Fundamental Rights and the UK’s Balance of Competences Review

Catherine Taroni

The Ministry of Justice issued a Call for Evidence for a review on the balance of competences between the UK and EU in relation to fundamental rights on 21 October 2013, with the deadline for submitting evidence being 13 January 2014.

The Fundamental Rights Review is part of a broader series of reports on EU competence taking place between 2012-14, aiming to deepen public and Parliamentary underst­­anding of the nature of our EU membership, among other things.  The Call for Evidence seeks answers to 14 questions ranging from the quite specific “What evidence is there that the Fundamental Rights and Citizenship programme provides value for money?” to more far reaching questions covering whether there is any benefit to individuals/business/public sector/other groups within the UK from the Charter of Fundamental Rights, issues of competence creep, and potential consequences for the UK following EU accession to the ECHR.

The Call for Evidence

The approach of the Review is to give an outline of what fundamental rights are, put them in an international context and essentially summarise a brief history of fundamental rights protection in Europe – from the ECHR and from various EU mechanisms.  The Fundamental Rights Review is potentially very important – the stated aim of the Balance of Competences reviews is to audit what the EU does and how it affects the UK government and those residing within the UK more generally.  The main website can be found here

There is something of a focus on, or concern of, competence creep running throughout the Review, with cases like Case C-411/10 NS, where the CJEU did not interpret Protocol 30 as an opt out clause to the Charter of Fundamental Rights, gaining particular mention. The Review recognises that CJEU case-law means that Member States must respect fundamental rights when they implement EU law, when the derogate from EU law, and when they act within the scope of EU law, though the UK position is that acting within the scope of EU law encompasses the first two categories.  ‘Acting within the scope of EU law’ was addressed in Zagorski, where the High Court found that decisions which failed to prevent the export of a drug to the United States which was to be used to anesthetise prisoners before they received a lethal injection fell within the scope of implementing EU law.  The scope, therefore, is wide.

The Review puts fundamental rights in a somewhat negative light, as a restriction on Member State action: on p10 it says “The key point is that EU fundamental rights constrain what the EU and, in certain circumstances, its Member States can do.”  But that is not the key point of fundamental rights at all – the key point is protecting or guaranteeing rights for individuals, organisations, etc., and the UK needs a coherent and strong policy in order to ensure that the rights of individuals and businesses within the UK are properly protected.  The EU influences fundamental rights protection in different ways – for example, its institutions and Member States may be constrained to ensure protection of fundamental rights; national courts must follow the CJEU in relation to fundamental rights when interpreting or applying legislation, or considering the lawfulness of public authority action that implements EU law; and the EU’s Fundamental Rights Agency carries out campaigns and educational programmes to promote rights.

While the Review does not question the EU’s specific competence in relation to individual fundamental rights, some competences, such as the right to asylum and access to justice, are reviewed separately – the overlap is outlined in the Review’s Annex B.

This brief comment on the Review focuses on the two Lisbon Treaty developments within EU fundamental rights protection: the Charter of Fundamental Rights and its binding status, and the promise of EU accession to the ECHR.

The Charter of Fundamental Rights

The Charter of Fundamental rights is the newest EU mechanism for fundamental rights protection, and, being a published Charter, is far easier to locate and understand than the ‘general principles’ doctrine the CJEU developed over many years.  Indeed, making rights more accessible was the purpose of creating the Charter in 1999, though at that time it lacked binding effect.  The Charter predated the Lisbon Treaty, but its status changed with Lisbon: it gained equal Treaty status in Art 6(1) TEU.  While this could potentially be seen as indicating that EU fundamental rights protection was to be more vigorous, the drafters were careful to limit the Charter’s scope in its Article 51 to instances in which Member States were implementing EU law, and stated that the Charter did not extend the scope of EU law in any way, or establish new powers.

The Charter’s current legal status and effect within Member States does not seem to be widely appreciated within the UK- even amongst members of the UK judiciary – as demonstrated in the recently decided AB case.  It is clear that the UK would benefit from a uniform understanding of the status of the Charter of Fundamental Rights, and that politicians and judges should agree upon both its status, which is equal to a Treaty – see Article 6(1) TEU – and its scope – (it is only applicable when Member States are implementing EU law Article 51(1) CFREU and does not extend the scope of application of EU law – see Article 51(2) CFREU and Protocol 30, Art 1.

The legal effect of Protocol 30 (OJ 2010 C 83, p. 313) requires clarification to promote consistency and develop understanding within the UK.  Though it has been hailed by some as an ‘opt out’ clause, the Protocol is properly read as a clarification/repetition of the Article 51(2) CFREU indication that the Charter is not to extend EU competences, and has previously been discussed here and here in this blog.  In NS, the CJEU made clear at paragraph 120 that Protocol 30 “explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions.”  It is hoped that the Review will lead to more widespread recognition that the UK has obligations under this Charter and that the Charter has effect when the UK is implementing EU law, rather than more as a freestanding source of rights to be called upon at a litigant’s whim.

