Why the UK should embrace the EU Charter of Fundamental Rights

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LEGAL RESEARCH PAPER SERIES November 2014

FUNDAMENTAL RIGHTS NOT EUROSCEPTICISM:

WHY THE UK SHOULD EMBRACE THE EU CHARTER

SIONAIDH DOUGLAS-SCOTT UNIVERSITY OF OXFORD

Submitted for publication in Hodson, Wicks and Ziegler, The UK and European Human Rights: A Strained Relationship (Hart 2015)

The full text of this paper can be downloaded without charge from the Social Science Research Network electronic library at:

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An index to the working papers in the University of Oxford Legal Research Paper Series is located at:

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FUNDAMENTAL RIGHTS NOT EUROSCEPTICISM: WHY THE UK SHOULD EMBRACE THE EU CHARTER

Sionaidh Douglas-Scott University of Oxford

[Paper delivered at the conference ‘The UK and European Human Rights - A Strained Relationship?’ at the University of Leicester 2014, and submitted for publication in Hodson, Wicks and Ziegler ‘The UK and European

Human Rights: A Strained Relationship’ (Hart 2015)] A. INTRODUCTION The UK evinces a certain amount of scepticism for both human rights and for Europe. Lord Mance remarked in a recent speech that, ‘the European flag does not fly over Whitehall buildings (which happen to include our Supreme Court), as it does in other European capitals.’1 Taken together, the combination of human rights and Europe can become toxic for certain sections of British society. There has been much publicity about the plans of a Conservative government to repeal the UK Human Rights Act,2 should they be elected with a majority at the next general election. Such a move would considerably change the human rights landscape in the UK, and possibly jeopardise the UK’s membership of the Council of Europe. However, should the Human Rights Act be repealed, another European Human Rights Charter would still remain in force in the UK - the EU Charter of Fundamental Rights. Perhaps, unsurprisingly, this instrument has also come under attack – for example, the same document that threatens to repeal the Human Rights Act, also states that ‘[we] are clear that our relationship with the EU will be renegotiated in the next parliament, and if there is anything in that relationship which encroaches upon our new human rights framework, then that is something it will be open for us to address as part of the renegotiation.’3 A more direct attack was made on the Charter by the 2014 recommendation of the House of Commons European Scrutiny Committee that legislation be passed by the UK Parliament disapplying the Charter in the UK.4 The adoption of such legislation would place the UK in breach of its obligations under EU law, and open to financial penalties. However, in the absence of a UK withdrawal from the EU (which may also be sought in due course, although could be a long drawn out process5) legislative disapplication of the EU Charter, and repeal of the Human

1 Lord Mance, ‘Destruction or Metamorphosis of the Legal Order?’ paper given at the World Policy Conference, Monaco, 14 December 2013, accessible at http://www.nottingham.ac.uk/hrlc/documents/specialevents/lord-mance-speech-131214.pdf 2 The report which details these plans, ‘Protecting Human Rights in the UK’ may be accessed at: https://s3.amazonaws.com/s3.documentcloud.org/documents/1308198/protecting-human-rights-in-the-uk.pdf 3 Ibid. 4 House of Commons European Scrutiny Committee 43rd report “The application of the EU Charter of Fundamental Rights in the UK: a state of confusion” (HC 979), (hereafter ‘The application of the EU Charter’). 5 The procedure whereby a state may choose to leave the EU is set out in Art 50 TEU, and is long and complex.

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Rights Act, may be embraced by those seeking to remove European influence from British human rights law. This article considers the impact of the Charter in the UK, arguing that the European Scrutiny Committee is misguided in its call for its disapplication. Much of the argument in the Committee’s report targets a lack of clarity in certain aspects of the Charter, including a fear that it could be used to extend EU competences. The report also expresses some frustration that the UK’s so-called ‘opt-out’, in Protocol 30 Lisbon treaty, is in fact incapable of operating as such, despite the great claims made for it by some politicians at the time of its drafting. However, I argue that, while there are some uncertainties in the Charter’s application, these are no greater than those applying in human rights law generally, and CJEU caselaw is in any case clarifying this law. On the other hand, we should be clear that the alternative of disapplying the Charter in the UK would lead to far greater legal uncertainty and also expose the UK to large fines for breaching EU law. But crucially, what the Committee report also ignores is the important protections and safeguards that the Charter offers against an overreaching EU – safeguards which have become visible in cases such as Digital Rights Ireland,6 in which the CJEU invalidated a whole EU measure for its failure to comply with the Charter. The last section of this article considers the Committee’s recommendation as a part of a broader euroscepticsm about fundamental rights, both within the UK and in the EU more generally. B. THE UK AND THE EU CHARTER: A TWISTED AND TORMENTED RELATIONSHIP? 1. The importance of a written Bill of Rights Why should there be animosity toward the EU Charter? The Charter became legally binding on 1 December 2009,7 nine years after it was first declared by EU Institutions. It is undeniable that both the CJEU and national courts are now frequently confronted with arguments based on the Charter and have no choice but to work with fundamental rights aspects of EU law. Eurosceptics have woken up to the existence of the Charter. Indeed, in some ways, the Charter provides a stronger source of human rights than the Human Rights Act, and there are at least three reasons why the Charter may appear more threatening as a fundamental rights instrument than the Human Rights Act. First, the Charter provides an additional source of human rights law, as it importantly includes rights that are not in the European Convention on Human Rights (ECHR). Second, even where the Charter makes reference to rights similar or identical to the ECHR, under Article 52(3) Charter, it may set higher standards than in the ECHR. Thirdly, when the Charter applies, it can be directly enforced in national courts and any incompatible national law set aside due to the supremacy of EU law, in contrast to the situation under the Human Rights Act, in which parliamentary sovereignty is protected and the courts may only issue a declaration of incompatibility, rather than a remedy. For these reasons, it provokes fear in the hearts of some. However, a resolution to pass legislation to disapply the Charter is surely an extreme 6 case C-293/12 Digital Rights Ireland [2014] ECR 000. 7 ie with the coming into force of the Lisbon treaty.

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measure, and further investigation is necessary to probe the motivations for such a move. 2. Earlier history of the Charter Fundamental rights were not a pressing concern in the early EEC. The original EEC Treaty was an economic treaty, of limited ambitions, which aimed to create a common market. There were no sections on fundamental rights because the EEC founders did not think this relevant to a treaty with mainly economic aspirations. The ECHR was also, of course, already in existence and probably thought sufficient to operate as a ‘Bill of Rights’ for Europe. The scope of the EU Treaties, have, over time however, come to extend far beyond purely economic matters. EU law today covers many fields capable of having a human rights dimension. Cases have been heard by the CJEU concerning eg equal treatment of transsexuals (Grant), economic sanctions on possible terrorist activities (Kadi I and Kadi II), and the issue of whether one has an online right to be forgotten (Google Spain).8 The increased competence of the EU has ensured that a breach of fundamental rights by the Union is not merely a theoretical possibility. However, in spite of this, the EU only proclaimed its own Charter of Fundamental Rights in December 2000. Notably, the Union also continues to lack a general legislative competence in the field of human rights.9 The Charter was ‘solemnly proclaimed’ by the European Parliament, Commission and Council of Ministers at Nice in December 2000. The Cologne European Council in 1999 had set out the main objective for a Charter, which was that ‘the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident’. 10 This was not such a bad objective, given that protection of fundamental rights for the first 40 years of European integration developed through the case law of the European Court of Justice in a somewhat ad hoc, and certainly complicated way, so it was uncertain which rights EU citizens possessed, and when they could enforce them - a fact which surely made the case for the EU Charter all the more necessary. However, from the start, the British Government’s attitude to the EU Charter was hardly positive. In October 2000, Keith Vaz, then minister for Europe, remarked of the Charter that: ‘This is not a litigator's charter. Nobody can sue on the basis of it.’ He famously claimed that it had no more legal effect than a copy of the Beano.11 And in spite of the fact that the Charter was drafted from the outset ‘as if’ incorporated into the treaties, the Government made clear that it would veto any attempt to make it legally binding. Tony Blair, for example, stated in November 2000 that ‘The Charter is simply a statement of policy and the UK is not the only member state to oppose something of a binding legal nature.’12 There was surely something ironic about this pronouncement: support being given by the UK government for the Charter only if it had no effect.

