Written Evidence from Michael Pinto-Duschinsky, Senior consultant on constitutional affairs to Policy Exchange
January 2014
1. The implementation of the EU Charter of Fundamental Rights raises fundamental and disturbing questions. These questions are only partly about the enumerated rights themselves. The main problem is that adjudication of these rights by an international court - the Court of Justice of the European Union at Luxembourg - seems bound to extend the powers of that court greatly and without any obvious recourse by the people and elected Parliament of the United Kingdom.
The main objective of this memorandum is to explore how the UK needs to negotiate if it is to safeguard the sovereignty of Parliament and UK democracy while remaining a member state of the EU.
The main problem is not with human rights themselves but with the system of jurisdiction over them
2. The author of this memorandum supports the notion of "human rights" and the noble ideals often incorporated in them. His report, Bringing Rights Back Home: Making human rights compatible with parliamentary democracy in the UK, published in 2011 by Policy Exchange, made clear that the core rights embodied in the European Convention on Human Rights and then incorporated into UK law in 1998 were not in question. (Pinto-Duschinsky, 2011, 59) Were the UK to withdraw from the jurisdiction of the European Court of Human Rights in Strasbourg, those rights should continue to be incorporated in British law.
However, advocacy of rights has been misused as a way to create undemocratic, supra-national institutions.
3. The Charter of Fundamental Rights is more extensive than the European Convention on Human Rights. It controversially includes social and economic rights, whose implementation would be costly and would unduly constrain the budgetary options and policies of elected British governments. Moreover, given its numerous sections and the inclusion of very vague wording in some places and specific commitments in others, the full text of the Charter seems bound to involve problems that have not yet become clear. For this reason, the author supports the view that it would have been advisable for the UK to have withheld its support for giving the Charter legal status under the terms of the Lisbon Treaty. With the European Convention already in existence and with its key articles incorporated into UK law, there was no need for a further European bill of rights.
Nevertheless, the contents of the Charter are not the only or the main reasons for concern.
Unacceptable complexity and lack of clarity of jurisdiction over human rights in the European Union
4. The first reason for criticism of the system of rights implementation in the UK following the Lisbon Treaty is its notable complexity and lack of clarity. This makes it fertile ground for litigators but not for justice or for accountability. The advice to purchasers of financial investments not to buy any that are too complex to understand applies with even greater force to constitutional "products" such as those in the Lisbon Treaty.
The legal force given to the Charter by the Lisbon Treaty means that there are now three separate and therefore competing constitutional courts for the UK: the Supreme Court in London, the European Court of Human Rights in Strasbourg, and now the Court of Justice of the European Union in Luxembourg with inevitably increased scope resulting from its right since 2009 to interpret vaguely worded provisions of the Charter.
As if this were not enough, there are at least three added wrinkles.
First, according to the Lisbon Treaty, the EU itself is to become a federal "member" of the European Court of Human Rights under terms yet to be agreed by the existing member states of the Council of Europe.
Second, the implications of what has been called an "opt-out" of the Charter by the UK are also unclear.
Third, the Charter includes both "rights" and "principles", which are apparently different things since, as reported by Kieron Beal QC and Tom Hickman of Blackstone Chambers, "Charter rights" are to be respected, while "Charter principles" are to be observed. (Beal and Hickman, 2011, paragraph 27) While the distinction between being respected and being observed may be clear to lawyers, it is not obviously apparent to others. Moreover, Beal and Hickman acknowledge that drawing a clear dividing line between "rights" and "principles" may be difficult, not least because in some cases an article of the Charter may contain both elements of a "right" and a "principle" (Paragraph 28)
In the words of a leading legal academic, Sionaidh Douglas-Scott,
"the most appropriate conclusion to draw on the Lisbon Treaty human rights provisions, and recent Court of Justice [of the European Union] case law might be that it is complexity, rather than human rights protection itself, which has increased most." (Douglas-Scott, 2011, 682)
In another recent publication, Douglas-Scott suggests that the confusion of legal competences is so great that it requires metaphors and even pictorial illustrations to attempt to explain it.
"Within the EU, there exists a pluralism of orders, consisting of state legal orders but also of the EU itself, in which no order may be identified as ultimately controlling the legal space overall, whatever that legal order’s insiders, such as judges and lawyers, may claim from an internal point of view. In this context, the courts have become particularly important, in that they are often seized with boundary conflicts.. . . .in which both courts have on occasions claimed for themselves the role of the ultimate guardian of fundamental rights. It is impossible to categorize such complex legal landscapes by a neat, self-contained conception of law. . .
