Cavalier with our Constitution: a Charter too far.
9 February 2016
Photo credit: Guardian
Last week Donald Tusk, President of the European Council, tabled a set of proposals which the government hopes will form the basis of the UK’s renegotiated relationship with the EU, in advance of an in-out referendum. Politically, the proposals may be just the job: a new commitment to enhance competitiveness, proposals to limit benefits to migrants, recognition that member states’ different aspirations for further integration must be respected, and creation of a (“red card”) mechanism to block EU legislation. Legally, however, they raise more questions than they answer.
My thesis is this: the reach of the Court of Justice of the European Union (CJEU) in Luxembourg has extended to a point where the status quo is untenable. Aside from eroding national sovereignty, which it does, the current situation also undermines legal certainty, which in turn undermines good governance.
To limit the still-growing reach of EU law, it is not enough to use “red cards” to stem the flow of EU legislation. Reform needs to address the EU legal order, in particular the jurisdictional muscle-flexing of the Court in Luxembourg.
The Tusk proposals do not do this. In fact they duck the issue entirely, leaving the way clear for a whole new generation of EU rights to bed down.
The Charter of Fundamental Rights
One of the roles of the CJEU is to interpret EU law (eg Regulations and Directives) to ensure its uniform application in all member states. Since the Treaty of Lisbon (2007), the jurisdiction of the CJEU has expanded enormously. By merging the three “pillars”, judicial control was extended for the first time to asylum, immigration and national security and criminal justice.
The power of the Court has also been extended by the Charter of Fundamental Rights, given legal force by the Lisbon Treaty. At the time, it was loudly proclaimed that the Charter did not extend the competences of the Union and would apply only when a Member State was implementing EU law[1]. As to the content of the Charter rights, these were said at the time to reflect the general principles of EU law and the European Convention on Human Rights (ECHR) – despite containing 50 rights and freedoms, to the Convention’s 20 or so rights.
Anticipating trouble, and anxious that the Charter should not be used to overturn national law, the (then Labour) government (and Poles) negotiated what they believed to be an opt out of the Charter by means of Protocol No 30:
Article 1:
(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 the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
(2) In particular, and for the avoidance of doubt, nothing in Title IV of the Charter [social and economic rights] creates justiciable rights applicable to Poland or the United Kingdom.
One of the preambles, specifically underlined that the Charter in any event, created “no new rights”:
“WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles”.
Before the ink had dried on Protocol 30, concerns were voiced about its precise meaning and effect. The government message was firm and consistent. On 25 June 2007, Tony Blair told the Commons “It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs”. A few months later (16 October), David Miliband, then Foreign Secretary told the European Scrutiny Committee that the Charter would not “extend the reach of European courts into British law”, and that it “only records existing rights under domestic and international law” and “does not create new ones”. The FCO position was also that “the Charter is sourced in the existing rights and principles, so the content has not grown”.
The Coalition Government gave similar assurances: in March 2011 Ken Clarke, then Justice Secretary, told a Commons committee that the Charter was “of more political and public presentation importance than it is of deep significance because it does not actually change anything”. Responding to questions he doubted the Court would challenge pre-existing EU law by reference to the Charter, but if they did, he said, that would be defying the Charter as well as the Protocol.[2]
In the Courts however, another picture was emerging.
NS, an Afghan national who had entered the EU via Greece, claimed asylum in the UK. Applying the Dublin Convention, the UK sought to return him to Greece but he challenged the deportation order on grounds that the treatment of asylum seekers in Greece amounted to degrading treatment contrary to Article 3 of the ECHR and Articles 1, 4, 18, 19, and 47 of the Charter. The High Court considered the Charter relevant to interpreting EU provisions, but ruled that a litigant in the English courts could not rely on Charter rights directly. Before the case reached the Court of Appeal, the Home Secretary conceded that the Charter could be directly invoked. The case was referred to Luxembourg for clarification as to the scope of the Charter rights, and the effect of Protocol 30[3].
In decisive terms, the Court ruled that Protocol 30 was not intended to exempt the UK from the obligation to comply with the provisions of the Charter or to prevent a [UK] court from ensuring compliance with its provisions. In other words, there was no opt out. The Charter applied in the UK and in Poland in precisely the same way as in any other member state.
