What is the EU Charter of Fundamental Rights?
The Charter of Fundamental Rights sets out in a single document the fundamental rights protected in EU law. It brings together the rights found in the EU Court of Justice case law, the European Convention of Human Rights (ECHR) and rights and principles arising from the constitutional traditions of EU Member States and their membership of other international human rights treaties.
The Charter is binding on EU institutions and on Member States when they are acting within the scope of EU law.
If domestic law conflicts with a Charter right, judges are under a duty to “disapply” that law if it cannot be interpreted in a way which complies with the Charter. The Charter also forms part of the devolution settlements. Acts of the Scottish Parliament are invalid if they conflict with EU law, including the Charter. Similarly, Scottish Ministers do not have the power to act contrary to EU law, including the Charter.
How does the EU Charter protect children’s rights?
The Charter includes a dedicated provision on children’s rights which draws upon the UNCRC. This provision (Article 24) sets out:
- The right to care and protection
- The right to express views freely
- The best interests of the child principle
- The right to know both parents
The Charter also enhances and updates rights that already exits in other treaties such as the European Convention on Human Rights (ECHR). This includes the right to education.
Children’s rights under the Charter have been translated into practice through EU legislation, policy and case law. This has included areas as diverse as legislation on child-friendly justice, protecting the best interests of unaccompanied asylum-seeking children, and tackling youth unemployment and childhood obesity.
For more information visit the EU Fundamental Rights Agency’s webpage on child rights.
What does Brexit mean for the EU Charter?
The UK Government wants to abandon the Charter after Brexit.
In the EU (Withdrawal) Bill, the general approach is that EU law shall be brought into UK law, but the Bill singles out the Charter as an exception to this.
The UK Government’s position is that removing the Charter shall not result in individuals suffering from lower rights protection. In December 2017 it published a report which attempted to show that every right in the Charter was already protected somewhere else, such as in domestic law or under another international treaty which the UK has ratified.
However, the UK Government’s analysis was criticised in a report by the Joint Committee on Human Rights and a Legal Opinion obtained by the Equalities and Human Rights Commission. Both concluded that the loss of the Charter would result in a reduction in rights, contrary to the UK Government’s claims. For more details see our article on the topic here.
In May 2018, the House of Lords voted in favour of keeping the Charter. However, this may still be rejected by the House of Commons.