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

5  Interpretation of the Charter and Protocol 30—the view of the Government

109. The Secretary of State for Justice, the Rt Hon Chris Grayling MP, gave evidence on 29 January, together with his advisers, Tim Jewell, Deputy Director, Legal Directorate, Ministry of Justice and Abigail Culank, Head of European Union Human Rights Policy, Ministry of Justice.

Status, scope and legal effects of the Charter

110. The Secretary of State agreed that it was the current legal position that the Charter did not create new EU fundamental rights, but consolidated existing EU and non-EU obligations in a more prominent form. The Minister said that "It is designed to apply purely to European law and European law matters and not designed to allow the creation of new rights in European law nor in UK law."[158] The Charter applied "in the law of the UK" where "EU law is applied in the British courts" but "not in UK law". This, he said, was an important difference.[159]

111. He also considered that the rights consolidated in the Charter had achieved greater prominence by virtue of its existence.[160] He did not think that, to date, this had led to more frequent reliance on Charter rights before the national courts and the ECJ, with the possible exception of the Fransson case involving Sweden.[161]

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

112. The Minister said that Protocol 30 "is very clearly not an opt-out", despite having been presented as such by some members of the relevant previous administration.[162] He agreed that it was "purely an interpretative Protocol which underscores the limited application of the Charter and is of very little if any value to the UK". [163] Tim Jewell added that "It is a clarification" which "serves for all purposes", not just the UK's.[164] The Minister commented that the Protocol was like the explanatory notes that accompany a Bill.[165]

113. The Minister said that Mostyn J had misunderstood that the Protocol was an opt-out, but the Government could not appeal the AB case which it had won.[166] Abigail Culank added that to clarify the Charter's application in the UK, the Government was looking for the right case where it could argue a number of "blurred" points that the European Scrutiny Committee had highlighted.[167] The Minister said that the Government had identified two or three possible cases where appropriate clarifications could be made to prevent any suggestion of a precedent from AB "kicking around in the UK courts" and implying that the Charter had a greater role to play than it did.[168] Abigail Culank said that Benkharbouche, which raised interesting ECHR and Charter arguments, might or might not be the right case.[169]

Article 51 and the Fransson case

114. The Secretary of State indicated that the Government thought that Fransson was a legally accurate ruling.[170] Tim Jewell said that the case confirmed that the Charter only applied "within the scope of EU law". He added that it was important not to take one case in isolation as there had been many cases where the ECJ and national courts had rejected Charter arguments relating to matters outside EU law. Fransson was a case on its own facts because of the VAT context.[171] The Minister added that although tax enforcement was a matter for national authorities, VAT was covered by EU law and so, technically, within EU competence.[172] Tim Jewell commented that the German constitutional court had considered that because of its particular VAT context, a narrower view should be taken of Fransson.[173]

115. Tim Jewell accepted that the Government in the NS case had taken the position that the correct test for the application of the Charter was "acting within the scope of EU law" rather than a narrower interpretation of "implementing EU law". This, he explained, was because the ECJ in NS had agreed with the UK's assessment of the scope of EU law in the circumstances of that case. He also explained that in the UK domestic proceedings of Saeedi, which led to the ECJ reference in NS, there was no detailed argument about the effect of Protocol 30 in the High Court. Cranston J nonetheless drew some conclusions on the effect of Protocol 30 with which the Government did not agree. It was in the Court of Appeal that the Government therefore explained the effect of Protocol 30, which it maintained in the reference to the ECJ.[174]

116. The Minister commented that the interpretation of the Charter in Fransson demonstrated how, because the Charter was "sufficiently vaguely worded" (and the Lisbon Treaty "broad-ranging"), it could be applied much more widely than the Government would have wished.[175] However, the key issue was that, legally, the Charter could not be applied to "a purely UK legal matter".[176]

Parallels with the application of the ECHR

117. The Minister agreed that it was not necessary for ECHR rights to be incorporated into EU primary law via the Charter, particularly in a different form and with different wording.[177] As to the necessity of EU Accession to the ECHR, he said that this had been agreed to by all Member States in the Lisbon Treaty. In principle, he considered that it was not unreasonable for an EU citizen to be able to bring a case in Strasbourg against the Commission for breach of ECHR rights in the same way that a case could be brought by the citizen against an individual country. However, he said that the Government would seek to ensure that rules governing the participation of the EU in the Council of Europe would not allow the EU to usurp the role of the states participating in the Council in their own right.[178]

