Oral evidence: The Application of the EU Charter of Fundamental Rights in the UK, HC 979Wednesday 22 January 2014
Oral evidence, 22 January 2014.
Witness
Rt Hon the Lord Goldsmith PC QC, gave evidence.
Chair
Lord Goldsmith, thank you very much for coming. I am sorry we have been rather delayed, partly because of the vote. I think the sooner we get on, the better. I have, first of all, an introductory question to put, apart from thanking you very much for coming today. In order to save time, can I ask you, first of all—to try to clear some of the undergrowth—whether you agree with the following five general propositions, which we believe summarise your written evidence, before we turn to any more detailed questions? Firstly, the Charter does not create new EU fundamental rights, but consolidates existing rights in a more visible form.
Lord Goldsmith
Yes.
Chair
Secondly, it distinguishes between rights, freedoms and principles, the last of which are not directly enforceable.
Lord Goldsmith
Save to the extent that they are then enacted into national law or possibly international law through specific EU legislation.
Chair
Thirdly, the horizontal articles clearly restrict the application of the Charter.
Lord Goldsmith
Amongst other things, yes.
Chair
Protocol 30 is not an opt-out protocol; it is an interpretive protocol, which underscores the limited application of the Charter and applies equally to all member states.
Lord Goldsmith
Yes, but let me just clarify that. It certainly was not intended as an opt-out but as a guarantee. It is a guarantee of what the Charter is supposed to do, but because it is legally binding, if the Charter were to be interpreted as going beyond what the Protocol envisages, then it would have legal effect.
Chair
Lastly, in the unlikely event that courts do interpret the Charter to create new or extend existing rights, the Protocol may provide the UK and Poland with additional safeguards.
Lord Goldsmith
I think that is what I have just said. That is a summary of the last point I was trying to make.
Mr Clappison
Lord Goldsmith, you represented the Government in the Convention that drew up the Charter. Can you explain how you were able to satisfy yourself that each of the articles reflected pre-existing rights, freedoms or principles that apply to all EU member states, so that nothing new was established by the Charter?
Lord Goldsmith
Well, essentially, because that is set out in the explanations. Can I just say something about the history of the explanations? The political framework in which this was happening was that there was a strong call for an EU-wide statement of fundamental rights for several reasons: one, some people wanted it just because they wanted to see a statement of fundamental rights at the European Union level. Other people believed it was important—and I shared this view—that the EU institutions, and member states therefore when they were implementing Union law, should be constrained in what they did by exactly the same sorts of fundamental principles regarding the protection of individuals that apply to national governments. Now, the EU was not subject to the ECHR. Strictly speaking, it was not a party to the ECHR, although European jurisprudence had grown up the idea that the ECHR was a part of the general principles that apply to the European Union. Otherwise, the consequence was that individuals might find themselves subjected to abuses of power by Brussels, which would not be constrained in the same way that abuses of power by a national government would be by a domestic constitution that protected fundamental rights, or indeed by the ECHR.
Mr Clappison
Can I just ask about one point arising directly out of that? I understand that, but it is the case, is it not, that the Lisbon Treaty does contain provision that the European Union shall accede to the European Convention on Human Rights?
Lord Goldsmith
That is true. At the time the Charter was being drafted, there was some discussion about the possibility of meeting these objectives—or some of these objectives, because we could not have met all of them—by the EU acceding to the ECHR, which it could not do at the time because it did not have the power to do so. Eventually, the decision was made to do that as well, but, by that stage, the Charter had been drafted and it had been dealt with in the intergovernmental conference, so that really became an addition. Of course, just to underline the point I made a moment ago, the rights we are talking about are not simply ECHR rights; they are fundamental rights that derive from other instruments. And the idea behind the explanation I am going to explain is that what we were faced with is that many people wanted a broadly stated Charter of Rights. I have described it occasionally as a sort of poetic statement, in the way that constitutions often are. Everyone is entitled to liberty, freedom, the pursuit of happiness and so forth. From a legal point of view, it is very nice to have that, but it is very dangerous to have that. The risk is that you do not know what it is that you have created, because a court can interpret that in a particular way. My proposed solution to that was to have the Charter in two parts. Originally I called it part A and part B. Part A would have this nice statement of rights, as indeed the ECHR has itself, because it expresses things in a short, clear, poetic way, but there would be a part B that told you what the detail was. The part B became the explanations, which tied the individual statement of rights back to the underlying right that it was, as it were, reflecting—was making more visible. That was what the Cologne conclusion said: “Make these rights more visible.” That is part of the reason why it was not creating new rights. That is why the explanations were important. The first time around, of course, the Charter was declared simply in a solemn but non-binding way, so it did not matter. The status of the explanations was a bit ambiguous. Then, when we came to possibly including them in the draft constitution—when that episode took place—more attention was paid to the explanations and a form of words was agreed that would give the explanations a force. Then, in the Lisbon Treaty, they are given a force in Article 6, but they are given, in a sense, almost even more force in Protocol 30. Article 6 talks about due regard to the explanations, whereas the Lisbon Protocol—Protocol 30—talks about strict compliance with the explanations. That was what we wanted in order to underline the importance of the explanations—tying the rights back to the existing rights.
