EU Charter of Fundamental Rights: the dog that hasn’t barked...yet

Issue 225 (December 2011)

Graham Tegg considers whether a possible new approach to an existing piece of European Union (EU) law may be of assistance to claimants faced with negative right to reside decisions.

Introduction

Unless you are a fully paid-up member of the EU law club you can be forgiven for failing to diarise that January 2012 is the third anniversary of the rights, freedoms and principles contained in the EU Charter of Fundamental Rights (‘the Charter’)' being a source of law.

Compared with the fanfare and legal fireworks that accompanied the coming into force of the Human Rights Act, incorporating the European Convention of Human Rights into enforceable law within the UK, the Charter has had no discernable impact in the field of welfare rights – or domestic law in general, for that matter.

This is despite the fact that the rights contained in the Charter are broader than those contained in the European Convention on Human Rights (ECHR), extending beyond political and civil rights to incorporate economic and social rights. Of particular interest to welfare rights workers is Article 34 of the Charter that expressly deals with entitlement to social security and social assistance.

So, are we all missing something or is the Charter, as the former Minister for Europe Keith Vaz stated at the time of its agreement, of no more legal effect ‘than the Beano’?

Before seeking to answer the above question, it is first useful to look at the Charter’s structure and status.

The Charter itself

The preamble to the Charter proclaims that the EU ‘is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law’. The avowed purpose of the Charter is to ‘strengthen the protection of fundamental rights’.

The final contents of the Charter were agreed after more than seven years of debate in December 2007. Its legal status at that time was at best unclear – it was referred to as ‘soft law’. On the entry into force of the Treaty of Lisbon in January 2009, the Charter’s status changed. It now had the ‘same legal value as the Treaties’ themselves. It was, and is, a direct source of law.

The Charter itself is divided into seven ‘titles’ entitled ‘Dignity’, ‘Freedoms’, ‘Equality’, ‘Solidarity’, ‘Citizens’ Rights’, ‘Justice’ and ‘General Provisions’. The substantive provisions are drafted in the light of the previous caselaw of the European Court of Justice (ECJ) and the rights and principles that emanate from not just the European Convention but also other international treaties and obligations common to member states, including the European Social Charter (ESC). (First agreed in 1961, the ESC is an international agreement that the UK signed up to but did not legislate to incorporate into UK law.) The Charter is to be interpreted by member states and the courts ‘with due regard’ to the published Explanatory Memorandum.

The substantive provision explicitly dealing with social security and social assistance is Article 34 contained in Title IV ‘Solidarity’. It provides:

‘1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national law and practices.

2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices.

3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with rules laid down by Union law and national laws and practices.’

The Explanatory Memorandum to the Charter states that Article 34 expressly draws from rights contained in the ESC.

The ‘Beano’ argument

The argument that the Charter is of limited or no effect in the UK, the ‘Beano’ argument, has a number of interconnected strands.

The first is based on a restrictive reading of Articles 51 and 52 of the Charter. Article 51 provides that the provisions of the Charter only apply when member states are implementing EU law, and that the provisions respect the principle of subsidiarity and accord respect to the limits of the EU’s powers. Article 51(2) states that the Charter ‘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 defined in the Treaties’. It is, therefore, argued that the Charter does not shift powers from member states to the EU and affords no new substantive rights. It simply reaffirms existing principles.

The second strand is that the Charter itself contains at best a mixture of rights and general principles. General principles are aspiration and do not create new individual rights that citizens can enforce through the courts.

The third is that, even if the above is incorrect, the UK like Poland, has secured a legally binding ‘opt out’ from the Charter. What is meant by this is that Protocol 30, which is annexed to the Lisbon Treaty, addresses the application of the Charter to Poland and the UK. Article 1(1) of the Protocol states that the ‘Charter does not extend the ability of the Court of Justice...or any court or tribunal of ...the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of ...the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms’. Article 1(2) of the Protocol specifically addresses Title IV, the Solidarity chapter containing the social security provision, and provides that the Solidarity Title does not create legally enforceable rights applicable to the UK.

