The European Scrutiny Committee urges the Government to amend the European Communities Act 1972 to exclude the applicability of the Charter in the UK

The European Scrutiny Committee published today its report “The application of the EU Charter of Fundamental Rights in the UK: a state of confusion”. The Report main aim is to clarify the role of the Charter in the UK.

Bill Cash, Chairman of the Committee, said, “The Committee’s inquiry has revealed that the Charter does apply in the UK and will affect how existing fundamental rights are applied here. The inference from the Secretary of State for Justice’s evidence is that he, like me, is not content with this, but it is not clear what the Government is going to do about it. In my view it is essential that Ministers act to make clear beyond any doubt that the Charter will not in future apply in the UK, in particular through an amendment to the European Communities Act 1972.”

The European Scrutiny Committee reached the following conclusions:

Conclusions

What the Charter does and does not do

It applies in the UK—there is no opt-out

141. Protocol 30 was designed for comfort rather than protection: it is in no sense an opt-out Protocol. This was the view of all of our witnesses based on their interpretation of the Protocol, and in the case of Lord Goldsmith, who had a hand in its drafting, based on the negotiating history as well. As a consequence we think the ECJ’s analysis of Protocol 30 in the NS judgment was correct.

142. We note that this was also the view of our predecessors, who reported in 2007 that:

Since the Protocol is to operate subject to the UK's obligations under the Treaties, it still seems doubtful to us that the Protocol has the effect that the courts of this country will not be bound by interpretations of measures of Union law given by the ECJ and based on the Charter. If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK's other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation.

143. Contradictory statements from the Government of the time about whether Protocol 30 was an opt-out have added to the seemingly widespread confusion about its purpose—among lawyers and non-lawyers alike. In addition, the current Government has done little to explain the effect of the Charter, despite the significant national impact it has.

Protocol 30 is an interpretative Protocol

144. Articles 1 and 2 of the Protocol place emphasis on provisions which already exist within the Charter, but they do not distinguish them. Article 1(2), for example, states that its existence is “for the avoidance of doubt”. We therefore conclude that Protocol 30 interprets the Charter as much for the benefit of other Member States as it does for the UK and Poland. We note this was the view of the Secretary of State for Justice and his legal adviser, as well as several of our expert witnesses.

If it is right that Article 1(2) and 2 of Protocol 30 may provide extra protection in the event that Charter provisions and Explanations are ignored, a point strongly made by Lord Goldsmith, David Anderson and Professor Craig, in our opinion Member States other than the UK and Poland could avail themselves of that protection too.

145. It follows that we disagree with Mostyn J’s description of the effect of Protocol 30 in his judgement in AB on 7 November last year, and we note that our witnesses shared our view.

It is directly effective in the UK, with supremacy over inconsistent national law

146. With a legal status equal to the EU Treaties, the Charter is directly effective in the UK by virtue of Section 2(1) of the European Communities Act 1972. The rights it contains have supremacy over inconsistent national law or decisions of public authorities, by virtue of sections 2(4) and 3(1) of the same Act.

It can therefore be used both to interpret and enforce EU law

147. The Charter can be used to interpret EU law and the national measures implementing EU law by the Court of Justice of the EU (ECJ) and by national courts, in cases where the meaning of a provision is unclear.

It can also be used to enforce EU law:

• by the ECJ in invalidating EU legislation, or decisions of EU institutions and bodies acting in accordance with EU legislation, which breach rights within the Charter; and

• by national courts, under the supervisory jurisdiction of the ECJ, in invalidating national legislation and decisions of national public authorities, including courts, which are within the scope of EU law.

In this respect our expert witnesses agreed that if a legal challenge were possible under both the Human Rights Act and the Charter, the benefit of a challenge under the Charter would be that it would oblige the court to disapply an Act of Parliament that was inconsistent with a Charter right, in accordance with the principle of the primacy of EU law. Under the Human Rights Act (HRA) a court can only make a “declaration of incompatibility” if an Act of Parliament is inconsistent with a European Convention on Human Rights (ECHR) right. This does not affect the validity of the Act in question until and unless Parliament amends it.

But the Charter does not apply to all areas of national law or action, only those that fall within the scope of EU law

148. The Charter does not apply to all areas of national law where human rights are engaged, as, by contrast, the ECHR does through the HRA: the Charter only applies domestically where State action and/or national law falls “within the scope of EU law”. Before a Charter right can be invoked in national proceedings, therefore, a question of jurisdiction has to be determined, namely whether the act complained of is within the scope of EU law.

