Saturday, 18 January 2014

Andrew Duff MEP Written Evidence To The House Of Commons Inquiry Into The Charter Of Fundamental Rights

Property House of Commons

1. I understand that you wish to focus your enquiry on the legal ramifications of the emerging corpus of judicial interpretations in national and European courts of the Charter of Fundamental Rights, and in particular on the meaning of Protocol No 30. One may look forward to reading the advice of the lawyers. Ultimately, however, the question of British respect for the Charter is a political one and requires a parliamentary response.

2. My standing in the matter is as a member of the original Convention which drafted the Charter and of the subsequent constitutional Convention on the Future of Europe. I then represented the European Parliament at the Intergovernmental Conference which negotiated the Treaty of Lisbon. I was the Parliament's co-Rapporteur on the Charter and then Rapporteur on the application by the Czech Republic to join Protocol No 30, an exercise which has resulted in the first negative Opinion by the Parliament against a revision of the EU Treaties (Article 48(3) TEU).[1]

3. No doubt your report will recognise, first, that the European Union is an integral part of the system of government of the United Kingdom and, second, that the UK is a full member state of the EU on a par with other member states. Unless and until the UK negotiates either to secede from the Union or to settle for a yet-to-be-formulated type of EU associate membership short of full membership, the UK is bound to respect the terms of its membership as established in international, EU and UK law. The status of the Charter has been determined under the Treaty of Lisbon which the UK, having ratified the treaty, is bound to honour. The Charter of Fundamental Rights is installed as a key part of the corpus of the primary law of the EU: in the hierarchy of norms, the Charter therefore has primacy over EU secondary legislation and over domestic British law in so far as the Charter is applicable.

4. We are all well aware of the complex and competitive nature of Europe's multi-layered rights regime, and this phenomenon was explored by the House of Commons during the passage of the Human Rights Act in 1998 whose purpose was to make more directly applicable the European Convention on Human Rights (ECHR). However, since the Human Rights Acts came into being, the Charter of Fundamental Rights has been interspersed as a 'much wider' binding instrument at the level of the EU, offering, in its Article 52(3), ‘more extensive protection’ than the ECHR.[2] So even if the ECHR were to be relegated by a repeal of the Human Rights Act, the EU Charter would remain part of British domestic law.

5. The Charter is now mandatory for the EU's ‘institutions, bodies, offices and agencies’ – in other words, all statutory authorities in the Union – when and in so far as they are applying or interpreting EU law or implementing its decisions.[3] (Article 51 of the Charter says 'only when they are implementing' Union law: a clearer formulation, in my view, and one closer to the case-law of the European Court of Justice (ECJ), would be 'when they act within the scope' of Union law.[4]) In any case, the Charter binds the UK as a member state of the Union and will therefore have some effect or other within the UK in all matters where competences are conferred on the Union or powers are vested in the EU institutions and its agents – of which the UK Government is one (Article 6(1) TEU).[5]

6. The salience of fundamental rights to the history and evolution of the European Union should not be underestimated. Today the promotion of a rights-based EU citizenship can be considered as central to the integration process. The Charter is the legal manifestation of the Union's political commitment. It articulates the rights and principles which shape the actions of the institutions and sets the benchmarks for countries which seek to join the Union. A serious and persistent breach of the Charter would jeopardise continuing membership of the Union.

7. The Charter was drafted, famously, 'as if' it were to become mandatory, and was treated with respect - certainly by the European Commission and European Parliament - since its signature at Nice in 2000. The ECJ, too, began to make references to the document as one of its interpretative sources before the Charter actually took on binding character at the entry into force of the Treaty of Lisbon in December 2009.

8. I labour these points somewhat because while the Charter has been underestimated in Britain it is seen elsewhere as a key part of the constitutional order of the Union, helping to bridge the credibility gap between the EU and the citizen. The Charter lends itself to good governance, suitable for all, convenient for none. It is a comprehensive and visible catalogue of the rights, values and principles which shape contemporary Europe. It makes the Union and its states better prepared for subsequent advances in integration as well as for further enlargement. It sets a uniform standard of rights across the Union which is the highest in the world. The elusive ‘future of Europe’ would be unthinkable without the Charter which, reflecting as it does a broad consensus between left and right, religious and secular, establishes the template for EU citizenship.

