Confusion abounds about the EU Charter of Fundamental Rights following Mr Justice Mostyn’s recent judgment in R (AB) v Home Secretary (in which he appeared to say the Charter puts into UK law all sorts of new rights British governments had wanted to exclude) and Tuesday’s reaction by the Lord Chancellor Chris Grayling (who, it’s reported, is urgently trying to clarify whether the Charter “applies in the UK”).
So what’s the truth about this Charter? Who’s right? The short answer is that the judge got this mostly wrong, or at least seems to have gone wrong in the most important respects. What Chris Grayling actually said on Tuesday (which was not quite what came across in the media reports) was mostly right. The Charter does apply in the UK, but to a limited extent. Government lawyers will certainly confirm that view.
We face three serious obstacles in making sense of this. First, there’s the inherent difficulty of some of the legal concepts involved. Second, the politics of both the EU and of human rights are ideological fixations in the UK, which means we have to scrutinise carefully anything governments do, and anything an MP says, about the combination. Finally, the complexity of these legal and political issues means that even good, fair and basically accurate media reports about the Charter can give rise to misunderstanding.
Let’s start by being crystal clear what Mostyn J said, and then look at the Charter itself and what was said at the time. The we can turn to Chris Grayling.
Mostyn J was deciding the case (well explained at the UK Human Rights Blog by Rosalind English) of a failed asylum seeker who was challenging his removal to his home country, arguing among other things that British officials had breached his privacy and disclosed his personal data. These privacy breaches were, he argued, breaches of the Charter. Mostyn J said (para. 10 of the judgment) –
When I read this in the skeleton argument on his behalf I was surprised, to say the least, as I was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law.
He went on (paragraph 12):
it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts. The assertion in the sixth recital of the protocol that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights which are not expressly found in the European Convention on Human Rights signed in Rome in 1950.
In the next paragraph (13) he continued:
my view that the effect of the seventh protocol is to prevent any new justiciable rights from being created is not one shared by the Court of Justice of the European Union in Luxembourg
which was a reference to the judgment of the European Court of Justice in R (NS) v Home Secretary (a judgment in two joined cases he called, in I think an unhelpful mix-up, by the name of the Irish applicant, “ME”). His conclusion (paragraph 14) was that
The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.
In summary, then, Mostyn J was saying (1) the NS case shows the UK’s Protocol doesn’t do much, and we don’t have an opt-out; (2) the Charter includes rights not included in the European Convention on Human Rights; and therefore (3) the Charter gives people new rights which they can now raise in UK courts. He’s not wrong on points (1) and (2). There should be no real surprise about the first, because back in 2009 the Labour government never claimed they’d negotiated an “opt-out”. It’s at step (3) that he goes astray. The Charter does not have the legal effects the judge seems to think.
So let’s look at the Charter and, first, the EU law provisions which govern it.
Article 6.1 of the Treaty on European Union says that the Charter
shall have the same legal value as the Treaties.
which means that the Charter has legal effect (as the Treaty on European Union and the Treaty on the Functioning of the European Union themselves do) and is legally binding on the UK (as the Treaties are). There has been no possibly dispute about this since the Lisbon Treaty.
In passing it’s worth also noticing the final sentence of article 6.1, which says something technically important about how it must be interpreted:
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
Turning to the Charter itself, these key technical “provisions in Title VII” are found in article 51 and 51. Article 51.1 says
The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union … and to the Member States only when they are implementing Union law.
This is important because it limits the reach of the Charter in UK law. It does apply here, but only when a court is dealing with a matter involving EU law. That does cover quite a lot of things. As new EU laws are made, a gradually increasing number of things come within the scope of EU law, and it’s true that the European Court of Justice tends to take a wide view of its scope. But the Charter does not extend to the whole of our domestic law.
For example, take the issue of “gay marriage” for same-sex couples, which has been legislated for in England and Wales and is currently being legislated for in Scotland. The EU has no competence or power over marriage, so marriage law in the UK does not “implement EU law”. Not does any registrar when marrying anyone, or any court when considering an ordinary divorce petition.