Mr Clappison
One issue—one of the rights—that has caught my eye purely because it is something that is subject to quite a lot of public interest at the moment is Article 34 on social security and social assistance. I do not know if you have got it there in front of you.
Lord Goldsmith
I have, yes.
Mr Clappison
Article 34(2) says: “Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices.” Can you be sure that Article does not give rise to more rights than were in existence at the time the Charter was framed?
Lord Goldsmith
If you take into account the Protocol, it does become important at this stage. Whether it was necessary is another issue, and that is one of the reasons one starts to say things like “for the avoidance of doubt” because you think the Charter already does provide something. This appears in Title 4, and in Title 4 they are called solidarity rights, but they are really social and economic rights. That was one of the biggest issues for the United Kingdom. A lot of countries want to see social and economic rights made justiciable. It is a very live issue in terms of human rights. The social charter, of course, was very much in existence at the time. The UK did not want to go further than we were already at that stage, and it was quite a neuralgic issue. This was the area particularly where principles came in. What the Protocol was doing, and I know you have it very clearly in mind from the questions I have heard already, was to say that in relation to Title 4, which is what Article 1(2) relates to—solidarity rights; the social and economic rights—it is made very clear in Protocol 30 that does not create justiciable rights applicable here or, indeed, in Poland, except to the extent that we have provided for those in our national law. If we provide, therefore, for social security rights in our national law, which may be as a result of implementation of Union law, then the Charter is saying, “Well, those rights are there.” However, insofar as we have not created them, they are not in existence other than by virtue of a general statement in the Charter. The Charter does not create any further rights.
Mr Thornton
Some of that bears directly on the next question. Some of the articles are not derived from pre-existing EU obligations. Let us take, for example, Article 3 (2)(b) which prohibits eugenic practices and is derived from the Rome Statute of the International Criminal Court. What consideration was given to the effect of placing non-EU obligations such as this in a Charter of EU fundamental rights?
Lord Goldsmith
I do recall the debate. Bearing in mind the genesis of the ECHR in the horrors of the Holocaust, there were certainly views that certain of the prohibitions that had been accepted as applicable in international law subsequently should be reflected. Therefore, some of these came in for that reason. But they are obligations that applied to the national states in any event. I think you could ask the question—I cannot remember whether we did ask the question and what answer we gave ourselves—as to whether or not those have, in any event, become principles of international law that are binding in customary international law and, therefore, would have applied to the EU as well. I hope that we would all take the view that, if the EU were suddenly to set up some laboratory for carrying out eugenic practices of that sort, we would want to know that there was something to stop them doing it.
Mr Thornton
These sort of non-EU ones were ones that would have been generally accepted anyway internationally, like eugenics law.
Lord Goldsmith
Yes, certainly. I am not sure how many there are. You have obviously found one.
Mr Thornton
That would be an exception rather than the rule?
Lord Goldsmith
Would you permit me just to look at the explanations for a moment to see what we actually said about that? That is the explanations as they were updated. It is quite interesting that the President of our Convention was President Roman Herzog, who had been President of the German Constitutional Court and also President of Germany. He—I hope he would not mind me saying so—for reasons which were understandable had some pretty strong views on some of these very basic issues, no doubt drawn a little bit from history. Forgive me. This is Article 2…
Mr Thornton
That was Article 3(2)(b).
