Legally and politically important
(a) Not cleared from scrutiny and further information requested;(b)(c) and (d) debate recommendations, reported on 4 February 2015, 21 July 2015 and 7 September 2016, not revived and documents cleared from scrutiny; chapter and document (a) to be drawn to the attention of the Joint Committee on Human Rights, Justice Committee and Women and Equalities Committee
Annual Reports on the Application of the EU Charter of Fundamental Rights in (a) 2016; (b) 2015; (c) 2014 and (d) 2013.
Ministry of Justice
(a) (38759), 9511/17 +ADD 1, COM(17) 239; (b) (37762), 8807/16 + ADD 1, COM (16) 265; (c) (36897), 8707/15 + ADD 1, COM (15) 191; (d) (35971), 9042/14 + ADDs 1–3, COM (14) 224
31.1The EU Charter of Fundamental Rights (the Charter) entered in force on 1 December 2009 with the Lisbon Treaty and has the same legal status as the EU Treaties. The Charter brings together in a single document the fundamental rights and general principles protected in the EU. It contains rights and freedoms under six titles: Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights, and Justice. It consists of rights and freedoms found in the case law of the Court of Justice (CJEU), the European Convention on Human Rights (ECHR) and the common constitutional traditions of EU countries and other international instruments.
31.2When the UK is “acting within the scope of EU law” as a Member State it must act compatibly with the Charter, and UK primary legislation which conflicts with a directly effective right under the Charter must be set aside if it cannot be read compatibly with it. This is in contrast with rights under the European Convention of Human Rights (ECHR) incorporated into UK law by the Human Rights Act 1998: the UK courts can only declare conflicting UK primary legislation to be incompatible. There has been some historic misunderstanding that the Polish-UK Protocol on the Charter (Protocol 30) represented an opt-out from the Charter. It does not. For these legal reasons, the Charter has been an important focus of our predecessors’ scrutiny.
31.3Following the triggering of the Article 50 TEU process for the UK’s withdrawal from the EU, the European Union (Withdrawal) Bill seeks to incorporate and retain in UK domestic law all existing EU law and Court of Justice (CJEU) case law as it stands on exit day. However, Clause 5(4) excludes the Charter from this new category of “retained EU law”, providing that the Charter “is not part of domestic law on or after exit day”. Subsection (5) adds that fundamental rights or principles which exist separately from the Charter will remain part of retained EU law, with references to the Charter in case law to be understood by the courts are references to the corresponding rights and principles, existing independently of the Charter.
31.4We set out in the Conclusions of this report why the Charter may remain relevant to the UK, despite the intention of the EU (Withdrawal) Bill.
31.5Documents (b), (c) and (d) are the Commission’s annual reports on the application of the Charter in 2015, 2014 and 2013 respectively, all of which our predecessors have recommended for debate on the floor of the House. This debate has been outstanding, in respect of document (d) for over two years. Document (a), published in May 2017, is the new annual report for 2016 and the seventh overall. Like the other annual reports, the 2016 report is a retrospective review and does not propose new action. It is accompanied by a Staff Working Document which details how the Charter is being interpreted by the CJEU and applied by the national courts of the Member States in the six titles of the Charter. The detail of the report is set out in the “current document” section of this chapter.
31.6The Parliamentary Under-Secretary of State at the Ministry of Justice (Dr Phillip Lee) now provides the Government’s views on certain aspects of the 2016 report (document (a).
31.7We thank the Minister for his Explanatory Memorandum.
31.8We recognise that the Charter and its application to the UK and UK law was an important focus of our predecessors’ scrutiny. We also acknowledge that circumstances have changed since the last Report of the previous Committee on documents (b)-(d) in September of last year: the European Union (Withdrawal) Bill as currently drafted excludes the Charter from EU law to be retained in UK law after Brexit. As issues concerning the Charter can now be debated by Members during the passage of Bill in the House, we are prepared to not revive the long outstanding debate recommendation. We also clear documents (b), (c) and (d) from scrutiny.
