The application of the EU Charter of Fundamental Rights in the UK: a state of confusion - European Scrutiny Committee Contents

1  The application of the Charter in the UK — a state of confusion

The European Scrutiny Committee

1. The European Scrutiny Committee is a cross-party Select Committee appointed under Standing Order No. 143, with all the usual select committee powers. It has 16 Members. The main role of the Committee is to sift EU documents on behalf of the House, identifying those of political or legal importance and deciding which should be debated. It has four additional roles:

·  to be a source of analysis and information, by reporting in detail on each document it judges to be important (about 500 a year), and by taking the oral or written evidence it requires to come to a decision;

·  to monitor business in the Council of Ministers of the EU, the negotiating position of UK Ministers, and the outcome;

·  to keep under review legal, procedural and institutional developments in the EU which may have implications for the UK and for the House, such as this Report; and

·  in co-operation with the equivalent committee in the House of Lords, to ensure that the scrutiny system works effectively and that the Government complies with its undertakings to Parliament.

2. Our predecessors scrutinised the EU Charter of Fundamental Rights in 2007 in detail in the course of the intergovernmental conference negotiations leading to it being given legally binding status by the Lisbon Treaty.[1] Many of the conclusions they drew are applicable now.

The difference between the Charter of Fundamental Rights and the European Convention on Human Rights

3. The Charter of Fundamental Rights (the Charter)[2] is often confused with the European Convention on Human Rights (the ECHR), as the Court of Justice of the EU in Luxembourg (the ECJ) is with the European Court of Human Rights in Strasbourg (the ECtHR). Whilst both contain overlapping human rights provisions, an issue we consider in this Report, they operate within separate legal frameworks. The Charter is an instrument of the EU. It is part of EU law and subject to the ultimate interpretation of the ECJ. EU law is given effect in national law through the European Communities Act 1972. The ECHR is an instrument of the Council of Europe in Strasbourg, and is ultimately interpreted by the ECtHR. It is given effect in national law by the Human Rights Act 1998 (HRA).

4. Whilst human rights litigation in the UK most often comes within the framework of the ECHR, and therefore the HRA, EU law in 2009 codified a wide number of human rights, which it calls fundamental rights, in the form of the Charter. It is the national impact of the Charter, rather than of the ECHR, with which this Report is concerned.

Confusion about the application of the Charter in the UK

5. The inquiry was prompted by a sequence of events in November of last year, which we outline below. From these it appeared to us that there was considerable confusion about how the Charter applied in the UK, which we thought should be rectified so far as possible by means of a short inquiry. This report is the consequence of that inquiry. It seeks to clarify the application of the Charter in the UK, and is based on the evidence submitted by our witnesses, to whom we are indebted, and our analysis of it.

The comments of a High Court judge

6. On Tuesday 12 November 2013, an article appeared in the London Evening Standard, reporting that a High Court judge, Mostyn J, in the case of R (on the application of AB) v Secretary of State for the Home Department,[3] had commented on how the Charter of Fundamental Rights, which included rights that go beyond rights protected in the ECHR, was now legally binding in the UK. In the AB case the claimant asylum-seeker wished to assert a right—the protection of personal data—which was not expressly protected by the ECHR and which, as such, did not fall within the HRA. However, that right was contained in the Charter, raising the question whether it could thereby be relied upon in this case. Commenting on this, Mostyn J said:

    It can be seen that the legal basis of the claimant's claim rests in part on alleged violations of the Charter of Fundamental Rights of the European Union. When I read this in the skeleton argument on his behalf I was surprised, to say the least, as I was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law.

7. Mostyn J's comments on the Charter were based on his interpretation of a judgment of the ECJ in joined cases[4] referred to it by the Court of Appeal of England and Wales and the High Court of the Republic of Ireland, commonly known as the NS judgment.[5] Referring to NS Mostyn J said:

    The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.

Reported in the London Evening Standard

8. Mostyn J's comments were obiter, meaning they did not form part of the reasoning of his judgment that legally binds a lower court. They were, however, picked up in an article in the London Evening Standard, entitled "Top judge 'surprised' that controversial EU laws that we blocked are now legally binding,"[6] which stated that:

    One of the country's most senior judges has reignited the debate about the expanding power of European courts by admitting his 'surprise' that a controversial EU charter which ministers opted out of is now legally binding in Britain.

