R (AB) – v – The Secretary of State for the Home Department  EWHC 3453 (Admin) 7th November 2013
This was a deportation case but it contains an extremely important decision on the question of the applicability of the Charter of Fundamental Rights of the European Union in the UK Courts. The British and Polish Governments secured, at the negotiations on the Lisbon Treaty, an opt out from the incorporation of the Charter into their domestic law.
The 7th Protocol to the Lisbon Treaty provides as follows:-
Article 1 paragraph 1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
Paragraph 2. In particular, and for the avoidance of doubt, nothing in…the Charter creates justiciable rights applicable to Poland or the United Kingdom except insofar as Poland or the United Kingdom has provided for such rights in its national law.
Mr Justice Mostyn concluded, on this point:-
However, my view that the effect of the 7th Protocol is to prevent any new justiciable rights from being created is not one shared by the Court of Justice of the European Union in Luxembourg. In Secretary of State for the Home Department – v – ME and Others (21 December 2011) it was held in paragraph 120 that:-
‘Article 1 (1) of [the 7th] protocol explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligations to comply with the provisions of the Charter or to prevent a Court or one of those member states from ensuring compliance with those provisions’.
The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention of Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon, it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.
To give just one example from the Charter, Article 7 states:-
Everyone has the right to respect for his or her private and family life, home and communications.
Importantly this is not a qualified right.
Mr Grayling, the Secretary of State for Justice, has indicated that he is looking for a test case to challenge the decision in AB. In the meantime, the decision in AB should be used and we advise our readers to get acquainted with the Charter of Fundamental Rights. See http://ec.europa.eu/justice/fundamental-rights/charter/