9. The British, it is clear, seem exceptionally sensitive to the impact of the Charter. Yet the Charter Convention was in no doubt that all EU states would have to adjust their national approaches to fundamental rights once the Charter became binding, and that this process of adjustment would also be a process of approximation between common law and Roman law traditions. The conferral of competences on the Union in the field of justice and home affairs would accelerate and add extra point to these processes, and the Charter has rightly become a basic document in the efforts being undertaken to increase mutual cooperation between national public administrations, customs, police and judicial authorities. The EU’s recent enlargement, the emergence of a wide range of common security measures in reaction to terrorism and international organised crime, data protection, border management, visa policy and efforts to forge common asylum and immigration policies all impinge directly and sensitively upon the terrain of human rights and civil liberties. As the emerging case law of the ECJ bears out, the Charter is highly relevant to the EU institutions as they both formulate and implement policy in all these areas.

10. In the Charter Convention, as well as subsequently, the UK Government has stressed the importance of the Charter's four horizontal articles which aim to set out its scope and limitations, its field of application, the difference of interpretation between rights and principles, the level of protection afforded, and the prohibition of abuse of the rights. Typically, the UK also put weight on the Charter’s explanatory memorandum which was drafted by the Praesidium of the Convention as a useful tool of interpretation.[6] These explanations are not in themselves justiciable – and were never intended to be so, but they assist the courts in defining what is a ‘right’ which applies directly and what is a ‘principle’ which requires to be given form in EU legislation before it becomes justiciable.

11. The explanations are useful in order to elucidate cases where the Charter goes further than the comparable provision of the ECHR, thereby providing a level of protection which is wider than that provided for in the UK Human Rights Act. One good example is Article 1 of the Charter (human dignity), which does not appear in the ECHR. Likewise, the right to good administration (Article 41 of the Charter) has no equivalent in the ECHR. Article 47 of the Charter (right to an effective remedy and a fair trial) is meant to afford wider protection than its ECHR equivalents (Articles 6 and 13). The explanations are also pertinent to the understanding of those provisions of the Charter that stem from provisions of Protocols of the ECHR which the UK has not ratified. One good example concerns the principle of ne bis in idem whose formulation in Article 4 of Protocol 7 of the ECHR is weak. Article 50 of the Charter, on the other hand, following case law at the Court of Justice in Schengen cases, is trenchant.

12. Uniform application is a very important objective of the Charter. The Charter addresses the system of the Union as a whole and not just part of it: it has to be applied uniformly in order to ensure legal certainty and coherence throughout the Union, applicable to all member states equally. This is the in principle line to be taken by the European Court of Justice and it will be likely followed in this matter by the European Court of Human Rights (ECtHR). It falls to the ECJ to assess the compliance of national law which implements EU law with the provisions of the Charter. Here the existence of Protocol No 30 is a problem should its purpose be to erect flood barriers against the tide of EU rights law which is intended to find its way up into Lord Denning’s famously English rivers and estuaries. The sight of the European Union being picky and choosy with its own rights regime is hardly edifying, and the UK’s launch of a Protocol which it sold to the British public and Parliament as a tool to limit the force of the Charter in the UK won no plaudits from Britain’s EU partners. There was always the risk that where Britain led others would follow. Poland, for its own reasons, joined Protocol No 30 and the Czech Republic later sought to do so. One may note, too, that Hungary has recently adopted a cavalier approach to the constitutional norms of the European Union, thereby setting up potential conflicts of interpretation between the Hungarian and EU courts.

