume 2).

(a) The basics of EU policing and criminal law 

Before the entry into force of the Treaty of Lisbon (on 1 December 2009) police and criminal law matters were subject to a different legal framework from ordinary EU (or European Community) law. The powers of the EU institutions (Commission, European Parliament, EU Court) were more limited, and each Member State, including the UK, had a veto over all laws.

The Treaty of Lisbon repealed these special rules, bringing EU criminal and policing law into the general framework of EU law. From this point on, the usual rules of EU law have applied to this field, with a few exceptions. However, the key point for the UK is that in place of a veto, it got not just one but twoopt outs from EU law in this field.

First, the UK can opt out of (or into) any individual EU laws on criminal law or policing proposed after the entry into force of the Treaty of Lisbon.

Secondly, the UK got the power to opt out of EU criminal laws which it had already agreed to before the entry into force of the Treaty of Lisbon. It could invoke this power as of 1 December 2014. The UK government used this to opt out of all but 35 of the EU criminal laws adopted before the Treaty of Lisbon. (See the discussion of that process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law touches on five main issues:

(a)    substantive criminal law (ie the definition of crimes);
(b)   mutual recognition in criminal matters (ie applying another EU Member States’ criminal law decision, where there is a cross-border issue like gathering evidence in another EU country, or asking another country to hand over a fugitive to face a trial or serve a sentence);
(c)    harmonisation of criminal procedure;
(d)   exchange of police information; and
(e)   EU agencies.

The effect of the two sets of opt-outs is that the UK has been highly selective about the EU law in this area which it wishes to apply. Taking the five areas of law in turn, first of all the UK has opted out of almost all EU substantive criminal law. It is covered by the EU Directives adopted since the Lisbon Treaty defining offences relating to trafficking in personssexual abuse of children and attacks on information systems (a form of cyber-crime), but not by EU laws defining offences relating to terrorism, organised crime, fraud, drugs, market abuse by bankers, racism, or currency counterfeiting.

Secondly, the UK is far more engaged in mutual recognition in criminal matters, in particular the flagship law on the European Arrest Warrant (EAW), which is a fast-track extradition system. The UK has also signed up to EU laws on:

(a)    mutual recognition of investigation orders (gathering physical evidence, or interviewing witnesses, in another EU country);
(b)   victim protection orders (where the victim of domestic violence moves to another EU country and wants a restraining order against her abuser to be transferred to that country when she moves there);
(c)    pre-trial supervision (so a criminal suspect can be released on bail to await trial on less serious offences back in Britain, rather than spend a long time in pre-trial detention in a foreign prison);
(d)   confiscation of assets and freezing orders (to ensure that the proceeds of crime held by alleged or convicted criminals in another EU country can be frozen pending trial, and seized if the suspect is convicted);
(e)   the effect of prior sentences or other judgments (so that previous criminal offences committed in another EU country are counted when assessing whether someone is a repeat offender); and
(f)     the transfer of prisoners and criminal sentences (simplifying the movement of foreign prisoners to jails in their EU country of origin, and recognizing fines imposed by a criminal court too – including any penalties imposed against companies for breach of criminal law).

Conversely, the UK has opted out of only one measure in this field, concerning the mutual recognition of probation and parole orders.

Thirdly, as regards the harmonisation of criminal procedure, the UK participates in the EU Directiveon crime victims’ rights. However, the UK has only opted in to two of the six EU laws which set out criminal suspects’ procedural rights. In particular, it has opted into the laws on translation and interpretation, and giving suspectsinformationon their rights; but it has opted out of laws on access to a lawyer,presumption of innocencechild suspects’ rights, and a proposed law on legal aid(not yet agreed).

Fourthly, the UK is particularly keen to participate in the exchange of police information. It participates in every significant measure in the field:

(a)    the Schengen Information System (information on wanted persons and stolen objects, including terrorist suspects under surveillance);
(b)   the Customs Information System (used particularly in drug trafficking cases);
(c)    the ‘Prum’ decisions (which give access to other EU countries’ police databases on fingerprints, licence plates and DNA); and
(d)   the laws on exchange of criminal records.

Finally, as regards EU agencies, the UK participates in Europol(the EU police intelligence agency) and Eurojust (the agency which coordinates work of prosecutors in cross-border cases) at present. However, it has opted out of a new law concerning Europol, and a proposed new EU law concerning Eurojust, which set out (or would set out) revised rules for those agencies following the entry into force of the Treaty of Lisbon, although it might decide to opt in to those Regulations after they are adopted. The UK used to host the European Police College (a training agency), but refusedto continue hosting it and opted out of a new version of the relevant law.

There has been some concern particularly about the prospect of the UK participating in a law to create a European Public Prosecutor. While the EU Commission proposeda law to create a European Public Prosecutor in 2013, the UK has opted out of that proposal. Indeed, the UK would have to hold another referendum before it opted in to that law, according to the European Union Act 2011.

