THE EMERGENCE OF THE EU CHARTER OF FUNDAMENTAL RIGHTS IN UNITED KINGDOM LAW

Richard Clayton Q.C. & Cian. C. Murphy

On 1 December 2014 the EU Charter of Fundamental Rights will have been in force for five years. The Charter is a lengthy text that reflects the state of human rights law in the European Union at the time of its initial agreement on 7 December 2000. Brought about at the turn of the millennium, in part because of the EU’s (then) inability to join the European Convention on Human Rights (ECHR), the Charter contains the rights and freedoms of the Convention alongside more contemporary expressions of human rights such as social and economic rights. Although at first the Charter was not binding on the EU or its Member States, the Member States agreed to afford the Charter full legal force with the coming into effect of the Lisbon Treaty. In the face of domestic political opposition to the Charter, the Prime Minister, Tony Blair, announced that he had secured an “opt-out” for the UK through a Protocol to the Lisbon Treaty. Mr Blair declared it “absolutely clear that the Charter of Fundamental Rights is not going to be justiciable in British courts or alter British law”.

The confusion over the accuracy of this statement reached its zenith in the aftermath of the judgment in R(AB) v Secretary of State for the Home Department last year.  In AB Mostyn J decided that a failed asylum seeker was not subject to a risk of torture or inhuman or degrading treatment following his deportation from the UK. The claimant argued, amongst other points, that the Secretary of State breached Article 7 of the Charter by causing private information to be disclosed to the authorities in the recipient state, and that she breached Article 8 of the Charter by failing to protect the claimant’s personal data.