Cameron’s opt out on Fundamental Rights is a fallacy

David Cameron’s plan for a “complete opt-out” from the EU Charter of Fundamental Rights is unrealistic. The rights correlate with other treaties.

David Cameron’s plan for a “complete opt-out” from the EU Charter of Fundamental Rights is as unrealistic as his stated intention to withdraw from the Social Chapter.

It also ignores the fact that the rights and principles contained in the Charter do not operate in a vacuum. They are directly correlated with other fundamental rights and freedoms, such as those under the European Convention on Human Rights and Fundamental Freedoms.

The rights and freedoms that Cameron is so concerned about, and which he thinks have their source in the Charter, are in any case being recognised and ruled upon by the European Court of Justice (ECJ), the European Court of Human Rights (ECHR) and national courts without significant reliance on the Charter.

Even if Mr Cameron could secure a revision of the relevant Treaty provisions, the vast majority of the rights and principles contained in the Charter would be effective in the United Kingdom anyway because they are already to be found in other international instruments to which the United Kingdom is already a signatory.

And even if there was an appetite at the level of the European Council for a “total opt-out”, ratification by all the Member States is inconceivable. The Charter is given legal status under the revised Article 6(1) of the Consolidated Treaty on European Union. This provides that the Charter will have the same “legal value” as the Treaty and the Consolidated Treaty on the Functioning of the European Union (TFEU). It also ensures that the Charter will not extend the competencies of the European Union.

Article 6(2) of the Treaty provides for the accession of the European Union to the Convention. Protections guaranteed by the Convention shall constitute “general principles of the Union’s law” (see Article 6(3)). Protocol No 30 to the Treaty limits and clarifies the application of the Charter to the laws and administrative actions of the United Kingdom and Poland (and, following the next accession Treaty, the Czech Republic). For example, it  does not:

  • render the Charter wholly inapplicable to the United Kingdom and Poland,
  • extend the ability of the ECJ and national courts to find that national laws are inconsistent with the rights and freedoms reaffirmed by the Charter.
  • preclude the ECJ and national courts, from ruling that domestic laws in the United Kingdom or Poland contravene fundamental EU law rights which are protectedoutside of the Charter (whether they are also protected under the Charter or not)
  • prevent the European Court of Human Rights in Strasbourg from finding United Kingdom and Polish laws to be incompatible with the Convention.

Article 1(2) provides that nothing in the worker “solidarity” provisions of the Charter creates rights that can be challenged in law by the UK or Poland. But this insistence is superfluous. The worker solidarity provisions are only a series of guiding principles for legislative acts of EU institutions.

Article 51 of the Treaty provides that the Protocols and Annexes to it are to form an “integral part” of the Treaty and the TFEU. Article 6 and Protocol No 30 therefore have full legal effect as provisions of the Treaty and the TFEU. They can therefore only be amended in accordance with the ordinary revision procedure set out in Article 48 of the Treaty. That procedure requires a proposal to be submitted by a Member State, which must then be considered by the European Council, which in turn must consult with the European Parliament and the European Commission.

By simple majority, the European Council can then either decide to hold a convention of heads of state to consider the proposals adopted by it, or it can reject the Member States’ proposals. The convention can then make recommendations to a conference of representatives of governments for the purpose of determining amendments by common accord. At the end of this protracted procedure, as we have seen with the Lisbon Treaty, the amendments can then only enter into force if they are ratified by all Member States.

A “total opt-out” would not address any of these points. It would not prevent the European Court of Justice from interpreting EU legislation in conformity with the Charter, and those interpretations would apply equally to the United Kingdom. It would not disapply substantive obligations on the United Kingdom because the Charter itself does not create the legal rights imagined. And, even if it does, those rights only apply “in accordance with” Community or national law. Rights protected outside of the Charter would continue to be protected anyway.

Our guest writer is Richard Arthur of Thompsons Solicitors

2 Responses to “Cameron’s opt out on Fundamental Rights is a fallacy”

  1. John Usher

    Brilliant explanation of a very complex issue that’s clearly beyond the Tories. I’m sure with more space you could have gone on to explain that – whatever we may think of the EU – ratification of the Lisbon Treaty for the first time brings the EU itself (whose social side is subject to an overarching business ethos) under the scrutiny of the Council of Europe’s Convention on Human Rights. I’m for 21st century human rights and fundamental freedoms over profit that kills more people and promotes poverty and inequality any day.

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