8 Case C-249/96 Grant v South West Trains [1998] ECR I-621; Case C-402/05 Kadi v Council and Commission [2008] ECR I-6351; Case C-131/12 Google Spain, Google v Agencia Espanola de Protection de Datos [2014] ECR 000. 9 Although Article 19 TFEU constitutes what is, in essence, a general competence for equality legislation. 10 See European Council Decision on the drawing up of a Charter of Fundamental Rights of the European Union, available at http://europa.eu.int/council/off/conclu/june99/june99_en.htm. 11 ‘European summit Charter on rights “no more binding than the Beano’”, Telegraph, 14 October 2000. 12 Available at http://europa.eu.int/comm/justice- home/unit/charte/en/charter03.html.

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In any event, the Charter had no binding legal effect in EU law until the Lisbon Treaty came into force in 2009. It was 6 years before the Court of Justice itself, as opposed to its Advocates General, or the Court of First Instance (as it then was), even referred to the Charter at all – it first being mentioned in Parliament v Council.13 However, thereafter the Court’s references kept coming. Yet the UK Government’s attitude did not become more benign toward the Charter. 3. The UK and Polish Protocol At a European Council meeting in June 2007, then Prime Minister Tony Blair claimed that he had secured a legally binding ‘opt-out’ from the EU Charter in the Lisbon Treaty, through a joint UK and Polish Protocol to the Treaties. ‘It is absolutely clear’, stated Mr Blair in response to questions in Parliament, ‘that we have an opt-out from . . . the charter’.14 This document takes the form of Protocol 30 Treaty of Lisbon and reads as follows: 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 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. 2. 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. Article 2 To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom. It has long been argued that that the so-called ‘opt-out’ from the Charter is no such thing.15 But it is only since the Lisbon Treaty entered into force on 1 December 2009 and the Charter became legally binding that the point has become more significant. Yet, as the European Scrutiny Committee states in its 2014 report, there appears to be some confusion as to exact status of the Charter in the UK. The Committee’s inquiry and report was prompted by a sequence of events in November of 2013, in turn related to an earlier case, which will now be detailed. 4. The Charter in the courts Further back, in 2010, in the UK High Court case of R (Saeedi) v Secretary of State for the Home Department,16 Cranston J held that, given the wording of the Polish and UK 13 Case C-540/03 Parliament v Council (Immigration Policy) [2006] ECR I-5769, para 38. 14 Hansard, 25 June 2007, HC, cols 37 and 39. 15 See, e.g. the evidence given to the HL EU Committee, 10th Report of Session 2007–08: ‘The Treaty of Lisbon: an Impact Assessment’, vol. I: Report, 13 March 2008, HL Paper 62-I. 16 R (Saeedi) v Secretary of State for the Home Department [2010] EWHC 705 (Admin).

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Protocol, the Charter ‘cannot be directly relied on as against the United Kingdom, although it is an indirect influence as an aid to interpretation’. However, on appeal, the Government no longer sought to support such a finding. The Home Secretary accepted that, ‘in principle, . . . fundamental rights set out in the Charter can be relied upon against the United Kingdom, and submits that the Judge erred in holding otherwise . . . The purpose of the Charter Protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect’.17 This would appear to be an important concession that Protocol 30 did not function as an ‘opt-out’. This interpretation was confirmed when Saeedi was referred to the ECJ (where it became the NS case). In NS, the ECJ held (at para 119): ‘ ... Protocol (No 30) does not call into question the applicability of the Charter in the United Kingdom or in Poland, a position which is confirmed by the recitals in the preamble to that protocol.’18 One might have thought that the matter was settled. However, if we fast forward to 2013, we find Mostyn J in some confusion in another UK High Court case, R (AB) v Secretary of State for the Home Department, in which he stated: ‘ . . . I was sure that the British government had secured . . . 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.’ However Mostyn J went on to state that, as a result of the judgement of the ECJ in NS, ‘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.’19 This particular statement helped reignite the debate as to whether Protocol No 30 functions to exclude the application of the EU Charter within the UK. However, Mostyn J’s comments were themselves surprising to those who never believed that the UK had secured an opt-out from the operations of the Charter. For example, the House of Commons European Scrutiny Committee itself, in its Third Report 2007, stated clearly at paragraph 38: ‘It is clear that the Government accepts that the Charter will be legally binding, and it has stated that the Protocol is not an opt-out. Since the Protocol is to operate subject to the UK's obligations under the Treaties, it still seems doubtful to us that the Protocol has the effect that the courts of this country will not be bound by interpretations of measures of Union law given by the ECJ and based on the Charter.’20 In the 2012 case of Rugby Football Union v Consolidated Information Services the UK Supreme Court confirmed at paras. 26-28 that the Charter takes effect in national law, ‘binding member states when they are implementing EU law’.21 5. Contradiction and confusion: European Scrutiny Committee 2014 report Notwithstanding its 2007 report, confusion about the Charter’s status led the European Scrutiny Committee to comment on ‘an urgent need for clarification’ and to conduct its enquiry and publish its 2014 report. Contradictory statements from successive Governments about whether Protocol 30 was an opt-out had contributed to widespread confusion about its purpose.

17 R (Saeedi) v Secretary of State for the Home Department [2010] EWCA Civ 990. 18 Joined Cases C-411/10 N.S. v Secretary of State for the Home Department and C-493/10 M.E. and Others [2011] ECR 000. 19 R(AB) v Secretary of State for the Home Department [2013] EWHC 3453. 20 European Scrutiny Committee, Third Report of Session 2007-2008, ‘EU Intergovernmental Conference: Follow-up Report’, HC 16-iii. 21 Rugby Football Union v Consolidated Information Services [2012] UKSC 55.

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In addition, the coalition Government has done little to explain the effect of the Charter. Indeed, whilst the Secretary of State for Justice, Chris Grayling, was correct to say in the debate in the House of Commons in November 2013 that Protocol 30 was not an opt-out, he continued:

‘Of course [the Charter] now does have legal force in European law. The issue is about whether that legal force extends to UK law. We regard that matter as being exceptionally important. If there were any question of that linkage being made, we would have to take steps on it. [...] I am absolutely clear that the Charter should not apply in UK law, and we would take serious action if there were any suggestion that it could do.’22

Such a statement denies the supremacy of EU law and potentially places the UK in breach of it. The European Scrutiny Committee’s 2014 report was clear that UK had not secured an opt-out, but did stress that many of the Charter’s effects were unclear. It argued that the UK government should set out its legal position as regards the correct interpretation of the Charter. While the UK government is apparently planning to intervene in cases concerning the Charter, in order to clarify its scope of application in particular, the Committee did not believe that this is likely to be successful. Therefore it concluded:

‘in particular in relation to the field of application, and the certainty that the jurisdiction of the ECJ will range across an even wider field with increasingly unintended consequences, we recommend that primary legislation is introduced by way of amendment to the European Communities Act 1972 to exclude, at the least, the applicability of the Charter in the UK. This is what most people thought was the effect of Protocol 30. They were wrong. It is not an opt-out, but for the sake of clarity and for the avoidance of doubt we urge the Government to amend the European Communities Act 1972, as we propose.’ (italics added).

In summary therefore: the European Scrutiny Committee recommended in its April 2014 report that the UK pass an Act of Parliament to disapply the EU Charter of Fundamental Rights in the UK. Their main criticism as to the Charter was the state of confusion as to its effect in UK law. In particular, they expressed concern as to the scope of the Charter’s application, its distinction between rights and principles, its ability to go beyond the ECHR, and its capacity to have horizontal application. A continued concern of the Committee seems to be a suspicion of the ECJ’s willingness to develop the Charter in a catholic and expansive manner. I gave evidence to the European Scrutiny Committee23 in preparation for its 2014 report and I believe they are wrong in their conclusions, for reasons I will now discuss.

