The paper tiger that is no threat to Britain's fundamental rights

Under the Treaty of Lisbon, the Charter of Fundamental Rights, which was proclaimed as a political text at the European Council of Nice in December 2000, is to be given ‘the same legal value as the Treaties’. In other words, though it will not be incorporated into the body of the reformed Treaties, as it would have been into the defunct Constitutional Treaty, the Charter will have the status of primary Union law. The relevant provision is found in Article 6 (1) of the amended Treaty on European Union (TEU).

One of the Government’s ‘red lines’ in negotiating the Lisbon Treaty was to protect United Kingdom law, including by neutralising any possible consequences that could result from the change in the Charter’s legal status. This is the function of the special Protocol on the application of the Charter to Poland and the United Kingdom.

The Charter Protocol will be annexed to each of the main Treaties, so as to cover the whole field of substantive law in which rights recognised by the Charter might conceivably be asserted.

Those opposed to ratification of the Lisbon Treaty will wish to pour scorn on the Charter Protocol, along with HMG’s other ‘red lines’. This article has a dual aim: to recall the strict limits placed upon the scope and effects of the Charter, which mean that its change of status is unlikely to have a significant legal impact, even apart from the Protocol; and to argue that, should there nevertheless be an impact, the Protocol will be sufficient to shield the United Kingdom from it.

The protection of fundamental rights within the legal system that has developed from the original European Community Treaties pre-dates the Charter by decades. Such protection was, and still is, accorded in part by the Treaties themselves and by legislation, and in part as an aspect of upholding general principles of law, recognised by the European Court of Justice (ECJ) as binding the Union’s institutions, and also the member states when they are acting within the framework of the Treaties.

In formulating such principles, the ECJ draws upon the constitutional traditions of the member states and international instruments to which they are parties – most importantly the European Convention on Human Rights.

The Charter was never intended to supplant this well-established system of fundamental rights protection. The limited function of the Charter is declared in its preamble as being to protect fundamental rights ‘by making those rights more visible’.

The point has been spelled out even more clearly in the sixth recital of the preamble to the Protocol, which says: ‘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’. In other words, the Charter is not, in itself, a source of rights but simply provides a record of rights that receive protection within the Union, from one source or another.

The fear that Union powers might be enlarged by the Charter, at the expense of the member states, will be explicitly addressed by the amended TEU. Article 6 (1), in its second subparagraph, declares: ‘The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties’.

Further comfort is available in the so-called ‘horizontal’ provisions of Title VII of the Charter, which govern its interpretation and application. They will apply under the Treaty of Lisbon in the strengthened version established for the purposes of the Constitutional Treaty. Among other things, it is stated that the provisions of the Charter are addressed to the member states ‘only when they are implementing Union law’, and that the Charter ‘does not extend the field of application of Union law beyond the powers of the Union or establish any new task or power for the Union, or modify powers and tasks as defined in the Treaties’.

This makes clear that the ECJ is not being given general jurisdiction for upholding fundamental rights, which properly belongs to the competent national courts and ultimately to the European Court of Human Rights in Strasbourg.

What is more, in interpreting the Charter, the courts of the Union and the member states will be legally required to pay due regard to a set of ‘Explanations’, originally established by the Praesidium of the Convention that drew up the Charter, and revised at the time of the Constitutional Treaty. The Explanations have been carefully and rather conservatively drafted.

They identify the sources of particular rights and provide an indication as to their meaning and scope, where appropriate referring to the detailed limitations imposed by the instrument — whether Union, national or international — from which a given right is derived.

Also relevant is the horizontal provision which recognises that in some instances the Charter refers to ‘principles’, where the protection of the interest in question is simply an aspiration.

Principles become judicially cognisable within the legal system of the EU only after they have been implemented by an act of a Union body or of member states implementing Union law, and only for the purposes of interpreting or reviewing such acts. They are to be distinguished from provisions of the Charter recording the existence of rights enforceable under Union or national law.

