Last week on this site, Gerard Batten MEP wrote about comments made by senior Judge Mr Justice Mostyn who, commenting on the case of an asylum seeker whose defence lawyer had cited the European Charter of Fundamental Rights, spoke of his surprise that the Charter, which had been opted out of by the British Government, was now enforceable in our courts. The judge warned “The constitutional significance can hardly be overstated.”

Yesterday in Parliament, the prominent Eurosceptic MP Bill Cash asked an Urgent Question of the Lord Chancellor and Secretary of State for Justice, Chris Grayling, about the implications of the case, sparking a half hour long debate in which Conservative MPs held the minister to account more forcefully than the Opposition.

In a lingo-laden speech, Cash asked:

“Does my right hon. Friend acknowledge the scale of the problem with which he is now faced, both constitutionally and practically, which would lead to the bypassing of the Government’s proposals for a British Bill of Rights and the repeal of the Human Rights Act? … Does he appreciate that the import of Mr Justice Mostyn’s ruling opens the floodgates to a tidal wave of charter-based legal action, at enormous cost to the British taxpayer and businesses, and raises a fundamental clash between Westminster supremacy and the claims of the EU and the ECJ … that goes beyond mere renegotiation?”

finishing up with a question that was to be repeated three times during the course of the debate:

“Will he therefore agree to support my proposal for urgent legislation as follows: “Notwithstanding any provision of the European Communities Act 1972, nothing in the Charter of Fundamental Rights of the European Union shall be binding in any legal proceedings of the United Kingdom and shall not form part of the law applicable in any part of the United Kingdom and that this Act reaffirms the supremacy of the United Kingdom Parliament”?”

Grayling responded with a very flim-flam answer, assuring Cash that legal advice was being sought, and that he thinks “it is of fundamental importance that the impact of the charter in the United Kingdom is limited.” He also assured MPs that, at a recent meeting in Brussels, “the overwhelming view of member states present was that they did not wish it to have a broader remit than it does at the moment.”

This may be so, but we all know that events in Brussels have a funny habit of overtaking the wishes of member state representatives, including national Ministers.
Some more extracts from the debate:

Mr Bernard Jenkin (Harwich and North Essex) (Con):

“May I suggest to my right hon. Friend that the lawyers who are advising him to do nothing now are the same ones who advised the right hon. Member for Blackburn (Mr {Jack} Straw) and his Government to believe in the integrity of this opt-out and that the European Court would not come after it? Is my right hon. Friend really advocating a policy of “do nothing”? That seems to be what he is suggesting. What we could do is legislate to protect United Kingdom law from the application of the charter of fundamental rights, as suggested by my hon. Friend the Member for Stone (Mr Cash), the Chair of the Select Committee.”

Chris Grayling:

“I am absolutely not suggesting that we do nothing, and that is why we need to get this point clarified in law at the earliest opportunity. The recent Supreme Court case on prisoner voting has reassured me on this issue, but I say to my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) that I have every intention of testing this in law quickly. If we find that the legal position is not what we believe it to be, we will have to take further steps.”


Mr Nigel Dodds (Belfast North) (DUP):

“I thank the hon. Member for Stone (Mr Cash) who has once again done a great service to the House and to the public in raising and highlighting this matter and in giving us an opportunity to discuss it. The Lord Chancellor talks about seeking a case to get the law clarified. Would it not be simpler to take the consensus that is here and legislate quickly to put the matter beyond any doubt? Why wait?”

Chris Grayling:

“Our view is that there is not a legal need to legislate. We will test the point in a forthcoming case. If the point proves that the legal position is different from what we understand it to be, we will of course have to return to this House.”


Mr Jim Cunningham (Coventry South) (Lab):

“Is it not true that the Lord Chancellor does know the legal interpretation and is waiting for further instruction from the UK Independence Party?”

Chris Grayling:



The full debate can be viewed here – from 12.33pm onwards, and the full text can be read here.


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