One recent theorist has characterized it as ‘a rugged mountainous terrain, and another describes its primary characteristics as ‘imprecision, uncertainty, and instability or...the fuzzy and the soft’.9
Rather than interpreting the legal landscape as a rugged mountainous terrain, I believe it may be more usefully captured by the image of the Carina Nebula . . . The Carina Nebula is a vast complex of dust, stars, gas, forces, and energy ... " (Douglas-Scott, 2012, 85-86).
It is reasonable to comment that no one attempting to sell a pension scheme, a motor car or any other product would dream of answering the question of how it was structured and what its risks were by explaining that its primary characteristics were "imprecision, uncertainty and instability" or that it was like a vast complex of gas. It is unreasonable to expect UK electors to buy into such a mess when it comes to our constitution.
Three questionable arguments used to disguise loss of national sovereignty stemming from the recently-created legal status of the Fundamental Charter of Human Rights of the European Union
5. Whatever the aim of the authors of the Lisbon Treaty, all the "dust", "gas", and fuzziness of the new system has a simple function - to undermine national sovereignty in a manner sufficiently confused as to escape public understanding and popular concern.
Three dubious arguments have been used to assuage objections and to calm fears. It is suggested that
- the Charter does no more than set out in a single document rights already existing within previously agreed EU treaties,
- Charter rights apply only to matters within the existing competence of the EU (for example, the single market),
- the UK gained an "opt out" from the Charter.
6. First, there is the claim that the Charter is no more than an exercise in gathering together already existing European Union powers in a convenient document. As reported by Vaughne Miller of the House of Commons Library,
"Article 6(1) of the Treaty on European Union, as amended by the Lisbon Treaty specifies that the Charter “shall not extend in any way the competences of the Union as defined in the Treaties”. A Declaration annexed to the Final Act of the Intergovernmental Conference (IGC) which adopted the Lisbon Treaty specifies the scope of application of the Charter and its relationship with the European Convention on Human Rights. The Declaration confirms Article 51 of the Charter itself, emphasising that it does “not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties”." (Miller, 2013, 3)
Miller recalls that the then Foreign Secretary, David Miliband, "assured the ESC on 16 October 2007 that the Charter would not “extend the reach of European courts into British law”, that it “only records existing rights under domestic and international law” and does not create new ones." (Miller, 2013, 5-6)
Yet, reliance cannot be placed upon such assurances especially in light of the more cautionary words of the then Foreign and Commonwealth Office Legal Adviser. He insisted "on a holistic approach rather than a simple “will it or won’t it” question in the abstract." Such language should raise an immediate alarm since the matter is by no means "abstract" and requires a straightforward reply.
If nothing had changed as a consequence of giving legal force to the Charter, why were the proponents of the Lisbon Treaty so keen to give it this status? If the Charter was meant to have no more than symbolic significance, there would have been no point in the European Commission's stating that "The Charter of Fundamental Rights will offer Europeans guarantees with the same legal status as the treaties themselves." (Miller, 2013, 5) And why was the famous assurance given by the Minister for Europe in 2000 that the Charter would have no more legal effect than the comic Beano subsequently abandoned? Beal and Hickman, 2011, paragraph 1)
It stands to reason that the introduction into the European Union treaties of such broadly worded rights with a legal force to be decided by the Luxembourg judges of the Court of Justice of the European Union must ultimately expand the jurisprudence of that court.
To make matters worse, decisions of the Luxembourg Court are even more destructive of national sovereignty than those of the European Court of Human Rights for reasons compellingly set out by Beal and Hickman, who give six reasons why litigation under European human rights laws are "undoubtedly the 'sledge- hammer' " in the practitioner’s “toolkit”." (Paragraph 52.)
7. A second argument is that the Charter is not to be feared since it will apply only to matters that already fall under the competence of the European Union. Even if this view is accepted, a bill of rights such as the Charter is likely to be used by the Luxembourg judges to extend the reach of European Union jurisdiction well beyond the straightforward meaning of commercial provisions in the European Union treaties.
This is illustrated by the experience of the United States. In the USA, "interstate commerce" is a federal responsibility under the Constitution. The Interstate Commerce Clause was used in a good cause during the epic battle for civil rights as a lever to achieve the racial integration of motels and for related purposes only indirectly related to interstate commerce.
