Objections to incorporating the EU's Charter of Fundamental Rights in Irish law are largely political, despite a legal veneer, writes Eugene Regan
Gerard Hogan's criticism of the European Union's Charter of Fundamental Rights (Irish Times, February 20th) is based more on political than legal grounds but in both respects is entirely misplaced. The concerns of Mr Hogan have in any event been addressed by the Convention on the Future of Europe Working Group on the charter to the satisfaction no doubt of both Ireland and the United Kingdom, who to date have been the only member-states objecting to the incorporation of the charter into the EU treaties.
Whether or not the EU should have a role in legislating on social policy, which Mr Hogan suggests in his article of last week is best left to member-states, is a political choice which was made at the time of the adoption of the Treaty of Rome, providing as it did for the establishment of a single market and a Social Fund, and in the case of Ireland at the time of our entry in the Community in 1973.
To suggest that the EU should have no role in this area is to propose that we should roll back 30 years of EU social legislation which, according to authoritative reports, such as that of the chairman of the Forum on Europe, has transformed the world of work, in particular for women, and laid down a basic framework of rights and minimum standards of social protection in such areas as equal pay, equal opportunity, health and safety at work, protection of workers in the case of insolvency or transfer of undertakings, rights of part-time workers and social protection and health service entitlements of Irish, and other EU workers, employed in other member-states.
The EU Charter of Fundamental Rights does not provide for any greater role for the EU to legislate on social policy, contrary to what is claimed by Gerard Hogan. The charter specifically provides that its provisions do not extend the competence of the Union and this is reinforced in an amended article 51(2) of the charter under consideration in the convention.
Mr Hogan states that the Government probably hoped that there would be "a decent interval" before it and the Irish public would have to confront once again fundamental reforms of the EU. If this is the case then it is extraordinary that we should have agreed in the Nice European Council of December 2000 to hold another Inter-Governmental Conference in 2004.
It cannot be overlooked that the reforms currently under consideration in the Convention on the Future of Europe, in relation to competences of the EU, simplification of the treaties, the legal status of the charter and the role of national parliaments in EU matters, represent a response by EU leaders to public demand for greater transparency and clarity in the conduct of EU affairs.
Mr Hogan states that the substantive rights protected by the charter are laid out in a manner appropriate to a federal state. However, the same rights are laid out in a similar manner in the European Convention of Human Rights to which Ireland adheres, yet no issue of federalism has ever been raised in that context. Although in both cases, it must be acknowledged that the upholding of human or fundamental rights is subject to review by an external court. If this in itself constitutes a form of federalism, Ireland has willingly accepted in both cases this element of federalism for some considerable time.
Mr Hogan maintains that the charter will supersede national constitutions and laws when member-states are implementing Union law, and thereby restrict in some manner the higher level of protection afforded by the Irish Constitution. Nothing could be further from the truth. Just as Ireland's accession to the European Convention on Human Rights does not restrict the application of the Irish Constitution, neither does the charter, both instruments representing minimum standards for the protection of fundamental rights. This is made explicit in Article 53 of the charter which provides that: "Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised . . . by member-states' constitutions."
Mr Hogan is mistaken when he states that the charter elevates to super-constitutional status matters which ought to be left to legislation, such as the respect for the Geneva Convention on political asylum. Respect for the Geneva Convention by the Union and member-states when adopting measures on asylum is already guaranteed by article 63 of the EC Treaty. The Charter of Fundamental Rights does no more that reiterate that guarantee.
He suggests that the most controversial feature of the charter is its attempt to give socio-economic rights protected legal status. However, the charter merely provides that socio-economic rights, which are generally listed as policy principles rather than rights per se, only become judiciable when there is a piece of legislation adopted by member-states in a Union context giving effect to such principles or rights and a specific national measure implementing such Union legislation. This is similar to the procedure followed in our own Constitution in relation to the Directive Principles of Social Policy.
Thus social principles and rights come into play only when legislative Acts have been adopted giving effect to them. The convention working group on the charter, in order to put this matter beyond dispute, has recommended an amended article 52(5) which provides that social rights and principles "shall be judicially cognisable only in the interpretation of such Acts and in the ruling on their legality". It follows that one cannot invoke these principles or rights in courts of law unless there is legislation implementing them.
The legal issues raised by Gerard Hogan have been addressed comprehensively by the Convention Working Group on the Charter of Fundamental Rights, which reported in October 2002. The political arguments now being advanced by Mr Hogan in his article should not cloud that fact.
Eugene Regan is a practising barrister and author of a recent Institute of European Affairs publication on the EU Charter of Fundamental Rights.