Published:

23 comments

Professor Richard Ekins is a Fellow of St John’s College and an Associate Professor in the University of Oxford. He leads Policy Exchange’s Judicial Power Project.

The Labour Party is threatening to vote against the European Union (Withdrawal) Bill.   The Bill aims to secure legal continuity by transposing EU law into domestic law.  Section 5(4) of the Bill carves out an exception to this by providing that the Charter of Fundamental Rights will cease to have effect on “exit day”.  It is this exception, surprisingly, to which the Labour Party now objects.

The objection is surprising because the Government has long made clear that in its view the Charter should not be transposed into domestic law on exit day.  And the Labour Party’s newfound enthusiasm for it is hard to square with its nature or history – including the history of how it was understood by the last Labour Government.  The Charter is bad news, and its removal from our law should be welcomed, regardless of one’s views on Brexit.

It is a compendium of some 50 rights and principles: some track the terms of the European Convention on Human Rights (ECHR), while others affirm novel and open-ended socio-economic entitlements.  The Charter began as a political declaration and was “solemnly proclaimed” in Nice in 2000. The UK’s position then was that the it was not fit to be incorporated into law – to be made judicially enforceable – because its terms were too vague and sparse and because they risked creating new and unclear legal rights.

Nonetheless, in the course of the negotiations about the draft European Constitution, it was decided that the Charter would become legally binding.  When the Constitution was rejected by Dutch and French voters, the Charter was carried forward in the Lisbon Treaty.
Anxious to secure parliamentary support for the Lisbon Treaty, the then Labour Government negotiated Protocol 30, with Tony Blair assuring the Commons that “it is absolutely clear that we have an opt-out… from the Charter”.  Explaining the Government’s intentions, and by implication its understanding of the effect of the Protocol, he said that “we wanted to ensure… that there would be no question whatever of our being in a position where either the European Court of Justice or our own UK courts could use the Charter of Fundamental Rights to extend or expand UK law, particularly in the labour market or the social sphere”.

But despite Blair’s assurances, Protocol 30 totally failed to give us an opt-out.  It has never protected the UK from the reach of the Charter.  Domestic courts briefly reasoned that it did not apply to UK legislation, but this position was apparently abandoned by the Government on appeal and, in any event, the European Court of Justice (ECJ) took the earliest opportunity to state clearly that Protocol 30 in effect has no legal significance whatsoever.

This is not a happy story of constitution-making.  Notwithstanding the then Labour Government’s stated intentions, the UK ended up committed to a treaty which introduced a vague, open-ended set of rights and principles into domestic law, positively inviting litigation to challenge settled law.

The best argument for the Charter is that it is a shield against the EU institutions, limiting the extent to which they are free to make law that undercuts freedom.  However, for the shield to work, the ECJ would have to be willing to resist EU overreach, and the ECJ is not an impartial court in this way.  The danger of the Charter was that it would be another ground on which to challenge domestic legislation, equipping domestic courts effectively to overrule legislation on vague rights grounds.  True, the Charter only applies to member states when they are acting “in the scope of EU law”, but, predictably, the ECJ has read this phrase expansively.

It was still early days for Charter litigation when the UK voted to leave the EU.  Even so, the Charter’s significance had by then become clear, with domestic courts relying on it to override statute.  This was worse than the ordinary supremacy of EU law, for the content of the Charter is radically incomplete and contestable, requiring judges – first British, then European – to choose what the rights should mean, to choose in effect which statutes should survive.

In at least two cases, British judges have gone beyond ECJ case law, relying on the Charter to disapply Acts of Parliament.  In Benkharbouche, part of the State Immunity Act 1972, protecting embassies from immunity to employment law claims, was set aside; in Vidal-Hall, part of the Data Protection Act 1998 was overridden, overturning a limitation on what damages could be recovered.  The ECJ itself has overruled parts of the Data Retention and Investigatory Powers Act 2014 by reference to the Charter, a decision that has invited sharp criticism from many English lawyers, and which puts the application of the Investigatory Powers Act 2016 in real doubt.

Tellingly, many human rights lawyers were quietly confident that repeal or replacement of the Human Rights Act 1998 would prove futile, for the Charter could take up the slack.  It was thought that the Charter would in due course become the preeminent mechanism for human rights litigation, precisely because it was much more difficult for Parliament to defy rulings in relation to EU law than it was and is to ignore adverse rulings in relation to the ECHR.

So the Charter is a slowly unfolding disaster for British parliamentary democracy.  Leaving the EU clearly limits the scale of the disaster for, after exit day, Parliament will be free to overturn any decision of a domestic court holding that legislation flouts Charter rights.  But this is not to say that the mischief of the Charter is answered simply by leaving the EU and the ECJ’s jurisdiction.

After exit day, transposed EU law will not qualify newly enacted Acts of Parliament (the Bill preserves the existing qualification of legislation enacted before we leave the EU).  But if the Charter is not removed from our law, lawyers will be free – indeed invited, encouraged and required – to urge the courts to conclude that existing legislation, or transposed EU law, or regulations are all open to qualification or invalidation by reference to this package of vague, open-ended standards – “standards” in many ways looser and vaguer than those of the Human Rights Act and the underlying ECHR.  This would undermine the rule of law and wrongly elevate judicial policy views over those of elected political authorities.

If anything, the Government has been overly coy in making this case against the Charter, suggesting that it should be removed because it would be more or less redundant after exit.  But though, at best it might be treated as redundant, at worst, and much more probably, it would compromise the legal continuity the Bill aims to secure, would politicise the courts, and would threaten the integrity of parliamentary democracy.

Perhaps the reason for the Government’s hesitation was that it wished to avoid the charge that it is cavalier about human rights.  That charge is easily made but is absurd.  There is a fundamental difference between human rights and human rights law.  The Charter is one way to attempt to protect human rights, a poorly framed and constitutionally inept way at that.  One may be an enthusiast for the Human Rights Act and a sceptic of the Charter (as Jesse Norman MP was, in a lecture published on this site); or one can think both are highly problematic.

The last Labour Government recognised, but sought to downplay, the nature of the Charter and its inconsistency with our constitutional order.  It is a pity that the Labour Party is now either unable to recognise the Charter for what it is, or intent on overlooking its many vices.

23 comments for: Richard Ekins: The Charter of Fundamental Rights gives judges too much power, and is bad for accountable government

Leave a Reply

You must be logged in to post a comment.