Even though the human rights court in Strasbourg and the convention it enforces are never far from the headlines these days, it is rare to find any mention of another important human rights agreement – the European Union`s charter of fundamental rights. This is understandable: although the charter was "proclaimed" by the EU institutions more than 13 years ago, it did not become legally binding until the Lisbon treaty took effect in December 2009.
Even then, the charter applies only to EU member states when they are implementing EU law. That`s stressed in a discussion paper just published by the European Commission ahead of a major conference on EU justice policy next month (at which I have been invited by the commission to make a short introductory speech).
And you could be forgiven for thinking that the charter simply codifies EU case-law and merely re-states the human rights convention: where the charter contains rights that stem from the convention, their meaning and scope are the same.
Hang on a moment. Decisions by the human rights court do not have direct effect in the UK. Convicted prisoners can`t vote, even though the UK`s blanket ban on prisoner voting was held to be in breach of their human rights as long ago as 2005. And the Human Rights Act 1998 says only that UK courts must take Strasbourg decisions "into account". That does not make them binding.
Where possible, UK courts must give effect to existing legislation in a way that is compatible with convention rights. But if that proves impossible, the most that a higher court can do is to declare the two laws incompatible and let parliament sort it out.
But EU law is different. It has direct effect under the European Communities Act 1972. And that means the EU charter can be used to "disapply" – effectively, to overturn – an act of parliament. That`s the conclusion to be drawn from a recent decision of the employment appeal tribunal, as yet unpublished but available here. The case was won by Paul Luckhurst of Blackstone Chambers. A note on his chambers website says drily that the ruling is "likely to be of wider significance". Adam Wagner, the barrister and blogger who alerted me to it, says "this could be big". The case involved two Moroccan women who were sacked by diplomatic missions in London. Benkharbouche was a cook at the Sudanese embassy and Janah was on the domestic staff of the Libyan embassy. They complained variously of unfair dismissal, unpaid wages and breaches of the working time regulations.
Both their claims were dismissed on the basis that foreign states have immunity from the jurisdiction of the UK courts. Although that immunity is not unlimited, section 4 of the State Immunity Act 1978 gives embassies immunity in respect of staff who are foreign nationals and who are not habitually resident in the UK. So the two women were deprived of the right to bring their claims.
The question for Mr Justice Langstaff, sitting as president of the Employment Appeal Tribunal, was whether there was any way round this statute. Article 6 of the human rights convention gives everyone bringing a civil claim in the UK the right to a fair hearing. But the judge said he could not use the Human Rights Act to change the meaning of the State Immunity Act.
So Luckhurst, representing the two women, turned to EU law. Article 47 of the EU charter also guarantees a fair hearing and an effective remedy. His clients` claims for unfair dismissal were covered by the working time directive, which is part of EU law, although other parts of their claim were outside its scope. Since the charter has direct effect in national law, the question for the appeal tribunal was whether it could disapply national laws that were contrary to the charter in litigation between private parties, as for these purposes they were.
Langstaff decided it could, despite what he described as "the uncomfortable recognition that the domestic legislature took care in the Human Rights Act not to allow the courts to disapply any domestic statute which was in conflict with the European convention on human rights". He allowed the women`s appeals to the extent that they were covered by the working time regulations, as well as claims by Janah for racial discrimination and harassment.
Recognising that he was opening up a rift between the application of EU law and the use of human rights law, the judge granted the embassies permission to appeal. An appeal would also allow the two women to seek a declaration of incompatibility in respect of their unfair dismissal and minimum wage claims – something his tribunal had no power to grant.
The ruling demonstrates once again that EU law trumps laws passed by parliament. Despite all the attention paid to human rights law, EU law is much more powerful.
And it`s a decision that may make life more difficult for ministers. The foreign office will have to tell embassies in London that they can`t sack their domestic staff without paying the compensation to which those staff are entitled under EU law. But what`s wrong with that?
