Healthy Scepticism Does the Charter
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Healthy Scepticism: Does the Charter Matter? A Study of the CFREU’s Effects on Health Law and Policy in the UK and Germany Calum Alasdair Young PhD School of Law, University of Sheffield, December 2018 Abstract This thesis studies the effects of Articles 1, 3, 20, 21, and 35 of the EU Charter of Fundamental Rights. Many academics assume that the adoption of a binding human rights document such as the Charter improves human rights protection. Such beliefs are also reflected in fears that the Charter will significantly change domestic policies. This thesis investigates these assumptions. Does calling something a ‘human right’ have notable effects on its implementation? Does the Charter significantly affect national policy? Do EU human rights impose unwanted constraints upon Member States’ health systems? Using an interdisciplinary analysis of the Charter’s practical impacts, the thesis studies whether specific Charter rights have caused top-down Europeanisation of health law and policy in the UK and Germany, including: Europeanisation through ECJ judgments; through national courts; and through the legislative process. The thesis takes process-tracing, an empirical methodology used in political science, and applies it to the legal field. Process-tracing is particularly suitable for assessing the multi-step phenomenon of Europeanisation. By breaking down theoretical literature into individual causal mechanisms, each of which can be tested with empirical evidence, the thesis establishes the reality facing two of the three largest Member States – bringing crucial clarity at a febrile moment in the UK-EU relationship. Ultimately, the thesis reaches three main conclusions: firstly, that the Charter does increase the significance of fundamental rights, something which manifests across the thesis; secondly, that this increased significance and thus the Charter has few to no policy effects; and thirdly that the Charter, unexpectedly, can reinforce Member States’ policy choices within internal market law. These findings not only provide empirical evidence against the prevailing wisdom on fundamental rights, they show the Charter increasing Member States’ freedom to act as opposed to imposing top-down control. Acknowledgements There are obviously many people who have helped me get to this point, and naturally these short acknowledgements cannot possibly encompass what everyone has done. That being said, I would like start by thanking Tammy Hervey and Pablo Castillo. As my supervisors they have been integral to the process, and I owe them my heartfelt thanks for taking me on as a student some years ago, and for sticking with me to the end. Thanks must also go to the University of Sheffield School of Law for my research funding, as well as for the various conference trips, summer schools, and research visits I undertook throughout the thesis. Particular thanks also go to Rasmus Brun Pedersen for my research visit to Aarhus University and for working with me on the methodological aspects of the thesis, as well to my examiners Francesca Strumia and Derek Beach. I am fortunate to have friends willing to listen to my many complaints and suffer through my many crises of confidence – they know who they are, and for this I can never repay them. I am also indebted to everyone in the PGR room over the years for putting up with my constant presence, answering all my questions no matter how mundane, and for reminding me that my problems were in no way unique. Finally I would like to thank my family for the support they have given me my whole life, PhD naturally included. Contents Chapter 1 - Introduction and Methodology 1 1. Research question 3 2. Benefits of the Research 5 3. Setting up the Thesis 9 3.1 Case Selection 9 3.2 Variables 14 4. Methodology 17 4.1 Causal Case Study Methods and Process-tracing 17 4.2 Defining and Finding Causal Mechanisms 19 4.2.1 Evidence 20 4.2.2 Assumptions and Process-tracing 21 4.2.3 Example 24 5. Outline of the Thesis 26 Chapter 2 - Health Rights, Health Law, and Health Policy 30 1. The Context of the Thesis 31 2. Understanding the Relationship between Health and Fundamental Rights 32 2.1 Moral Arguments for Health as a Fundamental Right 32 2.2 Practical Impacts of Treating Health Rights as Fundamental Rights 36 2.2.1 Accountability 36 2.2.2 Monitoring Indicators 38 2.2.3 Specific Rights-based Litigation 39 2.3 Impacts of the Thesis on the Debate on Health Rights 40 3. Defining Health Law and Policy 41 3.1 Scope of Health Law and Policy 41 3.2 Purpose of the Thesis and Substantive Areas 44 4. Content and Sources of Health Law and Policy 47 5. Conclusions 49 Chapter 3 - Fundamental Rights and Europeanisation 52 1. Sources of EU Law 53 1.1 What Does it Mean to be a Source of EU Fundamental Rights Law? 55 2. The Increased Significance of Fundamental Rights 56 2.1 Human Rights Literature 56 2.2 Institutionalism 58 2.3 Various Actor Expectations 60 2.3.1 Political Opinion 60 2.3.2 Academic Opinion 64 2.3.3 Judicial Opinion 67 2.4 What Does This Mean in Practice? 