118. The Minister considered the human rights' landscape in Europe was legally "messy": the UK Supreme Court had a role, the Strasbourg court applied the ECHR and the ECJ applied the Charter. Then there was the German Constitutional Court and other constitutional courts in other countries. He asked which court in each Member State should be regarded as having the "final say".[179]

The Charter in the future

119. The Minister agreed that there was a danger that an increase in Charter-based rights litigation could lead to existing EU competencies being interpreted more widely by national courts and the ECJ than had been the case. This could affect national competences, particularly in the context of Free Movement of Persons where rights enshrined in the Charter and the Lisbon Treaty could be used to argue for a broadening of EU competence. The Minister provided a hypothetical example of this—the establishment of a right to vote in national elections, despite the Charter's silence on this. He said that past experience of wide interpretation of Free Movement rights in the field of social security had indicated that there was a risk of expansion of EU competence.[180]

120. The Minister thought that no "great change" was anticipated amongst Member States that would take the Charter into "wholly new areas of law" in terms of new EU legislation. However, some "loosely-worded elements of the Charter" were now being turned into legislative proposals as demonstrated by, for example, the presumption of innocence proposal. The much greater risk, according to the Minister, was that the ECJ, as in the hypothetical example given, would interpret the Charter in such a way as to expand EU competence.[181]

121. The Minister cautioned that the Charter was seen by some as a platform for a more unified European state in the future. Commissioner Reding, the Vice-President of the Commission, had argued that the Charter "should apply to national law as well as European law".[182] However, the Minister said that it was inconceivable that any proposed treaty change to apply the Charter to all aspects of national law would be acceptable to the UK or a British Prime Minister.[183]

122. The Minister thought that whether the Government would consider using the right of veto over EU accession to the ECHR (both in the EU Council and the Council of Europe) to secure an effective opt-out from the Charter was an interesting question. He considered that the duty of sincere co-operation might militate against the use of the UK veto in the EU Council, but the Government would have the ability to ensure that any final deal was in the UK's national interest.[184]

123. The present Coalition Government would not, the Minister warned, support the introduction of UK primary legislation to disapply the Charter in the UK and all the pre-existing fundamental rights. He explained that it had no plans to change the nature of the UK's relationship with the EU. Nor would there be sufficient support for such a measure in both Houses through a Private Member's Bill. The Minister noted that the position of the Conservative Party was that it supported a renegotiation of the UK's relationship with the EU. But this could not just address a single issue like the Charter; it needed to be comprehensive in addressing the wider problems the UK faced in its relationship with the EU and a "very vague" Lisbon Treaty. [185]

158   Q95 Back

159   Q121 Back

160   Q96 Back

161   Q97 Back

162   Q99 Back

163   Q100 [Rt Hon Chris Grayling MP] Back

164   Q100 [Tim Jewell] Back

165   Q101 Back

166   Qq97, Q112 Back

167   Q112 [Abigail Culank] Back

168   Q112 [Rt Hon Chris Grayling MP] Back

169   Q112 [Abigail Culank]. No further discussion of Benkharbouche or another case ZZ was possible as the cases are sub judice and at this time the Government is actively considering whether to intervene in the one case and appeal in the other. Back

170   Q103 [Rt Hon Chris Grayling MP] Back

171   Q103 [Tim Jewell] Back

172   Q105 [Rt Hon Chris Grayling MP] Back

173   Q105 [Tim Jewell] Back

174   Q104 [Tim Jewell] Back

175   Q105 [Rt Hon Chris Grayling MP]  Back

176   Q105 [Rt Hon Chris Grayling MP] Back

177   Q108 Back

178   Q109 Back

179   Q111 Back

180   Q98 Back

181   Q115 Back

182   Q96 Back

183   Q121 Back

184   Q117 Back

185   Q123 Back

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Prepared 2 April 2014