However, the use of a commerce clause by the top federal court to overrule state legislatures within the USA may be used also for more controversial purposes. Concerning the European Union, the adoption of the Charter encourages a broadening of the scope of decisions by the judges in Luxembourg. That court decided on grounds of gender equality under the terms of the Charter that insurance company can no longer base motor insurance premiums on commercial considerations. Irrespective of the fact that male drivers are more accident prone than female ones, premiums cannot reflect this. The judgement is an example is the potential for mission creep under the terms of the Charter.
8. Third, British fears of the effects of the Charter were assuaged by the so-called "opt out" negotiated by the then UK Labour Government as a condition of its agreement to the Lisbon Treaty. Yet it turns out that the supposed "opt out" was no such thing but merely "a clarification of its effects in the UK." (Miller, 2013, 6)
9. It is in the nature of justiciable bills of rights to remove powers from legislatures and executives and to transfer them to judges. The loss of democratic accountability inherent in systems of rights may be justified if they have been introduced by a process of full public debate and preferably by a super-majority, if they are sparing in the rights selected, and if they are subject to legislative checks and balances. These provisos apply to rights subject to adjudication by national supreme courts.
Where bills of rights are subject to adjudication by international courts (a new situation), no credible form of democratic accountability or of checks and balances has yet been devised.
10. Apart from what David Heathcoat-Amory called the "wafer-thin" character of the so-called UK "opt out" from the Charter and the highly questionable nature of the assurances that the Charter has not added to the European Union powers, two additional causes for concern are the federalist inclinations of the Luxembourg court and of the new EU Fundamental Rights Agency.
How to tackle the problem of loss of UK sovereignty stemming from the legal incorporation of the Charter of Fundamental Rights in the Lisbon Treaty
11. Before a remedial strategy can be formulated, it is necessary acknowledge that a serious problem exists. Ever more complex legal reasoning, philosophising, and citations of cases should not be permitted to obfuscate.
Justice Minister Chris Grayling was right to warn in November 2013
"The problem with vaguely worded international treaties, like the Charter of Fundamental Rights is that they put huge power in the hands of European courts. They have freedom to challenge our laws, and our parliament is powerless to stop them unless the Treaties themselves are rewritten.
We now face a fundamental question about who governs Britain. And the two European courts seem to have complete freedom to decide where and when they can take decisions." (Grayling, 2013)
12. For those who support the idea of a United States of Europe and for those who favour a UK exit from the European Union, there is no problem. But for those who support continued UK membership of the EU together with maintaining the Westminster Model of parliamentary democracy, the issues are basic and troubling.
The main recommendation of this memorandum is that the primacy of the UK Supreme Court in determining the application of "rights"must be asserted and that such determination needs to be subject to democratic override by the House of Commons. In other words, there needs to be a proper "opt-out" for the UK from a legal commitment to the Charter of Fundamental rights, though the UK should continue to subscribe on a non-binding basis to its ideals.
13. The precise ways in which the supremacy of the UK Supreme Court is to be achieved requires careful study and any effective proposals will undoubtedly be resisted by the Brussels institutions. What is needed now is a robust declaration by the UK Government that the supremacy of the UK Supreme Court in matters concerning the Charter of Fundamental Rights will be a primary and essential feature of any renegotiation of the UK's relationship with the European Union. If the junior partner in the Government is unprepared to agree to this, by the Conservatives, who are the senior partner, must state this on its own behalf.
Suggestions by politicians such as Foreign Minister Sikorski of Poland that the content of the UK's renegotiations will be limited to relatively minor matters such as the details of fishing rights are mischievous and wide of the mark.
14. Implicit in this position is that developments concerning European Union affairs cannot be a one-way street toward a federal United States of Europe. The "ever closer" union envisaged in the treaties must be seen not as a commitment to an eventual federation but to ever closer friendship. There is a legitimate and realistic view that this is more likely to be achieved by respecting national sovereignty and by safeguarding and promoting democratic institutions in the individual member countries rather than by an attempt to create a dominant super-state based in Brussels.
14. Thankfully, increasing concerns have been expressed by senior politicians, judges and commentators in the UK about the expansive interpretations of international courts of vaguely worded bills of rights the state by the Minister of Justice cited above in Paragraph 11. . These criticisms have been directed mainly at the European Court of Human Rights in Strasbourg but apply with even greater force to the Luxembourg Court. Policy Exchange has repeatedly raised the alarm.
