Select Committee on European Union Tenth Report


5.1.  Although the 1957 Treaty of Rome did not contain specific provisions on the protection of fundamental rights, the ECJ has nonetheless upheld the need for respect for fundamental rights in the context of action at EC/EU level since the Community's early days. In Internationale Handelsgesellschaft,[49] the ECJ concluded that "In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the ECJ. The protection of such rights, whilst inspired by the constitutional traditions common to Member States, must be ensured within the framework of the structure and objectives of the Community." Since then, both the Court's jurisprudence and the Member States have given increasing prominence to the need to have regard to fundamental rights in the growing areas of EU law. Successive treaties from Maastricht onwards have strengthened the position of fundamental rights in the EU.

Protection of fundamental rights in the existing EU legal framework


5.2.  Article 6 TEU was first included (in a more limited form than its present formulation) in the Treaty on European Union (the Maastricht Treaty), signed in 1992,[50] and was subsequently amended by the Amsterdam Treaty in 1997. It now provides that the Union is founded on the principles of "liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States".[51] The Union must respect fundamental rights as guaranteed by the European Convention on Human Rights (ECHR)[52] and as they result from constitutional traditions common to the Member States, as general principles of Community law.[53]

5.3.  Following the Internationale Handelsgesellschaft case, the ECJ, both in its Advocates-Generals' opinions and in its judgments, has regularly referred to its duty to ensure observance of the general principles of law, of which fundamental rights form an integral part. In identifying particular rights and interpreting their content, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories, including, in particular, the ECHR.[54]


5.4.  In June 1999, the Member States decided that fundamental rights applicable at EU level should be consolidated in a Charter to enhance their visibility.[55] A Convention was set up to draft a Charter of Fundamental Rights of the European Union and it was instructed to include in the Charter the rights guaranteed by the ECHR and those derived from the constitutional traditions common to the Member States; and to take account of economic and social rights contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers.[56]

5.5.  In December 2000 the Charter of Fundamental Rights of the European Union, drawing on the "constitutional traditions and international obligations common to the Member States",[57] was "solemnly proclaimed" by the European Parliament, the Commission and the Council and published in the Official Journal.[58] It does not currently have legally binding force.

5.6.  Prior to the adoption of the draft Charter by the Convention, the Bureau of the Convention prepared Explanations for each article of the Charter. The Explanations are intended to clarify the provisions of the Charter, indicating the sources and scope of each of the rights set out. They have no legal value.[59]

5.7.  The lack of legally binding force does not mean that the Charter has been ignored. First, it is a political document which expresses the aspirations of the EU institutions and the Member States as regards the level of fundamental rights protection in the EU. Second, the Charter is a point of reference for EU institutions and bodies when carrying out their tasks. The Commission has undertaken to ensure that legislative proposals it adopts comply with the Charter.[60] A new Community agency, the Fundamental Rights Agency, is tasked with carrying out pre-legislative scrutiny of Commission proposals when requested to verify their compliance with fundamental rights as defined in Article 6 TEU, having regard in particular to the ECHR and the Charter.[61] As a consequence, the Charter indirectly influences the formulation of legislative proposals at EU level by affecting the "ideological drift" of legislation (Q S32). Although this was identified as a "worry" for some by Professor Chalmers, not all witnesses saw this as a cause for concern. Fair Trials International (FTI), for example, were in favour of Commission and Member States' proposals being required to conform with the provisions of the Charter (p E148).

5.8.  Increasing reference is also being made to the Charter in the EU courts.[62] While the ECJ was initially hesitant to refer explicitly to the Charter in its judgments it has now, following a number of Advocate General opinions containing Charter references, begun to do so (p E141). In a 2006 judgment, the ECJ referred to the Charter along with other sources of international law upon which it drew to ascertain the extent of the right to family life, emphasising that the Community legislature (in this case, the Council and the Parliament) had acknowledged the importance of the Charter by referring to it in the recitals of the Directive in question.[63] Professor Chalmers understood the Charter to be "a source of law in the same way as the ECHR is in national constitutions" (Q S30). Sir David Edward highlighted that Article 51 of the Charter addressed the provisions of the Charter to the EU institutions, including the ECJ. As a result, the Court was duty-bound in his view to apply the Charter and promote its application (Q S138).

5.9.  Notwithstanding the Charter's current lack of legally binding status, it is already an instrument of some importance to EU institutions and bodies and the Member States when taking action in the area of EU law. It is likely that, quite apart from the Treaty of Lisbon, references would increasingly be made to the Charter both before and by the ECJ.

Fundamental rights protection under the Treaty of Lisbon


5.10.  The Treaty of Lisbon substantially revises Article 6 TEU. The most important change relates to the legal status of the Charter: new Article 6(1) provides that the Charter will have the same legal value as the Treaties. The article clarifies that "The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties". It also stipulates that the Charter rights are to be interpreted in accordance with the "horizontal" provisions[64] of the Charter and with "due regard" to the Explanations prepared by the Bureau of the Charter Convention.

5.11.  The Charter and the Explanations were adapted during the negotiations on the Treaty of Lisbon to introduce some changes to the horizontal articles. As a result, the Charter was "solemnly proclaimed" for a second time by the European Parliament, the Commission and the Council on 12 December 2007.[65] However, the text of the revised Charter has not been reproduced in the text of the Treaties, and it does not appear in the Protocols. The European Trade Union Confederation (ETUC) said they would have preferred to see the Charter text included in order to enhance the visibility of fundamental rights for the citizen (ETUC para 4).

5.12.  Amended Article 6(2) TEU provides that the Union shall accede to the ECHR.

5.13.  New Article 6(3) TEU of the Treaty reflects existing Article 6(2), a provision which has been used extensively by the ECJ in developing its fundamental rights jurisprudence. It provides that "Fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law."


5.14.  The Charter contains 50 "rights, freedoms and principles" in six Titles, namely: Dignity (I), Freedoms (II), Equality (III), Solidarity (IV), Citizens' rights (V) and Justice (VI). It also contains the four horizontal Articles 51 to 54 clarifying the applicability and scope of the Charter's rights, freedoms and principles. Before considering the effect of the change to the Charter's legal status, it is helpful to look at the provisions of the Charter and some of the problems which have arisen in understanding their content.

i. The difference between rights and principles

5.15.  The Charter does not identify which of its provisions are rights, which are freedoms and which are principles. Sir David Edward noted that the language of the Explanations in this regard was unhelpful and that the distinctions between the three different categories were not clear (Q S140).

5.16.  The nature of "freedoms" appears to be least controversial: while expressed as a separate category in the preamble, in practice they fall under either "rights" or "principles". The ECHR, for example, covers both "human rights and fundamental freedoms" and lists a number of what are essentially rights which can ultimately be relied upon before the European Court of Human Rights in Strasbourg. Thus Title II of the EU Charter on Freedoms includes the right to liberty and security of the person, the right to respect for private and family life and the right to freedom of expression, all of which are guaranteed by articles of the ECHR and seem to be "rights". Other "freedoms" in the Charter, such as the freedom of the arts and sciences in Article 13, are of a different nature.

5.17.  The important distinction to examine appears to be the one between rights and principles. There was some discussion of this issue when the Charter was first drafted: in particular, speeches given by Lord Goldsmith QC, the Government's representative on the Convention which drafted the Charter, provide some useful comments on the approach taken by the drafters to the question of rights and principles. In a paper presented in 2001, Lord Goldsmith drew a distinction between "individually justiciable classic rights", principally the civil and political rights guaranteed under the ECHR, and new social and economic rights which, he said, were not justiciable in the same way but instead inform policy making by the legislator.[66] These latter rights were examples of the "principles" referred to in the Charter, which although common to all Member States were implemented differently in national law and practice. Such principles, explained Lord Goldsmith, "only give rise to rights to the extent that they are implemented by national law or, in those areas where there is such competence, by Community law".[67] In a 2002 address at the annual conference of Liberty, the British human rights organisation, he referred to the economic and social rights set out in the Charter as "aspirations and objectives for what Government should do".[68] The concept of "principles", he explained, was adopted to mark this distinction between rights and aspirations or objectives. Principles could be recognised in the Charter by the use of "particular language which is not the language of guarantee".