It should be noted, however, that the ECJ in the case of Fransson set a low threshold for this test to be met; and that, where it is met, the Charter is without exception applicable and in cases of uncertainty is to be ultimately interpreted by the ECJ (see further below).

149. Our analysis above should be compared to the Secretary of State for Justice’s evidence on the domestic effect of the Charter. He draws what we consider is a false distinction between EU law and law in the UK:

“Where the Charter does have a role—not in UK law, but in law in the UK, and there is an important difference—is where EU law is applied in the British courts.”

This, we think, is a case of wishful thinking, which entirely misunderstands the impact of Fransson: the Swedish Public Prosecutor no doubt thought his decision to prosecute Mr Fransson for VAT fraud was based on Swedish policy and legislation, but it was held to be within the scope of EU law because it was ultimately derived from the VAT Directive, and VAT collected in Member States contributes to the EU budget. There should be no doubt in the Minister’s mind that the Charter applies to all UK law, or indeed law in the UK, which is within the scope of EU law.

It seems to us that this and the past Government indulge in wishful thinking about the true impact of the Charter in the UK. The consequence is, as we note in the first chapter of this Report, that the public can be misled.

It does not include new rights

150. None of the Articles of the Charter creates new rights or principles, with the possible exception of Article 13 on the freedom of the arts and sciences. The evidence we received on the negotiating history of the Charter, together with an analysis of the Explanations, amply demonstrate the desire particularly on the part of the UK to tie back each right or principle of the Charter to its source.

It does not include new economic and social rights

151. According to the evidence we received and the Explanations of the Charter, principles are not free-standing in the Charter, and so cannot be relied upon alone to invalidate EU or Member State acts or omissions. They require more specific expression in EU or national law before they can become justiciable. According to the Explanation of Article 52(5) they “become significant” for courts only when legislation implementing them is being reviewed.

152. Title IV of the Charter contains the economic and social rights that the UK was most concerned at the time of the Charter negotiations should not become justiciable in national courts. To the extent that Title IV contains rights as well as principles—our witnesses all agreed that a lack of clarity in the Charter and the Explanations makes this distinction difficult to draw, if not impossible—Article 1(2) of Protocol 30 clarifies that rights too in Title IV are not justiciable (see paragraph 156) unless given effect in national legislation.

We therefore conclude that the rights and principles in Title IV of the Charter are not justiciable unless and until they have been given effect in national legislation.

It does not give the EU new competences

153. None of the Articles of the Charter provides the EU with new competence to act where hitherto it could not act.

Nonetheless, it will affect how pre-existing EU fundamental rights and principles are applied

154. The conclusions in the preceding paragraphs are subject to an important caveat, however. Whilst it may be technically correct to say that the Charter is “declaratory” of, or “reaffirms”, pre-existing rights with the intention of making them more visible, the act of cementing disparate and sometimes obscure rights from different legal sources, with different legal statuses, many of which had not been considered by the ECJ, into a legally binding EU Charter is, we think, very significant indeed. Professor Craig described it as giving these pre-existing rights “a degree or peremptory force that they would not otherwise have had”.

It is possible that it will broaden the ambit of EU law (as interpreted by the ECJ in cases where national courts are uncertain, of which we think there will be many) to reflect several, if not many, of the rights or principles in the Charter. As a consequence it could also affect the way in which existing EU competences are exercised. Whilst Lord Goldsmith was not convinced this would be the case, and several witnesses referred to the number of cases where the ECJ has rejected Charter-based actions, other witnesses were convinced, including the Secretary of State for Justice.

Again, we note the prescience of our predecessors on this point:

Given the open texture of the drafting of the Charter (which is by no means unusual with human rights instruments) we doubt if it is possible to guarantee that it will not be developed and amplified by the ECJ. We equally doubt if it is possible to guarantee that the ECJ will not draw on the Charter as a new source for interpreting measures of Union law such as Directives.

Impact of the Charter on human rights litigation in the UK

155. Many of the witnesses agreed that the Charter would lead to growth in claims against the EU institutions and EU Member States based on Charter rights, particularly in the Justice and Home Affairs competences of the EU.

