Written evidence from Dr Tobias Lock, Edinburgh Law School[1]

Summary:

• Protocol No. 30 to the Lisbon Treaty did not effect a complete opt-out for the United Kingdom from the EU Charter of Fundamental Rights; however, the UK may have successfully opted out of Chapter IV of the Charter in so far as this title contains rights.
• The Charter is only justiciable in the UK courts where the UK has acted within the scope of EU law; it cannot be invoked in cases concerning purely domestic situations.
• In cases in which the Charter is applicable, its provisions take primacy over conflicting UK primary and secondary legislation and every UK court or tribunal is under an obligation to disapply such conflicting legislation.

Introduction:

Dr Tobias Lock is a lecturer in EU law at the University of Edinburgh Law School and has published in the area of EU fundamental rights law.

Evidence: Application of the Charter of Fundamental Rights in the United Kingdom

Applicability of the Charter in UK courts – Protocol No. 30

1. Questions as to the exact implications of Protocol No. 30 to the Lisbon Treaty were recently raised by Mostyn J in the Case of AB, in which he expressed surprise that according to the Court of Justice of the EU (CJEU)[2], the Protocol did not constitute an opt-out from the EU Charter of Fundamental Rights (CFR or the Charter) for the United Kingdom and Poland.[3]  It is first appropriate to explore the motivations behind Protocol No. 30 and, second, to discuss its legal effect.

2. The Protocol currently applies to the UK and Poland, while the Czech Republic was promised to be included in the Protocol when the next accession treaty would be concluded.[4]  In this respect, it is worthwhile pointing out the different motivations that prompted the three countries to request the Protocol.  The Polish motivation is reflected in Declaration No. 61 to the Lisbon Treaty, which states that: 

‘The Charter does not affect in any way the right of Member States to legislate in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity.’ 

3. The United Kingdom was mainly concerned with ensuring that Title IV of the Charter (the social chapter) would not interfere with Britain’s labour law.[5]  By contrast, Poland did not pursue this aim at all.  This is clear from Declaration No. 62 to the Lisbon Treaty, which states:

‘Poland declares that, having regard to the tradition of social movement of ‘Solidarity’ and its significant contribution to the struggle for social and labour rights, it fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union.’

4. In addition, the key concern for the Czech Republic is the preservation of the so-called Beneš decrees, which concerned the confiscation of property of people expelled from Czechoslovakia after the Second World War.[6]

5. As regards the effect of the Protocol, it is necessary to distinguish between its different provisions.  Article 1 (1) of the Protocol states that:

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.

6. The Charter is thus considered to reaffirm the fundamental rights already in existence in European Union law at the time the Charter entered into force.  Fundamental rights have been recognised to exist as general principles, i.e. EU primary law, since the late 1960s.[7]  Thus Article 1 (1) of Protocol No 30 makes it clear that the Charter is not intended to introduce new fundamental rights into the Union’s legal order.  This is also reflected in the preamble to the Charterwhere it says that:

This Charter reaffirms […] the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights.

7. Hence, Article 1 (1) of the Protocol mirrors what is already the position set out in the preamble of the Charter and in Articles 51(2) CFR and 6 (1) TEU, namely that the Charter does not ‘extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’  Thus the Protocol’s wording does not suggest that a complete opt-out from the Charter was intended. 

8. Moreover, even if the Protocol had this effect, it would have to be assumed that the rights enshrined in the Charter would still be applicable in their guise as general principles of EU law, since the Protocol does not deal with these and since Article 6 (3) TEU continues to apply.  It states:

Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

9. This view has been confirmed by the CJEU in NS.[8]  It is perhaps interesting to note that in the academic discussion, which had taken place before NS was handed down, no one maintained that the Protocol constituted a complete opt-out from the Charter.[9]  Hence it did not come as a surprise that the Home Secretary herself conceded in NS that the Charter was applicable.[10]

10. The meaning of Article 1 (2) of the Protocol, which refers to Title IV of the Charter, is less clear:

In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

11. The CJEU in NS did not address the question concerning its interpretation.[11]  There is thus currently no authority on this.  On one view, Article 1 (2) CFR merely confirms what is already stated in Article 52 (5) CFR.  This provision introduces a distinction between provisions that embody rights and provisions that contain principles. It states that principles first need to ‘be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers.’  Where such implementation has happened, they ‘shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’.  This means that principles, in contrast to rights, cannot be relied on without their having been implemented first as national law.  Some would argue that Title IV of the Charter, with which Article 1 (2) of Protocol 30 is concerned, only contains principles and not rights.  If this is so, then Article 1 (2) merely confirms that Title IV does not contain any rights.[12] 

12. If this view is not shared, i.e. if one thought that Title IV contained some rights at least, one could conclude from Article 1 (2) that the UK has achieved an opt-out from Title IVThey could only be invoked in judicial proceedings if first implemented at national level.

