Select Committee on European Union Eighth Report


The preparation of the Charter

32. The body entrusted with the task of drafting a Charter ("the Convention") consists of 15 representatives of the Heads of States or Government, a representative of the President of the Commission, 16 Members of the European Parliament and 30 representatives from national parliaments. As already mentioned, the Prime Minister's representative is Lord Goldsmith QC. Parliament is represented by Mr Win Griffiths MP and Lord Bowness. Both the Court of Justice and the Council of Europe have observers who can participate in the Convention's discussions. While witnesses generally praised the openness of the procedure, criticism was made of the adequacy of the representation, mainly that of civil society but that also of national parliaments. There was also criticism of the Convention's procedures.


33. As mentioned above, the Cologne European Council asked for the work on the Charter to be completed by December 2000, and that timetable would appear to have been accelerated. A progress report is to be given at the Feira European Council and the Charter is also likely to be discussed at Biarritz in October so that, as the Minister, Keith Vaz MP, explained, final decisions could be taken at Nice in December (Q 261). The timeframe did not, in the view of the British Institute of Human Rights (the British Institute), allow for an effective consultation process, including independent experts and non-governmental organisations, or for a proper consideration of the complex issues raised by the initiative (p 129). The drafting body has sought the views of NGOs and others. It has set up a Charter website[40] containing documentation submitted to the body. Professor Fredman, University of Oxford, argued that some democratic process of participation in the creation of the Charter was important, in particular in making courts "accountable to the document" and thus constraining their powers when adjudicating on the rights set out in the Charter. She saw the process of the evolution of the Charter as being almost as important as the end product (p 8, Q 29). Lord Goldsmith commented: "Simply the fact that it is taking place has already started a debate on rights and responsibilities, which is valuable in itself. It is not that there is a vacuum of rights, we have many rights, from my experience it is a question of the respect for them" (Q 306).

34. But Mr Bunyan, for Statewatch, complained that civil society (ie NGOs and voluntary groups) had been marginalised. It was not part of the drafting body and did not have a formal role in the process. In his view, there should be meetings of the body "which are primarily geared around the governments not listening to themselves, but actually hearing from civil society and then going away and coming up with a draft and then hearing more from civil society" (QQ 141-2). Liberty, Justice and ILPA shared Statewatch's concern, though Liberty was encouraged by the large participation of parliamentary representatives, both from the European Parliament and national parliaments (Q 144). Mr Krüger, Deputy Secretary General of the Council of Europe, thought it regrettable that civil society was not more involved in the process but given the timeframe within which the work had to be done it was impossible to do otherwise (Q 199). However, Mr Kirkhope MEP expressed concern that false hopes and expectations might be raised (Q 50). Both the Minister and Lord Goldsmith spoke of the transparency of the proceedings of the Convention. The views of NGOs were available to all members. Public hearings were taking place at both European and national levels. Lord Goldsmith thought their views were getting through. Mr Vaz said: "I have received no complaints about the procedure or the timing or the fact that there is no consultation. There is transparency and consultation" (QQ 263, 304).


35. Mr Duff MEP described the representatives of the national parliaments as a "curiosity". They did not seem to represent very much other than themselves. They had no mandate similar to that which the European Parliament, through the report prepared by the Constitutional Affairs Committee (of which Mr Duff was the rapporteur), had provided for its (16) representatives. Mr Duff said: "The national parliamentary 30 have no framework or steering within which they can function so I expect them to be pretty well all over the place" (Q 106).

36. Mr Win Griffiths MP and Lord Bowness were appointed by the "usual channels" (Q 73). On the question of their true representativeness, Mr Griffiths said: "I inevitably take account of the view of the governing majority and we know what that is because the Government was a party to the Cologne agreement". The question of the proper composition of the drafting body could only be answered by those who had decided on its make-up (QQ 64, 67). Lord Bowness explained how the representatives of national parliaments met as a group, with the objective of presenting the views of those parliaments. No national parliament had as yet expressed a formal view on the proposal, though individual parliamentarians had (Q 63). Lord Goldsmith believed it was extremely valuable to have the views of national parliaments as well as those of the European Parliament and the representatives of the Member States (Q 304).


37. Witnesses did not underestimate the difficulties confronting the drafting body. It was difficult to decide what should go into the Charter until it was known how it was going to be used. Advocate General Francis Jacobs said: "the difficulty is that the decision as to what status the Charter should have and on its enforceability and on the jurisdiction of the Court and so forth are all matters which are not within the remit of the body drawing up the Charter, but have to be decided in the context of the intergovernmental conference. The Charter is necessarily being drawn up in the abstract, but no doubt with a certain understanding as to what the ultimate result will be" (Q 246). Mr Andrew Duff MEP had been amazed by the Cologne Council's decision: "I was aware that within those 15 Presidents and Prime Ministers lurked considerable disagreement or confusion about what the project was for. The thing was decided upon with a paucity of reflection". The implications were now becoming clear: "there has been a process of scales falling from eyes as the full consequences of the Cologne decision have started to become more appreciated. I think that the full complexities and the problematical character of what is proposed is now fairly well grasped" (QQ 88, 107).

