Why the Charter won’t re-introduce the Death Penalty

Believe it or not there appears to be quite a lot of people who believe it will.

For this one we have to go back to the beginning.

When the European Convention on Human Rights was being written in 1949 many, if not most, European countries still had the death penalty. Rather than prohibiting it, Article 2 provided safeguards for when it was carried out. Here’s Article 2, quoted in full:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.”

In McCann v. United Kingdom (commonly referred to as the Gibraltar case) the European Court of Human Rights described the second paragraph of Article 2 as follows:

“[P]aragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than ‘absolutely necessary’ for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c).”

Over the years many countries have abolished the death penalty. Frequently as in Ireland’s case by abolishing it in practice and then by legally prohibiting it. In 1983 the Council of Europe approved a protocol to the Convention abolishing the death penalty in peacetime. In would appear that not enough countries would agree, at the time, to abolishing the death penalty in all circumstances. Protocol 6 has now been ratified by every Council of Europe member state except Russia. It’s operative provisions read as follows:

“Article 1 – Abolition of the death penalty
The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.

Article 2 – Death penalty in time of war
A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.”

By 2000 during the convention which drafted the Charter of Fundamental Rights, all of the then fifteen EU member states had ratified the protocol. The Charter is (sometimes) more economical with words that the Convention on Human Rights and simply says that:

“Article 2
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.”

However the Charter also says (Article 52(3)) that its provisions should be interpreted in line with the Convention and so an explanatory memorandum, which accompanies the Charter, refers to the,

“‘negative’ definitions appearing in the [Article 2 of the Convention which] must be regarded as also forming part of the Charter”,

and then goes on to quote the second paragraph of Article 2 of the Convention and Article 2 of the Protocol 6. (I’ve already quoted both.) In doing this, the writers of the memorandum merely mirrored the pre-existing international obligations all EU member states had at that time.

Some two years after the Charter was approved by EU leaders in 2000, the Council of Europe approved Protocol 13 of the Convention which abolished the death penalty in all circumstances. As yet not all EU member states have ratified this protocol, so it is understandable that the memorandum was not changed to quote this new protocol instead of Protocol 6.

The death penalty myth confuses the Convention’s provisions on the death penalty with those on the use of lethal force. The Convention envisaged the quelling of riots and insurrections possible justifications for the use of lethal force, not executions. Protocol 6 of the Convention provided for the abolition the death penalty in peacetime, not its re-introduction during wartime. Rather than re-introducing the death penalty for “war, riots [and] upheaval”, the Charter reflects every EU member states’ current obligations under the European Convention on Human Rights.

Why the Treaty won’t replace the Irish Constitution

One the recurring and pernicious accusations made against the Lisbon Treaty, and before against the European Constitution, has been that, if ratified, it would replace the Irish Constitution. The Irish Constitution, for the most part, describes the relationships between the national institutions that it established (or, in reality, continued). It describes how members of the Oireachtas are to be elected, how the Supreme Court is to be appointed, and what their powers are. If the Lisbon Treaty were truly going to replace the Irish Constitution, it would have to cover these topics. It doesn’t. The European Union treaties, Lisbon or otherwise, govern the relationship between EU institutions and what powers each has. The Irish Constitution gives no more indication of how the President of the European Commission gets into office than the EU treaties give of how the Taoiseach gets into office. It is a simple point: in order for one legal document to implicitly repeal another it must deal with the same subject matter.

The one commonality that the Irish Constitution and the EU treaties would have in common, if Lisbon is ratified, is in the area of fundamental rights. Yet, even the degree to which real conflict could be encountered here is limited if not non-existent. The reason for this can be seen in the Charter itself. Article 51 of which reads as follows:

“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union 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 of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.”

The inclusion of the Charter in the treaties, will not allow the European Court of Justice to make rulings of general application. Any rulings they might make will only apply within the scope of EU law. The ECJ will not be able to invalidate national acts of parliament which are unrelated to the European Union. In order to do either of these things, the Charter would have to “extend the field of application of Union law” or increase the EU’s powers. The Charter itself explicitly states that it does neither of these things.

Moreover, protecting the rights in the Charter could not be the principal purpose of EU legislation — the Charter would have to create new powers or tasks for the EU in order to do this — but both the EU and its member states would have to respect the Charter when passing and implementing EU legislation. In practice this would mean that the rights contained in the Charter, could not be used as a sword to attack national measures, but rather as a shield to defend actions or national laws which might otherwise be contrary to EU law. (It could, of course, be used as a sword to attack EU legislation.)

The Charter’s and the Irish Constitution’s rights’ provisions would operate within their respective spheres. EU laws could be challenged before the EU’s courts, Irish laws before Irish courts. The only crossover is when Irish laws implement European ones, a point which in practice means much less than you might think. In order to arrive at the point of questioning the validity of an Irish implementing measure, the European Court of Justice would first have to decide that:

1. The EU law in question doesn’t infringe the Charter of Fundamental Rights but,
   
2. The Irish measure implementing the EU law in question does.

Since most implementing measures are, more or less, a slightly altered version of the law they are implementing, it’s not difficult to see the whole question as a matter of splitting-hairs. In practice, since the European laws will be interpreted in accordance with the Charter, Irish laws which implement those laws will have to be interpreted in accordance with the Charter as well. Hardly revolutionary!