13. The exposure of English common law to the law of other nations is large and continuing, and not just consequential on the formal international conventions to which the UK is a party. Over the years, the British Law Lords have made impressive contributions to the development of international comparative law. Where the ECHR is concerned, British judges have been rightly mindful of the need to maintain as uniform an interpretation as possible despite the heady variety of different legal cultures across the now 47 states of the Council of Europe. As Lord Bingham warned, ‘national application, beyond the margin of national appreciation for which the Convention allows, must inevitably lead to significantly differential application between state and state’.[7]

14. While the ECHR remains among the general principles of the Union’s law (Article 6(3) TEU), it is the Charter upon which the Union seeks to build a superior rights regime under the jurisdiction of the supranational Court at Luxembourg which, all things considered, and as part of the Union framework, can be expected to be more consistently reliable than its much larger and more diverse international counterpart at Strasbourg. The risk of incoherence between the two courts will be reduced by the imminent accession of the EU to the ECHR, as ordained by the Lisbon treaty (Article 6(2) TEU). The accession by the EU to the ECHR was required not least by the UK Government as the quid pro quo for agreeing to give the Charter mandatory status.

15. The effect of this accession will be twofold. First, the EU will enjoy much the same relationship with the ECHR and the Strasbourg Court as that enjoyed by its member states. The ECtHR will become the external supervisor of the ECJ as the latter develops human rights law specifically to cater for the scope and field of application of the law of the European Union. After accession is completed, the ECHR will have to be seen and interpreted in and by the UK not only directly by virtue of the Human Rights Act but also through the prism of the Charter at least in so far as European Union law is concerned. Accession will allow cases to be brought at Strasbourg against the EU institutions for alleged violations of the classical human rights as prescribed in the ECHR. A key issue in the accession negotiations is how to ensure that the Luxembourg Court will be able to judge on all matters of EU law before it may be said that all domestic remedies have been exhausted, after which exhaustion the route to Strasbourg is open.

16. Pending the delivery of the anticipated preliminary ruling of the ECJ, the process of the EU’s accession to the ECHR is not yet concluded, and I will not deal further with the matter here.[8] But I do believe that the overall settlement will be wholly beneficial to both courts and to the quality of rights jurisprudence in Europe. I am confident that the Court of Justice will soon act as a reference point for the ECtHR, setting high standards of case law in areas where the Charter goes further than the Convention, notably in cross-border and trans-national issues and in the ‘new’ areas of social, civil and environmental rights. I cannot see why it is in the interests of British citizens to be isolated from these developments.

17. In the light of the close association between the ECHR and the Charter, it is paradoxical that the then Labour Government chose to treat these two comparable European instruments in very different ways. While the intention of the Human Rights Act was to give the ECHR direct effect in the UK, that same Government and Parliament sought to blunt and obscure the effect of the Charter in the UK by insisting on Protocol No 30 to the Lisbon treaty. In 2000 a British Minister of Europe, more than usually erratic, expostulated to the press that the Charter would be ‘no more binding than the Beano’. In 2007 the Prime Minister boasted to the House of Commons: ‘It is absolutely clear that we have an opt-out from both the Charter and judicial and home affairs’.[9] The self-evident air of superiority or exceptionalism in rights matters evinced by successive British ministers was and is, in my view, badly ill-judged. One recalls that the original drafters of the ECHR, many of whom were British, presumed that the Convention would not apply much to the UK but, rather, to those European states which had succumbed to fascism, Nazism and communism. But, as we now know, many judgments of the ECtHR have in the event been levelled at the UK, especially in the fields of security of the person, right to fair trials and right to privacy where English law can be said to be deficient.

18. Whatever the political argument behind Protocol No 30, it has had the effect of disturbing the principle of the uniform application of EU law. The UK’s attempt to shield itself against the full justiciability of the Charter impairs the Charter’s value for everyone else. Particularly worrying is the Protocol’s assertion that UK courts will apply and interpret that Charter ‘strictly in accordance’ with the famous explanations – a statement which would seem to diverge radically from the Treaty which says, merely, that the courts will pay ‘due regard’ thereto.[10]

19. Likewise, all states accept that the Charter in itself does not extend ‘in any way’ the competences of the Union.[11] But the bald statement in Protocol No 30 that the Charter ‘does not create new rights or principles’ goes some way further than the Charter itself, which says simply that it ‘does not extend the application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’.[12] The Protocol may well be found in conflict with the EU legal doctrine of implied powers, especially as and when the legislature chooses to codify relevant Court of Justice case-law grounded inter alia on the basis of the Charter.