5.18.  Applying Lord Goldsmith's explanations to the Charter, it would seem that many of the "principles" are to be found in Title IV—"Solidarity"—which deals with social and economic rights. These "rights", according to Lord Goldsmith, are not justiciable and enforceable but merely call for State intervention through national legislation. The need to maintain this "important" distinction and the lack of precision of the December 2000 Charter's wording were reasons why Lord Goldsmith opposed the Charter becoming legally binding.[69]

5.19.  Whether there is a general acceptance of the distinction drawn, or its application, as explained by Lord Goldsmith is debatable. The ambiguity is exacerbated by the different wording in the various articles of Title IV: the use of the word "right" in some and the absence of a reference to national laws and practices in others. Echoing Lord Goldsmith, the Department for Work and Pensions (DWP) saw an important distinction between rights and principles, regarding the latter as merely providing guidance to the legislator (p G27). However, Martin Howe QC was dubious as to whether such a clear-cut distinction was possible (Q E289).

5.20.  The December 2000 version of the Charter, although stating that it contains "rights, principles and freedoms", does not attempt to draw or explain in express terms any distinction between these concepts. Article 52 of the December 2000 Charter merely refers to rights contained in the Treaties (Article 52(2)) and in the ECHR (Article 52(3)). The Charter as adapted in anticipation of its legally binding status includes a new Article 52(4), referring to rights resulting from constitutional traditions common to Member States, and a new Article 52(5), which for the first time seeks to clarify the distinction between rights and principles. It stipulates that the provisions of the Charter containing principles "may be implemented by legislative and executive acts" of the Union and the Member States when implementing Union law. Such provisions "shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality". Two points arise from this. First, Charter principles do not, therefore, of themselves give rise to directly enforceable rights. But they may influence the ECJ (or a national court) when interpreting the nature and extent of rights afforded by Union law or by national legislation implementing Union law, and even when deciding whether such a law is within the relevant legislator's competence and valid at all. A declaration of invalidity could of course affect directly enforceable rights, e.g. those that would have existed under or been abrogated by the law had it been valid. Second, there is still nothing in Article 52 as adapted which identifies clearly which of the Charter provisions constitute rights and which principles.

5.21.  The revised Explanations give examples of principles: they include Article 25 on the rights of the elderly, Article 26 on the integration of persons with disabilities and Article 37 on environmental protection. The Explanations also state that some articles may contain elements of rights and principles, referring as examples to Article 23 on equality between men and women, Article 33 on family and professional life and Article 34 on social security and social assistance. On this basis, some social and economic rights would not be mere principles but may give rise to justiciable rights.

5.22.  It is now clear that under the adapted Charter a distinction exists between rights (which are directly enforceable) and principles (which are only justiciable in the circumstances identified in Article 52(5)). The introduction of Article 52(5) recognises this and gives a clear indication as to its effect. But there is obscurity about how and where the distinction is to be drawn, and, in particular, a failure in the Charter and its Explanations to spell out clearly which of the Charter articles involve rights and which principles. The distinction will in practice have to be worked out in future cases before the ECJ.

5.23.  The distinction between rights and principles may have implications for the extent to which the UK Protocol on the Charter will lead to a different approach being adopted in respect of the United Kingdom from the rest of the EU. This is discussed further in the section on the UK Protocol below.

ii. References to national law

5.24.  Whether one accepts Lord Goldsmith's explanation as to the difference between rights and principles or not, it seems clear that articles of the Charter which make express reference to national law must be different from articles which do not make such references. If the former are to some extent enforceable rights, the question arises as to the effect of the reference to national law on the interpretation of the scope of the right guaranteed. Further, to the extent that the Union has competence and legislates in areas which are within its competence quite apart from the Charter, national legislators and courts will, in any event, be subject to that legislation. But the issue presently being considered is whether (and if so how far) the Charter contains rights which the ECJ might use to supplement, or might treat as existing even in the absence of, any such legislation. It is helpful to consider two examples: the right to health care and the so-called right to strike.

a. The right of access to health care

5.25.  Article 35 provides that, "Everyone has the right of access to preventative health care and the right to benefit from medical treatment under the conditions established by national laws and practices". It goes on to provide that "a high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities".

5.26.  The Explanations indicate that this article is based on Article 152 TEC (new Article 168 TFEU), which relates to public health, and on Articles 11 and 13 of the European Social Charter, respectively the right to protection of health and the right to social and medical assistance. However, witnesses suggested that it is not clear whether there is a "free-standing" right of access to medical care in the Charter which requires compliance with some minimum threshold, or whether the article is merely declaratory and says in effect no more than that if national law provides the right to health care then individuals have the right to health care (Q E291).

5.27.  Articles 11 and 13 of the European Social Charter do oblige Member States to establish a minimum level of health protection and of access to health treatment. Examples include the obligations in Article 11(2) to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health and in Article 13(1) to ensure that any person who is without adequate resources and who is unable to secure such resources be granted adequate assistance, and, in case of sickness, necessary care.

5.28.  The stipulation in Article 35 of the Charter that everyone has the right to access, and benefit from, medical treatment under the conditions established by national laws and practices simply records the position as a matter of fact: everyone does indeed have the right to access, and benefit from, medical treatment under the conditions established by national laws and practices. This would not prevent courts from interpreting national law in accordance with the provisions of the European Social Charter, which requires minimum standards to be put in place. But reference to national laws and practices prevents Article 35 itself from being held to establish a minimum right of access to medical treatment. Such a right could only be established (if at all) by reference to other international instruments and constitutional practices.

5.29.  The second sentence of Article 35—"A high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities"—might be considered to impose an obligation on both the EU institutions and Member States when they are drafting and implementing EU law. That obligation would be a broad one to ensure "a high level of human health protection". However, it is expressed—in particular through its reference to the definition and implementation of Union policies—as a guiding principle to the legislator. This seems to us to be a good example of a Charter provision which could be either a right or a principle. Even assuming that it is a right, in assessing what constitutes a high level of human health protection, courts may have regard to the obligations undertaken by Member States in international agreements, including the European Social Charter. Taking all this into account, it would in our view be surprising if the ECJ or any national court, when interpreting this provision, did not temper any right to health care by allowing Member States significant discretion in its application.

b. The right of collective bargaining and action

5.30.  One particularly controversial right in the Charter is the so-called right to strike, contained in Article 28 of the Charter ("the right of collective bargaining and action"). That article provides that "Workers and employers, or their respective organisations, have, in accordance with Union law and national law and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflict, to take collective action to defend their interests, including strike action". There appears to be a concern in the United Kingdom that this would introduce a right to strike, which does not currently exist in this country (pp G18-19 & G37-38).

5.31.  The Explanations indicate that Article 28 is based on Article 6 of the European Social Charter,[70] which provides for a right to bargain collectively, and points 12-14 of the Community Charter of the Fundamental Social Rights of Workers, which deal with collective action. The Explanations also refer to Article 11 ECHR (the right of assembly and association), which has been held by the European Court of Human Rights to include a right to collective action, although that right is not absolute and may be limited by national law.[71]

5.32.  The Chartered Institute of Personnel and Development were particularly concerned that the Charter would incorporate a right to strike in UK law (p G18). Professor J R Shackleton, Dean of Westminster Business School, also raised a number of concerns in this area (p G37). The Confederation of British Industry (CBI) considered that the granting of a new right here could have an adverse effect and threaten the flexibility of the UK labour market. However, the CBI indicated that they had sought independent legal advice on the extent to which the Charter could be used to extend EU law in this area which concluded that the risk was "relatively low". In light of this, the CBI were "less concerned that the Charter could confer additional employment regulations on the UK labour market" (p G20).

5.33.  The Department for Business, Enterprise and Regulatory Reform (BERR) were categorical on this issue, insisting that the Charter makes clear that Article 28 rights are to be exercised "in accordance with national laws and practices". They concluded that "no new rights are established and there is no possibility of a return to secondary picketing in the UK" (p G21). Similarly, Andrew Duff MEP insisted that "Under no conceivable circumstances … will the Charter give rise to direct claims for positive action by the EU or Member States in the matter of pay, trade union law, strikes or social security" (p G28).