It needs to be stressed that criticism of the Strasbourg and Luxembourg courts is not based only on their jurisprudence. The core issue is that these courts (unlike the UK Supreme Court) are unaccountable and are simply inconsistent with elective democracy.
Under the Westminster Model of democracy, decisions of judges of the UK Supreme Court may not invalidate legislation. If the Supreme Court finds that a law is inconsistent with rights set out in the Human Rights Act of 1998, it may issue a "declaration of incompatibility" but it is then for elected legislators to decide whether or not to change to law in question in response to the Supreme Court. If the legislature does not wish to do so, it is the legislature that prevails. There is a similar system in Canada. The problem is that there is no similar safeguard against judicial lawmaking by the Strasbourg and Luxembourg courts.
Concerning the European Union, it may credibly be argued that the Westminster Parliament agreed to give a power of judgement to the court in Luxembourg about the mainly commercial matters involved in creating a single economic market. However, this limited handover did not stretch to giving the final say to this court on the meaning of unbounded terms such as "human dignity" or on what constitutes a "high level" of protection in various fields or "reasonable" action by public authorities in others.
The effect of such imprecise wording is to remove power from elected national governments and to make it a plaything of lawyers in cases before the Luxembourg judges. Without recourse by the legislature, this is undemocratic.
15. Under the terms of the Lisbon Treaty, the European Union is itself to accede to the European Convention on Human Rights as a non-state party. The precise conditions of accession are under negotiation and are subject to agreement by the UK. It seems reasonable to argue that the UK should not agree to this accession until the outstanding issues relating to the supremacy of the UK Supreme Court over matters relating to the EU Charter and the equally important matter of a UK democratic override of decisions by the Strasbourg Court have been resolved.
16. While this memorandum does not set out to resolve the highly complex legal technicalities involved in negotiating a meaningful and robust UK opt-out of the EU Charter of Fundamental Rights, a tentative suggestion is put forward for discussion. Where UK litigants bring forward cases to the Luxembourg court relating to matters within the competence of the EU, a UK opt-out should mean that such cases should be argued without reference to the Charter and entirely on the basis of normal EU law and. Moreover, the UK courts and UK governments should be free from any obligation to follow any Luxembourg decisions made on the basis of Charter rights. In the case of driving insurance premiums, this would mean that the ban on differentiation of premiums for men and women would not apply in the UK since it was based on an interpretation of gender equality provisions in the Charter.
17. A motivation for many senior UK officials to resist any attempt to disentangle the UK from aspects of the system of European Union Law is that they have become used to it and feel that disentanglement would be a complex task. The protection of UK democracy is too important to allow this to be a significant consideration. "Judicial creep" and progressive loss of competencies by UK national governments have created a simmering crisis.
18. This memorandum is submitted on behalf of Policy Exchange.
Biographical note:
Dr Michael Pinto-Duschinsky, senior adviser on constitutional affairs to Policy Exchange, was a member of the UK Commission on a Bill of Rights, a consultant to the Policy Planning Staff of the Foreign & Commonwealth Office on policy concerning democracy promotion, and to the policy branch of the Canadian International Development Agency on human rights and democratic development. He has advised the Council of Europe, European Union Phare Programme, Commonwealth Secretariat, United Nations, World Bank and recently the Organisation for Economic Cooperation and Development. He was a founder governor of the Westminster Foundation for Democracy and a director of the international Foundation for electoral Systems. He is president of the International Political Science Association's research committee on political finance and political corruption.
References:
Kieron Beal and Tom Hickman (2011). "Beano No More: the EU Charter After Lisbon." Judicial Review, 113-141.
Sionaidh Douglas-Scott (2011). "The European Union and Human Rights after the Treaty of Lisbon." Human rights Law Review 11 (4) 645-82.
Sionaidh Douglas-Scott (2012). "Justice and Pluralism in the EU." Current Legal Problems (65) 83–118.
Chris Grayling (2013). "It's time to reign in the powers of international courts." London Evening Standard, 13 November.
Vaughne Miller (2013). Effects of the EU Charter of Rights in the UK. House of Commons Library, Standard Note SN/IA/6765, 26 November.
Michael Pinto-Duschinsky (2011). Bringing Rights Back Home: Making human rights compatible with parliamentary democracy in the UK. Policy Exchange.