Examination of Witnesses (Questions 280
- 296)
WEDNESDAY 5 DECEMBER 2007
Mr Martin Howe QC
Q280 Chairman:
Assuming that the Union signs up to the Convention, do you see
a problem or any inconvenience in a system whereby the challenge
is first to Luxembourg, of course it may be conjoined with all
sorts of other challenges, the competence under the Treaty, subsidiarity,
whatever, but then on the human rights point can go to Strasbourg?
Mr Howe: I think that system is workable, yes.
Q281 Chairman:
I take it though if and until the Union signs up there are potential
difficulties, and I suppose also the questions about competence,
the specialisms of the judges, again is going to be important
until the Union signs up?
Mr Howe: Yes. Again, do you need specialist
human rights judges in the Court, could be a question which could
be asked.
Q282 Lord Bowness:
My Lord Chairman, is it correct that the Union cannot sign the
Convention without the provisions in the Treaty which bestow the
power on it and giving it the legal personality to do it; they
could not join now under the existing Treaties, is that right?
Mr Howe: I cannot think of any power which would
allow it to join as a body. Technically, the Community would have
to join.
Q283 Chairman:
Can we invite you to go on to the next question; what is the Protocol
doing, in your view?
Mr Howe: That is the most difficult question.
One possible view is that it does nothing and then it has no substantive
legal effect. It is a difficult issue. There is an inherent difficulty
with the Protocol in that the Charter, in general, first of all,
clearly is given legal effect by the Treaty, by the amended Article
6. Secondly, in general, whatever effects the Charter might have,
the starting-point should be it should have uniform effects across
the whole of the territory of the European Union. Therefore, when
one comes to the Protocol one has to ask whether it is simply
declaratory of the consequences of the Charter across the whole
European Union or whether, alternatively, it is intended to create
some different legal effect of the Charter inside the United Kingdom
and Poland, as compared with the other Member States. It is interesting
to start with the recitals to the Protocol, because the fifth
recital states: "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."
There is a general statement in the Protocol which is a general
statement about the Charter in its overall effect. That recital
is not merely talking about what happens inside the UK or Poland.
However, you have the words of Article 6 itself, which states
"The Union recognises the rights, freedoms and principles
set out in the Charter of Fundamental Rights, as adapted, which
shall have the same legal value as the Treaties." That definitely
gives legal effect to the Charter at the same level as the Treaties,
and therefore at a level in the legal hierarchy above subordinate
instruments, such as Directives and Regulations. There is obviously
a tension between that and this recital, and one might resolve
the tension by saying, "Well, it might not create new rights
or principles but it might create new ways by which they can be
enforced." For example, by, in effect, conferring on the
Court of Justice a power to strike down Community legislation,
which, in its view, is incompatible with the provisions of the
Charter. It might be argued that possibly it has that power already
because it recognises certainly the basic principles in the Charter
as general principles common to the law of the Member States.
Furthermore, within the recitals of the Protocol it is recorded
that the Protocol, this is the second-last recital: "It is
desirous therefore of clarifying the application of the Charter,
in relation to the laws and administrative actions of Poland and
the United Kingdom and of its justiciability." Again there
is perhaps a suggestion that it is declaratory rather than substantive
in its effect. We then go on to Article 1 and, in a sense, Article
1 may be aiming to defeat a problem that was never there, because
the so-called horizontal provisions of the Charter itself state:
"The provisions of this Charter are addressed to the institutions
and bodies" offices and agencies "of the Union with
due regard for the principle of subsidiarity and to the Member
States only when they are implementing Union law."
Q284 Chairman:
That is Article 51?
Mr Howe: Article 51, paragraph 1, yes; jargonistically,
one of the horizontal Articles of the Charter. There may have
been a sort of fear that the EU Charter would sort of spread out
from the field of Union law across the board into unrelated fields
of national law, which, I must say, has never been a concern I
have had. The key point, I think, there, where there is a possible
interrelationship with the Protocol, is when the Charter, as stated
by Article 51(1), applies to the Member States when they are implementing
Union law. A practical example of that might be, say, in a field
coordinated by a Directive where there is some form of exceptional
derogation, when the scope of that might well be interpreted by
the Court of Justice by reference to principles in the Charter.
As far as I can see, starting with what the Protocol on the UK
and Poland does not do is that it does not inhibit the ability
of the Court of Justice either to strike down acts of the Union
itself as incompatible with the Charter or to interpret those
acts by reference to the Charter. That then raises the issue,
supposing the Court of Justice interprets a piece of Community
legislation in a way which perhaps expands its scope by reference
to the fundamental rights in the Charter, that meaning would be
a meaning normally which would then be adopted across the entire
European Union. Can Article 1 of the Protocol then be prayed in
aid to say, "Well, even though the Court of Justice has expanded
the interpretation of a Directive, in general, by reference to
a case coming from, say, Germany, that extended interpretation
does not apply to us in the United Kingdom so as to interfere
with an existing law, regulation or administrative provision."
