The government is to intervene in an employment dispute with the purpose of establishing a clear legal precedent that the European Union’s Charter of Fundamental Rights has only a very limited role in British courts.
Chris Grayling has indicated that the Ministry of Justice’s lawyers are to become involved in an intervention by the FCO in a Court of Appeal case involving two women who allege they suffered abuse at embassies in London. The Employment Appeal Tribunal ruled last year in Benkharbouche that the women can pursue their claims under the Charter (the fair trial right guaranteed by Article 47 of the Charter), even though the embassies argued that, under domestic legislation, they were entitled to diplomatic immunity from the actions.
Appearing before the House of Common’s European scrutiny committee, Grayling said:
“We have quite enough human rights legislation in the UK and I would not want to see the [EU] charter become a reference point on human rights [in the UK].”
It had become necessary to take a fresh case to clarify matters, he told MPs, because an earlier decision R (oao AB) v Secretary of State for the Home Department, which the government nonetheless won, implied that the EU charter trumped UK law. That decision, Grayling said, was wrong but could not be appealed.
Failure to challenge the EU Charter’s deployment in UK cases, Grayling added, would encourage “mission creep” as the Charter and Lisbon treaty become more prominent “reference points” for those arguing in favour of further EU integration.
What is the EU Charter?
The EU’s Charter of Fundamental Rights and Freedoms was originally signed in 2000 by the European Parliament, the European Commission and by the EU member states, comprising the European Council as part of the process of adopting a constitutional treaty for Europe It was the first formal EU document to combine in a single text the whole range of civil, political, economic and social rights and principles and certain “third generation” rights and principles such as the right to good administration or the right to a clean environment.
The Charter’s prime objective is to make rights more visible at EU level. The text is not intended to establish new rights, but to assemble existing rights that were previously scattered over a range of sources including the general principles of “effective legal protection” and “effective judicial protection” long established as the bedrock of EU law. It is also derived from ECHR, and other Council of Europe (COE), United Nations (UN) and International Labour Organisation (ILO) agreements.
What is the Charter’s legal status?
The Charter has the same legal value as the Treaties (Article 6(1) of the Treaty on European Union (TEU)) but the provisions of the Charter “shall not extend in any way the competences of the Union” (Article 6(2)), meaning that they inform and guide the way in which the EU works but do not add to what it is able to do.
As a document with equal force to the Treaty provisions themselves, however, the Charter functions both as an interpretative mechanism and as superior source of law, sufficient to invalidate EU secondary rules or practices or national rules/practices (within the scope of EU law) that do not comply with it.
As the UK Supreme Court held in RFU v Consolidated Information Services, the Charter has direct effect in national law, “binding member states when they are implementing EU law”.
The proposition that national rules or practices which fail to comply with the EU’s recognition of fundamental rights fall to be disapplied is not a novel one. All these things were also true of the Charter’s legal parent: the general principle of fundamental rights, developed by the European Court of Justice (“ECJ”) in case law dating back to 1969, which gave birth to the Charter and survives alongside it (seen in the case of Kent Kirk some 30 years ago)
This fact explains the apparent paradox that the Charter, though powerful, is said “not [to] create new rights or principles” and not to “extend” the ability of EU or national courts to find that UK rules are inconsistent with fundamental rights. That ability existed previously; the Charter codifies this situation but does not extend it.
What about the UK’s’ “opt out”?
When the 30th Protocol (known as the Poland-UK Protocol) was negotiated in mid-2007, the Eurosceptic press was quick to hail it as an opt-out. The perception that an opt-out had been achieved was seen as helpful to the Government of the time in convincing the public that the Lisbon Treaty was different from the Constitutional Treaty and therefore did not require the referendum promised in their 2005 manifesto.
Recently the press, politicians such as Keith Vaz, the Europe Minister at the time of the ‘opt out’, and judges alike (Mostyn J in the AB case above), have questioned the nature of any ‘opt out’.
However the reality is that it was not (and informed opinion never claimed it to be) an opt-out and statements to this effect were made in Parliament at the time. Rather, it helpfully clarifies the basis on which the Charter applies in all Member States, with specific reference to Poland and the UK. This much was clear from the comments of Lord Goldsmith, Attorney General when the Charter was first negotiated, who stated in 2008:
“It will be clear the UK Protocol does not in any way constitute an ‘opt-out’ in the sense of trying to disapply certain rights to UK citizens. That would be neither necessary nor desirable given that the UK fully accepts the rights reaffirmed in the Charter.”
