The application of the EU Charter of Fundamental Rights in the UK: a state of confusion - European Scrutiny Committee Contents

2  The negotiation of the Charter—evidence of Lord Goldsmith

The need for a Charter

21. To assess the impact of the Charter we wanted to understand how it came about. Lord Goldsmith provided helpful evidence on this. He also attached to his written evidence a speech he gave to the British Institute of International and Comparative Law in 2008 (the BIICL speech)[22] and an article he wrote for the Common Market Law Review in 2001 (the CMLR article).[23] He was appointed by the then Prime Minister, Tony Blair, to be the UK representative to the convention drafting the Charter in 1999 and 2000. He was actively involved in the 29 negotiation meetings which took place over nine months. He was subsequently appointed Attorney General in June 2001 and remained in office until June 2007. In that capacity he was also involved with matters concerning the Charter, including the agreement of what became Protocol 30. We set out his evidence in some detail in this chapter for the important record it provides of the negotiation of the Charter and of Protocol 30.

22. In his CMLR article, Lord Goldsmith explained that the ECJ began in the late sixties to include fundamental rights as general principles of EU law in its judgments as a result of a human rights gap in the Community Treaties:

    But as the competence and the law-making of the Communities grew, so did the demand for an explicit recognition of people affected by the Communities' laws. The Communities were not, it should be recalled, parties to the ECHR, unlike Member States who in due course were all to become parties. So the Communities were not directly bound by the ECHR's provisions. However, did not the powers of the Community's legislators and administrators need to be constrained by respect for fundamental rights in the same way as legislators and administrators of Member States were constrained?[24]

23. This concern was shared by several constitutional courts in Member States, notably the German Constitutional Court. But it was not until the 1992 Maastricht Treaty that the EU Treaties placed an obligation on the EU to:

    respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.[25]

24. Although it had long been established that fundamental rights applied as general principles of EU law, this "did not solve the problem of identifying what those fundamental rights were. EU citizens remained without a clear, accessible catalogue of those fundamental freedoms which the Union Institutions are to respect",[26] according to Lord Goldsmith. As the European Council made clear when it met in Cologne in June 1999, it was to meet the objective of making rights more visible that the Charter was conceived (emphasis added):

    Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy. The obligation of the Union to respect fundamental rights has been confirmed and defined by the jurisprudence of the European Court of Justice. There appears to be a need, at the present stage of the Union's development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union's citizens.[27]

25. The European Council concluded that the scope of the Charter should include economic and social rights as well as civil and political rights:

    The European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union's citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.[28]

26. It recommended that the Charter should be drafted by a convention composed of Member State, Commission, European Parliament and national parliament representatives, and should be presented in advance of the European Council meeting in December 2000.

A political declaration, not a legally binding instrument

27. The negotiators in the Convention were drafting a political declaration, rather than the legally binding instrument the Charter eventually became. This was an important distinction: the drafting style for a declaration of rights was different. Lord Goldsmith explained this clearly in the CMLR article, written soon after the Nice European Summit had "solemnly proclaimed", which is to say as a political rather than a legal commitment, the Charter in December 2000:

    My own view is that the political declaration route was the right approach. There are two reasons for that. First, it is easier in a political declaration to show a clear statement of values which people can understand without the quali?cations and exceptions necessary in a written law. The second reason is that in the end I believe the Charter lacks the precision of language necessary to allow it legal force. President Herzog wanted us to draft so that the Charter could be integrated into the Treaties if that was subsequently decided. In this respect I believe we have not succeeded. Even with the helpful commentary produced by the Presidium, the Charter will lack the precision necessary for a law. So whilst it should be acceptable and valuable as a political statement, my own view is that this text is not suitable for incorporation into the Treaties whether directly or by cross-reference.[29]

28. We asked Lord Goldsmith whether he would have approached the negotiations differently if the goal had been a legally binding set of rights. He replied:

    I suppose I would have said, 'If you are going to do this, you need to draft a longer document.' In a sense, that is what I did. People will not accept long documents for bills of rights. What I was doing, therefore, was to say, 'Let's have a general statement of right, but let's have a part B that is all the detail.' That is what then became the explanations. I might have found it easier to argue some of these points if everyone had known that it was going to be legally binding, but I am not sure it would actually, at the end of the day, have made much difference.[30]

The UK Government's policy in the Convention negotiations

29. Lord Goldsmith explained that the UK Government's objectives in the Charter Convention negotiations were threefold:

i.  it agreed with the need to make fundamental rights applied by the Court of Justice more visible, principally to act as a constraint on the EU institutions should it be necessary;

ii.  but in cataloguing existing rights the Charter should be careful not to create new rights;[31] and

iii.  it should not make economic and social rights justiciable where they are not already justiciable.[32]

