The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are said to be common to the member states. The EU shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the member states, as general principles of Community law.
This is the situation according to Article 6 of the existing Treaty on European Union (TEU).
The amending Treaty of Lisbon would be somewhat more specific about these principles (Article 2 TEU), and it would make the 2000 Charter of Fundamental Rights of the European Union (slightly adapted on 12 December 2007) legally binding. The European Union would also accede to the European Convention, already binding for every member state (Article 6 TEU).
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Poland and the UK
During the negotiations leading to the Lisbon Treaty, two member states decided to break the European consensus on fundamental rights for all EU citizens.
Poland, with Jaroslaw Kaczynski as Prime Minister and Lech Kaczynski as President, feared that the EU Charter would leave Poland open to attacks by a homosexualist lobby. The socially conservative Kaczynski twins demand a Christian and Catholic Europe.
Poland opted out of the Charter, and despite the resounding election defeat of the ultra-conservative Law and Justice Party (PiS), the new Prime Minister Donald Tusk of the winning Civic Platform had no option but to swallow the opt-out in order to secure the needed super-majorities needed for the ratification of the Lisbon Treaty. (President Lech Kaczynski has still not signed the ratification instrument.)
The Labour governments of Tony Blair and Gordon Brown watered down the Lisbon Treaty, both generally and with regard to Britain. Fears of fundamental rights for British people led to a break with the civilized European nations in the form of an opt-out from the EU Charter. In the United Kingdom, a somewhat desultory discussion is taking place about a British Bill of Rights, a national document with less teeth.
The Conservative opposition leader David Cameron goes even further in his rejection of European mainstream values and politics.
What Cameron calls a progressive reform agenda includes a referendum on the Lisbon Treaty (leading to the revocation of the UK’s ratification if the Lisbon Treaty is not yet in force, or the end of Britain’s EU membership if the Lisbon Treaty is in force). In any case, the Tories have promised to renegotiate Britains relationship with Europe, repatriating at least social and employment legislation, requiring unanimous treaty amendments.
Cameron also wants a limited British Bill of Rights, redistributing power from judges.
This could only happen by extending the parliamentary discretion. It would not give power to the people, but potentially give them less legal protection. For this to happen, the coming government has to abolish or weaken the Human Rights Act and to revoke the European Human Rights Convention, taking Britain an additional step away from the community of civilized nations.
We begin to see some profound similarities between the Kaczynski twins and the Cameron-Hague tandem.
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Symbolic value
The EU Charter is a fairly modern (mainly 2000) compilation of EU citizens’ rights, based on the European Convention and various rights under the EU treaties.
It does not create new rights for EU citizens, but the Charter makes them more visible and presents them in a systematic manner.
The Charters main function besides that is that it is an expression of a community of values, with the individual at its centre. Despite the underdeveloped political rights, the importance of the EU Charter is symbolic.
So is the rejection of these values.
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Opt-out Protocol
Despite the legalese, every EU citizen, especially each British and Polish national, should be aware of this hall of shame (OJEU 9.5.2008 C 115/313-314):
PROTOCOL (No 30)
ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE UNITED KINGDOM
THE HIGH CONTRACTING PARTIES,
WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union,
WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself,
WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article,
WHEREAS the Charter contains both rights and principles,
WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character,
WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles,
RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,
NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter,
DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom,
REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter,
REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States,
REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognized in the law or practices of Poland or of the United Kingdom.
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These are opt-outs by those who fear legal protection for their citizens and willingly part company with the civilized nations of Europe.
Ralf Grahn
Tuesday, 2 June 2009
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"Cameron also wants a limited British Bill of Rights, redistributing power from judges.
ReplyDeleteThis could only happen by extending the parliamentary discretion. It would not give power to the people, but potentially give them less legal protection. For this to happen, the coming government has to abolish or weaken the Human Rights Act and to revoke the European Human Rights Convention, taking Britain an additional step away from the community of civilized nations."
This is the bit that I find most unsettling. There seems to be a worrying movement against the whole notion of codified Human Rights in the UK - in the media and in the Tory party. I wouldn't even say there's been a debate on a British Bill of Rights - it seems to just be a label/idea floated as an alternative to the Human Rights Act.