22 HC Deb, 19 November 2013, (col. 1091). 23 When I gave my opinion on the feasibility of primary UK legislation disapplying the Charter, I was met with very short shrift: Professor Douglas-Scott: (‘Why would you want to do this?) To disapply those very constraints that operate on the European Union, which are ways of lessoning the competences of the EU and keeping a break on it through the application of fundamental rights, strikes me as a rather curious thing to do.’ Chair: I will pass on to the next professor at that point.

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There are three major problems with their suggestion. 1. First, although the Committee rightly identify confusion as to some aspects of the Charter’s application in the UK, their recommendations would not remedy this. Indeed, the Committee’s approach risks creating further confusion. 2. Their suggestion is particularly troubling, in that it recommends that the UK conspicuously breach EU law, risking large fines. 3. Most importantly, human rights based arguments militate against the disapplication of the Charter. The next sections of this article considers each of these points in turn. C.CONFUSION REGARDING THE CHARTER’S APPLICATION? Is the Charter a dangerously confusing document? I argue that it is not, and consider the Committee’s contentions under the following headings. 1. Scope of application of the Charter Article 51(2) Charter provides 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.’

Nonetheless, the Committee was particularly concerned that the Charter’s potential scope was far too broad, thus risking interfering with national competences, and a good part of their investigation was concerned with this point. Yet the Charter is clearly not an instrument of limitless general review. Article 51(1) Charter specifies that it is ‘addressed to the institutions… of the Union… and to the Member States only when they are implementing Union law’ (italics added). This, in turn, begs the question of what exactly is covered by member states in the act of implementing EU law. In this context, we should note that the Charter’s Official Explanations24 go further than Art 51(1), stating that the Charter is ‘binding on Member States when they act within the scope of Union law’ (italics added), citing previous caselaw of the CJEU to that effect. Åkerberg Fransson But there is more than just the wording of Art 51(1), for ECJ caselaw now exists. The leading case on the interpretation of Art 51(1) is now Fransson, in which the Swedish referring court asked the ECJ whether the principle of double jeopardy, in Art 50 Charter, could be used to set aside domestic law. Fransson had provided false information to the revenue authorities, and had already incurred an administrative penalty, but could additionally face criminal prosecution for the same misconduct. The (transcript of oral evidence available at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/european-scrutiny-committee/the-application-of-the-eu-charter-of-fundamental-rights-in-the-uk/oral/5574.pdf) 24 Official Explanations relating to the Charter of Fundamental Rights OJ, 2007/C 303/02.

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Swedish court was uncertain whether the Charter applied, as it was unclear whether the Swedish dual system of tax penalties fell within the ‘implementation of Union law’. However, EU law was clearly of some relevance in that Directive 2006/112 entitles States to ‘impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion.’ Was this sufficient to bring the Swedish tax law within the scope of the Charter? The ECJ decided that it was. It highlighted that provisions of EU law require member states to collect VAT and prevent VAT evasion, and noted that any shortcoming in the domestic collection of VAT affects the EU budget, and so, even if the Swedish legislation was not designed to transpose Directive 2006/112, its application penalised the infringement of that Directive and, as a result, the Charter applied.25 Fransson has been criticised by those who think it broadens the scope of application of the EU Charter. However, we should not necessarily jump to the conclusion that Fransson illustrates an expansive approach to EU competences. As Paul Craig has pointed out:

‘The determinative issue is therefore not whether the Swedish law in issue in Åkerberg Fransson was itself enacted to implement the VAT directive, but whether it was being used to implement the obligations flowing from the directive, which it clearly was. The contrary conclusion entails the following untenable proposition: the Charter would be triggered if a Member State chose to implement the relevant obligations by, for example, enacting discrete legal provisions dealing with the enforcement obligation solely in relation to the EU VAT directive, but it would not be applicable if the Member State chose to meet the obligations through application of existing enforcement rules to EU VAT, even though the content of the rules is the same. Nor with respect do I agree with the view that the interaction between the national law and EU law was in some way merely incidental in Åkerberg Fransson. VAT is a primary source of EU revenue, and the penalty regime for evasion is therefore central to that revenue base.’26

We may also note that the UK did not intervene in Fransson, an option open to it if it wished to contest the application of the Charter. The UK Government has also accepted Fransson as a legitimate decision, in contrast to the European Scrutiny Committee’s report, which states: ‘We question the legitimacy of the ECJ’s approach in Fransson and . . . and disagree with some of the expert evidence we took on this point.’27 In any event, in more recent caselaw, the ECJ has taken a more limited approach to the scope of the Charter. The Siragusa case,28 subsequent to Fransson, illustrates this. Mr. Siragusa had built on a protected site without planning permission and was required to destroy his buildings as a result. He argued that this violated his property rights, and a reference was made to ask the ECJ whether the national decision breached Article 17 Charter, the right to property. According to the ECJ, the Charter could not be invoked, as there were insufficient links to EU law. Siragusa relied on several different EU measures, but the Court ruled that none of these were sufficient to provide the required link with EU law, as none was ‘intended to implement’ EU law.

25 The Court held that Art 50 Charter (double jeopardy principle) did not in this case preclude Sweden from imposing a combination of administrative tax penalties and criminal penalties. 26 Paul Craig, Submission of Evidence to European Scrutiny Committee January 2014 (second submission). 27 ‘The application of the EU Charter’ at 57. 28 Case C-206/13 Siragusa [2014] ECR 000.

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None of the EU measures referred to by Siragusa imposed specific obligations to protect the landscape, even though landscape protection is referred to in several EU legal instruments.29 Lack of references to the Charter in Eurocrisis We may also find other evidence of the ECJ’s cautious approach to the Charter’s scope. For example, there is the lack of references that the CJEU has made to the Charter in the context of the Eurozone crisis. The scope and impact of the measures taken by the EU in its attempts to solve this crisis have been formidable - for example, ‘conditionality’ clauses in bailout agreements. Many of these measures appear to bring the EU into conflict with both human rights and its own treaties. For example, those clauses which impose restrictions on collective bargaining, and thus show little concern for freedom of association recognized in the ECHR and EU Charter of Fundamental Rights. Yet the ECJ has refused to rule on whether such austerity measures breach the Charter. This was notable in the Pringle case,30 where the Court held that the ESM treaty did not breach the principle of effective judicial protection under Article 47 Charter because the Member States were not implementing Union law, within the meaning of Article 51(1) Charter. As Barnard suggests,31 however, ultimately, such an approach, with crisis related measures in the slow lane, is not legally, politically or practically sustainable. So the European Scrutiny Committee’s assumption that the Court’s jurisdiction regarding the Charter will apply to ‘an ever wider field with increasingly unintended consequences’ is not supported by the facts. It is further notable that in many other cases, arguments alleging the incompatibility of national measures with the Charter have been dismissed by the ECJ, often in summary fashion or by reasoned order.32 It therefore cannot be argued that, contra Art 51(2), the Charter is being used to create new competences for the EU, and in conclusion, the prospect of an activist ECJ pushing for a broader competence for fundamental rights is rather slim. 2. Relationship between the Charter and the ECHR Another factor bothering the European Scrutiny Committee appears to be the Charter’s ability to transcend the ECHR. The Charter does this in providing an additional source of human rights law – by including rights that are not in the ECHR, and also in providing (in Article 52(3) Charter) that, even where the Charter’s rights are similar in content to those of the ECHR, that it can set higher standards than the ECHR. I argue, however, that the Charter is to be welcomed in presenting a more contemporary, relevant catalogue of fundamental rights than the mid century ECHR. Some of the new rights in the Charter are specifically introduced to deal with contemporary problems such as protection of personal data, given the proliferation of 29 For example Directive 2011/92 on environmental impact assessment and Directive 2003/4 on environmental information. 30 The Pringle case concerned the European Stability Mechanism (ESM) Treaty. However, many other of the Eurocrisis measures, such as the 2011 measures colloquially known as the ‘Six-Pack’, are measures of EU law. And yet challenges brought on the basis of the Charter have not been accepted. 31 Catherine Barnard, ‘The Charter, the Court and the Crisis,’ University of Cambridge Faculty of Law Research Paper No. 18/2013. 32 e.g. Case C-27/11 Vinkov, judgment of 7 June 2012 nyr, para 59, and some non-reported orders of the ECJ, such as Case C-339/10 Estov, Order of 12 November 2010, para 14; Case C-457/09 Chartry, Order of 1 March 2011, para 25; Case C-314/10 Pagnoul, Order of 22 September 2011, para 24.

