PILA Bulletin readers may recall that in our last issue we reported on the High Court decision of R (AB) v Home Secretary. We focused on the fact that Judge Mostyn had referred three of the UK government’s private immigration contractor staff for prosecution because they “corruptly redacted” an official certificate.
Since then, comments by Judge Mostyn in that decision have now caused the UK’s Justice Secretary Chris Grayling to urgently clarify whether the EU Charter of Fundamental Rights applies in the UK. The Head of Legal blog says Judge Mostyn’s reasoning on this issue can be summarised as follows: (1) the UK’s Protocol which claimed to exempt it from the Charter doesn’t do much, and the UK doesn’t have an opt-out; (2) the Charter includes rights not included in the European Convention on Human Rights; and therefore (3) the Charter gives people new rights which they can now raise in UK courts.
In response to a Parliamentary question about the issue, Chris Grayling said “If it were to be found there is broader legal reach [of the Charter] than we understand to be the case, we would take rapid steps to address it”. The Justice Secretary said that the UK government would seek out a suitable test case to resolve the question.
It’s not yet clear whether Judge Mostyn is correct that the Charter gives people new rights that are justiciable in UK courts. There has been debate about this issue in the media and in the legal blogosphere.
If Mostyn is correct, then the UK Human Rights blog says that would mean that the Charter “introduces into domestic law all those parts of the ECHR that were deliberately missed out by Parliament when passing the Human Rights Act 1988, plus ‘a great deal more’, consisting mainly of social and economic rights with unpredictable budgetary consequences and problems in enforceability.” The blog also says that the logical conclusion of Mostyn’s reasoning is that there would be no point to the UK withdrawing from the European Convention on Human Rights (ECHR) and producing new domestic human rights legislation, as some Tory politicians are eager to do (click here to read a relevant previous Bulletin article about this). This is because the ECHR would continue to live on through the Charter and the legislation that makes European legislation enforceable in the UK (section 72 of the European Communities Act 1972). The UK Human Rights blog says “there is no reason to believe” that Mostyn’s analysis is not correct.
But the Head of Legal blog points out that Chris Grayling also said that the Charter is only relevant to situations involving EU law, and therefore the third element of Mostyn’s argument is wrong. This limitation seems to be backed up by the wording of the various provisions that govern the Charter and its interpretation (Article 6.1 of the Treaty on the European Union, and Article 51 and 51.1 of the Charter itself), which also means that the Protocol was simply a political tool and has no real effect in excluding the Charter from domestic application.
The ObiterJ blog agrees that the Charter is only relevant to situations involving EU law.
Click here to read an article in the Guardian about this case.
Click here to read a detailed analysis of the case on the UK Human Rights Blog.
Click here to read a detailed analysis of the case on the Head of Legal blog.
Click here to read a detailed analysis of the case on the ObiterJ blog.
Click here to read Judge Mostyn’s full judgment in R (AB) v Home Secretary.