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

4  Interpretation of the Charter and Protocol 30—the views of expert witnesses

74. We set out below a comparative summary of the written and oral evidence given to the Committee by David Anderson QC, Professor Paul Craig, Professor Sionaidh Douglas-Scott and Martin Howe QC and of written evidence submitted by Andrew Duff MEP, Dr Tobias Lock and Dr Michael Pinto-Duschinsky (on behalf of Policy Exchange).

Status, scope and legal effects of the Charter

75. Professor Craig said that the Charter was self-consciously drafted to be declaratory of existing rights, rather than constitutive of new rights.[59] Martin Howe added that while many Articles of the Charter were based on pre-existing legal provisions (such as the ECHR or EU secondary legislation, for example, the Data Protection Directive), not all were.[60] This was clear from the Preamble and underscored by the Explanations which had set out the provenance of each right.[61]

76. Dr Pinto-Duschinsky considered that the argument that the Charter did no more than set out pre-existing rights was one of several questionable arguments which was used to disguise the Charter's impact on national sovereignty.[62] He said that the Charter had achieved more than symbolic significance and, being broadly-worded, it would lead to an expansion of the jurisprudence of the ECJ. This case law was more destructive of national sovereignty than that of the ECtHR.[63]

77. Professor Craig acknowledged that Article 51(2) did not prevent the development of new rights on the basis of existing competences (despite precluding the Charter as a legal base for new rights),[64] but Dr Pinto-Duschinsky went further. He said that the argument that Charter rights applied only to matters within the existing competence of the EU (for example, the single market) was another questionable way of concealing the Charter's effect on national sovereignty. He thought the Charter would encourage a broadening of the scope of ECJ decisions in the same way that the Interstate Commerce Clause was used in the battle for civil rights in the USA.[65]

78. David Anderson and Professor Craig considered that the Charter and its rights could act as interpretative devices[66] (with Martin Howe submitting that this was the Charter's sole function prior to the Lisbon Treaty[67]). This occurred when, Professor Craig explained, the ECJ interpreted EU action or Member State action that fell within the scope of EU law, so ensuring that legislative provisions were read in a way compatible with those rights.[68]

79. The Charter, as held in RFU v Consolidated Information Services[69] (the Viagogo case) was, said David Anderson, directly effective in national law,[70] though, as Professor Douglas-Scott commented, the Charter did not state who might benefit from the Charter's rights (whilst being clear on whom obligations were imposed). It dealt with this on a case by case basis in each Article and the Explanations.[71]

80. Given the visibility which the Charter lent to these pre-existing rights, they were given greater force said Professor Craig[72] and, submitted Martin Howe, were more readily deployable.[73] David Anderson acknowledged that some of the more obscure rights had been given greater prominence by dint of their inclusion in the Charter.[74] He submitted, together with Martin Howe, Andrew Duff MEP and Dr Lock that the Charter also acted to invalidate or disapply EU and national rules within the scope of EU law which were inconsistent with the Charter.[75]

81. This effect on EU secondary legislation was illustrated by Martin Howe with reference to the Test Achats[76] case. He explained how the derogation to the Directive on equal treatment of men and women in the supply of services (which allowed differentiation between the sexes where gender was a determinative risk assessment factor) was invalidated for being incompatible with Articles 21 and 23 of the Charter. This was, he said, a violation of the sovereignty of Member States which had unanimously agreed to the derogation; an extension of the scope of EU law; an unwarranted transfer of power from the democratically-elected to the judiciary; and a warning that opt-outs and derogations from EU law which had been politically agreed could be undone by the ECJ.[77] Professors Douglas-Scott and Craig, and David Anderson, disagreed with Martin Howe's interpretation of Tests Achats.[78]