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information about persons in the EU,33 or new innovations in bioethics, such as cloning.34 The Charter is also innovative in containing, in the same instrument, both economic and social rights along with the more traditional civil and political rights, which has never been done before in an international human rights instrument. In this way the Charter presents in sharpest relief the indivisibility of human rights. Yet is the existence of a larger body of rights in the Charter a fact to be condemned? The ECHR reflects the time and circumstances of its drafting, and things have moved at a very rapid pace since then. Why should the efforts of the Charter to deal with pressing contemporary issues in biotechnology be regretted? Is the acknowledgement of social rights to be lamented, particularly when the Charter hedges them with the sop to eurosceptics of their limited protection (ie only ‘in accordance with national laws and practices’) and they may well be protected only as ‘principles’ rather than ‘rights’ (see below)?35 Second, although Art 52(3) states that the Charter can set higher standards than the ECHR, it also specifies that, in so far as its rights correspond to those in the ECHR, the meaning and scope of those rights ‘shall be the same as those laid down by the said convention’. In Dereci36 and J McB,37 the CJEU added the proviso that the meaning and scope of those rights should be the same as that interpreted by the caselaw of the ECtHR. This approach increases the coherence of European fundamental rights law. We might also add that, given that the EU will accede to the ECHR,38 thereby exposing EU law to the full scrutiny of the ECtHR, it might be desirable for the CJEU to take full account of the ECHR, in order to diminish a future risk of having to accept a reversal of case law. 3. The distinction between rights and principles is unclear. The Committee argues that the Charter’s distinction between rights and principles is unclear. This is true. Article 52(5) Charter provides that: ‘The provisions of this Charter which contain principles may be implemented by legislative and executive acts… They shall only be judicially cognizable in the interpretation of such acts and in the ruling on their legality.’ In other words, rights which are ‘principles’ are deemed incapable of creating any directly enforceable rights. Rather unhelpfully, Art 52(5) does not indicate which provisions are ‘rights’ and which are ‘principles’. It is often suggested that ‘principles’ refer to economic, social and cultural rights,39 although only three provisions in the Charter explicitly use the

33 Article 8 Charter states that ‘Everyone has the right to the protection of personal data concerning him or her’. The Schengen Information System or Europol collect information on individuals. 34 Article 3(2) Charter (Right to the integrity of the person) states that inter alia the following must be respected: ‘(b) the prohibition of eugenic practices, in particular those aiming at the selection of persons; (c) the prohibition on making the human body and its parts as such a source of financial gain; (d) the prohibition of the reproductive cloning of human beings.’ 35 See for example, Article 30 Charter (Protection in the event of unjustified dismissal): ‘Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices.’ In this case, the acknowledgement of the right is heavily tempered with the obligation for it to operate within the frame of national laws and practices. 36 Case C-256/11 Dereci [2011] ECR 000, para 70. 37 Case C-400/10 J McB v LE [2010] ECR 000, para 53. 38 Article 6(2) TEU. 39 See, further on this, S Douglas-Scott, ‘The EU and Human Rights after the Treaty of Lisbon’ (2011) 11 HRLR 645, 652.

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word ‘principle’.40 The Charter’s accompanying explanations are of little help – especially as they note that some Articles may contain both rights and principles.41 This leaves scope for the CJEU to resolve in its case law. Although the distinction between rights and principles was an important argument in the Association de Médiation Sociale (AMS)42 case, the Court did not in AMS follow the reasoning of AG Cruz Villalón who considered whether Art 27 should be considered a ‘right’ or ‘principle’ (and concluded that it should be understood as a principle but that did not prevent the invocation of the Article). The ECJ, however, did not discuss the distinction between rights and principles at all. So the distinction remains obscure, and it represents a confusion the Committee rightly regrets. 43 However, this confusion arises from the supranational nature of the EU and the differing perceptions of rights among some members of the Charter’s drafting team. Indeed, it seems that the distinction was a matter that the drafters of the Charter could not agree upon, and deliberately left to the Court to decide.44 4. Horizontal effect The Committee was also concerned about the Charter’s potential horizontal effect, stating: ‘we are concerned, again, by the legal uncertainty that surrounds this principle. Private individuals and bodies (including employers and their employees) may as a consequence find it difficult to predict whether they may assert a legal right or be vulnerable to legal liability because of the Charter’s application.’45 Given that Article 51(1) limits the legal effect of Charter rights to EU institutions and bodies, and to member states only when implementing Union law, it might be thought that the Charter could not bind private parties. However, some Charter Articles strongly suggest horizontal effect. For example, Article 23 requires equality to be ensured between men and women ‘in all areas’ and Article 24(2) covers actions relating to children ‘whether taken by public authorities or private institutions’.46 An argument can also be mounted that if the Charter is ‘addressed to the institutions and bodies of the Union’ this includes the Court of Justice itself, and the question of horizontal effect is thereby left to the Court to decide. Such an approach would follow that of the UK’s Human Rights Act, which imposes obligations on public authorities, but leaves room for the courts, who are themselves public authorities under section 6(3)(a) of the Act, to decide whether and how to give horizontal effect. In Kücükdeveci47 the ECJ held that some general principles of EU law can have horizontal effect. However, there is no specific authority on the horizontal effects of the Charter. Again, the AMS case provided an opportunity that was not taken up by the European Court. In AMS, AG Cruz Villalon found that the potential for horizontal effect differed from right to right. Given that the right at issue - Article 27 Charter - itself referred to the right being granted ‘within the undertaking’ this would imply at 40 Articles 23, 37 and 47. 41 For instance, Articles 23, 33 and 34. 42Case C-176/12 Association de Médiation Sociale [2014] ECR I-0000. 43 Also, in the earlier Case C-282/10 Dominguez [2012] ECR 000, AG Trstenjak interpreted Article 31(2) CFR on paid annual leave as a right rather than a principle, but the Court did not rule on the matter. 44 C Ladenberger, FIDE 2012 – Institutional Report on ‘Protection of Fundamental Rights post-Lisbon – The interaction between the Charter of Fundamental Rights, the ECHR and National Constitutions’ 32. 45 ‘The application of the EU Charter’ at 56. 46 Emphasis added in both cases. 47 Case C-555-07 Seda Kücükdeveci v Swedex GmbH [2010] ECR I- 365.

