Home / Feature / EU referendum: State Decision on our Shoulders with Unclear Murky Waters Ahead

EU referendum: State Decision on our Shoulders with Unclear Murky Waters Ahead

cvPiya Mayenin Solicitor :

The decision on exiting the EU is one of the most important state decisions the public has on their shoulders. Most people do not fully understand the workings and significance of the EU and yet carry the burden of helping make the decision on whether to stay or leave. The national row started by Nigel Farage  has secured a manifesto pledge of a referendum by our Prime minister which he is now honouring but making a decision has proved to be much difficult with both sides (Remain and Brexit)  having been criticized for exaggerating and fear mongering. This has caused a lot of tension and argument amongst us Britons especially seeing six of Mr. Cameron’s cabinet members are voting Brexit. Seeing the outgoing Boris Johnson also leaving, the recent recession and the migration crises have fuelled our opinions and opinion polls suggest close results. Not to mention that the sterling is sliding down against the dollar to its lowest levels in eight years, amongst the pressure of Brexit.  The relationship with EU is tense and so our third option is to calm down, assess the true facts and likelihoods sensibly.
Firstly, the suggestion by Nigel Farage that one home every 4 minutes needs to be created at the current rate of Immigration to house immigrants.  There are about 65 million people now in the UK.  If the record high immigration (one third of a million) continues then by 2040 there will be 78 million and maybe more with children being born in the UK.
If we study at influxes of Immigration, one would see influx of Immigration at certain points that has later leveled out. Is this then a sudden wave that will in time level out? The Migration Observatory of Oxford thinks so anyway. According to them “In the long run, migration is much harder to predict. It will depend on many different factors from future policy changes to economic growth in other countries.”     http://www.migrationobservatory.ox.ac.uk/press-releases/new-normal-net-migration-levels-remains-record-high-levels
UCL’s Centre for Research and Analysis of Migration at University College London found that European immigrants to the UK pay more in taxes than they receive in benefits, effectively subsiding public services.
Recent immigrants have made a net contribution of £20 billion to the UK over the last ten years, according to a UCL study, and foreigners are barred from several types of benefits without having permanent residency in the UK, unlike those on work visas, students and asylum seekers don’t qualify.
One last point to add here might be the contribution of asylum seekers to immigration rise. The number of applications lodged in the year to September 38,878, an annual increase of 20 per cent, the figure is nowhere near the UK’s 2002 peak of 103,000 and nowhere near intake figures of some other European states.    http://www.independent.co.uk/news/uk/home-news/uk-migration-six-myths-about-immigration-debunked-as-latest-figures-show-fall-in-non-eu-arrivals-a6895341.html

What would happen to migrants after Brexit has not been made clear. A sudden exodus is unlikely and there are bound to be ways that the current EU population can regularize their stay.
Further without exiting the EEA also European migration cannot be curbed. With the borders moving to Calais and the Republic of Ireland illegal movements of migrants are likely to rise.
However with the right economic and social policies Immigration will level out and continue to be an asset to the economy and the fabric of society.

In a modern global world of terrorism, trafficking and international criminals that continuously and consistently violate international laws and human rights and the core of humanity.
Michael Fallon , Secretary of State for Defence, speaking at NATO, Mr Fallon said:
“This is a dangerous moment. No country has ever left either NATO or the European Union and that would clearly weaken the security of Western Europe. Those are the twin pillars of our security.”
EU Member states have committed themselves to a Common Foreign Security Policy for the European Union.
‘To influence policies violating international law or human rights, or policies disrespectful of the rule of law or democratic principles’
In 2005 the Council adopted the EU counter-terrorism strategy with the priorities of Prevent. Protect Pursue and Respond and is currently talking about extending this internationally. The European Union works with international organisations including the UN and the Global Counter Terrorism Forum, and regional organisations such as the Council of Europe, the OSCE, the League of Arab States or the Organisation for Islamic Cooperation.
A number of mechanisms the UK are currently used  to exchange information with other EU countries for instance, the European Criminal Records Information System (ECRIS), which allows EU member countries to exchange information—including fingerprints—contained in their national criminal records databases on the criminal convictions of EU citizens. Another agreement the UK plans to sign up to is the Prüm Convention, which involves sharing DNA, fingerprints and vehicle registration details between the countries that have signed up. (This also extends to non-EU members like Norway).
The likelihood after Brexit is then to disrupt and undermine the growing role of the EU in global diplomacy.  Re-building co-operation with the police, security-service and judicial system with the EU may be possible but how effective or efficient it will be is doubtful.