(c) What would the impact of ‘Brexit’ be?

It’s sometimes argued that EU laws on policing and criminal law are irrelevant to the UK’s membership of the EU, because the UK can simply do everything it wishes to do in this field in its domestic law. That’s a valid argument for two of the five areas of law described above: substantive criminal law and harmonisation of procedure. But it doesn’t work for the three other areas – mutual recognition, exchange of information and participation in EU agencies – which necessarily require some cooperation with other states. Put simply, a British Act of Parliament cannot regulate how France or Germany issue extradition requests.

What would happen if the UK left the EU? In each case, as with other areas of EU law and policy, it would depend on what the UK and EU negotiated afterward. But it is possible to give some general indication of the consequences.

In the area of mutual recognition, the UK can fall back on Council of Europe treaties, which address some of the same issues (note that the Council of Europe is a separate body from the EU, which includes non-EU European countries like Turkey and Russia; some of its treaties can be signed also by non-European states like the USA).

However, the relevant treaties do not go into as much detail as the EU laws, and are often less effective.  As an indication of this, see the UK governmentinformationabout the application of EU law in this area. Extradition from the UK has gone from 60 people a year (to all countries) before 2004 to 7000 since 2004 on the basis of the European Arrest Warrant. Over 95% of those sent to other Member States are not British.

Moreover, in some cases the UK and/or some other Member States have not ratified the relevant treaties. For instance, fewer than half of all Member States have ratified the Council of Europe Convention on validity of criminal judgments; the UK has not ratified it either. But the EU law on mutual recognition of criminal penalties sets out rules on one of the key issues in that Council of Europe treaty: the recognition of criminal financial penalties imposed by another Member State’s court. Some issues have not been the subject of Council of Europe treaties at all, such as the pre-trial supervision rules set out in EU law. In these cases, the EU law is the only means of ensuring the cooperation in question.

Another alternative is to negotiate treaties with the EU on these issues.  The EU has been willing in practice to negotiate access to some aspects of its criminal law measures: a form of the EAW for Norway and Iceland, an extradition treaty with theUSA, and mutual assistance (exchange of evidence) with Norway and Iceland, theUSAand Japan. But the extradition treaty with Norway and Iceland took years to negotiate, is still not in force at time of writing, and does not oblige States to extradite their own citizens – meaning that the UK would not be able to ask Germany to extradite Germans, for example. That restriction cannot easily be negotiated away in the event of Brexit, because some EU countries have constitutional problems which prevent them extraditing their own citizens outside the EU. (On these sorts of issues, see E Guild, ed, Constitutional challenges to the European Arrest Warrant).

Overall, there are no such treaties agreed with any non-EU countries on the large majority of EU criminal law mutual recognition measures. Of the treaties which are agreed, not a single one goes as far as the relevant EU legislation in force.

A particular concern of critics of the EU rules on extradition is the ‘sufficient evidence’ (‘prima facie’) test which was traditionally applied by the UK before accepting an extradition request. While it is sometimes argued that the EAW abolished the ‘prima facie’ test as regards EU countries, this is not correct. In fact, the UK waived the right to apply this test to European countries when it signed up to the Council of Europe extradition treaty back in 1990, over a decade before it signed up to the EU’s EAW: see the Extradition Act 1989, section 9(4), which was implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507). In other words, the test was not abolished because of EU law, but was already abolished well before the EU had any involvement in extradition law.

Why did the UK abolish the prima facie test? As noted in the 2011 Baker review of UK extradition law, the decision was made because of the difficulties it posed for extradition in practice: a White Paper of 1986 stated that it ‘did not offer a necessary safeguard for the person sought by the requesting State but was a formidable impediment to entirely proper and legitimate extradition requests’. Ultimately the Baker review recommended that there was ‘no good reason to re-introduce the prima facie case requirement’ where it had been abolished, and that ‘No evidence was presented to us to suggest that European arrest warrants are being issued in cases where there is insufficient evidence’.

The prima facie test is sometimes described as an aspect of the ‘presumption of innocence’, although in fact a fugitive who is extradited pursuant to this test still either has to be convicted pursuant to a trial in the requesting State, or has already been convicted but fled the country. In other words, the presumption of innocencestill applieswhen the substantive criminal trial takes place (or took place).

As regards the EU agencies, the UK can enter into agreements to cooperate with Europol and Eurojust, like other non-EU countries. However, as the Director of Europol points out, such agreements don’t allow the UK to have direct access to databases, to lead investigation teams, or to take part in the management of those agencies: both Europol and Eurojust have had British Directors.