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least some legal obligations for companies. He therefore concluded that it could be relied upon in principle between private parties. However, in its rather short judgment, the ECJ did not follow his reasoning and left the law on the horizontal effect of the Charter somewhat ambiguous. 48 However, in the 2013 national case of Benkharbouche,49 EU Charter rights were found actionable in a UK dispute between private parties. Therefore, both the EU and national caselaw has implications for the application of the EU fundamental rights between private parties, indicating that the Charter has potential to operate in the private sphere. The Committee was clearly uneasy with horizontal effect of Charter rights and the burden they felt this could place on private individuals and business, concluding however, ‘We acknowledge that the uncertainty of horizontal application of human rights may be a common feature of human rights frameworks in general’.50 To be sure, the notion of horizontal effect can be controversial when applied to fundamental rights. Rights are traditionally justified as individual protections against the state, but if applied instead as obligations on citizens then they are liable to appear as intrusions into private liberty. However, against this, it may be argued that some private entities are just as capable as the state of wielding power in a way affecting the rights of citizens, and so horizontal effect of fundamental rights provides protection against this. The idea of indirect effect of human rights provisions is also accepted in some legal systems outside of the EU. The South African Constitution of 1996 and its concept of mittelbaredrittwirkung might be cited here, namely that human rights have an indirect impact on the development of all jurisprudence by means of a constitutional requirement that ‘when developing the common law...every court must promote the spirit, purport and objectives of the Bill of Rights’.51 Also of relevance is the German Constitutional Court’s Luth authority,52 in which it held that fundamental rights go beyond a defensive function (protecting the citizen against the State) to establish an objective order of values. Therefore, a horizontal effect of fundamental rights, binding on private parties, is clearly recognised in many constitutional orders, and indeed establishes an important protection against the abuse of power. 5. Title IV Charter and the UK ‘opt-out’ The UK’s concerns over the Charter have been most acute in relation to these rights of a social or economic nature. Title IV of the Charter concern rights of Solidarity and covers Arts 27-38 Charter. It contains, for example, Art 30: ‘Protection in the event of unjustified dismissal,’ and Art 28 on the right to collective bargaining, ‘including strike action’. These rights were of particular concern to the UK (there is no explicit right to strike under UK domestic law) and have been perceived as a threat to the UK’s flexible labour markets. This is where the UK’s attempted ‘opt-out’ becomes especially pertinent. If any part of Protocol 30 is capable of functioning as an ‘opt-out’ then it is, surely, Art 1(2), which specifically refers to Title IV, and intends that ‘for the avoidance of doubt’ that nothing in Title IV shall create justiciable rights in the UK. But can it function in this way?

48 Ibid. See also Case C-356/12 Wolfgang Glatzel v Freistaat Bayern [2014] ECR I-000. 49 Benkharbouche v Embassy of the Republic of Sudan [2013] UKEAT. 50 ‘The application of the EU Charter’ at 56. 51 Sidney Kentridge QC, ‘Lessons from South Africa’ in Markesinis (ed.) The Impact of the Human Rights Bill on English Law (OUP, 1999). 52 BVerfGE 7, 198 I. Senate (1 BvR 400/51) Lüth-decision.

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To date, there is no clear authority on the status of Art 1(2) from the CJEU. In the NS case, the CJEU held that ‘Since the rights referred to in the cases in the main proceedings do not form part of Title IV of the Charter, there is no need to rule on the interpretation of Article 1(2) of Protocol (No 30).’53 Many commentators on the Protocol have suggested that Art 1(2) merely confirms the distinction between rights and principles in Art 52(5). However, as we have seen, Article 52(5) does not clearly distinguish which provisions are to be interpreted as ‘rights’ and which as ‘principles’. Therefore, it cannot be said with certainty that Title IV contains only principles, although it does appear to confirm that those provisions in Title IV that are principles are not justiciable. But this would be the case anyway under the Charter. However, an important question is whether Art 1(2) Protocol 30 might reach beyond Art 52(5) Charter and succeed in establishing that even provisions of Title IV which are classified as rights are not justiciable unless the UK has provided for them in national law? For example, the Art 28 right of collective bargaining and strike action presents itself as a right not a principle, but it could be argued that the effect of Art 1(2) Protocol is to ensure that it is not justiciable. However, Art 28 Charter itself provides that workers have these rights ‘in accordance with Union law and national laws and practices’. A provision such as Art 28 must already be the subject of national legislation in order to be justiciable. UK law only permits strikes under limited conditions, and there is no ‘right to strike’ as such. So it would appear that, even according to the provisions of the Charter itself, the right must be grounded in national law and practices, so Art 1(2) Protocol adds little in this case. So the Protocol was not necessary to protect UK established practice. There are already enough ‘safeguards’ in the Charter, whose provisions are unable to override settled principles of UK labour law, social security or employment policy. In any case, further EU treaty provisions also limit the potential of EU legislation on such matters as freedom of association, the right to strike, and with regard to member states social welfare systems.54 However, an approach that stresses the limited effect and efficacy of Title IV and of the Charter’s socio-economic rights misses something important. Such rights are essential for a life of dignity, security and freedom, and are very much linked with other human rights, a fact recognised by the Charter’s structure that houses them all within one document For example, it is impossible for people who are homeless to vote, and very hard for those who are ill and without access to healthcare to actively participate in society. Human rights thus comprise an integrated framework of the crucial elements for human flourishing. A human rights structure built on only a partial achievement of this framework will produce inadequate results and engender public disquiet. 6. European Scrutiny Committee ignores importance of general principles of law

53 Case C-411/10 N.S. v Secretary of State for the Home Department [2011] ECR 000. 54 Article 153(5) TFEU expressly precludes EU interference with pay, the right of association, the right to strike and the right to impose lock-outs. Article 153(4) provides that ‘no social policy provision of the EU shall affect the right of a member state to establish its own social welfare system or to affect the financing thereof.’

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The Committee’s conclusion ignores a crucial element of EU fundamental rights law – the existence of general principles of law independently of the Charter. If the Charter were disapplied in the UK, general principles of law would continue to apply, and this would create confusion far greater than anything existing under current arrangements. Article 6(3) TEU states that fundamental rights as guaranteed by the ECHR and ‘as they result from the constitutional traditions common to the Member States’, constitute general principles of EU law. So, although the Charter was said to be necessary to make these preexisting rights more visible, it does not replace them. This residual system of human rights in the EU should by no means be under-estimated. Given the absence of any specific EU Bill of Rights until 2000, protection of fundamental rights for the first 40 years of European integration developed through the case law of the Court of Justice, which undoubtedly played a very important role, and there exists a developed body of still binding jurisprudence. Although the Charter now seems to have become the first point of reference for fundamental rights in the EU, general principles are not obsolete. In the Fransson and NS judgments, the Court stated that the scope of the Charter and general principles is the same. The Committee recommends disapplication of the Charter but not general principles in the UK. This will not remedy the uncertainties the Committee finds with the Charter. In point of fact, it was the scattered and ad hoc nature of general principles that rendered the case for a codified Charter so compelling.55 All sorts of problems would arise from a disapplication of the Charter but not of general principles in the UK – not least, the question of whether CJEU caselaw specifically focussed on the Charter also applied to general principles. To be sure, the Committee could have urged that the UK should disapply both the Charter and the general principles within the UK. But disentangling general principles from the operation of EU law at large would have been difficult in the extreme. In this way, EU law is curiously like the uncodified British Constitution, which Dicey vaunted as so much more efficacious than ‘continental’ declarations of rights, because of its enduring nature. According to Dicey, suspension of the constitution (in itself almost impossible to achieve in the case of Britain’s largely unwritten Victorian Constitution) could not remove the rights of the Englishman because they were so embedded in the common law, and upheld by remedies in the courts. For Dicey, nothing short of a complete social revolution would succeed in removing them: ‘The matter to be noted is, that where the right to individual freedom is a result deduced from the principles of the constitution, the idea readily occurs that the right is capable of being suspended or taken away. Where, on the other hand, the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one which can hardly be destroyed without a thorough revolution in the institutions and manners of the nation’.56 The same might be said of the EU’s uncodified general principles of law. It is hard to imagine how general principles of law could be disapplied in the UK without disapplying most of EU law itself. Indeed, this may be why the Committee abandoned its earlier attempt to disapply both the Charter and EU principles and rights more generally.57 As was pointed out to the Committee, such a broader attempt to

