Steve Peers

The UK House of Commons European Scrutiny Committee recently suggested that the UK should create a law to nullify the application of the EU Charter of Fundamental Rights within the UK. This proposal has three major flaws.

Firstly, it wouldn’t actually clarify the uncertainty surrounding the Charter’s application, as the committee suggests. Instead, it would create more complexity in how human rights are applied in the UK.

Secondly, this action could result in substantial penalties for the UK for violating EU law, particularly as it’s interpreted through the lens of the Charter.

Thirdly, the committee’s recommendation is fundamentally disingenuous. If the UK disagrees with the legal commitments it made by joining the EU, the ethical course of action would be to renegotiate its membership terms or withdraw entirely. Remaining a member while disregarding essential EU laws is unacceptable.

This piece will summarize the committee’s analysis and then elaborate on the three concerns mentioned above.

The committee’s analysis

The committee concludes that “Protocol 30,” a special provision concerning the application of the Charter to the UK and Poland (adopted alongside the Treaty of Lisbon), does not exempt them from the Charter. This view was shared by the Protocol’s primary author (Lord Goldsmith) and upheld by the Court of Justice of the European Union (CJEU) in the NS judgment, a case dealing with the deportation of asylum seekers to Greece. Professor Anthony Arnull, in his analysis of the Protocol within the Commentary on the EU Charter of Fundamental Rights, notes that this interpretation was also widely held among academics.

The committee further points out that a previous committee arrived at the same conclusion in 2007. However, they argue that contradictory government statements created confusion. Their sole evidence for this claim is a statement made by then-Prime Minister Tony Blair just after the Treaty of Lisbon was agreed upon, during the last days of his term. Subsequent governments have not maintained this stance. When David Cameron outlined the Conservative party’s updated EU policy in November 2009, after the Treaty of Lisbon was ratified, he affirmed that the UK did not have an opt-out from the Charter and that he would seek a Treaty amendment to change this. Whether or not one agrees with his aim to renegotiate the Treaty, his statement regarding the existing legal situation was unambiguous and accurate.

The committee cites instances of judicial inconsistency, particularly the contrasting opinions of higher and lower courts in the NS litigation. However, disagreements between courts regarding the correct interpretation of legal rules are not unusual.

The committee accurately explains the legal impact of the Charter as a tool for interpreting and validating EU law through the lens of human rights. They note that the Charter applies to national law only when there is a connection to EU law. Citing the CJEU’s Fransson judgment from the previous year, the committee emphasizes that the Charter’s scope extends beyond the implementation of EU law by member states to include any actions falling under the purview of EU law – a somewhat ambiguous concept.

According to the committee, the supremacy of EU law dictates that any national law conflicting with the Charter must be disregarded by all national courts. This implies that the Charter carries more legal weight than the UK’s Human Rights Act, albeit with a narrower scope. The committee then asserts that the Charter doesn’t introduce new rights. From an EU law perspective, this was confirmed by the CJEU in the NS judgment, which stated that the Charter didn’t contain any rights beyond those already recognized as “general principles of law” in EU law.

The committee concludes that the Charter does not establish new economic and social rights, and that Charter rules outlining “principles” rather than “rights” are not legally actionable. Without existing CJEU case law on these matters, it remains unclear if this interpretation is accurate. However, the Court’s January ruling in the AMS case has begun to clarify the law, at least indirectly, by indicating which Charter rights lack the necessary precision for direct enforcement. The CJEU recently heard another case concerning this issue, Fennoll, and a decision is expected soon.

On the other hand, the committee is undeniably correct in stating that the Charter doesn’t grant new powers to the EU. Article 51 of the Charter explicitly states this, and the CJEU has affirmed it multiple times. Despite this, the committee suggests that the Charter could influence how the CJEU interprets EU law.

The committee expresses concerns about the lack of legal clarity regarding certain aspects of the Charter. Specifically, they raise five points: the differentiation between rights and principles; the overlap with pre-existing general principles; the scope of the Charter’s application; its consistency with the ECHR; and its horizontal application.

This brings us to the committee’s recommendations. They argue that the UK government should articulate its legal stance on the correct interpretation of the Charter. While the UK government plans to intervene in cases related to the Charter (particularly to clarify its scope), the committee doubts the effectiveness of this approach. To curb the expanding jurisdiction of the CJEU, the committee recommends that the UK enact a new law to nullify the Charter’s application within the UK.

Problems with the recommendation

As initially stated, the recommendation suffers from three fundamental issues: it would generate more, not less, legal uncertainty; it could lead to hefty fines against the UK; and it is inherently unprincipled.

Legal certainty

Addressing legal uncertainty first, the committee highlighted five specific concerns, as previously listed. Out of these five, the committee has a valid point regarding four; however, their conclusions based on these points are unconvincing.

Let’s examine each of the four points. Firstly, the distinction between rights and principles is ambiguous, but as noted earlier, the CJEU is gradually providing clarity on this matter. Secondly, regarding the scope of the Charter’s application (the committee’s primary reason for recommending a law to block its application in the UK), the Fransson judgment initially seems to adopt a broad interpretation. Conversely, other judgments suggest a narrower scope. A more recent case, Siragusa, takes a significantly narrower approach. Moreover, the CJEU has, rather unjustifiably, declined to rule on whether various national austerity measures imposed in exchange for EU-organized bailouts violate the Charter. This contradicts the committee’s assertion that the Court’s jurisdiction regarding the Charter will expand “to an ever wider field with increasingly unintended consequences.”

