Rights charter is just another layer of law

The EC is planning new regulations to safeguard human rights. With the UK’s Human Rights Act coming into force on 2 October, is it necessary?

The proposal of the European Commission to establish a European Charter of Fundamental Rights has generated much discussion, focusing on its purpose and who exactly it will benefit.

Admittedly, the rights contained within the draft charter are separate and distinct from the European Convention on Human Rights that has been in force in the UK since the 1950s. Yet, with the prospect of the Human Rights Act 1998 coming into force on 2 October, which reiterates the basic human rights under that convention, one might question whether there is really a need for an additional European Charter.

A further concern is that a charter of this nature, with its recommendations to encompass both civil and social rights, goes beyond the real purpose behind the European Union and comes close to dealing with constitutional issues in each member state. Is this a back door policy with an ulterior motive?

The first complete draft of the charter was published last week, and EU member states have until 1 September to comment. The final draft will be ready to be considered by EU leaders at the October summit in Biarritz.

The key rights proposed by the charter might sound rather familiar. In fact many of the proposed rights echo existing provisions contained in many employment-related laws already introduced by the European Union. For example, parental and maternity leave, working time, equal treatment and indeed equal pay – all of which are detailed in the new charter – have already been the subject of European directives which have subsequently been introduced into the law of all EU countries.

The view across Eversheds’ European practice is that as law and protection already exist in the proposed areas, there doesn’t appear to be a real driving need for the same rights to be assured and guaranteed in a charter. In fact, this has the potential to end up as a legislative burden, bringing confusion for both individuals and their employers.

The proposal that complaints about the infringement of charter rights could be taken straight to the European Court of Justice marks a revolutionary move in the legal process for the EU members.

While the ECJ judges have legal power and sway over the domestic courts of each country, currently this is in cases and disputes which are referred to the court.

Claims and complaints are dealt with first in the country of origin, and matters are only referred to the European Court for guidance or help in providing a definitive view. A direct claim straight to the ECJ goes against this practice. Is this a precedent we really want to establish? Is there potential for this direct right of access to be expanded further in the future?

On balance, particularly given the need for UK companies, employers and indeed lawyers to grapple with the Human Rights Act now, businesses simply do not need to face the burden of another layer of human rights as proposed in the charter, or another avenue of challenge with cases being taken to the European Court of Justice.

A more basic question may warrant consideration here. Given that a number of the proposed “fundamental rights” overlap with existing EU law, should the European Commission instead be examining why equality is not being achieved, for example, and asking itself whether changes to existing law need to be made. Why is it that in implementation, the EU is not achieving through its directives, the rights that clearly do need protection?

Does the EU need to go back to the drawing board and re-examine its entire legislative process and the enforcement of existing rights, rather than burdening employers, and indeed governments, with another layer of law?

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