5.34.  Professor Alan Dashwood, for the Bar Council, considered that the content of Article 28 on the right to collective action was "extremely anodyne". He was of the opinion that if the ECJ were inclined to develop the right to strike by raising matters such as secondary picketing then it would not gain anything from the Charter: it would have to look more widely at international agreements concluded by the Member States and at the constitutional traditions of Member States. He concluded that he did not think that the language of the Charter "would be any help at all for the Court" (Q E334). This was a view shared by Martin Howe QC (Q E292).

5.35.  As Ms Jane Golding, of the Law Society of England and Wales, pointed out (Q E474), recent case-law from the ECJ would seem to support this view. In two cases decided in December 2007, the Court recalled that the right to take collective action, including the right to strike, was recognised by various international and Community instruments. It concluded that "the right to take collective action, including the right to strike, must therefore be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures". However, like the Strasbourg Court, the ECJ recognised that this right may be subject to certain restrictions. The Court referred to Article 28 of the Charter and the reference to national laws and practices, noting that in Finnish law, the law in question in the case, the right to strike was indeed restricted in some circumstances.[72] Interestingly, the Charter was used to introduce the limitation to the right to strike, and thus seemed to be employed by the Court more as a brake than an accelerator in these cases.

5.36.  Article 28 of the Charter does not create a free-standing right to strike: it is clear that within the Community framework, the right to collective action, including the right to strike, is already recognised as a general principle of law. Furthermore, Article 28 clearly stipulates that workers and employers have the right to collective bargaining "in accordance with Union law and national laws and practices" and the ECJ, in its December judgments, has indicated the significance of this limitation.

iii. New rights or re-statement of existing rights?

5.37.  As regards the content of the rights, freedoms and principles included in the Charter, the recitals to the Charter explain that it "reaffirms" rights as they result from various sources, including the ECHR, the constitutional traditions and international obligations of Member States, the Social Charters of the Union and the Council of Europe and the case-law of the ECJ and the European Court of Human Rights. Professor Elspeth Guild, of the Centre for European Policy Studies, explained that "The objective of the Charter is not to create new rights per se but rather to permit them to apply correctly and properly within the European Union" (Q E189).

5.38.  The Explanations set out the source of each of the Charter rights.[73] Thus it can be seen that the right to liberty in the EU Charter's Article 6 is based on Article 5 of the ECHR (right to liberty and security) and the Article 21 right in the Charter against discrimination originates in Article 13 TEC, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage.[74]

5.39.  The extent to which the language in the Charter goes beyond existing rights guaranteed by other national and international sources was disputed by witnesses. David Heathcoat-Amory MP pointed to Article 13 of the Charter, which provided that the arts and scientific research should be free of constraint, and Article 29, which asserted that everyone had the right of access to a free placement service. He considered that these were new rights and that this was quite clear from the Explanations of these articles (Q S94).

5.40.  On the other hand, the DWP were quite clear that the Charter "does not create any new rights, freedoms or principles". They were of the view that it recorded rights existing under national and EU law and made them more visible (p G27). The Law Society of England and Wales agreed: "The Charter does not create new rights but rather collects together rights already in existence. It does not create new rights under national law and only applies when national governments are implementing EU law. It would not introduce new general rights into national law" (p E101). The ETUC saw the Charter as a shield rather than a sword: rather than replacing national human rights instruments, it could be used to protect the citizen where EU legislation might impinge on fundamental rights (p G29). However, the Department of Innovation, Universities and Skills (DIUS) and the Department of Children, Schools and Families (DCSF) pointed out that the rights in the Charter sometimes appeared to go beyond the source of the right set out in the Explanations (p G25).

5.41.  Dr Eve Sariyiannidou explained that over the past four decades, the ECJ had recognised a variety of social and labour rights in an "incremental expansion of human rights protection". She considered that the Charter did not change the substance of protection of fundamental rights but provided a "comprehensive catalogue of rights and principles in a more consistent and transparent manner that renders the existing protection more comprehensible to EU citizens" (p G35).

5.42.  We asked Jack Straw MP, Lord Chancellor and Secretary of State for Justice, whether he thought that the Charter created new rights. Ms Rebecca Ellis, for the Ministry of Justice, told us that the Government were clear that the Charter only reaffirmed existing rights (Q E539).

5.43.  Clearly, the extent to which the Charter (however much it recites that it is reaffirming existing rights) actually contains new fundamental rights or principles continues to be a controversial issue. The nature of this Report prevents in-depth analysis of each of the Charter rights, but we do consider that it is helpful to examine the three rights raised by witnesses, which might be considered to be some of the Charter's more contentious rights: Article 13 on the right to freedom of the arts and sciences; Article 14 on the right to education; and Article 29 on the right of access to a free placement service.[75]

a. The right to freedom of the arts and sciences

5.44.  Article 13 of the Charter provides that "The arts and scientific research shall be free of constraint. Academic freedom shall be respected." The Explanations say this is "deduced primarily from the right to freedom of thought and expression". Reference is made to Article 10 ECHR (freedom of expression) and to the limits to freedom of expression contained in that Article; and to the need to balance the right to freedom of expression with the right to human dignity protected under Article 1 ECHR. While there is no question that the right to freedom of expression is protected under existing human rights obligations, the question arises as to the extent to which this right can be interpreted as including a right to "freedom of the arts and sciences" extending beyond the right of expression itself.

5.45.  Unlike Article 10 ECHR, Article 19(2) of the UN International Covenant on Civil and Political Rights (ICCPR)[76] on freedom of expression makes specific reference to artistic expression, guaranteeing the right to "seek, receive and impart information and ideas of all kinds … in the form of art or through any other media of his choice". Despite the absence of a specific reference to artistic freedom in the ECHR, the European Court of Human Rights, when asked to consider the content of the Article 10 ECHR right, held that: "Admittedly, Article 10 does not specify that freedom of artistic expression, in issue here, comes within its ambit; but neither, on the other hand, does it distinguish between the various forms of expression".[77]

5.46.  As regards freedom of the sciences, the UN International Covenant on Economic, Social and Cultural Rights (ICESCR)[78] in Article 15 recognises the right to enjoy the benefits of scientific progress and the right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author. Article 15(2) provides that steps to be taken by contracting States to protect this right include "those necessary for the conservation, the development and the diffusion of science and culture" and Article 15(3) provides that contracting States "undertake to respect the freedom indispensable for scientific research and creative activity". The ECHR has also considered the right to freedom of expression in the scientific context, but it did not attribute any particular significance to the scientific aspect of the case in question.[79]

5.47.  There is no doubt that the right to freedom of expression applies in the artistic and scientific contexts as it does in all contexts, although the right is not absolute. However, Article 13 of the Charter is expressed not as a right to freedom of artistic or scientific expression but as a stipulation that "the arts and scientific research shall be free from constraint". To the extent that Article 13 is indeed an enforceable "right" and not merely a guiding "principle" it is difficult to assess whether it is a new right without further clarification as to its content. The language of Article 13 is vague and one could conclude from the Explanations that the right is limited to freedom of artistic and scientific expression. If it extends further than freedom of expression itself, then, given that the rights in the Charter are derived from international obligations binding on the Member States, Article 1 of Protocol 1 to the ECHR, which provides a right to protection of property, Article 19(2) of the ICCPR and Article 15 of the ICESCR will very probably be important in ascertaining the scope of the right in practice.

b. The right to education

5.48.  The DIUS and DCSF suggested that Article 14, providing for a right to education and to access to vocational and continuing training, went beyond the terms of Article 2 of the First Protocol to the ECHR, on which it claimed to draw. They pointed to three differences between the Charter right and the ECHR right: (i) the Charter right was expressed as a positive right, whereas the ECHR right was expressed as a "right not to be denied education" (i.e. a negative right); (ii) unlike the ECHR right, the Charter right expressly included vocational training; and (iii) the UK had a reservation on Article 2 of Protocol 1, stipulating that the right was not an absolute right for individuals to be educated wherever and however they want (p G25).[80] However, upon examination, the three differences highlighted by the DIUS and the DCSF appear less significant.

