Chapter 4: The relative scope of the ECHR and the EU Charter
50.A key aim of this inquiry was to establish what protection is provided by the EU Charter in parallel with, or in addition to, the ECHR. In this Chapter we consider the relative scope of the ECHR and EU Charter, whether restricting rights under the ECHR will lead to greater reliance on the EU Charter in national courts, and whether the common law and EU Charter would provide an equivalent level of human rights protection in the absence of the HRA.
The broader application of the ECHR
51.Although many of the rights in the ECHR overlap with rights in the EU Charter, the scope of application of the ECHR is much wider. All our expert witnesses considered this to be the main strength of domestic human rights protection under the ECHR. Professor Gordon Anthony, Professor of Public Law at the School of Law, Queen’s University Belfast, told us:
“The primary strength of the ECHR under the Human Rights Act is that it has a much broader reach than the EU Charter. Under Section 6 of the Human Rights Act [and Section 24 of the Northern Ireland Act] whenever public bodies make any decision they are bound by the provisions of the Convention. That is not the case with the Charter. The Charter applies only whenever public bodies make decisions within the realm of EU law … if the Human Rights Act were to be repealed and we were left with the EU Charter, we would be left with rights that had a narrower reach”.34
52.Mr Marco Biagi MSP, the then Minister for Local Government and Community Empowerment in the Scottish Government, agreed: “The biggest difference here is the scope. The EU Charter will only apply to areas within the scope of EU law, whereas in Scotland the ECHR, by being embedded via the Human Rights Act and the Scotland Act, will apply more widely.”35 Professor Sionaidh Douglas-Scott, Anniversary Chair in Law at Queen Mary University of London, told us: “when it comes to the European Convention [ECHR] there are no restrictions.”36 Rt Hon Dominic Grieve QC MP, the former Attorney General, also agreed: “the Charter of Fundamental Rights is confined to matters within EU competence and therefore covers a much narrower range of issues than are subject of the European Convention on Human Rights.”37
53.Lord Woolf emphasised that the EU Charter, as a consequence of its limited scope, should not be seen as providing equivalent protection to the ECHR:
“However, what is provided by the charter is extremely limited … it operates only within the Union context—whereas the great thing about the European convention is that it operates so as to give benefit to the citizens of this country and of other countries. The fact that we would still have what is left after the repeal should not be a comfort to us, because that certainly would not be sufficient.”38
Conclusions
54.The main strength of domestic human rights protection under the European Convention on Human Rights is its scope. By virtue of section 6 of the Human Rights Act, every decision of every public body, including courts, must be compatible with the Convention. That is not the case with the EU Charter. The EU Charter applies only to public bodies making decisions within the scope of EU law.
The narrower application of the EU Charter
The EU Charter and direct effect
55.As we have already explained,39 some of the provisions of the EU Charter do not have direct effect under EU law, so they cannot be directly relied upon by individuals in national courts. Lord Goldsmith explained that the distinction between ‘principles’ and ‘rights’, though “not necessarily very clearly signposted”, was nonetheless important:
“At its most basic, the point about the principles was that they were intended to be aspirational, but it was then left to Member States or the EU to implement them and start to put detailed provisions in place in relation to the aspirational aims. Those were mostly social and economic.”40
56.Several of our academic witnesses emphasised the importance of recognising this distinction, among them Professor Michael Dougan, Professor of European Law and Jean Monnet Chair in EU Law at the University of Liverpool:
“The Charter of Fundamental Rights is often portrayed as being broader in scope than the ECHR, as containing better, more modern rights, but we should not forget that it still needs to satisfy the conditions to have direct effect before any one of its individual provisions is capable of producing autonomous legal effect within a national legal system such as the UK’s.”41
Acting within the scope of EU law
57.Article 51 of the EU Charter is the gateway to its application. It states that the EU Charter’s provisions “are addressed to the institutions, bodies, offices and agencies of the Union … and to the Member States only when they are implementing Union law”. In this report we are concerned with the second limb of its application—in the EU’s Member States. The importance of clarifying its meaning was well expressed by Professor Anthony:
“The real issue with EU law is what is meant by implementation of EU law. If the Human Rights Act were to be repealed, I suspect there would be quite a bun fight about what the implementation of EU law means and people would be looking for as expansive an approach as possible. At the moment, I think it is relatively fluid.”42
58.Opinions differed on whether the meaning of “implementing Union law” could be clearly discerned from the CJEU’s case law. Some witnesses thought that the approach of the CJEU had been consistent with past practice, and concluded that there was some predictability in determining when the EU Charter would apply; others that Article 51 had been, and would continue to be, a means for the CJEU to expand its jurisdiction over national law.
