Readers in London will know how contentious the Human Rights Act in the UK has been.  Issues like prisoner voting and the protracted proceedings over the extradition of terrorist suspect Abu Qatada drive calls to reform human rights law.  However, a recent High Court ruling has brought disputes such as these to the heart of relations between the UK and the EU, setting the scene for a constitutional clash between the UK Parliament and the European Court of Justice (ECJ), which is bound to affect any renegotiation or referendum on the UK’s future in the EU.

When the previous government was first negotiating the EU Treaties around the proposed EU Charter of Fundamental Rights, the then Minister for Europe, Keith Vaz, claimed that it ‘would have no greater legal standing before EU judges than a copy of the Beano [a children’s comic] or The Sun [newspaper].’  When the Charter was incorporated into the rejected EU Constitution, which was later adopted in the form of the Lisbon Treaty, the then Prime Minister, Tony Blair, claimed to have obtained an opt-out from it.  Now, a ruling of the High Court has confirmed the opposite.

On 7 November, Mr Justice Mostyn gave a ruling in the High Court on a claim for judicial review brought against the Home Secretary by a foreign national who had been removed from the UK.  His case relied in part on his right to respect for his private life and right to protection of his personal data under Articles 7 and 8 of the EU’s Charter of Fundamental Rights, which the claimant said was given the force of treaty law by the Lisbon Treaty.

In his ruling, Mr Justice Mostyn said he was ‘surprised’ by this because he ‘was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law, and thereby, via operation of the European Communities Act 1972, directly into our domestic law…However, my view that the effect of the…protocol (applying the Charter under the Lisbon Treaty) is to prevent any new justiciable rights from being created is not one shared by the Court of Justice of the European Union in Luxembourg.’

He cited an ECJ case involving the Home Office in December 2011, in which the ECJ ruled:  ‘Article 1(1) of…[the] protocol explains article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligations to comply with the provisions of the Charter or to prevent a court of one of those member states from ensuring compliance with those provisions.’

This seems to contradict the protocol itself, which stated: ‘The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, 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 it reaffirms.’

British judges are not noted for exaggerating or strong statements, so when Mr Justice Mostyn commented, ‘The constitutional significance of this decision can hardly be overstated,’ he should be taken very seriously.  To explain this he said, ‘Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law.  Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.’

Both Tony Blair and Gordon Brown claimed that the UK had an opt-out from the Charter and that the Charter would not extend the ability of the ECJ to rule against UK laws and policies.  Others doubted that this would contain the ambitions of the ECJ.  This is because the Charter does not prevent the ECJ from making its own teleological interpretations to create new rights, but presenting them as existing EU rights.  Thus, the Court argues that the Protocol’s statements that the Charter does not ‘extend’ the powers of the courts, or that nothing in it ‘creates’ justiciable rights, is consistent with their position that these powers and rights already existed in EU law.

David Cameron recognised this in 2009, when he pledged:  ‘The second British guarantee we will negotiate is over the Charter of Fundamental Rights.  We must be absolutely sure that this cannot be used by EU judges to re-interpret EU law affecting the UK…We will want a complete opt-out from the Charter of Fundamental Rights.’

The significant point is that this is the position of all three main UK political parties.  When this matter was raised in the House of Commons in an urgent question on 19 November, there was complete agreement across the House of Commons that the Charter of Fundamental Rights should not apply in the UK, even from the Liberal Democrats.

There will be attempts by the government lawyers to minimise the significance of this judgement, or to pretend there is nothing surprising about it and that it can be reversed by the judges on some future occasion.  These are the same lawyers who have got such matters wrong for the last 25 years.  The ECJ is most unlikely to retreat, because it never does.  It operates according to the doctrine of the ‘occupied field’: once a competence has been incorporated into EU law, it cannot be returned to the member states.

If the government had proposed a treaty change to include the Charter of Fundamental Rights into British law, that would have triggered a referendum under the European Union Act, passed only two years ago.  The ECJ has effectively circumvented a referendum.