5.49.  First, whether or not the right is expressed as a positive one or a negative one makes little difference in practice. The European Court of Human Rights has held that Article 2 of Protocol 1 provides a positive right to education, notwithstanding its negative formulation.[81]

5.50.  Second, the Explanations demonstrate that the Charter right is also derived from the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers. While Article 2 of Protocol 1 ECHR does not contain an express right to vocational training, Article 10 of the Social Charter does contain such a right, reiterated in the Community Charter which provides that "Every worker of the European Community must be able to have access to vocational training and to receive such training throughout his working life".[82]

5.51.  Third, like the right in Article 2 of Protocol 1 ECHR, the Charter right is not absolute. Article 14(3) of the Charter, which reflects the second part of Article 2 of Protocol 1,[83] refers to the right of parents to have their children educated in accordance with religious and philosophical beliefs but provides that this right shall be "in accordance with the national laws governing the exercise of such freedom and right" i.e. it is not an absolute right for individuals to be educated wherever and however they want.

5.52.  Aside from the points made by the DIUS and DCSF, there are two further provisions in Article 14 of the Charter which are not mentioned in the instruments cited by the Explanations. First, Article 14(2) provides that the right to education "includes the possibility to receive free compulsory education". Although this goes beyond the terms of Article 2 of Protocol 1, and of the Social Charter and the Community Charter, the provision is not without precedent. The ICESCR provides, in Article 13(2)(a), that "primary education shall be compulsory and available free to all". Second, Article 14(3) refers to respect for the "freedom to found educational establishments" which, although not mentioned in the ECHR, the Social Charter or the Community Charter, is referred to in Article 13(4) of the ICESCR: "No part of this article [on the right to education] shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions".

5.53.  While there is not an exact symmetry between the terms of Article 14 of the Charter and those of the three instruments from which the Explanations indicate that this article is principally derived, it seems clear from the language used that the Charter right to education does not either create a new right or extend by its terms the existing right. The various components of the right to education set out in Article 14 derive from aspects of the right to education expressly included in international agreements which are legally binding on the United Kingdom.

c. The right of access to a free placement service

5.54.  Article 29 of the Charter on the right to a free placement service is described in the Explanations as being "based on Article 1(3) of the European Social Charter and point 13 of the Community Charter of the Fundamental Social Rights of Workers". Article 1(3) of the Social Charter obliges parties "to establish or maintain free employment services for all workers". The reference to point 13 of the Community Charter appears to be in error: point 13 refers to the right of collective bargaining; point 6 provides that "Every individual must be able to have access to public placement services free of charge".

5.55.  The origins of the right to a free placement service are clearly set out in the Explanations. The language of the Charter does not indicate that a new right has been created here.

5.56.  In summary, we have examined articles of the Charter which are regarded as the most controversial. On that basis, and taking account of the comments of the majority of our witnesses, we are not persuaded by suggestions that the Charter itself creates or contains new rights which differ from those in the underlying national and international instruments and documents from which it indicates that its provisions are derived. The scope of the Charter rights, as is the case with the scope of all rights, will ultimately be a matter for the courts. However, the broad rights and the language in which they are expressed in the Charter reflect existing national, EU and international obligations.

iv. Horizontal articles

5.57.  The Charter's concluding horizontal articles set out the field of application, scope and interpretation of the Charter. Article 51(1) provides that the Charter is addressed to EU institutions, bodies, offices and agencies of the Union and to Member States when implementing EU law, a qualification which is absent from the terms of Article 6(1) itself. It also provides that the principle of subsidiarity is to be respected. Article 51(2) states that the Charter does not extend the field of application of Union law beyond the powers of the Union, nor does it establish or modify any Union powers or tasks.

5.58.  Professor Steve Peers, speaking for Statewatch, and Jane Golding stressed the need for a link with Union law before the rights in the Charter would apply (QQ E106, E474). Dr Eve Sariyiannidou spelled out the position: the Charter may be used to challenge and ultimately strike down EU legislation which does not comply with its provisions, but it cannot be used to challenge non-compliant national legislation unless the legislation in question is implementing EU law (p G36).

5.59.  Martin Howe QC referred to a "fear that the EU Charter would … spread out from the field of Union law across the board into unrelated fields of national law". This was not a concern that he shared (Q E284). Professor Peers was of the view that most criminal proceedings, for example, would not have a link with Union law, and therefore the Charter would not apply to them (Q E106).

5.60.  It is clear from Article 51(1) of the Charter that it does not apply to situations involving purely domestic law. For the Charter to be directly relevant, there must be a link to Union law. It remains of course quite conceivable that national courts applying domestic law might, in some cases, find an analogy or some inspiration in EU law, but that would not be an unusual process.

5.61.  As regards any possible extension of competence resulting from the legally binding force of the Charter, Dr Clemens Ladenburger, of the Commission Legal Services, stressed that the terms of Article 51(2) were quite clear in this respect. He did not think that the Charter "would prompt the EU legislator to adopt new legislation in areas where otherwise it would not" (Q E385).

5.62.  Article 52 provides some interpretative guidance. In particular, it states that where Charter rights correspond to ECHR rights, the meaning and scope of the rights shall be the same as those laid down by the ECHR.

5.63.  As mentioned above, some changes were made to the Charter itself during the Treaty of Lisbon negotiations to provide further clarification as to how the rights in the Charter are to be applied and interpreted.[84] Article 52(4) provides that rights resulting from constitutional traditions common to the Member States are to be interpreted in harmony with those traditions. In particular, the need for guidance on the distinction between "rights" and "principles" prompted the new Article 52(5).[85] Article 52(6) provides that full account is to be taken of national laws and practices as specified in the Charter, which would appear to give some weight to the references to national law discussed above. Article 52(7) requires courts of the Union and the Member States to give "due regard" to the Explanations.

5.64.  Articles 53 and 54 provide that nothing in the Charter shall be interpreted as restricting fundamental rights, nor shall the Charter be interpreted as providing a right to engage in activity which aims to destroy or limit the rights in the Charter.


5.65.  The decision to grant the Charter legally binding status—the same legal value as the Treaties—has provoked mixed reactions. The evidence we received generally favoured giving the Charter legally binding effect. In support of that view, Professor Guild considered that the impact of this change would be beneficial in helping to focus the minds of EU legislators and providing interpretative guidance to national courts when examining measures implementing EU law (Q E177). Andrew Duff MEP saw the decision to give legally binding effect to the Charter as a "huge step forward for the European citizen" (p E136) and the Law Society of England and Wales commented that it would allow the rights in the Charter "to be recognised or interpreted in new ways that could bring positive benefits to individuals" (p E100). Baroness Nicholson of Winterbourne MEP, Fair Trials International, ETUC and JUSTICE also welcomed the Charter's new status (pp E148, E156-157, E169-170 & G29). Those with concerns feared the consequences of giving enhanced significance to the Charter (pp S131 & E154).

i. Understanding Article 6(1) TEU

5.66.  There has been little comment on how legally binding status can be given to a declaratory document such as the Charter. Given that the Charter itself affirms that it simply records existing rights, some witnesses have suggested that the terms of Article 6(1) are surprising. James Flynn QC, for the Bar Council, suggested that new Article 6(1) was "a little circular" given that the Charter claimed simply to reaffirm rights which existed already (Q E331). Professor Jo Shaw, University of Edinburgh, also commented on the peculiarity of "giving what is apparently a declaratory instrument the same legal values as [the Treaties]" (Q E67).

5.67.  Dr Ladenburger recognised the declaratory status of the Charter, but considered that giving the Charter legally binding force would incite the EU institutions to pay "the utmost attention to respecting these fundamental rights" (Q E383).

5.68.  It may appear somewhat anomalous to give legally binding status to an instrument which self-avowedly records rights deriving from other sources. However, whatever the legal effect of this change—a matter which we consider below—declaring the Charter to be legally binding will send a clear message to all institutions and citizens within the Union about the EU's commitment to uphold the rights set out in the Charter.

ii. The general impact of the change to the Charter's status

5.69.  Those of our witnesses who considered that the Charter created new rights were, as a result, of the view that the grant of legally binding status would have a discernible effect on the EU and Member States. However, the majority of our witnesses concluded that the change was unlikely to have much impact. BERR insisted that nothing would change for the UK following the elevation of the status of the Charter by the Treaty of Lisbon (p G21). This was a view shared by several other witnesses. Sir David Edward concluded that the change to the status of the Charter "adds nothing very much to where we are already" (Q S138). Professor Jo Shaw was dubious that there would be much change: "I am not convinced that the Charter in any event, whether recognised in this form or not, is going to have a stunning impact on the Court of Justice's fundamental rights jurisprudence" (Q E67).

