The Ministry of Justice issued a Call for Evidence for a review on the balance of competences between the UK and EU in relation to fundamental rights on 21 October 2013, with the deadline for submitting evidence being 13 January 2014.
The Fundamental Rights Review is part of a broader series of reports on EU competence taking place between 2012-14, aiming to deepen public and Parliamentary understanding of the nature of our EU membership, among other things. The Call for Evidence seeks answers to 14 questions ranging from the quite specific “What evidence is there that the Fundamental Rights and Citizenship programme provides value for money?” to more far reaching questions covering whether there is any benefit to individuals/business/public sector/other groups within the UK from the Charter of Fundamental Rights, issues of competence creep, and potential consequences for the UK following EU accession to the ECHR.
The Call for Evidence
The approach of the Review is to give an outline of what fundamental rights are, put them in an international context and essentially summarise a brief history of fundamental rights protection in Europe – from the ECHR and from various EU mechanisms. The Fundamental Rights Review is potentially very important – the stated aim of the Balance of Competences reviews is to audit what the EU does and how it affects the UK government and those residing within the UK more generally. The main website can be found here. Continue reading
The UK Supreme Court on Wednesday delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of disenfranchisement with Convention rights, and also whether that disenfranchisement breached a right to vote granted to the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, declining either to issue a declaration of incompatibility or to recognise a right to vote conferred upon the appellants by EU law.
Prisoners in the United Kingdom are ineligible to vote by virtue of section 3(1) of the Representation of the People Act 1983 (‘RPA 1983’), which states that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election’. This disenfranchisement is extended to apply to European Parliamentary elections by virtue of section 8(2) of the European Parliamentary Elections Act 2002. Continue reading
Debates about human rights have been instrumental in forming the EU legal order as we know it today. In the Solange saga, judges in Luxembourg went some length to ‘discover’ human rights as unwritten general principles in order to fend off challenges to the primacy of Union law by the Bundesverfassungsgericht. At the time, the case-law often limited itself to abstract declarations of intent without fully giving teeth to human rights in practice. Only recently, the newly drafted Charter of Fundamental Rights seems to have motivated the European Court of Justice (CJEU) in Luxembourg to change course. Ever since the Lisbon Treaty came into force, the judges actively explore the human rights dimension of most cases. Against this background, the forthcoming accession of the EU to the European Convention on Human Rights (ECHR) can be described as the culmination of a long process which will finally embed the EU into the pan-European human rights architecture. In future, the EU will be officially bound by the ECHR in the same way as Member States and be subject to the jurisdiction of the European Court of Human Rights (ECtHR) in Strasbourg.
I applaud the EU’s accession and I am optimistic that it will foster the credibility of both the Convention system and the EU legal order. But accession is not only a grand political project. It has a technical dimension which raises a number of delicate legal issues. The sheer complexity of the undertaking is illustrated by the voluminous Draft Accession Treaty which comprises 12 articles together with an extensive explanatory report of no less than 20 pages. It completes 3 years of protracted negotiations during which the Commission had to convince, among others, Russia and Turkey that the EU’s byzantine legal and institutional structure required special rules and procedures. It was quite successful – and yet the Draft Accession Agreement provokes a couple of questions, bringing us back to the original challenges to the primacy of Union law, which the CJEU has always been eager to deter. It might do so again: just before the summer recess, the European Commission referred the matter to the CJEU in Luxembourg, in Opinion 2/13 whether the Draft Accession Agreement falls foul of the EU Treaties. Continue reading
Yves Bot had a long career as a senior French prosecutor behind him when in 2006 he joined the European Court of Justice as an Advocate General. It has fallen to him to provide an advisory opinion in the seemingly interminable Kadi case, now winding its way back to the Court some five years after it first generated headlines, making the court (and a predecessor of Bot, Miguel Maduro) into near-celebrities in legal and human rights circles.
But why is Kadi going on and on?
The first decision in Kadi and Al Barakaat International Foundation v Council and Commission (on 3 September 2008) made such dramatic news because it as good as disapplied United Nations sanctions against suspected terrorists within the EU legal space. As Advocate General Bot puts it ‘[i]n essence, the Court held that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all EU acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by that Treaty’ [para 16].
So strong, the Court held back from immediate implementation of its ruling. A flurry of activity followed. Kadi was sent reasons why he was on the UN blacklist, he commented, and the Commission then issued a fresh regulation keeping him where he was but boasting in the recitals of how inclusive they had been in this new decision-making process. Its regulation was backdated to 2002 so as to provide no chink of light for Kadi so far as getting at his funds was concerned. In further correspondence the Commission said that the ECJ ruling did not require it to disclose any of the evidence underpinning the reasoning behind the blacklisting.
So Kadi I was great for all the human rights and civil liberties people – but not for Kadi.
Hence Kadi II. Continue reading
Dr Iyiola Solanke
Can an employer compel a Christian employee to: a) remove jewellery worn to manifest religious belief or b) carry out workplace duties which are felt to contravene central tenets of their faith? How far must employers go to accommodate religion and belief? Do they have to accommodate believers, whose ‘commitment to religion ‘involves not just participation in the worship and corporate life of the religion concerned but adherence to its system of values’ in a way that influences their behaviour in their daily lives, outside the context of the religion’s corporate life? Must organisational aims respect religion?