    Mr Justice Mostyn said it was 'absolutely clear' from a protocol signed as part of the Lisbon Treaty that the European Charter of Fundamental Rights would not be enforceable in this country.

    But he told the High Court that a ruling in Luxembourg had now reversed this position in a move which he said would permanently extend the reach of human rights legislation in Britain.

    The judge added that the 'constitutional significance of this decision can hardly be overstated'.

    MPs reacted angrily and warned that British control over the justice system was being undermined by 'dangerous and undemocratic' European interference in the rights of Parliament.

9. The Secretary of State for Justice (Rt Hon Chris Grayling) responded to the article in the next edition of the same paper, clarifying that:

    [t]he Charter is now very much a part of our law [...] It should only apply when European law applies within the UK. But last week's ruling suggests the possibility of something more than that. I am determined that we challenge this idea and will seek to do so in our courts as soon as possible.

Debated in the House of Commons

10. On 19 November 2013 the Chairman of this Committee tabled an Urgent Question asking the Government "to make a statement on the status in the United Kingdom of the EU Charter of Fundamental Rights following the ruling by Mostyn J in the High Court on 7 November". In his opening statement, the Secretary of State for Justice stated that the Government did not agree with Mostyn J's analysis of the NS case, that it would look for another case to rectify the situation, and that the Charter applied only to the application of EU law in the UK:

    The judge's view was that the Luxembourg court had, in the case of NS, held that the charter could create new rights that apply in the UK. It is important to be very clear to the House: we do not agree with that analysis of the NS case. We intend to find another case—we cannot do it with this one as the Home Office was successful and we cannot appeal a case we have won—at the earliest opportunity to clarify beyond doubt the legal effects of the charter and to put the record straight.

    It is no secret in this House that I would not personally have chosen to sign up to the Lisbon treaty or to the charter of fundamental rights. However, it is also important to say that the charter's effects are limited to EU law within the UK, and I have not seen any evidence that it goes beyond that. I would be very concerned if there was any suggestion that the charter did in fact create new rights. [7]

11. Several Members in the debate, including the Shadow Secretary of State for Justice (Sadiq Khan)[8] and the former Home and Foreign Secretary (Mr Jack Straw)[9] said the UK had an opt-out from the Charter. Simon Hughes MP said that the Liberal Democrats had understood that the Charter did not "extend to impose itself across our legislative process", and that there was a need for consensus across the House on this.[10] The Minister responded that the UK did not have an opt-out from the Charter: Protocol (No 30) to the EU Treaties on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom ("Protocol 30") simply restated that the application of the Charter was limited to EU law in Member States:

    The right hon. Member for Tooting (Sadiq Khan) talks about an opt-out, but that is not what the Labour Government actually negotiated. They negotiated a protocol that stated that the charter would be applied only to EU law. That is the situation today, and it does not enable us to opt out of the charter. We are still subject to it in EU matters.[11] [...]

    The reality is that we have a protocol that simply restates the legal position that European law and the charter of fundamental rights sit together and the charter does not apply in UK law.[12]

12. When asked whether he was advocating a policy of "do nothing", the Minister answered: "I am absolutely not suggesting that we do nothing, and that is why we need to get this point clarified in law at the earliest opportunity".[13]

An urgent need for clarification, and for action

13. To have such uncertainty about the status of the Charter is concerning. Its entry into force in December 2009 as a set of rights with the legal status of an EU Treaty marked, from any perspective, a significant development in EU policy-making and in EU law. Yet in the UK its domestic effect is surrounded by disagreement and misunderstanding.

14. Our predecessor Committee was told by the then Government that the Charter was legally binding on the UK and that the Protocol it had drafted was not an opt-out.[14] Several of our witnesses confirmed this point too[15]—the then Government did not sell the Protocol as an opt-out. Yet this understanding did not appear to be shared at the highest level, where impacts of Government statements are greatest. This, perhaps, is the source of some of the confusion. The then Prime Minister, Tony Blair, in a statement to the House in June 2007 on the European Council summit that had agreed the main substance of the Lisbon Treaty, said:

    [i]t is absolutely clear that we have an opt-out from both the charter and judicial and home affairs. Those were the reasons why people like the right honourable gentleman were saying that they wanted a referendum.[16]

15. When asked about this in evidence Lord Goldsmith said that politicians from both parties sometimes use language in legally complex areas which is inaccurate, but that he, Lord Goldsmith, had not described the Protocol as an opt-out, although he could understand why the then Prime Minister thought in broad terms that the Protocol was:

