Charter for Fundamental Freedoms: What's the Problem?
A bizarre episode occurred in the House of Commons yesterday. We were debating the impact of the EU Lisbon Treaty on human rights. The Government line was, yes, we accepted that the Charter of Fundamental Rights was legally binding, but don’t worry, we then negotiated a protocol to make sure it won’t apply in the UK. The Tory line was that there was still no guarantee that bits of the Charter wouldn’t leak from this prohibitionist protocol because of judicial creep when cases came before the European Court of Justice (ECJ).
What a stitch-up! In my speech I made the obvious point crying out when all the other 26 EU Member States have accepted it without demur? Is it because the Charter would ban excessive working hours when British workers already work more hours a week than anyone else in Europe and the CBI would like to keep it that way? Is it because it would also permit secondary action in industrial disputes when at present British workers cannot take such action though employers can, and no doubt the CBI would like to keep it that way on that matter too? Yet the right to take secondary action has never been an issue in any other country in Europe, and it’s hardly the job of a Labour Government to maintain in the UK what Tony Blair once boasted to a business conference was “the most restrictive trade union legislation in the Western world”.
It really is ludicrous that the Government continues to resist what ever other country in the EU, without exception, has taken in its stride as the foundation of a civilised society. It’s not even as though the Government can succeed. The Swedish Prime Minister said in the Swedish Parliament on 26 June last year: “It should be stressed that the UK was given a clarification, not an opt-out”.
Even more significantly, when Blair was presenting the protocol to the UK Parliament the day before, he misread the text (well, I assume he misread it). He said: “Nothing in the Charter creates justiciable rights applicable to the UK”, whereas the text of the protocol actually says: “Nothing in Title IV of the Charter creates justiciable rights applicable to the UK”. The clear implication is that, although one section of the Charter cannot be used to create new rights, other sections almost certainly will be.
But even in respect of Title IV on social rights, the text of the protocol states explicitly that the Charter does not create justiciable rights applicable to the UK “except in so far as the UK has provided for such rights in its national law”. Presumably then it will be left for the European Court of Justice (ECJ) to decide for itself whether the UK has attempted to provide for such rights in its national law and to decide whether the attempt to provide such rights is adequate in the light of the Charter.
Indeed it’s very difficult to see how this supposedly unique carve-out for the UK can actually work. Firms operating in more than one Member State will clearly be affected. Migrants coming from another Member State to the UK would presumably be covered. Anyone who travelled to another Member State from this country, for example for health services, would presumably be able to use the Charter. Moreover, there are 30 years of EU jurisprudence to say that there can be no two-tier system of European rights.
So this claimed uniqueness for the UK will almost certainly steadily unravel. It will be eroded by proactive ECJ judgements and also by the interactive knock-on effects between Title IV and other parts of the protocol. It surely is farcical that the Government are investing such enormous legal and logistical resources into resisting something which they are all too likely to lose in the end and which every other country in Europe has decided is practicable and desirable. We really need a Government in Britain which stands up for the British people and does not bow down to the CBI and the Eurosceptic press.