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. 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:
(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.
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.
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 and immigration and asylum claims. In some, the Court dismisses the claim and refuses to refer the matter to Luxembourg. 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. 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, 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. 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  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”.
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. The effect of the ruling was to plunge thousands of companies which rely on transatlantic data flows into chaos.
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.
- 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”.
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.” 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.
 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”.
 See House of Commons Note SN/IA/6765 updated 17 March 2014 from which this summary draws.
 Case C-411/10, R (NS (Afghanistan)) v Secretary of State for the Home Department  QB 102 (joined with case 493-10) and also referred to as ME
 Benkharbouche and Janah v Embassy of Sudan, and Libya  EWCA Civ 33
 ZZ (France) v SSHD  QB 1136,  QB 820
 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  EWHC 3695 (Admin).
 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  1 QB 127;  3 CMLR 44
 Data Retention Directive (2006/24/EC), adopted in the wake of the July 2005 terrorist attacks in London.
  2 CMLR 37,  ECR I-593
 SSHD v Davis and others  EWCA Civ 1185, per Lord Justice Lloyd Jones §115
 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
 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.
 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.
 R (AB) v Secretary of State for the Home Department  EWHC 3453 (Admin)
 EU Law After Lisbon, eds Biondi, Eeckhout, Ripley, OUP 2012, Chapter 7 The Charter of Fundamental Rights p. 179