82. Martin Howe thought that the Charter had led to a significant expansion of the scope of matters subject to EU law and a corresponding reduction in Member State autonomy.[79] Both Martin Howe and Michael Pinto-Duschinsky believed that the Charter had also led, as Martin Howe put it, to the "judicialisation" of matters which should be reserved to national legislators.[80] Legislators, Dr Pinto Duschinsky said, were accountable to the people and Parliament of the UK, unlike the ECJ when, as an international court, it adjudicated on Charter rights. He added that with most bills of rights there was a transfer of powers from legislatures to judges, but this loss of democratic accountability could be justified if the process had been sanctioned by a super-majority of legislators following public debate and a system of legislative checks and balances. This was not the case with the transfer of powers to the supranational ECJ and arguably Parliament had only ever agreed (at the time of the European Communities Act 1972) to give such powers to the ECJ in single market matters.[81] Also, the content of Charter rights could be extremely vague, according to both of these experts.[82] Martin Howe considered that such vaguely-drafted rights could lead to a substantial expansion of discretionary and political decision-making by the judiciary[83] and, in the view of both experts, increased legal uncertainty.[84] This uncertainty, Dr Pinto-Duschinsky said, was also due to Charter rights being more extensive than ECHR rights, particularly in the inclusion of social and economic rights and the unclear difference between rights and principles. He also said that the Charter had led to increased complexity of the European human rights regime, with three separate competing constitutional courts for the UK: the UK Supreme Court, the ECtHR in Strasbourg and the ECJ in Luxembourg.[85]

Effect of Protocol 30—application of the Charter in the UK

83. All the experts agreed that Protocol 30 was not an opt-out, with several considering that it was better described as a clarification of the Charter. This was clear from the preamble of the Protocol, said Professor Craig, and it was also clear that Article 1(1) of the Protocol was merely declaratory of Article 51(2) of the Charter on the scope of its application in only reaffirming existing rights.[86] Both he and David Anderson agreed that NS was therefore correctly decided and Mostyn J was wrong.[87] Andrew Duff MEP, also referred to NS, specifically to the view of Advocate General Trstenjak that the Protocol would only apply restrictively if the Charter added new fundamental rights to the EU legal order, that it did not limit the ability of the UK courts to find domestic law incompatible with the Charter (nor did it extend that ability by virtue of Article 1(1) of the Protocol).[88] He also said that the Charter Convention intended that all Member States would respect the Charter[89] and a restrictive application of the Protocol would hinder uniform application needed to ensure legal certainty and coherence across the EU.[90] Both Andrew Duff MEP and Dr Pinto-Duschinksky pointed to the legal uncertainty and political confusion caused by the Protocol.[91]

84. David Anderson added that the Protocol had never been sold as an opt-out by the Government[92] and Martin Howe said that it was surprising that it could have been so considered by some.[93] Dr Pinto-Duschinsky said that the argument that the UK had gained an "opt out" from the Charter was used by some to mitigate the loss of national sovereignty.[94] Andrew Duff MEP commented that any presentation of the Protocol to the British public as an "opt-out" from the Charter had been an unhelpful example to others, with Poland and the Czech Republic also having sought to limit the Charter's application and Hungary having taken "a cavalier approach to the constitutional norms of the EU".[95]

85. However, some of the experts qualified their overall view that the Protocol was not an opt-out. Both David Anderson and Professor Craig considered that Article 1(2) safeguards against new justiciable "solidarity" rights under Title IV[96] (between private individuals, added Andrew Duff MEP). However, the extent of that protection would, Professor Craig commented, depend on how the wording in that Article, namely, "except in so far as Poland or the United Kingdom has provided for such rights in national law" was interpreted by the ECJ.[97] However, in oral evidence Professor Craig was clear that Article 1(2) provided a substantive safeguard:

    there are certain rights or provisions within Title IV, like Article 29, concerning the right to a free placement service, and Article 31, which, in the absence of Protocol 30 Article 1(2), could or might be interpreted by the court as being genuine rights. In relation to the UK, however, Article 1(2) of Protocol 30 would prevent that interpretation from being applicable. In that respect, my view is that Article 1(2) does add a substantive impact in particular in relation to those parts of Title IV where there is no condition of the right being found in a national law or practice.[98]

