[PROTOCOL

HUMAN RIGHTS:

IMPLEMENTATION OF BINDING CHARTER OF FUNDAMENTAL RIGHTS

WILL RESULT IN UNHINDERED CONTROL

OVER ENTIRE U= K JUSTICE SYSTEM

[Protocol on the Application of the Charter of Fundamental Rights of the European Uni= on to Poland and to the <= st1:place w:st=3D"on">United Kingdom]

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

Amendment:

Clause= 2, page 1, line 12, after ‘excluding’ insert –

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‘= ;(i) the Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Ki= ngdom; and

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(ii)’.

Protocol:

“PROTOCOL

ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS

OF THE EUROPEAN UNION TO POLAND AND TO THE UNITED = KINGDOM

THE HIGH CONTRACTING PARTIES,<= /p>

WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights= , freedoms and principles set out in the Charter of Fundamental Rights of the Europe= an Union;

WHEREAS the Charter is to be applied in strict accordance with the provisions of the

aforementioned Article 6 and Title VII of the Charter itself;

WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article;<= /span>

WHEREAS the Charter contains both rights and principles;

WHEREAS the Charter contains both provisions whi= ch are civil and political in character and those which are economic and soc= ial in character;

WHEREAS the Charter reaffirms the rights, freedo= ms and principles recognised in the Union and makes those rights more visibl= e, but does not create new rights or principles;

RECALLING the obligations devolving upon Poland and the United Kingdom under the Tr= eaty on European Union, the Treaty on the Functioning of the European Union, a= nd Union law generally;

NOTING the wish of Poland and the United Kin= gdom to clarify certain aspects of the application of the Charter;<= /span>

DESIROUS therefore of clarifying the application= of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciabil= ity within Poland and wi= thin the United Kingdom= ;

REAFFIRMING that references in this Protocol to = the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter;=

REAFFIRMING that this Protocol is without prejud= ice to the application of the Charter to other Member States;

REAFFIRMING that this Protocol is without prejud= ice to other obligations devolving upon Polan= d and the United Kin= gdom under the Treaty on European Union, the Treaty on the Functioning of the = European Union, and Union law generally,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

ARTICLE 1

1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or admi= nistrative provisions, practices or action of Poland= or of the United K= ingdom are inconsistent with the fundamental rights, freedoms and principles tha= t it reaffirms.

2. In= particular, and for the avoidance of doubt, not= hing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United King= dom has provided for such rights in its national law.

ARTICLE 2

To the extent that a provision of the Charter re= fers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.”=

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Expl= anation:

The EU Charter of Fundamental Rights = is no longer a mere declaration. The Charter was approved by the European Coun= cil at Nice in December 2000, but at that time, it was limited to a political declaration. This has not prevented the European Court of Justice from refe= rring to rights recognised as “fundamental righ= ts” under the Charter throughout its case law. Despite it having no legally bin= ding character up this point, it has already had a massive impact on EU law. As Bill Cash MP recently said R= 11; even if the Charter of Fundamental Rights is a declaration “the European Court would still construe any such declaration as being matter for the European Court, taking “precedence over those by national judges.”” There= fore, “putting the Charter in the Lisbon Treaty, in these matters, will hand the jurisdiction to the Eu= ropean Court with even more disastrous consequences t= han at present.”

Although the Charter of Fundamental Rights was not incorporated into the Lisbon Treaty it will be an integral p= art of it, and it will now be legally binding. According to Article 6 of the Li= sbon Treaty it "… shall have the same legal value as the Treaties.” Member States are required to comply with the Charter when implementing Community law. Obviously, the ECJ will have jurisdiction to hear actions brought by the Commission against a Member State for infringing the Charter when implementing Community law. Moreover, by the preliminary reference procedures, any concerns such as the compatibility of= a Member State act when implementing Community law with the Charter or compatibility of Community legislation with the Charter will be referred to the ECJ.

Terrifyingly, individuals may in any court invoke the Charter of Fundamental Rights when the court ma= tter has a connection to Union legislation. The Charter lays down rights, such a= s = protection in the event of unjustified dismissal, right to limitation of maximum working hours and the right of collective bargaini= ng and action. These rights will be acted upon in the national courts. It will impose huge burdens on UK business.

The UK has a Protocol on the Applicat= ion of the Charter which the Minister of Europe as well as the Foreign Secretary have even explained to the European Scrutiny Committee is not an opt out fr= om the Charter but "it is a statement of how the Charter provisions will apply in the UK." Moreover, they say "the Charter provides no gre= ater rights than are already provided for in UK<= /st1:country-region> law, and that nothing in the Charter extends the ability of any court to st= rike down UK<= /st1:country-region> law". This Protocol states that neither the UK courts nor the European Court of Justice may declare UK law incompatible with the Charter.

However, the preamble to the Protocol stressed “… that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Un= ion law generally.” Hence, the Protocol will not prevent the UK Courts fr= om being bound by the ECJ interpretations of Union law measures based on the Charter= .

The <= st1:place w:st=3D"on">UK courts will be politically= compelled to follow an ECJ ruling interpreting a measure of Union law. Considering th= at most UK laws now are m= erely transposed EU laws, the ECJ will begin to have complete jurisdiction over a= ll areas of the UK. Under existing Article 10 TEC and new Article 3a (3) TEU in order to ensure= the uniform application of the Union law in the Member States the UK courts are compelled to follow an ECJ ruling interpreting a measure of Union law in a = case arising in another Member State. The UK will be bound by the Court of Justice rulings if it interprets Union law as implemented in other Member States in conditions where the same law is also implemented in the U= K.

For instance, the right to limitation= of working hours might be used by the ECJ to undermine the UK’s opt-out from the Working Time Directive. A Member State may make a reference to the ECJ concerning the interpretation of the working time directive. As the European Scrutiny Committee said, it is possible that the= ECJ “having regard to the provision in the Charter that “every worker has the right= to limitation of maximum working hours”, might find that the derogation from the Directive allowing a waiver of the 48 hours limit on weekly working had to be interpreted mo= re strictly than before.” The UK courts would be bound by t= his ruling. The UK courts = will not be able to ignore ECJ rulings when considering the interpretation and validity of UK law implementing Union law.

Past experience of UK-EU relations te= lls us that the ECJ will interpret measures of Union law such as directives according to the Charter. Hen= ce, the outcome of such interpretation will bind UK courts through the UK obligations under the Treaties and R= 20;Union law generally.” Hence, according to the ESC “the only way of ensuring that the Chart= er does not affect UK law= in any way is to make clear … that the Protocol takes effect "notwithstanding the Treaties or Union law generally." The conclusions of the ESC have not been read or analysed and any intention to pass the Charter and th= is Protocol will result in massive long-lasting damage on all areas of future = UK legi= slation.