Documents considered by the Committee on 29 January 2014 - European Scrutiny Committee Contents


10 The EU Charter of Fundamental Rights

(34916)

9297/13

+ ADDs 1-10

COM(13) 271

Commission Report 2012 on the application of the EU Charter of Fundamental Rights
Legal base
Department Ministry of Justice
Basis of consideration Minister's letter of 20 January 2014
Previous Committee Reports HC 83-xiii (2013-14) chapter 25 (4 September 2013); HC 83-vi (2013-14) chapter 6 (19 June 2013)
Discussion in Council Not known
Committee's assessment Legally and politically important
Committee's decision Not cleared

Background and previous scrutiny

10.1 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 Sixth Report[45] together with an account of this third annual report and the Government's view of it.

10.2 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.

10.3 The response of the Secretary of State for Justice (Chris Grayling), in his letter of 16 July 2013 was reported in our Thirteenth Report.[46] On the question of how the Charter is being applied by UK national courts, the Minister referred in particular to the June 2012 report of Association of Councils of States and of Supreme Administrative Courts (ACA-Europe). In answering the Committee's second question, the Minister agreed that there should be "a clear and open policy about what data to include in the report" and said he would pursue this with the Commission.

10.4 We thanked the Minister for his comprehensive response which we said we were reporting fully for wider readership in the House because of the intrinsic importance of analysing the effect of the EU Charter on national law. We said that we concluded from what the Minister said that:

i)   the Charter is being applied by the UK national courts in a manner that does not extend EU competences; and

ii)  there is 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."

10.5 However, we asked the Minister to:

i)  tell us whether he was concerned that the Commission should make the assertion about the incorporation of the Charter into national law and, if so, whether he intends to tackle the Commission over it; and

ii)  write back to us in due course concerning any discussions he has with the Commission about agreeing a framework for the contents of future annual reports.

Minister's letter of 20 January 2014

10.6 The Secretary of State for Justice, in response to the questions asked in our Thirteenth Report, says:

    "I think it would be helpful to start by clarifying some of the points made in my letter of 16 July. First, to be absolutely clear, my Department's assessment of the UK case law was not based on the ACA-Europe Report. I simply referred the Committee to that report for an analysis of the Charter case law of other EU Member States. Second, paragraph 6 of my letter transposed the attribution of the Commission and ACA reports, and should have read as follows:

    "The Commission's conclusion is that national judges seem to refer to the Charter to support their reasoning, even where there is not necessarily a link with EU law. There is no evidence of our national courts adopting such an approach; indeed, such evidence as emerges from the ACA report indicates the opposite.

    "I am grateful for your Committee's query concerning evidence of incorporation of the Charter into national systems of fundamental rights protections. The Commission's Annual Report takes a broad brush approach, drawing data and examples from across all EU Member States; the ACA-Europe Report cites a number of other examples. As the Committee will appreciate incorporation of the Charter is not synonymous with its domestic application outside the scope of EU law. My concern is the application of the Charter in the UK; here I am reassured to note that UK judges are not relying on the Charter outside of the scope of EU law.

    "As agreed, I have obtained information from the Commission on the data included in the report. The Commission draws on information it holds on Charter references in cases before the Court of Justice, the legislative process, actions of EU institutions and issues raised by MEPs and EU citizens, as well as information it holds on the application of the Charter by Member States when implementing EU law. For the 2012 report, the Commission additionally asked Member States to provide information on references to the Charter before their national courts, which was analysed with the help of the EU's Fundamental Rights Agency (FRA).

    "Finally, I think there is an error in paragraph 25.5 (bullet point 3) of your Committee's report which could be corrected with the deletion of the word including. The paragraph currently states that there is no evidence of UK national judges referring to the Charter to support their reasoning, including where there is no link with EU law. National judges do refer to the Charter in cases where there is a link with EU law."

Conclusion

10.7 We thank the Secretary of State for his clarifications.

10.8 There is considerable and continuing public interest in the important legal and political question of the application of the Charter of Fundamental Rights in the UK —hence our inquiry into these issues. Given that our inquiry is ongoing, and issues might arise which are relevant to this Commission report, we are holding it under scrutiny.





45   See headnote: HC 83-vi (2013-14) chapter 6 (19 June 2013). Back

46   See headnote. Back


 
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