Panel 210: Brexit – An Unexpected Space for Change in Cases of Individual Rights Protection
Brexit – An Unexpected Space for Change in Cases of Individual Rights Protection
This panel discusses areas in which the UK’s departure from the EU has raised questions in terms of rights protection that offer an unexpected space to consider changes. In this regard, the panel focuses on two main areas, employment law (Scottish labour law and freedom to contract) and broader human rights protection (the future of human rights in the UK, and right to protection against deportation). It is of interest that Brexit has in fact highlighted a number of deep-seated differences between the EU and the UK. These tensions and contradictions were not necessarily absent pre-Brexit, but the panel seeks to consider whether Brexit could be argued to be the catalyst for change in the two broad areas identified. Brexit has certainly served to highlight tensions and contradictions further and bringing these issues to the fore today. The panel discussion will centre around the competing values that the EU and UK’s relationship encompassed, both new and old. The main underlying thread bringing the panel together is the inevitable difficulties in resolving these tensions and contradictions, and the relative uncertainty that requires further analysis and debate from different lenses and different standpoints. It is by highlighting these difficulties that the hope is that this will indeed be the space to discuss change needed issues facing the UK outside of the EU.
Presentations of the Symposium
Deportation in Brexit Britain as a Challenge to Sovereignty
The phenomenon of deportation, according to Anderson et al, derives from ‘developments in infrastructural capacity and legal powers to deport, along with a newfound public and official enthusiasm for expulsion [that] have seen a tripling and a doubling, respectively, of the number of non-citizens who leave these states under the threat of coercion.’ The reason for this has to do with the conceptual relationship that deportation as a form of ‘social control’ has with citizenship. In citizenship studies on deportation as a form of forced migration and policing, it has been argued that deportation as its own phenomenon has been ignored, possibly a result of it being ‘clearly implicated in the exercise of sovereignty’.
The links between citizenship, sovereignty and deportation as a form of policing sit uncomfortably in the EU legal framework of protection citizens from being deported from their host Member State. It derives from the fact that the EU is a supranational quasi-state entity, with different levels of competences and governance in various areas. Certain EU laws and governance indirectly compete with national legal authorities despite the established constitutional principles that are in place to avoid such conflicts. This paper will consider the UK as a case study, because of the unique challenge Brexit adds to this debate. It is the aim of this paper to challenge the understand of sovereignty in the context of deportation, and instead to promote a human rights approach to combat this that does not necessarily need to disrupt sovereignty entirely.
Brexit’s Impact on Scottish Workers’ Rights: Impetus for Change?
The British referendum on the country’s continued membership of the European Union has dominated the political and media landscape in the UK. Workers’ rights were invoked repeatedly as either a reason to back or oppose ‘Brexit’; following the referendum, this debate has continued, particularly in Scotland. Scotland is often considered to be more social democratic and less Eurosceptic than the rest of the UK. However, employment and industrial relations, health and safety, and most aspects of equal opportunities are reserved matters under the Scotland Act 1998 and the key European rights are implemented almost exclusively through UK legal sources. Brexit therefore poses a conundrum for Scotland: while the Scottish Government wishes to maintain a level of employment law protections at least equivalent to that developed at EU level, the current devolution settlement is restrictive in scope. This paper questions to what extent there is scope for the Scottish Government to develop a ‘Scottish labour law’ and whether the Scottish Government could achieve its aim of maintaining EU-derived employment laws in Scotland following ‘Brexit’ within the context of the current devolution settlement.
Reassessing Freedom of Contract as an Underlying Assumption in UK and EU law
This paper explores the role played by the concept of freedom of contract as an underlying assumption supporting both the UK and EU legal orders. The paper begins by setting out the evolution of the notions of freedom of contract and indeed business freedom more generally within EU law, culminating with the enshrinement of those principles as fundamental rights in article 16 of the EU Charter. It is then asked whether there are any competing assumptions within EU law that might challenge the dominance of freedom of contract as an overarching organisational principle. The second part of the paper contrasts the position in EU law with that found in the English common law. It is shown that despite being seen as one of the foundational principles of the common law, the concept of freedom of contract in the UK may, in fact, be less ideologically charged than its EU law counterpart. The above tensions will be explored through the lens of employment law, both because it is the field best known to the author, but also because EU employment law has always been contested, particularly in the UK. As Brexit has shown us, it is possible to construct competing and indeed contradictory narratives as to the nature of the Union’s legal, economic and political order, with the EU simultaneously being portrayed as a capitalist club, an economic shackle and a bastion of protection for social rights. By unpacking the nature of business freedom as a fundamental right at both EU and UK level, this paper will resolve some of those contradictions by reassessing the underlying assumptions governing the regulation of the employment relationship in both systems.