WRITTEN EVIDENCE FROM DAVID ANDERSON Q.C.

EXECUTIVE SUMMARY

1. The Charter has the same legal value as the Treaties.  It is a powerful legal instrument that is fully justiciable and can be relied upon before the courts of the EU and of the UK:

1. as an aid to the interpretation of both EU rules and national rules within the scope of EU law, and

2. as a ground for invalidating both EU rules and national rules within the scope of EU law.

2. All these things were true also of the Charter’s legal parent: the general principle of fundamental rights, developed by the European Court of Justice (“ECJ”) in case law dating back to 1969, which gave birth to the Charter and survives alongside it. 

3. This fact explains the apparent paradox that the Charter, though powerful, is said “not [to] create new rights or principles” and not to “extend” the ability of EU or national courts to find that UK rules are inconsistent with fundamental rights.  That ability existed previously; the Charter perpetuates but does not extend it.

4. The Poland-UK Protocol is not (and was never claimed to be) an opt-out. Rather, it helpfully clarifies the basis on which the Charter applies in all Member States, with specific reference to Poland and the UK.

5. Four years after the Charter came into force, there are no significant signs of competence creep.  Those vigilant in these matters will however want to keep an eye on:

1. the manner in which the ECJ defines the category of national rules and decisions that fall within the scope of EU law and hence of the Charter;

2. the manner in which the Title IV (“solidarity”) rights are given effect; and

3. the possible future emergence of a more intense human rights culture within the ECJ.

INTRODUCTION

1. I am a Q.C. in private practice, and a Visiting Professor at King’s College London.  Over the past 25 years I have pleaded more than 130 cases before the EU courts and many more before the courts of England and Wales.  I also practise before the European Court of Human Rights, and have served for the past three years in the part-time role of Independent Reviewer of Terrorism Legislation.  In 2011 I published (with Cian Murphy) a chapter on the Charter of Fundamental Rights which is freely available to the public in the form of a working paper.[1]

2. I submit this brief written evidence for no other reason than that the Committee invited me to appear before it.  It expresses my own views and has not been discussed with anyone else.  My evidence is focussed on the principal issues: many other legal issues concerning the Charter are discussed in my 2011 chapter.

LEGAL STATUS OF THE CHARTER

3. Article 6(1) of the Treaty on European Union (TEU) states plainly that the Charter “shall have the same legal value as the Treaties”.  The provisions of the Charter “shall not extend in any way the competences of the Union” (Article 6(2)), meaning that they may not form the legal basis for Union action.  As a document with Treaty force, however, the Charter functions both as an interpretative mechanism and as superior source of law, sufficient to invalidate EU rules/practices or national rules/practices (within the scope of EU law) that do not comply with it.  As the Supreme Court held in RFU v Consolidated Information Services, the Charter has direct effect in national law, “binding member states when they are implementing EU law”.[2]

4. A well-publicised example of the application of the Charter is the recent judgment of the Employment Appeal Tribunal (EAT) in Benkharbouche.[3]  Langstaff J disapplied two provisions of domestic statute on the basis that by permitting the Sudanese and Libyan embassies to avoid unfair dismissal claims by reference to state immunity, they failed to comply with the fair trial right guaranteed by Article 47 of the Charter.  I understand that the case is subject to appeal.  As a matter of principle, however, there is no novelty in the proposition that national rules or practices which fail to comply with EU principles of fundamental rights fall to be disapplied.  A 30-year-old analogy is the case of Kent Kirk,[4] in which a Danish MEP’s conviction for illegally fishing in UK waters was set aside after it was judged to infringe the principle of non-retroactive application of criminal penalties.  Then described as “a general principle of law whose observance is ensured by the Court of Justice”, that principle is now to be found in Article 49 of the Charter.[5]

THE POLAND-UK PROTOCOL

5. When the 30th Protocol was negotiated in mid-2007, the Eurosceptic press was quick to hail it as an opt-out.[6]  The perception that an opt-out had been achieved has been seen as helpful to the Government in convincing the public that the Lisbon Treaty was different from the Constitutional Treaty and therefore did not require the referendum promised in the 2005 manifesto.[7]

6. Informed opinion was very different.  This Committee recorded later in 2007 the views expressed to it by the then Europe Minister and Foreign Secretary that “the Protocol was not an opt-out from the Charter” and that “the Charter would be legally binding”.[8]

7. The following year Lord Goldsmith, who was Attorney General when the Charter was first negotiated, stated:

“It will be clear the UK Protocol does not in any way constitute an ‘opt-out’ in the sense of trying to disapply certain rights to UK citizens.  That would be neither necessary nor desirable given that the UK fully accepts the rights reaffirmed in the Charter.”[9]

8. To similar effect Daniel Denman, who was involved in negotiating the Protocol on behalf of the UK, wrote (albeit in a personal capacity):

“Although the Protocol is in terms that are specific to the United Kingdom and Poland, it does no more than set out some of the implications of the way in which EU law gives effect to the Charter.  So every proposition in the Charter, although it only refers to the United Kingdom and Poland, is equally true for every other Member State.”[10]

9. It was entirely predictable, therefore, that when the Grand Chamber of the ECJ came to rule upon the status of the Poland-UK Protocol, it would conclude that the Protocol “does not call into question the applicability of the Charter in the United Kingdom or in Poland”.[11]  The surprise recently expressed at this result by a High Court Judge (albeit obiter) is to be explained by the fact that the point was not fully argued before him.[12]

10. Whatever its motivations, I would not go so far as to agree that the Protocol is nothing more than “an exercise in smoke and mirrors”.[13] It sets out more plainly than does the Charter itself that:

1. The Charter does not create new rights or principles (a point specifically affirmed by the ECJ in NS).[14]

2. The Charter does not extend the ability of the ECJ or of UK courts to invalidate UK rules/practices.

3. Nothing in Title IV of the Charter creates justiciable rights applicable to the UK, except in so far as the UK has provided for such rights in its national law.