EU Criminal Law was developed to combat the negative consequences of free movement of capital and goods and people, operating in five distinct areas of which not all apply to the UK.
EU agencies such as Europol ( which supports cooperation between EU law enforcement agencies) , series of agreements to improve co-operation  agreements requiring courts and other authorities to give effect to judgments and orders issued by similar bodies across EU countries like the European Arrest Warrant (EAW) that were created to improve criminal justice within the EU. Before the EAW was introduced extradition used to take an average of one year, but now that has been cut to an average of 48 days and under the sharing system details about convicted criminals can be shared.
In addition to harmonizing substantive criminal law substantive criminal law with appropriate penalties and series of agreements intended to harmonise criminal procedure  by providing minimum protection for victims of crime or minimum rights for defendants. The aim of these measures is to bolster mutual recognition and instill more confidence in each other legal systems.
The UK government has made it clear that it will not support the creation of a European Public Prosecutor, if there ever is one. It is not bound by most harmonization measures on substantive law but is so in police co operation and in procedure except recent measures intended to provide guarantees of fair treatment to suspects and defendants. In respect of those parts of EU criminal law that apply to it, the UK accepts the jurisdiction of the EU Court of Justice at Luxembourg.
This means that courts in the UK can make preliminary references to the EU court on doubtful points of law. It also means that failure by the UK to carry out its obligations could be taken to the EU court. But it does not give convicted offenders, or prosecutors, an extra tier of criminal appeal.
We can note that Protocol 21 to the Lisbon Treaty guarantees that no future EU criminal justice rules will apply to the UK unless we decide to opt into them.
With regards to crime rate going up in the UK, A report by LSE in 2013 found that crime actually fell significantly in areas that had experienced mass immigration from Eastern Europe, with rates of burglary, vandalism and car theft down since 2004.
The research concluded that there was “no causal impact of immigration on crime…contrary to the ‘immigration causes crime’ populist view expressed in some media and political debate”.
Brian Bell, a LSE research fellow, told the Guardian: “The view that foreigners commit more crime is not true. The truth is that immigrants are just like natives: if they have a good job and a good income they don’t commit crime.”  https://www.theguardian.com/uk/2013/apr/28/immigration-impact-crime
That is a basic fact that we tend to forget that human beings are the same wherever we go.  There is no race superior than another, only opportunities have made some peoples fates different and better than others.

Health & Public Services
According to available data, EU immigrants make up about 5% of English NHS staff and about 5% of the English population. EU immigrants make up 10% of registered doctors and 4% of registered nurses. Immigrants from outside the EU make up larger proportions. Restrictions on non-EU immigrants have affected NHS recruitment, suggesting that the same could happen if there were limits on EU immigration. However, this has nothing to do with the existing healthcare workers leaving the UK and the 80% contemplating leaving their professions.  (https://www.theguardian.com/society/2016/feb/12/four-in-five-nhs-staff-consider-quitting-job-stress-guardian-poll)
Benefit scrounging does not seem a likely story when the latest ONS statistics show that employment rates for arriving migrants are high.  The worry will then be that EU migrants are taking over British jobs, however, Of the 290,000 people who immigrated for work in the year to September 2015, almost 60 per cent had already secured a job and the share rose to two thirds for Romanians and Bulgarians. This fact also supports the fact that that strain on public services, hospitals and schools cannot be due to EU migrants.  Today’s news that European judges had thrown out the European commission challenge to Britain’s right to deny some EU migrants access to child benefit demonstrates that a democratic process is in place within the EU and for its’ member states.

Depending on the side you stand on claims have been made that between 10% (Remain) and 70 % (Leave) law have come from the UK
However, neither claims are entirely true nor reflect the real picture according to the House of Commons library who have stated
‘The limitations of data also make it impossible to achieve an accurate measure. We do not know, for example, how many regulations have direct application in the UK ‘.   And
‘EU laws may be introduced when domestic legislation is amended primarily for other purposes; or there may be no need for any implementing legislation in some Member States because the requirements of the directive are covered by existing national law’