The distinction between ‘rights’ and ‘principles’ is not systematically reflected in the language of the Charter, which makes it unhelpful as a tool of interpretation; however, the Explanations provide guidance on this matter. The importance of the notion of ‘principles’ is that it accounts for the inclusion in the Charter of elements — inspired by such texts as the Union’s Social Charters — which are not capable of giving rise to claims enforceable as a matter of Union law. This underlines the point made earlier that the Charter itself is not a source of rights.

The unthreatening character of the Charter can be demonstrated with respect to the provisions that have provoked the most controversy in business and political circles in the United Kingdom, namely those relating to socio-economic interests, which are grouped under the heading ‘Solidarity’. On close examination, these can be seen to consist largely of principles that may only result in legislative action at the level of the Union, if competence exists, but otherwise remain outside the scope of Union law.

For example, there is an Article on ‘fair and just working conditions’, which provides in its first paragraph: ‘Every worker has the right to working conditions which respect his or her health, safety and dignity’. The second paragraph provides: ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’.

It is clear from the Explanation to this Article that, in so far a it refers to enforceable rights, these result from named Directives — as regards the first paragraph, Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work; and as regards the second paragraph, the Working Time Directive.

One further illustration will suffice. The Article on the right of collective bargaining and action states: ‘Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action’.

As the Explanation to the Article notes, taking collective action has been recognised by the Strasbourg Court as one of the elements of trade union rights laid down by Article 11 of the European Convention. At this level of generality, it can also be seen as a right common to the constitutional traditions of the member states. However, the modalities and limits of collective action, including strike action, are recognised by the Explanation as coming under national laws and practices.

In the result, the change in the status of the Charter seems unlikely to amount to much more than a formality. No doubt the European Courts can be expected to refer to the Charter more regularly than at present, but only by way of confirmation, once the existence of a right has been established by the traditional methods.

What then is the purpose of the Charter Protocol? Simply, it would appear, to make assurance doubly sure for those in the United Kingdom that remain determined to see the Charter as a ravening beast, when it is really a paper tiger.

The Protocol is not an opting-in-or-out mechanism, like those provided for the benefit of the United Kingdom and Ireland in the area of freedom, security and justice. The function of its two Articles is interpretative — to state unequivocally, and with the force of primary law, what ought to be obvious from a reading of the Charter in the light of the horizontal provisions and of the official Explanations.

Article 1 says in its first paragraph that the Charter ‘does not extend the ability’ of the ECJ or of United Kingdom courts to find that national laws or practices are inconsistent with the rights, freedoms and principles that it reaffirms. As the use of the indicative mood shows, this is a statement of fact about the Charter: taken on their own, its provisions do not provide the basis for legally enforceable claims.

The second paragraph makes a similar point —said to be ‘for the avoidance of doubt’ — specifically in relation to the Title on ‘Solidarity’, the main focus, as we have seen, of false fears in the United Kingdom. Nothing in that Title, it is stated, ‘creates justiciable rights’ applicable to the United Kingdom, except in so far as such rights have been provided for in its national law. Thus it is acknowledged that national law may have created justiciable rights in respect of certain matters referred to in the Title; however, such rights cannot arise from the provisions of the Title in themselves.

Article 2 of the Protocol says that, where a provision of the Charter refers to national laws and practices, this must be taken to apply to the United Kingdom only to the extent that the rights or principles in question are recognised in its own law or practices. The Article resolves a possible ambiguity, in a sense that seems clearly applicable to all of the member states.

On a true view of the Charter, interpreted in accordance with the horizontal principles and with due regard to the Explanations, there would not be any need for the Protocol. It has been provided just in case the paper tiger should acquire teeth, by an aberrant interpretation treating provisions of the Charter as capable of giving rise directly to enforceable rights. In that unlikely event, the United Kingdom would be able to invoke the clear language of the Protocol, to resist any challenge to its law or practices based on such a right.

Alan Dashwood is Professor of European Law at Cambridge and a barrister in Henderson Chambers practising in the law of the EU. Before taking up his Chair at Cambridge in 1995, he was a Director in the EU Council’s Legal Service.