A Bill of Rights Europe Did Not Need
By Anthony de Jasay
The British government will not submit it to a referendum, the new government in Poland welcomes it, everyone wants to turn the page. The 2007 Lisbon Treaty giving Europe a constitution it has supposedly so badly needed, is now assured of ratification.
Compared to the original draft constitution the French and Dutch referendums threw out in 2005, the “simplified” treaty is still a weighty book (256 pages in the English version). It does most of the things the original was meant to do, though it leaves out much of the federalism that has proved offensive to many. Its most important practical provision is the extension of the double majority rule (majority of states and majority of populations) to new domains. In “social” and fiscal affairs, though, each state retains the power temporarily to opt out of majority decisions. The six-monthly rotating presidency will be replaced by a president elected for two-and-a-half years. The number of commissioners will be appreciably and the number of members of parliament insignificantly reduced. None of this is an earth-shaking change and none looks like doing more harm than good.
Even with the best of good will (which it would hardly deserve), no such benign verdict could be passed on the Charter of Fundamental Rights. The original draft had it as part of the main text, the simplified treaty puts it in an annex but states in the main text that the Charter is binding on the signatories. There is an apparent contradiction between some “social” provisions of the Charter and the “opt-outs” granted to states in the text, but this is dwarfed by graver blunders, ambiguities and risks of twistable interpretation.
Ultimately, the Charter transfers part of the power of shaping “social” and economic policy from national governments to the judges of the European Court of Justice. There is an albeit imperfect parallel here with the gradual transfer of policy-making in the United States from the Congress to the Supreme Court. We cannot argue that elected governments make better policy than unelected judges. But we cannot argue, either, that it is a good thing that constitutions, and bills of rights in particular, do have the unintended effect of giving the judicial interpretation of poorly drafted texts the upper hand over politics. There must be less erratic ways of reducing the scope of politics.
In the matter of poorly drafted texts, the Charter would be hard to surpass. Consider Article 14:
“Everyone has the right to education and to have access to vocational and continuing training. This right includes the possibility to receive free compulsory education.” (my italics) Every italicized word is either open-ended, ambiguous or meaningless, and “right to be compelled” takes the prize for stark fatuity.
A text of this quality inspires derision and would embarrass the courts if they were petitioned to grant ever fuller exercise of these rights. Other rights laid down in the Charter should leave them just baffled. Article 3: “Everyone has the right to respect for the integrity of his or her physical and mental integrity.” Article 6: “Everyone has the right to liberty and security of person”, and Article 9: “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights” (i.e. the Charter confirms that national laws shall be kept—but since affirming the contrary would be sheer nonsense, what is this “right” supposed to do? National laws must be kept anyway because they are laws. To single out some and “guarantee” them throws suspicion on the others that are not so singled out).
Another example of sloppy drafting that is more than just a lawyer’s quibble is the right to strike. Article 28: “Workers and employers or their respective organisations have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.” (my italics) If this clause simply means that national laws and practices must be respected, it is redundant. If it is trying to say more, large open questions arise. If employers have the same rights as workers, are lockouts as sacred as strikes? Do strike-breakers have rights and do pickets have rights to stop them in certain ways? What about “secondary” picketing? If the Charter cannot go into these details, it would do better not to proclaim the right to strike and leave it at that.
At a more fundamental level, the Charter confuses freedoms and rights, and dispenses rights with an open hand as if it were oblivious that when it grants rights to some, it must impose obligations on others.
Freedoms are acts that under the rule of law (or, more deeply still, under the conventions and customs spontaneously adopted by a society and embedded in its practices) violate no prohibition. Sitting down and standing up are freedoms, as are myriads of other acts that do not interfere with the freedoms of others. If they did, they would violate a prohibition. Speaking your mind is a freedom because others would run into prohibitions if they forced you to keep still by threats of doing you serious harm. Article 15 grants you the right to engage in freely chosen or accepted work, Article 17 the right to own, use and dispose of property. All these acts are freedoms for they violate no prohibition. It is curious to grant a “right to a freedom”, that is a right to do what you are free to do.
If the Charter is nevertheless handing out “rights to freedom”, it is tacitly conveying one of two things. Either the freedoms not enumerated as “rights” in the Charter matter less than those that are enumerated; or it does not suffice for an act to violate no prohibition if the Charter does not also declare it to be a “right”. Planting either of these ideas in the public mind—a mind already heavily influenced by the “rightsism” of modern political thought—is an excellent means of stifling the idea of freedom. The framers of the Charter no doubt meant to achieve the opposite, but they clearly failed to grasp what a Bill of Rights is liable to do.
Unlike freedoms that define relations between your own acts and a set of publicly accepted prohibitions, rights define a relation between you, another person and acts you have the option to require the other person to perform to your benefit. If you have the right to work, there must be another person somewhere who is under an obligation to offer you work. If you have a right to unemployment pay, somebody is obliged to pay it. The whole welter of welfare rights must be matched by obligations of the pubic authorities (and ultimately the employer or the general taxpayer) to provide the means without which these rights would remain empty humbug.
However, just like electoral manifestos and books on social justice, the Charter is voluble on rights and mute on the obligations they entail. It is mute, probably not out of cynicism, demagogy or shrewd calculation, but more likely because its framers were not clear-headed and tough-minded enough to see through the implications of what they were doing.
Some of the rights the Charter grants not only place a burden on an unseen, unmentioned obligor, but may actually end up by harming the right-holder to whom the Charter meant to do a good turn. The prohibition of organ transplants involving financial gain, thus reducing the supply of organs available for transplants, may be a case in point. One with a wider impact on material welfare is “labour market flexibility” or rather its opposite. Article 30 gives every worker protection against “unjustified dismissal”. Under the freedom of contract, employment can be terminated on terms provided for in the contract (e.g. notice, severance pay). The Charter now chisels into constitutional granite what the International Labour Office has just claimed to be “international law”, namely that termination of employment must be justified. Whether it is or not can only be finally settled by legal action in the courts, and subject to an appeals procedure. We now know well enough that if the employer cannot fire, he will not hire, so that it is the worker who loses out from “job protection.” However, an article reading “Every party to a labour contract has the right to terminate it on terms previously agreed” would not at all look good in a Bill of Rights—besides being unnecessary, for contracts are freedoms and do not require a “right” before they can be concluded and performed.
The State is also available online on this website.
For more articles by Anthony de Jasay, see the Archive.