EU rules do come into play in some situations. For instance the EU Citizens’ Free Movement Directive, 2004/38) almost certainly means that just as a Dutchman’s wife has a right to come to the UK with him, a Dutch woman’s wife may come here with her; and soon the spouses of lesbian and gay UK citizens will benefit from the same free movement rights. EU rules may be relevant in cross-border divorce cases. But most marriages and divorces in the UK do not involve EU law. They’re “wholly internal situations” not involving the implementation of EU law. The EU Charter does not touch them.
But what about situations which do involve EU law, and which the Charter does touch? Article 52.3 is important in those situations. It says:
In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.
This means the Charter can’t be used to expand rights Britain has signed up to in the European Convention on Human Rights. For example all our marriage laws must comply with the right to marry and found a family, which has been in the ECHR as article 12 since we signed it in the 1950s. The same right is now also set out in article 9 of the EU Charter. But article 52.3 “ties back” the Charter right to marry to its ECHR original. It has the same meaning and scope as the ECHR right. So even in a case involving EU law, in which the Charter technically applies, it offers litigants no more than the Human Rights Act does anyway.
True, the final sentence of article 52.3 says
This … shall not prevent Union law providing more extensive protection.
But that doesn’t just erase the words that went before it, with the result that the Charter can mean anything. This sentence simply means that the EU can if it wants legislate specifically to give people rights not required by the ECHR. The EU (and the EC before it, and even the EEC way back when) has always been able to do that.
Incidentally, the Charter isn’t just about rights drawn from the ECHR (which is why Mostyn J was right to say it goes much further). The additional stuff in it is mainly drawn from the law of the EU itself. Two examples are the article 15.2 right to work across borders –
Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.
and the article 23 right to equality between men and women:
Equality between women and men must be ensured in all areas, including employment, work and pay.
Of course these rights have applied in the UK since we joined the EU. And they too are “tied back” to existing EU law by article 52.2 of the Charter. The Charter offers nothing new.
It’s clear from all this that the Charter does technically apply in the UK to an extent: it must be complied with whenever EU law comes into play here. It’s also true that it contains lots of things not mentioned in the ECHR. But the Charter has no bite of its own that would actually make a difference in any case. If it’s breached, that’s only because human rights law was breached anyway, or because some specific EU rule was breached anyway. The Charter’s a bit like a rule saying you have to comply with gravity. You’re already subject to gravity.
And by the way, I haven’t even mention the “explanations” which are a further interpretative device to keep the Charter tame.
So what about the UK’s so-called “opt out”?
In spite of the practical non-effect of the Charter, the last government was so afraid of Eurosceptic opinion that it felt compelled to negotiate a special Protocol – Protocol 30 (which you can see by scrolling down this linked document a little) – to “clarify” the Charter’s effect in the UK. It makes some specific provision about social rights (which for relative simplicity’s sake I wont go into), but the key provision is article 1:
The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
Notice the word extend. The European Court of Justice has always been able to find that UK laws are inconsistent with fundamental EU rights, and it’s been clear since long before the Charter was dreamt up that the Court could also find UK laws inconsistent with human rights in a situation governed by EU law. Nothing in the Charter extends that power. There’s nothing new.
When the last government wrote to the European Scrutiny Committee explaining this, it made clear that the Protocol was no opt out. It said (see paragraph 57 of the Committee’s report)
The UK-specific Protocol which the Government secured is not an ‘opt-out’ from the Charter. Rather, the Protocol clarifies the effect the Charter will have in the UK. The UK Protocol confirms that nothing in the Charter extends the ability of any court to strike down UK law … The Protocol confirms that since the Charter creates no rights, or circumstances in which those rights can be relied on before the courts, it does not change the status quo.
Mr Justice Mostyn was wrong, then, to recall ministers proclaiming an “opt out”. They never did. The Protocol always was just a “clarification” obtained for defensive domestic political reasons. I wrote about the Committee’s report at the time:
Where the committee is also right is in its doubts about the significance of the UK’s new protocol on the Charter of Fundamental Rights (para. 60). Now, there is very little in life about which more rubbish has been said and wrote than this Charter. Even in the benighted world of Europhile-Eurosceptic debates, where honest men and women are scarcely seen, nothing rivals discussion of this for pure mystification, confusion and darkness. And the trouble is that both sides are so anxious to outmanoeuvre each other that they counter non-arguments with non-measures, like this protocol. The truth is that although the Treaty will make the Charter legally binding, what it will bind the UK to do is almost entirely stuff it’s bound to do already. In substance, the Charter adds almost nothing to EU law. But because the government’s scared of Eurosceptic scaremongering about it, it’s prepared to infuriate other governments – and the unions – by insisting on an almost meaningless protocol, which is emphatically not an opt-out, and adds very little if any further protection.