Lord Goldsmith
I am so sorry—thank you. Yes. I see there is a reference in the explanations to the Convention on Human Rights and Biomedicine, which had been adopted by the Council of Europe and all EU members of the Council of Europe in Protocol ETS no. 168. There is also a reference to acts deemed to be international crimes in the statute of the International Criminal Court, to which all members of the EU had subscribed. In any event, it is regarded generally as setting out principles of customary international law, insofar as it sets out prohibitions at least.
Mr Thornton
I notice under Title 1 we also have prohibition of slavery and stuff like that.
Lord Goldsmith
That is ECHR.
Mr Thornton
Would you say these are mostly internationally accepted rights that would be generally accepted?
Lord Goldsmith
That is an ECHR prohibition. So, essentially, the idea was that the most important single body of law setting out what the prohibitions were that generally apply to member states and ought to apply to the EU institutions was the European Convention on Human Rights. There were other areas, too—some of them in EU law specifically and others in the general principles of international law. We, as a Convention, determined which of those we thought were appropriate to be described as visible. The point I am trying to emphasise is that none of them were rights that we created; they were all existing rights. There was some discussion about minting new rights, but we moved quite quickly to the position that we were not going to mint new rights; we were going to make use of the existing rights.
Michael Connarty
We have touched on the attitude of President Herzog and his attempt to make this something that could be transferred into the treaties. What difference would have to be made to that Charter to make it such a thing? I am conscious that the comparison was made by one of our previous witnesses with the German Constitutional Court, notwithstanding the suggestion that was made in our last question to them. How did he propose that the Charter could have been amended to make it a part of a binding treaty? I remember the debate at the time.
Lord Goldsmith
Historically, what happened was that I did not think at the time we were doing the negotiation we would end up saying it was legally binding. Indeed, we did not; eventually it was declared in a solemn way. But President Herzog said that we ought to draft it as if it was going to be legally binding, and that was a good legal principle to apply. Getting everyone to follow that principle was much more difficult. The political debate would sometimes be, “But this is a statement; this is a declaration. So what is the problem?” I think I irritated a lot of people by trying to focus in often on the detail of it. I thought it was essential to have the horizontal articles and the explanations and to try to write the Charter as closely as possible to existing rights, and not to rewrite ECHR rights, even though it made modern sense. The risk is that if you give a lawyer the same right described in two different ways, they will find a difference. That is what I wanted to try to avoid. When it came to making it legally binding, there were adjustments made to the horizontal articles and to the explanations. I do not think there were any changes made to the substantive articles themselves. I was not personally involved in that, but the horizontal articles and the explanations were changed in order to make it more fit to be part of a treaty. Originally it was going to be the constitution, and then it came into Lisbon.
Michael Connarty
You described it in an answer as a political statement. You said at the time it was a political statement. I recall interrogating Ministers; it was stated it was a political statement and that it was not, in fact, a binding new set of rules. I want to quote to you from the question I asked the Prime Minister at the time. It is in the evidence of 2 October 2007, when we had the European Minister at the time, the Member for East Renfrewshire, before us. I asked the Prime Minister about what the red lines would be, and the first one he said was: “First, we will not accept a treaty that allows the charter of fundamental rights to change UK law in any way.” Do you think that is still a tenable position given the recent comments in the UK courts?
Lord Goldsmith
I think it is. We had certain objectives, which were: no new rights and that we were not going to make social and economic rights justiciable except to the extent that we put them into law. That was the slightly complicated principles thing. I noticed some of the witnesses said that is a bit difficult to follow in the Charter. That is a fair criticism, which is why I think Article 1(2) of the Protocol gets that right. It really picks up on Title 4, which is about the socio-economic rights, which are the ones that really matter. We did a good job in relation to that and it is still the case. We did it against quite a lot of difficult opposition, because people wanted to go further and there was a lot of anxiety about it.
Michael Connarty
In the evidence we heard earlier, a word was used a few times, particularly by our academic colleagues. The word “implementing” was to be judged as “within the scope of”, which seemed to extend the power of the Charter—the rights within the Charter. Do you think that the use of “implementing” rather than “within the scope of” in Article 5(1) of the Charter reflects an intent to limit the scope of the ECJ’s rights of review, or is it to be read as consistent with the ECJ’s previous approach in reviewing EU measures on the basis of fundamental rights as a general principle of EU law?
