Saeedi is a labyrinthine EU/UK case relating to whether it is permissible for the UK to transfer an asylum seeker to Greece under the Dublin Regulation notwithstanding the likelihood of ill-treatment there. It merits much more substantive comment than I am able to afford it here. However, one small point, conceded in the Court of Appeal on Monday and quietly announced on Doughty Street Chamber’s website yesterday is worth highlighting. The UK Protocol to the Lisbon Treaty relating to the Charter of Fundamental Rights is not, in the eyes of the Secretary of State for the Home Department, or the Court of Appeal, an opt-out. This would perhaps not be worth pointing out at all were it not for Justice Cranston’s finding to the contrary in the High Court.

It is clear from a plain reading of the Protocol that it is not an “opt-out” from the Charter but rather a clarification of its application in the UK. This was acknowledged by Lord Goldsmith, Attorney General for the UK when the Charter was first negotiated, in a speech at the British Institute of International and Comparative Law on 15 January 2008:

it will be clear the UK Protocol does not in any way constitute an “opt out” in the sense of trying to disapply certain rights to UK citizens. That would be neither necessary nor desirable given that the UK fully accepts the rights reaffirmed in the Charter. As the Charter reflects only existing rights, the underlying rights will continue to have effect in the UK, as in all Member States, as they always have done.

Of course, the courts will be able to interpret the rights in the Charter. If the meaning of a right underlying a right in the Charter – for example in the ECHR – is given a more extended interpretation then this will equally be reflected in the interpretation of the Charter. There is nothing new or radical in this. At present the ECJ would do exactly the same in applying the ECHR as part of the fundamental rights in Community law. Indeed, it might be argued that in setting out such rights clearly in one document that the Charter will constrain the addition of new rights.

In brief, the Charter Protocol is not an opt-out but a guarantee. An explicit confirmation that in relation to the UK and UK law, the limitations and constraints on what it is and what it will do will be strictly observed.

Note however that Lord Goldsmith went on to claim that were the Courts to “seek to conjure new or extended rights out of the Charter, than the UK’s Protocol would indeed have teeth”. The principal aim of the UK Protocol was to limit the effect of the economic and social rights in the Charter in the British legal system. During the drafting of the Charter, it was the UK that argued for such rights to be limited by reference to “national laws and practices”. This limitation is contained in Articles 27, 28, 30 (worker’s rights and collective bargaining); Article 34 (social security); Article 35 (health care); Article 36 (access to services of general economic interest); and Article 52 (a general provision referring to the use of the clause in the Charter). The Court of Appeal’s decision does not mean that those economic and social rights in the Charter have suddenly been extended in scope. The limitations inherent in the text of the above articles and in the horizontal clauses (which state that the Charter only applies when Member States are implementing EU law) still apply. However, the decision does mean that the Protocol provides no special exemption for the UK from the terms of the Charter.

More broadly, Article 1(1) of the protocol notes that the Charter does not

extend the ability of the Court of Justice of the European Union, or any court or tribunal… of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of … the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

The key term here is “extend”. It is clear that the Protocol ensures that the Charter cannot of itself afford a competence to the UK or EU courts that they did not already possess. However, it is also clear that the terms of this clause do not limit any existing competences of the UK or EU courts. Further evidence for this claim may be found in the eighth and nineth recitals to the Preamble of the Protocol which describe the Protocol as “clarifying” the application of the Charter to the United Kingdom. Thus, the Protocol does not alter the relationship between UK law and EU law nor the powers of the courts to review that law. Rather it restates the limitations already contained in the Charter. Saeedi has been referred to the European Court of Justice for the determination of far more difficult questions. The Master of the Rolls’ clarification of this one is to be welcomed.

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Written by Cian Murphy