That said, the Court did not create new rights: it found that the rights relied on under the Charter gave the same protection as Article 3, the corresponding right under the ECHR.
Since then however the position has changed. The English Courts are increasingly being urged to recognise and give effect to new Charter-based rights, in areas of law as diverse as employment disputes[4] and immigration and asylum claims[5]. In some, the Court dismisses the claim and refuses to refer the matter to Luxembourg[6]. In others, which reach Luxembourg, the Court fleshes-out and applies what are, in reality, new – or newly and differently-defined – rights.
One troubling example is Digital Rights Ireland, a Grand Chamber Judgment from April 2014[7]. In that case the Court was persuaded by privacy campaigners to strike down a Directive harmonising rules relating to the retention of electronic data to assist in fighting terrorism and organised crime[8], on the grounds that it contained inadequate safeguards against abuse by those seeking to access the data thereby breaching Charter Articles 7 and 8.
Concerns about the case are various. First, it entirely ignored its previous Judgment which held that the Directive did not govern provisions on access to data: Case C-301-06, Ireland v European Parliament and Council[9]. It also interpreted the content of the Charter rights much more broadly than the equivalent rights under the ECHR, without referring to the relevant jurisprudence of the Strasbourg Court at all.
It also had a very significant impact, rendering invalid national laws in five member states. Here, replacement legislation (the Data Retention and Investigatory Powers Act 2014) is in turn being challenged as incompatible with the Charter by MPs David Davis and Tom Watson (and others), with some significant success so far: R (Davis and others) v Secretary of State for the Home Department [2015] EWHC 2092.
In November 2015, the Court of Appeal cast doubt on the ruling of the lower Court and referred the case to Luxembourg for clarification of Digital Rights Ireland. It noted that the CJEU had apparently expanded the rights in issue beyond the ECHR case law and observed:
“the judgment includes no principled statement of the justification for such a general extension, nor does it contain any assessment of the competing interests in play here”. Then, “given the fundamental importance of the law on data protection to the public at large and its significance, in particular in the fight against crime and the maintenance of national security, we consider it improbable that the Grand Chamber should have intended to effect such a major change in the law in such a way”[10].
The ball is therefore in Luxembourg’s Court. However, other recent Judgments do not bode well.
On 6 October 2015, in Case 362/14 Schrems v Data Protection Commissioner (the “safe harbor” ruling), the Court again considered the processing of personal data by reference to Charter Articles 7 and 8. Schrems, an Austrian law student, took legal action to stop Facebook transferring his personal data from a server in Ireland to the US, arguing that Edward Snowden’s revelations about the NSA surveillance programme proved that the US violated EU privacy rights. Without inviting Facebook or the US government to take part in the proceedings, the Court struck down a well-established arrangement with the US which allows EU citizens’ data to be transferred to other countries provided their laws ensure an adequate level of privacy[11]. The effect of the ruling was to plunge thousands of companies which rely on transatlantic data flows into chaos[12].
It is plain from this case law that political assurances that the Charter merely re-stated existing rights, were misplaced. The Charter is being used to fashion new rights.
This is objectionable because:
- The ECHR already provides a comprehensive, justiciable body of rights developed by case law. To create a new, parallel body of rights is incoherent, excessively onerous and a recipe for legal uncertainty[13].
- Given the direct effect of EU law and the principle of supremacy which allows inconsistent national law to be set aside, judgments of the CJEU have profound and immediate effects on the domestic legal order: unlike Strasbourg judgments.
- While the Court in Strasbourg is arguably showing greater restraint – granting signatory states a margin of appreciation – Luxembourg appears to be moving in the opposite direction. Its apparent institutional rivalry with Strasbourg might, if unchecked, herald an era of competitive judicial law-making.
Can we be saved by Tusk?
Returning to the Tusk proposals, the Draft Decision of the Heads of Government says this about the Charter:
“Recalling also that the Charter of Fundamental Rights has not extended the ability of the Court of Justice or any court or tribunal in the United Kingdom to rule on the consistency of the law or practice of the United Kingdom with the fundamental rights that it reaffirms (Protocol No 30)”.
