Documents considered by the Committee on 4 February 2015 - European Scrutiny Contents

2 EU Charter of Fundamental Rights

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; for debate on the floor of the House
Document details2013 Report on the application of the EU Charter of Fundamental Rights (the Charter)
Legal base
DepartmentMinistry of Justice
Document numbers(35971), 9042/14 + ADDs 1-3, COM(14) 224

Summary and Committee's conclusions

2.1 This report comprises the Commission's review of the application of the Charter within the EU (including by the national courts of Member States) for the year 2013 and was published in April 2014.

2.2 In our last Report of 3 September 2014, we said we were currently considering the Government's response to our Report following our inquiry entitled The application of the EU Charter of Fundamental Rights in the UK: a state of confusion[5]. We therefore intended to keep the current document under scrutiny as issues might arise in the course of our further deliberations which were relevant to this Commission report. Since then the Lord Chancellor and Secretary of State for Justice (Chris Grayling) has responded to our Report of 3 September (by a letter of 21 October) and has appeared with the Home Secretary on 12 January 2015 to give oral evidence to us on matters including the follow-up to our Charter inquiry.

2.3 We thank the Secretary of State for Justice for the responses he has provided to us in the course of the scrutiny of the current document. We also thank him for the oral evidence he gave to us on 12 January and note the commitment he made to watching "like a hawk" the question of the Charter's application to UK national law.

2.4 In the meantime, we continue to have concerns about the scope of the Charter's application in the UK, which we have raised not only during our scrutiny of this document but also in our Charter Inquiry Report. Some of these questions have also been addressed by the Government in its Response to our Charter Inquiry Report[6] and in its Balance of Competences Review of EU Fundamental Rights[7], in the Minister's words "the most comprehensive Government assessment of the impact of EU fundamental rights to date". But we have yet to learn how the Government intends to apply the assessments made in either of those documents.

2.5 We therefore recommend that the current document be debated on the floor of the House to give all Members the opportunity to discuss these important issues.

Full details of the documents: Commission Report: 2013 Report on the application of the EU Charter of Fundamental Rights: (35971), 9042/14 + ADDs 1-3, COM(14) 224.

Background and previous scrutiny

2.6 The background to the Charter, this annual Charter Report and our scrutiny of previous annual Reports was set out in our First Report of this session and our Sixth Report of the 2013-14 Session[8].

2.7 In our Report of 3 September we sought to address some questions relating to the annual report and also relevant to our Charter Inquiry Report with the Minister. We:

·  sought to address the Government's approach to two important UK cases concerning the application of the Charter in the UK (ZZ v Secretary of State for the Home Department[9] and Benkharbouche & anr v Embassy of the Republic of Sudan[10]);

·  asked the Minister to respond with his view of the impact on business, taxpayers, national security and public safety of Charter-related litigation; and

·  said that we would keep the current document under scrutiny pending our further consideration of the Government's response to our Charter inquiry Report

The Minister's letter of 21 October 2014

2.8 The Minister responded to our Report of 3 September in this letter by:

·  referring us to the recent Balance of Competences review on EU Fundamental Rights as "the most comprehensive Government assessment of the impact of EU fundamental rights to date";

·  repeating his response of 14 July that further queries about the ZZ case should be referred to the Home Secretary;

·  confirming that the Government continues to monitor proceedings both before UK courts and the Court of Justice to identify a suitable case for intervention; and

·  simply noting the dates that the Court of Appeal proceedings in the case of Benkharbouche were listed to be heard.

Our letter of 29 October 2014

2.9 In response, we said in our letter of 29 October:

    "As no new material points of information arise from your letter, the Committee does not propose to respond further until after completing its consideration of the Government's response to the Committee's Report, The application of the EU Charter of Fundamental Rights in the UK: a state of confusion."

The Minister's oral evidence taken on 12 January 2015

2.10 The Justice Secretary gave evidence to us on a number of matters on 12 January, including the Charter. Although the Home Secretary also gave oral evidence relevant to the Charter, we confine this Report to the evidence of the Justice Secretary as the Minister responsible for the current document.

2.11 The Minister was first asked the following question on the Charter, which starts with an explanation of why we conducted our inquiry into it in the first place:

    "We have produced a report on this, because of the concern that the Committee has had about this over a long period of time, going back to when we acceded to the European Charter of Fundamental Rights. You will recall, Justice Secretary, that at that time we were told by those who were then responsible for these matters that the United Kingdom would enjoy an opt­out by virtue of Protocol 30.

    "However, since then, it has emerged quite clearly that Protocol 30 falls short of being an opt­out, and there is now some confusion, perhaps—if we use that word—as to where and when it would apply to UK law. This Committee, in its recommendations, suggested that we disapplied the Charter by way of an amendment to the European Communities Act. Since we made that recommendation, we have had further evidence on the confused situation as regards the application of the Charter to this country, not least when the Charter celebrated its fifth anniversary. On that day, 1 December, a senior legal adviser to the Fundamental Rights Agency wrote, with reference to this Committee's recommendation to unilaterally disapply the Charter—and I quote from what he said—"some hesitance at national level is due to the fact that it is not easy to understand where the Charter applies and where it does not, given the complexity of how legal powers are allocated to the different layers of governance." Home Secretary, do you not think that now is the time that we clarify this situation, and deal with the European Charter of Fundamental Rights?"[11]

2.12 The Justice Secretary responded:

    "If we start with the practicalities, we were hoodwinked over the Charter. We should never have been part of it in the first place. We were promised that it would be a meaningless document. The last Government led us up the garden path over it, and that should not have happened, and those who were involved at the time should be ashamed about what they did; but they should have been ashamed of what they did over the Lisbon Treaty as well, where the same thing applied.

