Charter of Fundamental Rights

The EU Charter of Fundamental Rights is part of the EU Treaties. It took effect in 2009 in the Lisbon Treaty. It has been somewhat controversial. It protects a broader range of human rights than the European Convention on Human Rights.

The main purpose of incorporating the Charter into the EU Treaty was to require EU Institutions to comply with human rights obligations. It applies to member states when implementing derogating from or acting within the scope of EU Law. The EU Courts of Justice can hear actions against the institutions and the states for breach of rights. If a member state is in serious breach of its rights, its voting rights in the Council may be suspended.

As the Charter is part of EU Law, the courts, both European and domestic,  must if they find a breach, disapply domestic legislation. This is a more direct mechanism of enforcement and that applicable under the Human Rights Act, which makes provision for the European Convention on Human Rights in the United Kingdom. Under that legislation, there is, at most a declaration of incompatibility.

Principles of Charter

Article 2 of the Treaty on the Functioning of the European Union declares provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities.

These values are declared to be common to the member states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men should prevail.

The EU Charter of Fundamental Rights contains more progressive economic and social rights than the ECHR or most domestic Constitutions. Many of the Charter’s provisions are broad statements of principle and are not directly enforceable.

Scope of Charter and UK Objections

There was a concern when the Charter of Rights was being drafted that it might create new rights or extend the jurisdiction of the European Court of Justice. The UK secured a protocol which seeks the limit the effect of the Charter for the UK as regards social rights.

The UK’s position is that the Charter does not create new rights or principles. Protocol 30 seeks to explain scope thereof. The protocol was required to the UK to clarify certain aspects of its application, which purported to limit its application. However, the Court of Justice of the EU subsequently confirmed that the protocol does not affect the applicability of the Charter in the United Kingdom.

The UK Courts have given effect to the Charter in a number of cases and have disapplied domestic UK legislation, where it was in conflict with directly effective provisions of the Charter. Following a declaration of incompatibility, Parliament may fast-track amendments to legislation.

A right of compensation is allowed as of right, for breaches of the Charter. A right of damages is discretionary only for breaches of the European Convention on Human Rights.

The House of Commons European Scrutiny Committee sought urgent clarification of the application to the Charter in the UK and called upon the UK Government to intervene in proceedings in the Court of Justice of the European Union in order to limit its scope. The UK government in response confirmed that it would intervene in cases where it believed it to be necessary what rejected the proposal that primary UK legislation disapplies the Charter itself.

The UK Government published a report in response which highlighted the divergent views as to where competence should lie and in the EU and UK in relation to the protection of human rights. It acknowledges that the Charter has prospectively wider scope of application than the Convention (ECHR).

A British Bill of Rights

The UK Government has  raised concerns as to the manner in which human rights are applied in the United Kingdom particularly under the Convention on Human Rights and laterally under the Charter.  The European Convention on Human Rights is binding on the UK as a matter of International Law and is given effect in domestic law by the Human Rights Act.

The 2016 Queen’s speech proposed a British Bill of Rights. The government was due to publish a Consultation Paper and a British Bill of Rights “Proposals for restoring common sense and preventing abuse of the system” making clear where the balance should lie between the European and UK jurisdiction and courts.

The proposal has been largely supervened by Brexit.  Brexit would mean that the Charter is no longer applicable in the UK. However, the European Convention on Human Rights which is separate from the EU is based on the older Council of Europe remains in place and continues to be binding on the UK.

The UK government has  indicated  since Brexit, that it does not propose to that the UK withdraw from the Convention. It may be that withdrawal from the EU would mean the Council of Europe and the European Convention on Human Rights, would acquire a more prominent role.

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