Objective 1: making existing fundamental rights more visible

30. Lord Goldsmith put the first objective in the following context:

    The political framework in which this was happening was that there was a strong call for an EU-wide statement of fundamental rights for several reasons: one, some people wanted it just because they wanted to see a statement of fundamental rights at the European Union level. Other people believed it was important—and I shared this view—that the EU institutions, and member states therefore when they were implementing Union law, should be constrained in what they did by exactly the same sorts of fundamental principles regarding the protection of individuals that apply to national governments. [33]

Objective 2: not creating new rights

31. The second objective he described as follows:

    So, essentially, the idea was that the most important single body of law setting out what the prohibitions were that generally apply to member states and ought to apply to the EU institutions was the European Convention on Human Rights. There were other areas, too—some of them in EU law specifically and others in the general principles of international law. We, as a Convention, determined which of those we thought were appropriate to be described as visible. The point I am trying to emphasise is that none of them were rights that we created; they were all existing rights. There was some discussion about minting new rights, but we moved quite quickly to the position that we were not going to mint new rights; we were going to make use of the existing rights. [34]

32. However, we note that the Charter's official Explanations do not point to any pre-existing legal text containing the right under Article 13 of the Charter, on the freedom of the arts and sciences. Instead, they say this right was "deduced primarily" from the right to freedom of thought and expression by those who drafted the Charter.

ECHR rights

33. The Convention agreed that the Charter should cover the same rights as the ECHR, to which, at that time, the EU could not accede, to ensure that EU citizens received the same protection from infringements of human rights by the EU institutions as they did from their governments, all of which had ratified the ECHR. However, a major topic of debate within the Convention was how to reflect the relationship with the ECHR.

34. Lord Goldsmith explained that he was particularly concerned about this issue and argued strenuously against taking any step which could lead to confusion between rights in the ECHR and rights expressed in the Charter where they covered the same grounds.[35] His view was not universally held. Many members of the Convention wanted to bring certain rights "up to date". He commented that it was, in any event, impossible to assert that the content of the ECHR is precisely as it was when it was promulgated in 1950, given that it is a "living instrument" according to the jurisprudence of the ECtHR, and has to be interpreted in light of present day conditions to be practical and effective. So, for example, the change of "correspondence" in Article 8 of the ECHR to "communications" in Article 7 of the Charter is solely to take account of "developments in technology", as clearly set out in the Explanations.

35. Lord Goldsmith thought that the combination of Article 52(3) of the Charter (one of its "horizontal Articles")[36], the official Explanations of the Charter and the later developments including Protocol 30 have the effect of tying back those rights to the ECHR. Article 52(3), which the UK proposed, in particular meant that any perceived risk of confusion was not a real risk. He noted that the ECJ has already respected Article 52(3) in its decisions.[37]

36. We asked Lord Goldsmith whether he thought the last sentence of Article 52(3)—"This provision shall not prevent Union law providing more extensive protection [than the ECHR]"—was a positive development, to which he replied:

    That last sentence was obviously deliberate, which is to say that the Charter established a floor, not a ceiling. It is true, with respect, so far as the ECHR is concerned. I believe that this country provides in a number of areas that are covered by the ECHR more extensive protections than the ECHR provides. I regard that as a good thing. But there is nothing inconsistent in saying, "You must be bound by these provisions but you can have more extensive protections if you want.[38]

37. The Explanations, Lord Goldsmith continued, were a further important mechanism to ensure that the ECHR rights in the Charter are interpreted consistently with the ECHR itself: they "tie back" each right to the ECHR itself.[39]

Non-EU rights

38. Some of the Articles of the Charter are not derived from pre-existing EU rights. For example, Article 3(2)(b), which prohibits eugenic practices, is derived from the Rome Statute of the International Criminal Court. We asked Lord Goldsmith what consideration had been given to the effect of placing non-EU obligations such as this in a Charter of EU fundamental rights. He explained that the Convention agreed that certain prohibitions—such as this one—that had been accepted as applicable in international law, and which applied to national States in any event, should be reflected in the Charter.[40] He added that Roman Herzog, a former president of the German Constitutional Court and subsequently President of Germany, had strong views on some of the basic civil rights that should be included in the Charter, which also had an influence on the negotiations, but, most importantly, none of the rights in the Charter was new.[41] Another example of Charter rights sourced from a non-EU legal instrument are the rights of the child under Article 24. The Charter Explanations say that this Article is based on the New York Convention on the Rights of the Child.

