25 June 2004
Introduction
At the Brussels European Council on 17/18 June, the Prime Minister agreed
a Constitutional Treaty for the European Union. Part II of that Treaty is
the Charter of Fundamental Rights. These remarks - written from my perspective
as the UK negotiator in the Convention which led to the promulgation of
the Charter as a political declaration in December 1999 by the Nice European
Council - are about the terms on which the Government has accepted
the incorporation of the Charter into the Constitutional Treaty .
The Charter comprises 54 Articles and 51 pages of Explanations. It is perhaps no surprise therefore that there is confusion about what it does and does not do. But that is no excuse for some of the myths being peddled: that the Charter creates a right to strike overriding national laws and practices; that it creates a new right to asylum; that it will lead to the wholesale rewriting of our system of criminal justice. The Government would not have agreed to its incorporation in the Treaty it if that were the case.
I have given these remarks the title "a brake not an accelerator" because I believe that is the merit of the Charter. The Charter is a consolidation of existing rights, freedoms and principles which limit the scope of the EU institutions. It makes clear that the EU must respect the fundamental liberties of our citizens whenever it acts. It is not a mine for new human rights in this country. Interest groups or lawyers who may, from a cursory reading or from lurid press coverage, see the Charter as a new platform to mount challenges against action taken by the UK Parliament or Government will, I believe, be sadly disappointed, which is why it is appropriate to throw some cold water to dampen their enthusiasm.
The case for the Charter
It is well established that the EU institutions are bound to respect fundamental
rights as general principles of Community law. However, it has not been
very clear what this means. ECJ case law, later codified by the Treaty of
Maastricht, drew on the ECHR and the inspiration to be found in the constitutional
traditions common to the member States. But there has been no catalogue,
no list, of the rights and freedoms which might be involved.
Whatever the possible attractions to lawyers of such lack of clarity, the situation is unappealing to the citizen and to national governments. The EU institutions have had considerable powers conferred upon them by the member States. What detailed reassurances can be offered that such powers will be exercised with no less respect for human rights than is expected from national governments?
That was - and is - the case for the Charter. It was the essence of the remit given to me and to the other members of the Convention which drafted the Charter under the chairmanship of former German President, Roman Herzog. To my mind, the mandate given us by the Cologne European Council conclusions was perfectly clear on the point. The conclusions stated that "the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident". This was an exercise in consolidation of what was already there, for the purpose of showing what constraints there are in acting "at Union level". This was never an exercise about imposing new obligations on national governments when acting domestically within national competence. Putting the Charter into the new Constitutional Treaty does not change that.
Problems with the Nice draft
It is beyond the scope of these remarks to tell the story of the Herzog
Convention. The short point is that the document which emerged at the Nice
European Council in December 2000 - the result of a year of somewhat frantic
work - made an impressive political declaration but was unsuitable, in the
view of the Government, for incorporation into the Treaty without better
legal clarity.
That has been achieved primarily by two mechanisms. The first is amended Charter Articles 51 and 52 - the so-called "horizontal" articles. The second is the official Explanations, which constitute an indispensable and authoritative guide to the Charter. The Explanations will be published in a declaration annexed to the Final Act of the Constitutional Treaty .
General scheme of incorporation
Article I-7 of the Constitutional Treaty is the key to the scheme of incorporation.
Article I-7(1) reads:
"The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II."
This provision has been carefully worded. First, the word "respect" which might have been expected in this context does not appear: instead the article adopts the more neutral wording "recognise". This is apt for the notion of the Charter as a showcase of existing rights. Second, the Charter as set out in Part II of the Treaty should be considered as a whole, that is to say taking full account of its preamble and special rules of interpretation and application. Third, Article I-7(3) retains the formula currently found in Article 6(2) of the Treaty on European Union . In other words, the Union's general principles of law regarding fundamental rights remain those guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as they result from the constitutional traditions common to the Member States. It can be seen, therefore, that the Charter has not displaced the basic law on fundamental human rights, as currently set out in Article 6(2) of the TEU.