86. Professor Douglas-Scott agreed that Article 1(2) of the Protocol concerning those particular rights could be a limited exception, but she added that, even if Article 1(2) had this effect, it would not stop pre-existing EU fundamental rights applying as general principles of EU law.[99] Dr Lock considered that the meaning of Article 1(2) was less clear than Article 1(1) as there was currently no ECJ authority on it, but there were three possible views: that it merely confirmed that Title IV did not contain justiciable rights, only principles; or that any rights as such could only be invoked if first implemented at national level; or that it only affirmed that Solidarity rights existed as general principles (he preferred the second view).[100]

87. Professors Douglas-Scott and Craig both thought Article 2 could add a further safeguard.[101] Professor Douglas-Scott said that where Charter provisions refer to both EU and national law, and there is a conflict between the two, Article 2 appeared to confirm that national law would have primacy.[102] Professor Craig thought the emphasis on UK or Polish national law could be relevant where a majority of Member States had recognised the right or principle in question—even in such circumstances Article 2 clarifies that it should not be justiciable in the UK or Poland.[103] This is consistent with the explanation provided by Lord Goldsmith that Article 2 was intended to make clear that where reference is made to national laws and practices, it is for the UK to identify what those national laws and practices are.[104]

88. Even if Protocol 30 had constituted an opt-out, both Dr Lock and Andrew Duff MEP pointed out that rights under the Charter would still be applicable in the form of general principles of EU law (by virtue of Article 6(3) TEU).[105]

Article 51 and the Fransson case[106]

89. Both David Anderson and Professor Douglas-Scott commented on the importance of the interpretation of the phrase in Article 51(1) of the Charter "only when implementing Union law". David Anderson said it was "central to the balance of competences between the Member States and the EU".[107] Professor Douglas-Scott said that it could be seen as an intention to limit the scope of the ECJ's right of review; the previous iteration in the negotiations had been "when acting within the scope of European Union law".[108] However, the Explanations stated that the requirement to respect fundamental rights "defined in the context of the Union", including the Charter, "is binding on the Member States when they act in the scope of Union law".[109]

90. There was some difference of views about the interpretation by the ECJ in Fransson of whether "when implementing EU law" meant "acting within the scope of EU law". Dr Lock and Martin Howe considered that this was an expansive interpretation[110] and Dr Lock considered that the meaning of "implementing EU law" was still not entirely clear.[111] Mr Howe commented that Viagogo showed that even where the proceedings in question had "nothing to do with the EU or EU law", the Charter would apply if legislation of an EU origin was involved. He added that Fransson represented "a naked grab of territory by the ECJ" because in its wake even "a peripheral or tangential element of EU law", such as the harmonisation of some elements of national tax law by VAT Directives in that case, could result in the Charter's application.[112] Professor Craig and Dr Lock referred to the role that the German Constitutional Court had played in relation to Fransson. Dr Lock thought that the potential for that Court to reject the ECJ ruling as ultra vires could influence future interpretation of the Article 51(1).[113] Professor Craig referred to the German Constitutional Court's criticism of Fransson, which he said was based on an argument advanced by Advocate-General Cruz Villalón that the relevant Swedish law had not been enacted to implement the VAT Directive and therefore fell outside of the scope of Article 51. He added that although there would inevitably be differences of view as to whether a Member State was "acting within the scope of EU law", the determinative issue was not whether a national law had itself been enacted to implement an EU instrument but whether it was being used to implement the obligations flowing from the instrument. In Fransson, he considered that it clearly was and to hold otherwise would mean that the Charter would not be applicable if a Member State chose to meet its obligations through existing legal provisions rather than enacting new, discrete provisions. He considered that the interaction between the national law and EU law was not in some way merely incidental in Fransson as a penalty regime for VAT evasion was clearly central to this primary EU revenue base.[114]