This is, frankly, baffling. Given that by December 2011, Protocol 30 was effectively dead, what is the point of referring to it?
If, as these proposals suggest, the government does not intend to use this “re-negotiation” to re-assert some form of Charter opt-out or control over its scope, this raises intriguing questions about its stated aim to repeal the Human Rights Act (HRA). Why repeal the HRA if the Charter – with its wider panoply of rights – remains?
Ruling on an asylum case in 2013, Mr Justice Mostyn was taken to the CJEU’s Judgment in NS (Afghanistan) and stated:
“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 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”[14].
So, where do we go from here?
Peering through the smoke and avoiding the mirrors, it seems tolerably clear that the aim of the Protocol was to ensure the Charter did not, and could not, create new rights enforceable in the UK courts. By operation of the Treaty, the Charter now forms part of EU law. It may not be practicable or legally coherent, to try – as a single member state – to opt out.
Rather the effect of the Charter within the legal order of the EU needs to be reviewed.
Writing about the Charter in 2012, David Anderson QC and Dr. Cian C Murphy, recognised that “[T]he subjection of Union and national rules to such a powerful and open-textured instrument does require enormous faith to be placed in the Court of Justice, its ultimate arbiter.”[15] I would like to be wrong, but my current view is that a Court which ignores its own rulings and gives no reasoned explanation for doing so, is acting capriciously not judiciously, and this does not inspire much faith.
The EU, collectively, took a wrong turn by giving legal effect to the Charter in Lisbon. But the Charter’s ambiguous wording, coupled with the reservations formally expressed by two large member states, is sufficient to invite a re-think. I suggest that in doing so we stop straining to revive the corpse of Protocol 30. Instead, we should state our position afresh.
The Charter either is, or should be a set of principles that may guide the enactment of new EU legislation and the manner in which EU institutions exercise their powers, but does not create any new rights directly enforceable by the Courts in the member states or EU. Constitutional challenges to the validity of existing EU legislation and the acts of the institutions should be by reference to the core Treaty provisions, the ECHR and established general principles of EU law.
Here is a chance to restore a measure of constitutional coherence, let us not pass it by.
[1] Article 51 of the Charter states that it does “not extend the field of application of Union law beyond the powers of the Union or establish any new task for the Union or modify powers and tasks”.
[2] See House of Commons Note SN/IA/6765 updated 17 March 2014 from which this summary draws.
[3] Case C-411/10, R (NS (Afghanistan)) v Secretary of State for the Home Department [2013] QB 102 (joined with case 493-10) and also referred to as ME
[4] Benkharbouche and Janah v Embassy of Sudan, and Libya [2015] EWCA Civ 33
[5] ZZ (France) v SSHD [2013] QB 1136, [2014] QB 820
[6] In one recent example, AZ, a Syrian refugee challenged the Home Secretary’s refusal to grant him travel documents on the grounds he was believed to be an Islamist extremist wishing to travel to Syria to fight. At an interim hearing, Counsel for AZ relied –unsuccessfully – on Charter Articles 41 (right to good administration) and 47 (right to an effective remedy and fair trial), to press for greater disclosure of sensitive material than national law or Convention jurisprudence currently require: R (AZ) v Secretary of State for the Home Department [2015] EWHC 3695 (Admin).
[7] Cases C/293/12 and C/594/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources & Others and Seitlinger and Others [2015] 1 QB 127; [2014] 3 CMLR 44
[8] Data Retention Directive (2006/24/EC), adopted in the wake of the July 2005 terrorist attacks in London.
[9] [2009] 2 CMLR 37, [2009] ECR I-593
[10] SSHD v Davis and others [2015] EWCA Civ 1185, per Lord Justice Lloyd Jones §115
[11] Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/96 on the adequacy of the protection provided by the safe harbour privacy principles
[12] Commenting on the case, Camino Mortera-Martinez and Rem Korteweg of the Centre for European Reform note the “irony” that since Snowden, the US have increased their judicial scrutiny of the NSA while European countries have arguably extended the powers of their intelligence agencies without corresponding judicial oversight.