It’s like Andy Murray reaching for a second racket with no strings – “look how brilliant my return will be now!” – when his opponent is serving with a shuttlecock anyway.
The Protocol always was a fig-leaf (at least as concerns rights other than social and employment rights), so it’s no surprise that, in the NS case, the European Court of Justice found that the Protocol did not affect its judgment. The shield is indeed vanishingly thin. But it does not follow that the sword is new or sharp. It’s neither.
What about Chris Grayling, then? What he didn’t say in the House of Commons was that the Charter “does not apply in the UK”. Interestingly, the government tried that argument at one stage in a British court in the NS case, and apparently succeeded! But it rightly abandoned the point when the case was appealed (see paragraph 7 of the Court of Appeal’s judgment). The point is not arguable, and Chris Grayling is not asking government lawyers to confirm it.
The judge’s view was that the Luxembourg court had, in the case of NS, held that the charter could create new rights that apply in the UK. It is important to be very clear to the House: we do not agree with that analysis of the NS case. We intend to find another case—we cannot do it with this one as the Home Office was successful and we cannot appeal a case we have won—at the earliest opportunity to clarify beyond doubt the legal effects of the charter and to put the record straight.
It is no secret in this House that I would not personally have chosen to sign up to the Lisbon treaty or to the charter of fundamental rights. However, it is also important to say that the charter’s effects are limited to EU law within the UK, and I have not seen any evidence that it goes beyond that. I would be very concerned if there was any suggestion that the charter did in fact create new rights.
I think it is of fundamental importance that the impact of the charter in the United Kingdom is limited. We were made various promises about even that degree of involvement over the years, but we were not in power at that time. It is absolutely essential that it is limited in scope in the UK. I would treat it as a matter of the utmost seriousness if it were to emerge in law that that was no longer the case and that the charter was more broadly applicable than that.
So Grayling did not claim the Charter did not apply. What he said, rightly, was that the Charter’s effect is limited to EU law situations. It’s as sure as anything can be that government lawyers will confirm that.
Grayling was also right to correct Labour’s spokesman Sadiq Khan for making the same mistake as Mostyn J and claiming that Labour had negotiated an opt-out. It never did, and never claimed to. Jack Straw was another one who made the very same mistake in the Commons debate. Political memories should not be as short as judicial ones on a matter like this.
Where Grayling seems to misunderstand the position is in his suggestion that it’s the Protocol that limits the scope of the Charter. It’s not. Aside from the special rule applying to social rights (which I’ve not covered in this post) the Charter’s limited effect is entirely the result of Article 6 of the Treaty on European Union, which I discussed earlier, and the Charter itself.
He also unfairly accused Labour of having said the Charter had no legal effect at all. While it’s quite true Keith Vaz said, as the Telegraph quoted him in 2000, that the new Charter
would have no greater legal standing before EU judges than a copy of the Beano or the Sun
he was talking about the Charter as it existed before negotiations on the Lisbon Treaty or even the draft EU Constitution. It was those negotiations, which had not begun in 2001, which brought on to the table the question of making the Charter legally binding.
Unfortunately though, Keith Vaz seems to think the current Charter still has no legal effect. How it is that judges and MPs all seem confused by this, I have no idea. It is all quite complex, yes. But they of all people ought to be able to follow it.
Complacency about the EU Charter would not be right. The European Court of Justice does make some strange rulings, on occasions seeming to overlook or ignore the actual text of agreed European laws. So there is some danger from judicial activism in Luxembourg. But it’s not right either for politicians or judges to sow confusion about what either the Charter or the Protocol says, or to exaggerate the effects of either.
How Mr Justice Mostyn came to say what he did in this case is a mystery, since his decision that the applicant was (see paragraph 63 of the judgment) a
manipulative, unscrupulous and deceitful person
really meant he had no need to address human rights law at all, never mind the Charter – which was an obvious makeweight point thrown in by his lawyers for good measure, and which was never going to play a real role in the case.