Lord Goldsmith
The ECJ has now in Fransson dealt with that debate—whether or not the words “implementing Union law” should have a narrow or a broader meaning. They said that really it is the broader meaning. I have seen evidence from the academics, of whom at least one has said, “I think that is right.” At the time of drafting, we were a little bit unsure in our own minds quite how that would work. We wanted it to be focussed definitely on Union law. I do not regard it as a problem that Fransson has given us somewhat the broad interpretation, because it is still a question of the application of EU law. I look at it from the point of view of the protection of people against abuse of power, if Brussels is imposing a tax, you want them to be bound by rules that are fundamental protections for all of us. Equally, if a member state is doing it, that is what you want as well. I am not sure, from that point of view, it matters enormously if it is the narrow or the broad interpretation. Either way, it is producing very important protections for the average individual. That is why I said, if you will forgive me saying so, in my written evidence that it seems illogical and paradoxical that people who are obviously concerned about potential overreach of power by Brussels—by the European Union—are complaining about a document whose very purpose is to constrain what Brussels does, not to extend it. Everyone agrees that it does not extend what Brussels does. That has been said about six times in different instruments. Could I just also say this? You prefaced your previous question by saying, “See what the UK courts have said.” If, with respect, that was a reference to Mr Justice Mostyn’s decision, with all respect to him, he got that wrong. I have explained why I say he got that wrong in my written evidence, but others have said that as well. I think even where he quotes from the NS case, he quotes paragraph 120, whereas the paragraph that matters is paragraph 119, which has the ECJ saying that it does not create new rights. As to the effect of Protocol 30, the Charter does have to be interpreted in accordance with the explanation. If anything, that case does not suddenly show that this is all terrible; on the contrary, it is the ECJ saying that the Protocol does what it says on the tin.
Jacob Rees-Mogg
Following on from that and your view that it does not extend the competence of the EU, it does include many rights that touch on areas beyond the EU’s competence. What are the risks that this will inform EU policies or court decisions and thereby as a side-wind extend the EU’s competence?
Lord Goldsmith
The EU’s competence ultimately can only be extended through the instrumentality of the member states, as I understand it. Obviously, the EU has been a changing institution and, as a result, its powers have changed. Each time that there is a new treaty or an intergovernmental conference, the likelihood is that people will be arguing for a change and a change in competences. Sometimes people may think it is a very good thing that the EU is taking on certain additional competences in relation to fighting terrorism, for example; others may take a different view. I do not think the Charter does it; it is the political dynamics of Europe that change the competences of the EU.
Jacob Rees-Mogg
Do you think that court decisions under the Charter could extend the competence? You are confident that is the case.
Lord Goldsmith
It says very clearly in the horizontal articles that it does not. That was not a matter of controversy so far as the Convention members were concerned.
Jacob Rees-Mogg
Could I go back to something Mr Connarty was asking you about regarding the Charter being drafted as a political declaration? How differently would you have approached the negotiations in the Convention if the intention had been for the Charter to be a legally binding one from the outset?
Lord Goldsmith
I suppose I would have said, “If you are going to do this, you need to draft a longer document.” In a sense, that is what I did. People will not accept long documents for bills of rights. What I was doing, therefore, was to say, “Let’s have a general statement of right, but let’s have a part B that is all the detail.” That is what then became the explanations. I might have found it easier to argue some of these points if everyone had known that it was going to be legally binding, but I am not sure it would actually, at the end of the day, have made much difference.
Jacob Rees-Mogg
Following on from that, you wrote for the Common Market Law Review in 2001, which you sent us with your evidence, where you said: “My own view is that the political declaration route was the right approach. There are two reasons for that. First, it is easier in a political declaration to show a clear statement of values which people can understand without the qualifications and exceptions necessary in a written law. The second reason is that in the end I believe the Charter lacks the precision of language necessary to allow it legal force. President Herzog wanted us to draft so that the Charter could be integrated into the Treaties if that was subsequently decided. In this respect I believe we have not succeeded. Even with the helpful commentary produced by the Presidium, the Charter will lack the precision necessary for a law. So whilst it should be acceptable and valuable as a political statement, my own view is that this text is not suitable for incorporation into the Treaties whether directly or by cross-reference.” Do you tell us now that the helpful commentary you referred to became the explanations for the Charter?
