(Re)Constructing The Usage Constabulary Hierarchy Of Norms: The Charter Volition Not, Should Non Together With Require Non Apply?

Niall O’Connor, Lecturer inwards Law, University of Essex

The Charter together with Brexit

During the Brexit plebiscite campaign, it was Boris Johnson who led the agency inwards deriding the Charter’s influence over British law. In the Telegraph article inwards which he get-go threw his back upwardly behind Brexit, Johnson here), the catch inwards Case C-282/10 Dominguez; together with Case C-356/12 Glatzel).

The correct has viewed the Employment Rights alongside suspicion, fearing that they would ‘provide the footing for a judicial laid on upon the UK’s (neo-) liberal work legislation’. (Michael Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) CMLRev 617,666.) Labour lawyers together with merchandise unionists, on the other hand, own got tended to hold upwardly to a greater extent than supportive, indeed the Labour party’s shadow Brexit minister, Keir Starmer Tanton [1999] EWCA Civ 949). By together with large, this has been an exclusively domestic matter, alongside picayune consideration given to the human rights nature of legislation exterior the reach of European Union law.

Article thirty for example, provides that the correct non to hold upwardly unfairly dismissed is a human right, yet the European Union has non adopted comprehensive legislation governing this right. This has meant that inwards the context of unfair dismissal, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland courts own got been gratis to adopt a largely employer-friendly approach. Indeed, reverse to the CJEU’s purposive approach inwards the work field, mutual police push clitoris judges tend to exaggerate contract police push clitoris tests when applied to work legislation. (Benkharbouche, workers at the embassies of Sudan together with Great Socialist People's Libyan Arab Jamahiriya were found to hold upwardly entitled to own got their EU-derived work police push clitoris (discrimination together with working time) claims heard inwards a United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland Employment Tribunal despite the presence of an apparent conflict alongside the State Immunity Act 1978. Preventing reliance on these European Union rights would breach article 47 of the Charter, which guarantees access to justice. (The Charter issues were discussed to a greater extent than fully inwards the Court of Appeal ruling, discussed here).

This judgment should also remind us of the protection that volition go past times away on to hold upwardly provided past times article six of the ECHR, the Convention correct to a fair trial. Lord Sumption held that ‘a conflict betwixt European Union police push clitoris together with English linguistic communication domestic police push clitoris must hold upwardly resolved inwards favour of the former, together with the latter must hold upwardly disapplied; whereas the remedy inwards the instance of inconsistency alongside article six of the Human Rights Convention is a proclamation of incompatibility.’ (para 78)

Echoes of this judgment could also hold upwardly seen inwards Unison, inwards which the Supreme Court quashed the lodge introducing Employment Tribunal Fees. That judgment starts past times noting that many of the rights which are enforceable before Employment Tribunals are EU-derived rights which thus engages article 47 of the Charter. That judgment is also meaning for the Court’s exploration of alternative avenues to human rights protection, notably the correct to access justice at mutual law.

The lawsuit of clause 5(2) is to create a novel category of ‘retained European Union law’ that must, somehow, check into the existing hierarchy of norms. For work police push clitoris purposes, this may non an immediate issue. Much of the existing European Union work acquis has already been implemented inwards domestic legislation. However, at that topographic point withal rest serious doubts every bit to the precise condition of post-Brexit CJEU instance police push clitoris (clause six retains that court’s pre-Brexit instance law, alongside to a greater extent than flexibility to improve that instance law) together with whether this tin flame hold upwardly applied or departed from past times the domestic courts. Lady Hale, the newly appointed President of the Supreme Court has called for clarification inwards this area. Most importantly, for our purposes, the Bill is clear that the Charter volition non apply.

The Charter Will Not, Should Not together with Need Not Apply?

Will Not?

Clause 5(4) of the Bill provides that ‘the Charter of Fundamental Rights is non portion of domestic police push clitoris on or subsequently go out day’. This presents to a greater extent than or less major practical difficulties. First, it is frequently impossible to pinpoint just the influence of the Charter inwards CJEU decisions. Sometimes, the Charter is forepart together with centre inwards work police push clitoris decisions. In others, it is barely mentioned (if at all). In before cases, the CJEU may simply own got been reticent inwards its usage of the Charter, recognising the sensitive nature of social rights together with grappling (as it continues to do) alongside the distinction betwixt rights together with principles.

 Despite the somewhat sceptical catch of the Charter’s influence inwards this champaign of police push clitoris outlined above, it may good hold upwardly that CJEU is simply non existence explicit inwards its usage of the Charter, relying instead on existing interpretative methods, but alongside an optic to Charter for guidance. In whatever case, the Charter together with work legislation bask a symbiotic relationship. It has been noted that the Explanations human activeness every bit interpretative guidance. The explanations to the Employment Rights refer to existing European Union work legislation. Therefore, work legislation must hold upwardly interpreted inwards lite of the Charter which must itself hold upwardly interpreted inwards lite of that real legislation. Decoding this wheel may evidence an impossible task.

Should Not?

It has been argued that incorporating the Charter into domestic police push clitoris post-Brexit would hold upwardly undemocratic. This is because the interpretation of the Charter rights is exclusively a affair of the CJEU. Eduardo Gill-Pedro argues inwards a recent blog that the CJEU interprets the Charter inwards the lite of the objectives of the Union. Once the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland leaves the Union it volition no longer percentage those objectives together with so it would hold upwardly undemocratic to rely on the Charter.

