Katie Hay: How the law would change if UK leaves EU

Border Force staff check passports of motorists arriving at the UK border after leaving a cross-channel ferry on August 13, 2014 in Portsmouth, England. Picture: Getty Images

The Law Society is firmly non-partisan in the European Union referendum. However, we recognise that our membership of the EU affects each and every one of us on a daily basis, no matter what we do or where we live in the UK.

Solicitors, like everyone else in the UK, have their own opinions on the current debate. However, they also advise their clients, whether individuals or businesses, and keep them informed of their rights and obligations on matters of EU law. For example, at work we are affected by the working time directive and EU standards for parental leave. As consumers we are affected by EU food standards and those who are in industries, from agriculture and fisheries to telecoms and technology, are also affected by EU regulations.

We want to help inform the EU referendum debate and have examined some of the potential impacts of whether we remain under the UK government’s negotiated terms or opt to leave. Following consultation with our members, we published an EU referendum discussion paper in May, which is available to read on our website.

We recognise that our members have differing views about what our future relationship with the EU should be. There was however, a recurring theme of uncertainty emerging from our discussions with solicitors, who included those at big firms, in-house members and those currently working in 12 European jurisdictions – many of whom are not eligible to vote in the referendum and have expressed concern about the impact of a UK exit on them as individuals.

We asked our members for their views on the advantages and disadvantages of EU membership. They cited access to the single market, free movement of people, and the UK’s standing in the international community as part of the EU as beneficial, while a perceived lack of democratic accountability, bureaucracy and regulatory requirements (and their associated costs) were among the downsides.

Positives of a UK exit included potentially making certain areas of law easier to interpret and apply, reduced regulation and greater sovereignty for the UK. Negatives related to restricting their ability to practise elsewhere, the potential impact on the economy, a lack of influence on EU legislation which could still affect the UK and the potential impact on human rights.

The potential for a UK exit sparking another independence referendum was viewed as positive outcome for some consultees and a negative one by others.

If the UK leaves the EU, will it join the European Economic Area (EEA), like Norway, or the European Free Trade Area (EFTA) and arrange its own bilateral agreements, like Switzerland? And what effect would these options have on the laws that govern us?

The solicitors we spoke to identified some key legal areas which are directly affected by our membership of the EU.

Consumer Law

EU consumer law constitutes a significant part of the bloc’s internal market and provides consumers with protection when purchasing goods and services. At a domestic level, law concerning consumer credit, unfair contract terms, sale of goods and food safety are all legislated for by the UK Parliament. However, the EU has introduced certain rights and protections – for example the recent agreement which abolishes mobile phone roaming changes – which apply across all member states.

If the UK left the EU and was able to join the EEA or EFTA, the EEA agreement with the EU could make EU consumer law more binding, as the UK does not follow the EU policy on maximum harmonisation. In the event of exiting the EU and the repeal of EU consumer law, it is likely that the UK would negotiate agreements concerning the quality of standards when selling goods to EU consumers.

Criminal Law

Criminal law is devolved to the Scottish Parliament, with EU law in this area covering co-operation across the different jurisdictions – for example, if it is suspected that a criminal organisation is operating in several EU countries, or if a suspected criminal is hiding in a different EU country. An example is the European Arrest Warrant (EAW) which applies throughout the EU and has replaced extradition procedures within the EU’s territorial jurisdiction.

There have been some high-profile successes for the EAW: In 2005, there was the extradition from Italy of a fugitive bomber who, with accomplices, had attempted to carry out a terrorist attack in London. An EAW was also used to extradite a fugitive teacher who fled to France with a schoolgirl in 2012.

However, the EAW is not without its problems. There have been complaints of improper and disproportionate use by some member states, undermining confidence in the system.

In 2009, an EU “roadmap” was published to protect the basic rights of suspects and accused people. Other measures have followed on issues such as interpretation and translation, the right to information and access to a lawyer – the latter of which resulted in change to Scots criminal law and practice.

Family Law

Within the UK, family law is devolved to the Scottish Parliament. However, with increasing numbers of cross-border relationships and families, the EU has made law relating to civil judicial co-operation in cross-border family cases. It includes assessing which member state court has jurisdiction for divorcing couples who are nationals from different EU states or living in different EU states from their home state.

It is also involved in determining and enforcing parental responsibilities, such as maintenance. EU rules also provide a mechanism for the return of abducted children.

Practical problems can include a “race to the court” by those involved, but family practitioners generally agree that it makes the law in this area clearer. In the event of a UK exit, we would remain party to the Hague Convention. The UK could also form bilateral and multilateral agreements and treaties with other countries to resolve any jurisdictional enforcement and recognition issues.

Immigration Law

For many, the EU referendum debate has been dominated by immigration and free movement within Europe. Free movement within the European Economic Community (as it was formerly called) was established by the Treaty of Rome of 1957 and has remained a core principle of the internal market of the EU.

UK immigration law is reserved to the UK Parliament but is bound by treaty to the principle of free movement, although the UK has opted out of most EU immigration law, allowing it to retain control over some aspects of border and visa policy.

In the event of a UK exit, we might seek membership of the EEA or EFTA and would be subject to the agreement permitting free movement within those areas – the EEA/EFTA Treaty would allow the UK to restrict immigration under its terms and conditions.

If the UK exits and adopts a World Trade Organisation position, it would control its own immigration law and policy, borders and visas. Subject to any acquired or vested rights, EU citizens living in the UK would have to regularise their status. UK citizens in other EU states would have to comply with the immigration, residence and visa requirements imposed by those member states.

Human Rights Law

In the event of a UK exit from the EU, the European Convention on Human Rights (ECHR) would still apply to UK law.

Although the EU is not a signatory to the Convention and is not subject to the jurisdiction of the European Court of Human Rights, it, along with each of the member states, is bound by the Charter of Fundamental Rights (CFR) which sets out the civil, political, economic and social rights of European citizens and other persons resident in the EU and reflects the Convention.

A debate has been raised by some to remain in the EU but exit the European Convention on Human Rights. We have the Human Rights Act 1998 which implements the Convention into domestic law. If the UK withdrew from the Convention but was to remain part of the EU, we would still be bound by the Convention and the Charter as far as the application of EU law was concerned and remain subject to the jurisdiction of the Court of Justice of the European Union, but not the European Court of Human Rights.

The full discussion paper can be found on the Law Society website: www.lawscot.org.uk/EU-Referendum

• Katie Hay is head of international at The Law Society of Scotland