In Zagorski, despite the court finding that the situation was one in which the UK was implementing EU law (paras 70 -71), the Charter was not found to confer any rights upon the Claimants (para 74) – it did not provide protection beyond those found in the ECHR, which were also not applicable.  The CJEU has not attempted to extend the scope of EU law in order to make the Charter applicable, as the case of Case C-617/10 Fransson demonstrates.  In Fransson, the CJEU stated that where “a legal situation does not come within the scope of European Union law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction” (para 22).

The Review asks whether the Charter and broader EU framework of fundamental rights has been advantageous or disadvantageous to individuals/others in the UK; whether the Charter is being interpreted and applied in line with the provisions in Title VII; whether ECHR case-law, as given effect through the EU’s fundamental rights framework, has been advantageous/disadvantageous to individuals/others in the UK.   The rights guaranteed in the Charter are not identical to those in the ECHR, though where there is overlap the Charter has been interpreted in line with the ECHR guarantees, as Zagorski demonstrates.  Further guarantees for individuals’ rights must be advantageous for them, and the Charter seems only to be applied within its delimited scope.

EU Accession to the ECHR

Human rights protection in the UK relies upon a mix of sources, and the Human Rights Act 1998 gave further effect to the ECHR.  The review emphasises that national courts are not bound by decisions of the ECtHR, and only the HRA which gives the Convention domestic effect.   The EU and the ECHR co-exist, with the latter being a mechanism of the separate Council of Europe, rather than deriving from the EU.  Furthermore, the Luxembourg and Strasbourg courts are not bound by each other’s decisions.  However, in accordance with Article 6(3) TEU the CJEU approaches fundamental rights as interpreted by the ECtHR as reflecting Member States’ constitutional traditions and thus constituting general principles of Union law.  This is reflected in the Kamberaj decision at paragraphs 60-61, where the Court found that Article 6(3) TEU reflects settled case-law and fundamental rights “form an integral part of the general principles of law the observance of which the Court ensures”.

While the current UK government has discussed the possibility of repealing the HRA and even leaving the ECHR, the EU has pledged to accede to the ECHR in Article 6(2) TEU.  The difficulty for the UK in “escaping” the reach of the ECHR is immediately apparent if it remains within the EU – when applying EU law or deciding on matters within its scope, UK courts have to follow the CJEU in relation to its longstanding incorporation of fundamental rights as general principles of EU law which include fundamental rights as guaranteed by the ECHR following Article 6(3) TEU.   Protection of the rights guaranteed by the ECHR can only be further strengthened within CJEU case-law following EU accession.  The interconnected nature of fundamental rights protection in Europe makes it difficult to imagine the UK genuinely having the option to go against the tide of expanding the applicability of the ECHR and to reverse its domestic protection of fundamental rights.  The reduced guarantees withdrawal would entail for UK nationals or third country nationals when the UK acts outside the scope of EU law makes withdrawal from the ECHR an unattractive prospect.

Once the CJEU is bound by the ECHR, its judgments in relation to ECHR fundamental rights will be binding upon Member States’ national courts and would affect a UK intending to leave the ECHR.  The Review is concerned about the impact of EU accession to the ECHR and asked whether this would be advantageous/disadvantageous to individuals/others within the UK; whether there is evidence of fundamental rights being used to expand the competence of the EU and whether this is advantageous/disadvantageous.  EU accession to the ECHR should be advantageous for the UK – the UK currently adheres to ECHR guarantees and EU accession removes the anomalous possibility of an EU institution breaching fundamental rights guarantees to which all Member States must subscribe.  This should increase protection for individuals and others at an EU level.  Interestingly, the Review also asks whether action in respect of fundamental rights could be taken differently at international or national or regional level– without suggesting a bill of rights, etc. – and how this would affect the UK.


While the issues raised in the call for evidence possibly emphasise the ‘risk’ of the EU increasing its remit in some way, the invaluable opportunity for attention to be drawn to the application of the Charter of Fundamental Rights is positive for fundamental rights protection.   If politicians, judges, and the general public alike, can become better informed as a result of the information gathered, the review will have served a useful purpose.  Evidence on reliance upon the Charter in domestic decisions would be helpful, and further interpretations of the CJEU’s approach to the Charter, which is still a relatively new instrument, would be useful too.

The UK’s relationship with the Council of Europe or ECHR is not directly within the scope of the review and there is no mention of either the UK potentially leaving the ECHR or of HRA repeal, nor is the impact of such events contemplated.

Overall, the review does raise some important questions, and gives institutions and individuals the opportunity to give their opinions and to bring information to light.  Evidence, views and information can be put forward online here.

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