20. The UK’s main justification of its Protocol appears to have been an apprehension that Title IV of the Charter, entitled Solidarity, could lead to the demolition of its own flexible labour markets. The UK sought to limit the possibility that the Charter would give the EU new cause to legislate in areas, notably labour law, which would breach its brazen 'red lines'. However, while being wholly consistent with the ECHR, and as the famous explanations explain, Title IV has a wider scope to address the needs, anxieties and aspirations of contemporary European society. It draws not only on the ECHR but also on the European Social Charter (1961), the Community Charter of the Fundamental Social Rights of Workers (1989), on standard ILO norms reflected by collective bargaining agreements at national and EU level, on extensive EU legislation and on case law of the Court of Justice. The Charter’s principles in respect of social policy become significant only as and when articulated in terms of EU legislation or executive action. Article 153(5) TFEU specifically precludes EU interference in matters of pay, the right of association, the right to strike and the right to impose lock-outs. Article 153(4) already lays down that no social policy provision of the EU shall affect the right of a member state to establish its own social welfare system or to affect the financing thereof.

21. In addition to these sector specific safeguards, there is the general obligation on the Union to respect the national identities of the member states ‘inherent in their fundamental structures, political and constitutional’ (Article 4(2) TEU). Moreover, the Charter must always be applied with due regard to the principle of subsidiarity (Article 5(3) TEU).[13]

22. Given all of the above, therefore, it is difficult to conceive of any circumstances in which litigation using the Charter could actually overturn the nostrums of British labour law or pay, social security, and employment policy. Attempts to approach the Court of Justice either directly or indirectly by an aggrieved somebody who is unemployed or homeless in search of a job or a house will certainly fail. The Court will be assuredly conservative in its treatment of these issues (unless a case can be shown to concern directly and individually an employee of one of the EU institutions).

23. It is worth recalling here that Poland, the other signatory of Protocol No 30, was keen to stop the Charter from curbing its own right to legislate in matters of public morality, family law, abortion, gay rights etc.[14] Bizarrely, Poland also sought to emphasise, in adopting the British Protocol which was defensive against social rights as laid down in Title IV, that it (unlike the UK) ‘fully respects social and labour rights’ in the spirit of the Solidarity movement.[15] Subsequently, the Protocol appears to have been of no importance to the Polish judiciary, being regarded as an expression of the ideology of the then Law & Justice party government of the Kaczynski brothers. A Polish constitutional mechanism has since been devised whereby Poland can decide to amend or to withdraw from the Protocol, and such a possibility remains under review.

24. The Czech Republic, at the behest of its President Klaus, took the more eurosceptic stance. It achieved at the time of the Lisbon negotiations, its own categorical Declaration 53 which speaks of its concerns about the impact of the Charter on the principles of subsidiarity, conferral of competences, respect for national constitutions and international agreements. The official ground on which Mr Klaus was later to insist that the Czech Republic should join Protocol No 30 was his concern about the continuing validity of the Benes Decrees that dealt with the expropriation of the property and deportation of ethnic Germans from Czechoslovakia after the Second World War.[16] Mr Klaus’s initiative was of questionable legal merit, not least because the matter of the Benes Decrees was comprehensively and definitively dealt with in the Czech treaty of accession to the EU. Moreover, such concerns had been absent from the political debate until early 2009 and were not mentioned in submissions to the Czech constitutional court in either of its judgments on the Lisbon treaty.[17] Indeed, in the then government's official mandate for the negotiation of the Lisbon treaty it was a priority to establish a uniform standard of protection of human rights. It is important to note that subsequent to the negative Opinion of the European Parliament and to the retirement of Mr Klaus, the Czech bid to join Protocol No 30 has been dropped – presumably for good.