A predictable approach to defining the scope of the EU Charter
59.Professor Dougan, in the former category, has recently completed a major research project on the scope of the EU Charter, the results of which have been published in the Common Market Law Review.43 He explained that “there was historical continuity in the case law, going back for 30 or 40 years”.44 The CJEU, particularly in the seminal case of Fransson,45 had confirmed that the expression “implementing Union law” was equivalent to “acting within the scope of EU law”. The latter was the test the CJEU had previously adopted for determining whether EU fundamental rights applied to Member State action before the existence of the EU Charter. As a consequence, this case law made clear that there were two situations in which a Member State could be said to be acting “within the scope of EU law”, and so would have to respect EU fundamental rights “in addition to, or even instead of, its own fundamental rights regime”.46 The first situation was when a Member State was implementing EU law in the sense of applying it within its domestic legal system. The second was when a Member State was seeking to derogate from EU law—that is to say, when it does not want to respect that EU obligation fully.47
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In the case of Fransson the CJEU held that Swedish civil penalties and criminal proceedings for tax evasion constituted the implementation of EU law even though the relevant domestic legislation had not been adopted in order to transpose EU legislation. VAT is an EU tax, and an EU VAT Directive requires every Member State to take measures to guarantee collection of VAT, including preventing evasion. The EU Treaties also oblige Member States to counter fraud affecting the financial interests of the EU. The CJEU found that the EU Charter applied to the civil penalties and criminal proceedings in question as they were intended to implement an obligation on Member States to impose effective penalties for conduct prejudicial to the financial interests of the EU. |
Source: HM Government, Review of the Balance of Competences between the United Kingdom and the European Union: Fundamental Rights, Summer 2014, p 28: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/334999/review-of-boc-between-uk-eu-fundamental-rights.pdf [accessed 20 March 2016]
60.Professor Dougan gave the following examples of when the two types of situation would arise in practice.48 Implementation of EU law typically covers a situation where EU legislation is implemented and applied, or in some cases simply applied, nationally. When exercising powers provided for under that legislation, a Member State will have to observe the human rights standards of the EU Charter. For example, making payments under the Common Agricultural Policy or executing a European Arrest Warrant would count as an implementation of EU law, and therefore come within the scope of the EU Charter. Professor Dougan said that “the implementation situations tend to be quite intuitive. They tend to be quite common-sense, on the whole.”49
61.Cases of derogation from EU law were also relatively predictable. Professor Dougan told us that most of them involved restrictions on the right of free movement:
“It might be a restriction on the free movement of goods. A Member State might say, ‘We are restricting the availability of a certain category of goods on our market’, and the EU might reply, ‘That is fine but make sure that you respect freedom of expression; for example, commercial expression, if you are restricting advertising or you are not allowing certain types of publications’. Similarly, if a Member State says, ‘We want to expel a Union citizen from our territory because they have committed certain particularly serious crimes’, the EU would say, ‘That falls within the scope of Union law. It is derogating from a fundamental freedom under the Treaties. You have to respect the right to private life and the right to family life in that situation.’”50
62.In all, Professor Dougan concluded that the CJEU’s case law on the scope of EU law was “both clear and predictable”.51 Its decisions “tend to be very case-by-case, quite pragmatic, quite forensic. Nevertheless, they make a lot of sense. The case law is surprisingly consistent.”52
63.He did say, however, that there were “a couple of more generic lessons” which “came out of the massive case-law analysis” he had conducted.53 First, the scope of EU law was “incredibly difficult to describe in the abstract”.54 It depended “on an interpretation of particular EU measures and particular national measures in the context of a particular dispute”.55 It was thus a very complex interaction between two different legal systems. Secondly, the scope of EU law was dynamic: “Every time that EU law changes and every time that national law changes, those complex dynamics reconfigure themselves, and you might find that some things have fallen outside the scope of the EU law that used to be within and other things have been brought within the scope of EU law that were not there before.”56 As a result, the CJEU had, with a few exceptions, avoided trying to articulate a generalised or abstract test for when a national measure fell within the scope of EU law.
64.There were “a tiny number of cases”, such as Siragusa57 and Hernandéz,58 in which the CJEU had set out “some more abstract criteria” to describe its approach to defining the scope of EU law. These criteria were “incredibly ambiguous” and had led to some confusion and a concern that the scope of EU law might be expanded. In Professor Dougan’s view, there was no evidence that these two cases, which were decided by chambers59 of the CJEU rather than the Grand Chamber,60 had “in any way expanded the field of national measures that fall within the scope of EU law”, nor led to a change in practice of the CJEU.61 He found “no evidence of a predatory or expansionist court at work”,62 and was surprised that Fransson had been criticised, including by the German Federal Constitutional Court,63 for expanding the scope of EU law.64
65.The views of several other witnesses supported Professor Dougan’s analysis. Dr Tobias Lock, Lecturer in EU Law at the University of Edinburgh, agreed that the CJEU approached the definition of the scope of EU law “on a case-by-case basis,”65 and that most of the decisions were clear:
“We could say that there are situations in which a Member State authority implements European Union law in the narrow sense—i.e., they apply an EU Regulation or they act on the basis of an Act of Parliament or statutory instrument that implements a Directive. There are clear cases where you have an implementation of EU law and where the national authority would have to comply with the Charter.
