The need for Gypsies and Travellers to respond to the Government’s balance of competences review on fundamental rights

From Garden Court Chambers

Marc Willers explains why it is so important that Gypsies and Travellers respond to the Government’s balance of competences review on fundamental rights by submitting evidence before 13 January 2014.

Introduction

The Ministry of Justice (MOJ) issued a call for evidence for a review on the balance of competences between the UK and EU in relation to fundamental rights on 21 October 2013. The deadline for submitting evidence is 13 January 2014.[1]

In essence, the Government seeks evidence and views upon the EU’s framework for ensuring that its member states respect fundamental rights and on its work to promote fundamental rights (through the Fundamental Rights Agency).

One commentator has said that:

‘the Fundamental Rights Review is potentially very important – the stated aim of the Balance of Competences reviews is to audit what the EU does and how it affects the UK government and those residing within the UK more generally. The main website can be found here. …

The Review puts fundamental rights in a somewhat negative light, as a restriction on Member State action: on p10 it says “The key point is that EU fundamental rights constrain what the EU and, in certain circumstances, its Member States can do.” But that is not the key point of fundamental rights at all – the key point is protecting or guaranteeing rights for individuals, organisations, etc., and the UK needs a coherent and strong policy in order to ensure that the rights of individuals and businesses within the UK are properly protected. The EU influences fundamental rights protection in different ways – for example, its institutions and Member States may be constrained to ensure protection of fundamental rights; national courts must follow the CJEU in relation to fundamental rights when interpreting or applying legislation, or considering the lawfulness of public authority action that implements EU law; and the EU’s Fundamental Rights Agency carries out campaigns and educational programmes to promote rights.’[2]

I specialise in providing advice and representation to Gypsies, Travellers and Roma and I consider it essential that those representing and protecting their interests respond to the Government’s call for evidence and emphasise just how important it is for them: that EU law is implemented in a way which is compatible with fundamental rights; and that the valuable work of the Fundamental Rights Agency is recognised and supported by the UK.

The EU Fundamental Rights Framework and the Charter

The requirement to respect fundamental rights as a matter of EU law has been consistently recognised by the Court of Justice of the EU (CJEU) since the late 1960s. In 2000, the EU and its member states adopted the Charter of Fundamental Rights (‘the Charter’). Essentially, the Charter draws together the rights that member states have already committed to respect in other international conventions and covenants (including the European Convention on Human Rights). Indeed, the preamble to the Charter states that:

The Charter reaffirms…the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member State…the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as the Social Charters adopted by the Community as well as by the Council of Europe.

The list includes all the civil and political rights contained in the European Convention on Human Rights as well as a number of economic, social and cultural rights.

When the Lisbon Treaty came into force in 2009, the Charter became a legally binding document with which EU institutions are bound to comply; and with which EU member states must also comply when they implement EU law. Article 51(1) of the Charter states that:

The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with regard for the principle of subsidiarity and to the Member States only when they are implementing EU law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers conferred on it in the treaties.[3]

As a consequence, individuals now have the right to complain that EU law, or national legislation that implements EU law, breaches the Charter. Complaints relating to a member state’s compliance with the Charter, when implementing EU law, can be brought before the national courts (which can then seek guidance from the CJEU on the correct interpretation through the preliminary reference procedure).

My understanding is that up until now there have been few cases where Gypsy and Traveller claimants have relied upon the Charter.[4] That position may change as those representing them become more familiar with its provisions and its scope.

The Fundamental Rights Agency

The EU promotes respect for fundamental rights through the work of the Fundamental Rights Agency (FRA). I think it is vital that we highlight the excellent work done by the FRA on promoting and protecting the fundamental rights of Gypsies, Travellers and Roma throughout Europe by producing important data and research which demonstrates the inequalities and discrimination that they face as vulnerable members of society.[5] For example, see:

FRA’s ‘multi annual Roma programme’

http://fra.europa.eu/en/project/2013/multi-annual-roma-programme

Analysis of FRA Roma survey results by gender

http://fra.europa.eu/en/publication/2013/analysis-fra-roma-survey-results-gender

The FRA report ‘The situation of Roma in 11 EU Member States’

http://fra.europa.eu/en/publication/2012/situation-roma-11-eu-member-states-survey-results-glance

The FRA report ‘Housing conditions of Roma and Travellers in the European Union – Comparative report’

http://fra.europa.eu/en/publication/2011/housing-conditions-roma-and-travellers-european-union-comparative-report and

The ‘EU-MIDIS Data in Focus Report 1: The Roma’

http://fra.europa.eu/en/publication/2009/eu-midis-data-focus-report-1-roma

Without research and data such as that produced by the FRA we would not have had the April 2011 Communication from the Commission to the EU Parliament ‘An EU Framework for National Roma Integration Strategies up to 2020’ which sets goals for Roma inclusion in education, employment, health and housing across the EU.[6]

To that end, EU member states were asked to adopt National Roma Integration Strategies (‘NRIS’), which specify how they would contribute to the achievement of the goals and the FRA was given the important role in monitoring and assisting EU-wide efforts to implement the EU’s plan for Roma integration.

Unfortunately, the UK Government’s response to the EU’s requirement that it adopt a NRIS has been disappointing. Rather than adopt a NRIS in name it published a Progress Report[7] in April 2012 which included 28 ‘commitments’. However, many of those commitments seem to fall well short of the explicit measures that would need to be adopted in order to prevent and compensate for the disadvantages that Gypsies, Travellers and Roma face within our society.[8]

Conclusion

We need to ensure that the UK Government respects fundamental rights when it implements EU law and that FRA continues to be given the support and funding it needs so that it can promote the rights of Gypsies, Travellers and Roma and help eradicate the discrimination and social exclusion that they face as some of the most marginalised and vulnerable members of our society.

Help to achieve those goals by responding to the MOJ’s call for evidence.

Please send your response to the MOJ by midday on 13th January 2014 to fundamentalrightsBoC@justice.gsi.gov.uk

[1]See http://eutopialaw.com/2013/11/25/fundamental-rights-and-the-uks-balance-of-competences-review/ for a summary of the Review.

[2] See Catherine Taroni at http://eutopialaw.com/2013/11/25/fundamental-rights-and-the-uks-balance-of-competences-review/

[3] The UK Government along with Poland sought an ‘opt out’ from the Charter through Protocol No. 30 to the Lisbon Treaty on the application of the charter to Poland and the UK. Whether the Protocol has any substantive effect is questionable. In N.S. v Secretary of State for the Home Department, the Advocate General of the Court opined that it did not amount to an opt out.[3] He held that the wording of Article 1(1) of the Protocol effectively repeated what all member states had already committed to in Article 51.

[4] By way of example, the Charter was used in legal argument by Jan Luba QC, when acting on behalf of the Equality and Human Rights Commission in the important recent case of R(W) v Worcestershire County Council [2013] EWHC 3845 (Admin) as a guide to the interpretation of section 17 of the Children Act 1989 – though the point did not find its way into the judgment (which begins with the words ‘Everyone loves a funfair. They are part of the tapestry of our national life... ). See http://www.bailii.org/ew/cases/EWHC/Admin/2013/3845.html

[5] See http://fra.europa.eu/en/theme/roma

[6] See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0173:FIN:EN:HTML

[7] See http://ec.europa.eu/justice/discrimination/files/roma_uk_strategy_annex2_en.pdf

[8] See the article by Willers and Greenhall at http://www.gypsy-traveller.org/wp-content/uploads/2012/01/TAT-News-Roma-Strategies-18.3.2012.pdf