This question popped into my head while reading an usual High Court judgment made a few days ago: R (on the application of AB) v Commissioner of Police of the Metropolis & (1) Independent Police Complaints Commission (2) and FE16 (Interested Parties) (2016) QBD (Admin).

The right to retire?

Seemingly unconnected to Brexit, AB concerned a police officer’s right to retire. A full transcript of the judgment is not yet available but a summary can be read here.

The facts are tragic.

The claimant’s father had been shot and killed by a Metropolitan police officer. Another officer, ‘F’, had been a tactical officer in the operation. Some years after an initial investigation, the IPCC recommended that F should be suspended pending further investigation for misconduct in the operation.

The claimant argued that in the circumstances the State owed a duty to hold its agents to accountunder Article 2 of the European Convention on Human Rights (‘ECHR’) which protects the right to life. On that basis, the police were required to investigate F and hold a disciplinary hearing.

The problem was that F had given notice of his retirement after many years of service.

If F retired, he would never be investigated and disciplined by his employer. If F was kept on suspension and prevented him from retiring, the police would have to keep paying him, F wouldn’t be able to work elsewhere, would be denied a lump sum and would not be able to order his finances and personal life.

Balancing a wide range of public interest factors, the Judge concluded that F should be allowed to retire.

The case summary states:

Preventing somebody from conducting his financial affairs lawfully and continuing his life was a very serious interference with his right to conduct his life as he wished.

Despite the strong need for accountability when the right to life in Article 2 ECHR is violated, on the facts of this particular case, it seems that F’s Article 8 right to private and family life prevailed, at least for the time being.

Massive interference

Theresa May’s government has stopped short of providing any binding assurances that the rights of an estimated 3 million EEA nationals currently residing in the UK will be protected following Brexit.

Liam Fox, addressing the Conservative Party Conference in Birmingham on 4 October 2016, made it clear that he regards EU workers in the UK as one of our “main cards” in negotiations with the EU, contrary to basic human values as well as the recommendations of the influential Home Affairs Select Committee.

At best, the government’s position is incoherent, with David Davis and Theresa May taking different lines.

A ‘hard’ Brexit has the potential to seriously interfere with the rights of an estimated 3 million EEA nationals to live, work, study and retire in the UK.

Come March 2017, when Article 50 is due to be triggered, this government’s ongoing refusal to guarantee the rights of EEA nationals could risk of breaching the rights of 3 million people to conduct their personal and financial affairs with any kind of certainty.

It’s a high-risk strategy.

Human rights legislation permits such interference only if it is in accordance with the law, and if it:

is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There’s an argument that a hard Brexit meets none of the above criteria.

As legal challenges try to halt the government’s plans, the effect on the rights of EEA nationals, as protected in Article 8 of the Convention, is likely to remain a key issue.

If you’re an individual or a business and would like to discuss how Brexit could affect your rights and duties, please get in touch.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

2 Comments

  1. This is why we should leave in EU as quickly as possible!!
    When doing something democratically voted for by the whole population becomes “illegal” it is time to throw the EU in the dustbin as an aberration.

    Like

    Reply

    1. Hi Clive. The referendum was about membership of the EU. There was no vote over the UK’s membership of the European Convention on Human Rights (drafted largely by British lawyers). We remain bound by the ECHR that we helped to write. And clearly the whole population did not vote.

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      Reply

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