5.70.  As Professor Guild explained, "We are looking at a framework of fundamental rights in which the Charter is only one piece" (Q E188). Dr Sariyiannidou noted that "The EU Charter will remain a consolidation of existing law and, thus, authoritative evidence of the law in force". She did not consider that the Lisbon Treaty revisions marked a substantial change in direction (pp G35, G37). This was a view shared by Mr Duff: "one can safely conclude that UK labour market policy is unlikely to be directly affected by the decision to make the Charter binding" (p G28).

5.71.  Professor Peers, for Statewatch, explained why the Charter's new status would have a limited impact: "it always has to be kept in mind when discussing the Charter that human rights are already protected as general principles of law" under existing Article 6(2) (Q E106). Dr Ladenburger also highlighted the importance of this point, emphasising that the general principles were already "well developed by the case-law of the Court of Justice", and thought it unlikely that the change in the Charter's status would fundamentally alter the Court's case-law (Q E383). Professor Peers concluded that "The general principles are there … and the Court of Justice would continue to develop them even if the Charter were not there" (Q E109). Support for this view can be found in the recent ECJ cases concerning the right of collective action: despite the fact that the Charter does not currently have legally binding force, the Court found that the right to collective action was a general principle of EU law. As to whether the Charter created a presumption that the rights it contained did in fact exist, Ms Ellis did not consider this to be an issue: "Insofar as they derive from existing sources, they are in existence" (Q E540).

5.72.  Leaving aside the UK/Polish Protocol, the effect of declaring the Charter to have the same legal value as the Treaties is likely to preclude any argument that the rights and principles "reaffirmed" do not already exist as fundamental rights and principles in the area of EU law. We doubt whether this represents any great change from the position as it is and would anyway prove to be, having regard to current and emerging ECJ jurisprudence. Declaring the Charter to be legally binding will of course be likely to encourage and probably to speed the development of such jurisprudence.

5.73.  One argument which is levelled against the Charter is that although it does not create new rights, it would enable existing rights which are not directly enforceable in the United Kingdom to be legally enforced. This was a point raised by Mr Howe, who explained that by granting the Charter legal status the ECJ and national courts would be given jurisdiction to rule on violations of the Charter (and consequently on violations of international treaties) (QQ E283, E287). Ms Golding added that once the Charter is enshrined in primary EU law "the rights enshrined in it can be applied directly". She concluded that this would lead to a change not of substance but in the way rights are applied (Q E473).

5.74.  Professor Dashwood considered that the Charter did not increase the possibilities for acts of the Member States and Union institutions to be challenged in courts. As for the role of the Charter in such challenges, Professor Dashwood said "I do not think [the Court] would find the Charter nearly as useful as it would the international agreements to which the Member States are parties, or the constitutional positions of the Member States". Mr Flynn concluded that "one might expect to see references to [the Charter] possibly in judgments but it is unlikely to change the picture very much" (QQ E331-335).

5.75.  The rights at issue are those in the Charter deriving from international instruments which, although ratified by the United Kingdom, do not give rise to a right directly enforceable in UK courts or the ECJ. This is the case in relation to most obligations undertaken outwith the context of the EC or the EU, because the "dualist" approach of the legal systems of the United Kingdom means that international obligations are only incorporated into domestic law once they are transposed.[86]

5.76.  An example of such a right is the right to protection in the event of removal, expulsion or extradition in Article 19 of the Charter. Article 19 has two components: the prohibition of collective expulsions; and the prohibition on extraditing an individual to a State where there is a serious risk that he will be subject to the death penalty, torture or other inhuman or degrading treatment or punishment.[87]

5.77.  The Explanations indicate that Article 19(1) is derived from the Fourth Protocol to the ECHR. However, this Protocol has not been ratified by the United Kingdom. As a result, the United Kingdom's obligations in this field derive only from other international instruments which it has ratified. The United Kingdom's obligation to make decisions on expulsion on an individual basis can be inferred from Article 13 of the ICCPR and Article 32(2) of the 1951 Geneva Convention relating to the status of refugees.

5.78.  The fact that treaties have not been incorporated as such into law in the United Kingdom does not mean that unincorporated rights which they provide are necessarily unenforceable.[88] Courts in the United Kingdom, when interpreting the scope of rights which exist as general principles or under the Human Rights Act 1998, are also entitled to have regard to international agreements and frequently do so.[89]

5.79.  Like the British courts, in the EU context the ECJ also illuminates its reasoning process by having regard not only to the text before it but also to relevant international treaty obligations in order to assist its interpretation. This practice would clearly continue irrespective of whether the Charter is legally binding. New Article 6(1) TEU will require the Court to have regard, in interpreting the scope of the Charter rights, to the Explanations setting out the sources of the rights, which in turn refer to relevant international instruments.

5.80.  Since we consider that the Charter reaffirms rights and principles which already substantially exist, albeit in many cases only at an international level, we expect the effect of the change in the Charter's status to be limited. Courts at both national and EU level will continue to refer to international treaty obligations to interpret the scope of fundamental rights and identify those fundamental principles which are general principles of EU law, whether or not the Charter becomes legally binding. We expect that reference to the Charter would, if the Treaty of Lisbon enters into force, be likely to become more frequent, as the Charter's legally binding force would make it more straightforward for individuals to enforce rights which they are guaranteed under international law.

iii. Overlap with the ECHR and the Strasbourg Court

5.81.  According to Martin Howe QC, one important consequence of giving the Charter legally binding status may be that the ECJ will be increasingly asked to interpret the ECHR, given that a number of Charter rights are derived from that instrument. The risk is that a difference in approach may develop between the Strasbourg and Luxembourg Courts. He suggested that this could, however, be remedied by the Union signing up to the ECHR (QQ E277 & E279). Dr Ladenburger highlighted the significance of Article 52(3) of the Charter here, which made it clear that insofar as Charter rights were derived from ECHR rights, the Charter right was to have the same scope and meaning as the ECHR right in question (Q E383).

5.82.  We have previously highlighted the role that the European Union could play in ensuring better protection of fundamental rights within its Member States and thus alleviating the growing caseload of the European Court of Human Rights.[90] While we recognise that it is possible for inconsistencies to emerge in the treatment of fundamental rights by the two courts, in practice the ECJ pays attention to the jurisprudence of the Strasbourg Court, and has generally avoided any direct conflict.[91]

5.83.  Accession of the Union to the ECHR would greatly reduce the risk of inconsistencies, and provide a means of redress if they did occur, by making the Union and its institutions subject to the jurisdiction of the European Court of Human Rights.[92]


5.84.  The United Kingdom and Poland have secured a Protocol, which under new Article 51 TEU will have the same legal value as the Treaties, on the application of the Charter in the UK and Poland. The recitals of the Protocol set out the context. Notably, recital 8 refers to the "wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter", and recital 9 explains that Member States are "desirous therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and the United Kingdom and of its justiciability within Poland and within the United Kingdom". Recital 12 reaffirms that the Charter is without prejudice to other obligations of the United Kingdom and Poland deriving from Union law generally.

i. A Charter opt-out?

5.85.  Some witnesses seemed to consider that the Protocol effectively constituted an opt-out from the Charter (pp E148, E156). However, Professor Dashwood considered the Protocol to play a role in assisting interpretation of the Charter only: "The Protocol is not an opt-out for the United Kingdom; it is an interpretative protocol" (Q E332). This was a view echoed by Dr Sariyiannidou: "[The Protocol] does not say that the Charter is not binding in the UK and in this respect it does not amount to an 'opt-out'" (p G36). The ETUC referred to "opt out" as "inaccurate terminology" (p G29).

5.86.  The Government also viewed the Protocol as an interpretation guide rather than an opt-out. The DWP said categorically, "The UK Protocol does not constitute an 'opt-out'. It puts beyond doubt the legal position that nothing in the Charter creates any new rights, or extends the ability of any court to strike down UK law" (p G27). The DIUS and the DCSF referred to Articles 51 and 52 of the Charter and the Protocol as providing "some useful clarification of the effect of the Charter rights" (p G25). Professor Shaw suggested that in fact, the Protocol was a "Declaration masquerading as a Protocol" (Q E70). Indeed, she considered it extraordinary that the Member States should purport to instruct British courts as to how they were supposed to interpret the Charter (Q E73).

