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
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| Legal base
| — |
| Department
| Ministry of Justice
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| Basis of consideration
| Minister's letter of 20 January 2014
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| Previous Committee Reports
| HC 83-xiii (2013-14) chapter 25 (4 September 2013); 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
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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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