Lord Goldsmith
It did, but it was amended, and quite a lot of work was done negotiating. One of the difficulties in getting everyone to sign up to the explanations was that the secretariat for the Convention did not want to ask—I may make a revelation here— member states to agree the explanations, no doubt because they thought it would be a very complicated process. It was complicated enough as it was. It was not a very popular thing that I had done, to create this second part. We did not have that degree of consensus on it. The status of the explanations has changed from the commentary that was specifically described as non-binding to the position we now have in Article 6 following Lisbon and in Protocol 30. The commentary has been given a very specific legal status, which is even stronger so far as the UK is concerned because of Protocol 30. But it is still a strong legal status as far as other member states are concerned. That was a very important part of the negotiations—the difficult negotiations—that took place at the time of the negotiation on the draft constitution.
Jacob Rees-Mogg
Can I just clarify? Do you think that the explanations have the same status as the Charter legally?
Lord Goldsmith
No, the explanations are a tool for the interpretation of the Charter. The dispositive provisions are in the Charter, if you will. The explanations identify what those are, but they are now rather more than just a sort of commentary. The wording of the preamble to Protocol 30 is that “Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article”. I would say, “Well, that’s what Article 6 says,” though it does not actually use the word “strictly”. There is a bit more there. However, it gives them a much stronger legal effect than they had at the time of the Nice Declaration, because then it would have been said, “Oh, they’re just a commentary that has been published.”
Jacob Rees-Mogg
To what extent can your concerns in 2001 about the lack of precision necessary for the Charter to become law have been overcome by making the explanations a binding interpretive tool and amending the horizontal articles? Do you now move away from what you said in 2001?
Lord Goldsmith
You judge a situation, as a lawyer says, where you are. This, broadly speaking, has worked. I cannot rule out that there will be some area that gives rise to some interpretation I was not anticipating, but in relation to the big issues, for example, whether the rights corresponding to the ECHR are to be interpreted that same way as they would be by a court in Strasbourg and, therefore, now by our courts under the Human Rights Act, I believe that has succeeded. As I mentioned—I may not express it terribly well—in my written evidence, it is interesting to note that the point that gave rise to the reference in the NS case, which included the question “Does the Charter do something differently?” was the fact that, at the time the case was referred by the UK court, the European court in Strasbourg had made an interpretation in relation to rights of extradition. Some people thought it was too narrow and therefore wondered if the Charter could give a more generous interpretation. This is explained by the Advocate General in her opinion. What subsequently happened was that the European Court of Human Rights I would say amended—they may say modified or developed—their understanding of what that right actually meant, so that you ended up with a situation where the reference would not have been necessary because nobody would have said that the Charter says anything different from the ECHR on that particular point.
Chris Kelly
There is confusion among academics and practitioners alike about the meaning of Article 52 subsection 5. Would you give us your explanation of its meaning, please?
Lord Goldsmith
I underline, of course, that I am not speaking for the Government, in which I no longer have any role. They may have different views about whatever this means. What this was intended to do was to say there are, in this Charter, things that are not justiciable rights so let us call them principles, and those inform the way that the EU may legislate. What the paragraph is trying to do is to say that they are not justiciable as they stand, but they may be implemented by legislative and executive acts. When it comes to interpreting the acts that purport to implement them, then you can have a look at the general principles. The end result is that it is, in fact, expressed more happily in the Protocol by Article 1(2) simply saying that they are only justiciable rights to the extent that they are created in national law. What we added in 52(5) was these words: “These shall be judicially cognisable only in the interpretation of such acts and in ruling on their legality.” That means you can only have regard to the Charter in this area—the area of principles—when you are looking to see what the legislative act purporting to make that principle into binding law is, when you are interpreting that, or when you are ruling on its legality. In other words, if you have a principle in relation to minimum wage, that does not mean there is a minimum wage. But once states implement a minimum wage or if the EU were to implement a minimum wage, when it comes to interpreting what the legislation means when it says “minimum wage”, you can look at the principles in the provisions of the Charter to understand it, to interpret it and also to see whether it is lawful. That was the intention. Protocol Article 1(2) actually has a narrower effect as far as the UK is concerned because that is saying “in that field”. If it is not implemented in the UK, it is not justiciable.