[13] Neither the CJEU nor the Strasbourg Court is bound by precedent. Thus the unpredictability of Strasbourg rulings already challenges legal certainty, but introducing a whole new aegis of fundamental rights law from Luxembourg makes matters worse.
[14] R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin)
[15] EU Law After Lisbon, eds Biondi, Eeckhout, Ripley, OUP 2012, Chapter 7 The Charter of Fundamental Rights p. 179
This blog is run by 
I think some of the commenters here are failing to recognise that it is possible for people to agree about substantive human rights whilst disagreeing about how they are implemented. I read this as a criticism of the way in which the ECJ has extended its remit – that’s a totally different proposition to saying that the rights discussed are bad and wrong.
Incidentally, commenters elsewhere seem to have forgotten that the author of this particular piece is actually capable of independent thought, regardless of who she may be related to which I find both deplorable and sad.
[…] back David Cameron’s EU renegotiation, he need only ask his wife. Marina Wheeler has just written a lengthy blog, also published on the Spectator website in a shortened form under the headline: “Why David […]
Ms. Wheeler’s political views appear to cloud her professional judgement on this matter. The NS case is a classic example of the ECJ interpreting provisions of EU law by which Britain was bound. These include the Charter of Rights, as the introduction to Protocol 30 makes clear (and as the ECJ noted) ie, there is no British (or Polish) general opt-out from the Charter and Protocol 30 was not intended to create any such general opt-out. She has absolutely not made the case that the ECJ is acting outside its remit as part of accepted EU law. None of the ECJ decisions to which she refers can be interpreted as a violation of the ECJ’s role in the EU legal order – whatever opinion one might have on the merits of any individual decision.
More generally, it is nonsense, from the perspective of constitutional law, to assert that EU law diminishes national sovereignty. EU law is enforced in British courts only because Parliament has said so and Parliament can, by repealing the relevant legislation, remove any influence of EU law from the courts of Britain. Such repeal would mean that Britain would no longer be part of the EU but that is a matter of political convenience not a matter of sovereignty, just as joining and then remaining in the EEC/EU were and are matters of political convenience and not matters of sovereignty.
[…] EU (CJEU) in Luxembourg – of which the European Court of Justice (ECJ) is a part – is engaging in “jurisdictional muscle-flexing” by ruling on rights that go beyond its […]
The author could have gone on to mention that the application of the Charter to the domestic law of the United Kingdom was examined by The House of Commons European Scrutiny Committee in April 2014 who took evidence from those who were involved in its negotiations (The Application of the EU Charter of Fundamental Rights: A State of Confusion” 43rd Report of Session 2013-14 HC 979 dated 2nd April 2014):
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/979/979.pdf
It is interesting to note the way in which governments fail to exercise their right to intervene in cases before the CJEU the outcome of which may affect the national interest.
The Government’s response to the Committee’s report endorsing the view that there had never been an opt-out of the charter:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/335759/application-of-the-eu-charter-of-fundamental-rights-in-the-uk-a-state-of-confusion.pdf
That the government still fully appreciate the binding nature of EU law is evident from a passage in their response:
“Domestic courts must, as far as possible, interpret national law compatibly with EU law”
One can see how the Ministry of Justice appears to conflate the distinction between the duty of the Court under the Human Rights Act 1998 to interpret “as far as possible” and the absolute binding nature of EU law and the requirement of the domestic courts to give full effect to it under the European Communities Act 1972.
A reading of both the report itself and the response by the government leaves one with a less than favourable impression of the competence of those entrusted to negotiate, interpret and apply EU law.
The author could have gone on to mention that the application of the Charter to the domestic law of the United Kingdom was examined by The House of Commons European Scrutiny Committee in April 2014 who took evidence from those who were involved in its negotiations (The Application of the EU Charter of Fundamental Rights: A State of Confusion” 43rd Report of Session 2013-14 HC 979 dated 2nd April 2014):
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/979/979.pdf
It is interesting to note the way in which governments fail to exercise their right to intervene in cases before the CJEU the outcome of which may affect the national interest.
