Is the UK’s ‘opt-out’ from the EU Charter of Fundamental Rights worth the paper it is written on? Part 1.

Aidan O’Neill QC

The UK Government has long sought to play down the significance of the EU Charter of Fundamental Rights. In its negotiations around, and public presentation of, the substance of the Charter (as originally solemnly proclaimed in 2000) the position of the UK Government was that the Charter simply consolidated existing EU fundamental rights jurisprudence, contained no new rights and did not allow the courts any new powers. And when it was proposed that the Charter be incorporated into TEU by Treaty amendment, the UK sought an “opt-out” from certain of the Charter provisions, which is now contained in Protocol 30 to the Lisbon Treaty. In this series of posts EUtopia law considers the effectiveness of this self-proclaimed opt-out.

UK Governments over the past 20 years, of whatever political hue, have consistently shared a post-Thatcherite hostility to the idea of courts telling them what to do. Particular suspicion has focused, in this regard, on grand proclamations of fundamental rights contained in a variety of international instruments. In the past, our politicians were happy to sign up to these if they remained statements of eschatological hope only. More recent experience has been, however, that (national and international) courts have tended to get their hands on these documents and, taking international law seriously, transformed them into catalogues of justiciable individual rights. This transformation of aspiration into obligation is seen, from the political perspective, as a zero sum game: the increase in the jurisdiction of the courts to consider and adjudicate on these instruments has been experienced as a reduction in power for the politicians, giving them less room to manoeuvre. It is against this background that one can begin to understand the intent and purpose behind the proclaimed UK (subsequently joined by Poland) “opt-out” from provisions of the EU Charter of Fundamental Rights set out in Protocol No 30 TEU.

Even before it became legally binding, provisions of the EU Charter of Fundamental Rights were being referred to and relied upon in the domestic courts of the UK: see, R (Yogathas) v HS [2003] 1 AC 920  per Lord Hope at 935, para 36; Bellinger v Bellinger [2003] 2 AC 467 per Lord Hope at 486, para 69; Sepet & Anr v SSHD [2003] 1 WLR  856 (HL) per Lord Bingham at 867–68, para 15 and Lord Hoffman at 879, para 51; R (Robertson) v Wakefield Metropolitan District Council & Anr  [2002] QB 1052 per Maurice Kay J at para [38]. In R (Howard League for Penal Reform) v SSHD [2003] 1 FLR 484, Munby J noted (at 495, para 51) that:

“The European Convention is, of course, now part of our domestic law by reason of the Human Rights Act 1998. Neither the UN Convention nor the European Charter [of Fundamental Rights] is at present legally binding in our domestic law and they are therefore not sources of law in the strict sense. But both can, in my judgment, properly be consulted insofar as they proclaim, re-affirm or elucidate the content of those human rights that are generally recognised throughout the European family of nations, in particular the nature and scope of those fundamental rights that are guaranteed by the European Convention.”

The second and sixth preambles of Protocol 30 that state, respectively, that “the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 TEU and Title VII of the Charter itself” and that “the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles” seek to explain the effect of the Charter. The first substantive provision is Article 1(1), which is in the following terms:

“The Charter does not extend the ability of the Court of Justice, or any court or tribunal of Poland or of the United Kingdom to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”

But as a derogation from the general principles of EU law this provision has to be read strictly and narrowly accordingly to its precise terms. According to Honyvem Informazioni Commerciali Srl v Mariella De Zotti (C-465/04) at para 24:

“[A]ccording to settled case-law, the terms used to establish exceptions to a general principle laid down by EU law … are to be interpreted strictly (Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraph 25). Applying this canon of construction Article 1(1) of Protocol No 30 TEU says only that the Charter cannot extend the ability of a court judicially to review national laws. But this power in the CJEU (and conferred on national courts in so far as acting within the field of EU law) is not conferred or extended by the Charter – it exists by virtue of the Court’s established jurisprudence noted above, and is already part of the acquis communautaire. If the Member States are operating in the field of EU law then they are subject to EU law review. This is not a matter of territorial or geographic jurisdiction, but one of the respective competence of the Member States and the Union institutions.”

Article 1(2) of Protocol No 30 TEU says this:

“(2)      In particular, and for the avoidance of doubt, nothing in Title IV ‘Solidarity’ of the Charter creates justiciable rights applicable in Poland or in the United Kingdom except insofar as Poland or the United Kingdom has provided for such rights in its national law.”

Title IV of the EU Charter on ‘Solidarity’ comprises: Art 27 CFR workers’ right to information and consultation within the undertaking employing them; Art 28 CFR right to collective bargaining and industrial action; Art 29 CFR right of access to placement services; Art 30 CFR protection in the event of unjustified dismissal; Art 31 CFR right to fair and just working conditions; Art 32 CFR prohibition of child labour and protection of young people at work; Art 33 CFR protection of family life and its reconciliation with professional life; Art 34 CFR entitlement to social security and social assistance; Art 35 CFR right of access to preventive health care; Art 36 CFR right of access to services of general economic interest; Art 37 CFR claim to environmental protection and sustainable development; Art 38 CFR expectation of consumer protection. And again, on a strict analysis the claim in Article 1(2) of Protocol No 30 TEU that the Charter does not create “justiciable rights” applicable in Poland or in the United Kingdom wholly misses the point. The Charter does not create rights within individual State territories, and the CJEU in enforcing the provisions of the Charter as against Union institutions – and, where appropriate, also against individual Member State authorities – is not creating or enforcing those rights within national territories. It is, instead, enforcing these within the supra-national realm of EU law.

Lastly, Article 2 of Protocol No 30 TEU provides that:

“To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.”

This is, however, arguably stating no more than the obvious, and should have no limiting effect on the interpretation and application of the Charter’s provisions.

In the second part of this series of posts EUtopia law will examine the potential impact of the upcoming decision in NS v Secretary of State for the Home Department C-411/10 on the effect of Protocol 30. Stay tuned!

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