Fundamental Rights Not Euroscepticism: Why the UK Should Embrace the EU Charter

Hodson, Wicks and Ziegler, The UK and European Human Rights: A Strained Relationship, Hart 2015, Forthcoming

Oxford Legal Studies Research Paper No. 82/2014

24 Pages Posted: 22 Nov 2014  

Sionaidh Douglas-Scott

University of Oxford - Faculty of Law; Queen Mary University of London

Date Written: November 20, 2014

Abstract

Should the UK Human Rights Act be repealed, another European Human Rights Charter would still remain in force in the UK - the EU Charter of Fundamental Rights. This instrument has also come under attack – for example, by the 2014 recommendation of the House of Commons European Scrutiny Committee that legislation be passed by the UK Parliament disapplying the Charter in the UK.

However, we should be clear that the adoption of such legislation would place the UK in breach of its obligations under EU law, and open to financial penalties. This article considers the impact of the Charter in the UK, arguing that the European Scrutiny Committee is misguided in its call for its disapplication. Much of the Committee’s report targets a lack of clarity in certain aspects of the Charter, including a fear that it could be used to extend EU competences. The report also expresses some frustration that the UK’s so-called ‘opt-out’, in Protocol 30 Lisbon treaty, is in fact incapable of operating as such, despite the great claims made for it by some politicians at the time of its drafting.

However, I argue that, while there are some uncertainties in the Charter’s application, these are no greater than those applying in human rights law generally, and CJEU caselaw is in any case clarifying this law. On the other hand, we should be clear that the alternative of disapplying the Charter in the UK would lead to far greater legal uncertainty and also expose the UK to large fines for breaching EU law. But crucially, what the Committee report also ignores is the important protections and safeguards that the Charter offers against an overreaching EU – safeguards which have become visible in cases such as Digital Rights Ireland, in which the CJEU invalidated a whole EU measure for its failure to comply with the Charter. The last section of this article considers the Committee’s recommendation as a part of a broader euroscepticsm about fundamental rights, both within the UK and in the EU more generally.

Keywords: human rights, EU, UK Constitutional law, EU Charter of Fundamental Rights, European Court, euroscepticism, Human Rights Act, judicial activism

Suggested Citation

Douglas-Scott, Sionaidh, Fundamental Rights Not Euroscepticism: Why the UK Should Embrace the EU Charter (November 20, 2014). Hodson, Wicks and Ziegler, The UK and European Human Rights: A Strained Relationship, Hart 2015, Forthcoming; Oxford Legal Studies Research Paper No. 82/2014. Available at SSRN: https://ssrn.com/abstract=2528768

Sionaidh Douglas-Scott (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

Queen Mary University of London ( email )

School of Economics and Finance
Mile End Road
London, E1 4NS
United Kingdom

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