69 3. Europeanisation 71 3.1 Modelling Europeanisation – How it takes Place and What to Expect 73 3.2 How Top-down Europeanisation Takes Place 76 3.3 Causal Mechanism 80 4. Conclusions 81 Chapter 4 - Shifting Dynamics in the ECJ 83 1. Mechanism and Methodological Elements 84 1.1 Evidence Expected and Priors 85 1.1.1 Evidence Expected at Part 1 86 1.1.2 Evidence Expected at Part 2 87 2. ECJ Cases Studied 88 2.1 Brüstle 90 2.2 Test-Achats 93 2.3 0TLéger 96 2.4 Article 35 in Internal Market Law 98 0T3. Europeanisation 99 3.1 Part 1 – Increased Significance 100 3.1.1 Brüstle 100 3.1.2 Test-Achats 102 3.1.3 0TLéger 103 3.1.4 Article 35 in Internal Market Law 105 3.1.5 Overall Assessment 108 3.2 Part 2 – Policy Misfit 108 0T3.2.1 Brüstle 109 3.2.2 Test-Achats 111 3.2.3 0TLéger 112 3.2.4 Article 35 in Internal Market Law 113 3.2.5 Overall Assessment 114 4. Conclusions 115 5. Appendix 4.1 – Evidence Appendix 117 Chapter 5 - Europeanisation through ECJ Judgments 126 1. Mechanism and Methodological Elements 127 1.1 Evidence expected at Part 3 128 1.2 Evidence Expected at Part 4 129 0T2. Europeanisation 129 2.1 Part 3 – Changed Analysis and Expectations 130 2.1.1 Brüstle 130 2.1.2 Test-Achats 132 2.1.3 0TLéger 134 2.1.4 Overall Assessment 135 0T 2.2 Part 4 – Policy Change 136 2.2.1 Brüstle 136 2.2.2 Test-Achats 138 2.2.3 0TLéger 139 2.2.4 Overall Assessment 140 3. Conclusions 140 4. Appendix 5.1 – Evidence Appendix 145 Chapter 6 - Increased Significance in National Court Judgments 150 0T1. Mechanism and Methodological Elements 151 1.1 Evidence Expected and Priors 154 1.1.1 Evidence Expected at Part 1 154 1.1.2 Evidence Expected at Part 2 155 1.1.3 Evidence Expected at Part 3 155 1.1.4 Evidence Expected at Part 4 156 2. National Cases Studied 157 2.1 A & Ors v East Sussex County Council 159 2.2 The London Borough of Tower Hamlets v TB 160 2.3 The Queen (On the Application of Spink) v Wandsworth Borough Council 161 2.4. Judicial review of Northern Irish Blood Policy 162 2.5 Plain Packaging Judicial Review Cases 164 2.6 Cigarette Vending Machine Cases 164 2.7 Ahmad v Secretary of State for the Home Department 165 2.8 B 11 AL 5/14 R 166 3. Europeanisation 166 3.1 Part 1 – Increased Significance 166 3.1.1 A & Ors. v East Sussex County Council 166 3.1.2 The London Borough of Tower Hamlets v TB 168 3.1.3 The Queen (On the Application of Spink) v Wandsworth Borough Council 169 3.1.4 Judicial review of Northern Irish Blood Policy 170 3.1.5 Plain Packaging Judicial Review Cases 173 3.1.6 Cigarette Vending Machine Cases 176 3.1.7 Ahmad v Secretary of State for the Home Department 176 3.1.8 B 11 AL 5/14 R 177 3.1.9 Overall Assessment 179 3.2 Part 2 – Policy Misfit 180 3.2.1 A & Ors. v East Sussex County Council 180 3.2.2 The London Borough of Tower Hamlets v TB 181 3.2.3 Judicial review of Northern Irish Blood Policy 181 3.2.4 Plain Packaging Judicial Review Cases 182 3.2.5 Cigarette Vending Machine Cases 183 3.2.6 B 11 AL 5/14 R 183 3.2.7 Overall Assessment 184 4. Conclusions 185 5. 0TAppendix 6.1 – Evidence Appendix 1870T Chapter 7 - The Charter in National Legislatures 194 1. Mechanism and Methodological Elements 196 1.1 Evidence Expected and Priors 197 1.1.1 Evidence Expected at Part 1 197 1.1.2 Evidence Expected at Part 2 198 1.1.3 Evidence Expected at Part 3 199 1.1.4 Evidence Expected at Part 4 199 2. National Legislation Studied 200 2.1 UK parliament discussions on Human Fertilisation and Embryology: 2008 Act and Mitochondrial Donation Regulations 2015 205 2.2 Bundestag Discussions of Health and Asylum Seekers 206 2.3 Bundestag Discussions of Clinical Trials Regulations 206 th 2.4 Bundestag Discussions of the EU’s 7P P Research Programme and Stem Cell Research 207 2.5 Bundestag Discussions of Social Rights in the EU 207 2.6 House of Commons Discussion of Water Bill 208 3.