Chair
What was the Government’s policy on the EU accession to the European Convention on Human Rights?
Lord Goldsmith
I cannot fully recall. We certainly had some discussion of it at the time that we were doing the Charter. The Government had already signed up in Cologne to the setting up of the body, as it was then called—it then became a Convention—to set out these rights more visibly. Accession to the ECHR would not have solved the whole of the problem, because it would not have dealt with any rights that did not derive from the ECHR. As you rightly pointed out, there are quite a number that do not derive from the ECHR. It is one of the errors that Mr Justice Mostyn made in thinking that the Charter was only dealing with the ECHR. It is not; that is very clear. I cannot recall precisely what the policy was, but it would not have been an adequate solution to what was being done. You might have argued, “Well, if you’ve got the ECHR rights in by an accession, you don’t need them in the Charter.” But it would have been a very odd Charter in those circumstances. Evidence was taken on this, I recall, by the House of Lords scrutiny committee. I know that they thought accession was one of things that should happen and ultimately it did. The short answer is I cannot recall precisely what the policy was, but it would not have been an adequate solution to the issue we were faced with.
Chair
On that point, did you personally think it was necessary for the EU to accede to the European Convention on Human Rights?
Lord Goldsmith
No, I did not. Indeed, I could see a problem with that because then you do end up with two courts interpreting the same instruments, and that gives rise to potential difference. We have seen that. There have been one or two cases where the ECJ and the ECHR have reached different views. I was not a particular proponent of it and I know we did quite a lot of work on what the implications would be. I apologise that I cannot recall precise details.
Chair
In relation to the Charter, the whole question turns ultimately on the fact or the law that, because it is within the framework of the Luxembourg court, for practical purposes it has implications in relation to sovereignty, which we were discussing with the professors and practitioners before you came in. Therefore, it does have a relevance to the question of how you end up interpreting the impact of that Charter through Section 3 of the European Communities Act if the court—the European court—has made a decision and we then end up finding that we have got a position in which the European court has said one thing and an act of parliament has said another.
Lord Goldsmith
That, of course, happens, and I hope you are not going to ask me about prisoner voting rights, because that is obviously an area where that particular conflict arises. I thought, if I may say so, that David Anderson put it well in his written evidence, or perhaps it was his oral evidence. I noted that he said that one really ought to see that the Charter is not some sinister inroad into our sovereignty but is there particularly to provide protection against abuses by the European institutions against us. That is how I see it. I see it as a good thing. I am glad that we did it. I regret that Mr Justice Mostyn has raised a number of hares—I do not blame him; it is a difficult area—by his misapplication.
Chair
No one is in any serious doubt that there are constitutional implications if you end up in a position in which you have something adjudicated by the European Court of Justice in conflict with an act of parliament. That is an important question, is it not?
Lord Goldsmith
With respect, that does happen. It happens with many international obligations that we assume. It may turn out that the international obligations that we have assumed are in conflict with existing national laws. So far as the European Convention is concerned, the Human Rights Act produced quite an elegant solution to that. But the fact remains that, if there is a British act of parliament that says A and the Strasbourg court—never mind Luxembourg—says, “No, it’s not A; it’s B,” we are in breach of our international obligation. Prisoner voting rights demonstrates what the dynamics are about how those two positions get reconciled, if they do.
Chair
Moving to Article 52(3) of the Charter, can you explain what intention lies behind that Article?
Lord Goldsmith
The horizontal articles changed between the time that we drafted the Charter and when it was attached to the draft constitution. I think that is how it came about. In any event, I can tell you that the intention was to deal with an issue that some of us thought was significant: not to create a disconnect between what the ECHR required and what the Charter might be saying was applicable to the EU simply—“simply” is the wrong word because it is an important point—for the reason that I gave earlier. You do not want to have the same right expressed differently in two instruments because that only encourages lawyers to say these differences are deliberate. For example, let us consider Article 8 of the European Convention on Human Rights, which talks about privacy of correspondence. At the time, in 1950, it made sense. Today, of course, correspondence, if you interpreted that as meaning letters, would be wholly inadequate, so that was changed to “communications”. But that is actually what the European court in Strasbourg would say it means now in any event. The point was to try to tie the statement of the corresponding ECHR right back to the ECHR and its jurisprudence.
