Those drafting the EU's new constitution should render unto Caesar that which is Caesar's - leaving it to the discretion of the member-states themselves whether or not to legislate on issues of social policy, writes Gerard Hogan
In the wake of the second Nice referendum, the Government probably hoped that a decent interval would elapse before it and the Irish public would again be required to confront further fundamental reform of the European Union.
Nevertheless, no sooner had the last ballot in the Nice referendum been counted but the Government was faced with a new round of far-reaching proposals from the Convention on the Future of Europe.
One such proposal is that the EU Charter of Fundamental Rights would be made legally binding and a fundamental part of any new European constitution. Although the substantive provisions of the charter had been agreed at the Nice summit in 2000, it was also agreed that, pending review, it would have only the status of a political declaration. At the moment, therefore, the charter is not enforceable in the courts.
At one level, the charter is supposed to do no more than codify an existing body of case law whereby Union regulations, directives or decisions can be challenged on the ground that they infringe fundamental principles enshrined in the constitutions of the member-states or other international human rights instruments, chiefly the Council of Europe's European Convention of Human Rights. If the charter did just that, it might be unproblematic. The charter, however, is far from being so confined.
The first problem is that the substantive rights protected by the charter are really laid out in a manner appropriate to a federal state. Thus, for example, Article 9 provides that: "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."
But there is - as yet, at least - no Union competence in the realm of national marriage legislation, so why must this right be protected at the level of a new European constitution?
A further puzzling feature of Article 9 is that - in common with many other substantive rights guaranteed by the charter - the right is expressed to be subject to "the national laws governing the exercise of these rights". If, for example, a litigant complained that Ireland's failure to permit same-sex marriage violated Article 9, he would be met with the response that the right to marry is governed entirely by national law. And since Irish law does not permit same-sex marriage, the litigant is back in the position he started in and he might well think that Article 9 is a pure tautology.
At this point, we encounter yet another paradox of this charter. Article 51 is the single most important of its provisions in that it provides that the charter will apply to member-states only when they are "implementing" Union law. This issue is crucial because the charter will supersede national constitutions and laws when it applies and it will apply to member-states only when member-states are implementing Union law.
But under what conceivable circumstances could a member state be "implementing" Union law by regulating the right to marry when the member-states have exclusive competence in this area?
The same could be said of a significant majority of the rights contained in the charter, including the rights of the child, the right to criminal due process, and the right to healthcare. These are all areas which are at present within the (virtual) exclusive competence of the member-states.
Article 35 of the charter guarantees "the right to benefit from medical treatment under the conditions established by national laws and practices." The question again has to be asked: in what possible circumstances could member-states be said to be "implementing" Union law in regulating access to healthcare?
It is true that features of the health-care system are subject to regulation by Union law (e.g. the recognition of medical qualifications or access to the market by pharmaceutical products), but the key aspects of the system - ranging from the construction of hospitals to the regulation of admissions - are not. Unless, therefore, it is to be said that the happenstance of accidental factors giving a particular hospital admission a transnational flavour (such as a British doctor in an Irish hospital refusing to admit a Finnish patient) is sufficient to ensure that a member-state is thereby "implementing" Union law, the fact remains that Article 35 will remain entirely illusory.
The charter is also problematic in that it elevates to super-constitutional status matters which, however important, ought by reason of their inherent complexity to be left to legislation. We, of all countries, ought to appreciate this fact given our experience with the anti-abortion clause in the Constitution.
Take Article 18 of the charter, which guarantees the right to seek political asylum in accordance with Geneva Convention. Apart from the fact that the decision to grant asylum is largely a matter for each member-state, it is not clear why this right should have this special status.
There are many (although I do not share this view) who contend that the Geneva Convention system is inappropriate to the realities of contemporary immigration practice. What if the Geneva Convention is substantially amended, as well it might be? This would presumably a trigger an amendment to the charter and, equally presumably, require a further referendum in this country.
There is a precedent here which the drafters of the charter would have done well to bear in mind. Article 16 of the German Constitution originally contained a clause which was very similar to Article 18 of the charter. But the German system was so overwhelmed by the number of asylum- seekers that this clause guaranteeing asylum had to be substantially amended in 1993. In truth, the complexities of immigration law are such that these matters are best dealt with at the level of legislation, treaties and international agreement.
Perhaps the most controversial feature of the charter is its attempt to give socio-economic rights (such as the right to strike, healthcare, education) protected status. Leaving aside once again the fact that most of these charter rights appear to be illusory (since a member-state will rarely be "implementing" Union law in these areas and most of these rights are entirely contingent on national law and practices), it is difficult to understand why the Union should seek to impose such an obligation on member-states. Why should each member-state not be free to make its own decision as to whether the courts should have an active role in these areas?
Some politicians want socio-economic rights to have protection under the charter because it will require member-states to adopt the social market economic model. But this is wrong-headed since neither our Constitution nor the charter should seek to impose a particular economic model, whether that of Berlin or Boston. The US Supreme Court learnt this lesson in the mid-1930s when, in the face of an enormous constitutional crisis, it forever abandoned an interpretation of the US Constitution which had effectively enshrined laissez-faire capitalism.
As it happens, Ireland is the only EU State with the experience of active judicial enforcement of a socio-economic right, namely, the right to education in Article 42 of the Constitution. The last seven years or so saw our courts make decisions such as stipulating the pupil/teacher ratio in special schools to ordering the Government to build detention centres for disadvantaged teenagers. While this had the advantage of improving the lot of hitherto neglected and marginalised children, it also led the courts into very uncertain and potentially dangerous waters.
The claim for socio-economic rights in the charter is made by well-intentioned lawyers and politicians who have a noble and admirable moral vision of how society should evolve. But few of them have any experience of living in a society where decisions regarding the enforcement of socio-economic rights have been taken by the courts.
Moreover, they do not appear fully to comprehend the judiciary's real lack of institutional competence in making policy decisions on the allocation of resources in the health and education areas, or, indeed, the implications of a further transfer of power to an unelected judiciary.
This is not to say that socio-economic rights should not enjoy constitutional protection. But if such a decision is to be made, it ought to be a decision for each individual member- state.
At a recent conference on the charter, a German delegate professed his enthusiasm by comparing its language to that of Goethe and Schiller. For me, however, it is Hans Christian Andersen's The Emperor's New Clothes which comes most vividly to mind. In a manner resembling the obsequious courtiers in the children's story, the reluctance of the European legal community to subject the charter to rigorous analysis is wholly remarkable. This is all the more so given that there is a simple solution to the original problem, namely to amend the existing treaties to permit the Union to accede to the European Convention of Human Rights.
• Gerard Hogan is a lecturer in law at Trinity College, Dublin