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.

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