Page last updated at 07:43 GMT, Saturday, 21 November 2009

Viewpoint: EU won't rule by Charter

The EU's Lisbon Treaty comes into force on 1 December - and with it the EU Charter of Fundamental Rights.

The UK, Czech Republic and Poland have negotiated opt-outs from the Charter.

But here Damian Chalmers, Professor of EU Law at the London School of Economics (LSE), argues that the Charter repackages EU law that is already applied by the 27-nation bloc.

Prof Damian Chalmers

When it was proclaimed and signed in 2000, the EU Charter of Fundamental Rights was praised by the UK government.

The UK Minister for Europe, Keith Vaz, said: "It will be one of the most important things that we have seen come out of the European Union in the last decade."

Fast forward to today, however, and it is not just the UK government but also the Poles and Czechs who are rushing to save themselves from it. Each has secured a full opt-out from the Charter.

So what does the Charter mean for people in the UK? Former Prime Minister Tony Blair told parliament that he had obtained an opt-out from the Charter.

If so why worry, as it will not affect us? Well, the Conservative Party is anxious and wants a new opt-out because it believes the Charter will affect us.

This confusion is caused by two things. First, there is a world of difference between what the Charter says and what it does, and it is this gap that provokes a lot of anxiety.

Secondly, neither of the main parties has explained to the British public that the Charter is only a bit-player in the application of EU fundamental rights law to the UK.

Rights galore

The Charter is possibly the most wide-ranging human rights treaty in the world today. There are civil rights, political rights, social rights, ecological entitlements, rights for the arts, consumer rights. The list is really extensive.

Adopted by EU in 2000
Becomes legally binding under Lisbon Treaty
Gathers together whole range of civil, political, economic and social rights of EU citizens in one text

Whilst the Charter might set out many desirable things, the concern has always been that every one of these grounds gives the EU new reasons to intervene, be it to protect the environment, workers, or the right to asylum.

That scares those worried about national sovereignty and raises fears that the rights might be developed in a clumsy way.

Yet what the Charter actually does is far more limited. It does not give us the general right to challenge our police force, lawmakers or employers whenever they appear to breach these rights: the important catch is that it only binds EU institutions and member states when they are implementing EU law.

The European Commission, Parliament and Council can be reviewed for compliance with the Charter, but the UK government can only be reviewed when it applies EU law or transposes them. This is quite a limited array of circumstances.

These circumstances are further restricted by widespread acceptance that many of the Charter's provisions, notably its social ones, cannot be directly invoked before the courts.

Old wine in new bottles

It is not only the Charter's remit that is limited, but also its legal force, as the Charter repackages old wine in new bottles.

Judges at European Court of Justice, Luxembourg (file pic)
Will European Court judges cite the Charter in more cases now?

When applying EU law, our government has been bound by EU fundamental rights norms for 18 years now. All the Charter did was to create a single document assembling all these obligations in one place.

But the law that underpins the Charter continues to bind us, whether we opt out of the Charter or not. The fact this has gone unnoticed shows how little impact this law has had. It is here that the British political parties have not been frank.

The Labour government tried to deal with this problem by adopting a protocol that requires courts not to "extend" EU fundamental rights law using the Charter, but allows them to "interpret" it. It then presented it as an opt-out, when it clearly is not. The Charter will be applied by British courts.

Does it matter?

The Conservatives, by contrast, have stated that they want a full opt-out from the Charter. It will not be applied by British courts or by the European Court of Justice in cases involving the UK.

They have been coy in saying whether this opt-out applies to other EU fundamental rights law that binds us just as tightly.

Confusing, certainly, but does any of this matter?

Well, the European Court of Justice did not wait for the Lisbon Treaty and has actually been applying the Charter since 2006. Mischievous, certainly, but also unnoticed, as it was simply a continuation of existing case law, which shows great deference to national governments in fundamental rights cases.

Whilst EU fundamental rights law says a lot of things, it rarely tells us to change our lives. That is why it might be a while before we hear about the Charter again.

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