Earlier this week, the Daily Mail ran a story under the headline: “Dozens of EU human rights are smuggled into the UK: Grayling attacks Brussels after claims by top judge”. The “top judge” in question is Mostyn J, whose “claims” were made in the case of R (AB) v Secretary of State for the Home Department  EWHC 3453 (Admin). There is no need, for the purpose of this post, to go into the details of the facts of that case. It is enough to explain that the claimant wished to assert a right – concerning the protection of personal data – which is not (explicitly, at least) conferred by the European Convention on Human Rights and which, as such, is not specifically protected by the Human Rights Act 1998. However, that right is conferred by the EU Charter of Fundamental Rights, raising the question whether it could thereby be asserted in this case. And that raises a further question about the status of the Charter and the extent to which its existence might blunt the effect of repealing the HRA and withdrawing from the ECHR – both of which are steps now openly countenanced by senior Conservative Ministers.
The status of the Charter is made more complicated by the fact that the UK, along with Poland, secured a so-called “opt-out”. It says:
1. 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.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
The effect of this “opt-out” was considered by the Court of Justice of the EU in Case C-411/10 and C-493/10, R (NS) v Secretary of State for the Home Department  QB 102. The conclusion was reached that
article 1(1) of Protocol No 30 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 obligation 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.
In other words, the “opt-out” is not really an opt-out at all: it merely clarifies the provision already made by the Charter itself concerning its scope of application. That provision is contained in Article 51 of the Charter, which says:
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
Reflecting on the analysis of the CJEU in NS, Mostyn J commented in AB:
14. The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. 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.
15. This may be illustrated by the claim in this very case. As I have explained above the claimant asserts that his right to privacy under article 8 of the European Convention on Human Rights has been violated. Article 8(1) provides “everyone has the right to respect for his private and family life, his home and his correspondence”. But the claimant also says that his right to privacy under article 7 of the Charter of Fundamental Rights of the European Union has been violated. This provides “everyone has the right to respect for his or her private and family life, home and communications”. Apart from expanding the concept of correspondence into communications it can be seen that this is exactly the same. So it can be seen that even if the Human Rights Act were to be repealed, with the result that article 8 of the European Convention on Human Rights was no longer directly incorporated into domestic law, an identical right would continue to exist under the Charter of Fundamental Rights of the European Union, and this right is, according to the Court in Luxembourg, enforceable domestically. [Emphasis added]
Mostyn J went on to point out that the same analysis applies to rights contained in the Charter but not the Convention, which would continue to apply – in areas falling within the scope of EU law – even if the HRA were repealed, and even if the UK were to withdraw from the ECHR. All of which demonstrates that – as I noted in a recent post – ridding domestic law of European human-rights influences is likely to turn out to be a much more complex task than advocates of such a policy have so far anticipated. The role of EU law in the human rights sphere is now the subject of one of the UK government’s “balance of competences” reviews, which contains a detailed and helpful explanation of the relationship between EU law, the ECHR and domestic law in the human rights field.