38. The Commission, as mentioned, is also represented on the drafting body. But it is not the initiator of the proposal and therefore the drafting body has not had the benefit of the normal procedure whereby the Commission presents an explanatory paper and draft text for discussion. Mr Duff regretted that the Commission was playing a subsidiary part in the process: "the absence of anyone to table propositions is proving a problem" (Q 106). Both Mr Duff and Mr Krüger commented on the nature of the discussions within the meetings of the Convention and difficulties in reaching or identifying conclusions (Q 197). Lord Bowness accepted that the process for drafting the Charter was not ideal (Q 73). A large number of representatives made up the Convention but Lord Goldsmith said: "It does mean that it takes time for everyone to have their say on what are important matters. I do not think that is an objection, I think it is a consequence of having a rather more accountable and legitimate process than we might otherwise have chosen or that might otherwise have been chosen for us" (Q 304).

The need for the Charter


39. As a number of witnesses pointed out, whether the EU needed a Charter depended on the purpose it was intended to serve. Professor McCrudden, University of Oxford, identified a number of arguments as to why the Charter might be necessary. These included compensating for the recent expansion of Community or Union competences into new areas which had taken place without the development of rights and limitations on those competences; the utility of reinforcing the rights and protection of the individual with the potential expansion of the Union eastwards to the former Communist countries; the developing rhetoric of a "peoples' Europe" and of European citizenship; clarification of the legal basis of rights already given in the Treaties; removal of inconsistencies in rights given under the different pillars and making those rights more transparent; underpinning the ECJ's existing human rights jurisprudence and providing a more effective check on the administrative and legislative activity of the Union. Professor McCrudden said: "the truth is that there is a plethora of arguments in favour of [the Charter] and to some extent that masks somewhat the aims of the supporters of the Charter which differ fairly substantially in terms of what they are trying to achieve, with different reasons being given for different types of Charter" (p 3, Q 3).


40. A number of witnesses considered the present position of fundamental rights in the Union to be unsatisfactory. The International Commission of Jurists gave five main reasons. First, the protection of human rights in the EU lacked visibility. The way in which the ECJ "discovers" human rights as general principles of Community law was too ambiguous for the general public. Second, third countries criticised by the EU for human rights violations might be tempted to retort that the Union's adherence to human rights standards was less than obvious. Third, an express list of essential values and fundamental rights would enhance legal certainty for the purposes of Article 7 TEU. Fourth, institutions should be guided, when drafting legislation, by an authoritative set of basic rights and fundamental freedoms. Unwritten "general principles" were unlikely to exert a strong influence on the Commission, Council and European Parliament. Finally, the level of judicial and legal protection offered to the individual was not sufficient (p 152). The British Institute said that the Union's rhetoric on human rights did not match the reality. Consideration of the role and status of an EU Charter should take place in the context of the development of a comprehensive and coherent human rights policy, in both its internal and external activities. That would be more far reaching and require a greater commitment from Member States than seeking to make the importance and relevance of fundamental rights more "visible" (p 129).

41. The Standing Committee of Experts on International Immigration, Refugee and Criminal Law (the Meijers Committee, based in the Netherlands) believed that the lack of structural visibility of fundamental rights in the legal order of the Union was the key problem. The Amsterdam Treaty had only partially addressed that issue. Fundamental rights had to be visible both to legislators and citizens (p 191). The British Institute doubted whether the Charter could fill the current gaps and shortcomings in human rights protection in the Union. These included the limited reference to international human rights instruments in the Treaties; the restrictive approach taken by the ECJ to locus standi and the time taken for proceedings before the Community Courts; the absence of a human rights perspective in the Third Pillar and the limited extent of judicial supervision of Third Pillar activities; and the failure of the Community to accede to the ECHR (p 131).

42. Mr Bunyan, for Statewatch, identified the potential importance of the Charter in relation to the various conventions, agencies and databases (such as Europol and the Schengen Information System) recently adopted at Union level. It was not just a question of looking at existing rights. "We do need to build in some checks and balances for the new powers that these agencies are assuming because these Conventions were written under the Third Pillar without proper democratic input" (Q 125). Fair Trials Abroad referred to developments relating to the creation of a European Legal Space, such as mutual recognition of judgments in criminal matters and fast track extradition procedures. "These developments without appropriate counter measures pose unparalleled and surely unacceptable risks to civil liberties and fundamental rights within the Community's geographical area" (p 143). Professor Simitis, University of Frankfurt, noting the passage from an economic Community to a political Union that transcended the borders of market policies and extended its competence into areas such as police and criminal judicial co-operation which were particularly sensitive to human rights, believed that there was "no alternative" to the adoption of a Charter of fundamental rights (p 186).