It was therefore not a surprise, that when the ECJ did come to rule upon the status of the Poland-UK Protocol (Cases C-411/10 and C-493/10 NS and others v SSHD, 21 December 2011) that it concluded that the Protocol “does not call into question the applicability of the Charter in the United Kingdom or in Poland”. The Government had argued to the contrary in the High Court, but expressly conceded the point both on appeal and before the ECJ
What is Grayling’s problem?
The provisions of the Charter are addressed to the Member States “only when they are implementing Union law” (Article 51(1)).
The interpretation (and how wide it might be) of that phrase is central to the balance of competences between Member States and the EU. How far does the Charter apply and, in particular, can this be used in purely horizontal situations – i.e. where a dispute arises between two private parties and EU law is sought to be used, in and of itself, to impose an obligation on an individual they would not otherwise have but for the effect of EU law?
Recently these issues were considered by the CJEU in the case of Association de médiation sociale v Union locale des syndicats CGT (AMS) which concerned a dispute between a French employer and Trade Union. It concerned provisions of French law, EC Directive 2002/14 (which establishes a framework for informing and consulting with employees and its worker information and consultation), and Article 27 of the Charter which sets out certain guarantees in this area.
The Court found that the provision of the Directive was sufficiently clear and precise to have direct effect. But, as a Directive, it was not capable of having horizontal direct effect. As the union and AMS were both private parties, the Directive could not be relied on in litigation between them. Nor was it possible to interpret the French law in line with the Directive. The question remained, whether Article 27 of the Charter, protecting the worker’s right to information and consultation, could nevertheless apply to this dispute between two individuals.
For the Charter to apply, two hurdles needed to be cleared. First, as established in C-617/10 Åkerberg Fransson, it had to be demonstrated that the situation before the court was ‘governed by European Union law’ as the court ‘has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law’. [Paragraph 19, Fransson]. As the French law in question was designed to implement Directive 2002/14, then the case clearly was one that was governed by EU law. Second, it needed to be established whether the Charter was capable of having have horizontal direct effect. The answer given was ‘yes – but not always and not in this specific case’.
The CJEU, without much explanation, concluded that the case was different from a previous case Kücükdeveci where the Charter had been held to have horizontal direct effect. It argued that Article 27 of the Charter is not “a directly applicable rule of law”, since it is generally formulated and not sufficient in itself to confer on individuals a subjective right they can invoke before a national court (para. 46-47). On the basis of the wording of Article 27 and the explanatory notes to that Article, the CJEU held that “for this Article to be fully effective, it must be given more specific expression in European Union or national law” (para. 45). By contrast, the principle of non-discrimination on the ground of age which was at issue in Kücükdeveci and which is laid down in Article 21 (1) of the Charter was considered to be sufficiently clear for individuals to rely on it and thus to have horizontal direct effect. It remains to be seen what approach will be taken to the application of the Charter in future cases in the light of the principle of “harmonious interpretation” set out many years ago in Van Colson.
So the only remedy available to the applicant was to invoke the principle of state liability, and to claim Francovich damages from the French state for its failure to implement the provisions of the Directive.
Where does this leave the Charter and Chris Grayling?
The UK’s concerns about the Charter are at their most acute in relation to Title IV (“solidarity”), which contains 12 rights of a social and economic nature including the right of collective bargaining and action, fair and just working conditions, social security and social assistance and health care. Like the other rights in the Charter, they could of course apply only within the scope of EU law.
It seems clear that the Charter does not create new rights or principles (a point specifically affirmed by the ECJ in NS) nor does the Charter extend the ability of the ECJ or of UK courts to invalidate UK rules/practices.
However, at no point did the court in AMS state that the provisions of the Charter, like Directives, cannot have horizontal direct effect. This leaves open the possibility, and something that may domestically come to a head in the Court of Appeal case, that the Charter could be used in and of itself to exclude the application of national law in a dispute between private parties when the Charter provision did not need to be given more specific expression in European or national law.