The House of Commons European Scrutiny Committee of the United Kingdom Parliament has published an interesting report on the confused state of application of the EU Charter of Fundamental Rights in national law.
You can access the report here.
The report examines the origins of the Charter, the negotiations, its contents and interpretation. It is written after consideration of evidence given my many eminent lawyers and is well worth reading not just by British lawyers.
It shows that there is some confusion and uncertainty in the domestic legal order as to its reach and scope. That confusion can be seen, for example, from how the English courts have reacted to the judgment of the Court of Justice in Joined Cases C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and M.E. And others v Refugee Applications Commissioner and the Minister for Justice, Equality and Law Reform . (For a good summary of that judgment, see the post of our friends at Eutopialaw.com which you can read here). Emblematic in that respect was the judgment of the English High Court of 7 November 2013 in R (on application of AB) v Secretary of State for the Home Department EWHC/Admin/2013/3453.
The report is critical of the Court of Justice’s judgment of 26 February 2013 in Case C-617/10 Aklagaren v Hans Akerberg Fransson.
We question the legitimacy of the ECJ’s approach in Fransson, and so agree with the German Constitutional Court and Mr Howe and disagree with some of the expert evidence we took on this point, particularly from Professor Craig. We, like Advocate General Cruz Villalón, think there has to be a sufficient reason why the ECJ should take over the responsibility, which is more appropriately vested national courts, for interpreting fundamental rights as they apply to the exercise of national power. On the facts of Fransson the applicability of the ne bis in idem principle did not bear upon the implementation of an EU obligation; the ECJ was acting purely as a human rights court. (footnotes omitted).