Thank you for inviting me. I thought that I would briefly run through what the charter does at the moment, what it will do if the withdrawal bill is adopted, and what the differences will be under the Scottish continuity bill that we are discussing here today.
At the moment, the charter protects a host of rights, including all the rights that we have in the Human Rights Act 1998. It is primarily binding on the EU and its institutions, and on member states when they are implementing European Union law. That means that EU legislation can be challenged on the basis of the charter and it can be declared invalid by the European Court of Justice. Such a challenge can be brought in a Scottish court, which would then refer the case up to the ECJ for a decision.
The fact that the charter is binding on member states when they are implementing EU law means that, whenever a member state applies EU law such as an EU directive or regulation, or whenever it deviates from EU law by saying that it would like to invoke a public policy exception, it has to exercise its discretion in accordance with the charter on fundamental rights. It also has to ensure that the procedures that it applies are compliant with the charter; in particular, they must be compliant with the right to an effective remedy under article 47 of the charter, which is broader than the right to an effective remedy under the Human Rights Act 1998 because it does not exclude administrative disputes, broadly speaking.
The charter also offers slightly different remedies from those under domestic law. The charter comes with the primacy of EU law and, in an extreme case, it can be used to lead to the disapplication or non-application of an act of the Westminster Parliament, which is a remedy that does not exist under domestic UK law. The best that someone can get under the Human Rights Act 1998 is a declaration of incompatibility, which does not have any immediate legal effect on a case.
In the Scottish context, we have section 29 of the Scotland Act 1998, under which the Parliament cannot act in a way that is contrary to the charter, provided that it is acting within the scope of EU law or implementing EU law. So, whenever there is a connection with EU law, the Scottish Parliament cannot violate the charter, and the same goes for the Scottish Government.
The European Union (Withdrawal) Bill expressly does not make the charter part of retained EU law, which is the new category of law that that bill creates. Instead, it says that the general principles of EU law continue to be applicable in the UK legal order, and part of those general principles are unwritten human rights. As members probably know, the charter was made binding only in 2009 and, before that, the EU legal order relied on unwritten fundamental rights that had been developed by the Court of Justice, which largely had the same effect as charter rights.
The withdrawal bill incorporates those, but it does not incorporate the charter, which is slightly problematic. The first reason for that is that we do not know whether the charter and the general principles are identical, although they probably are not, as the charter develops fundamental rights at least a little. Secondly, it leads to a degree of legal uncertainty if we rely on unwritten rights rather than written ones, if those are available.
The withdrawal bill also excludes the possibility of challenging EU legislation that has been retained on the basis of the charter of fundamental rights. For example, if the European Court of Justice said that an EU regulation that is in force now and that had been transformed into domestic law by virtue of the withdrawal bill actually was not valid because it was incompatible with charter rights, that would be unchallengeable in the UK legal order. The withdrawal bill does that as a general rule—those laws cannot be challenged.
A more important point is that the withdrawal bill expressly says that there cannot be a right of action on the basis of the general principles of EU law, which means on the basis of any EU fundamental rights. Therefore, the role of the fundamental rights will be confined to helping with the interpretation of EU regulations and directives that have been made part of domestic law by virtue of the withdrawal bill—that is, the retained EU law. That is a much narrower role for the fundamental rights.
The continuity bill takes a different approach on many of those issues. Obviously, it expressly incorporates the charter, and it says that the charter can give a right of action, which is important because that makes a material difference. Somebody could go to court and say that they believed that a Scottish authority was acting within the scope of EU law and was implementing retained EU law and, in doing so, had violated that person’s fundamental rights under the charter. That person would have a case whereas, under the withdrawal bill, that would not be possible. The person would have to find some other hook, such as the Human Rights Act 1998 or something else, to go ahead.
I will leave it there for now.