Chair
Last year, in December 2013, the European Commission proposed a draft directive on the presumption of innocence to apply to criminal offences in the member states; in fact, we looked at it today in our earlier proceedings. The standards that it sets are higher than those in the European Convention on Human Rights, with the effect that there will be two separate standards: one under the EU and the other under the ECHR law. Was that the intention behind the last sentence of Article 52(3) of the Charter and do you think this is a positive development?
Lord Goldsmith
That last sentence was obviously deliberate, which is to say that the Charter established a floor, not a ceiling. It is true, with respect, so far as the ECHR is concerned. I believe that this country provides in a number of areas that are covered by the ECHR more extensive protections than the ECHR provides. I regard that as a good thing. But there is nothing inconsistent in saying, “You must be bound by these provisions but you can have more extensive protections if you want.”
Michael Connarty
I have been puzzling over this. You described the Protocol as giving Poland and the UK additional safeguards. In our original comment in the IGC report that we did, we said specifically: “If, as the Foreign Secretary assured us, every part of the Charter is sourced back to existing rights ‘with no right for the ECJ or anyone to extend their reach’ it is hard to see why the Protocol is necessary,” etc. You said it gave us an additional safeguard. Can you give me an instance where the Charter has been used in any other country other than Poland and the UK to extend the rights? In other words, has something happened outside? Was it really necessary for Poland or the UK? Was it not just more about comfort—for the political comfort—rather than safeguards?
Lord Goldsmith
That is absolutely fair. The Protocol came as quite a late development. I am not sure I am at liberty to disclose how it came about, but it came on the cusp of the move from one Prime Minister to another, as it happened. If I may direct your attention—I know you have got it. I have looked at it. I have tried to describe the Protocol in the address I gave to the British Institute of International and Comparative Law: “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.” Was it necessary? No, it was not necessary, so long as the Charter was interpreted in the right way. I understand people want additional protections—bootstraps—to make sure there are safeguards. That is the flavour.
Michael Connarty
That is what my analysis was coming to: that it was more of a comfort than a safeguard and we have not, in any way, been advantaged or disadvantaged against other countries by not having it.
Lord Goldsmith
I do agree with that. But subject to this limitation, if—this is what I was carrying on to say in the address—somebody were to say, “Well, that’s what you think the Charter means. Actually, you’re wrong; it goes further,” then the Protocol is legally binding, so it would pull that back.
Michael Connarty
Just to have a clear record, can you list any concessions the UK has sought or achieved in return for agreeing that the Charter would become legally binding?
Lord Goldsmith
If I may, that is a question probably better addressed—if you can—to the Government, I suppose. My involvement was that I was the UK representative negotiating the Charter. Subsequently, I became Attorney General. As Attorney General, I gave advice on EU law, of course, but I was not responsible for negotiating. I did not negotiate in 2004.
Michael Connarty
The political deal.
Lord Goldsmith
I certainly did not negotiate that. In 2004, I was not the person who negotiated the amendments to the explanations or the way it was going to be incorporated into the Treaty. I did have an involvement in the Protocol.
Chair
I was going to ask that question myself. It bears directly on what you have just said because we are interested to know who drafted Protocol 30. Was it agreed by the Government as a matter of policy?
Lord Goldsmith
Who drafted it? It was drafted by a combination of people within the UK Government.
Chair
We had Mr Thomas, for example—Michael Connarty will remember—who gave evidence with David Miliband, or was it with Jim Murphy? The moment we got on to this subject, immediately the ball was passed to Mr Thomas, and we then had about 15 minutes with the Legal Adviser in the Foreign Office. Basically, we are just trying to get a sense of who drafted it. Was it a collective job and if it was, did it ultimately, for example, go in front of the legislation committee? Was it then endorsed as a matter of Government policy that this was the way to go forward?
Lord Goldsmith
I cannot tell you how it was endorsed. I told you that I personally had some involvement at a late stage in the drafting.
Chair
We had rather an interesting moment of what I would not call truth, but it was certainly a moment of curiosity. Just as Prime Minister Blair was about to leave office, in his last Prime Minister’s Questions he was asked the question about the Charter amongst other things, and he specifically stated that, on the Charter, we got an opt-out. It was quite clear. It is there in the transcript. He resigned two days later. I do not think it was to do with that. Perhaps you can give the exact quote, Jacob.