“There is another set of cases where a Member State derogates from an obligation under European Union law—for instance, on the free movement of goods or persons”.66
66.Lord Goldsmith also agreed. While he accepted that there may “well be a difficulty inherent” in defining the scope of EU law, the expression was “intended to reflect … the concept of implementation of EU law.” The CJEU’s judgment in Fransson67 supported this view. He agreed that implementing EU law also included derogating from it.68
67.Sir David Edward QC PC, a former judge of the CJEU, was clear that there was “no conspiracy … to enlarge jurisdiction … In my experience, when I was there, the idea that there would be 13 or 15 men and women sitting round to accumulate jurisdiction is preposterous.”69 He added there was no individual right of access to the CJEU, which made it very different from the ECtHR: “You can sit in Luxembourg longing to pronounce some extension of court jurisdiction, but if the case never comes, the case never comes.”70
68.Having reviewed the evidence we had received, the Secretary of State also concluded the CJEU’s approach was reasonably predictable:
“The point about the Charter of Fundamental Rights is that it is engaged when European Union law is engaged, and the evidence that has been presented to this Committee has outlined that European Union law as applied by the European Court of Justice is applied according to pragmatic but nevertheless clear principles”.71
The EU Charter as a means of expanding the scope of EU law
69.Mr Grieve, on the other hand, was deeply concerned that EU competence would be expanded as a result of the EU Charter: “The big question … is to what extent EU competence is being expanded to the point where one might almost say that it is capable of applying large parts of the ECHR. That is ultimately an issue that depends on the extent to which the European Court of Justice decides to extend its competence in particular areas.”72 While he accepted that there were limits to the scope of EU competence, he thought they could not be clearly defined. These concerns led him to conclude that the proposed Bill of Rights, in omitting to address the CJEU, was avoiding the more difficult target:
“The first answer to your question whether the ECHR is low-hanging fruit is yes, it is a displacement activity. I spent my time in the past saying to colleagues, ‘Beware of leaving nurse’s hand for fear of something worse’. On this issue between the European Court of Justice and the European Court of Human Rights, it is quite clear to me that the European Court of Human Rights is a very benign institution, whereas I happen to think that the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices … But the decision to concentrate on Strasbourg is because Strasbourg is the easier target, and it is; it is red meat while you cannot do something about the other place. For 70% to 80% of the population of this country, there is no understanding whatever of the distinction between the Convention and the EU.”73
70.Martin Howe QC agreed:
“So from my perspective it is a very bleak picture. There is the very important point … about how far the scope of European Union law extends. The leading case on that is, of course, the Åkerberg Fransson case … That was criticised by members of the German constitutional court, because it said that where European Union law provides for the collection of a tax—in that case, VAT—the procedural methods that the Member State uses in its court system for the collection of the tax are subject to the Charter, which is a dramatic expansion of its width. I am afraid that my analysis of it is that the Luxembourg court is a power-hungry institution. It will not step back from its continuous process of expansion of the scope of European Union law.”74
Conclusions
71.The application of the EU Charter is narrower than that of the European Convention on Human Rights for two main reasons: not all of its provisions have direct effect, and so they cannot be relied on directly by individuals in national courts; and it applies to Member States “only when they are implementing Union law”.
72.Understanding the meaning of “only when they are implementing EU law” is central to assessing the scope of the EU Charter’s application in EU Member States.
73.We found Professor Dougan’s evidence particularly helpful, and draw the following conclusions from it. The expression “implementing Union law” can be equated to “acting within the scope of EU law”, the test used by the Court of Justice before the advent of the EU Charter. A Member State can be said to be acting within the scope of EU law when it either implements EU law through national legislation, or it acts on the basis of EU law, whether implemented or not, or it derogates from EU law. While the test for acting within the scope of EU law is case-specific, and often legally complex, Professor Dougan concluded that the Court of Justice’s approach had been relatively predictable, and surprisingly consistent.
74.We heard a range of views on this issue, but the weight of evidence we received does not support a conclusion that the Court of Justice has sought to expand the reach of EU law over Member States through its judgments on the scope of the EU Charter.