I would debate that the Charter does non just serve every bit an overarching political guide to the hereafter management of the Union. Certainly, inwards the work context it has a less ambitious remit, steering every bit it does, the interpretation together with review of work legislation. If the Government is committed to preserving the existing work police push clitoris acquis it should own got naught to fright from retaining the Charter. In whatever case, stripped of its constitutional condition into the future, the Charter may evidence picayune threat to the amendment or repeal of domestic work legislation relieve to the extent that the supremacy regulation continues to apply on a express basis. There would, therefore, hold upwardly no ‘intrusion’ of external values into the legislative process.

Need not?

Finally, it could hold upwardly argued that whether the Charter applies or non genuinely makes real picayune practical difference. First, every bit was noted at the start of this blog, the lawsuit of the Charter’s Employment Rights, largely dismissed every bit mere ‘principles’ has been somewhat disappointing. Second, together with to a greater extent than significantly, the Repeal Bill itself which at clause 5(5) preserves key rights that be autonomously of the Charter together with ‘references to the Charter inwards whatever instance police push clitoris are, so far every bit necessary for this purpose, to hold upwardly read every bit if they were references to whatever corresponding retained key rights or principles’.

It is clear, then, the Charter volition go past times away on to play a role inwards the guise of those provisions that are already reflected inwards the full general principles of European Union police push clitoris (although Schedule 1 to the Withdrawal Bill volition restrain the legal lawsuit of those full general principles). In many areas, but notably the equality field, it was the full general principles that opened the agency to the application of key rights inwards work law, although I own got that the adoption of the Charter had an emboldening lawsuit fifty-fifty prior to its granting of sum legal effect. (Compare Case C-144/04 Mangold together with Case C-555/07 Kücükdeveci) Although, admittedly the condition of the Employment Rights every bit full general principles remains unclear together with the Withdrawal Bill makes it clear inwards whatever lawsuit that the full general principles cannot human activeness every bit a measure of review for retained European Union law.

Separating the role of the Charter together with the full general principles volition inwards whatever instance hold upwardly difficult. We demand only facial expression to Kingdom of Norway to run into how the full general principles tin flame own got an lawsuit on those non formally outflow past times the Charter. The European Free Trade Association (EFTA) Court has from the outset referred to judgments of the CJEU. The ‘homogeneity’ regulation has had a profound impact, leading the EFTA Court to apply CJEU decisions that post-date the EEA Agreement. (Carl Baudenbacher, ‘The Relationship Between the EFTA Court together with the Court of Justice of the European Union’ inwards Carl Baudenbacher (ed), The Handbook on EEA Law (Springer 2016) 179, 184.)

This regulation governs the human relationship betwixt the European Economic Area (EEA) Agreement together with European Union law. Article six of the EEA Agreement provides that ‘[w]ithout prejudice to hereafter developments of case-law, the provisions of this Agreement, inwards so far every bit they are identical inwards center to corresponding rules of [the European Union Treaties] together with to acts adopted inwards application of [those Treaties], shall, inwards their implementation together with application, hold upwardly interpreted inwards conformity alongside the relevant rulings of the [CJEU] given prior to the appointment of signature of this Agreement’. The EFTA Court has held that ‘the objective of establishing a dynamic together with homogenous European Economic Area tin flame only hold upwardly achieved if EFTA together with European Union citizens, every bit good every bit economical operators enjoy, relying on EEA law, the same rights inwards both the European Union together with EFTA pillars of the EEA’. (Case E-18/11 Irish Bank Resolution Corporation v Kaupping para 122.) The homogeneity regulation extends to key rights, alongside the Court referring to judgments of the ECtHR together with CJEU every bit good every bit AG Opinions inwards key rights cases (Case E-2/03 Asgeirsson together with Others para 23; Case E-8/97 TV 1000 para 26).

Conclusion

The instincts of both labour lawyers together with Charter sceptics may own got been wrong. Far from representing a Trojan horse, bringing inwards its wake alien social rights to disrupt the mutual law’s traditional flexibility, the Charter’s Solidarity Title has proven to hold upwardly rather a damp squib, except of course of written report that it has genuinely had the lawsuit of promoting the evolution of a countervailing concern liberty found inwards article 16. In AGET Iraklis, for example, the CJEU held that article xvi is closely related to the 4 economical freedoms contained inwards the European Union Treaties together with tin flame hold upwardly used to defeat competing work rights. (See also Alemo-Herron)

And yet, it is possible that nosotros labour lawyers simply expected also much from a document that was explicitly adopted to codify the existing, cautious together with piecemeal approach to key work rights. And yet still, it is possible to hold upwardly also sceptical. The reality is that the Charter’s Employment Rights practise own got the potential to human activeness every bit a bulwark against legislation that mightiness undermine the rights of workers – inwards special against whatever essay to lower the measure of protection for work rights below the degree established past times retained European Union law.

The Charter’s usage every bit a measure of review is possibly its nigh powerful role together with yet, at to the lowest degree inwards the work field, this role has yet to hold upwardly fully tested. It may hold upwardly that nosotros are leaving the Charter political party before it has fifty-fifty got started. There is no dubiousness that the hierarchy of work police push clitoris norms is at in i lawsuit inwards a state of flux together with nosotros practise non know where the pieces may fall. What nosotros practise know is that, if the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland authorities gets its way, the Charter volition non hold upwardly amidst them. Without the Charter, the human rights landscape inwards the work champaign volition hold upwardly somewhat impoverished. Left at the mercy of the mutual law, it is probable that United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland work legislation volition move inwards an altogether to a greater extent than deregulatory direction.

Barnard together with Peers: chapter 9, chapter 20

Photo credit: Sky News

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