Professor Craig put the point clearly: There is an analogy here between the position in the UK pre the HRA and the position in the EU prior to the [Charter]. The courts had already developed the idea that fundamental rights were recognised and embedded in the common law, so they existed prior to the HRA. Nonetheless, when the HRA was enacted and the rights were then laid down definitively in an act of parliament, there was a transformation of judicial review in the United Kingdom. You have rights-based arguments pleaded in a great many cases in a way that you did not in the 1990s and 1980s.

My strong suspicion in the EU is that we are going to see the same thing. In the EU we had fundamental rights developed as general principles of law for many years, and they were used and pleaded. Nonetheless, in the post-Charter world, we are going to see very many more rights-based claims, both against EU institutions and Member States when they act in the scope of EU law. In particular, because of the point that was mentioned by David Anderson, which is that in the post-Lisbon world, the area of freedom, security and justice has been rolled into the main treaty, many of the regulations and Directives passed in relation to immigration, asylum and that kind of thing—criminal procedure—are contentious. They naturally give rise to rights-based claims.

The combination of concretising rights in the Charter on the one hand and then including new areas within the court’s full jurisdiction is likely to lead to a very significant growth in rights-based claims.

Areas of legal uncertainty

156. As a general conclusion under this heading, we think that, whilst the Charter may have made EU fundamental rights more visible, it has complicated their application. The Charter and Explanations are difficult documents to navigate, even for experts. We understand that the art of international negotiations is in part to disguise where disagreements lie, but several of the mechanisms employed to achieve this—for example the distinction between rights and principles—are convoluted and will be inscrutable to members of the public who are not experts. We were struck by Lord Goldsmith’s concerns about the lack of precision of the language of the Charter adopted in 2000, were it to have become a legally binding document.

We are not confident that the change in status of the Explanations, the amendments to the horizontal Articles and to Article 6 TEU, and the addition of Protocol 30, overcome this concern. If they do so, it is certainly at the expense of clarity.

Rights and principles

157. All witnesses agreed that the distinction between rights and principles was unclear. This was evident from the questions we put to them on Article 29 of the Charter, the right to access to a free placement service, and Article 33(1) of the Charter, family and professional life. Professor Craig commented on the latter that “it would probably be regarded as a principle. But until it is adjudicated upon by the European Court of Justice, we will not know”.

David Anderson thought the distinction was entirely confusing: I also agree that the distinction, as it appears from the Charter and the Explanations, is entirely confusing, not least because the first of the three examples given in the explanations of a principle is the so-called rights of the elderly. This is not a very promising starting point.

158. We agree with his conclusion.

Pre-existing rights

159. One of the complexities of this aspect of EU law is that Article 6(3) TEU states that the pre-existing general principles of EU law still apply, notwithstanding the advent of the Charter. So although the Charter was said to be necessary to make these preexisting rights more visible, it does not replace them. The consequences of this require some intellectual conjuring. For example, notwithstanding Article 1(2) of Protocol 30 and the attention paid to its effect on economic and social rights, EU law on the justiciability of economic and social rights is just as it was had the Charter and Protocol 30 never been included in the EU Treaties.

David Anderson shared our concern on this: I think you have hit on a very important point there. When in my written submission I pointed to various things that needed to be kept an eye on by those who are concerned about competence creep, I think perhaps I should have added exactly that point. In an ideal world, one might have expected that, having gone to all the trouble of collecting these rights in a Charter, one would then render the Charter the only game in town, at least so far as EU law is concerned. But by Article 6(3) of the Treaty on European Union, it does sound as though the previous jurisprudence of the court is retained at least to some extent, certainly as it relates to the ECHR and as it relates to the constitutional principles of the member states.

Yes, one could conceive of a case—whether this is one of them—in which, frustrated by limitations on the Charter, the Court of Justice were nonetheless to derive a particular right or a particular application of a right from its continuing jurisdiction to apply the general principle of fundamental rights.

Field of application

160. We agree with David Anderson that the significance of Fransson is not so much in the ECJ’s conclusion that the test to be applied under Article 51(1) of the Charter is whether Member State action is “within the scope of” EU law: as much is made plain by the Explanations and by the ECJ’s case law, and by the Supreme Court in the Viagogo case, despite the use of “implement” in Article 51(1). It is much more in its conclusions on when Member State action comes within the scope of EU law.

