Is the UK’s ‘opt-out’ from the EU Charter of Fundamental Rights worth the paper it is written on? Part 2.

Aidan O’Neill QC

The UK Government has long sought to play down the significance of the EU Charter of Fundamental Rights. In its negotiations around, and public presentation of, the substance of the Charter (as originally solemnly proclaimed in 2000) the position of the UK Government was that the Charter simply consolidated existing EU fundamental rights jurisprudence, contained no new rights and did not allow the courts any new powers. And when it was proposed that the Charter be incorporated into TEU by Treaty amendment, the UK sought an “opt-out” from certain of the Charter provisions, which is now contained in Protocol 30 to the Lisbon Treaty. In this series of posts EUtopia law considers the effectiveness of this self-proclaimed opt-out. Part 1 looked at the wording of Protocol 30 and suggested that it would have little limiting effect on the interpretation and application of the Charter’s provisions. Part 2 explores this further.

Certainly the House of Commons Scrutiny Committee thought that Protocol 30 would have little effect. In its follow up report to the 2007 European Union inter-governmental conference, it concluded that Protocol No 30 TEU did not provide any guarantee that the Charter should have no effect on UK law. The Committee noted that nothing in Protocol No 30 TEU will excuse the United Kingdom authorities (including the courts) from the obligation to comply with interpretations handed down by the CJEU, even where these rulings are based on the terms of the Charter.

It may be noted, in this regard, that the last preamble to Protocol No 30 TEU states that “this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally”. This may be contrasted with the terms of Protocol No 32 TEU on the acquisition of property in Denmark, which states:

“Notwithstanding the provisions of the Treaties, Denmark may maintain the existing legislation on the acquisition of second homes.”

Contrast may also be drawn with the terms of Protocol No 35 TEU on Art 40.3.3 of the Constitution of Ireland, which states that

“Nothing in the Treaties, or in the Treaty establishing the European Atomic Energy Community, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland [“the right to life of the unborn”].”

The question of the precise effect (and effectiveness) of Protocol 30 may be settled by the forthcoming decision of the CJEU in NS v Secretary of State for the Home Department C-411/10. This concerns the scope of the Member State’s obligations to use Art 3(2) of the Dublin (EC) Regulation 343/2003 – which  sets out criteria for determining which Member State is the responsible State for the purposes of the examination and determination of an asylum claim made within the territory of the EU, which is not necessarily the State in which the asylum claim was lodged – to process an individual’s asylum claim in circumstances where there is a real risk of breaches of fundamental rights protected by the CFR. The CJEU was asked by the Court of Appeal of England and Wales to rule on whether the duties of the UK under and in terms of this EU Regulation were qualified in any respect so as to take account of the Protocol 30, always assuming that any decision under the Council Regulation fell within the scope of EU law for the purposes of Art 6 TEU and/or Art 51 CFR.  In making this Article 267 TFEU preliminary reference Lord Neuberger, MR noted (in NS v Secretary of State for the Home Department [2010] EWCA Civ 990 at paras 6-7:

6.   There is one specific matter which we should mention in relation to one of the conclusions reached by Cranston J, from whom this appeal arises. In the course of his very clear and careful judgment he concluded, in paragraph 155, that the Secretary of State (the respondent) was not bound to act in accordance with the EU fundamental rights protected from the Charter when acting within the scope of the EU law. I refer to what he said in paragraph 155:

“155. Recital 15 of the Dublin Regulation records that it respects the fundamental rights and principles recognised in particular by the Charter of Fundamental Rights. Given the Polish and United Kingdom Protocol, the Charter cannot be directly relied on as against the United Kingdom although it is an indirect influence as an aid to interpretation. It will be recalled that Article 1 of the Charter makes human dignity inviolable. Article 18 provides that the right to asylum shall be guaranteed, and Article 19(2) provides that “no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment”. None of these rights are directly enforceable against the Secretary of State. A transfer under the Dublin Regulation cannot be challenged on the basis that it is not compatible with the right to human dignity or the right to asylum, or will be in breach of Article 19(2).”

7.     The reason we mention this point is that the Secretary of State no longer seeks to support that finding, as is clear from paragraph 8 of the respondent’s notice, which states:

“8. Contrary to the Judge’s holding, the Secretary of State accepts, in principle, that fundamental rights set out in the Charter can be relied on as against the United Kingdom, and submits that the Judge erred in holding otherwise (judgment, paragraphs 155 and 157, first sentence). The purpose of the Charter Protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect.”’

In sum, it seems clear that Protocol 30 will have little or no effect on the question as to how the EU Charter will be interpreted and applied by the CJEU, or by national courts (in the UK or Poland) following and applying CJEU jurisprudence.

As is not uncommon in matters of the EU, yet again a line in the sand has apparently been drawn by the United Kingdom, only for that line to be quickly washed away in the always “incoming tide” (see Bulmer v Bollinger [1974] Ch 401 (CA) per Lord Denning at 418) that is EU law as it inevitably further diminishes the already much-attenuated sovereignty of the Member States.  As Koen Lenaerts, a CJEU judge has written, (in ‘Constitutionalism and the many faces of federalism‘ [1990] 38 American Journal of Comparative Law 205 at 220): “[T]here is simply no nucleus of sovereignty that Member States can invoke, as such, against the Community ….”

2 thoughts on “Is the UK’s ‘opt-out’ from the EU Charter of Fundamental Rights worth the paper it is written on? Part 2.

  1. interesting but ignores one vital point the European Court does not operate on the basis of Common law principles but under the Napoleonic code. A protocol is not binding in law, they are merely advisory, unless incorporated formally in a treaty and endorsed by the EU Parliament.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s