Balance of Competences Review
On 12 July 2012, the Foreign Secretary launched the ‘Balance of Competences Review’ in Parliament taking forward the Coalition commitment to examine the balance of competences between the UK and the EU.
The review, aimed at helping to shape the UK’s policies in relation to the EU, is due to conclude at the end of 2014 and will produce 32 reports led by different Government Departments on specific areas of EU competence. Competence in this context is about everything deriving from EU law that affects what happens in the UK. The EU’s competences are set out in the EU Treaties and consist of exclusive, shared and supporting competences.
The consultation on the ‘Balance of Competence Fundamental Rights Review’, led by the Ministry of Justice, closed on 13 January 2014 and is due to examine the balance of competences between the UK and the EU on fundamental rights.
On 2 April 2014, the European Scrutiny Committee of the House of Commons published a report seeking to clarify the application of the Charter of Fundamental Rights in the UK: ’The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’(HC 979), following an inquiry prompted by the comments of Mostyn J in R (AB) v SSHD  EWHC (Admin) 3453,  Q.B 102, in November 2013.
In his evidence to the Committee, the Secretary of State for Justice, Rt Hon Chris Grayling MP, said that the Government did not agree with Mostyn J’s analysis of the NS case (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), could not appeal the AB case because it had won, but that the Government was looking for the right case where appropriate clarifications could be made to prevent any suggestion of a precedent from AB “kicking around in the UK courts”and implying that the Charter played a greater role than it did (§§10, 113). The Home Secretary’s pleadings in the Court of Appeal in NS had not supported Cranston J’s finding (R (NS) v SSHD  EWHC 705 (Admin), at ) that the fundamental rights in the Charter cannot be relied upon against the UK in view of Protocol 30, but rather, that its purpose was to explain its effect: R (NS) v SSHD (Reference to ECJ)  EWCA Civ 990, at .
The Minister said there was a danger that an increase in Charter-based rights litigation could lead to existing EU competences being interpreted more widely by national courts and the ECJ than had been the case which could affect national competences, particularly in the context of Free Movement of Persons where rights enshrined in the Charter and the Lisbon Treaty could be used to argue for a broadening of EU competence (§119).
The Committee considered that the impact of the Charter on the division of competence for the protection of fundamental rights between the ECJ and the constitutional courts of Members States was one of its most significant consequences (§124) with the case of Fransson assuming particular significance in this regard, when holding that EU fundamental rights are applicable “in all situations governed by EU law”: Case C-617/10, para 19. The Committee recommended that the current state of uncertainty about the Charter should end, but it was not clear what the Government intended to do beyond bringing a test case and they were far from convinced that a legal challenge would resolve the issue of when Member State action came within the scope of EU law, as opposed to reaffirming the applicability of the Charter to the UK as held by the CJEU in NS. For the Committee, it remained to be seen whether the recent case C-206/13, Siragusa, on 6 March 2014, was an attempt by the CJEU to modify the Fransson test in favour of national courts when commenting that the concept of implementing EU law in Article 51(1) of the CFRs required “a certain degree of connection above and beyond the matters being closely related or one of those matters having an indirect impact on the other”(para. 24). The legitimacy of the CJEU’s approach in Fransson on the division of competence between the CJEU and national courts was questioned by the Committee, but in light of that decision they concluded the results of the Government’s Balance of Competences review assumed increasing significance (§161).
The report to be published by the Ministry of Justice is expected this summer.
In the meantime, the Home Office led review on Asylum and Non-EU Migration reportwas published on 13 February 2014, and it’s work continues on a further report, yet to be published, entitled ‘Single Market: Free Movement of Persons’.