5.87.  The Protocol is not an opt-out from the Charter. The Charter will apply in the UK, even if its interpretation may be affected by the terms of the Protocol.

ii. The terms of the Protocol

5.88.  Article 1(1) of the Protocol stipulates that the Charter does not extend the ability of the ECJ or any British or Polish court to find the laws and practices of the United Kingdom or Poland inconsistent with the Charter.

5.89.  Article 1(2) provides that, for the avoidance of doubt, nothing in Title IV of the Charter (the "Solidarity" rights) creates justiciable rights applicable to Poland or the UK except insofar as such rights are provided for in their national laws.

5.90.  Article 2 of the Protocol provides that to the extent that the Charter refers to national laws and practices, it shall apply to the UK and Poland only to the extent that the rights or principles it contains are recognised by the laws and practices of the UK or Poland.

iii. The effect of the Protocol

5.91.  As outlined above, the Charter itself contains articles concerning the scope and interpretation of the rights it contains. The question of whether the Protocol intends to depart from these articles and set out a different interpretation to be applied specifically in the UK and Poland has created some confusion.

5.92.  Professor Guild pointed to the lack of clarity in the Protocol, saying "it is not entirely clear exactly what the objective of the Protocol is beyond some kind of statement about fundamental rights and their application in the UK and Poland". She considered a variety of interpretations to be possible (QQ E178-179). The Law Society of Scotland also pointed to the lack of clarity as to what would be the position in the UK and commented on the "unfortunate lack of legal certainty" that would result (p E165). Dr Sariyiannidou concluded that the Protocol was "a matter of presentation rather than content or substance" (p G37).

5.93.  Given the lack of clarity as to the aim of the Protocol, witnesses found it difficult to judge what the Protocol's effects might be. Martin Howe QC noted: "one has to ask whether [the Protocol] is simply declaratory of the consequences of the Charter across the whole European Union or whether, alternatively, it is intended to create some different legal effect of the Charter inside the United Kingdom and Poland, as compared with the other Member States". He concluded that the Protocol might have no substantive legal effect and might simply be a reassertion of Article 51(1) of the Charter itself (QQ E283 & E285). As Professor Shaw highlighted, the recitals of the Protocol appear to indicate that there is no change intended to the status quo (Q E71).

5.94.  In seeking to identify what would be the effect of the United Kingdom and Polish Protocol, the important question, according to Professor Peers, was the extent to which the rights in the Charter differed from the general principles of Union law: if the ECJ ruled that the Charter rights and the general principles were one and the same, then, in Professor Peers' view, "the distinction between the Charter and the general principles is irrelevant and therefore the British Protocol is meaningless".[93] However, if there was some scope for discussion as to whether the Charter and the general principles encompassed the same rights, then Professor Peers considered that the Charter might have some impact and the Protocol could be important. He concluded that even if the Charter and the general principles were to some extent different, the Protocol would not exclude the Charter entirely for the UK. It would simply prevent national courts and the ECJ from criticising national law in light of the Charter. However, as the recitals to the Protocol reaffirmed, the Protocol did not limit obligations incumbent on the UK as a result of Union law generally and those rules would continue to apply (Q E106). Andrew Duff MEP suggested that even if the Charter was not identical to the general principles at present, over time the case-law would develop in this direction (p E137).

5.95.  Professor Chalmers thought that the Protocol was not worth a great deal (Q S31). However, this view was not shared by Professor Dashwood. He saw the Protocol as part of the belt-and-braces approach of the Government. In his view the Charter did not create new rights and did not enlarge the possibility of acts of Member States or EU institutions being challenged on fundamental grounds and the Protocol provided additional, but unnecessary, protection for the United Kingdom in this regard. For those who took the opposite view and considered that, to some extent at least, the Charter did create new rights, then for Professor Dashwood, the Protocol provided that as far as the United Kingdom was concerned the Charter must be interpreted as not creating new rights (Q E332). Jane Golding also emphasised that, in her view, the Protocol was secured by the United Kingdom in order to provide certainty that "it had covered all the angles" (Q E474).

5.96.  Mr Straw was quite frank about the intention behind the Protocol and its likely effect: in his view, the Protocol was intended to reflect the terms of the Charter's horizontal articles themselves. He told us "[the Protocol] puts beyond doubt what should have been obvious from other provisions" (Q E541).

5.97.  Professor Jacqueline Dutheil de la Rochère, of the University Paris II (Panthéon-Assas), did not consider that the Protocol would lead to any great change in the way the Charter was applied, given the careful drafting of the horizontal articles of the Charter itself. She concluded that although the Protocol would probably provoke a significant amount of discussion and debate among lawyers, it might in the end produce little in the way of case-law (p E141).

5.98.  Some witnesses who welcomed the Charter were concerned about the operation of the Protocol. The Trades Union Congress (TUC) raised two issues. First, they were concerned that the Protocol might hinder the use of the ECJ to ensure access to existing EU-based workers' rights. They pointed to the recent practice of the Court to draw on the Charter when interpreting EU employment directives and considered that it would be "unacceptable" for the Protocol to restrict the Court's power to do so in future. Second, they expressed a concern that the Protocol would restrict the right of UK citizens to claim rights through the ECJ and that this would lead to a widening difference between rights for UK and other EU citizens over time (pp G39-40). The ETUC, however, noted that the Protocol did not allow the United Kingdom to evade its obligations under EU law (p G30).[94]

5.99.  Witnesses who expressed concerns at the introduction of a legally binding Charter did not appear to be reassured by the existence of the Protocol. David Heathcoat-Amory MP complained that the Protocol was "wafer thin" and Neil O'Brien feared that the Court would interpret the Protocol however it liked (QQ S94-95). Sally DeBono was also dubious that the Government's "red line" would hold (p S131).

5.100.  The Chartered Institute of Personnel and Development was concerned that the protection afforded by Article 1 of the Protocol in respect of the Title IV Solidarity provisions of the Charter might be traded at some future point in return for concessions in other areas, a worry shared by Professor Shackleton (pp G18, G38).

5.101.  Dr Sariyiannidou suggested that the ECJ's obligation to ensure the uniform application of EU law would trump the UK Protocol. This could be relevant if the Court were to be asked to interpret, for example, UK implementation of EU labour and social legislation. She considered that the United Kingdom would have more success in resisting the Charter through insisting on a rigorous application of the principle of subsidiarity in Article 51(1) (pp G36-37).

5.102.  The recitals make several references to the desire of Member States to "clarify"—not prescribe—the application of the Charter. Lord Goldsmith, who was to a large extent responsible for drafting the horizontal provisions of the Charter in his role as Government representative on the Convention and who also drafted the Protocol, emphasised this point in a recent paper to the British Institute of International and Comparative Law: "The negotiations at the June European Council and subsequent Intergovernmental Conference provided Government with the opportunity to bolster existing safeguards and set in stone how the Charter will operate in the UK, as in all Member States".[95]

5.103.  We therefore see the broad legal effect of the Protocol as follows:

    (a)  Article 1(1) reflects the fact that the Charter does not create new rights—if a national law is inconsistent with a provision of the Charter then it is also inconsistent with an EU or international norm. This also reflects Article 51 of the Charter.

    (b)  Article 1(2) is in line with the frequent references in the Title IV rights to national laws and practices and also with Article 52(5) of the Charter which sets out the approach which should be taken to "principles" in the Charter. But it also brings some welcome clarity to Title IV. Article 52(5) read in the light of the Explanations could have led to a conclusion that some Title IV "rights", such as Article 33, represent enforceable rights which could be relied upon directly before British courts. The Protocol appears to put beyond doubt that this would not be possible. In these circumstances it must be regarded as very unlikely that the ECJ would, in interpreting the Charter, hold that Title IV involved justiciable rights in relation to any Member State, but Article 1 paragraph 2 of the Protocol would in our view preclude it making such a ruling in relation to the United Kingdom. However, Title IV reflects principles which could, we think, still bear on the interpretation, or even the validity, of legislative and executive acts under Union law, as provided by the last sentence of Charter Article 52(5), and so indirectly affect individual rights. We have also noted above that, to the extent that the Union legislates in areas which are within its competence quite apart from the Charter, national legislators and courts will anyway be subject to that legislation.