Regarding the consistency between the Charter and the ECHR, the committee raises two points. Firstly, they argue that the Charter potentially sets higher standards than the ECHR in certain areas of overlap. However, as I argue in my analysis of Article 52 of the Charter in the Commentary, this interpretation is debatable. The CJEU has not yet provided explicit clarification but has implicitly avoided setting higher standards, even in cases where it was crucial (see, for example, the Melloni judgment).

Secondly, the committee acknowledges that the EU can establish stricter standards than the ECHR through its secondary legislation, which is undeniably true. However, their examples to support this point are glaringly inappropriate. They specifically object to recent proposals concerning legal aid and the presumption of innocence. Regardless of the merits of their objections, the UK has opted out of these proposals. More broadly, the committee opposes “unwarranted interference in matters of pre-eminent significance in terms of the constitutional settlement of the UK.” However, concerning criminal justice, this is mere rhetoric: the UK has the freedom to opt out of any proposal, so there is no “interference” whatsoever.

Furthermore, the committee’s objection is flawed because the EU’s authority to enact secondary legislation setting standards higher than ECHR rights doesn’t stem from the Charter. The Charter merely acknowledges the existence of this possibility. Therefore, nullifying the Charter within the UK would have no bearing on this matter.

Regarding the horizontal application of the Charter, this point intersects with the distinction between “rights” and “principles.” As previously mentioned, the AMS judgment offers clearer case law on this issue, and further clarification is anticipated soon.

This brings us to the committee’s weakest argument: the overlap between the Charter and pre-existing general principles. They fail to acknowledge that the CJEU, in both the NS and Fransson judgments, stated that the Charter doesn’t extend beyond the general principles and that both sources of law share the same scope. This suggests that the overlap has been, to some extent, clarified.

However, the flaws in the committee’s reasoning run deeper. They recommend nullifying the Charter in the UK but not the general principles, allowing them to remain applicable. However, not only do the general principles encompass all the rights outlined in the Charter (as confirmed in NS), but they also raise many of the same concerns regarding legal uncertainty: the scope of general principles has been contested; their relationship with the ECHR is unclear; and their horizontal effect was confirmed by the CJEU in the Kucukdeveci case.

In fact, the lack of formal legal text for general principles makes their interpretation potentially more uncertain than that of the Charter. Disapplying the Charter while retaining general principles in the UK could trigger additional litigation to determine if CJEU case law pertaining to the Charter also applies to general principles.

One might argue that the UK should nullify both the Charter and general principles under domestic law. However, as the committee itself notes, a key aspect of the Charter (and previously, the general principles) is the requirement to interpret secondary EU legislation through their lens. It is difficult to envision how secondary legislation could be interpreted in light of the Charter and general principles in most member states while excluding these considerations in the UK. Situations might arise where the CJEU invalidates an EU measure due to Charter violations, raising questions about the measure’s validity within the UK. Ultimately, the committee’s suggestions appear to be a recipe for maximizing legal uncertainty.

Financial liability

If the UK (like any other member state) fails to implement binding EU law, the Commission can request the CJEU to impose fines on the UK. Due to the UK’s generally strong adherence to EU law, the Commission has never pursued this course of action.

However, if the UK chooses to disapply the Charter under national law, such proceedings could arise. This is because the obligation to interpret secondary EU law in light of the Charter might result in the UK incorrectly applying EU law, potentially leading to significant financial consequences due to the committee’s proposal.

Lack of principle

The most vocal critics of the EU in the UK either advocate for the UK to leave the EU entirely or to renegotiate its membership terms. Both stances, whether one agrees with them or not, are fundamentally honest. In particular, David Cameron’s pledge (which ultimately failed when the Conservative party did not secure a parliamentary majority in 2010) to renegotiate the Treaties to completely exempt the UK from the Charter was an honest approach. While this would have created considerable legal uncertainty for the reasons outlined above, that is a separate issue.

Conversely, the notion of the UK remaining an EU member state while selectively disregarding accepted legal obligations is unacceptable. While legally permissible under domestic law (as the authority of EU law in the UK stems from Acts of Parliament), the Charter remains a part of the UK’s obligations as an EU member state. As long as the UK remains bound by the Charter, the principle of the rule of law necessitates that national law upholds its effect. Moreover, disapplying the Charter in national law would hardly benefit UK citizens and businesses seeking to exercise their rights under EU law in other member states.

Conclusions

The proposal to disapply the Charter within the UK through an Act of Parliament should be categorically rejected due to concerns regarding legal certainty, potential financial liabilities, and a lack of principle.

Lastly, it is crucial to remember the intrinsic value of human rights and the significance of the Charter in upholding them within the scope of EU law. While the EU has not – contrary to the claims of its most fervent detractors – committed atrocities comparable to or worse than those of Nazi Germany, it would be inaccurate to claim that no serious human rights violations occur under its jurisdiction.

Consider the NS case, where the European Court of Human Rights (in the MSS v Belgium and Greece judgment) found that asylum seekers deported to Greece routinely face appalling conditions, both in detention and outside. These conditions include being denied water and resorting to drinking from toilets. The Charter plays a vital role in addressing such abuses, making the committee’s suggestion to disable it within the UK unacceptable on that basis alone.

 Barnard & Peers: chapter 9