5 Interpretation of the Charter and
Protocol 30the 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."
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.
111. He also considered that the rights consolidated
in the Charter had achieved greater prominence by virtue of its
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.
Effect of Protocol 30application
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.
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". 
Tim Jewell added that "It is a clarification" which
"serves for all purposes", not just the UK's.
The Minister commented that the Protocol was like the explanatory
notes that accompany a Bill.
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.
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.
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.
Abigail Culank said that Benkharbouche, which raised interesting
ECHR and Charter arguments, might or might not be the right case.
Article 51 and the Fransson
114. The Secretary of State indicated that the Government
thought that Fransson was a legally accurate ruling.
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.
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.
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.
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.
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.
However, the key issue was that, legally, the Charter could not
be applied to "a purely UK legal matter".
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.
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.
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".
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 thisthe 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.
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.
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".
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
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.
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. 
158 Q95 Back
Q100 [Rt Hon Chris Grayling MP] Back
Q100 [Tim Jewell] Back
Qq97, Q112 Back
Q112 [Abigail Culank] Back
Q112 [Rt Hon Chris Grayling MP] Back
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
Q103 [Rt Hon Chris Grayling MP] Back
Q103 [Tim Jewell] Back
Q105 [Rt Hon Chris Grayling MP] Back
Q105 [Tim Jewell] Back
Q104 [Tim Jewell] Back
Q105 [Rt Hon Chris Grayling MP] Back
Q105 [Rt Hon Chris Grayling MP] Back