As such, the Protocol may be not only of comfort but of practical use to any party seeking to avoid an expansive interpretation of the Charter.

COMPETENCE CREEP?

        Application to national rules

11. The provisions of the Charter are addressed to the Member States “only when they are implementing Union law” (Article 51(1)).  The interpretation of that phrase is central to the balance of competences between Member States and the EU, as the UK’s Advocate General acknowledged when she made the point that to adopt the very wide interpretation that she herself was proposing “would involve introducing an overtly federal element into the structure of the EU’s legal and political system” and could thus be contemplated only after a political statement of commitment from the Member States.[15]

12. A more conventional course was taken by the UK’s Supreme Court in 2012.  Following ECJ case law defining the circumstances in which the general principles of law were applicable to national rules and practices, it held that:

“the rubric, ‘implementing Union law’, is to be interpreted broadly and, in effect, means whenever a member state is acting ‘within the material scope of EU law’”.[16]

It is well established that a State acts within the scope of EU law, in particular, when availing itself of one of the permitted derogations from freedoms such as the free movement of goods and the freedom to provide services.  There have been pre-Charter cases in which the general principle of fundamental rights was given a remarkably wide application under that doctrine.[17]

13. An apparently similar analysis was applied by the Grand Chamber of the ECJ, in the 2013 case of Åklagaren Fransson.[18]  The Court held (at para 21) that:

“the fundamental rights guaranteed by the Charter must .. be complied with where national legislation falls within the scope of European Union law”,

noting at para 23 that the provisions of the Charter “are not to extend in any way the competences of the European Union as defined in the Treaties” and that the Charter “does not extend the field of application of European Union law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties”. The United Kingdom did not intervene in the case, as it could have done had it wished to join the Commission and five other Member States[19] in contesting the application of the Charter.

14. The Åklagaren Fransson judgment has attracted some concerns, notably from the German Federal Constitutional Court – the traditional judicial guardian of Member State powers against EU encroachment.[20]  Those concerns may be prompted not so much by the above formulation as by its application to the facts of the case at issue, which concerned the enforcement of tax liabilities – a subject not governed directly by EU law, even though one VAT, one of the taxes at issue, is regulated in other respects by EU law. 

15. It remains to be seen whether this case could mark the beginning of competence creep.  The language of the ECJ suggests that any such creep could be at most of a modest nature, compared at any rate to the bold proposal of Sharpston AG in Ruiz Zambrano.  The UK Government’s non-intervention in Åklagaren Fransson might suggest that it was relatively unconcerned about the outcome.  It should also be noted that in many other cases, claims based on the alleged incompatibility of national rules/practices with the Charter have been dismissed by the ECJ, often in summary fashion or by reasoned order.[21]

Title IV rights

16. The UK’s concerns about the Charter were at their most acute in relation to Title IV (“solidarity”), which contains 12 rights of a social and economic nature including the right of collective bargaining and action, fair and just working conditions, social security and social assistance and health care.  Like the other rights in the Charter, they could of course apply only within the scope of EU law.

17. Significant limits on the enforceability of these rights appear to be imposed by Article 52(5) of the Charter, but its scope is not clear.  It will be particularly welcome, therefore, to those who oppose the development of free-standing EU rights under Title IV, that the Poland – UK Protocol clearly provides:

“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.”

18. I am not aware of case law on this provision, but it would seem to give strong protection against the assertion by the ECJ of Title IV rights going beyond what is provided for under UK law.

Human rights culture

19. The ECJ developed its fundamental rights jurisprudence after 1969 not out of enthusiasm for human rights but in order to placate those national courts (particularly in Germany) which were threatening to disregard judgments that did not meet their own fundamental rights standards.  Its principal workload concerns the regulation of commercial activity: human interest cases, though increasing in number, are the exception.  Like the higher UK courts, and in contrast to the European Court of Human Rights, it is essentially a court of generalists whose defining feature as lawyers is not usually a specialist knowledge of or interest in the legal application of fundamental rights.

20. The interest and expertise of UK judges in human rights was certainly increased when rights were “brought home” by the Human Rights Act 1998; and I have wondered whether the EU courts may react in a similar way now that the EU has its own fundamental rights instrument.  Some of the more obscure rights – though previously applied by the ECJ, or present in a Treaty to which it referred – might come to greater prominence by their presence in the Charter. 

21. Once again, this will be something to keep an eye on.  My impression is, however, that the Charter – though increasingly pleaded and referred to – has so far been applied by the ECJ in a generally restrained manner and as part of its everyday work.

CONCLUSION

22. I hope these comments may be useful and look forward to attending the evidence session on 15 January.

January 2014