On 18 October, the Supreme Court decided in Benkharbouche to uphold a judgment of the Court of Appeal ordering disapplication of some provisions of the State Immunity Act 1978 because of their incompatibility with the EU Charter of Fundamental Rights. The Court also found the 1978 Act to be partially incompatible with the European Convention of Human Rights, but this only lead to a declaration of incompatibility, which doesn’t directly affect the law. The difference in domestic effect of similarly unspecific provisions of the ECHR and of the EU Charter is striking.

Benkharbouche illustrates how the vague provisions of the EU Charter can be used to override clear legislative choices made by Parliament. This raises significant concerns from the rule of law perspective and from the perspective of legitimacy of judicial power. In Benkharbouche, the Supreme Court did not show  a willingness to interrogate the proper limits of application of the Charter. In particular, the Court did not consider the issue whether the Charter applied to this case under Article 51 of the Charter (i.e. whether the UK was ‘implementing Union law’ here) and the issue whether the remedy of disapplication of an Act of Parliament was within the UK constitutional limits of judicial power (as discussed in Chester). However, it is also true that the government did not raise those points on appeal.

Benkharbouche illustrates how the Charter can, in practice, be applied mechanically, without sufficient attention to its proper limits, both in EU law and UK law. This counts heavily in favour of express legislative denial of domestic effect to the EU Charter. The EU (Withdrawal) Bill, now in Parliament, contains a welcome provision precluding such direct effect of the EU Charter after Brexit.