Finally, as regards policing, the EU has given some non-EU states access to theSchengen Information System, and to the ‘Prum’ rules on access to each Member State’s national policing databases. But this was linked to those countries fully joining the Schengen system. The UK would obviously not do that after a Brexit.

The EU has also signed treaties on the exchange of passenger name records with non-EU countries (the USACanada and Australia), as well as a treaty on the exchange of financial information (concerning alleged terrorists) with the USA, so might be willing to sign similar treaties with the UK. It has also recently agreed an ‘umbrella’ treaty on general exchange of police information with the USA, although this is not yet in force.

However, the EU has not extended access to its system on exchange of criminal records to any non-EU countries. While there is a Council of Europe treaty on mutual assistance in criminal matters (which the UK and all other Member States are party to) that provides for some exchange of information of such records, it results in far less information exchange. The exchange of criminal records is particularly important for the UK: the government has reportedthat the UK is one of the biggest users of the EU system, and that criminal records checks of foreign nationals in the criminal justice system have increased 1,650% since 2010.

However, there is a particular issue that has complicated the exchange of personal data between the EU and with non-EU countries, particularly as regards policing data. Are their data protection standards sufficient as compared to the standards maintained by the EU? If not, then the European Parliament may be reluctant to approve the deal, or it might be challenged in the EU Court. This isn’t a hypothetical possibility – it has happened several times already.

I have discussed this issue in more detail in a recent blog post for The Conversation, but I will summarise the main points there again.

As regards deals between non-EU countries and the EU itself, the EU Court of Justice has struck down a Commission decision on the transfer of personal data to the USA, because there was insufficient examination of the data protection standards applied by US intelligence agencies as regards access to personal data on social media. A replacement deal is planned, but will also be challenged in court. A further case is pending, where the EU Court has been asked to rule on the legality of the most recent EU/Canada treaty on the exchange of passenger records data, to ascertain if it meets EU standards for data protection.

If the UK left the EU, any UK/EU agreement on the transfer of personal data would have to meet the same requirements. Those requirements cannot simply be negotiated away, since they stem from the EU Charter of Rights – part of the primary law of the EU. The Charter can be amended, but to have legal effect the EU Treaties would also have to be amended to refer to that revised text. It is hard to believe this could happen at the behest of a country which has just left the EU.

Would UK legislation meet the test of being sufficiently similar to EU standards? The Court of Justice has been asked in the pending Davis and Watson case whether the rules on police access to personal data comply with the EU law that binds the UK as a Member State. Another Bill on this issue is pending before the UK Parliament, and would likely become an Act of Parliament before Brexit. Since many privacy campaigners are critical the draft Bill, there would almost certainly be similar legal challenges to transfers of personal data to and from the UK after Brexit, unless the UK agrees to continue fully applying EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet summarising the position of the two sides in the referendum campaign contains a number of relevant claims from each side. For the Remain side, the pamphlet says that the EAW ‘allows us to deport criminals from the UK and catch those fleeing justice across Europe’, and that EU membership helps to tackle ‘global threats like terrorism’. For the Leave side, the pamphlet says that the EU ‘will continue to control…vital security policies such as counter-terrorism’ and the EU Court ‘will keep taking powers over how our intelligence services fight terrorism’.

Are these claims valid? As for the first Remain claim, as noted above the statistics show that the number of persons extradited to and from the UK have indeed increased since the EAW has been applied – although some extradition would still take place even if the UK did not apply the EAW.

In light of the official UK government information referred to above, other operational cooperation via Europol and other forms of EU police and criminal law cooperation presumably has some impact on combating threats like terrorism and other serious crimes in practice. However, it is not possible to estimate their impact compared to purely national actions and other forms of international  cooperation.

As for the arguments by the Leave side, it is clear from the description of the laws which the UK applies that the EU does not ‘control…vital security policies’. The functioning of the UK law enforcement authorities is up to the UK, and there is no EU regulation of intelligence agencies. EU law impacts only cross-border issues.

As we have seen, the only EU case law to date impacting intelligence agencies concerns non-EUintelligence agencies. The ruling restricts transfers of data gathered by social networks to those non-EU countries in that context, unless those countries apply EU data protection law. If the UK left the EU, it would therefore be subject to the same restrictions on obtaining personal data in criminal cases from the EU. Leaving the EU is therefore more likely to impede UK intelligence agencies’ work, than it is to facilitate it.

Conclusion

The UK’s participation in EU criminal and policing law has led to an increase in cooperation in areas such as extradition and the exchange of police information. In these cases, there are question marks about what would happen after Brexit – mainly political but to some extent legal too. In the event of Brexit, there is a very high likelihood that cooperation between the UK and the remaining EU would be reduced (although not to zero). And in light of the UK’s opt-outs and the limited effect of EU law on purely domestic matters, it cannot seriously be argued that UK law enforcement and intelligence agencies are ‘controlled by’ the EU.