The Government’s response to the Committee’s report endorsing the view that there had never been an opt-out of the charter:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/335759/application-of-the-eu-charter-of-fundamental-rights-in-the-uk-a-state-of-confusion.pdf
That the government still fully appreciate the binding nature of EU law is evident from a passage in their response:
“Domestic courts must, as far as possible, interpret national law compatibly with EU law”
One can see how the Ministry of Justice appears to conflate the distinction between the duty of the Court under the Human Rights Act 1998 (“as far as possible”) and the absolute binding nature of EU law requiring the court to give full effect to it under the European Communities Act 1972.
Both the report itself and the government’s response to it leaves one with a very poor opinion of the calibre of those whose responsibility it is to negotiate, interpret and apply EU law.
More worrying is that, despite all the excellent articles posted on this blog, this one (which, as many have commented, seems to support weakening protection from European sources) has been “widely publicised and an exerpt published in ‘The Spectator'” according to a follow-on email I received yesterday. One can only suppose that those who want to go back to the “good old days” of Parliament acting without regard for anyone but themselves are using this article from this source as justification. Who needs enemies when we have friends like this?
how awful that people have rights at all. and god forbid that they should be extended or improved.
hurrah for neocon nonsense!
Reblogged this on Freeword and Friends World and commented:
Here’s the post of Mrs. Johnson on the troubles with Strasbourg.
“Here is a chance to restore a measure of constitutional coherence, let us not pass it by.
[1] Article 51 of the Charter states that it does “not extend the field of application of Union law beyond the powers of the Union or establish any new task for the Union or modify powers and tasks”.”
I am no Lawyer, but does the April, 2010 amendments to the Charter for Fundamental Rights (http://www.echr.coe.int/Documents/Convention_ENG.pdf) not indeed modify powers and tasks? In particular, Article 2 appears to modify Article 2 of the ECHR in a considerable way by tacitly allowing States within its jurisdiction to have Capital Punishment on its Statute Books and also appears (in my mind) to give legal justification for using lethal force in putting down riot/insurrection or escaping from/resisting arrest without setting any parameters for using such force except the exhortation “the use of force which is no more than absolutely necessary”. Who is to be the arbiter of whether the level of force was absolutely necessary? It appears to me to be a ‘get out of jail free’ card for any over-zealous or homicidal Police Officer to use at will.
The explanations to the Charter state that there is no intention to change the interpretation or case law relating to the ECHR. There are no ‘April 2010 amendments’ to the Charter; anyway the Charter itself cannot modify EU powers as Article 51.2 makes clear. Putting down riots etc would rarely, if ever be within the scope of EU law (Article 51.1).
You say that there are no amendments. did you in fact look at the document in the link that I provided? The preamble to the document describes the various protocols that have been amended and The section on Article 2 states:
ARTICLE 2
Right to life
1. Everyone’s right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution of
a sentence of a court following his conviction of a crime for which
this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of force
which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape
of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot
or insurrection.
That a human rights blog is used to write against human rights begs belief!
I don’t know who the writer thinks ‘we’ are, but please don’t include me in this!
In the circles I inhabit, ‘we’ look upon the European Laws, Conventions, and Courts, as slim, but better than nothing, hopes of persuading, increasingly despotic and antidemocratic governments, to behave like reasonable human beings. They rarely take any notice, even when their baser practices are exposed, and publicised for what they are, via European court rulings, but, at least the plaintiffs can take some comfort that civility and respect for human rights, still exists outside the UK.
I can’t say I agree by any means, with all I hear from the CJEU, but the same goes for plenty of odd rulings from our own law lords–who often seem to split on party lines, whatever wordy reasons they may give–but I see no reason why this court should not develop through compiling a body of case law to refer back to, just as our national courts have.
International courts were *meant* to be a higher tier of justice, precisely to try and protect ordinary people from despotic governments like ours. I only wish they had the power to strike them out entirely, and send the worst cabinet offenders to prison, where they belong.
We do not vote into power people who rule our lives. That is the crux. You call our government despotic, but at least their tenure is dependent on an election system, and they have to win our confidence at future elections.
All this started off as a Common Market – note the word ‘Market’ i.e. trade. With a handful of member states. It was never promoted, when we first elected to join this ‘club’, to be an organisation that controls every aspect of our lives; this is what it has morphed into… The European Union. We have just thrown away our independence by sliding into this, so called, Union.