    "The Charter did not create new rights in its own right, but what it did was codify a lot of things that either existed in bits and pieces of European law, or in custom and practice. It created for the Court a reference point that was a very clear, simple document, and my anxiety about documents like the Charter is that they effectively create blank-cheque jurisprudence. Sir William rightly said earlier that it takes a unanimous vote to overrule an ECJ judgment. It creates a tool for the ECJ to interpret the Charter in ways that impact right across the scope of European law. We will come on to the issue of the EU's accession to the ECHR in a moment, but it creates a point of conflict there as well.

    "How does it affect us? The first thing it is important to say is that, yes, it does apply to the UK, and all the advice we have had so far and all of the evidence I have seen so far is that there is, genuinely, a stopping point. It does not permeate into matters that are genuinely wholly related to UK law, so you would not see the Charter applied in a UK criminal court, for example. But the question we have to ask is where the dividing line comes in areas where European law is fairly vague in scope, and there is no doubt that there are those in Brussels who would like to see the Charter permeate member state law. The previous Vice­President of the European Commission was very explicit about her desire to see the Charter permeate national law. She said she wanted to see the Charter applied at national level as well.

    "We have to watch this like a hawk. I have to say that this is an area where there is not a great division across the coalition. Liberal Democrats have stood up in the House and also said that it is not their wish, either, to see the Charter become something that is applied in UK law as well, in the UK courts. Up to now, the references to the Charter in UK case law have been pretty few and far between, and I have not seen, as yet, evidence of the Charter really gaining a serious foothold, but I am watching this very carefully. I am very mindful of the view of this Committee; I share this Committee's concerns. If I feel the need to go to my colleagues in Government and say, "We have got a real problem here," then I will do so".[12]

2.13 Our Chairman then asked the Home Secretary a question about the application of the Charter to Temporary Exclusion Orders, proposed in the Counter-Terrorism and Security Bill, currently being considered by the House of Lords. The next question addressed to the Justice Secretary concerned the implications of the UK courts being bound by the case law of the Court of Justice on the Charter in the important area of immigration proceedings:

    "On 7 April, the Supreme Court, constrained by the case law of the European Court of Justice, refused the Government permission to appeal this judgment—the case of ZZ—and in that case, the Charter was applied by the Court of Appeal in accordance with the case law of the European Court of Justice in a way that weakened national security procedures relating to immigration, something that people might find of particular interest and concern just at this moment. Is there anything that can be done about this, Secretary of State?"[13]

2.14 The Justice Secretary, identifying the case itself as having a Home Office lead, referred this question to the Home Secretary, but first responded:

    "I do think it is a matter for concern. Fundamentally, the difficulty is that if we give to a court an unlimited jurisprudence, with little or no democratic override, you create a situation where decisions will be taken where the jurisprudence will develop mission creep into new areas that will leave us, as a nation, unable to do things about court decisions that materially affect us."[14]

2.15 There then followed an exchange between our Chairman and the Minister about what the former identified as the "completely different territory" of the Charter, compared with the European Convention on Human Rights (ECHR) and the Human Rights Act. This was because the Charter "applies in a similar framework of law, and thereby effectively puts us into an impossible position, in terms of policy making in our vital national interests".[15]

2.16 The next question we put to the Justice Secretary was "whether the Charter might make it harder to restrict EU migrants getting in­work benefits" such as "Article 21, regarding prohibition of discrimination on grounds of nationality, and Article 34(2), regarding entitlement to social security benefits and social advantages for everyone residing and moving legally throughout the EU".[16]

2.17 The Minister responded:

    "It is a genuine issue, as you describe. Fundamentally, we need to be able to protect our national interest. If the Court is really using the Charter to rewrite the rules agreed by member states, then the member states and the United Kingdom will have to respond to that. I absolutely accept what Sir William says, and we have to look at that very carefully, and I will ask the Home Secretary if I can take a look at her legal advice as well on that particular situation. We cannot have a situation where the laws of this land are being rewritten by an international court, and where we have no ability to do anything about it, in areas that are as sensitive as you describe".[17]

Previous Committee Reports

Ninth Report HC 219-ix (2014-15), chapter 22 (3 September 2014); First Report HC 219-I (2014-15), chapter 19 (4 June 2014).

5   Forty-Third Report HC979 (2013-14) (26 March 2014): The application of the EU Charter of Fundamental Rights in the UK: a state of confusion. Back

6   Command Paper 8915: Government Response to the House of Commons European Scrutiny Committee Report, Forty-third Report HC979 (2013-14) (26 March 2014): The application of the EU Charter of Fundamental Rights in the UK: a state of confusion. Back

7   Review of the Balance of Competences between the United Kingdom and the European Union: Fundamental Rights (22 July 2014). Back

8   HC 83-vi (2013-14) chapter 6 (19 June 2013) Back

9   ZZ (France) v Secretary of State for the Home Department Court of Appeal (Civil Division), 24 January 2014, [2014] Q.B. 820. Back

10   Benkharbouche v Embassy of the Republic of Sudan; Janah v Libya, EAT, 4 October 2013, [2014] 1 C.M.L.R. 40. Back

11   Q 38 [Mr Clappison] Oral evidence taken on 12 January 2015, HC 919 (2014-15). Back

12   Q 38 [Chris Grayling] Back

13   Q 42 [Mr Clappison] Back

14   Q 42 [Chris Graylling] Back

15   Q 43 [Sir William Cash] Back

16   Q 44 [Jacob Rees-Mogg] Back

17   Q 44 [Chris Grayling] Back

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Prepared 13 February 2015