    The way that Mr Blair described it is for him to decide. I would not have described it in those terms. I did not describe it in those terms when I did come to describe it; I described it in different terms. I can understand how in a common-sense, broad way one could say, "Well, it's an opt-out," because it means that we are protected and it cannot go any further than we are already bound by. I can understand that entirely. [17]

16. Confusion also arose in 2010 in the national litigation which led to a reference by the Court of Appeal to the ECJ and its decision in the NS case. In the High Court Cranston J decided that, in view of Protocol 30, "the Charter cannot be directly relied upon as against the United Kingdom although it is an indirect influence as an aid to interpretation."[18] But in the Court of Appeal the Government did not support that finding. The Home Secretary's pleadings stated (emphasis added):

    Contrary to the Judge's holding, the Secretary of State accepts, in principle, that fundamental rights set out in the Charter can be relied upon against the United Kingdom, and submits that the Judge [in the High Court] erred in holding otherwise. The purpose of the Charter Protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect.[19]

This is a further example of judicial confusion over the effect of Protocol 30.

Our view

17. Some misunderstanding about the Charter is inevitable — it operates in a complex way,[20] and Protocol 30 is deceptive in looking to a non-lawyer as if it provides an opt-out, when it does not, as we conclude later in this Report.

18. However, both this and the previous Government bear some responsibility, we suggest, for the fact that the Charter is still so badly misunderstood: its domestic legal effect has never been clearly and fully communicated, unlike the introduction of the Human Rights Act 1998, by contrast. So it is perhaps not surprising that so much uncertainty still arises. We cite above instances of differing views being taken at judicial level; the Urgent Question debate in November in the Commons elicited similar confusion from both sides of the House. The previous Government gave conflicting accounts of whether the UK had an opt-out. Similarly, whilst the Secretary of State for Justice was correct to say in the debate that the Charter applied only when EU law applied and that Protocol 30 was not an opt-out, he went on to say:

    Of course [the Charter] now does have legal force in European law. The issue is about whether that legal force extends to UK law. We regard that matter as being exceptionally important. If there were any question of that linkage being made, we would have to take steps on it. [...]

    I am absolutely clear that the charter should not apply in UK law, and we would take serious action if there were any suggestion that it could do.[21]

There is in fact no doubt that the legal force of the Charter extends to UK law, as we conclude later in the Report. We look forward to seeing how the Government intends to clarify through litigation that there is no such link.

19. This state of uncertainty should not continue. We set out what action we think the Government should take in the recommendations at the end of this Report.

Approach taken in this Report

  1. We first set out the negotiating history of the Charter, then summarise its contents and those of Protocol 30. We evaluate the written and oral evidence received from expert witnesses and from the Government, and then look at the impact of the Charter on the division of competences between national courts and the ECJ. Finally, we draw conclusions on the scope and legal effect of the Charter and make several recommendations.

1   European Scrutiny Committee, Third Report of Session 2007-2008, European Union Intergovernmental Conference: Follow-up Report, HC 16-iii. Back

2   Fundamental rights is simply the EU term for what are called human rights under the European Convention on Human Rights. Back

3   EWHC/Admin/2013/3453, 7 November 2013 Back

4   C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and M.E. and Others v Refugee Applications Commissioner and the Minister for Justice, Equality and Law Reform Back

5   [2013] Q.B 102 Back

6   12 November 2013 Back

7   HC Deb, 19 November 2013, col. 1087 Back

8   As above, col. 1088 Back

9   As above, col. 1090 Back

10   As above, col. 1093 Back

11   As above, col. 1089 Back

12   As above, col. 1091 Back

13   As above, col. 1090 Back

14   European Scrutiny Committee, European Union Intergovernmental Conference, para 38 Back

15   David Anderson QC (CFR0003) para 4  Back

16   HC Deb, 25 June 2007, col 37 Back

17   Qq90-91 Back

18   R (on the application of NS) v Secretary of State for the Home Department (Reference to ECJ) [2010] EWHC 705 (Admin), para 155 Back

19   R (on the application of NS) v Secretary of State for the Home Department (Reference to ECJ) [2010] EWCA Civ 990, para 8 Back

20   See in this regard: Lord Goldsmith QC (CFR0009) para 8 Back

21   HC Deb, 19 November 2013, col. 1091 Back

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Prepared 2 April 2014