Q285 Lord Wright of Richmond:
My Lord Chairman, does that make the situation for the United
Kingdom different from the existing arrangements, our existing
commitments, under the European Convention on Human Rights?
Mr Howe: The Charter is different from the European
Convention on Human Rights. Basically, the first part of the Charter
is the same, and indeed is sort of stated to be a rewriting of
it, in somewhat different language but to the same effect; but
it then goes on to provide for social and economic rights, which
are not contained in the European Convention on Human Rights.
I think much of the political concern about the Charter has been
in giving legal effect to concepts like the right to strike, for
example, which are not within the European Convention on Human
Rights. It strikes me there are two ways of interpreting Article
1. Either what it is saying is that the Charter does not introduce
any free-standing ability to strike down national laws, but that
this Article does not in any way inhibit a secondary effect of
the Charter by reason of a Community instrument which has legal
effect being interpreted in a particular way. With this sort of
thing one cannot say with total confidence which way it would
be interpreted, but I would bet that the European Court of Justice
would say this is about saying the Charter does not have a sort
of direct or extra effect in striking down a national law; in
other words, it is a re-emphasis of Article 51(1) of the Charter
itself. It applies to the Member States only when they are implementing
Union laws; it is not intended to affect the operation of the
Charter within the context of the application of Union laws.
Q286 Chairman:
What is the meaning of the word "reaffirm" in the recital?
Does that suggest that the rights, freedoms and principles reaffirmed
have some separate existence?
Mr Howe: They do have a separate existence,
in that historically the Charter was developed, as I said, the
first part of the Charter, by taking the European Convention on
Human Rights on the basis that all Member States of the European
Union are parties to that Convention, and then reflecting the
Convention, and in some respects developments of the case law
of the Strasbourg Court, in the Charter. That relationship is,
in fact, expressed in the Explanations, which are attached to
it. I think the Explanations are in this, in the booklet you have;
the Explanations begin at page 149. For example, the Explanation
relating to Article 2 of the EU Charter explains the links to
corresponding provisions of the European Convention on Human Rights.
For example, the Explanation relating to Article 1, human dignity,
there is a reference to the 1948 Universal Declaration of Human
Rights and to case law of the European Court of Justice, and so
on. In that sense, yes, the provisions of the Charter are said
to be based on or expressing pre-existing rights and principles,
albeit they may not be directly enforceable as part of the Union
legal order.
Q287 Chairman:
That is the gist of what Article 7, Articles 51 and 52 is aimed
at saying, as well?
Mr Howe: I would suggest, what it does is it
takes what may have been, for example, a United Nations right,
as such, would not be directly enforceable as a legal law within
the European Union; by putting it in the Charter it may be, in
a sense, a right you have got already but they are making it legally
enforceable.
Q288 Chairman:
On that basis, at least on one of the views you have explained,
Article 1 of the Protocol is designed to ensure that nonetheless
they shall not be legally enforceable in certain respects?
Mr Howe: Yes, a reaffirmation that it applies
to Member States only when they are enforcing Union law; Article
1 might be. If you interpret it as applying to the United Kingdom
even when it is enforcing European Union law, you are then creating
a disconformity in the interpretation and application of common
European Union measures in the United Kingdom and in other Member
States. I would expect the European Court would strive by might
and main to avoid such a disconformity.
Q289 Lord Wright of Richmond:
My Lord Chairman, insofar as you understand the concerns which
the British and Polish Governments have about the Charter, to
what extent do you actually regard the Protocol as an adequate
protection of those concerns? I am sorry; if I could widen the
question, to what extent do you think the European Court of Justice
would regard the Protocol as an adequate protection for those
concerns?
Mr Howe: That involves identifying precisely
what those concerns are. I cannot, I am afraid, necessarily adequately
express exactly what the nature of the concerns is because they
vary at different points in time. At one point they were very
keen to address the concerns by getting the Explanations given
a sort of semi-legal status in conjunction with the Charter. That
was in the series of negotiations which led to the adoption of
the Constitution Treaty and resulted in the inclusion in that
version of the Charter of a specific reference to the Explanations.