91. In any case, Professor Craig argued that a broad reading of the Article 51(1) formulation was supported by the Explanations and the wide interpretation given to fundamental rights as EU general principles by the ECJ. He said that it would be anomalous for the Charter to be interpreted less widely.[115] Professor Douglas-Scott and Andrew Duff MEP considered that the Fransson interpretation reflected pre-Charter fundamental rights case law.[116] However, the Professor added that it was interesting to note the basis on which Advocate-General Cruz Villalón's arguments were proposed.[117] David Anderson considered that when the Supreme Court in Viagogo interpreted the Article 51(1) formulation to mean "within the material scope of EU law"[118] it took a conventional course and suggested that the UK Government was not concerned by this approach because it did not intervene in Fransson to argue for the narrower formulation of "when implementing EU law". He thought that it remained to be seen if Fransson could mark the beginning of competence creep but considered that the language of the judgment indicated that this would be, at most, of a modest nature. He also pointed to the many cases where the ECJ had rejected an application for judicial review on the grounds of Charter infringements.[119] Professor Douglas-Scott made a similar point:

    I think that the courts—both the European Court and national courts—have been willing to throw out Charter-based claims where the Charter is clearly not applicable, and the Charter will not be applicable where the action does not fall within the scope of EU law. For example, we have had cases where applicants have tried to plead road rage claims based on the Charter, and those have failed; cases where Ryanair have tried to rely on the Charter and those have failed. It will not be available in quite a number of cases.[120]

92. Dr Lock said that, in the wake of Fransson, the Charter was only justiciable in the UK courts where the UK had acted within the scope of EU law; it could not, however, be invoked in cases concerning purely domestic situations. Likewise, it seemed that Scottish courts could only find that an Act of the Scottish Parliament was ultra vires because it was incompatible with the Charter where EU law was applicable.[121]

Principles v rights

93. All the witnesses agreed in oral evidence that the distinction between a "principle" and a "right" in the Charter was unclear, and as yet without guidance from the ECJ. David Anderson expressed the point clearly:

    I agree that the distinction between "right" and "principle" was intended to be significant, as one sees from Article 52(5) and from the explanations, which one must take into account according to the Treaty. I also agree that the distinction, as it appears from the Charter and from the explanations, is entirely confusing, not least because the first of the three examples given in the explanations of a principle is the so-called rights of the elderly. That is not a very promising starting point.[122]

As proof of this, we asked the witnesses to say whether Article 29 of the Charter, which states that "Everyone has the right to a placement service", was a principle or a right. David Anderson thought it might be a principle, Professor Craig a right.[123] We asked a similar question on Article 33(1) of the Charter, which states that "The family shall enjoy legal, economical and social protection". Professor Craig thought it would probably be regarded as a principle "[b]ut until it is adjudicated upon by the European Court of Justice, we will not know".[124]

94. All witnesses agreed that Article 52(5) and the relevant Explanations made clear that a principle could not be a free-standing right under the Charter; in other words, it needed to be implemented in EU or national law before it could become justiciable. However, that was not to say a principle could not be used by the ECJ as a strong interpretative device. Professor Craig said as follows:

    The only point I would add is that, even in relation to those Charter rights that are deemed to be principles, one should not imagine that that precludes all forms of judicial oversight. The actual idea of a principle being distinct from a right does not preclude a court taking cognisance of such a principle in an action for judicial review, either under Article 263 or under Article 267 of the Treaty, and using that principle as a strong interpretative device when construing the legality of whatever issue is before it. Even when the court does come around to delineating more specifically the Charter rights that are only principles, one should not conclude that they will be devoid of legal impact.[125]

Martin Howe went further, saying that a principle could be used as a basis either for interpretation or for striking down a measure.[126]

Title IV "Solidarity" Rights

95. David Anderson said that the UK's concerns over the Charter had been most acute in relation to these 12 rights of a social or economic nature. He considered that there were some unclear limits on the enforceability of these rights in Article 52(5) of the Charter but that Article 1(2) of the Protocol provided "strong protection" against the creation of free-standing rights in Title IV.[127] Dr Lock agreed, saying that the UK may have successfully opted out of this Title in so far as it contained rights.[128] Professor Douglas-Scott thought that although the scope of Article 1(2) was unclear, in the absence of an ECJ ruling on its interpretation it was arguable that it confirmed the status quo that economic and social rights were not directly enforceable.[129] Andrew Duff MEP added that solidarity principles must already be the subject of national legislation in order to be justiciable. He considered that the application of solidarity principles would be unlikely to overturn established principles of British labour law or pay, social security and employment policy. This was because they would only become relevant in the context of EU legislation and there were already specific Treaty limits on EU legislation on matters of pay, the right of association, the right to strike and impose lock-outs or in relation to Member States establishing social welfare systems.[130]

