Four Reasons for Retaining the Charter: Part 3 – Clarity and Democracy
The previous two posts argued that there were good reasons to retain the EU Charter of Fundamental Rights in terms of the broader, more modern scope of rights that it protects, in addition to the better remedy it can provide. This post will examine the third and fourth reasons for preserving the Charter, its ability to provide a clearer protection of rights and the greater democratic credentials of the rights found in the Charter.
In order to explain these two advantages, we need first set out the extent to which the current European Union Withdrawal Bill preserves some of the rights that we currently enjoy from our membership of the European Union. The Bill, as currently worded, draws a distinction between ‘the Charter’, and ‘fundamental rights or principles which exist irrespective of the Charter’. Whilst ‘the Charter’ is not part of domestic law, this ‘does not affect the retention in domestic law’ of ‘fundamental rights or principles which exist irrespective of the Charter’.
In order to work out what these ‘fundamental rights or principles which exist irrespective of the Charter’ are, we need to look to European Union law. Article 6 of the Treaty of European Union refers to two main sources of rights and freedoms in the European Union: the Charter and ‘fundamental rights’, both those guaranteed by the ECHR and ‘as they result from the constitutional traditions common to the Member States’. These fundamental rights are the ‘general principles of the Union’s law’. Schedule 1 to the Withdrawal Bill restricts the extent to which general principles of EU law can have effect in UK law on or after exit day, as discussed in the previous blog post.
The above discussion already demonstrates how preserving the Charter provides greater certainty than the preservation of ‘fundamental rights or principles which exist irrespective of the Charter’. It is harder to understand which fundamental rights from EU law are retained on or after exit day without chasing through a series of provisions and having a background knowledge of EU law. By contrast, retaining the Charter merely requires a reference to ‘the Charter’ and either the inclusion of the Charter in the list of instruments which must be published by the Queen’s Printer on or after exit day, or a further Schedule to the Act setting out the provisions of the Charter.
The retention of the Charter also provides greater certainty because it is set out in a promulgated document. This is supplemented by decisions of the Court of Justice of the European Union which interpret the provisions of the Charter, providing specific examples of the scope of these rights. This is similar to how English law works at the moment, where the Human Rights Act refers to Convention rights, which are listed in a Schedule to the Act, and added to by domestic case law and decisions of the European Court of Human Rights. This is contrasted with the general principles of European Union law, which include fundamental rights as well as other principles. To find a definitive list of ‘fundamental rights or principles which exist irrespective of the Charter’ you will need to read through a series of decisions of the Court of Justice of the European Union. You would also need to distinguish between those general principles of European Union law that were fundamental rights, and those which were not fundamental rights. Also, you would then need to work out the extent to which these fundamental rights existed irrespective of the provisions of the Charter when often the decisions of the Court of Justice of the European Union refer to both the Charter and general principles in tandem when determining cases on human rights.
This is not to claim that the provisions of the Charter are perfectly clear. It is merely to claim that the preservation of the Charter provides greater clarity than the current retention of rights from EU law found in the Withdrawal Bill. This clarity is important. It helps average citizens know what human rights they have; and helps to educate all in the human rights of others we should respect.
The Charter’s enactment process boasts strong democratic credentials. It was enacted by a convention, composed of members of the European Parliament, members of the national parliaments of the European Union, representatives of the governments of the European Union member states and representatives of the European Commission. Each of the representatives of the governments of the European Union member states, and of the national Parliament members, were in a position to discuss this further in their own national Parliaments if they wished. Whilst the Court of Justice of the European Union court can draw on a range of constitutional documents to determine the scope of fundamental rights, and is inspired by the ECHR and other international human rights documents, this does not provide the same broad democratic input as the enactment of the Charter.
Again, this is not to claim that the Charter is a perfect document with impeccable credentials. Rather it is to draw attention to how the policy of repealing the Charter, whilst retaining fundamental principles, may appear to be an odd choice which requires further justification.
My thanks to Haley Hooper for her comments on an earlier draft of this post.