Limiting EU human rights law

"It is right that we also consider the role of the European Court of Justice (ECJ) and the Charter of Fundamental Rights.

So—as was agreed at the time of the Lisbon Treaty—we will enshrine in our domestic law that the EU Charter of Fundamental Rights does not create any new rights.

We will make it explicit to our courts that they cannot use the EU Charter as the basis for any new legal challenge citing spurious new human rights grounds."

David Cameron, 10 November 2015

"Can only stop Charter having effect in UK courts via primary [legislation] ... Wd be in fundamental conflict with [EU membership]"

Dominic Cummings, Vote Leave, 10 November 2015

Yesterday the Prime Minister made a speech on the government's renegotiation of the UK's membership of the European Union, which was quickly followed by the publication of a letter to the President of the European Council.

While much of the content was familiar from previous announcements, there was some new detail. In particular, Mr Cameron's speech touched on EU human rights law.

As we've pointed out before, this law has been less significant than the (non-EU) European Convention on Human Rights and associated Human Rights Act to date. But it only became legally binding in 2009 as the Charter of Fundamental Rights. It has the potential to be very important as time goes by.

Because of the Charter and how it's been interpreted by judges, even if we were to scrap the Human Rights Act, people could still use this EU law to run human rights arguments in British courts (at least in some circumstances).

That's why we wrote last month that, leaving aside the possibility of invoking common law rights, "we'd need to both leave the EU and repeal the Human Rights Act to prevent anyone from relying on human rights in court".

Mr Cameron now appears to claim that there's another option: to pass a law saying that the Charter can't be used in this way.

But the EU Court of Justice has said that the Charter applies here. It accepted, like Mr Cameron, that it doesn't create any "new rights"—but that it makes plenty of pre-existing rights enforceable by courts in the UK. Judges have used that power in several recent cases.

If the Prime Minister's proposal is to say that only cases involving "new rights" can't happen, that seems to be just restating what EU law already says, and cases like these might still happen.

If, on the other hand, the phrase "any new legal challenge" means that Mr Cameron doesn't want the Charter used at all, a law to that effect would contradict the Court of Justice.

We can't be sure, but a British judge might decide that breaks EU law, which takes priority over UK law—meaning that the UK legislation would be over-ridden.

Dominic Cummings of the Vote Leave campaign noted on Twitter that there is a way of avoiding this potential problem. EU law has this special, higher status in our legal system because of UK legislation—the European Communities Act 1972.

So Parliament could do what it wants on the Charter by explicitly saying that it's making an exception to the European Communities Act. Judges would then be likely to accept that the Charter doesn't apply, even if that were a breach of EU rules.

As Lord Mackay of Clashfern, a former judge, politician and law officer, once put it, "that would be a problem for the Government and Parliament to deal with, rather than the courts".