Horizontal application of the Charter

96. The Charter could be applied between individuals, agreed Professors Craig and Douglas-Scott.[131] This was to be expected as most systems of bills of rights involved horizontality, but the issue in EU law could be complex, cautioned Professor Craig.[132] As Professor Douglas-Scott explained, it was possible for the Charter to be applied horizontally in a number of different ways, not all of them corresponding to direct enforceability of Charter Rights. She noted, however, that some Articles were not capable of horizontal effect because they were addressed to the EU institutions.[133] Professor Craig explained that it was very unlikely that the ECJ would interpret the Charter to enable individuals to rely on it directly against other private parties as such an interpretation jarred with the language of Article 51 (Advocate General's Trstenjak's view in NS) and would be opposed by some national courts. However, he considered that particular Charter rights corresponding with rights found in the Lisbon Treaty might have horizontal impact because those Treaty provisions had been interpreted in this way by the ECJ. He also thought that there was scope for indirect horizontal application, where Charter rights were used as interpretative devices when construing private law principles in tort or contract or statutes affecting private relations. This was because the Charter obligations were imposed on national institutions including the courts.[134] David Anderson agreed that "Member States" in Article 51 of the Charter included the national courts of Member States.[135] There was therefore a similarity between the effect of the Charter on UK courts and section 6 of the HRA, which states that courts are public authorities and are therefore bound by the requirements of the HRA. Whilst others were more sanguine, Martin Howe was particularly critical of the consequences of indirect horizontal application under section 6 of the HRA:

    What has happened is this has been used as an argument to introduce horizontality, most notably in the context of the creation of a new, horizontal right to privacy, which Parliament itself has never decided to create through, among other things, the argument that, since the court is itself bound by Section 6 of the Human Rights Act, the court must adapt substantive doctrines of common law that apply as between citizens in order to create, in effect, new rights. Therefore, the act, in effect, has binding effects on private citizens, through that gateway, as well as on public institutions. Certainly, one can see a road for a parallel chained logic in the application of the EU Charter.[136]

97. When we asked Professor Douglas-Scott about the AMS case, she commented that:

    Those who would prefer not to see a horizontal effect of the Charter might be quite comforted by the court's recent judgment, because they did not find a horizontal application of the Charter in that particular case. They did not find that the provision in the Charter could be used to super charge, as it were, a Directive that also covered the relevant law in that field. They found that the provision of the Charter was not sufficiently specific to give rise to a directly enforceable right that could be used in a horizontal situation between two private parties. In that respect, they did not go as far as the judgment of the Advocate General in the AMS case, nor did they continue down the line of some of their previous case law in Mangold and Kücükdeveci, where they seem to admit some sort of horizontal effect of general principles of law.[137]

98. She considered that Benkharbouche appeared to be the first case in which Charter rights had been actionable in a UK dispute between private parties (ever since the ECJ's decision in Kücükdeveci, such rights could be enforced directly against private individuals). She explained that the UK statute in question was disapplied to the extent that it was incompatible with the Charter rights relating to aspects of the employment claims falling within the scope of EU law.[138]

99. Professor Craig added that in the AMS case the ECJ did not conclude that other Charter provisions could not have a horizontal impact; the ECJ was "leaving the door quite wide ajar in relation to Charter rights that they think are suitable and complete, and therefore susceptible to horizontality."[139]

Parallels with the application of the ECHR

100. Professor Craig said that Mostyn J had been wrong to think that the Charter and ECHR had the same scope: the Charter was drafted to cover broader rights than the ECHR.[140] Andrew Duff MEP agreed and said that the Charter was a wider binding instrument than the ECHR at the level of the EU and the Explanations were very useful for interpreting rights and principles in the Charter that went beyond the ECHR. He said that the Charter would remain as part of British domestic law even if the HRA was repealed.[141] Professor Douglas-Scott added that there was also a risk that the scope of the Charter might be interpreted more broadly than the ECHR.[142]