The ECJ specifically excludes the need for EU law to play a determinative role in the exercise of public authority in the Member State in question: all that is required is that “the situation is governed by EU law”.This, in effect, means that if the power being exercised by the Member States is ultimately derived from EU law, it falls within the scope of EU law. The test is an objective one: there is no requirement for the national legislation in question to be intended to implement an EU obligation.

161. This being so, the results of the Government’s Balance of Competences review become increasingly significant: in any national area of policy which is derived from EU law, compliance with fundamental rights will fall under the purview of the Charter as ultimately interpreted by the ECJ.

162. It may also have consequences for principles and certain rights in the Charter which are only justiciable when given effect in national law. Following Fransson, the test for whether EU law is implemented is not whether national legislation intends to implement an EU obligation, but whether it is ultimately governed by EU law. The meaning of “recognised” in Article 2 of Protocol 30 may become important in this regard.

Consistency with the European Convention on Human Rights

163. The Charter includes many of the civil and political rights contained in the European Convention of Human Rights. We were told that in the negotiation of the Charter there was particular concern that ECHR rights in the Charter were interpreted as being identical to how the same rights in the ECHR had been interpreted by the ECtHR. It is not clear that Article 52(3) achieves this, given that its stipulation that the meaning of Charter rights corresponding to ECHR rights be the same as those ECHR rights is qualified by its provision that EU law can provide more extensive entitlements (see the following paragraph). The Explanations of Article 52(3) are also unclear, saying, for instance, that the meaning of rights under the ECHR is determined in part by the ECJ. In addition the imperative of consistency is far from helped by the fact that some ECHR Articles in the Charter have been “updated”, and so are drafted differently. Were the Charter still to be a political declaration, this may not matter; where it is a legally binding document, it risks causing possible confusion.

164. Article 52(3) also permits EU legislation to go further than ECHR rights. Recent Commission proposals in the field of legal aid and the presumption of innocence have done so. As a consequence of the latter proposal, juries in the UK may no longer be able to draw an inference from a suspect’s non-cooperation or silence during criminal proceedings, although both have been held by the ECtHR to be consistent with the right to a fair trial under Article 6 of the ECHR. The result might be that there would be two standards for the presumption of innocence in Europe: one under EU and one under ECHR law. Whilst some think it desirable that the EU strengthens ECHR rights where it has the competence to do so (and its competence to do so under Title V TFEU is broad) we think it adds possible confusion and amounts to an unwarranted intervention in matters of pre-eminent significance in terms of the constitutional settlement of the UK, and where the existing balance between ECHR and national prerogatives has been hard fought.

Horizontal rights

165. We recognise that indirect horizontal application of the Charter within the UK is possible given that we agree with several of our experts that UK courts are under a legal obligation to respect the Charter, but we are concerned, again, by the legal uncertainty that surrounds this principle. Private individuals and bodies (including employers and their employees) may as a consequence find it difficult to predict whether they may assert a legal right or be vulnerable to legal liability because of the Charter’s application. This seems paradoxical given that one of the objectives of codifying pre-existing EU fundamental rights in the form of the Charter was to increase their visibility and applicability. The importance of the principle of legal certainty was emphasised by Lords Neuberger and Mance in the HS2 case, where they cited with approval the decision of the ECJ in the Intertanko case, in which it commented:

The general principle of legal certainty, which is a fundamental principle of Community law, requires, in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly.

166. We agree. We acknowledge that the uncertainty of horizontal application of human rights may be a common feature of human rights frameworks in general, such as the ECHR as enforced in the UK by the Human Rights Act. We think the problem for private individuals and companies is aggravated in Europe because of the additional uncertainty introduced by the Charter.

Division of competence between the ECJ and national courts

167. We question the legitimacy of the ECJ’s approach in Fransson, and so agree with the German Constitutional Court and Mr Howe and disagree with some of the expert evidence we took on this point, particularly from Professor Craig. We, like Advocate General Cruz Villalón, think there has to be a sufficient reason why the ECJ should take over the responsibility, which is more appropriately vested national courts, for interpreting fundamental rights as they apply to the exercise of national power. On the facts of Fransson the applicability of the ne bis in idem principle did not bear upon the implementation of an EU obligation; the ECJ was acting purely as a human rights court.

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. 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, 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. Please read the report here.

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