39. We note that in at least one instance a Charter provision draws on a non-EU international obligation to which the UK is not a party. This is the provision on protection in the event of unjustified dismissal under Article 30 of the Charter. The Charter Explanations say that this Article draws in part on the revised European Social Charter—a 1996 Council of Europe treaty that the UK has not ratified.


40. The third objective was more contentious according to Lord Goldsmith:

    in Title 4 they are called solidarity rights, but they are really social and economic rights. That was one of the biggest issues for the United Kingdom. A lot of countries want to see social and economic rights made justiciable. It is a very live issue in terms of human rights. The social charter, of course, was very much in existence at the time.

    The UK did not want to go further than we were already at that stage, and it was quite a neuralgic issue.[42]

Principles, not rights

41. Lord Goldsmith explained that the compromise agreed was to distinguish in the Charter between rights and principles, the latter of which were not legally enforceable unless through legislation. This distinction is reflected in Article 52(5) of the Charter, a further horizontal Article:

    The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

42. We found this provision difficult to interpret and so we asked Lord Goldsmith for his interpretation. He replied that economic and social rights in the Charter were not stand-alone rights: to be justiciable they needed to be implemented either at EU or Member State level; Article 1(2) of Protocol 30 helped clarify this:

    What this was intended to do was to say there are, in this Charter, things that are not justiciable rights so let us call them principles, and those inform the way that the EU may legislate. What the paragraph is trying to do is to say that they are not justiciable as they stand, but they may be implemented by legislative and executive acts. When it comes to interpreting the acts that purport to implement them, then you can have a look at the general principles.

    The end result is that it is, in fact, expressed more happily in the Protocol by Article 1(2) simply saying that they are only justiciable rights to the extent that they are created in national law. What we added in 52(5) [...] means you can only have regard to the Charter in this area—the area of principles—when you are looking to see what the legislative act purporting to make that principle into binding law is, when you are interpreting that, or when you are ruling on its legality.

    In other words, if you have a principle in relation to minimum wage, that does not mean there is a minimum wage. But once states implement a minimum wage or if the EU were to implement a minimum wage, when it comes to interpreting what the legislation means when it says "minimum wage", you can look at the principles in the provisions of the Charter to understand it, to interpret it and also to see whether it is lawful. That was the intention. Protocol Article 1(2) actually has a narrower effect as far as the UK is concerned because that is saying "in that field". If it is not implemented in the UK, it is not justiciable.[43]


43. There were, however, tensions within the Convention between the many who wanted a broader statement of rights, such as in a Bill of Rights, and those, like the UK, who wanted a narrow statement of rights that could be tied back to their source. These tensions were resolved by a compromise suggested by Lord Goldsmith, which was to ensure that each right or principle could be traced back to its source in a commentary accompanying the Charter. The commentary agreed in the Convention later became the Explanations.[44] He explained his approach as follows:

    many people wanted a broadly stated Charter of Rights. I have described it occasionally as a sort of poetic statement, in the way that constitutions often are. Everyone is entitled to liberty, freedom, the pursuit of happiness and so forth.

    From a legal point of view, it is very nice to have that, but it is very dangerous to have that. The risk is that you do not know what it is that you have created, because a court can interpret that in a particular way. My proposed solution to that was to have the Charter in two parts. Originally I called it part A and part B. Part A would have this nice statement of rights, as indeed the ECHR has itself, because it expresses things in a short, clear, poetic way, but there would be a part B that told you what the detail was. The part B became the explanations, which tied the individual statement of rights back to the underlying right that it was, as it were, reflecting—was making more visible.[45]

44. It was clear from Lord Goldsmith's evidence that the negotiations on the commentary were difficult:

    One of the difficulties in getting everyone to sign up to the explanations was that the secretariat for the Convention did not want to ask—I may make a revelation here— member states to agree the explanations, no doubt because they thought it would be a very complicated process. It was complicated enough as it was. It was not a very popular thing that I had done, to create this second part. We did not have that degree of consensus on it.[46]

45. Lord Goldsmith described the Explanations as being of primary importance—"essential gloss"[47]—in terms of understanding the origin and scope of the rights set out in the Charter. They are (based on wording he had proposed), in their own terms, "a valuable tool of interpretation intended to clarify the provisions of the Charter."[48] He continued that, critically, Article 52(7) of the Charter provides that:

    [t]he explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.

