This Report arises from the state of confusion which exists in the UK about the applicability of the EU Charter of Fundamental Rights. It was prompted by the comments of a High Court judge in November last year, which the Government sought to correct in the press, and which were debated on the floor of the House of Commons. In the first chapter of the Report we conclude that both this and the previous Government bear some responsibility for this confusion.
In the following chapter we summarise the evidence of Lord Goldsmith, who was the UK's representative in the negotiations on the Charter. He explained that the then Government agreed with the need to make existing fundamental rights (otherwise known as human rights) more visible in the EU, but was keen to prevent any new rights being created, particularly economic and social rights. The Charter was drafted to be a political declaration; but when it was agreed to give it legal status, he explained that the UK's main concern was to ensure that the rights and principles in the Charter were tied back to their sources, as set out in the Explanations, and so limited in scope. Protocol 30, the source of so much confusion, was an after-thought.
Expert opinion on the scope of the Charter's application in the UK is set out in a further chapter of the Report. In the light of this we assess the impact of the Charter on the fundamental question of which courts are responsible for fundamental rights protection in the EUthe European Court of Justice in Luxembourg (the ECJ) or national courts?
In the penultimate chapter of the Report we seek to clarify the impact of the Charter in the UK. We draw the following conclusions about what the Charter does and does not do: Protocol 30 was designed for comfort rather than protection: it is in no sense an opt-out Protocol; consequently, the Charter is directly effective in the UK with supremacy over inconsistent national law (as it is for all other EU Member States); it does not apply to all areas of national law, however, only those that fall within the scope of EU law, a test which the ECJ has interpreted broadly; it will nonetheless broaden the ambit of EU law and increase human rights litigation in the UK.
There remain areas where there is still legal uncertainty about the Charter. These include the distinction between "rights" and "principles"; the application of pre-existing fundamental rights in spite of the Charter; the scope of application of the Charter; the effect of having parallel rights in the Charter and the European Convention on Human Rights; and the possibility of the Charter giving rise to unforeseen "horizontal" obligations on individuals or companies. In all, whilst the Charter has made fundamental rights more visible, we conclude that it has made their application more complex, and question whether this defeats its primary purpose.
Finally, we recommend that:
- the Government's response to our Report states where it agrees and disagrees with our conclusions, so that our Report and its response become a helpful reference point on the Charter's application in the UK;
- the Government intervene in proceedings in the ECJ to limit the scope of the Charter in the UK;
- the Government explains further what it intends to do about the Charter; and
- primary legislation be introduced by way of an amendment to the European Communities Act 1972 to disapply the Charter from the UK.