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		The Impact of the European Charter of Fundamental Rights and the Proposed EU Constitution on the Domestic Policies of EU Member States By Richard G. Wilkins* and Marya Reed** Executive Summary The new European Charter of Fundamental Rights ("Charter") has sparked a debate between those who wish to emphasize (and perhaps expand) the protection of human rights within the EU and those who fear the growing dominance of EU law over the national sovereignty of member states. The drafters of the Charter - and the proposed EU Constitution - sought to deflect some of this controversy by providing that the Charter and Constitution create no new powers or tasks for the EU, should be interpreted to be consistent with existing European treaties and member state constitutions, and should be applied pursuant to the principle of subsidiarity. These provisions probably will not prevent dramatic expansion of EU power if the Charter is adopted as part of an EU Constitution. The principle of subsidiarity has not (to date) provided a significant level of protection for local decision making in Europe. Constitutional experience in the United States suggests that pliable doctrines such as subsidiarity are unlikely to safeguard the potentially valuable and unique constitutional perspectives of the constituent members of a shared-power governmental structure. As originally drafted, the Bill of Rights to the U.S. constitution did not apply to the states. Furthermore, the Ninth and Tenth Amendments to the U.S. constitution - like the Charter's subsidiarity principle - were designed to prevent centralization of power in the federal government. Eventually, however, U.S. courts concluded that the provisions of the Bill of Rights were applicable to state governments because they were "fundamental" to an "American scheme of justice." The subsidiarity provisions of the Ninth and Tenth Amendments did not stand in the way of that conclusion. It is doubtful that the European notion of subsidiarity will provide any sturdier protection for the governmental discretion of EU member states. Thus, perhaps the most vital issue raised by the Charter and proposed EU Constitution is the distribution of power between member state and central governments. Some rights set out in the Charter restrict government power, but many of them impose affirmative obligations upon the government to act. Social and economic questions abound throughout the Charter, including rights to education, social security, work and health care. Because of the pervasive importance of these issues to modern life, the Charter necessarily raises the question whether national or EU government organs ultimately will decide outcomes in these areas. The level of government that has "final say" on education, social security, health care and access to services will be the level of government that becomes most important in the day-to-day lives of European citizens wherever they live. The Charter and the EU Constitution, considered as a whole, suggest that the EU can have the final say on virtually every aspect of modern life. The Charter will be integrated into a multi-part Constitution that repeats, restates, echoes and amplifies the Charter's themes throughout the EU Constitution's extensive assertions of EU enforcement powers. Thus, it is hardly clear that the Charter "does not extend the scope of application or Union law" or "establish any new power" or "task." As a practical matter, the Charter announces numerous rights not previously enunciated in the European Convention on Human Rights (the "ECHR") and its various protocols - and time has already demonstrated that the ECHR's principles can intrude upon the constitutional policies of member states. Moreover, as happened with the Bill of Rights in the U.S. constitution, the broad rights stated in the Charter may evolve rather quickly into fundamental principles of law applicable throughout the EU system of justice - both at the EU and member state levels. As a result, the legislative, judicial, executive and administrative functions of the EU will unquestionably expand to fill in the numerous details of the Charter's rights regime. Critics of the above conclusion will emphasize that the Charter and EU Constitution repeatedly state their full respect for national laws and constitutions and are only addressed "to the institutions and bodies of the Union." At least with regard to the Charter, however, such asserts are simply not accurate. At least one provision of the Charter - Article 40 - directly constrains national electoral policies. Moreover, other provisions of the Charter (like the rights to marry, education, social security and health care) also seem somewhat out of place unless they are directed at something other than "the institutions, bodies and agencies of the Union. (The EU, for example, has never "married" anyone.) Finally, even though a comparison of the Charter with the language of nine European constitutions demonstrates a fair level of conformity with the provisions of the Charter, only one of the nine countries examined possesses a constitution entirely consistent with the newly announced regime. There are also significant areas of possible divergence. Thus, the rights announced in the Charter may not settle as comfortably upon the European scene as some might expect. The tensions inherent in a shared-power regime with diverse constitutional expectations at the national and supra-national levels may be more troublesome than anyone can anticipate. Matter of Particular Import for the United Kingdom Involving Adoption of the Charter The impact of the Charter and EU Constitution may be most significant on Great Britain. The United Kingdom is the only constitution we examined that did not exhibit any potential tension with the mandates of the Charter. This may well result from the fact that Britain's "unwritten constitution" demonstrates such flexibility that it can be read (including by us) to be consistent with the rights set out in the Charter. But, because the Charter would force Britain to forego this flexible, unwritten approach to constitutional rights, a rather forceful argument can be made that Britain gives up more than any other EU member state by adopting the Charter. Under its current, flexible common law approach, the human rights regime of the United Kingdom is able to adapt rather quickly to the felt needs of its people on issues such as "human dignity," "education," and even "paid leave" as these questions arise. Nor does there seem to be evidence of serious and systematic human rights abuses throughout Britain. The "unwritten approach" to constitutional governance, in short, seems to be working relatively well. What, then, does Britain give up and what does it obtain by adopting the Charter? For one thing, it gives up a uniquely adaptable and functional system of human rights governance that has served it well for hundreds of years. What does it get in return? An unquestionably modern (and painstakingly drafted) statement of human rights law. But there can be absolutely no assurance that the Charter will serve the needs of the United Kingdom as well as its centuries-old common law traditions. In a very real sense, then, the people of Great Britain may lose flexibility - and thereby lose a unique form of human rights protection - that has served them since Magna Charta. Thus, although the United Kingdom, in one sense, is one of the EU member states that is most "compliant" with the terms of the Charter, it is also the nation that may have the most to lose by adopting the Charter. It is highly ironic that Britain's flexibility - to be lost in the adoption process - may have produced the country's unusually high level of consistency with the numerous standards set in the Charter. *Richard G. Wilkins is Professor of Law and Managing Director of the World Family Policy Center, J. Reuben Clark Law School, Brigham Young University ** Marya Reed is Administrative Director of the World Family Policy Center, J. Reuben Clark Law School, Brigham Young University