55 See eg evidence of Lord Goldsmith to European Scrutiny Committee 2014 investigation, ‘The application of the EU Charter’ chapter 2. 56 AV Dicey, Introduction to the Study of the Law of the Constitution, 119-120. 57 The earlier draft read as follows: ‘Notwithstanding any provision of the European Communities Act 1972, none of the rights, freedoms or principles referred to in Article 6(3) of the Treaty on European Union, or in the Charter of Fundamental Rights of the European Union, or deriving elsewhere from

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disapply EU rights appeared to apply to all rights, freedoms or principles deriving from the EU Treaties and might even be intended as an opt-out from the entirety of European law. If so, then surely the honest thing would be to state this objective explicitly? Therefore, the conclusion is that the Committee’s recommendation, of adopting legislation to disapply the Charter in the UK, whether or not such legislation includes general principles of law, would only create the greatest possible legal uncertainty, thus abnegating any aspiration of the Committee to reduce confusion. D. UK IN VIOLATION OF EU LAW If the UK adopted legislation disapplying the Charter, it would be in straightforward violation of EU law. The UK cannot unilaterally alter EU law (although as a matter of purely UK constitutional law it might be able to adopt such legislation, although even this is not certain). The Charter imposes obligations on the UK as an EU member state, and the only permissible derogations are those agreed unanimously with all other member states in the formation or amendment of EU treaties and secondary law. If the UK, or any other member state, fails to apply binding EU law, the Commission may bring an enforcement action against that state. It can seek a judgement in the CJEU and ask the Court to impose fines upon the UK under Art 260 TFEU. To date, the UK has never received a fine from the Court of Justice, but if imposed, these fines operate on the basis of a daily penalty with interest, and could be very large indeed. In addition, there would also exist the separate potential, under the Francovich caselaw, for individuals bringing suits in UK courts for breach of EU law in a failure to apply the Charter.58 So the Committee’s recommendation brings with it a very considerable cost risk for the UK. Further, the UK would also risk an action being brought under Article 7 TEU, which allows the EU to suspend the membership rights of a member state where that State is in serious and persistent breach, or there is a clear risk of such breach, of the EU’s common values, which include fundamental rights. Art 7 has not been put into effect to date, and it would be a matter of grave regret if it were to be applied in the case of the UK. Yet the disapplication of EU fundamental rights in the UK represents exactly such a serious and persistent breach of the EU’s most fundamental values. In that case, there would also be some irony – the eurosceptics’ longed for ‘Brexit’, or termination of EU law in the UK, would occur not through an ‘in-out’ referendum but through the means of expulsion from the EU – a humiliating and shameful end to the UK’s relationship with the EU. E. EMBRACING THE CHARTER?

within the EU Treaties, or otherwise determined by the Court of Justice, shall form part of the law applicable in any part of the UK.’ (see ‘The application of the EU Charter’ at 38). 58 Joined Cases C6/90 and C9/90 Francovich and Bonifaci [1991] ECR I 5357.

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Moreover, there are further arguments of a less legalistic kind, which provide a strong reason for the UK to embrace the Charter, rather than to seek to expunge it from the UK. First, and crucially, the Charter provides a bulwark against EU powers. As the scope of EU law has come to extend far beyond purely economic matters, it has become ever more important to have protection against the potentially overreaching powers of the EU. For example, in 1997, with the treaty of Amsterdam, the EU created the Area of Freedom Security and Justice (AFSJ). Within the scope of the AFSJ, the EU adopts many measures not traditionally associated with EU action, including measures on terrorism, migration, visas and asylum, privacy and security, the fight against organized crime and criminal justice. These measures impact directly on human rights and civil liberties. The Charter however, is highly relevant, and able to provide protection for individuals from the EU institutions in these areas. To give just one example: in Digital Rights Ireland59 the ECJ annulled a complete EU measure for its violation of individual privacy rights. This legislation required telecoms companies to retain personal telephone and internet records, with the aim of ensuring that law enforcement authorities could use such records in future investigations. The European Court criticized the sweeping nature of the measure, and held that the directive ‘entails an interference with the fundamental rights of practically the whole European population’. Why should UK citizens lack the protection of the Charter in areas such as these? If we survey other jurisdictions and historical periods, we may see that the need for a human rights document has been quickly appreciated as protection against ever more powerful authorities. There was no Bill of Rights in the original American Constitution, when it was thought that the federal government would be insufficiently powerful to require a bulwark against its powers in the form of guaranteed rights, but one was quickly added, within a few years. Likewise, the necessity of a European Charter has been recognised, and its disapplication in Britain would only exclude British residents from an important bulwark against the misuse of power. The second reason why the UK should embrace the Charter is that the Charter can function to improve the quality of EU legislation and policy. Not only are the courts able to use the Charter to set limits on EU action, but EU officials must work with the Charter in mind from the moment that they begin to formulate policy and legislation. Officials and MEPs have had to take care in drafting EU law to ensure that it complies with Charter rights, a duty clearly recognised in EU law. Therefore, the Charter has helped to improve the quality of EU legislation, in itself no small thing. Third, the EU may perform a particularly important role in the UK. As Lord Mance has recently stated, there are few limits to the dominance of EU law in the UK:

‘One is that there are other constitutional statutes, such as Magna Carta, the Bill of Rights 1989, the Act of Union 1707 and the Human Rights Act 1998, which (it might be argued) cannot themselves have been intended to be affected by the 1972 Act . . . Even before the Human Rights Act, common law courts were in the process of developing a concept of fundamental common law right, to which some special preference might in this context also be given. But, if and so far as these limitations exist, they are self-

59 Joined cases C-293/12 Digital Rights Ireland and C-594/12 Kärntner Landesregierung [2014] ECR 000.

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evidently less effective deterrents to European pro-activity than those which a country with a written constitution possesses.’60 (italics added)

UK law, because of the strength of Parliamentary sovereignty, is less able to protect itself against the encroachment of EU law than countries such as Germany, which possess a written constitution. The German Constitutional Court, in its Solange jurisprudence, threatened not to uphold the primacy of EU law in the face of its encroachment of German constitutional rights. The most important challenge to UK law came in the Factortame case, in which the House of Lords accepted the supremacy of EU law over a parliamentary statute. Although parliamentary sovereignty may allow the UK ultimately to pass a statute repealing the European Communities Act 1972, there is little constitutional scope for a less drastic remedy of contesting the primacy of EU law without leaving the Union.61 Thus the Charter provides a valuable protection against the encroachment of EU law in the UK. The UK should not be seeking protection from the Charter, but rather view the Charter as protection against an overreaching EU. Finally, one cannot ignore the value human rights bring in and of themselves, and the Charter’s role in upholding them within the scope of EU law. For many people, it is both essential and inevitable to turn first to human rights in the search for a moral element in law. It has become commonplace to describe them as a ‘secular religion’62 for our times. The EU law and its member states are required to assume respect for human rights. It has already been argued that the Charter provides an important bulwark against abuse by the EU of its powers. But it is to be hoped that the EU would not commit the very gravest human rights abuses, such as torture or inhuman and degrading treatment. However, many EU states are still regularly found in violation of even the core human rights such as Art 3 of the ECHR,63 the prohibition on torture. Some states, such as Greece, have difficulties in complying with human rights obligations to asylum-seekers. In N.S., the ECJ was prepared to give precedence to fundamental rights over the obligations of member states to comply with the provisions of the EU Dublin II Regulation, recognising that member states must not return asylum seekers to other EU states when there would be a real risk of their being subjected to inhuman or degrading treatment within the meaning of Article 4 EU Charter.64 In this way, the Charter provides very important protection to individuals against other member states abusing fundamental rights. The further the EU goes down the road of requiring mutual recognition of other states’ practices (whether it be of food standards, technical requirements or criminal justice systems) the more the Charter is needed to provide human rights based exceptions to otherwise enforced recognition.