The track record for us is appalling, not only in terms of huge subsidies by Britain to the EU, and now under threat of having no say as to national borders, who lives here, including incredibly terrorists. Ever increasing controls in all areas of our lives. All these worries have now been substantiated.
It has become so bad that I for one no longer feel British. I have lived all over the world as a child and accepted people’s ways of life, and abided by their rules, in their countries. When in Rome, do as the Romans do, should be the norm. The better educated living in our country do, but we have unfortunately ‘invited’ in huge numbers of people who are ill-educated, do not speak our language, do not want to assimilate to our ways of living, and who expect to receive education, housing, health treatments. I am no racist; but I submit that people who treat us as ‘white scum’ are.
At long last, the end of all this nonsense will happen. .We will stop cowering, afraid to speak up, speak the truth. We will get our Britain back. Britain was once a fantastic place to live in. And we can have it back. It is now up to the people of Britain to stand firm against the arrogance of people who think they have a God given right to control us. Angela Merkel for one has an affrontary to even still be in post, after all the damage she has done. I submit that the whole immigration thing was intentional – a super plan to mix the races, nor to have individual countries but one huge Union. Well, like the Roman Empire, and Alexander the Great, and Hitler’s plan of World domination… it will fall. It will fail. The wheel of fortune is turning.
J. Slater
[…] Source: Cavalier with our Constitution: a Charter too far. – UK Human Rights Blog […]
In principle I find it bizzare that on a human rights blog we have a complaint and a proposition that the individual’s human rights are overprotected! That is my reading of this submission. I am stating now the relevant bits: “a Grand Chamber Judgment from April 2014. In that case the Court was persuaded by privacy campaigner…” “Without inviting Facebook or the US government to take part in the proceedings, the Court struck down a well-established arrangement with the US which allows EU citizens’ data to be transferred to other countries provided their laws ensure an adequate level of privacy. The effect of the ruling was to plunge thousands of companies which rely on transatlantic data flows into chaos.”
The implication that individuals enjoy too much protection I find rather disturbing I have to say. Both the ECJ and the ECtHR managed through their jurispripudence to introduce a kind of level playing field and a fairer relationship between the individual and the states (employment, equality among sexes, prohibition of discrimination, protection of vulnerable groups generally, and especially in the UK).
The emphasis in the submission is on “our sovereignty being eroded” with a rather unconvincing conclusion that the loss of sovereignty leads to bad governance! Maybe the author should elaborate on this point a bit more? As far as the Afghan national case is concerned, again we make that kind of political point often: other states’ asylum procedures are distinctional (Greece for example). Would we like to renounce this political convenience by withdrawing from the EU?
Re Case 362/14 Schrems v Data Protection Commissioner, another bold statement that business suffered as a result of protecting a bit of privacy! Just a thought. Maybe I belong to a category of overenthusiasts? Pity, the piece is otherwise well researched and presented. But officials will certainly like it.
This is not a convincing argument, for a number of reasons. 1) The right to privacy was certainly an existing right. The question is therefore whether the CJEU’s interpretation of that right was inconsistent with the ECtHR’s. In my view, it’s completely consistent: the Strasbourg court has ruled out mass surveillance since its first judgment on the matter in Klass v Germany. The more recent judgments in Szabo v Hungary and Zakharov v Russia are also consistent: on the latter see Lorna Woods here: http://eulawanalysis.blogspot.co.uk/2015/12/zakharov-v-russia-mass-surveillance-and.html
2) You don’t mention that the Charter only applies where there’ s a link to EU law. In conjunction with your comments about the HRA, this deliberately gives a false impression to readers. Repealing the HRA while keeping the Charter would in fact have practical effect, since the Charter would not replace the HRA in majority of cases – given the absence of a link to EU law. 3) Cameron’s key speeches (Bloomberg, Chatham House) never said that he wanted to renegotiate the Charter. 4) Finally, you mention Benkharbouche, on employment law rights: that’s a case about Article 6 ECHR. So again, it’s not a new right, or even a reinterpretation of an existing right – the Court of Appeal made extensive reference to ECHR case law on state immunity and Article 6. The issue there is the enforceability of the right. But the use of the Charter in that context is no different from the use of the general principles of EU law, which were the main source of EU human rights rules before the Charter became legally binding – the CJEU judgment in Kucukdeveci makes that clear. So therefore, nothing new happened. As Protocol 30 states, the UK is still bound by the rest of EU law, including the general principles, no matter what impact the Protocol has as regards the Charter specifically.