One of the concerns, I think, was in relation to the social and
economic rights, which are in Title IV of the Charter, in particular
things like the right to strike. Certainly the British Government
has taken a point which is important to them on the distinction
between rights and principles, as expressed in the Charter, taking
the view that a right is something which an individual perhaps
potentially can rely on and may be justiciable, whereas a principle
is just guidance to the legislator, not capable of justiciability.
Whether it is possible to make such a clear-cut distinction is
not altogether clear.
Q290 Chairman:
This is what Article 52 is designed to achieve, is it not, whether
it achieves it or not?
Mr Howe: Yes; the distinction between rights
and principles.
Q291 Chairman:
I think it is right to say that this is something which the last
Attorney General was responsible for negotiating, Lord Goldsmith?
Mr Howe: Yes, because, in fact, even before
he became Attorney General, he was the Prime Minister's Representative
in the Convention which drafted the Charter. To pick up where
it seems to me what they have been trying to achieve, an example
of it, Article 35 of the Charter, on healthcare, states that everyone
has the right of access to preventive healthcare and the right
to benefit from medical treatment under the conditions established
by national laws and practice, and then a high level of human
health protection should be ensured in the definition and implementation
of all the Union's policies and activities. Within that there
is the phrase "everyone has the right to benefit from medical
treatment under the conditions established by national laws and
practice." An issue there is, is this merely declaratory,
saying that if national law gives you a right to health treatment
then you have a right to health treatment, which is a bit circular,
or does it have some substantive effect, in other words, does
it give the Court of Justice jurisdiction to say "Your national
laws and practices are inconsistent with some minimum law that
we are going to establish yet"? I think Article 51(2) of
the Charter is designed to deal with that point.
Q292 Lord Bowness:
This is obviously a complicated area but I wonder if we could
be specific. Mr Howe has referred to the right to strike, you
referred to Article 6 in the Protocol, but actually presumably
the Court of Justice would also refer to the Charter itself, which
talks about, in Article 28, amongst other things, the right in
cases of conflict of interest to take collective action to defend
their interests, including strike action. It begins that those
rights are only in accordance with Union law and national law
and practices, and that is emphasised in the Explanation of Article
28: "The modalities and limits for the exercise of collective
action, including strike action, come under national laws and
practices, including the question of whether it may be carried
out in parallel in several Member States." The question really
I would ask you is if somebody in the British courts, in litigation,
sought to challenge our law against secondary picketing, could
they or could they not rely on the Charter of Fundamental Rights,
or would the words in the actual Charter and its Explanations
mean what they actually say and they would get nowhere with this?
Mr Howe: I think they would get nowhere, because
in order for the Charter to apply at all you would have to come
within some area that is directly governed by European Union law.
Where the Charter might possibly impinge might be where you have
got an existing piece of Community legislation, possibly in some
circumstances an existing, directly applicable Treaty Article,
which impinges on the situation in some way.
Q293 Lord Bowness:
Staying with my example, can you think of an example?
Mr Howe: Where it could impinge? The Treaty
provides a general right of free movement, the right to work in
another Member State. The Community has also passed a number of
specific measures which relate to the conditions with health and
safety measures, and the Working Time Directive. Article 31 of
the Charter, on fair and just working conditions, states: "Every
worker has the right to working conditions which respect his or
her health, safety and dignity. Every worker has the right to
limitation of maximum working hours, to daily and weekly rest
periods and to an annual period of paid leave." When you
come to, say, the interpretation by the Court of Justice of the
Working Time Directive and consider issues in it like can there
legitimately be exceptions to that right then the Court might
take into account the fact that it has been expressed to be a
fundamental right of every worker to limitation of maximum working
hours in considering whether or not any exception to that is legitimate
or interpreting the scope of that exception. That is the sort
of example where you could have an impingement of the Charter
in this kind of field.
Q294 Lord Bowness:
You are not suggesting that, if somebody were to maintain that,
that would then legitimise secondary picketing, are you?
Mr Howe: No. You would have to have an existing
piece of Community law which was directly relevant to the situation
before the Charter could come in and affect its scope and interpretation.
Q295 Lord Burnett:
That would be something which would mean that the Charter impinged
on us in the UK?
Mr Howe: Via the mechanism of the interpretation
of the measure. If it does that, this sort of effect by virtue
of interpretation of the Community measure, I cannot see that
the Protocol, as it were, keeps it out.
Q296 Lord Burnett:
But you do think that the Protocol in other respects does keep
it out of UK law?
Mr Howe: Yes. I think the difficult question
is whether the Protocol actually does anything more than is done
already by the provisions of Article 52(1) of the Charter.
Chairman: Perhaps that is an appropriate point
at which to leave the exam paper and thank you very much for your
assistance.
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