60 Lord Mance, op cit at fn 1. 61 Although cf certain comments made by the UK Supreme Court in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3. 62 E Wiesel, ‘A Tribute to Human Rights’, in Y Danieli, E Stamatopoulou, and C Dias, (eds) The Universal Declaration of Human Rights: Fifty Years and Beyond (Amityville, NY: Baywood, 1999). 63 For a small sample of recent cases in which states have been found to breach the prohibition in Art 3 ECHR, see eg: R.R. v Poland (App. No.27617), judgment of May 26, 2011; Hellig v Germany (App. No.20999/05), judgment of July 7, 2011; V.C. v Slovakia (AppNo.18968/07), judgment of November 8, 2011; Yoh-Ekale Mwange v Belgium (App. No.10486/10), judgment of December 20, 2011; El Shennawy v France (App. No.51246/08), judgment of January 20, 2011. 64 Art 4 Charter is identical with Art 3 ECHR and reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.

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Therefore, in conclusion, rather than seeking to disapply the Charter in the UK, perhaps at the next general amendment of the EU treaties, the UK should seek to repeal Protocol 30 completely. F. FUNDAMENTAL RIGHTS AS A SOURCE OF EUROSCEPTICISM Why should it be that fundamental rights, in particular, appear to give rise to a vehement euroscepticism? One of the notable, central elements of British euroscepticsm is its opposition to an EU-wide fundamental rights doctrine. To date, much eurosceptic wrath has been directed toward the European Court of Human Rights, but senior conservative ministers have made it clear that the EU is also a cause for concern. In April 2014, in response to (then) Commissioner Reding’s comment that the Charter of Fundamental Rights was ‘becoming a reality’, UK Lord Chancellor Chris Grayling responded that such comments revealed, ‘why we need a major re-think of our future relationship with the EU’. He also attacked Labour for failing to veto the EU Charter during Lisbon treaty negotiations.65 Notably, the furore over the ECtHR ruling in Hirst on prisoner voting rights has provided fuel for eurosceptics to protest further EU integration in the criminal law field, and particularly those regarding suspects’ rights. To be sure, it is not just the UK that witnesses such a rights-based euroscepticsm. As the powers of the EU have increased, they have been more likely to intrude into areas of traditional national sovereignty, including criminal law, social policy, and moral issues such as same sex marriage or abortion. The euroscepticism that led the Polish government to sign up to the Protocol 30 ‘opt-out’ was of a different sort from that in the UK, and largely motivated by a desire to protect traditional marriage and rights of the unborn in Poland. Such reactions are evidence of a ‘value-based Euroscepticism’, namely ‘the perception that the EU, via its fundamental rights policy, unduly interferes in matters where value systems and core domestic preferences on ethical issues are at stake.’66 For many, this is built on the belief that European integration, should it exist at all, should be a purely economic project, and has no business entering the domain of moral issues, where there is much disagreement among member states, and even the ECtHR has allowed that, as there is often no European consensus on morals, so states should have a ‘margin of appreciation’. The Treaty of Lisbon introduced a statement of values for the EU into the treaties for the first time, in Art 2 TEU, suggesting a move towards a shared European conception of morals. Yet is this evidence of an imperialist colonization by the EU that will eat away more and more at national competences? Why should fundamental rights be seen to pose a particular threat to national sovereignty rather than such other areas as economic management?

65 ‘EU Bill of Rights becoming a reality, says European Commission’, The Telegraph April 15 2014. 66 Cecile Leconte, ‘The EU Fundamental Rights Policy as a Source of Euroscepticism’ (2013) Human Rights Review 1.

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The shape of things to come? A ‘federalizing’ EU Charter of Rights? The answer to these questions depends partly on the extent to which the CJEU develops its fundamental rights mandate. Are we at the onset of a new chapter of self-empowerment of the European Court of Justice, in which fundamental rights are used as tools of European integration? I do not think so. To be sure, sceptics have identified some cases as ‘expansionist’, including Mangold, Carpenter, and Test-Achats. For example, the Test-Achats ruling, which established that insurers may not charge different premiums to men and women because of their gender, has come under criticism because the European Court disapplied (on the basis of Articles 21 and 32 Charter) a specific derogation permitting such differential treatment. Martin Howe QC argued this was ‘a violation of the sovereignty of Member States which had unanimously agreed to the derogation; an extension of the scope of EU law; an unwarranted transfer of power from the democratically-elected to the judiciary; and a warning that opt-outs and derogations from EU law which had been politically agreed could be undone by the ECJ.’67 Yet the Directive itself sets out a very clear principle of sex equality. One of the reasons the Court annulled the derogation was because they found a lack of coherence in a poorly drafted Directive that set out quite clearly the requirement for non-discrimination but then inserted an exemption clause with an almost unlimited applicability. The fact that the Directive made references to the Charter in its preamble strengthened that point, because it showed the urge of the European institutions to respect the principle of equal treatment. In cases such as Tests-Achats, the generator for litigation has been a failure in the political domain, resulting in poorly drafted litigation and legal uncertainty that requires litigation for clarification. We should not blame the Court for political deficiencies and deficits. Nonetheless, there is some fear that the ECJ will read the scope of EU fundamental rights widely in order to create a ‘federal’ standard, by which all national measures may be assessed. In the 2011 Ruiz Zambrano case,68 one of the most far-reaching suggestions regarding the potential scope of EU fundamental rights law was made by AG Sharpston. The main issue for determination by the CJEU was whether Mr Ruiz Zambrano, a Colombian national, could claim a right of residence in Belgium under EU law following the birth of his children (who were EU citizens) in 2003 and 2005, notwithstanding that his EU citizen children had yet to exercise their right of free movement within the Union, which would normally be a requirement for triggering the application of EU law. Although most of the discussion turned on EU citizenship, AG Sharpston, in her Opinion, considered the role of fundamental rights in EU law, arguing that they should protect the European citizen in all areas of EU competence, regardless of whether such competence had actually been exercised. She compared the present EU law on fundamental rights, with its uncertain scope of EU competence, against ‘an ideal of consistent protection of fundamental rights’ (italics added). AG Sharpston did, however, acknowledge that this was likely to be too bold a step for the Court to take unilaterally at present, but she nonetheless suggested that the Court should consider that the evolution of EU fundamental rights law in the context of the now binding nature of the Charter, and proposed EU accession to the ECHR, might require a more robust scrutiny of fundamental rights. The Court in Ruiz Zambrano, however, did not discuss this point. 67 ‘The application of the EU Charter’- the views of expert witnesses, available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/979/97907.htm 68 Case C-34/09 Ruiz Zambrano [2011] ECR 000.

