2 EU Charter of Fundamental Rights
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; for debate on the floor of the House
|
| Document details | 2013 Report on the application of the EU Charter of Fundamental Rights (the Charter)
|
| Legal base | —
|
| Department | Ministry of Justice
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| 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. http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/979/979.pdf. 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. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/335759/application-of-the-eu-charter-of-fundamental-rights-in-the-uk-a-state-of-confusion.pdf Back
7
Review of the Balance of Competences between the United Kingdom
and the European Union: Fundamental Rights (22 July 2014).
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/334999/review-of-boc-between-uk-eu-fundamental-rights.pdf 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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