    (c)  Article 2 reflects a common-sense interpretation of those articles in the Charter which refer to national laws and practices and of Article 52(6) of the Charter, which stipulates that "full account" is to be taken of national laws and practices where there is a reference to them. But it is a useful clarification of what might otherwise have been open to argument. Again, however, we think it unlikely that Article 2 of the Protocol precludes the use in relation to the United Kingdom and Poland of any relevant Charter articles in the way contemplated by the last sentence of Charter Article 52(5), when interpreting or ruling on the validity of legislative or executive acts taking place under Union law on the basis of a Union competence not connected with the Charter.

    (d)  The Protocol should not lead to a different application of the Charter in the United Kingdom and Poland when compared with the rest of the Member States. But to the extent that the Explanations leave some ambiguity as to the scope and interpretation of the Charter rights, and as to the justiciability of the Title IV rights especially, the Protocol provides helpful clarification. We would not be surprised if, in considering the scope of the Charter in future, EU and domestic courts had regard to the terms of this Protocol in order to assist interpretation of the Charter's horizontal articles, even in cases where the United Kingdom and Poland were not involved. Indeed, given that, despite media reports, it is an interpretative Protocol rather than an opt-out, it is perhaps a matter of regret, and even a source of potential confusion, that it was not expressed to apply to all Member States.

5.104.  In assessing the impact of the Protocol, it should be recalled, as highlighted by Professor Peers, that the Charter is not the only "door" to protection of fundamental rights in the EU. New Article 6(3) TEU on general principles of Union law also provides a means for challenge to EU law and UK implementing legislation on the basis of violations of fundamental rights, as is the case under existing Article 6(2). Nothing in the Protocol changes the position in this regard as the legally binding status of the Charter is irrelevant where a fundamental right constitutes a general principle (Q E106). The Court's approach to this has been clearly demonstrated in the context of the recent rulings on the right to collective action.[96] Where a Charter right is declared by the Court to constitute a general principle which would exist under EU law irrespective of the Charter, any protection afforded by the Protocol will fall. The extent of the ECJ's current interpretative practice is recognised by Martin Howe QC, who concluded that the power of the ECJ to rule on violations of the Charter (and therefore on violations of rights which presently exist only under international treaties outside the EU/ECHR context) might already exist because the Court recognised that the basic principles in the Charter were general principles common to the Member States (Q E283).

5.105.  Ultimately, the interpretation of the Protocol is a matter for the courts and, in both the national and EU contexts, we do not think it is possible at this stage to predict precisely what courts would decide if faced with the task of interpreting the Protocol's language. Clearly, European and domestic courts could not ignore the text of the Protocol but it is likely that the ECJ will develop a tendency to refer to Charter rights and their origins, as well as new Article 6(3) TEU[97] on the general principles of EU law, and would develop its fundamental rights jurisprudence on that basis.

5.106.  To the extent that the Protocol does in practice limit the application of the Charter in the United Kingdom, some witnesses suggested that there might well be an indirect application of the Charter in any case through rulings of the ECJ on how EU legislation should be interpreted. A ruling on a case not involving the United Kingdom and based on an interpretation of the Charter would in principle have to be respected and followed by UK courts (Q E284).

5.107.  Andrew Duff MEP criticised the Government for negotiating a special Protocol and highlighted the risk of the UK's self-imposed exclusion from development of Charter case-law: he considered that in the long term the United Kingdom would inevitably be brought under the umbrella of the Charter but would have deprived itself of the opportunity to help shape the fundamental rights regime by preventing its courts from playing a role at this early stage of the Charter's development. He saw the Charter as having a symbolic value that, for example, Schengen did not and concluded that, "It does seem rather bizarre for any government—especially a social democratic one—to seek to deprive its people of the higher standards of rights protection now required by the rising level of European integration" (p E137).

5.108.  Fair Trials International also condemned the Government's negotiation of the Charter Protocol, expressing deep disappointment at the signal such a move sent about the UK's commitment to securing equal rights for all EU citizens and, more broadly, the EU's commitment to fundamental rights. In FTI's view, the acceptance of different fundamental rights standards in the EU seriously compromised the EU's credibility and undermined the effectiveness of the EU's human rights policy (p E148). The ETUC said it "deplore[d] the political message" that the Protocol sent to citizens. They stressed the indivisibility of the Charter and the importance of avoiding an "à la carte" instrument which depended on the political considerations of the day (p G29).

5.109.  One effect of the Protocol will be to discourage the ECJ from basing its analysis of fundamental rights solely on the Charter. British courts are therefore generally unlikely to be faced with the problem of deciding, in the light of the Protocol, how they should treat case-law of the ECJ interpreting EU law on the basis of the Charter alone.

5.110.  The Protocol may have the effect of reassuring those who have concerns about giving the Charter legally binding status.

5.111.  British courts already refer to the Charter in identifying the scope of fundamental rights.[98] Nothing in the Protocol will prevent them from continuing to do so in future, drawing on the Charter in the same way as they draw on many international human rights instruments, when interpreting the content of fundamental rights.


5.112.  Witnesses generally welcomed EU accession to the European Convention on Human Rights. Professor Maria Kaiafa-Gbandi, of the Aristotle University of Thessaloniki, noted the importance of EU participation in the ECHR, particularly in light of its increasing powers (p E162).

5.113.  While Fair Trials International were in favour of EU accession to the ECHR, they expressed some concern at the risk of overlap and confusion between the EU and the Council of Europe (p E148). Martin Howe QC saw Union adhesion to the ECHR as one way of dealing with the problem that might be created by increasing interpretation of the ECHR (via the Charter) by the Luxembourg Court (Q E279). Accession itself is not without difficulties: Professor Chalmers pointed to the problems that would arise in relation to ECHR accession regarding accountability and what "exhaustion of domestic remedies"—a condition which has to be fulfilled for a case to be admissible in Strasbourg—would mean in the EU context (Q S16).

5.114.  Mr Heathcoat-Amory MP noted that, at present, there is no provision in the ECHR for accession of non-States. He concluded that "it is quite clearly foreseen that the European Union shall accede to a body in that sense like a State" (Q S58). Maria Fletcher suggested that while the wording of Article 6(2) states that the Union "shall accede" to the ECHR, given the need for unanimity for any accession decision under Article 218(8) TFEU this may not be as straightforward as some expect (p E152).

5.115.  Finally, the Law Society of Scotland highlighted a potential problem which could arise in Scotland as a result of the dual human rights jurisdiction of the Union and the Council of Europe. The Scotland Act 1998, which introduced devolution in Scotland, requires all legislation passed by the Scottish Parliament to be compatible with both ECHR rights and EU law. Where there is an incompatibility with either, the Scottish legislation in question is "not law". Clearly any inconsistency between the Union and the Council of Europe could have undesirable consequences for Scotland (p E165).

5.116.  Protocol 14 to the ECHR was prepared with EU accession in mind and as a result amends Article 59 of the ECHR, which deals with signature and ratification. New Article 59(2) provides that, "The European Union may accede to this Convention". Further amendments will be required to make accession possible from a technical point of view but it is quite clear that special arrangements have been and will be made to allow the EU to accede to the ECHR as an international organisation rather than a State.[99]

5.117.  Clearly there will be issues which will have to be resolved but we do not consider there to be any serious problems or obstacles here. We note the importance of consistency in the two regimes for Scotland and the obligation on its legislature under the devolution settlement. This problem has existed since the entry into force of the 1998 Scotland Act and will not be made worse by the Treaty of Lisbon. On the contrary, accession to the ECHR would help to secure consistency.

5.118.  We have in the past identified strong reasons for supporting EU accession to the ECHR.[100] The Strasbourg Court would then be recognised as the final authority in the field of human rights. This would assist to avoid any risk of conflict between European Union law and the European Convention on Human Rights as interpreted in Strasbourg, by placing fundamental rights on a single consistent foundation throughout the EU. We continue to be of the view that the Government should encourage Member States to pave the way for accession by the Union to the ECHR at the earliest opportunity.

