High Court judge Mr Justice Mostyn has claimed that an EU rights charter is already part of English law despite the government opting out of the legislation.
The Charter of Fundamental Rights of the European Union contains 54 articles setting out a range of social and personal rights for EU citizens, including the right to ‘marry and found a family’, the right to life, the right to fair working conditions and the presumption of innocence.
The Charter was introduced into EU law as part of the Treaty of Lisbon in December 2009. However, the UK and Polish governments negotiated a special opt-out which meant that the Charter would not give either the European Court of Justice or domestic courts the right 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 [the Charter] reaffirms.”
But in a recent ruling concerning an asylum seeker, while rejecting the man’s citation of the Charter in a bid to win his case, Mr Justice Mostyn noted an unpublished ruling by the European Court of Justice from 2011, which stated that the protocol regarding the UK and Poland ““does not intend to exempt the UK from the obligations to comply with the provisions of the Charter”.
The European Court of Justice is the supreme legal authority in Europe and its rulings are therefore binding within all member states.
Lord Justice Mostyn said: “The constitutional significance of this can hardly be overstated.” However, Justice Secretary Chris Grayling subsequently told MPs that the government’s legal advisors did not share the Lord Justice’s interpretation, saying the government was actively searching for a test case to “clarify [the situation] beyond doubt and put the record straight”.
“If it were to be found [that the Charter has a] broader legal reach than we understand to be the case, we would take rapid steps to address it.”