101. Andrew Duff MEP thought that given the close association between the ECHR and the Charter, "it is paradoxical" that these comparable European instruments had been treated in very different ways by the then Government (and Parliament).[143] They had chosen to give direct effect to the ECHR through the HRA, but had sought to "blunt and obscure" the effect of the Charter by insisting on Protocol 30.[144] He also thought that the interpretation of ECHR rights by the ECJ, as general principles of EU law under Article 6(3) TEU, would be more consistent than that of the more diverse ECtHR itself; and any inconsistency as between the two courts would be resolved by EU accession to the ECHR (which had been required by the UK in return for agreeing to give the Charter legal status). It was not in the interests of British citizens to be isolated from the benefits of that development, in his view.[145]

102. Dr Lock commented that since the Charter could only be invoked before the UK courts where the UK was "implementing EU law" and not in purely domestic situations, such a restriction meant that the Charter could not be viewed as a bill of rights or easily compared to the HRA regime.[146] Also, the obligation on every court to disapply UK primary law which was incompatible with the Charter should be contrasted with the more limited power of only the higher courts merely to issue a "declaration of incompatibility" under the HRA regime: this was recently illustrated in Benkharbouche.[147]

The Charter in the future

103. Professor Douglas-Scott referred to the recommendation of Advocate-General Sharpston in Zambrano (which the ECJ did not follow), that to advance "an ideal of consistent interpretation of fundamental rights", they should apply in all areas of EU competence, irrespective of whether it had actually been exercised.[148] The Advocate General accepted though that this would be a bold step for the ECJ and that it would introduce an overtly federal element into the structure of the legal and political system, as the US's Supreme Court had done between the wars.

104. Martin Howe and Dr Pinto-Duschinsky both suggested that the problems created by the Charter, in particular, in the latter's view, the primary and essential question of the "supremacy of the UK Supreme Court" in matters concerning the Charter, should be addressed as part of the UK's renegotiation of its EU membership.[149] Martin Howe considered that the UK could request that the Charter ceased to apply to the UK with "flanking measures" being required to prevent its "indirect application" via the EU doctrine of general principles.[150]

105. Andrew Duff MEP considered that there was a need for uniformity of international human rights norms, particularly in the context of the EU and the Charter. The Charter had been underestimated in Britain but valued in other Member States as a "key part of the constitutional order of the Union", of wider application than the ECHR and setting a uniform standard of rights across the Union for the benefit of EU citizens "which is the highest in the world".[151] In the interests of "legal certainty and political solidarity" the UK should withdraw from Protocol No 30 at the next available ordinary revision of the EU Treaties.[152]

106. Martin Howe concluded in his written evidence that it was wrong to assume that the effect of the Charter was only to inhibit EU organs and that it demonstrably could affect Member States by expanding the scope of EU law and therefore diminishing the autonomy of Member States. He went on to say that:

    the only effective way of curtailing the use of the Charter as an instrument for expanding EU competences is to ensure that the courts of the United Kingdom, and those courts alone, are responsible for ensuring the compliance of the authorities with fundamental rights. [...] This outcome might be effectively achieved by a restructuring of the European Communities Act 1972.[153]

Scope for opting out of the Charter in the UK

107. We put the following question to the four expert witnesses who gave evidence to the inquiry:

    In your view, would the following provision of primary legislation suffice to disapply the application of all EU fundamental rights in the UK, whether derived from general principles of EU law, legal bases within the EU Treaties, or the Charter? The following provision of primary legislation would be as follows:

    "Notwithstanding any provision of the European Communities Act 1972, none of the rights, freedoms or principles referred to in Article 6(3) of the Treaty on European Union, or in the Charter of Fundamental Rights of the European Union, or deriving elsewhere from within the EU Treaties, or otherwise determined by the Court of Justice, shall form part of the law applicable in any part of the UK."[154]
  1. All agreed that this would amount to a direct conflict with EU law, leading no doubt to infringement proceedings against the UK, although constitutionally it would be possible by seeking an express amendment to the European Communities Act 1972. Several questioned why the UK would want to opt out from the Charter, given that it is primarily aimed at restraining the power of the EU institutions. Professor Craig mentioned that the UK would still be bound by Article 6(3) of the TEU, which ensured that the pre-existing EU fundamental rights expressed as general principles of EU law would continue to apply in the absence of the Charter.[155] He, like others, thought that the UK has no right, unilaterally, to alter the terms of its membership of the club, unless by withdrawing from the EU.[156] David Anderson thought that the proposed provision was "wildly uncertain in its scope". It appeared to him to apply to all rights, freedoms or principles deriving from the EU Treaties and he wondered if it was intended as an opt-out from the entirety of European law.[157]

59   Professor Paul Craig (CFR0006) para 4(3) Back

60   Martin Howe QC (CFR0008) para 2 Back

61   Professor Paul Craig (CFR0006) para 4(3) Back

62   Dr Michael Pinto-Duschinsky (CFR0005) para 5 Back

63   Dr Michael Pinto-Duschinsky (CFR0005) para 6 Back

64   Professor Paul Craig (CFR0006) para 4(5) Back

65   Dr Michael Pinto-Duschinsky (CFR0005) para 7 Back

66   David Anderson QC (CFR0003) para 1, Professor Paul Craig (CFR0006) para 4(6) Back

67   Martin Howe QC (CFR0008) para 3, page 3 Back

68   Professor Paul Craig (CFR0006) para 4(6) Back

69   [2012] UKSC 55; [2012] WLR (D) 342 Back

70   David Anderson QC (CFR0003) page 2, para 3 Back

71   Professor Sionaidh Douglas-Scott (CFR0002) para B4 Back

72   Professor Paul Craig (CFR0006) para 4(4) Back

73   Martin Howe QC (CFR0008) page 2, para 2 Back

74   David Anderson QC (CFR0003) para 20 Back

75   David Anderson QC (CFR0003) para 1, Martin Howe QC (CFR0008) para 2, Andrew Duff MEP (CFR0007) para 3, Dr Tobias Lock (CFR0001) para 24 Back