49   Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, paragraph 4. Back

50   Ex-Article F, TEU. TEU articles were renumbered following amendments introduced by the Treaty of Amsterdam in 1997. Back

51   Article 6(1) TEU. Back

52   The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, was agreed in the context of the Council of Europe, an intergovernmental organisation now comprising 47 member States and not to be confused with the European Community or the European Union.  Back

53   Article 6(2) TEU. Back

54   See, for example, Case C-283/05 ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS), opinion of Advocate General Léger, 28 September 2006, paragraph 102, and judgment of the Court, 14 December 2006, paragraph 26. Back

55   Presidency Conclusions of the Cologne European Council, 3-4 June 1999, Document 150/99 REV 1 at paragraph 44. Back

56   Decision of the European Council at Annex IV of the Cologne Presidency Conclusions. The European Social Charter guarantees social and economic human rights. It was adopted in the framework of the Council of Europe in 1961 and revised in 1996 (1961 Charter: Council of Europe Treaty Series 35, adopted on 18 October 1961; 1996 Charter: Council of Europe Treaty Series 163, adopted on 3 May 1996). The revised version was signed by the United Kingdom in 1997 although only the 1961 version has been ratified by the United Kingdom. On 9 December 1989, the Heads of State or Government of 11 of the then 12 Member States adopted the text of the Community Charter of the Fundamental Social Rights of Workers. The Community Charter was not signed by the United Kingdom until 1998. Back

57   Recitals to the Charter. Back

58   OJ C 364/1 of 18.12.2000.  Back

59   The full text of the original Explanations can be found in Document CONVENT 49 of 11.10.2000. Back

60   Commission Communication Compliance with the Charter of Fundamental Rights in Commission Legislative Proposals: methodology for systematic and rigorous monitoring, COM (2005) 172. This Communication has been the subject of a Report of this Committee: Human Rights Proofing EU Legislation, 16th Report of Session 2005-06, HL Paper 67. Back

61   Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights OJ L53/1 of 22.02.2007. See in particular recital (9) and Article 4(2). The Committee has published a Report on the Agency: Human rights protection in Europe: the Fundamental Rights Agency, 29th Report of Session 2005-06, HL Paper 155. Back

62   See, for example, the judgment of the Court of Justice of 3 May 2007 in Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad; opinion of the Advocate General of 14 December 2006 in Case C-305/05 Ordre des barreaux francophones et germanophones and others v Conseil des Ministres (in particular paragraph 48). Back

63   See the judgment of the Court of Justice in Case C-540/03 Parliament v Council [2006] ECR I-5769 at paragraph 38. Back

64   Articles 51 to 54 of the Charter clarifying the Charter's scope and applicability. Back

65   The adapted Charter and the revised Explanations have been published in the Official Journal: OJ C 303/1 of 14.12.2007 and C 303/17 of 14.12.2007. Back

66   Paper by the Rt Hon Lord Goldsmith QC presented to the Heinrich Böll Stiftung, 24 February 2001 "A Charter of Rights, Freedoms and Principles" at paragraph 34:  

67   Supra at paragraph 35. Back

68   An address by the Rt Hon Lord Goldsmith QC to the Liberty Annual Conference, 8 June 2002 "Human rights v civil liberties":,%208%20JUNE%202002.doc. Back

69   SupraBack

70   The UK has lodged no reservation to Article 6 of the Social Charter on the right to bargain collectively. Article 6 was not amended by the revised Charter in 1996. Back

71   E.g. Schmidt and Dahlström v Sweden (Application No. 5589/72), judgment of 6 February 1976, Series A, No 21 at paragraph 36. Back

72   Case C-438/05 International Transport Workers' Federation & Finnish Seamen's Union v Viking Line ABP & OÜ Viking Line Eesti, judgment of 11 December 2007 at paragraphs 43-44; and Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and others, judgment of 18 December 2007 at paragraphs 90-92. Back

73   The European Parliament's website on the Charter also provides extensive information regarding the source of Charter rights: Back

74   Council of Europe Treaty Series 164, adopted on 4 April 1997. Back

75   The right of collective bargaining in Article 28 of the Charter, another particularly controversial article, is considered above. Back

76   Ratified by the United Kingdom on 20 August 1976. Back

77   Müller v Switzerland (Application No. 10737/84), judgment of 24 May 1988, Series A, No 133 at paragraph 27. Back

78   Ratified by the United Kingdom on 20 August 1976. Back

79   Hertel v Switzerland (Application No. 25181/94), judgment of 25 August 1998, Reports 1998-VI. Back

80   The right in Article 2 of the Protocol is accepted "only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure"-United Kingdom reservation made at time of signature of Protocol, 20 March 1952. Back

81   See, for example, judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, paragraph B.3: "In spite of its negative formulation, this provision uses the term 'right' and speaks of a 'right to education'. Likewise the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of 'rights and freedoms'. There is therefore no doubt that Article 2 does enshrine a right". Back

82   Point 15 of the Community Charter. Back

83   "In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions". Back

84   These changes were first discussed in the context of negotiations on the Treaty establishing a Constitution for Europe as that Treaty would also, had it entered into force, have given the Charter legally binding status. Back

85   This is discussed in greater detail in the section on rights and principles above. Back

86   Contrast the case of France, a monist system, where international obligations give rise to directly-enforceable rights under French law once the international instrument has been ratified. Back

87   As the Explanations set out, the prohibition on expulsion where there is a risk of torture or ill-treatment has been reflected in the case-law of the Strasbourg Court which establishes that Article 3 of the ECHR on the right to freedom from torture and inhumane or degrading treatment also prohibits expulsion where there is a risk of torture-Case 22414/93 Chahal v United Kingdom, judgment of 15 November 1996, Report 1996-V at paragraph 74.  Back

88   The Asylum and Immigration Act 1993 provides, in s.2, that "Nothing in the immigration rules … shall lay down any practice … contrary to the [Geneva] Convention". Back

89   R v Immigration Officer at Prague Airport, ex parte ERRC [2004] UKHL 55 per Lord Steyn and Baroness Hale of Richmond. Back

90   Human rights protection in Europe: the Fundamental Rights Agency, 29th Report of Session 2005-06, HL Paper 155 at paragraph 93. Back

91   As in Case C-145/04 Spain v United Kingdom, judgment of 12 September 2006, where Spain sought unsuccessfully to challenge as contrary to European law the way in which the United Kingdom gave the Gibraltarians the right to vote in elections to the European Parliament, following the European Court of Human Rights' decision in Matthews v. United Kingdom (Application No. 24833/94), judgment of 18 February 1999, holding that the United Kingdom was under the Human Rights Convention obliged to give them such a vote. Similarly, the Strasbourg Court interprets the ECHR compatibly with EU law, e.g. Bosphorus Airlines v Ireland (Application No. 45036/98), judgment of 30 June 2005; and DH & Others v Czech Republic (Application No. 57325/00), judgment of 13 November 2007 at paragraph 187. Back

92   We discuss this further below when we consider EU accession to the ECHR. Back

93   This was a view shared by Maria Fletcher, lecturer in European law at the University of Glasgow (p E152). Back

94   The Protocol recitals state that it is "without prejudice to other obligations devolving upon … the United Kingdom" under the Treaties and EU law generally. Back

95   Speech by the Rt Hon Lord Goldsmith QC to the BIICL, 15 January 2008: "The Charter of Fundamental Rights". Back

96   See discussion of the "right to strike", supraBack

97   Current Article 6(2) TEU. Back

98   See for example R v East Sussex County Council and the Disability Rights Commission ex parte A, B, X & Y [2003] EHC 167 (Admin) per Munby J at paragraph 73: "the Charter is not at present legally binding in our domestic law and is therefore not a source of law in the strict sense. But it can, in my judgment, properly be consulted insofar as it proclaims, reaffirms or elucidates the content of those human rights that are generally recognised throughout the European family of nations, in particular the nature and scope of those fundamental rights that are guaranteed by the Convention". Back

99   The Protocol will enter into force once it has been ratified by Russia, the only remaining Council of Europe member State not to have ratified it. Back

100   EU Charter of Fundamental Rights, 8th Report of Session 1999-2000, HL Paper 67 at paragraph 154; The future status of the EU Charter of Fundamental Rights, 6th Report of Session 2002-2003, HL Paper 48; and Breaking the deadlock: what future for EU procedural rights? 2nd Report of Session 2006-07, HL Paper 20 at paragraph 52. At the moment the Community cannot accede to the ECHR: see opinion 2/94 of the ECJ of 28 March 1996 [1996] ECR I-1759. Back

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