25 The EU Charter of Fundamental Rights
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9297/13
+ ADDs 1-10
COM(13) 271
| Commission Report 2012 on the application of the EU Charter of Fundamental Rights
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| Legal base | —
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| Department | Justice
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| Basis of consideration | Minister's letter of 16 July 2013
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| Previous Committee Report | HC 83-vi (2013-14) chapter 6 (19 June 2013)
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| Discussion in Council | Not known
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested.
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Background and previous scrutiny
25.1 The background to the Charter of Fundamental Rights and our
scrutiny of the two previous annual Commission reports on the
application of the Charter are set out in our most recent Report[92]
on this document together with an account of this third annual
report and the Government's view of it.
25.2 In that Report, we said that whilst we recognised
that the third annual report on the Charter had no immediate
policy, legal or financial implications for the UK, we wanted
the Government to comment further on the section of the report
concerning how the Charter is being implemented in Member States,
particularly in respect of the UK.
25.3 With respect to the Commission's analysis
of national court rulings referring to the Charter, we drew to
the attention of the Secretary of State for Justice (Rt Hon Chris
Grayling) the suggestion that national judges were citing the
Charter to support their reasoning even in the absence of a link
with EU law and that there was "some evidence of an incorporation
of the Charter in the national systems of fundamental rights protection".
We then asked the Minister to:
i) assess the Commission's account of the
development of national case law on the application of the Charter
within Member States, including the application of the rulings
of the Court of Justice (ECJ) as a result of preliminary references
by national courts, and to tell us whether he thought this would
have any impact on the application of the Charter within the UK;
and
ii) update us on whether a formal, transparent,
objective framework for these annual reports had been agreed yet
(an issue that we highlighted in respect of the previous year's
annual report).
The Minister's letter of 16 July 2013
25.4 The Minister (Rt Hon Chris Grayling) first explains
that in answering our questions:
- he has relied on the June
2012 report of Association of Councils of States and of Supreme
Administrative Courts (ACA-Europe), cited at page 6 of the annual
report, as it already provides information on the application
of the Charter in other Member States and is more comprehensive
than resources would allow for any fresh analysis by his Ministry;
and
- his response is based just on the UK courts'
application of the Charter (there is no evidence that case law
of other Member States, without reference to the ECJ, can affect
that of the UK).
UK COURTS' APPLICATION OF THE CHARTER
25.5 Turning to the first question, the Minister
responds at length and in some detail, telling us that:
- UK courts seem to be referring
to the Charter with increasing frequency, which may in part reflect
the growing number of references to the Charter in the case-law
of the ECJ, though little is said in either the ACA or Commission
reports as to the effect of these references;
- as concerns evidence of 'incorporation' of the
Charter in national systems of fundamental rights protection,
Austria is the only example provided of this (page 9 of the Commission's
report) and the Commission makes clear that the Charter does not
create new rights but reaffirms those rights, freedoms and guarantees
that are already recognised in EU law;
- there is no evidence of UK national judges referring
to the Charter to support their reasoning, including when there
is no link with EU law, and instead the ACA evidence indicates
that UK courts, contrary to judicial practice common in other
Member States, expressly review whether a situation involves
the implementation of EU law (page 7 of ACA report);
- this systematic consideration by UK courts of
whether the Charter is engaged or not reflects the approach of
the ECJ and should be welcomed as the Charter is only binding
on Member States when implementing Union law and does not extend
the competence of the EU— Article 51 of the Charter and
Article 6(1) of the TEU;
- in considering the question of when the UK is
bound to respect the fundamental rights set out in the Charter:
— the
UK Supreme Court has recognised that 'implementing Union law'
is to be interpreted broadly; and
—
the UK courts have applied this condition in a manner entirely
consistent with the Government's position that it is the same
test as that applied in the pre-Charter case-law of the ECJ,
in accordance with Article 51(2) of the Charter and the case-law
of the ECJ.[93]
- examples of the UK courts'
rigorous assessment of whether a situation involves the implementation
of Union law include where :
— the
High Court held that the Charter did not apply where the Secretary
of State deprived a person of his naturalised British citizenship,
and therefore also his EU citizenship;[94]
and
— the
Court of Appeal held that the Charter did not require the UK to
fund the defence of a UK national facing the death penalty in
Indonesia for drug smuggling, because the facts of the case fell
outside the material scope of EU law and the Secretary of State
had not made any relevant decision under Framework Decision 2004/757/JHA
(appyling to drug trafficking) that could be regarded as implementing
EU law.[95]
- UK courts have usually applied
the Charter in a manner that is consistent with the Government's
position regarding the function and status of the instrument and
this is reflected in the Court of Appeal's judgment in ZZ v
Home Secretary:
"It is important to keep in mind what the
Charter is and what it is not… Article 6 of TEU provides
that the Union 'recognises the rights, freedoms and principles'
set out in the Charter 'which shall have the same value as the
Treaties'. On the other hand, its provisions 'shall not extend
in any way the competences of the Union as defined in the Treaties,'
and rights, freedoms and principles in it are to be interpreted
with due regard to the Explanations which have been provided to
accompany it. Putting all this together, it seems to me that the
Charter is not a free-standing, rights-creating legislative instrument.