75.That said, the inherent difficulty in defining the scope of EU law has given rise to considerable litigation. We think it is likely to continue to do so in the future.
Increased references to the CJEU
76.We asked our witnesses to say whether, were a Bill of Rights to restrict victims’ rights to bring legal challenges under the HRA, the EU Charter would be relied upon more in UK courts, leading to more references to the CJEU.75 All our witnesses thought it would.
77.Mr O’Neill said: “I would think that clever and imaginative lawyers might try to push matters … and the Court of Justice might get more references from national courts”.76 Professor Dougan argued that it was almost certain that there would be an increase in litigation, because “lawyers would advise their clients to try to fit into the EU regime rather than the common-law regime”. More human rights cases in the UK courts invoking EU law would mean more references to the CJEU.77 Professor Christopher McCrudden, Professor of Human Rights and Equality Law, Queen’s University Belfast, made a similar prediction: “there would be an increase in references to the European Court of Justice”.78
78.Lord Goldsmith agreed: “if people feel the remedy they have under what is then the so-called British Bill of Rights is less than they were used to, they will look at other routes, and the Charter must be something they look to in order to get to the European Court of Justice”.79 Mr Biagi expressed similar views: “If there is no scope for [legal] actions under the European Convention”, then individuals “seeking a remedy … will have an incentive and a desire to look more closely at EU law than they do at the moment and to try and test the bounds of EU law”.80
79.Professor Dougan believed, though, that it was unlikely that the CJEU would change its interpretation of the scope of EU law: “Just because one Member State, such as the UK, might encounter difficulties with its own domestic fundamental rights regime for situations outside the scope of EU law, I cannot imagine any situation in which the European Court of Justice would reply by changing the rules for all 28 Member States”.81 Professor Steve Peers, Professor of European Union Law and Human Rights Law at the University of Essex, also expected an increase in references to the CJEU invoking the Charter, but agreed with Professor Dougan that the Charter would not be interpreted differently.82
Conclusions
80.The weight of evidence demonstrates that, were a Bill of Rights to restrict victims’ rights to bring legal challenges under the Human Rights Act, more challenges under the EU Charter in domestic courts would be likely. This, in turn, is likely to give rise to more references from UK courts to the Court of Justice seeking guidance on the scope of EU law and the provisions of the EU Charter.
81.The Government should give careful consideration to this likely consequence in deciding whether to introduce a British Bill of Rights.
Would protection provided by the common law be adequate if the HRA were repealed?
82.We asked our witnesses to say whether, in the event the HRA were repealed and a Bill of Rights did not incorporate ECHR rights, the EU Charter and the common law could provide a sufficient level of human rights protection in the UK. All our witnesses concluded that they could not, for two reasons. First, the EU Charter only applied when the Government was acting within the scope of EU law, while the ECHR applied to all Government action. Secondly, they pointed to the common law’s comparative weakness when set against an Act of Parliament or statutory instrument. As Mr Howe explained: “the common law provides some rights, but its weakness is that it cannot withstand any statute; even the most minor statutory instrument can override the common law”.83 This weakness in the common law, Professor Douglas-Scott explained, was “one of the reasons why it was felt important for Britain to incorporate the European Convention in the Human Rights Act … There were many cases in which those rights could not be adequately protected at common law, and challenges were brought to Strasbourg.”
Conclusion
83.The common law would be unlikely to fill the gaps in human rights protection were the Human Rights Act to be replaced by legislation providing a lower level of protection.
39 See para 26 of this report.
43 Michael Dougan, ‘Judicial Review of Member State Action under the General Principles and the Charter: Defining the ‘Scope of Union Law’, Common Market Law Review, vol, 52(5) (2015) 1201: available at https://www.kluwerlawonline.com/document.php?id=COLA2015102&PHPSESSID=n7qi3nmg2bklomk51q80r3n0u3 [accessed 27 April 2016]
45 C-617/10, Aklagaren v Fransson, 26 February 2013
57 Case C-206/13, Syragusa v Regione Sicilia, 6 March 2014
58 Case C-198/13, Hernandéz v Reine de España, 10 July 2014
59 Judicial panels of three or five judges.
60 Judicial panels of at least 15 judges presided over by the President of the Court of Justice of the EU.
63 The German Constitutional Court stated that just because domestic legislation has some connection with the abstract scope of EU law, or incidentally interacts with EU law, is not sufficient to trigger the application of the Charter (BVerfG Antiterrordatei 1 BvR 1215/07, 24 April 2013).
67 See Box 1.
75 Under Article 267 TFEU the CJEU can give preliminary rulings on the correct interpretation of EU law by means of preliminary rulings in cases referred to it by Member State courts.