Mixed reaction to ‘opt-out’ from EU Charter of Fundamental Rights

At the European Council in June 2007, the UK government secured an ‘opt-out’ from the legal enforceability to be given to the Charter of Fundamental Rights as part of the reform treaty agreed on by the Council. The move received a mixed response from politicians, the business community and trade unions in the UK.

After lengthy negotiations, the June 2007 European Council agreed that a new ‘reform treaty’ will be drawn up in place of the draft constitutional treaty rejected by referenda in France and the Netherlands in 2005. An Intergovernmental Conference (IGC) was convened on 23 July 2007 to draft the new treaty, working to a mandate negotiated at the June summit.

Status of charter

In employment and social policy terms, the key issue in the negotiations was the legal status of the EU Charter of Fundamental Rights. The mandate given to the new IGC is that the charter will ‘have the same legal value as the treaties’. It will thus be given legally binding force. However, the UK government opposed this move and succeeded in obtaining an ‘opt-out’ from the enforceability of the charter during negotiations at the June summit.

The charter, which was first approved by the European Council and the European Parliament in 2000, sets out a range of rights, freedoms and principles, based largely on existing treaties and other instruments. In the field of employment law (Title IV), it covers workers’ rights in such areas as:

  • information and consultation within an undertaking;
  • collective bargaining and industrial action;
  • protection in the event of unjustified dismissal;
  • fair and just working conditions;
  • maternity and parental leave.

UK opt-out

To give effect to the UK’s opt-out, a protocol to be added to the future reform treaty will state that:

The charter does not extend the ability of the [European] 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.

In particular, and for the avoidance of doubt, nothing in Title IV of the charter creates justiciable rights applicable to the United Kingdom, except in so far as the United Kingdom has provided for such rights in its national law.

The effect of this protocol will essentially be that the charter cannot be used to challenge current UK legislation in the courts or to introduce new rights in UK law. The outgoing UK prime minister, Tony Blair, attending his last EU summit in June, said that the outcome of the talks made it ‘absolutely clear that the Charter of Fundamental Rights is not going to be justiciable in British courts or alter British law’.

According to the presidency conclusions issued at the end of the European Council, two other Member States – reportedly Ireland (IE0707039I) and Poland – ‘reserved their right to join in this protocol’.

Political and social partner reaction

Commenting on the agreement reached in Brussels, the Deputy Director-General of the Confederation of British Industry (CBI), John Cridland, stated: ‘We welcome the government’s success in securing what appear clear opt-outs from the Charter of Fundamental Rights in areas that could have damaged the UK’s flexible labour market.’ The UK government's stance meets the CBI's concerns about the potential impact of the charter (UK0405104F) and its longstanding opposition to widening the EU's social policy competence more generally. Other employer representatives were more sceptical about the value of the opt-out. The Federation of Small Businesses (FSB) commented that, ‘despite government claims to the contrary, leading EU legal academics point out that the UK’s opt-out from the charter ... is not legally enforceable’.

The General Secretary of the Trades Union Congress (TUC), Brendan Barber, underlined: ‘It is extremely disappointing to see that UK workers and citizens are to enjoy fewer rights than those in the rest of Europe ... Are we to think that the UK economy can only prosper by treating UK employees worse than others in Europe?’ A similar point was made by the Leader of the Liberal Democrats, Sir Menzies Campbell, who warned: ‘By opting out of the Charter of Fundamental Rights, there is now the danger of a two-tier citizenship in the EU’.

The Conservative Party implicitly supports the ‘opt-out’ from the charter, but criticised the government’s approach to the treaty negotiations more generally, accusing it of ‘[signing] up to major shifts of power from Britain to the EU and major changes in the way the EU works’. It also called for a UK referendum on the reform treaty, which the government argues is unnecessary.

Mark Hall, IRRU, University of Warwick

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