8 Recommendations
168. A clear exposition by the Government of the
domestic effect of the Charter is long overdue. We ask that the
Government provide one in the form of its response to this Report,
by stating where it agrees and disagrees with our conclusions
together with reasons. We intend that our Report and the Government's
response become a helpful reference for anyone who wants to find
out what the impact of the Charter is in the UK.
169. We note that the Government did not intervene
before the ECJ in the case of Fransson; it could have done
so had it wished to join the Commission and five other Member
States in contesting the application of the Charter. But the Minister
indicated that he thought the decision was correct. We urge the
Government to think again, and to intervene in future ECJ cases
on the Charter in support of a higher threshold—a determinative
link—for the test for when Member State action comes within
the scope of EU law, as a consequence of which any human rights
aspects fall under the Charter, as interpreted by the ECJ rather
than national courts.
170. As we say above, we recommend that the current
state of uncertainty about the Charter in the UK should end. The
inference we draw from the Secretary of State for Justice's evidence
is that he too is not content with the status quo, but
it was not clear what the Government intends to do about it, beyond
bringing a test case. We ask him to make this clear.
171. In the light of this, it is clear that the
situation cannot remain as it is. The Government has indicated
that, to clarify the Charter's application in the UK, it is looking
for the right case to argue a number of "blurred" points
that we have highlighted.[245]
However, we are far from convinced that, for the reasons we set
out in this Report, a legal challenge will resolve the issue:
it is much more likely to reaffirm the applicability of the Charter
to the United Kingdom.
172. Given what we say in these conclusions, in
particular in relation to the field of application,[246]
and the certainty that the jurisdiction of the ECJ will range
across an even wider field with increasingly unintended consequences,
we recommend that primary legislation is introduced by way of
amendment to the European Communities Act 1972 to exclude, at
the least, the applicability of the Charter in the UK. This is
what most people thought was the effect of Protocol 30. They were
wrong. It is not an opt-out, but for the sake of clarity and for
the avoidance of doubt we urge the Government to amend the European
Communities Act 1972, as we propose.
245 Q112 [Abigail Culank] Back
246
Paras 160-162 of this Report Back
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