12 June 2008

Gonna call her Dignity

Off to vote soon, and despite the compelling arguments presented by this somewhat improvised poster at Harcourt Street Luas stop last night, I will be voting no. The reasons are many and varied, and while I've already written substantially on the way in which the Government has deliberately obfuscated the issues, complicating them so that complex issues are made even more obtuse, and the electorate are left confused and cajoled into voting without knowing, the main reason that I will be rejecting the Lisbon Reform Treaty is that while the rights of businesses are enshrined the rights of workers are eroded by the way in which the Charter of Fundamental rights is adopted in the Treaty.

The Charter of Fundamental rights, originally adopted in Strasbourg in 2007, modified for the proposed EU Constitution, and slightly modified again for Lisbon, is an aspirational document outlining the fundamental human rights that should be applicable to all citizens of the EU. It declares that human dignity is inviolable, the right to life absolute. It grants all the right to liberty, privacy, equality, freedom of thought, conscience and religion. It guarantees a free media and the right to be a conscience objector. It also enshrines the fundamental rights of the worker with 11 articles covering the right to fair and just working conditions, collective bargaining, health care, social benefits and protection from unfair dismissal. It is a good document and one that I believe few could find fault with.

As part of the Lisbon Reform treaty we're being asked to vote on the Charter as part of the changes to Article 6, which adopts the Charter into EU Law. However most legal experts feel that this clause is in there for window dressing, and will not be legally binding on any member state. On this its worth looking at the analysis in the current issue of 'Village' magazine:
Gerard Hogan SC, perhaps the foremost expert on Irish constitutional law (along with his co-author, Gerry White of TCD, co-authors of the recent editions of “Kelly: The Irish Constitution”) has written (The Irish Times, 20 february 2003): “The first problem is that the substantive rights protected by the charter are really laid out in a manner appropriate to a Federal State. Thus, for example, Article 9 provides that: ‘The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.’
“But there is - as yet, at least - no Union competence in the realm of national marriage legislation, so why must this right be protected at the level of a new European constitution?"
Basically the language in the Lisbon Reform Treaty has been cut and pasted from the rejected EU Constitution, and still refers to other parts of the Constitution that didn't make it into Lisbon. This means that it refers to provisions that doesn't exist elsewhere in EU law, and this renders the Charter meaningless.
“A further puzzling feature of Article 9 is that - in common with many other substantive rights guaranteed by the Charter - the right is expressed to be subject to ‘the national laws governing the exercise of these rights’. If, for example, a litigant complained that Ireland's failure to permit same-sex marriage violated Article 9, he would be met with the response that the right to marry is governed entirely by national law. And since Irish law does not permit same-sex marriage, the litigant is back in the position he started in and he might well think that Article 9 is a pure tautology.

“At this point, we encounter yet another paradox of this Charter. Article 51 is the single most important of its provisions in that it provides that the Charter will apply to Member States only when they are ‘implementing’ Union law. This issue is crucial because the Charter will supersede national constitutions and laws when it applies and it will apply to Member States only when Member States are implementing Union law.

“But under what conceivable circumstances could a Member State be "implementing" Union law by regulating the right to marry when the Member States have exclusive competence in this area?
“The same could be said of a significant majority of the rights contained in the Charter, including the rights of the child, the right to criminal due process, and the right to healthcare. These are all areas which are at present within the (virtual) exclusive competence of the Member States…"
Again, the language in this part of the article is meaningless from a legal perspective, it will have no binding effect on member nations.
"The claim that the Charter protects workers rights in ways that “trump” the EU Court of Justice’s decision in the controversial Laval case is questionable."

"All the all, the Charter is probably of no significance at all. No threat to Irish “values” and no protection of rights threatened by other elements of EU law."
While Hogan is coming from a slightly right-wing point of view, saying that the EU has no need to impose rights that are already enshrined at a national level, and shouldn't be meddling, its that last line that annoys me, "the Charter is of no significance at all". The Charter is a good document, it outlines many freedoms and rights that I think most people would agree with, and here is one of our foremost constitutional experts saying that its not binding, is window dressing, won't be enforceable and isn't really worth the paper its printed on in legal terms.

Basically the only elements of the Lisbon Reform Treaty that are legally binding on any member state are those related to business, such as the removal of our national veto in any dealings with the WTO - negotiations that are agreed between the EU and WTO can be imposed directly upon Ireland (Article 188 B (206), C (207) N (218) ), and the free movement of capital between member states (Article 57 [64]) - again from 'Village':
The whole economic thrust of the European project is towards liberalised markets, without any of the correcting mechanisms for wealth and income distribution that States enjoy.
Thus I am voting No because the inclusion of the Charter allows politicians to argue that workers rights are protected, but legally the Charter is meaningless and will not have any effect, or be implemented over and above any national legislation.

It is window dressing, and we can do better.

Links
Charter of Fundamental Rights
Lisbon analysis in 'Village'

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