Does the UK have an opt-out from the EU Charter of Fundamental Rights via its Protocol? This Note presents views on the nature of the Protocol and what a 2011 ruling on the effects of the Protocl might mean with regard to the effects of the Charter in the UK.Jump to full report >>
The status of the EU Charter of Fundamental Rights in EU law and its effects in UK law have been a matter of debate since the Charter was given legal status by the 2007 Treaty of Lisbon. The UK Government had negotiated a Treaty Protocol with a view to clarifying its effect in the UK, but many believed this Protocol represented an exemption or opt-out from the Charter.
In December 2011 the EU Court of Justice ruled in ME and others that the UK Protocol “on the application of the Charter of Fundamental Rights to the UK and Poland” does not intend to exempt the UK from the obligation to comply with the provisions of the Charter or to prevent a UK court from ensuring compliance with Charter provisions.
In a High Court ruling on an asylum case on 7 November 2013, AB v Secretary of State for the Home Department, the claimant maintained that the Government had breached Article 7 of the EU Charter by causing private information to be disclosed to the authorities in Country A; and had failed to protect personal data in breach of Article 8 of the Charter.
Dismissing all the claims, Justice Mostyn was “surprised” by AB’s reliance on the Charter, as he believed the UK Government had secured an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into UK domestic law. Justice Mostyn emphasised the constitutional significance of the 2011 decision that the UK Protocol is little more than a guide to the interpretation of the Charter.
Commons Briefing papers SN06765
Author: Vaughne Miller