Since the introduction in England and Wales of the Employment (Religion and Belief) Regulations in 2003 – in avowed implementation of Directive 2000/78/EC (the Employment Equality Directive) – , domestic courts in the UK have understood the requirements of EU law to place only a limited obligation upon employers to recognize and accommodate the religious beliefs of employees in the workplace: Muslim claimants such as Mohmed and Azmi were unsuccessful in gaining legal support to wear a long beard or the hijab; Christian claimants such as Mba have not persuaded judges that their religion should relieve them from Sunday working. Of course (national law implementing) EU law in this area is intended to be interpreted in a manner which is also consistent with the requirements of the ECHR (see R (on the application of AMICUS–MSF section, NUT and others) v. Secretary of State for Trade and Industry  ICR 1176 (EWHC, Admin) ). Strasbourg jurisprudence seems to be supportive of this stance with its dual approach to Article 9 ECHR on freedom of religious expression. In Kokkinakis, it said that religious freedom “implies freedom to manifest ones religion. Bearing witness in words and deeds is bound up with the existence of religious convictions” but it is agreed that this right is not absolute – Continue reading
The failure of the UN Security Council (“UNSC”) to agree resolutions on Syria, thanks largely to Russian and Chinese intransigence, is still big news. But both the European Court of Human Rights (“ECtHR”) and the Court of Justice of the European Union (“CJEU”) have recently had occasion to consider instances in which UNSC resolutions have successfully been passed, in respect of individuals suspected of involvement in terrorism, with sometimes alarming consequences for human rights.
In Nada v Switzerland, the Grand Chamber of the ECtHR made a contribution to the growing jurisprudence, at European level, on States’ obligations when implementing UNSC Resolutions. The case is interesting in that it demonstrates a somewhat surprising reluctance on the part of the Strasbourg court to directly challenge the primacy of the UN legal order. This contrasts with the more robust approach of the CJEU in the Kadi case (judgment is currently pending in the follow-up case, Kadi II, which has been considered by this blog here).
This paper was presented by Jodie Blackstock, Director of Criminal and EU Justice Policy at JUSTICE, at the conference The EU Charter of Fundamental Rights: An essential tool for UK practitioners, held on the 29th March. This is the second part of the paper. The first part was posted yesterday.
Limitations of the Charter
The Charter provides a general limitation clause to all articles. Article 52(1) provides:
Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
This is a test of proportionality developed by the ECJ (in particular Case C-112/00 Schmidberger Internationale Transporte und Planzuge v Austria  ECR I-5659 in which an environmental protest was held blocking a road for 30 hours and the claimant company complained that their right to free movement of goods was infringed. The Court considered arts 10 and 11 ECHR which are not absolute rights and applied the above test, concluding that it had been a limited disruption for a genuine aim and efforts had been taken to limit the impact, whereas a ban on the demonstration would have been an unjustified interference with freedom of expression). The Explanations confirm that the reference to ‘general interest’ relates to art 3 TEU as well as arts 4(1) TEU, 35(3), 36 and 346 TFEU.
Aidan O’Neill QC
In the second of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.
No standing for Consumer Associations to challenge merger clearance decisions by the Commission
In Case T‑224/10 Association belge des consommateurs test-achats ASBLv Commission supported by Électricité de France (EDF) 12 October  ECR II-nyr the General Court yet again rejected a challenge to its restrictive standing rules, this time brought by a consumer association who sought to challenge on behalf of consumers a clearance decision of the Commission allowing a merger between two undertakings to take place. The Court rejected the consumer association’s argument that the Treaty and Charter provisions (Article 38 CFR), which require consumer-protection considerations to be taken into account in defining and implementing other EU policies and activities and for those EU policies to ensure a high level of consumer protection, meant that it should be recognised to have sufficient interest in a merger on behalf of consumers affected by it. Instead the Court stuck to its narrow definition of standing in the usual terms:
This post first appeared on the UK Human Rights Blog and is reproduced here with permission and thanks.
NS v Secretary of State for the Home Department (Principles of Community law)  EUECJ C-493/10 (22 September 2011) - read opinion
The Common European Asylum System was designed to establish a fair and effective distribution of the burden on the asylum systems of the EU Member States. Regulation No 343/2003 was passed in order to introduce a clear and workable method for determining which single Member State is responsible for determining any given asylum application lodged within the European Union. The measure was also intended to prevent forum shopping by asylum seekers.
Aidan O’Neill QC
In part 1 of this series of posts, EUtopia law examined the problems created by the existence of two distinct means of reference to fundamental rights, either under direct reference to the ECHR or under reference to the general principles of EU law. This post evaluates possible solutions to this problem.
An opportunity for a possible resolution of the divergence problem arose following the 1996 decision of the Court in Bosphorus (C-84/95) where the CJEU held that the impounding of an aircraft by the Irish authorities acting under an EC regulation introduced to enforce UN sanctions against the former Yugoslavia did not contravene the respect for property rights recognised under EU law. The aircraft owners then took their case to the ECtHR. After a hearing, in which the European Commission was permitted to intervene as an interested party, the Strasbourg Grand Chamber pronounced judgment in June 2005. In its judgment in Bosphorus v Ireland (App no.45036/98) the ECtHR came to the same substantive result as the CJEU on the fundamental rights argument in holding that the detention and retention of the aircraft was indeed compatible with the State’s obligations under ECHR, art 1 Protocol 1. In reaching this decision the Strasbourg Court addressed and attempted to resolve the issue of the possibility of divergence between human rights interpretation and protection as between the two courts by applying a presumption that the CJEU offered equivalent fundamental rights protection to that afforded by the ECtHR and so that Member States could not be found to be in breach of the ECHR if and insofar as they were (properly implementing) EU law in accordance with the fundamental rights guarantees protected by the CJEU.