43. The European Trade Union Federation (ETUC) acknowledged that the Amsterdam Treaty had brought about some progress but said that important shortcomings remained. The social implications of establishing monetary union and the introduction of the euro and of completing the Internal Market underpinned the importance of securing fundamental rights at European level. "ETUC considers fundamental rights as an indispensable part, in combination with the development of the social socle, in the building of the Social Union and safeguarding and developing the European Social model". The incorporation of fundamental rights would also be important in view of enlargement and to make a Citizen's Europe a reality. In ETUC's view, the aim should be to anchor the recognition and respect for fundamental rights "visibly and efficiently" in the Treaty (pp 137, 139).

44. Professor Toth, University of Strathclyde, said that the nature of the relationship between the two distinct legal orders of the ECHR and the EU Treaties had never been clearly established. The coexistence of the two supranational courts (ECHR and ECJ), with no mechanism for communication, carried the possibility of conflicting interpretations. The position of other international treaties on human rights in relation to Community law was uncertain. Fundamental rights guaranteed by national constitutions were not necessarily protected at Union level. Since fundamental rights were today protected in the Union only as general principles of law, their determination fell entirely in the hands of the judges of the Community Courts. Based on case law, protection of fundamental rights in the Union suffered from the inherent weaknesses of any uncodified legal system. Unwritten general principles were, by their nature, unsuitable to afford adequate legal protection of fundamental rights. Article 6(2) TEU was no substitute for codification, was judicially unenforceable in the Second Pillar, and was only enforceable to a limited extent in the Third Pillar. In Professor Toth's view, at the beginning of the 21st century the citizen was "entitled to see his fundamental rights set out in black and white terms that he can enforce in a court of law". Codification of fundamental rights in the Union was long overdue (p 196).

45. As to the possible existence of gaps in the protection of the citizen against the European Union institutions, and the question whether the institutions should be directly bound to comply with the existing rights guaranteed by the ECHR, Mr Vaz said that the European Council had made it quite clear that the Convention was to deal with existing rights, not with any loopholes or any existing problems. It was there merely to restate present rights and had no mandate to fill gaps. On the question of the existence of gaps, he replied: "There may or may not be". On the institutions being bound to comply with ECHR rights he said: "If it is binding at the moment, then it will continue to be binding. If it is not, we will not make it binding". The Minister accepted that position might be unsatisfactory, but there was no desire to have these matters included in any discussion of the current IGC (QQ 271-278, 280, 285).


46. In the view of the Immigration Law Practitioners Association (ILPA) there were two main deficits in the present regime. First, there was no formal relationship between the European Court of Justice and the ECHR. Second, it was difficult to say with any real certainty exactly what rights were protected by Community law (Q 117). Liberty thought that the deficits were mainly procedural rather than substantive (Q 122). Ms Bribosia and Professor Waelbrook, Free University Brussels (ULB), also believed that the main problem lay in the lack of adequate judicial remedies to deal with the infringement of fundamental rights by EC institutions. They described the restricted circumstances in which an individual could challenge an EC measure and the even greater limitations on challenging EU measures, in particular activities under the Third Pillar (p 122). To these the Bar (in a joint submission by Bar Council International Relations Committee, the Bar Human Rights Committee and the Bar European Group) added the length of time that a case takes before the Community courts and opaque decision making by Community institutions. The Charter was not, however, an obvious or necessary solution to overcome these shortcomings. The gaps related not so much to deficiencies in the standards of human rights protection already acknowledged by the ECJ, as to political exclusions of certain areas from those standards and to methods of enforcing such standards as exist. Specific solutions existed for such problems. Thus, the jurisdiction of the ECJ could be extended in relation to Second and Third Pillar matters; the rules on standing could be relaxed by Treaty amendment or judicial decision; ECJ procedures could be reformed, and the necessary resources provided; and recent tentative advances towards freedom of information could be accelerated. The Bar was critical of the value of having another catalogue of fundamental rights and believed the resources being employed in producing the Charter could be more productively employed on less glamorous but more practical projects. They concluded: "Few independent commentators and few lawyers practising in the field would have put an EU Charter of Rights anywhere near the top of their lists of useful initiatives for improving the effectiveness of human rights protection in the EU. Such gaps as we are aware of in the protection of human rights in the EU could have been filled, given the political will, in more focussed and more effective ways" (pp 116, 117, 120). Advocate General Francis Jacobs also took the view that the Charter would not remedy the defects in the present system of judicial protection, particularly as regards the question of standing. But it was possible that the adoption of the Charter might give a certain impetus to making such improvements (QQ 228, 234). Lord Goldsmith acknowledged that there was a view that the Treaty's rules on access by private parties to the Community Courts were too restrictive. But he doubted how useful it would be for the Convention to discuss the matter (Q 312).