It is akin to a restatement of rights, freedoms and principles
already established in law as a result of, inter alia, judgments
of the Luxembourg Court…".[96]
- UK courts have principally
cited the Charter in considering the source of law from which
a Charter right derives and these are set out in the explanations
to the Charter, to which 'due regard' must be had when interpreting
its provisions: Article 52(7) of the Charter and Article 6(1);
- this is illustrated by the
case of R (Zagorski) v Secretary of State for Business, Innovation
and Skills[97]
where the High Court:
—
considered that Article 51(2), (3) and (4) of the Charter are
"intended to ensure that those rights recognised by the Charter"
which are derived from the Treaties, the ECHR or from "the
constitutional traditions common to member States respectively
are and should remain consistent with the bodies of law from which
they derive"; and
— held
that the rights recognised by Articles 2 and 4 of the Charter
correspond with those in Articles 2 and 3 ECHR, not only in terms
of their content but also in terms of the scope of their application.
- the UK courts have recognised
that not only do the content and scope of Charter rights need
to be construed in accordance with the corresponding ECHR guarantees,
but also how they are applied (for example, for the approach to
considering proportionality when balancing competing rights see
Goldeneye (International) Ltd v Telefonica UK Ltd);[98]
- although in EM (Eritrea)
v Secretary of State for the Home Department,[99]
the Court of Appeal drew a distinction between the jurisprudence
of the ECJ and the European Court of Human Rights (ECtHR) in relation
to considering whether the return to a particular Member State
under the Dublin II Regulation will breach a person's rights under
Article 4 of the Charter/Article 3 ECHR, the Government considers
that the Luxembourg and Strasbourg authorities are entirely consistent
— the case is the subject of an appeal to the Supreme Court;
- since the Lisbon Treaty, the Charter has been
increasingly cited by the ECJ in preliminary rulings and whilst
some of these rulings have had an impact on how the UK courts
have applied EU law, the purpose of the Charter dictates that
application of the law from which the Charter rights derive would
have resulted in the same outcome;
- whilst references to the Charter seem to have
increased in UK domestic case-law:
— the
UK courts have not applied the Charter to the same effect, continuing
principally to apply the law from which a Charter right derives
(for example, Hook v British Airways Plc);[100]
and
—
this approach is entirely consistent with the purpose of the Charter
to assemble in a single instrument those fundamental rights which
are recognised in EU law.
A FRAMEWORK FOR THE ANNUAL REPORTS
25.6 The Minister then addresses the second question
we posed, concerning the need for an objective, transparent and
agreed framework for the annual reports, saying:
"As the Commission's report is not a legal
instrument, Member States are not involved in the process of researching
the report, sourcing data or drafting. We agree that there should
be a clear and open policy about what data to include in the report
and we will seek information on this from the Commission and provide
your Committee with an update."
Conclusion
25.7 We thank the Secretary of State for his comprehensive
response. We report it fully for wider readership in the House
because of the intrinsic importance of analysing the effect of
the EU Charter on national law. We conclude from what the Minister
says that the Charter is being applied by the UK national courts
in a manner that does not extend EU competences.
25.8 We also conclude from what the Minister has
said[101]
that there's little basis for the Commission's conclusion that
there is "some evidence of an incorporation of the Charter
in the national systems of fundamental rights protection."
We ask the Minister to tell us if he is concerned that the Commission
should make such an assertion and, if so, whether he intends to
tackle the Commission over it.
25.9 We welcome the Minister's intention to discuss
with the Commission a framework for the contents of future reports,
and note that he will write back to us in due course.
25.10 Pending further responses from the Government,
the document remains under scrutiny.
92 See headnote. Back
93
Case C-617/10 Aklagaren v Hans Åkerberg Fransson,
judgment of 26 February 2013, paras 18-23. Back
94
G1 (Sudan) v Secretary for State for the Home Department
[2012] EWCA Civ 867. Back
95
R (Sandiford) v Secretary of State for Foreign and Commonwealth
Affairs [2013] EWCA Civ 581, paras 20-30. Back
96
ZZ v Home Secretary [2011] EWCA Civ 440, para 16. Back
97
[2010] EWHC 3110 (Admin). Back
98
[2012] EWHC 723 (Ch) para 117. Back
99
[2012] EWCA Civ 1336. Back
100
[2012] EWCA Civ 66. Back
101
See second bullet point of para 25.5. Back
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