31.9We retain document (a) under scrutiny pending the Minister’s comments on how the Charter may, to a greater or lesser extent, remain relevant to the UK because, in particular:
i)it may prove difficult for the UK courts to excise the influence of the Charter, when the courts are under a duty, so far as necessary, to read any references to the Charter in case law as if they were references to “any corresponding retained fundamental rights of principles” in their application of pre-Brexit CJEU and domestic case law to EU-retained law;
ii)the “corresponding retained fundamental rights and principles” will remain as part of EU “retained law” in any event, albeit with weaker effect than their Charter formulation;
iii)the EU might either seek direct compliance with the Charter by the UK as part of post-Brexit data-sharing arrangements both for trade and security-related/JHA cooperation (see, for example, the impact of the Charter on the proposed EU-Canada PNR Agreement and the Annual Report’s focus on the Watson case) or, at the very least, the UK may have to align with the Charter to prevent problems arising in the implementation of those agreements (see the US experience with Safe Harbor and Privacy Shield);
iv)continued reliance on the Charter might yet result from the Article 50 negotiations for EU citizens living in the UK in order to exercise their EU citizenship and free movement rights, especially as the Charter would otherwise apply to UK citizens who may continue to live in the other 27 Member States; and
v)the withdrawal and transitional EU-UK future relationship agreements will need to comply with the Charter and we note that the CJEU can be asked by a Member State, the European Parliament, the Council or the Commission for an opinion pursuant to Article 218(11) TFEU as to whether an international agreement complies with the Treaties (and by extension the Charter).
31.10We draw this chapter and document (a) to the attention of the Joint Committee on Human Rights, Justice Committee and Women and Equalities Committee.
(a) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: 2016 Report on the Application of the EU Charter of Fundamental Rights: (38759), + ADD 1, COM(17) 239; (b) Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: 2015 Report on the Application of the EU Charter of Fundamental Rights: (37762), + ADD 1, COM (16) 265; (c) Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions: 2014 Report on the Application of the EU Charter of Fundamental Rights: (36897), + ADD 1, COM (15) 191; (d) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: 2013 Report on the application of the EU Charter of Fundamental Rights: (35971), + ADDs 1–3, COM (14) 224.
31.11This seventh Report on the application of the Charter fulfils the Commission’s commitment to publish an annual report setting out its strategy on the effective implementation of the Charter. It recalls actions the EU has taken over 2016 in relation the Charter and proposes no new action. The report notes that EU institutions are obliged to comply with the Charter in all their actions and sets out a number of legislative instruments brought forward by the EU as well as listing major policy proposals.
31.12The report confirms that the Charter only applies to Member States when they are implementing EU law and that this requires a ‘sufficient link’ to EU law to be shown. It states that, where this condition is met, the Commission, under the scrutiny of the CJEU, can start infringement proceedings against a Member State for a breach of the EU’s fundamental rights. It also states that national courts can seek guidance on the application and interpretation of the Charter from the CJEU through a preliminary ruling.
31.13The report highlights several cases where national courts have made preliminary references to the CJEU on the interpretation of EU law. For example, in the area of data retention by communications service providers, the Court examined laws in two Member States, including the UK case brought in the name of the Hon. Member for West Bromwich East, Tom Watson MP. It considered the safeguards that are necessary for a data retention regime to be consistent with fundamental rights. In the area of infringement of copyright the Court considered whether a website providing a link to a work provided online without the consent of the rights holder is a communication to the public, and laid out criteria (knowledge, profit) for determining this (GS Media BV). In relation to the European Arrest Warrant (EAW), the Court emphasised that Member States have an obligation to evaluate the risk with respect to the person in question when deciding whether to execute the EAW (Aranyosi and Caldararu).
31.14The report notes that in 2016 the Commission engaged in a public consultation for the development of a European ‘pillar of social rights’. Drawing on the social rights under the Charter, the report argues that this will support well-functioning and fair labour markets and welfare systems. The report lists several policies set up to promote and protect fundamental rights in relation to fair working conditions, consumer protection, family life and rights of the child.
31.15The report notes that the Commission, following its Communication on a reform of the Common European Asylum System (CEAS), proposed amendments to the asylum existing rules. In relation to this, and with the aim of protecting fundamental rights such as the right to non-discrimination, the Commission provided a platform for Member States, civil societies and international organisations to work on improved responses to hate crime and hate speech.
31.16The report refers to a case in which the Articles of the Charter referring to children’s rights are cited by a UK Court (Upper Tribunal (Immigration and Asylum Chamber) Adebayo Abdul v. Secretary of State for the Home Department,  UKUT 106 (IAC)). The case involved a Nigerian national who was the holder of a EU residence permit on the basis of his marriage, and he had two daughters who were British citizens. On account of his residence permit the UK authorities sought to deport him under the provisions of the UK’s EEA Regulations. The tribunal reversed the decision of the first instance court, considering that it had failed to acknowledge the existence of the children’s right to maintain on a regular basis a personal relationship and direct contact with both parents, unless that is contrary to their interests (Article 24).