The argument against

The first of the above objections to relying on the Charter as a source of rights is easily dismissed. Such a narrow reading of Articles 51 and 52 rob the Charter of any useful effect. Article 51 itself states that member states are bound by the Charter when, but only when, implementing EU law. The preamble to the Charter provides that both the ECJ and member states must have due regard to the Explanatory Memorandum when interpreting freedoms falling within the Treaty.

The second objection has more weight. It is undoubtedly true that the Charter refers variously to rights, freedoms and principles. Article 52(5) of the Charter states that the ‘provisions of this Charter which contain principles may be implemented by legislative and executive acts...They shall be judicially cognisable only in the interpretation of such acts and in the ruling of their legality.’ Put in plain English, where a member state has legislated in an area of principle, the Charter may be used as an aid to interpretation, but an individual would not be able to mount a challenge in respect of the violation of her/his own rights regarding a lack of any provision at all.

The counter-argument is that there is no clear distinction in the Charter between rights and principles. Taking the social security Article as an example, its language blurs any easy distinction between principles as opposed to rights. It might be said that Article 34(1) articulates a principle. But the language of Article 34(2), which refers to entitlements, better fits the term ‘rights’. Moreover, much of Article 34 deliberately paraphrases sections of the European Social Charter which itself refers to the right of persons to social security, social assistance and freedom from social exclusion and destitution.

The third objection outlined above involves the scope of the UK’s so called ‘opt out’. Regarding the general Protocol 30 ‘opt out’, the view of the UK courts and a recent opinion of the Advocate General in the UK-referred case, C-411/10 NS v Secretary of State for the Home Department, is that Protocol 30 does not provide a general opt out from the Charter. But there is a suggestion that the narrower opt out from the Solidarity Title may be effective.

Is the Charter useful for welfare rights

The truthful answer is that we simply do not know. Until tribunals, UK courts and, ultimately, the ECJ construe the supposed distinction between rights and principles and the scope of Article 34, it will remain unclear whether the ‘Beano’ view is correct or the Charter is a source of new substantive rights.

However, in the meantime, the Charter can and should be cited in cases where its provisions are of relevance – an obvious example being right to reside cases. Even if, ultimately, the parts we would wish to place greatest reliance on are deemed to be legally unenforceable on a individual basis, the Charter at the absolute minimum provides a powerful aid to construction.

Readers with long memories may remember the Court of Appeal’s judgment in the case of Abdirahman ([2007] EWCA Civ 657), the first right to reside case in social security law to be considered by the higher courts. It remains an authority and still occupies the legal field in right to reside cases. One of the main arguments that arose in that case was whether the imposition of a positive right to reside require-

ment, as opposed to a legal residence test, for access to social assistance contravened the European Social Charter. The Court of Appeal, following the Tribunal of Commissioners’ decision under appeal, found that the ESC, having not been incorporated into domestic law, was not itself a source of substantive rights.

The position as of now, with the Charter being a direct source of rights and principles, is arguably different. In a case involving consideration of EU law, the Charter has the same legal value as the Treaties. As has been seen, the Charter itself draws heavily upon the rights provided by the ESC. EC Directive 2004/38, the central piece of law in right to reside cases, states at paragraph 31 of the preamble that, ‘This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’ (emphasis added).

It is arguable that it follows that the provisions in the Directive, in particular Article 24 as it relates to access to social assistance, must be interpreted in the light of the Charter, which in turn is understood by the Explanatory Memorandum to have as its source the ESC.

The ESC is clear that the rights it affirms in respect of access to social security and social assistance must be provided to persons who are legally present in signatory states. The UK is a signatory. The UK courts’ objection to reliance on the ESC provisions has been based on those provisions somehow being unclear, but on the cold legal analysis that the economic and social assistance rights the ESC provides are not enforceable in the UK. That is the ratio of the tribunal of commissioners’ decision in Abdirahman.

What if the legal world has changed, and either directly or indirectly individuals can seek to rely on ESC rights? At the very least, the dismissal of the ESC-based argument in Abdirahman would no longer hold. Unless or until these arguments are raised we will never know the answer.

Admittedly, it is a long and tortuous route we have followed, but the above argument is far from being a shaggy dog story with no teeth. The EU Charter, read in an expansive way, may be the means by which ‘Gnasher’ not only finds his bark but also ends up biting the ‘Beano’.

 


 

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