76   C-236/09 Back

77   Martin Howe QC (CFR0008) pages 2-4, para 3 Back

78   Q35 [Douglas-Scott, Craig, Anderson] Back

79   Martin Howe QC (CFR0008) para 1 Back

80   Martin Howe QC (CFR0008) para 1, Dr Michael Pinto-Duschinsky (CFR0005) paras 1, 14 Back

81   Dr Michael Pinto-Duschinsky (CFR0005) paras 1, 14 Back

82   Dr Michael Pinto-Duschinsky (CFR0005) para 3, Martin Howe QC (CFR0008) para 2 Back

83   Martin Howe QC (CFR0008) para 2 Back

84   Dr Michael Pinto-Duschinsky (CFR0005) paras 3-4, Martin Howe QC (CFR0008) para 2 Back

85   Dr Michael Pinto-Duschinsky (CFR0005) paras 3-4 Back

86   Professor Paul Craig (CFR0004) para 15-16 Back

87   Professor Paul Craig (CFR0004) para 22, David Anderson QC (CFR0003) para 9 Back

88   Andrew Duff MEP (CFR0007) paras 26-27 Back

89   Andrew Duff MEP (CFR0007) para 9 Back

90   Lord Goldsmith made a similar point: see the BIICL Speech, page 22. Back

91   Andrew Duff MEP (CFR0007) para 30, Dr Michael Pinto-Duschinsky (CFR0005) para 4 Back

92   David Anderson QC (CFR0003) page 1, para 4 Back

93   Martin Howe QC (CFR0008) page 5, para 5 Back

94   Dr Michael Pinto-Duschinsky (CFR0005) para 5 Back

95   Andrew Duff MEP (CFR0007) para 12 Back

96   David Anderson QC (CFR0003) para 18, Professor Paul Craig (CFR0006) para 2(3) Back

97   Professor Paul Craig (CFR0004) para 14 Back

98   Q42 [Craig] Back

99   Q42 [Douglas-Scott] Back

100   Dr Tobias Lock (CFR0001) paras 10-13 and summary Back

101   Q45 [Craig; Douglas-Scott] Back

102   Q45 [Douglas-Scott] Back

103   Q45 [Craig] Back

104   Lord Goldsmith QC (CFR0009) para 32 Back

105   Dr Tobias Lock (CFR0001) para 8, Andrew Duff MEP (CFR0007) para 27 Back

106   See our analysis of Fransson in chapter 6, paras 126-132, and our conclusions. Back

107   David Anderson QC (CFR0003) para 11 Back

108   Professor Sionaidh Douglas-Scott (CFR0002) para B2 Back

109   2007/C 303/02 Back

110   Martin Howe QC (CFR0008) page 4, para 4, Dr Tobias Lock (CFR0001) para 20 Back

111   Dr Tobias Lock (CFR0001) paras 15-22 Back

112   Martin Howe QC (CFR0008) para 4 Back

113   Dr Tobias Lock (CFR0001) para 22 Back

114   Professor Paul Craig (CFR0006) para 1(1)-(6) Back

115   Professor Paul Craig (CFR0004) para 1(3) Back

116   Professor Sionaidh Douglas-Scott (CFR0002) para B2 and Andrew Duff MEP (CFR0007) para 5 Back

117   Professor Sionaidh Douglas-Scott (CFR0002) para B2.1 Back

118   David Anderson QC (CFR0003) para 12 Back

119   David Anderson QC (CFR0003) para 15 Back

120   Q15 Back

121   Dr Tobias Lock (CFR0001) paras 14, 19 and summary Back

122   Q6 Back

123   Q26 Back

124   Q18 Back

125   Q6 Back

126   Q6 Back

127   David Anderson QC (CFR0003) paras 16-17 Back

128   Dr Tobias Lock (CFR0001) summary Back

129   Professor Sionaidh Douglas-Scott (CFR0002) paras A3.1-3.4 Back

130   Andrew Duff MEP (CFR0007) paras 20, 28 Back

131   Professor Paul Craig (CFR0004) para 12, (CFR0006) para 3(4), Professor Sionaidh Douglas-Scott (CFR0002) paras C2-6 Back

132   Professor Paul Craig (CFR0006) para 3(2) Back

133   Q40 [Douglas-Scott] and Professor Sionaidh Douglas-Scott (CFR0002) paras C1 and C6 Back

134   Professor Paul Craig (CFR0006) paras 3(1)-(4) Back

135   Q40 Back

136   Q40 Back

137   Q38 Back

138   Professor Sionaidh Douglas-Scott (CFR0002) para C5 Back

139   Q39 Back

140   Professor Paul Craig (CFR0004) para 25 Back

141   Andrew Duff MEP(CFR0007) para 4 Back

142   Professor Sionaidh Douglas-Scott (CFR0002) para A 3.4 and conclusion Back

143   Andrew Duff MEP(CFR0007) para 17 Back

144   Ibid Back

145   Andrew Duff MEP (CFR0007) paras 14, 15, 16 Back

146   Dr Tobias Lock (CFR0001) para 16 Back

147   Dr Tobias Lock (CFR0001) paras 23-25 Back

148   Professor Sionaidh Douglas-Scott (CFR0002) para B 3.2 Back

149   Dr Michael Pinto-Duschinsky (CFR0005) para 13 Back

150   Martin Howe QC (CFR0008) para 6 Back

151   Andrew Duff MEP (CFR0007) para 8 Back

152   Andrew Duff MEP (CFR0007) para 32 Back

153   Martin Howe QC (CFR0008) para 6(2) Back

154   Q50 Back

155   Q51 [Craig] Back

156   Q52 [Craig] Back

157   Q54 [Anderson] Back

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Prepared 2 April 2014