Jacob Rees-Mogg
He says, “It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs. Those were the reasons why people like the right honourable gentleman were saying that they wanted a referendum.” So, because we had an opt-out from the Charter, we did not need a referendum. It seems from your evidence that you are saying that Mr Blair’s view of the Charter is just as good as that of Mr Justice Mostyn’s.
Lord Goldsmith
No, I am obviously not saying that. The way that Mr Blair described it is for him to decide. I would not have described it in those terms. I did not describe it in those terms when I did come to describe it; I described it in different terms. I can understand how in a common-sense, broad way one could say, “Well, it’s an opt-out,” because it means that we are protected and it cannot go any further than we are already bound by. I can understand that entirely.
Jacob Rees-Mogg
I think that is magnificently loyal after some years of leaving office, when all your evidence denies it is an opt-out.
Lord Goldsmith
You may think that. Genuinely, these are very difficult areas. Your questions are very pointed, and absolutely rightly so. These are very tricky areas, and sometimes I have seen politicians from both parties using language that is legally, in my view, inaccurate, but I understand entirely why that is done. On the basic point, I do not regard it as an opt-out, and I have said that.
Chair
You may be relieved to hear this is the last question. Michael Connarty is going to be the one to ask it.
Michael Connarty
In your speech you referred to the British Institute of International and Comparative Law in 2008 you said, “Were the courts to disregard the clear provisions in the horizontal articles and explanations … In such remote circumstances the Protocol would indeed become an opt-out.” Given recent statements and judgments, do you still believe these circumstances to be remote and in what way would the Protocol become more than a safeguard and an actual opt-out?
Lord Goldsmith
I am having some difficulty. I am not sure I know what the recent circumstances are. If the recent circumstances are Mr Justice Mostyn’s judgment or the case that he relies on, NS, as I said, in paragraph 13 of his judgment he quotes paragraph 120 of the European Court of Justice’s judgment in NS. However, if I can draw attention to paragraph 119, which he does not quote, that deals specifically with the effect of the Protocol and says: “According to the third recital in the preamble to Protocol (No 30) Article 6 TEU requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that article.” In addition, according to the sixth recital in the preamble the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles. That is the ECJ speaking. That essentially is the point I have been making. The European Court of Justice has accepted that is the effect. To some extent, they are relying on the Protocol to say that.
Michael Connarty
Given what we have observed in this Committee—I have been on it for 15 years and some Members have been on it for longer—regarding the competence creep of the European Commission, we had a few examples we gave to our witnesses in the session last Tuesday or Monday. We gave them some examples where it seemed that competence creep was pushing laws that were to do with rights from the Commission’s directives—pushing in that direction. The question is if they seem to be disregarding the provision of the horizontal articles and explanations, would the Protocol really become an opt-out? Would it be strong enough?
Lord Goldsmith
Maybe I was using language so as to—
Michael Connarty
I am not a lawyer I must add. I am a politician and an economist.
Lord Goldsmith
At the time I gave this address, which was early in 2008, I had relatively recently stood down from Government. With that address, I was trying to explain what had taken place. There was a debate going on as to whether this was an opt-out and I thought it was important to say that it is not an opt-out but, nonetheless, to acknowledge that the Protocol could have legal effect. In a sense, if properly interpreted that the Charter meant x in relation to other member states, then so far as the UK is concerned, because of the Protocol, it would mean x minus. You can describe that as an opt-out at least from that piece—the difference between x and x minus.
Chair
I had thought we had finished, but there is just one last point of clarity. To be clear, does Protocol 30 apply as much to other member states as it does to the UK and Poland? In other words, it does not distinguish between the application of the Protocol for the UK and for Poland.
Lord Goldsmith
My understanding is that it applies only to Poland and the UK. It is not common, but there are protocols that do apply from time to time simply to particular members states. This only applies to Poland and the United Kingdom. If, of course—sorry to complicate it—it does no more than the Charter does anyway, those aspects of the Charter will apply to all other member states as well. The Government may take a different view, but my view is that Protocol 30 just applies to the UK and Poland.
Chair
Thank you very much, Lord Goldsmith, for coming along, and that brings this particular session to an end. Thank you very much. Oral evidence: The application of the EU Charter of Fundamental Rights in the UK, HC 979 31