The UK Legal system consists of:
•    Statutes: Legislation from the UK Parliament and devolved parliaments.
•    Rules and regulations drawn up by ministers known as Statutory Instruments,
•     ‘Common’ law: law made through principles established in cases over the centuries during the standardisation of law throughout England and Wales from the eleventh century onwards;   And
•     Law from the EU.  The Law from the EU come in four types, namely;
    Regulations that are the binding legislation that must be applied.
    Directives on the other hand sets out goal to be achieved by member countries by devising their own laws.
    Decision which is only binding for the country it is directed to;  And
     Recommendations and Opinions which are not binding and have no legal consequence
However Law from the EU are in reality relevant to certain sectors, for instance, agriculture, fisheries, external trade, and the environment.  The UK retains some freedom of action in these areas.  Areas such as education, criminal law,  family law, security and the NHS sees far less direct influence of the EU law.
Jeremy Corbyn has cited the benefits from EU Law in environment and in employment law and in particular workers rights.  These might include: working time (the working time directive places a restriction of a maximum 48-hour working week), provisions which determine paid holiday, minimum rest periods, the right to carry forward holiday while off sick, the need to include overtime and commission payments in holiday pay, TUPE ( regulations that  are designed to protect the rights of employees on a transfer of a business or the outsourcing of services) , unlimited compensation on successful discrimination claims, agency workers (The agency workers directive confers certain basic employment rights on agency workers similar to those enjoyed by permanent employees), record keeping requirements, CRD IV (the directive imposes a limit on certain bankers  that means the bonus cannot be more than the amount of the yearly salary, which can rise to up to two times the salary with shareholder approval); And maternity and paternity leave.
In some cases “primary legislation” has been enacted by Parliament in order to give effect to Directives from Europe and agreement that all member states. An example of this is the Equality Act 2010, which has its roots in the EU’s Equal Treatment Directive.
In other cases, “secondary legislation”, passed by a Government minister under the powers granted to him by the primary legislation the relevant one here being, the European Communities Act 1972.  The 1972 Act being the mother act enabled the secondary legislation to be passed. An example is the Transfer of Undertakings (Protection of Employment) TUPE Regulations 2006 and the Working Time Regulations 1998
If the UK was to leave EU then Parliament would still have primary legislation in place like the Equalities Act 2010. The UK would be likely however to repeal the 1972 Act. This would then leave the secondary legislation without any power and would thus cease to have effect.
Employers have entered into employment contracts that have been drafted with the rights incorporated into UK law with EU membership in mind.  Even if the relevant legislation were amended or repealed, many employees would most likely still have a contractual right to rely on the rights emanating from their contracts.

Unclear and Murky after Brexit
The referendum is on the EU and not the EEA or the European Free Trade Area. The dilemma is that without coming out of everything nothing much changes other than we lose our powers to speak in the EU where half of our exports go to the EU because of the single market.   If we remained part of the single market, how are we to do it? The UK could also remain in the European Free Trade Area (EFTA) and be part of the European Economic Area (EEA) similar to Iceland, Liechtenstein and Norway.  However, what would be the point as this would mean that the UK would be obliged to accept the majority of EU legislation without having any input/veto rights. If we followed Switzerland and just remain in the EFTA but not as a member of the EU or EEA, that would still mean that it would have to accept EU rules via bilateral agreements on a sector-by-sector basis as the Swiss have done so and warn us that any referendum on that would mean loss on the trade agreement with the EU.
Non EU countries do not love UK – Strong negotiators like South Korea are more likely to hold onto EU rather than the UK. The US, India and China have already stated their case of keeping trade with the EU.
In the immediate aftermath Immigration is unlikely to come down but is likely to level out in the long run. Remember The 2 million expatriates of Britain’s fate will also change.
In security an exit from the EU might do away with the unwanted burdens but then the UK would also be deprived of its benefits.  The UK could and would attempt and make agreements to cooperate with EU crime-fighting agencies—in particular, Europol and Eurojust. But the UK would have little or no say in their policies or the way these organisations were run. New bilateral agreements would have to replace a system of mutual recognition and police cooperation instruments would be more difficult. In practice this would take a long time and would be a highly complex project.
The NHS problem does not seem to be emanating from the EU. Almost half (43%) of the 1,843 respondents to the survey by the Guardian’s Healthcare Professionals Network said they felt unreasonably stressed at work most or all of the time. Seventy per cent said their work stress levels had risen over the past year.
The interpretation of many laws including employment law by our courts would be unaffected.  After the whole exit period is over, however, the UK would no longer be bound by the decisions of the Court of Justice of the European Union (ECJ) although it is likely that the domestic courts would still treat any ECJ decisions as persuasive, although not binding. Of course other pressing political factors would come before the employment law and any change would come slowly, it would no doubt be confusing for employers, employees, markets and businesses.
It seems also unlikely that the UK would cut all ties with Europe as the largest trade deals are still likely to be from the EU.  As such, it is unlikely that the EU and the decisions of the ECJ will cease to affect UK law and particularly UK employment law in that regards. It will be very interesting to see how the courts in the UK might deal with going forward in the light of established European jurisprudence where they have considered themselves bound by the precedents of higher courts.
Britain is a leader in EU and is the least bound or bogged down. Britain It led the charge for environmental rules, for example, tight planning laws and the new living wage that will reach £9 an hour by 2020.
Finally the implications for the United Kingdom should not be ignored.  The Scottish National Party campaigning for staying in will demand another independence referendum, which it expects to win. Britain’s economic; trade and political relations with Ireland depend heavily on both belonging to the EU. This helped underpin the peace process in Northern Ireland.
In a world of International treaties and obligations isolating ourselves looks is foolish and it is unfair that Nigel Farage has brought such a state decision for people to make, in this power hungry and prejudiced environment, undermining our achievements over the last several decades and leaping for unclear and murky waters.