Myth four - the Charter of Fundamental Rights

Yesterday’s FCO "myth", the fourth in the serties and again posted on its website, deals with the favourite claim of Neil O'Brien, campaign director of the "Vote No" campaign: "The Charter of Fundamental Rights will be used to change Britain's labour laws".

The "facts", says the FCO, are that the Charter makes clear that EU institutions must respect people's rights. Until now, it claims, EU institutions like the EU commission have not had clear rules ensuring they respect people's fundamental rights. Treaties like the European Convention on Human Rights have applied directly only to member states.

Now, we are told, the constitutional treaty contains a charter of fundamental rights which, for the first time, sets out exactly what rights, freedoms and principles apply at EU level.

The essential element, though, is that the charter will only apply only EU law is being implemented. "It cannot," or so it is claimed, "extend EU powers. The Charter makes it clear that it does not affect the UK when it is not implementing EU law, and also that it cannot extend EU powers or competences."

Furthermore, the FCO is adamant that the Charter creates no new rights and each (existing) right in the Charter has a corresponding explanation which pins down the origin of that right, its meaning and how it should be understood. The constitutional treaty then instructs the ECJ to interpret the Charter through those explanations.

This is Neil O'Brien on 28 January, talking to Jon Humphrys on the Today programme:

It'll mean that European judges will be able to impose new regulations on our businesses… if you look at what European judges are saying, and the European judges are the ones who are going to have to interpret the treaty, they’re saying that it's quotes "nonsense" that it doesn't increase their powers.. The president of the court of justice has said that it will give him huge new powers in new areas..

Then again, on 9 February, O'Brien returns to the subject, stating:

…the constitution would give the European court power to make a lot more rulings over our economy and the way our business is run. Because of the charter of fundamental rights, European judges would be able to decide on things like our labour law and so on.

So who is right?

Well, "Vote-No" offers on its website a "research briefing" citing Vassilios Skouris, president of the ECJ, recently stated that the Constitution "will bring new areas and new subjects under the Court's jurisdiction", and has refused to confirm that the Charter would not change national laws.

In an interview with the FT (18 June 2004) Skouris was asked, "Is the 'horizontality' of the Charter stable? The idea that the Charter would affect only EU institutions, not national jurisdictions?" Skouris replied: "It's difficult to say what is going to happen," adding that the EU court system:

...distinguishes the EU from all other international organisations... In a system where the rule of law prevails, politics is subject to law. Political authorities are not completely free to act as they please.

That, in itself, is a pretty frank admission.

Then, "Vote No" goes on to state that, Fidelma Macken, another ECJ judge, has said that it is "foolish" to argue that the Charter will not affect national laws and the Government’s own legal advisor, Professor Alan Dashwood, has admitted that "you don't know what will happen". There is "no hard and fast answer" to whether the Charter will affect national laws.

The Skouris comment is repeated in a briefing by one of the UK's largest union, the GMB, which notes that "the differing opinions on the legal impact of the Charter will be tested in court if the Constitution is ratified," adding that the GMB will be encouraging a broad interpretation of the Charter of Fundamental Rights and other elements of the EU Constitution helpful to trade unions, to improve the quality of work and family life for our members."

On this basis, O'Brien is somewhat foolhardy is saying with such conviction that the Charter will affect national laws, but equally, the government has no substance for its certainty in declaring that the Charter will not affect national laws. From the evidence adduced so far, we simply do not know and, as the GMB implies, we will not know until this has been tested in the courts.

The crux of the matter though, according to the government, are the "explanations" appended to the Charter, prepared under the authority of the praesidium of the convention which drafted the document.

These are attached as a "declaration" to the constitution but, as the British Management Data Foundation helpfully points out in its notes on the constitution, that self-same declaration states:

Although they do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter.

This puts the government's claim that the "Charter makes it clear that it does not affect the UK when it is not implementing EU law…" into perspective. The government is being less than honest in failing to state that the clarification on which it relies does not have legal force. If so minded, the ECJ can ignore them.

However, that is the government’s case, which it then elaborates on the FCO "factsheet", stating unequivocally, that the Charter "will not create a right to strike in the UK." Expanding on this, the "factsheet" adds:

The Treaty is clear: a right to strike only exists "in accordance with national laws and practices" (Article II-88).

The Treaty is indeed clear. Taking the official version of the FCO website, the relevant part of Article II-88 actually states:

…in accordance with Union law and national laws and practices

The omission of the word "Union law and" cannot be an accident. Therefore, it has to be a deliberate attempt to deceive. Clearly, the FCO is up to no good – now there's a surprise.

But the "killer point" is the foreign secretary's claim that "the new treaty sets limits on the European Union's powers and, for the first time, they are listed clearly", stated yesterday in the second reading debate. Given the ambiguity of the status of the Charter, it is very clear that the limits of the EU's powers are not clear.

In attempting to resolve one supposed myth, it seems the FCO has created another.