- In case of a vote to leave the European Union (EU), the United Kingdom would not leave the EU overnight. Instead, European Union law – and with it EU fundamental rights law – would (most probably) continue to apply until a date specified in a withdrawal treaty between the EU and the UK.
- EU law protects fundamental rights chiefly through the Charter of Fundamental Rights and through EU anti-discrimination law laid down in various directives.
- The Charter is binding on the EU and its institutions in all circumstances; it is binding on public authorities in the UK and Scotland only when they are implementing EU law. This means that the Charter does not (and cannot) act as the sole source of human rights protection at the national level.
- The UK does not have a general opt-out from the Charter under Protocol 30 to the Treaty of Lisbon. It is still unclear, however, whether the UK has an opt-out from chapter IV of the Charter (on solidarity rights) under this Protocol.
- In case of a withdrawal from the EU, the Charter would no longer apply to the UK or in Scotland. Individuals living here would therefore no longer be able to invoke Charter rights in national courts. Given that – in contrast to rights guaranteed by the Human Rights Act – these EU rights can result in Westminster legislation being dis-applied by a national court, withdrawal from the EU would result in a tangible loss of human rights protection in procedural terms.
- In addition, withdrawal from the EU there would also result in a substantive reduction of the human rights protection available to individuals living in the UK and Scotland.
- The Charter of Fundamental Rights guarantees more rights than the Human Rights Act. Some rights, such as the ‘right to be forgotten’ and other data protection rights would disappear from UK and Scottish law unless they were replaced either by way of legislation or by judicial developments. Other rights – in particular social rights – have not yet been fully defined by the Court of Justice of the EU. It is clear, however, that a withdrawal from the EU would deprive people living in Scotland and the UK from benefiting from any future development in this area.
- In case a British Bill of Rights leads to a procedural or substantive reduction in the human rights protection in the UK and Scotland, the Charter would have a mitigating effect, which would be lost in the event of a withdrawal from the EU.
- The EU’s anti-discrimination directives are incorporated into the Equality Act 2010, which –in the absence of parliamentary repeal – would continue to protect individuals even after an EU withdrawal. However, the directives would no longer underpin anti-discrimination law in the UK so that a repeal or reduction in standards would become easier for Parliament to attain. In addition, the UK would not have to follow future developments at the EU level so that individuals might be deprived of advancements in anti-discrimination law happening there.
- Furthermore, individuals living in the UK would no longer be capable of challenging EU legislation on the basis of the Charter even though some EU legislation might remain applicable within the UK after a withdrawal from the EU.