13. However, on a third possible view, one could construe Article 1 (2) in a similar manner to Article 1 (1), i.e. based on the notion that the Charter merely affirms rights already extant as general principles.  If this is so, then the wording of Article 1 (2) is an affirmation of the general position: the Charter does not create any new rights that could be justiciable.  If justiciable rights mirroring those in Title IV of the Charter are deemed to exist as general principles anyway, then Article 1 (2) would not constitute an opt-out.  As indicated, it will be up to the CJEU to clarify the exact meaning of this provision.

14. Another open question is what impact the Charter has with regard to s. 29 of the Scotland Act 1998, according to which an ‘Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament’, which is the case where ‘it is incompatible with […] [EU] law.’  It is suggested here that for a finding of incompatibility with EU law, EU law would have to be applicable.  This would mean that where the Charter is not applicable, either by virtue of Protocol No 30 or by virtue of Article 51 (1) CFR, discussed below, a Scottish court would not be able to find an Act of the Scottish Parliament to have been adopted ultra vires.  This view finds some support in s. 126 of the Scotland Act 1998, which defines the meaning of ‘EU law’.  It states that

In this Act

(a) all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the [EU] Treaties, and

(b) all those remedies and procedures from time to time provided for by or under the [EU] Treaties,

are referred to as “EU law”.

This shows that the point of reference for the Act is the EU Treaties themselves.  This suggests that the Act looks to the EU Treaties to define under what circumstances they are applicable in the Member State legal orders and thus in Scotland.  Only where they are applicable do they constitute ‘EU law’ and have the effect prescribed by s. 29.  Thus it is suggested that the Charter can only provide the basis for a finding under s. 29 where it is applicable.  However, there does not appear to be any case law on this very point, so that a definite answer cannot be given.

The legal framework for the operation of the Charter in the UK – action within the scope of EU law

15. The applicability of the Charter is limited to acts and omissions that come within its scope.  Article 51 (1) CFR has two prongs: (1) the Charter is always binding on the institutions, bodies, offices and agencies of the European Union; (2) it is binding on the Member States only when they are implementing Union law.  The following paragraphs focus on the second prong, which formulates the trigger for the invocation of the Charter before courts in the United Kingdom.

16. The Charter can only be invoked before UK courts where a Member State is ‘implementing Union law’.[13]  The existence of this trigger test reveals much about the nature of the Charter for the UK’s legal order in that it cannot be considered a replacement for generally applicable human rights guarantees such as those contained in the Human Rights Act (HRA) 1998.  It would thus be wrong to consider the Charter as a new bill of rights for the United Kingdom as its effects are limited.  In this sense, the remarks by Mostyn J. in AB can be easily misunderstood.  He suggests that even if the HRA 1998 were repealed, the Charter would remain part of the domestic law of the UK.[14]  He thereby seems to imply that a repeal of the HRA 1998 would have little practical effect.  However, it must be stressed that the Charter is only applicable where the UK ‘is implementing Union law’.  This means that it cannot be invoked in purely domestic situations.  Interestingly, Mostyn J. in AB did not establish whether the case fell within the scope of EU law and did not discuss Article 51 (1) of the Charter at all.

17. This limited applicability of the Charter was well captured by Elias LJ in the Court of Appeal:

If the Zambrano[15] principle [i.e. EU law] is applicable, then Article 7 of the European Charter on Fundamental Rights is engaged. If not, EU law is not engaged and the proportionality assessment has to be made, as it was in each of these cases, solely by reference to Article 8 of the European Convention on Human Rights.[16]

18. Thus the judge made it clear that it would first have to be established whether the case was concerned with EU law, in which case the applicant could rely on Charter rights.  The Court then found that this was not so given the purely internal character of the situation.  Hence the applicant could ‘only’ rely on Article 8 of the European Convention on Human Rights, which is cognisable in the UK courts by virtue of the HRA 1998.

19. The exact meaning of the term ‘implementing Union law’ contained in Article 51 (1) is still not entirely clear. The explanations to the Charter, which must be given due regard when interpreting its provisions,[17] suggest that Member States are ‘implementing Union law’ when they act within the scope of EU law.  This reading of Article 51 (1) CFR is in line with the Court of Justice’s pre-Charter case law, under which the EU’s fundamental rights (as general principles of EU law) are cognisable (1) where a Member State applies provisions of EU law (e.g. when compensating a farmer for discontinuing to produce milk under an EU Regulation),[18] i.e. where the Member State’s authorities act as ‘agents’ of the EU; and (2) where the Member State restricts Treaty rights (e.g. where a Member State closes a major transport link between two Member States to allow a demonstration to take place with the effect that for a certain period of time goods cannot be brought from one Member State to the other).[19]

20. This approach was recently confirmed by the Court of Justice in its judgment in Åkerberg Fransson.[20]  In that case, the Court adopted a relatively wide approach when it considered that provisions of Swedish law criminalising tax evasion could be considered such an implementation despite the fact that the provisions pre-dated Sweden’s EU membership.[21]  The reason for this was that Article 325 TFEU and VAT Directive 2006/112/EC place the Member States under an obligation to ensure collection of VAT and to prevent evasion.[22]  The crucial question for whether the Charter grants rights to individuals, which they can enforce in the UK courts, is therefore whether the legal dispute at issue arises within the scope of EU law.