The rhetoric is amazingly confused as well, in a way that is deeply worrying for anyone with an interest in rights and in constitutionalism. On one hand "ancient British/English liberties" are praised, while on the other, the power of judges damned. Now who, in a Common Law system, do they think came up with most of these rights (in an ad hoc fashion at times) anyway? Judges! Praising the legal system while dismantling key aspects of it.
And as for constitutionalism - without a codified constitution, and significant change, disempowering the judiciary would only serve to further concentrate power in the hands of Parliament (with power only restricted from the executive's hands in practical terms by a number of flimsy "conventions", which are basically gentlemen's agreements not to act in a certain way - until it's inconvenient).
The separation of powers, a judicial check on the tyranny of the majority when it comes to rights, and the effectiveness of Parliament seem to either mean nothing to Cameron, or he is seriously ignorant of the forms of constitutional governance. Either way not an encouraging prospect for a future government.
Eurocantric,
ReplyDeleteYou are quite right, it is very unsettling.
To lay it on a bit, there are two different models:
1) The European Union has accepted the view that human rights are universal.
The EU should be a model, including its member states, should have the best protection available.
The EU Charter of Fundamental Rights is the most modern compilation available internationally, although the member states have strictly limited its application.
The EU promotes human rights elsewhere in the world through its external action (on all fora, tying them to development aid and other international agreements, including enlargement processes and various partnerships).
2) Cameron's thinking is nationalist, and if he takes power from judges, they can only end up in Parliament.
Parliamentary sovereignty means parliamentary discretion, including arbitrariness, which translates into old Byzantium.
It means dictatorship through an elected parliamentary majority.
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At a practical level, I wonder what the Conservatives are going to do.
They can, of course, produce a British Bill of Rights, hailing it as suited to the British spirit and genious, but if they actually start dismantling the Human Rights Act (European Convention), which Cameron seems to imply, they place themselves outside the civilized and even not so civilized nations of the Council of Europe (established in London, by the way).
So, are his promises dangerous or cynical bluff?
I really wonder why there is so little visible discussion about the implications of the Conservatives' programmes and promises in Britain.
Shouldn't there be some clarity before they have become the elective dictatorship they seem to promise, at the expense of people's rights?
I am afraid that I cannot agree with you.
ReplyDeleteThe opt-out seems quite defensible to me and lacks the symbolism to which you allude.
Now, I have to admit that I have not been following the developments in the rhetoric of the UK opposition in regard to these issues. I long ago decided that the Conservative Party, like the Cheney republicans in the U.S.,have abandoned sanity in regard to these matters.
Notwithstanding this opt-out, the UK continues to subscribe to the ECHR and to honour decisions of the court, even if not always with good grace.
It is not prepared to give the EU jurisdiction in this area, and the opt-out is directed to restricting the, constantly denied but apparently inexorable, competence-creep which is one of the reasons that citizens throughout the Union are with-holding their enthusiasm for "the project".
You have analyzed the motives of those who obtained this opt-out in derogatory terms, which may or may not have a basis in reality. What of the motives of those on the other side of the argument ?
In the Irish referendum, the inclusion of the Charter, despite its almost complete lack of any practical effect, is presented as some sort of giant break-through which will ipso facto make life hereafter a bowl of cherries with no injustice any more for anyone.
I suggest that it was the prospect of such mis-use that motivated the inclusion of the Charter in the intergovernmental Treaty of Lisbon.
Fergus,
ReplyDeleteAs far as I understand, the British political parties fear the inclusion of even oblique references to principles evoking rights for workers, social rights etc. for their own people.
Since the EU Charter does not add new rights, its significance is largely symbolic. Thus rejection is mainly symbolic, too.
The Charter presents the rights and principles in a modern and systematic manner, which makes them more accessible.
As often, one can find hyped statements about various acts, like the EU Charter. Your observation is correct.
I surmise that hyping the Charter has to do with the dearth of Lisbon Treaty reforms, which directly affect EU citizens.
In addition to the Charter, there is the citizens' initiative.
Most of the Lisbon Treaty has to do with institutional matters, which influence citizens indirectly, if the institutions work more properly and produce better outcomes.
But improved parliamentary input in the legislative process (the widening use of the ordinary legislative procedure) is not easily 'sold' to citizens.
The Polish voters had the good sense to throw the Kaczynski government out, but in the British political establishment the lack of constructive EU engagement seems to have become a rare commodity, indeed.
Fergus,
ReplyDeleteSorry for the last sentence, about Britain. Should read: Constructive EU engagement seems to have become a rare commodity, indeed.