31.17A key area of focus in the report is data protection. The Commission refers to the adoption of the General Data Protection Regulation (GDPR) and the Data Protection Directive for Police and Criminal Justice Authorities, which aim to strengthen the existing rules and providing a single EU instrument to guarantee all EU individuals the same protection. Alongside these initiatives, the Commission also adopted a EU-US Privacy Shield adequacy decision, which ensures personal data for commercial purposes are certified under the Privacy Shield. Furthermore, the report notes that the EU and the US reached an Umbrella Agreement, which provides high level protection for any transfer of personal data.
31.18The report refers to the newly agreed EU Directive on double taxation dispute resolution mechanisms. The directive establishes a common dispute resolution regime for taxpayers at risk of double taxation, for disputes over the application of double tax agreements agreed bilaterally between Member States. This ensures taxpayers have the ability to go to national courts at different stages of the dispute resolution process to ensure resolution occurs.
31.19The report refers to the new Directive on combating terrorism, on which the European Parliament and the Council reached an agreement in December 2016, as a good example of mainstreaming fundamental rights, as it includes an explicit fundamental rights clause. A proposal to update the EU Export Control Regulation for sensitive (dual-use) items was adopted by the Commission, which provides a robust framework for controlling exports of cyber-surveillance technology. In relation to migration, the report references a joint inquiry by the European Ombudsman concerning a human rights impact assessment of the EU-Turkey Statement of 18 March 2016. The Commission will continue to closely monitor the implementation of the Statement with regards to respect for human rights both in the EU and in Turkey.
31.20The report again covers the issue of awareness of the Charter and suggests that there is a desire for information about the Charter by the public and recalls the conference on this issue organised by the Dutch Presidency in February 2016.
31.21The report recalls the second Annual Colloquium (17–18 November 2016) which explored the multiple links between a free and pluralistic media and democracy.
31.22In an Explanatory Memorandum of 21 July 2017, the Parliamentary Under-Secretary of State for Justice (Dr Phillip Lee) summarises the scope and content of the seventh annual report as outlined in paragraphs 0.11–0.21 above.
31.23He then comments on the policy implications of the report. Given the importance of the Charter to our predecessors’ previous scrutiny we set out his comments in full:
“This explanatory memorandum focuses on the information in the annual report, setting out the Government’s position on a number of areas. However, it does not provide a comprehensive Government response on each of the individual measures, proposals and communications referred to in the report. Neither does it attempt to provide a Government position on all the examples in the Commission Staff Working Document. Where no reference has been made to a particular measure, this should not be read to imply that the Government agrees. The Government’s position with regards to each measure will have been reflected as part of the scrutiny process of them individually as appropriate.
“It is clear from the Treaties, including protocol 30 which concerns the Charter, as well as the Charter itself that it does not create any new rights nor extend the competencies of the EU. The Charter has brought together rights and principles which already existed in EU law, and which themselves are drawn from the constitutional traditions common to Member States and widely accepted international instruments such as the European Convention on Human Rights (ECHR). The Charter is primarily directed at EU institutions and only applies to the Member States when they are acting within the scope of EU law. The Government concurs with the statements in the report (page 9) regarding national actions. Infringements procedures concerning the Charter can only be initiated when a sufficient link to EU law has been established.
“In relation to Article 14 of the Charter regarding the right to education, as referenced in the Commission Staff Working Document, the Government has worked to ensure that the proposals flowing from the EU’s New Skills Agenda are compatible with UK policies and approach, and that the proposals do not exceed EU competence in the areas of education and skills. With regards to the Erasmus+ programme (2014–2020), the implementation of the programme has not had any impact on UK policies neither has Reception Conditions Directive and the EU action plan on the integration of third-country nationals.
“With regards to the issue of worker’s rights (Article 27–34 of the Charter) the Government broadly supports the 2016 Council Recommendations on the integration of the long-term unemployed into the labour market. In relation to Public Employment Service, which includes the right to access free placement service (Article 29 of the Charter) the UK has free placement services in its public employment service, Jobcentre Plus, which is provided at the point of contact.
