Irish protocol will copper-fasten right to life of the unborn

Fri, Sep 18, 2009, 01:00

OPINION:The new text will also help to protect family rights and education

THE POTENTIAL impact of the Charter of Fundamental Rights (which is given the same “value” as the Lisbon Treaty) is at the heart of the referendum debate. The question of how the charter will interact with national constitutions and national laws is one of some uncertainty, although the decision of the Czech Constitutional Court on Lisbon ratification last November and the Irish protocol secured by the Government last June are hugely important new factors in the equation.

As Article 51 provides that the charter will apply to member states only when they are “implementing” EU law, much may depend on how this phrase is interpreted.

If this term is given an expansive interpretation (which, on balance, may well yet happen), then the application of the charter might perhaps be triggered by ultimately accidental factors such as geography or nationality, so that the guarantees on adequate healthcare might come into play where, for example, a foreign worker, injured in the course of availing of his EU free movement rights, claimed that the local healthcare was inadequate for this purpose. If that “maximalist” interpretation of the charter were adopted, then one could see how the role of national courts could perhaps be eclipsed by European Court of Justice rulings (ECJ). This would be especially true in this country in respect of the new socioeconomic and workers’ rights contained in the charter, which have no direct counterpart in the Constitution.

The Czech Constitutional Court wrestled with this very issue in its Lisbon decision, admitting that “at the abstract level” it was “difficult to evaluate whether individual rights and freedoms ensured [in national constitutions on the one hand and in the EU charter on the other] are in harmony with each other”. It stressed, however, that save for those areas where competence had been transferred to the EU, “the standard of protection based on the constitutional order of the Czech Republic is fully autonomous and independent of the union standard in that regard”. These are sentiments which our own Supreme Court would most certainly endorse. They would also agree with the Czech court’s observations that: “The relationship between the European Court of Justice and the constitutional courts of member states will not be placed in a hierarchy in any way; it should continue to be a dialogue of equal partners, who will respect and supplement each other’s activities not compete with other.”

Where, then, do we stand on the potential impact of the charter? There are some areas where the charter was never going to have any impact on Irish constitutional law. Abortion is a prime example. At the moment, the Maastricht Protocol (1992) immunises the anti-abortion provisions of Article 40.3.3 of the Constitution from any possible encroachment from EU law. Protocol 35 of the Lisbon Treaty reinforces this provision, and thus reapplies the Maastricht Treaty to the entirety of the Lisbon Treaty, including the charter.

The text of the new Irish protocol secured by the Government (which will enter into force post-Lisbon at the earliest opportunity) since the first referendum will not only further copper-fasten the right to life of the unborn (as if such were needed), but will also ensure that neither the charter nor the treaty “affects in any way” the provisions of Articles 40 to 44 of the Constitution insofar as they relate to the protection of life, family rights and education.

The supremacy of the Constitution and the role of the Supreme Court is thus reasserted and put beyond doubt in relation to these provisions, even if a “maximalist” interpretation of the charter were ever to be adopted by the ECJ. Thus, these are areas which might have been affected by a “maximalist” interpretation of the charter, but which by reason of the new protocol will not now be affected.

Given that these areas of sensitivity are thus immunised from the effect of the charter, then the charter’s impact is likely to be felt here only in respect of these new socioeconomic and workers’ rights, which at present have no express protection either in the Constitution or, for that matter, in the EU treaties.

Gerard Hogan is a senior counsel