The Charter of Fundamental Rights will have a positive effect in Europe, argues Roger Smith


One Friday towards the end of July, Lord Goldsmith gave three speeches. One in London and one in Paris advanced the human rights objections of the government in relation to Guantanamo Bay. These got him on prime-time television news.



The third speech got rather less publicity, although it was targeted at a similarly wide audience. The title was not exactly elegant but you could see what he meant – ‘The Charter of Rights – a brake not an accelerator’. The Attorney-General said: ‘In answer to those who see the EU Charter as a Bill of Rights for the UK with swathes of new rights and obligations, it is nothing of the sort.’



Lord Goldsmith’s argument was simple. The Irish might have charmed the fractious 25 nations of the EU into signing a new constitution with the Charter of Fundamental Rights at its heart, but do not think that the sovereignty of the UK government had been impaired one iota. He argued that the charter, truly construed, limits the institutions of the union and, specifically, the commission.



This is true. The British got the text of the rights expanded by an almost similar number of pages of ‘explanations’. Two final, ‘horizontal’ clauses nail down the charter further. They introduce an artful distinction between rights (to be ‘respected’) and principles (only to be ‘observed’).



Furthermore, the charter now expressly recites that it gives the union no additional powers; its provisions are to be construed only ‘in harmony’ with the constitutional traditions of member states; and a full account is to be taken of national laws and practices.



Let it be said that in some ways Lord Goldsmith did a good job. He clarified difficult areas and his drafting should have locked together interpretation of the charter and the European Convention on Human Rights, so that they do not develop divergently. However, some of his victories were more arcane and designed for domestic audiences. For example, victory was proclaimed when a reference in the original preamble was moved into the end of the text. The UK government breathed again. The rest of Europe was simply puzzled.



The government should celebrate its victories. But it is surely sad that its spokesmen cannot acknowledge that the charter is likely, nevertheless or even thereby, to have some real beneficial effect. It will undoubtedly have more force than ‘the Beano or the Sun’ – the expressed view of a former Minister for Europe. The current incumbent, Peter Hain, has been hardly less niggardly: ‘We opposed a straightforward insertion of the charter into the new constitutional treaty without very important safeguards… and we now have… a series of safeguarding armlocks around it.’



Is a restrained prisoner the right image for the charter? At a political level, maybe. The conjunction of the words ‘Europe’, ‘charter’ and ‘rights’ unleashes hysterical paranoia that the government understandably considers it must address. However, the charter has been greatly abused.



For example, it does nothing as outrageous as reinstating a general right to strike: it only applies to member states when implementing EU legislation.



The government needs actively to fight some widely held misconceptions.



The charter will have three desirable consequences. First, it is a readable summary of obligations to which all member states of the EU have acceded in some shape or form. Second, the text binds member states when they implement EU legislation. So, for example, an EU country implementing the European arrest warrant will have to implement charter requirements of fair hearings and legal aid. This is to the advantage of UK citizens.



Finally, the rights in the charter are likely to have an increasingly persuasive effect. At least two domestic judges have already quoted the text in this way. Furthermore, the charter will advance rights by stealth, not force. This is desirable. It is about cultural change and ‘bringing rights home’ – an aim that this government has been proud to proclaim.



The charter should have a galvanising effect on the culture of rights in all countries of Europe. The commission distributes thousands of copies in books the size of a postage stamp to children in the major European languages. Provided their young eyes can manage the small print, they can read it and make sense of it. The book is the better for not reproducing the preamble and Lord Goldsmith’s glory, the ‘horizontal clauses’ – to his fury. However, the miniscule publication gives Europeans a human rights text that is the most modern and comprehensible in the world. The government always said it supported the charter as ‘a political document’. That is what it is.



All three of Lord Goldsmith’s speeches were about red lines. We should celebrate those drawn around Guantanamo Bay – although we await some indication of their effectiveness – and acknowledge those relating to negotiations on the charter. However, the next European frontier is the constitutional referendum. This will require a somewhat more positive and considerably less niggardly approach.



Roger Smith is director of the law reform and human rights organisation, Justice