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.

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