The horizontal articles
Title VII of the Charter as it appears in Part II of the Constitutional
Treaty bears the new heading: "General Provisions Governing the Interpretation
and Application of the Charter". It is difficult to overstate the
significance of these provisions, commonly known as the "horizontal
articles". They decode the Charter and provide the legal lens through
which it must be viewed. The point is plain even on a cursory inspection
of the horizontal articles.
Article II-51(1) makes it clear that the Charter is addressed primarily to the Union institutions. It affects the member States only when they are implementing Union law Article II-51(1) also provides that the limits of Union powers set out in the other parts of the Treaty must be respected. To that extent, and read with Article II-51(2), as amended, the Charter is a visible statement of existing rights and reflects the substantive law around it. But the substantive law should always to be looked for elsewhere.
Article II-51(2) prohibits the Charter extending the powers of the Union, as set out elsewhere in the Constitutional Treaty. The Charter reflects existing law - it does not and cannot extend it. Scholars of the Nice version of this article will note that it has been amended to further clarify that the Charter does not affect the Union's powers and tasks.
Article II-52(1) reformulates the familiar ECHR principle about limitations. Any limitations on the exercise of rights or freedoms in the Charter must be provided for by law and respect the essence of the rights and freedoms. In addition, limitations may only be made if they are necessary and meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
Article II-52(2) provides that those Charter provisions based on existing EU rights have the same meaning and scope as their corresponding provisions in EU law. So any difference in wording does not alter the existing legal effect of the underlying EU Treaty provision. Here again I find support for my notion of the Charter as a showcase of existing rights.
Article II-52(3) aims to resolve the same issue in relation to Charter provisions based on the ECHR as Article II-52(2) does for the EU-based provisions. So notwithstanding any difference of language, the rule is that those Charter provisions which correspond to a provision in the ECHR have the same meaning and scope as the ECHR rights, including the meaning given to them by the jurisprudence of the Strasbourg court. The Union can, however, legislate to go further than the ECHR.
Article 52(4) deals with Charter provisions which draw upon the constitutional traditions common to the Member States, for example Articles II-10(2) (conscientious objection), II-14 (education) and II-49(3) (proportionality of criminal penalties). The significance of Article II-52(4) is twofold: first it signals that not all the provisions of the Charter are necessarily to be regarded as common to the constitutional traditions. Secondly, it requires that those Charter provisions which do draw upon such traditions must be interpreted "in harmony" with them.
Article II-52(5) indicates that some of the Charter provisions are not legal rights as such, but are principles, within the meaning of this new rule of interpretation which did not appear in the Nice version of the Charter. The distinction between rights and principles was a key factor in the Herzog Convention reaching agreement on the Charter, particularly in relation to the inclusion of social and economic rights which are not justiciable as such until implemented by detailed legislation. The distinction was achieved largely by drafting technique. The word "principle" sometimes appears in the wording of the provision, but frequently its special character must be inferred from other aspects of the drafting method. For example, the formula "the Union recognises and respects" is used to signal that a provision is a principle rather than a right. An example of this, in relation to social security benefits and social services, is at Article II-34. A similar message should be inferred from references to "national law and practices", found especially in the "Solidarity" chapter of the Charter . The general effect is to underline a point which ought already to be clear from the substantive treaty law: the Charter does not create individually justiciable rights in these sensitive areas. If the Union is to impose rights in these areas it must be through recognised treaty procedures.
I was glad that the second Convention gave further attention to the distinction between rights and principles. In the language of Article II-51(1) while rights must be "respected", principles must be "observed" - but they cannot be enforced like basic human rights. Nor, despite their aspirational character, is there any obligation to take legislative or executive action just because they are in the Charter. Principles become significant for the courts only when acts implementing the principles are interpreted or reviewed.