21. While the Court’s general approach of equating ‘implementing EU law’ with ‘the scope of EU law’ may not be considered overly controversial, the concrete application of this trigger test to the factual scenario in Åkerberg Fransson certainly was.  Only a few days after that decision, the German Federal Constitutional Court made it clear that it did not agree with an expansive reading of the Åkerberg Fransson decision.  It held:

[Åkerberg Fransson] must not be interpreted in a way which would lead to the conclusion that the decision constituted an ultra vires act or in a way which would endanger the protection by or enforcement of the Member State’s fundamental rights, which would call into question the identity of the constitutional order erected by the Basic Law [the German constitution].  In this sense the decision may not be understood and applied in a way that any reference of a provision to the abstract scope of Union law or purely factual effects on Union law would be sufficient for the Member States to be bound by the fundamental rights contained in the Charter of Fundamental Rights.[23] 

22. This stance is also relevant to the UK as it may well have an impact on the future development of the CJEU’s case law.  Implicit in this quote is the threat that the Federal Constitutional Court may consider a decision by the CJEU ultra vires and thus not applicable in Germany.  Given that the Federal Constitutional Court considers itself to have jurisdiction to make such a finding, it can be considered one of the most important antagonists of the CJEU.  Its decisions carry particular weight in the discourse between the CJEU and national courts about the limits of European Union law.  Its case law has in the past influenced the case law of highest courts in many other EU Member States, so that it is likely that this dictum by the Federal Constitutional Court will have been noticed in Luxembourg.

The ‘added value’ of the Charter – primacy of EU law

23. A further important aspect for a correct understanding of the Charter’s impact in the UK is a comparison with the effects of the HRA 1998.  Under the HRA 1998 the most a UK court can do in cases where it considers an Act of Parliament to be incompatible with the rights guaranteed in the ECHR is to issue a declaration of incompatibility, which leaves the validity of an Act of Parliament unaffected and does not change the outcome of the case.  An exception to this applies under s. 29 of the Scotland Act 1998 as far as Acts of the Scottish Parliament are concerned.  These are considered to be adopted ultra vires (and not law) if they contravene Convention rights or EU law.  Moreover, only the higher courts have the competence to make declarations of incompatibility.[24] 

24. By contrast, if the Charter is applicable, Charter rights profit from the primacy of EU law.[25]  This means that every court and tribunal, no matter how low in the judicial hierarchy, is under an obligation to disapply Acts of Parliament contravening Charter rights.[26]  Given that many EU law related matters are first dealt with by tribunals, e.g. in employment law or in immigration law, the Charter results in an empowerment of these bodies.[27]  It is important to note in this respect the difference between disapplying and declaring invalid.  Disapplication does not render an Act of Parliament null and void.  It remains in force and is applicable in cases where the Charter does not apply, i.e. situations not within the scope of EU law.

25. The relative power of the Charter became obvious in a recent decision by the EAT, in which the Tribunal considered that the State Immunity Act 1978 was incompatible with the applicants’ right to an effective remedy guaranteed in Article 47 CFR.[28]  The applicants were in an employment dispute with their former employers, two embassies, which would normally profit from immunity in the UK courts.  The judge considered that parts of the dispute came within the scope of EU law so that the Charter was applicable; so far as this was the case the State Immunity Act had to be disapplied.  This decision has been appealed, but even if the appeal is successful, it demonstrates the Charter’s potential.

26. In this context it is important to point out certain procedural restrictions, which may discourage counsel from invoking the Charter.  These rules relate to the number of authorities to which counsel may refer in their notes of argument before the appeal courts in Scotland and England.  Section 91 of the Court of Session's Practice notes and Section 29 of the Court of Appeal’s Practice Direction 52C state that the bundle of authorities submitted to the court in preparation for the hearing should not ‘contain (include) more than 10 authorities […]’.  The term ‘authorities’ is not defined, but is in practice construed to include legislative materials.  Hence reference to the Charter of Fundamental Rights as such would count as one authority.  Given that the Charter is relatively new and given that can only be invoked where the case comes within the scope of EU law, an argument based on the Charter requires elaborate substantiation. 

27. Counsel cannot generally take it for granted that the court is fully familiar with the cases helpful in determining the scope of EU law or indeed with the CJEU’s case law on the applicability and effect of EU law.  Hence arguments based on the Charter are prone to being lengthy, complicated and in need of authoritative backup.  In light of this, counsel may choose not to ‘waste’ a significant number of the 10 authorities to which they are allowed to refer on making a Charter-based point.  Of course, it must be acknowledged that there is some flexibility built into the provision given its wording (‘should’).  Thus in a case which is exclusively based in EU law, the courts may be more lenient in practice and allow more authorities to be cited.  For cases where the EU law angle is only secondary, which may often be the case with Charter-based arguments, the issue remains that counsel may choose not to raise that point for the reason referred to above.  Hence these rules could significantly restrict the ability of counsel to invoke the Charter in practice.

Edinburgh, 18 December 2013