The Charter of Fundamental Rights: It's alive!

Today’s ECJ ruling on insurance premiums, which will mean insurers can no longer offer different products and prices to men and women based on their sex from December 2012 (since that constitutes discrimination in the ECJ's eyes), has thrown up an interesting discussion about the Lisbon’s Treaty Charter of Fundamental Rights. It has passed under the radar of the media, which understandably have focused on the consumer angle.

The discussion on the Charter could appear boring but it’s actually very important.

This is because the UK negotiated a protocol on the Charter when the Lisbon Treaty was agreed, amid concerns that the Charter would take on a life of its own and impact on British rights legislation in ways that were deemed disproportionate or detrimental, either directly or indirectly. In fact, the protocol was one of the reasons cited by the previous government in support of not giving people a referendum on the Lisbon Treaty.

The Protocol states that the Charter “does not extend” the ability of the ECJ to find that UK law is inconsistent with the rights and principles elucidated in the Charter. Originally, the UK Government claimed to have an ‘opt-out’ from the Charter, but this was never accurate. Indeed then Europe Minister Jim Murphy eventually admitted: “It is clear that the UK does not have an opt-out on the Charter of Fundamental Rights.”

That’s history, unfortunately, but what isn’t history is today’s ruling. It’s clear that the ruling bases a significant chunk of its reasoning on the Charter of Fundamental Rights. It’s also clear that the ruling will have direct impact on the UK. In fact, the ruling will have a disproportionately large impact on the UK given that Britain is home to Europe’s largest insurance industry.

But despite drawing heavily from the Charter, there are no references to opt-outs for the UK in the ECJ’s ruling, or protocols or anything else. None.

And just to set this straight – in the ruling, the ECJ does base its reasoning on the Charter. The 2004 Gender Directive is the main driving force, but the Charter provides plenty of ammunition as well. Over on his Economist blog, Bagehot claims that we’re “not quite correct to say that the ruling was based on the Charter of Fundamental Rights, from which Britain supposedly has an opt-out. The court instead looked at a 2004 Gender Directive...”

This is just wrong. Looking at the full text of the ruling, it becomes clear that the ECJ rules that the insurance industry’s derogation from the Gender Directive is incompatible with both the spirit of the Directive itself AND articles 21 (non-discrimination) and 23 (equality between men and women) of the Charter of Fundamental Rights. Clauses 17 and 32 of the ruling put this beyond doubt:

“17. Articles 21 and 23 of the Charter state, respectively, that any discrimination based on sex is prohibited and that equality between men and women must be ensured in all areas. Since recital 4 to Directive 2004/113 expressly refers to Articles 21 and 23 of the Charter, the validity of Article 5(2) of that directive must be assessed in the light of those provisions (see, to that effect, Joined Cases C 92/09 and C 93/09 Volker und Markus Schecke and Eifert [2010] ECR I 0000, paragraph 46).”

And,

“32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.”

Now, we can argue about whether the Charter is creating "new legal rights" or is in fact the ultimate basis of the ruling (as opposed to the Gender Directive) . But this only shows why the UK's protocol on the Charter never was credible. Anyone who can read can see for himself that the Charter is inspiring the ECJ to rule the way it does on gender-based insurance premiums - which in turn has a huge impact on the UK.

In other words, the Charter is alive and well - also in Britain.

Combining everything that is wrong with the EU's judicial system

Over on Conservative Home, we take a look at today's ECJ ruling on insurance premiums, we argue:

This morning, the European Court of Justice ruled to scrap the insurance industry's opt-out from the EU's 2004 Gender Directive, which will mean insurers can no longer offer different products and prices to men and women based on their sex from December 2012.

This may appear like an everyday consumer story, but it's not. In fact, it's difficult to find an example which better illustrates why EU judges need to be reined in and David Cameron needs to revisit his election promise to limit the jurisdiction of the ECJ and the application of the Charter of Fundamental Rights, entailed in the infamous Lisbon Treaty.

Of the two European courts - the ECJ in Luxembourg and the European Court of Human Rights in Strasbourg (ECHR) - the former is clearly the one with the most influence. On occasion, the ECHR rules on highly symbolic and emotionally charged issues such as prisoners' right to vote - rulings which rightly get a lot of attention. But the influence of the ECJ creeps in to a whole range of areas, striking deep into British society and the economy, from working time for junior doctors to the governance of the UK's most important national industry - the City of London.

The ECJ's ruling this morning combines virtually everything that is wrong with the EU's judicial system. And there's a lot going on. Here goes:

Unnecessary cost of EU laws to individual consumers: Open Europe estimates that the insurance industry will have to raise nearly £1 billion extra to cover itself against the uncertainties created by the ruling - a large chunk of which is likely to be passed on to individual consumers. Moreover, taking motor insurance as an example, a 17 year old female driver will now have to pay an extra £4,300 in insurance premiums by the time she reaches the age of 26 as a consequence of the ruling. In a worst case scenario, women drivers' cumulative insurance costs between the ages of 17 and 26 could increase by as much as £9,300. Young male drivers would on average save an estimated £3,250 over the same period of time (despite displaying riskier behaviour behind the wheel), but the cost to consumers taken as a whole will clearly increase (and men will in turn lose out on their pensions, as a consequence of the ruling).