25. We cannot, therefore, look to Warsaw or Prague for enlightenment as to the nature of Protocol No 30 beyond saying that its existence complicates matters. I still marvel at the assertion in the Court of Appeal by the representative of the UK Government that the purpose of the Protocol was ‘not to prevent the Charter from applying to the UK, but to explain its effect’.[18] Whatever else the Protocol is, self-explanatory it is not. It is unsurprising in these circumstances that the High Court inclined towards the view that Protocol No 30 could be construed as a general opt-out from the Charter, assuming that the Charter does not have direct effect in the UK.

26. My own view, on the other hand, inclines to that of Advocate-General Trstenjak in her Opinion of 22 September 2011. First, with regard to the Preamble of the Protocol, the eighth recital of the Preamble establishes that the purpose of the Protocol is to ‘clarify certain aspects of the application of the Charter’. The seventh and twelfth recitals make it clear that, regardless of the Protocol, all other EU law applies fully to Poland and the UK. The Protocol is only relevant, therefore, if the Charter were to add to the existing general principles of EU law, or to be wider in scope, or to reduce the limitations on rights in comparison to the general principles. I agree with A-G Trstenjak that the Preamble reaffirms the ‘fundamental validity’ of the Charter.

27. Second, with regard to the field of application, Article 1(1) of the Protocol supplements Article 51(2) of the Charter. Its intention is not to extend the ability of the courts to find that UK law is inconsistent with the Charter. However, neither does it seek to curtail the ability of the courts to assert a fundamental rights jurisdiction by reference to the provisions of the Charter. And in any case the courts must abide by fundamental rights as prescribed in the ECHR and as part of the general principles of EU law under the provisions of Article 6 TEU. The general principles enjoy constitutional status and may be relied upon by individuals in the courts. In this regard, people in Poland and the UK would seem to be in exactly the same position as people in all other EU states.

28. Third, with regard to scope, the principles in Title IV of the Charter are required to have become the subject of national legislation before they become justiciable. Article 1(2) of the Protocol confirms Article 51(1) of the Charter that the Charter does not create justiciable rights as between private individuals. It also attempts to clarify Article 52(1) of the Charter, and may have been conceived as an attempt to blunt the direct effect of the Charter. Yet it remains unclear which articles of Title IV would be regarded by the Court of Justice as having direct effect. And wherever Poland and the UK have provided for such rights in national law, there is no prohibition of justiciability on behalf of the ECJ. Moreover, as noted above, to the extent that Title IV represents general principles of EU law, the courts in Poland and the UK are bound to apply its provisions directly.

29. Fourth, with regard to interpretation, Article 2 of the Protocol seeks to clarify Article 52(4) and (6) of the Charter. Where the Charter refers to national laws and practices, it refers specifically, in relation to Poland and the UK, to Polish and British laws and practices, respectively. (It could hardly be otherwise.)

30. In conclusion, Protocol No 30 does not exempt the UK and Poland from the binding provisions of the Charter. It is not an 'opt-out'. It does not amend the Charter. Yet the very existence of the Protocol has given rise to legal uncertainty and political confusion not only in Poland and the UK but to all other states. If the Protocol were ever to be interpreted as having the effect of limiting the scope or force of the Charter's provisions, the result would be to lower the protection of fundamental rights afforded to people in Poland and the UK, and would therefore undermine the efforts of the EU to reach and maintain a uniformly high level of protection.