“The consultation process on the European Pillar of Social Rights itself gave rise to activity in the UK, to which both civil society organisations and the Scottish Government contributed. The Scottish Government’s Cabinet Secretary for Communities, Social Security and Equalities participated in the European Economic and Social Committee consultation event in Glasgow in November 2016. The UK Government responded formally to the Pillar consultation in December 2016.
“With regards to the reference to the Adebayo Abdul v. Secretary of State for the Home Department,  UKUT 106 (IAC) case in the report, the Government is concerned that, by describing the provision in the Charter as a “self-standing right’ in the context of immigration law”, the Report implies that this Article of the Charter can be invoked directly in proceedings in the UK courts. This is a high level and general claim that does not fully reflect the way that the rights in question are given more precise expression through a country’s domestic provisions and—as the Upper Tribunal acknowledged in the case cited—by the application of proportionality.
“The Department for Business, Energy and Industrial Strategy has recently submitted an EM on the European Commission’s evaluation of the Consumer Rights Directive (CRD)—EM 9660/17. The CRD forms part of the European consumer acquis and is designed to improve the protections which exist for consumers across the EU. Article 30 requires the Commission to publish an assessment of it within five years from the date of adoption (2011).
“The Government supports the recently agreed EU directive on double taxation dispute resolution mechanisms, referenced in relation to Article 47 of the Charter (right to an effective remedy and to a fair trial) in the Commission Staff Working Document. Although the EU directive is referenced in relation to customs, it in fact relates to direct taxation.
“With regards to the issue of copyright as referenced in CJEU case law (GS Media BV), the report highlights a directive and a regulation relating to copyright that formed part of a wider copyright package. The Government concluded that both pieces of legislation comply with the Charter. The exceptions listed in the Copyright Directive could potentially impact on the right to property. However, they follow the international three-step test as set out in the Berne Convention, which ensures that copyright owners’ rights are respected. As regards the Online Transmissions Regulation, the introduction of the country of origin principle for certain online transmissions and the mandating of collective rights management for cross-border online retransmissions over closed networks will impact copyright only in specific uses of audio-visual content.
“With regards to data protection the Government supports the Umbrella Agreement, which is an international agreement setting out the guarantees and safeguards that must apply when personal data is transferred from the EU to the US for law enforcement purposes. The Government welcomes the adoption of a EU-US Privacy Shield adequacy decision, which ensures that personal data for commercial purposes are certified under the Privacy Shield.
“The report states that there is a demand for more information on the Charter. The Government reiterates that EU fundamental rights are a part of a broader national and international framework of rights protections and the steps to address awareness are best undertaken based on this broader framework.
“The UK has transposed the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, Directive 2011/36/EU. The UK is fully compliant with the Directive. The Government will continue to give high priority to the implementation of the Modern Slavery Strategy 2014 and Modern Slavery Act 2015. The UK approach is comprehensive, working to enhance the law enforcement and criminal justice response in the UK and to ensure protection for victims, as well as enhancing our international cooperation with key source countries to try to prevent vulnerable people from becoming victims. The Scottish Government’s Trafficking and Exploitation strategy was published on 30 May 2017. The Strategy will be delivered in conjunction with stakeholders. Implementation of the provisions of the Human Trafficking and Exploitation (Scotland) Act 2015 is also ongoing. The Northern Ireland Department of Justice is also committed, with partner agencies, to the implementation of the Northern Ireland Human Trafficking and Modern Slavery Strategy 2016/17.
“The question of EU accession to the ECHR remains a priority for the Commission, which is exploring solutions to address the various issues raised in opinion 2/13 by the Court of Justice of the European Union. As stated in last year’s Explanatory Memorandum, the complex issues raised by the Court makes it difficult for the EU and contracting parties to the ECHR to negotiate a revised accession agreement.”
(a) None; (b) Tenth Report, HC 71–xviii, (2016–17), (21 July 2015); (d) Thirty-second Report HC 219–xxxi (2014–15), (4 February 2015); Ninth Report HC 219–ix (2014–15), (3 September 2014); First Report HC 219–i (2014–15), (4 June 2014).( 7 September 2016); (c) and (d): First Report, HC 342–i (2015–16),
547 We note that Charter rights are not always co-extensive with the ECHR.
548 A sufficient link to EU law must be shown. See the cases of See Case 617/10 Akerberg Fransson where a more expansive approach to connection with EU law was taken then in the more recent Case 206/13 Siragusa.
549 We question whether this means independently existing in EU or UK law.
550 See the PM’s speech in Florence of 22 September 2017
551 See , 26 July 2017.
20 November 2017