The unintended consequences of EU laws: Just as was the case with the Working Time Directive - which the ECJ has extended on eight separate occasions, imposing a huge cost on the NHS and the UK economy - the ruling shows how an EU law can change in the most unpredictable way after the UK government has signed up to it (lesson: don't sign up to EU laws without first thinking through all possible unintended consequences).

The EU's endemic democratic deficit: No one in the UK ever objected to the practice of charging men and women different insurance premiums, not individuals, not consumer groups, not UK judges and certainly not democratically elected MPs. And yet, this practice has been scrapped by judges that no one ever voted for, based on a case brought before the courts in a different country (Belgium).

Human rights legislation out of control: The ECJ argued that using gender to differentiate between male and female insurance policies is in violation of EU law on human rights, meaning that despite the fact that roughly 95% of driving offences causing death or injury are committed by young men, the judges could rule that - perversely - taking such evidence into account violates young men's rights. Is this really what human rights law should be about?

The blurring of the line between the ECJ, the Commission and the ECHR: In its ruling, the ECJ made references to both the European Convention on Human Rights, overseen by the Council of Europe (and not an EU institution) and the EU's Charter of Fundamental Rights. This sounds techy, but illustrates the complex web of European human rights law that is now in the hands of European judges at both the Council of Europe's ECHR in Strasbourg and the EU's ECJ in Luxembourg.

In other words, the case law of the ECJ and the ECHR is becoming progressively more blurred as EU judges continually make references to the European Convention on Human Rights in their rulings. In a lecture last year, the Lord Chief of Justice Lord Judge noted that, "The [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg." This hugely confusing fudge raises a range of questions about accountability.

The UK government does NOT have an opt-out from the Lisbon Treaty's Charter of Fundamental Rights: Do you remember the claims that the UK had won an "opt-out" from the Lisbon Treaty's Charter of Fundamental Rights (supposedly one of the Labour Government's "red lines" on the Lisbon Treaty and an alleged reason why the promised referendum wasn't called)? Well, as we've argued again and again, there never was such an opt-out and this case clearly illustrates why. The Court draws heavily from the Charter in its ruling - and there's no question whatsoever of the UK not being affected by it. In fact, it impacts on the UK the most, as it is home to Europe's largest insurance industry.

The Conservative election manifesto promised to negotiate a firm opt-out from the Charter before Coalition politics became one of the new realities of life. It also promised to tackle virtually all the other problems so clearly illustrated by this ruling. The Coalition has taken some positive steps on EU reform, but how much longer can they dodge this key issue?

What will be the consequences of the legal patchwork of European human rights?

With MPs debating voting rights for prisoners tomorrow, there has been plenty of media attention focussed on the European Court of Human Rights (ECHR). But what does this have to do with the EU?

Despite the often repeated misconception, the ECHR and the EU are separate beasts and the UK could potentially withdraw from the ECHR without having to leave the EU. However, it is also wrong to say that “the EU has nothing to do with the ECHR”, which a surprising number of commentators have over recent weeks.

As the briefing we published yesterday shows, future EU accession to the ECHR, the EU’s Charter of Fundamental Rights and the growing amount of EU rights legislation is blurring the lines between the two to the extent that is becoming increasingly difficult to separate them.

EU accession to the ECHR (the negotiations started last year) could allow ECHR rulings to impact on the UK through the back door. The UK would be forced to accept any EU law modified in response to an ECHR ruling.

The case law of the EU's European Court of Justice in Luxembourg and the ECHR in Strasbourg is also becoming increasingly intertwined with the ECJ referring to the European Convention on Human Rights more regularly.

And the EU's so-called “Stockholm Programme”, a five year programme for EU justice and home affairs legislation, will also grant EU citizens new rights that potentially go beyond the European Convention on Human Rights, particularly in criminal and judicial proceedings. Only last year the Lord Chief Justice Lord Judge made this very point, saying that: “The European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for [the ECHR in] Strasbourg.”

Lord Judge added,

“The EU has recently signed up to what is called a ‘roadmap’ of five areas of criminal procedure which must be addressed within the next 5 years to protect and guarantee the rights of EU citizens. I thought that was the job of the Convention.”

So, even if the UK Government does magically reach a compromise with the ECHR this will not be the end of it. The confusing array of rights at the European level is only going to become more so and the types of legal wrangling we are seeing over prisoners voting rights is only likely to occur more often.

A discussion on the need to bring back some control over human rights legislation cannot be limited to the ECHR alone, but must, as a matter of fact, also include the EU itself. A start would be to seek a cast-iron opt-out from the Lisbon Treaty's Charter of Fundamental Rights - which, incidentally, the Conservatives promised ahead of last year's general election.

So far the only thing that is for certain is that the consequences of this legal patchwork of European rights are as clear as mud.