Article 52(6) provides that in applying the Charter full account must be taken of national laws and practices as specified in the Charter. Examples are Articles II-9 (right to marry), II-14 (education), II-16 (freedom to conduct a business), II-27 and 28 (workers rights), II-30 (unjustified dismissal), II-34 (social security), II-35 (health) and II-36 (access to services of general interest). This underlines the important point that in a number of cases, respect for national laws and practices is a vital part of the special approach required by the Charter.
There is one further new paragraph in Article II-52, which was added at the Inter-Governmental Conference on 17/18 June. This deals with the status of the Explanations to the Charter.
The official Explanations - new horizontal Article II-52(7)
It is no secret that the British Government attached considerable importance to the Explanations. I had strongly argued for them in the Herzog Convention as a means of tying back the visible statement of rights (such as the right to liberty in Article II-6) to its underlying legal source and content (in that case Article 5 ECHR). It is not an exaggeration to say that securing appropriate legal status was the final part of the jigsaw which made it possible for the Government to accept incorporation of the Charter into the Constitutional Treaty.
The Explanations were originally published with a footnote declaring that they had "no legal value". That was a nonsense. They were always an essential and authoritative guide to the underlying legal source of the provisions in the Charter. As is clear from the Explanations, though some of these underlying sources are in existing Union law, others are not. In no case is it sufficient to look only at the words of the Charter itself. The Convention on the Future of Europe, in consultation with member States and following substantive debate in plenary session of the Convention, updated and expanded the Explanations. It also proposed a reference to the Explanations in the preamble to Part II of the Treaty. That was fine, so far as it went. But it did not go far enough.
It is necessary to study the text of the Explanations to appreciate their value. It is not just a case of cross referencing to other parts of the Constitution and Union law, valuable though that is. For example, if you look at the Explanation to Article II-52(3) you will find a detailed list of the provisions which correspond to a provision in the ECHR - and those which have the same meaning but different scope. If you look at the Explanation to Article II-52(5) you will make the significant discovery that some Charter articles contain rights and principles - and will see some telling examples. You will also, if you look up the examples, discover that the word "right", whether in the title or text of a Charter article, does not exclude the possibility that the provision is in fact intended to be treated as a principle within the meaning of Article II-52(5). The lesson here is that each and every Charter provision must be studied carefully in the light of the agreed substantive law which provides the underlying source. The Explanations are the essential interpretative tool for that vital exercise.
There are many other amendments to the Explanations which, though apparently minor, are of considerable legal significance. I will offer just a couple of examples. Consider the Explanation to Article II-51(1). The Explanation now adds a reference to the jurisprudence in the case of Annibaldi . That case clarifies that the Court has no jurisdiction "with regard to national legislation lying outside the scope of Community law", and held that the absence of specific Community rules on the subject matter was conclusive.
My second example of an important amendment, this time to an Explanation to one of the substantive Charter articles, concerns Article II-28, the right to strike. The final line of that Explanation now clarifies that "the modalities and limits for the exercise of collective action….come under national laws and practices". Though that conclusion could certainly be deduced from a careful reading of Article II-28 itself together with Articles II-51 and II-52, the Explanations put beyond any doubt that Article II-28 is not there to displace national laws on strike action.
In short, the value of the Explanations is that they explain the content of each Charter provision by relating it to the underlying legal source and thus greatly reduce the scope for misinterpretation. That is why I greatly welcome the decision of the Heads of Government not only to impose an obligation on the courts to have due regard to the Explanations, but also to include them in a Declaration which will be annexed to the Constitutional Treaty, so that the text is accessible.
Conclusion
To those who see the Charter as a bill of rights for the UK with swathes of new rights and obligations, my answer is that it is nothing of the sort. I would summarise the key points as follows:
I am unaware of any other human rights statement where the legislator has offered so full and careful a technical elaboration of the meaning. That has been necessary because, like other things in the Union legal order, the Charter is necessarily sui generis. It draws its force from existing rights, freedoms and principles which the Union must respect and observe. That is the authentic nature of the Charter - and it is in that authentic spirit that I commend it to you.