From a political declaration to a legally binding instrument

46. When in 2004 in the course of the Constitutional Treaty negotiations it was decided that the Charter was to become legally binding, the status of the Explanations and content of the horizontal Articles were amended to further constrain the Charter's scope and application. This was largely at the UK's instigation. In his BIICL speech Lord Goldsmith made clear how important a priority this was:

    As noted above, the Charter as originally drafted was a political declaration, lacking the precision of language necessary to allow it legal force. It is this, rather than any concerns over substance, it was been [sic] at the heart of the British Government concerns about enhancing its status.

47. In evidence to us he explained:

    When it came to making it legally binding, there were adjustments made to the horizontal articles and to the explanations. I do not think there were any changes made to the substantive articles themselves. I was not personally involved in that, but the horizontal articles and the explanations were changed in order to make it more fit to be part of a treaty. Originally it was going to be the constitution, and then it came into Lisbon.[49]

48. Lord Goldsmith believed the change in status of the Explanations was particularly important:

    The status of the explanations has changed from the commentary that was specifically described as non-binding to the position we now have in Article 6 following Lisbon and in Protocol 30. The commentary has been given a very specific legal status, which is even stronger so far as the UK is concerned because of Protocol 30. But it is still a strong legal status as far as other member states are concerned. That was a very important part of the negotiations—the difficult negotiations—that took place at the time of the negotiation on the draft constitution.[50]

49. The Treaty of Lisbon also reinforced previous iterations of Article 6 of the Treaty on European Union (TEU) by incorporating the need to have regard to the Explanations and to apply horizontal Articles.[51]

50. When we asked Lord Goldsmith if he thought that the danger of the lack of precision in the language of the 2000 version of the Charter had been overcome by the amendments he outlined above, he thought, broadly speaking, it had.[52]

Protocol 30

51. Protocol 30 came as a late development, on the cusp of a change in Prime Minister.[53] Lord Goldsmith was involved in the negotiation of it.[54] We suggested to him that Protocol 30 was intended to provide a comfort more than a safeguard. He agreed, saying:

    I have tried to describe the Protocol in the address I gave to the British Institute of International and Comparative Law: "In brief, the Charter Protocol is not an opt-out but a guarantee. An explicit confirmation that in relation to the UK and UK law, the limitations and constraints on what it is and what it will do will be strictly observed." Was it necessary? No, it was not necessary, so long as the Charter was interpreted in the right way. I understand people want additional protections—bootstraps—to make sure there are safeguards. That is the flavour.[55]

Overall assessment of the Charter

52. Lord Goldsmith said he was no apologist for the Charter: he believed it was necessary to protect the fundamental rights of EU citizens from abuse of power by the EU institutions.[56] We asked Lord Goldsmith to say whether a statement of the previous Government that it "would not accept a treaty that allows the Charter of Fundamental Rights to change UK law in any way" was still tenable: he thought it was.[57]

22   "The Charter of Fundamental Rights", Speech to BIICL, 15 January 2008, the Rt Hon Lord Goldsmith QC (ý) Back

23   Common Market Law Review, 38: 1201-1216, 2001 ( Back

24   CMLR Article, page 1202 Back

25   Article 6(2) TEU Back

26   BIIICL speech, page 8 Back

27   Annex IV of the Cologne European Council Conclusions, 3 and 4 June 1999 Back

28   As above. Back

29   Q75; CMLR article page 1215 Back

30   Q74 Back

31   Q70 Back

32   Q70 Back

33   Q62 Back

34   Qq68, 70 Back

35   Lord Goldsmith QC (CFR0009) para 13 ff Back

36   The horizontal Articles are Articles 51-54 of the Charter; they define the scope and aspects of the application of the Charter. Back

37   Aklagaren v Hans Akerberg Fransson (para 44); DEB Deutsche Energiehandels und Beratungsgesellschaft mbH v Bundesrepublik Deutschland C-279/09 (para 35); and the Advocate General's Opinion in Secretary for the Home Department v ME and others, C-411/10 (paras 145-148) Back

38   Q84 Back

39   Lord Goldsmith QC (CFR0009) para 14 Back

40   Q65 Back

41   Q67 Back

42   Q64 Back

43   Q78; see also Q70 Back

44   Q75 Back

45   Q63 Back

46   Q75 Back

47   BIICL speech, page 16 Back

48   Perambular paragraph to the Explanations Back

49   Q69; see also Q87 Back

50   Q75. Back

51   See BIICL speech, page 17 Back

52   Q77 Back

53   Q85 Back

54   Q87 Back

55   Q85 Back

56   Lord Goldsmith QC (CFR0009) para 26 Back

57   Q70; see also page 24 of the BIICL speech Back

previous page contents next page

© Parliamentary copyright 2014
Prepared 2 April 2014