Neither does the fact that the ECJ might be able to invalidate Irish statutes, mean that our Supreme Court loses its ability to do so. The latter has long held the jurisdiction to examine Irish implementing measures to see if a more ‘constitution-friendly’ method could be used. In Greene v. Minister for Agriculture the Supreme Court ruled that:

“Undoubtedly membership of the Communities required Ireland to implement a scheme complying with directive 75/268 but it does not follow that any and every scheme drafted in pursuance of that directive and meeting its purpose is necessarily required by our membership of the Communities.”

Rather than replacing the Irish Constitution, the Charter of Fundamental Rights would mirror its protections at a European level.

What I should have mentioned in my last post...

After reading my last post about the Charter of Fundamental Rights, you're probably asking yourself the following question:

Why shouldn't the Irish Supreme Court be allowed to strike down European Union legislation if it conflicts with the fundamental rights set out in the Irish Constitution?

Here's why.

1. It's not just a question of our Supreme Court. There are twenty-six other member states, most of which have similar courts. Imagine the problem like this.

Suppose we abolished the Supreme Court but continued to let each High Court strike down legislation that they thought was unconstitutional. So far so good, you might think. You'd be wrong! Different judges interpret the law in different ways. Without an appeals mechanism to arbitrate over disagreement, chaos would reign. What was constitutional one day might be unconstitutional the next, or even the same day before a different judge.

For proof of this, just think of the number of majority decisions give by the Supreme Court itself: the X Case, Crotty, Norris, McGee and Re a Ward of Court, are just the ones I can think of, off the top of my head. And this only includes the decisions we allow the Supreme Court judges to give dissenting opinions: for post-1937 statutes, they're prohibited.

This would be how the EU would (not) work if the courts of every member states were allowed overturn EU legislation.

2. Different member states have different kinds of constitutions. French and British judges aren't allowed consider the constitutionality of legislation. The United Kingdom doesn't even have a written constitution. It would be unfair if judges in some countries could strike down European legislation and others couldn't.

3. Some constitutions are easier to amend than others. Member states whose constitutions are easier to amend could opt themselves out — so to speak — of any EU legislation they didn’t like, by amending their constitutions.

4. There would be no way of knowing which European laws applied to which member state. Without the guarantee that other member states have to implement the same legislation that we do, why would anybody ever implement any European legislation?

In my next post I really will deal with the relationship between the Charter and Irish Constitution, and why the former won't replace the latter.

The Charter of Fundamental Rights

This is the first of a series of posts I’ve decided to write about the Charter of Fundamental Rights. The Charter was written some eight years ago but will only come into the force if the Lisbon Treaty is ratified. It was previously included as the second part of the European Constitution. In this post I will deal with the reasons that have led to the Charter’s adoption.

In the late 1960s a German administrative court in Frankfurt ruled that certain regulations of the then European Economic Community were unenforceable as they violated the principle of proportionality enshrined in German Constitution law. This interpretation was disputed and in 1970 the court referred the matter to the European Court of Justice. The latter court responded that:

“The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure”. Internationale Handelsgesellschaft.

The decision exposed a problem created by the EEC's fledgling legal system: by transferring powers to the supranational European institutions, national courts had lost their ability to review the validly of legislation, and the European Court of Justice did not have any rights charter against which legislation could be judged. Government ministers could, in theory, pass laws in Brussels that their national constitutions and courts wouldn’t have allowed them to do at home.

In order to allay fears of forfeiting rights' protections, the European Court of Justice, in the same case, declared that “respect for fundamental rights forms an integral part of the general principles of [Community] law”. The Court then invoked the (ostensibly German) principle of proportionality, but ruled that the disputed measures — which related to a system of deposits in the corn market — was proportional and valid.

On receiving the ECJ judgement, the administrative court asked the German Constitution Court what it should do. The latter court accepted the supremacy of EEC law over the German Constitution with a caveat. Since the EEC lacked a “codified catalogue of fundamental rights” (Solange I), the German Constitutional Court would reserve for itself the last word on the enforceability of European rules in Germany.

The Charter of Fundamental Rights of the European Union is intended as that codified catalogue which the EEC lacked. The ECJ has greatly developed its human rights jurisprudence over the years by discovering fundamental principles, but the EU still lacks this written catalogue. A written catalogue would make protection of human rights by the ECJ more visible and give the area more clarity. It would also guarantee that the rights of citizens are as protected at European level as they are at national level.

In my next post I'll deal with the relationship between the Charter and Irish Constitution, and why the former won't replace the latter.

Post Script

Please have a read of: What I should have mentioned in my last post. And leave any comments you might have there. MJ.

The Game is on...

The referendum campaign has officially begun. So much for the Daily Mail saying that the date was going to be the the 29th of May.