The eu Charter of Fundamental Rights in english law: flickering lights in the twilight of membership

AuthorTakis Tridimas
Pages157-173
THE EU CHARTER OF FUNDAMENTAL RIGHTS
IN ENGLISH LAW: FLICKERING LIGHTS
IN THE TWILIGHT OF MEMBERSHIP
Takis TRIDIMAS
King’s College London
SUMMARY: 1. INTRODUCTION.—2. LEGAL STATUS AND EFFECT OF THE CHARTER IN THE
UNITED KINGDOM.—3. CHARTER RIGHTS.—4. THE REMEDIAL IMPACT OF THE CHAR-
TER.—5. THE SCOPE OF APPLICATION OF THE CHARTER.—6. THE CHARTER AFTER BRE-
XIT: LIBERATION, REGRESSION AND SOME CONFUSION.—7. CONCLUSION.
1. INTRODUCTION
During the forty-eight years long commitment of the United Kingdom
to the European integration project, EU law has had a profound inf‌luence
on domestic law. Not only has EU law been the most important source
of law reform but it also redef‌ined fundamental constitutional principles,
gave more powers to national courts, and inf‌luenced judicial method-
ology. In many respects, the judiciary has been the most pro-European
branch of UK government. Subject to few and isolated exceptions, do-
mestic courts embraced primacy 1, applied the Marleasing principle 2, and,
especially in the last twenty years, made constructive use of the prelimi-
nary reference procedure. They succeeded in reconciling EU membership
obligations with constitutional fundamentals and, where they expressed
criticism towards the Court of Justice, they did so with study, circum-
spection, and deference 3. Overall, the Charter has not been particularly
inf‌luential although it has by no means been inconsequential 4. It has been
1 See the seminal judgment in R v. Secretary of State for Transport ex parte Factortame Ltd
3 See the judgment of Lord Neuberger and Lord Mance in R (on the application of HS2 Ac-
tion Alliance Limited) v. Secretary of State for Transport [2014] UKSC 3, paras 157 et seq.
4 For a detailed discussion, see Lady ARDEN and TRIDIMAS, «Limited but not Inconsequen-
tial: The application of the Charter of Fundamental Rights by English courts», in M. BOBEK and
158 TAKIS TRIDIMAS
applied dutifully but, perhaps, by necessity rather than with enthusiasm.
A number of reasons may account for this. First, the primary addressee of
the Charter was perceived to be the institutions and bodies of the Union
rather than the Member States. Secondly, it competed with well-estab-
lished sources of fundamental rights, including the common law, the gen-
eral principles of EU law, and especially the European Convention, whose
inf‌luence on the law of the United Kingdom since the Human Rights Act
1998 (HRA) has been profound. Given such powerful incumbents, there
has been limited constitutional space for the Charter.
2. LEGAL STATUS AND EFFECT OF THE CHARTER
IN THE UNITED KINGDOM
The Charter became binding as a result of the entry into force of the
Treaty of Lisbon. In domestic law, it acquired binding effect by virtue of
the European Union (Amendment) Act 2008 5, which added the Treaty
of Lisbon to the list of Treaties provided in section 1(2) of the European
Communities Act 1972 6. The Supreme Court readily accepted that the
provisions of the Charter may produce direct effect, including horizon-
tal effect 7. Also, in line with Marleasing 8, during the UK’s membership to
the EU, domestic courts had to interpret national law that fell within the
scope of application of EU law in line with the Charter. Furthermore,
given that the Charter was covered by the primacy of EU law, breach
of its provisions could require a national court to disapply inconsistent
domestic legislation and also give rise to a right to reparation under the
Francovich doctrine 9. In the UK, it was generally accepted that, pur-
suant to its avowed objectives, the Charter does not expand the com-
petences of the Union and reaff‌irms existing rights 10. In line with this,
it was held that the Charter does not expand rights afforded under EU
law 11. This however has to be seen in the light of the dynamic character
of the Charter and the overall system of fundamental rights protection
in EU law, as provide in Article 6 TEU 12. There has been some uncertain-
ty as to the distinction drawn in Article 52(5) of the Charter between, on
the one hand, rights and freedoms, and, on the other hand, principles.
J. PRASSL (eds.), The EU Charter of Fundamental Rights in the Member States, Oxford, Hart Pub-
lishing, 2020, pp. 331-350, on aspects of which this presentation draws.
5 European Union (Amendment) Act 2008 (2008, Chapter 7). The Treaty of Lisbon entered
into force on 1 December 2009.
6 See European Union (Amendment) Act 2008, s 2 adding s 1(2)(s) to the European Com-
munities Act 1972.
7 Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62;
Vidal-Hall v. Google Inc [2015] EWCA Civ 311.
9 Joined Cases C-6/90 and C-9/90 Francovich and Others EU:C:1991:428.
10 See Review of the Balance of Competences, para 3.22, www.gov.uk/guidance/re-
view-of-the-balance-of-competences.
11 See per Lord Kerr in Rugby Football Union v. Consolidated Information Services Ltd
[2012] UKSC 55, para 26; Vidal-Hall v. Google Inc [2015] EWCA Civ 311.
12 See below, section 6.

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