31. As it stands, however, the Protocol would seem not to alter the legal position which would prevail if it were not to exist. That being the case, the effect of its provisions, if any, would seem to apply as much to other member states as it applies to Poland and the UK.[19]

32. All in all, it is difficult to avoid the judgement that the UK Government launched Protocol No 30 in the first place for entirely political reasons and not because it harboured genuine legal concerns about the Charter. My recommendation to your Committee, indeed, is that in the interests of legal certainty and political solidarity you recommend to Parliament that the UK abrogates Protocol No 30 at the next available ordinary revision of the EU Treaties.[20]

33. One final related issue concerns the number of ECHR Protocols to which the EU should accede when it signs and ratifies the Convention. The European Parliament argues that the EU should sign up to all Convention Protocols which are compatible with the Charter of Fundamental Rights on the grounds not only that the Union is more than an aggregate of its member states and enjoys a federal character sui generis, but also that the Charter is addressed in the first instance to the European Union and only in the second instance to the states by virtue of their membership of the Union. The UK Government, however, takes the view that the Union should sign up only to those Convention Protocols to which all member states are signatories – in effect only Protocols No 1 and 6 ECHR. I hope your Committee will support the European Parliament in this matter in order to avoid any regression from the Charter: it would surely be wise for the House of Commons to follow the logic of the Lisbon treaty which sought to attain the highest level and most uniform and comprehensive protection of rights for all citizens of the European Union – not excluding those of British nationality and of other EU nationalities residing in the United Kingdom.

34. It would appear that the debate about creating a separate UK Bill of Rights has run its course. That being the case, the British parliaments and courts must learn to take full cognisance of the EU Charter as the main source of rights law throughout the Union and at all levels. The Charter is the essential prism through which the ECHR must henceforth be interpreted in so far and as long as the UK remains a full member state of the EU. An essential condition of full membership is allegiance to the ECHR and the Charter. Any attempt to reduce the UK’s legal and political adherence to the ECHR and the Charter will jeopardise Britain’s membership of the European Union. Your Committee would do well to make this point.

January 2014

[2] As Mr Justice Mostyn opines in AB v. Secretary of State.
[3] Article 51(1) CFR.
[4] See The Spinelli Group A Fundamental Law of the European Union, Bertelsmann Stiftung, 2013, p. 114.
[5] The EU’s competences are wide (Articles 2-6 TFEU), and its institutions are empowered to implement the Treaties across the entirety of the Union’s objectives (Article 3 TEU) and in accordance with its values (Article 2 TEU). Notably, the ECJ is to see that 'in the interpretation and application of the Treaties the law is observed' (Article 19(1) TEU).
[6] Article 52(7) CFR and Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14-12-2007, pp. 17-35.
[7] Tom Bingham, Widening Horizons: The Influence of Comparative Law and International Law on Domestic Law, Hamlyn Lecture, CUP, 2010, p. 83.
[8] Article 218(11) TFEU.
[9] Tony Blair to the House of Commons on 25 June 2007. He went on: ‘[I]n respect of the two areas that people worried about most—the Charter of Fundamental Rights, on which people said, ‘Well, that is going to apply in British law’, and judicial and home affairs—we have opt-outs. That is what is different. With the greatest respect, it is important that people actually pay some attention to the facts when mounting their argument’.
[10] Third recital of the preamble of the Protocol in comparison to the third sub-paragraph of Article 6(1) TEU.
[11] Article 6(1) TEU.
[12] Sixth recital of the preamble of the Protocol in comparison to Article 51(2) of the Charter.
[13] Article 51(1) CFR.
[14] Indeed, Poland obtained a Declaration 61 to that effect.
[15] Declaration 62.
[16] Helena Bončková, Hubert Smekal, Fragmentace společných hodnot? Výjimky z Listiny základních práv Evropské unie /Fragmentalization of Common Values? Opt-outs from the Charter of Fundamental Rights of the European Union, in Soucasna Evropa 02, 2010.
[17] Ústavní soud - 2008/11/26 - Pl. ÚS 19/08: Treaty of Lisbon I; Ústavní soud - 2009/11/03 - Pl. ÚS 29/09: Treaty of Lisbon II.
[18] Case C-411/10, NS v Secretary of State for the Home Department.
[19] One notes that all member states without exception were moved to sign Declaration 1 on the Charter.
[20] Likely to start, in my estimation, in 2015 with a Convention (Article 48(3) TEU).