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Interestingly, AG Sharpston also stated that: ‘Simply put, a change of that kind would be analogous to that experienced in US constitutional law after the decision in Gitlow v New York . . . [It] would alter, in legal and political terms, the very nature of fundamental rights under EU law. It therefore requires both an evolution in the case-law and an unequivocal political statement from the constituent powers of the EU (its Member States), pointing at a new role for fundamental rights in the EU.’ (paras 172–73). AG Sharpston’s reference alerts us to the ‘federalizing’ movement of the US Supreme Court which, in the earlier 20th century, incorporated the US federal Bill of Rights and applied them to the states through a very wide interpretation of the 14th Amendment of the US Constitution. In the 1925 case of Gitlow v New York, the US Supreme Court held that the First Amendment of the US Bill of Rights could also apply to the States through the operation of the 14th Amendment (which specifically applies to the states). Since then, the US Supreme Court has applied the Bill of Rights to State laws even when the States are acting within their own sphere of competence. In this way, the US Supreme Court has created a unified constitutional order of fundamental rights. It seems clear, however, that the EU Charter does not permit the European Court to emulate the US Supreme Court, and identify a ‘federal’ or EU standard of fundamental rights against which all national laws may be assessed and even invalidated. Nor is there any evidence that the ECJ itself (as opposed to AG Sharpston) would suggest it should do so. Notably, in Zambrano, AG Sharpston recognised that extending the reach of EU fundamental rights would require an ‘unequivocal’ endorsement from the member states, which is unlikely to be forthcoming at present. So there is little evidence that the ECJ is seeking unilaterally to extend the reach of EU fundamental rights law. Therefore, however wide the scope of EU law, there will continue to be domestic situations in which it cannot be applied. For example, the Supreme Court in the Chester case 69 unanimously dismissed two prisoners’ claims that the UK government’s refusal to allow them to vote whilst in prison breached their EU rights, on the basis that the case did not fall within the scope of EU law. Resistance from the national courts? In any case, evidence of use of the Charter by the ECJ to centralise rights protection at the EU level could be very unpopular with at least some national courts, which have traditionally seen themselves as ultimate guardians of rights. For example, Åkerberg Fransson was subject to criticism by the German Constitutional Court. In a 2013 judgment70 concerning a counter-terrorism database, the German Court insisted that the case before it was clearly outside the scope of the Charter, as it pursued national objectives with only a possible ‘indirect’ effect on the functioning of legal relationships under EU law. This looks like quite a clear warning to the ECJ. And of course, famously, in its 1974 Solange I ruling,71 the German Constitutional Court held that, in the case of conflict between EEC law and fundamental rights protected under the German Constitution, German constitutional rights would prevail over any conflicting norm of EEC law. 69 R (Chester) v Secretary of State of for Justice; McGeoch (AP) v The Lord President of the Council and another [2013] UKSC 63 70 24. April 2013 1 BvR 1215/07 71 Internationale Handelsgesellschaft v. Einfuhr und Vorratsstelle für Getreide und Futtermittel (BVerfGE 37, 271; 1974 2 CMLR 540).

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The British higher judiciary has also shown some propensity to reject European Courts as having the last word in rights matters. Instead they have also sought to promote and resurrect the common law in the human rights field. For example, in his Hamlyn lectures, Sir John Laws stated that national courts should follow their own interpretations of human rights issues. Laws was particularly concerned that ‘political controversies and resentments concerning Europe’ might undermine the confidence people should have in the law's ‘use of principles which were born or have flourished in Luxembourg and in Strasbourg’.72 Further, in the 2013 case of R (Osborn) v Parole Board 73 the UK Supreme Court emphasised that the starting point in fundamental rights cases should be ‘our own legal principles rather than the judgments of the international court’.74 Yet does the unwritten common law have any great advantage over the codified ECHR and EU Charter? There are problems with looking to the common law as the source for our constitutional principles and fundamental rights in that it appears to leave too much room for judicial intuition and ‘a feeling for the right or the good result.’75 As Aidan O’Neill argues: ‘These charters and the bodies of law which have built up around them should not be too readily abandoned, nor the mechanisms for their enforcement be too readily disparaged by our own courts, echoing political and popular sentiment. The architecture of enforcement involved international courts and bodies . . . precisely to ensure the advantages of distance and, to an extent, a necessary isolation from the immediate national political fray. This was, and is, seen as necessary in order to ensure a degree of objectivity and protection for the individual . . .’76 Interestingly other national constitutional courts have not followed the direction of the German or British Courts in seeking a distinctively national focus on human rights. For example in 2012, the Austrian Verfassungsgerichtshof took the landmark decision that the rights guaranteed by the Charter ‘may also be invoked as constitutionally guaranteed rights’ in proceedings before it.77 In this way, the Charter, functioning as a contemporary catalogue of fundamental rights, may itself be used and become relied on by national constitutional courts as a document of prime importance. Why we should not expect the ECJ to become a fundamental rights court The important role played by the Court of Justice in the development of EU fundamental rights law is well known. This role is, however, ambivalent. The charge that the CJEU is most concerned with integration and with the autonomy of EU law, rather than fundamental rights per se, is an old criticism, dating back to its earliest caselaw on fundamental rights, such as Internationale Handelsgesellschaft, in which it asserted the EU’s respect for fundamental rights in order to maintain the primacy of then EEC law. Along with this charge has been the claim that EU fundamental rights protection also too strongly reflects the specific form of the EU, and its stress on the Internal Market. The Court’s willingness to equate fundamental market freedoms such as the free movement of goods and services, with fundamental rights has drawn fire,78

72 John Laws, The Common Law Constitution (Hamlyn lectures) (Cambridge University Press, 2014). 73 [2013] UKSC 61 [2013] 3 WLR 1020. 74 See Lord Reed’s judgement at para 62. 75 A. O’Neill, ‘Not waving, but drowning?: European law in the UK courts,’ 22 July 2014, accessible at http://ukscblog.com/waving-drowning-european-law-uk-courts/ 76 Ibid. 77 Joined cases U 466/11-18, U 1836. 78 Eg J Coppell and J O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 CMLRev at 689.

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and the counterclaim that the free movement of goods and services are in no way equivalent to fundamental rights. For all that the competences of the EU have moved beyond its economic origins and the Internal Market, the EU still maintains its focus on the economic, as cases such as Viking and Laval reveal, in which the European Court required the fundamental social right to strike to be exercised proportionately in order to comply with the free movement of services.79 And for all that AG Maduro in Centro Europa 7, interpreted the provisions for fundamental rights in Article 6 TEU as ensuring that ‘the very existence of the European Union is predicated on respect for fundamental rights’ (a statement which was notably not adopted by the CJEU) and an ‘existential requirement’ which aimed to situate the EU beyond market constitutionalism,80 fundamental rights were in fact not acknowledged in the original Treaty of Rome, and the EU still lacks a comprehensive fundamental rights competence. The EU’s current design reveals its limited capability as a human rights organization. The Charter of Fundamental Rights does not declare a freestanding fundamental rights competence for the EU but only applies to EU institutions and to the member states in certain circumstances. The deliberate decision not to incorporate the Charter into the treaties by the Lisbon treaty amendments also underlines a conscious choice not to endow it with a constitutional status. The EU’s main concern has been with market building and regulation,81 the very role to which the eurosceptic would wish to confine it. In this, it differs from traditional state constitutions and human rights regimes. Part of the problem is that most litigation brought by individuals comes to the CJEU by way of a preliminary reference from the national courts, in which the Court of Justice is only seized with certain aspects of a case, and fundamental rights are often pleaded in a collateral or tangential manner. This can be contrasted to approaches of human rights courts, such as the ECtHR, in which fundamental rights themselves are the basis for an application. Given this, it is likely that the CJEU will continue to determine issues of fundamental rights on a case by case basis, with a particular focus on the proportionality of any infringement of rights, rather than with an eye to the development of a coherent, substantive fundamental rights law. In these circumstances, there does not seem to be great risk of the ECJ taking up an evangelising mission of pursuing human rights as a course of further integration or as a federal standard for Europe. If anything, the fear is surely that the EU will not be activist enough in its human rights policy. The Commission was slow to act against abuses of human rights in Hungary,82 which saw a direct governmental interference with the independence of the judiciary. The ECJ has been slow in the past to annul EU measures for breaches of human rights. Although former Justice and Home Affairs Commissioner Viviane Reding enthusiastically opined that ‘I could imagine that one day citizens in the Member States will be able to rely directly on the Charter – without the need for a clear link to

79 Case C-341/05 Laval [2007] ECR I-11767; Case C-438/05 ITWF v Viking Line [2007] ECR I-10779. 80 AG Maduro in Case C-380/05 Centro Europa 7 [2008] ECR I-349 at para 19. 81 See eg A. von Bogdandy ‘The EU as a Human Rights organization?’ (2000) 37 CMLRev 1307. 82 See eg, ‘EU weighs fines for democratic breaches after Hungary tensions’, The Financial Times, July 11 2013.

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EU law. The Charter should be Europe's very own Bill of Rights,’83 that day has certainly not yet come. Eurosceptics may rejoice in this conclusion. Those who value human rights may not.

83 ‘Fundamental Rights: Importance of EU Charter grows as citizens stand to benefit’, European Commission Press release April 14 2014, available at http://ec.europa.eu/justice/newsroom/fundamental-rights/news/140414_en.htm