Interesting. If we accept your thesis, would not one partial solution to the “overreach” of the ECJ be the much-trailed, heavily-negotiated but currently stalled process for subjecting its rulings – at least in the domain of human rights – to the scrutiny of the “more restrained” European Court of Human Rights?
Little surprise that the ECJ – perhaps sensing the threat to its prerogatives – came out with a viciously negative opinion on this plan (for the EU to accede to the European Convention), apparently defying the will of the EU’s member states, who were quite clear at Lisbon that this is what they wanted. Another case – though one unlikely to be cited by Tory eurosceptics – of uppity Euro-judges defying the will of democratically-elected governments?
But there’s a further problem: it turns out that the British Government (despite sensible warnings on the complex interplay between EU and Convention law from its Attorney General Dominic Grieve and others) appears to detest the European Court of Human Rights even MORE than the ECJ, and is currently waging its own misguided PR war on that institution too! So, a body that might actually be an ally in curbing the “EU’s judicial power-grab” (to use Daily Mail terminology) has, it turns out, already been cast as a folk-devil…
Perhaps the UK needs to think a bit more strategically – and, frankly, a bit more intelligently – about where it wants to go with these pesky European judges? Perhaps the Daily Mail has been wrong all along, and some of them aren’t as bad as others? And perhaps taking them all on at once wasn’t such a smart idea?
And possibly, just possibly, one way to stop ECJ “mission creep” would be for the UK to reverse its current position and support the proposal to subject the EU’s institutions – all of them, not just the ECJ – to the sober scrutiny of Strasbourg? And even eurosceptic Tories might quite like the idea of giving “one in the eye” to Luxembourg…
I am a little surprised by the implication that UK law is certain. At British Naturism we are constantly dealing with areas of law that are more like a lottery than a justice system, and some areas of which are essentially secret.
Whilst I agree with you that the CJEU lacks the precedential rigour of the UK courts, it has to be remembered that the common-law system is not followed in other Member States. One of the questions that is therefore raised by your commentary is “How much influence should a minority legal tradition have in European Union jurisprudence?”
The title of your article suggests that “our” constitution is somehow being undermined by the CJEU. On this I completely disagree, on the basis that the UK does not have a functioning constitution. The “unwritten constitution” is an excuse for Parliament to do what it wants without any way of measuring the effects on the population or on individuals. The major problem is the insistence of the ruling classes on maintaining the outdated notion of Parliamentary Supremacy. The reason some hate the EU (and the ECHR) is that Parliament can be held to account. It is long past time that we in the UK had a proper, written constitution that the domestic courts can measure the actions of the executive and the legislature against, for the protection of the citizenry. At the moment, the CJEU and the ECtHR are the only protections we have against increasingly feral executive and legislative actions. For this reason, I trust them far more than domestic courts (hampered by Parliamentary Supremacy) and Parliament, which is incompetent at looking after the needs of citizens in the longer term.
I am part of a fairly strong body of opinion that the CJEU is doing a good job of overriding individual Member States’ (and especially the UK’s) more rabid nonsense, especially in the area of Data Protection. It has been made very clear by Snowden et al that the data-fetishists that infest the higher reaches of the Home Office and the security services need reining in, especially with regard to data about UK citizens collected by the USA and then cosily sent back to GCHQ (and vice versa). Any benefit obtained from ever increasing data-slurping accrues only to those at the top, who feel that their power my be threatened at some time in the future. The decision in Schrems is to be applauded, not criticised – except in that it took so long for the CJEU to make it clear that the “Safe Harbour” provisions were not compliant with the EU data protection provisions – something that many people had been saying for years, and which politicians at state and EU levels had been ignoring.
A bit complex but bottom line seems to be a dog’s breakfast when attempting to clarify jurisdiction over final say. Not a way forward.
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