47. Mr Vaz said that the Government was "extremely enthusiastic and positive" about the whole process. The Charter would be a "showcase of existing rights". It presented "a real opportunity" and would provide "a real service" for citizens of Europe. The Minister believed that, if properly constructed and presented, it could help to strengthen the culture of rights and responsibilities across the European Union. Bringing existing fundamental rights together in a single document endorsed by Member States and Community institutions would have a powerful effect in reinforcing in the minds of administrators, governments and legislators the rights that citizens possess and the need to respect them. Mr Vaz said: "the Charter will be one of the most important things that we have seen come out of the European Union in the last decade, because it will be the first time that there has been positive communication with ordinary people" (QQ 260, 264, 287).

48. Nonetheless, the general reaction of the other witnesses was, in differing degrees, to welcome the notion of a Charter in principle. Professor Simitis said: "It materialises the governing principles of the Union, ensures the visibility of fundamental rights, promotes the development of the Union marked by the awareness of both the individual's rights and the need to prevent and combat discrimination, furthers the identification of the EU-citizens with the policies of the Union and increases thus its credibility" (p 186). Professor Boyle, University of Edinburgh, said: " Law has inter alia a declamatory and educational function which at present is ill served in the case of the EU". The Charter should focus on the most fundamental rights already guaranteed by EU law (p 121). While the European Court might, via the "general principles" of Community law, protect against infringement of fundamental rights by Community institutions, Professor Schermers, University of Leiden, considered codification of those rights in a Charter would nevertheless be desirable, though not necessary. An EU Charter restricting the powers of the institutions would play a role similar to that played by constitutional charters in relation to domestic legislation. But there were risks, especially as regards the demarcation of the applicability of the Charter where, for example, Member States executed Community rules (p 184). Mr Krüger, Deputy Secretary General of the Council of Europe, believed that there was a need for greater protection in the Union. "We in Strasbourg very much see the Union as being comparable to a domestic legal system in which the acts of the Union, which more and more affect the European citizen, should be subject to some sort of scrutiny in human rights and fundamental rights terms" (Q 179).

49. Justice believed that there was a value in having a Charter that made visible existing rights in the EU. But it doubted whether such an instrument would have any value if it were not accompanied by enforcement mechanisms, such as a Human Rights Commission and other monitoring mechanisms (Q 119). Liberty agreed with Justice that there was a definite need to improve or introduce mechanisms to monitor and enforce rights in the Union (Q 122). The British Institute also spoke of the need for institutional changes, such as the appointment of a Commissioner for Human Rights and the setting up of an agency to monitor human rights and gather information (p 132). In the view of Professor Gaja, University of Florence, such enforcement mechanisms were needed because judicial protection was likely to be effective only for some rights and for the benefit of a limited number of individuals (p 149).

50. Dr Quinn, National University of Ireland, welcomed the drafting of an EU Human Rights Charter describing it as one more vital stepping stone in the building of a European constitution. The debate, in his view, went far beyond equality and citizens' rights. Other arguments in favour of developing the internal dimension of human rights in the Union had some weight, in particular "credibility" (matching the Union's internal policy with its external action) and "legitimacy" (bringing Europe closer to its peoples). But Dr Quinn attached most weight to "constitution building". The paramount concern should be "rational" constitution building. The draftsmen of the Charter should assume that they were contributing to the unfolding of a developing EU constitutional order (p 163).

51. Others were cautious about the constitutional implications of the initiative and not all witnesses saw the need for a Charter or for any extensive action going beyond it. The CBI said that Member States participated in a successful system of rights guaranteed by their adherence to the ECHR. That could be complemented, first, by making the existing rights and freedoms more visible, thus promoting a culture of rights and responsibilities across the Union, and, second, by improving the efficiency and speed of the procedures of the Strasbourg and Luxembourg Courts (p 134).

52. Both Mr Win Griffiths MP and Lord Bowness saw their job as members of the Convention as being to fulfil the remit of the Cologne conclusions. Mr Win Griffiths thought that that itself would be significant. But he accepted that there were those who wanted to take the process much further and there might be a need to develop compromises and to look at things outside that remit. He envisaged that the Charter might have "an annex of aspirations". There were people, including some from national parliaments, who saw the Charter as an opportunity to start drafting a European Constitution. Others saw it as an opportunity to rewrite the existing laws and update them or to produce a whole set of new rights. Lord Bowness thought that there would be enormous practical and legal difficulties if the Charter was not limited to existing rights (QQ 61,64-5, 73).

53. Mr Duff MEP acknowledged the difficulties but the European Parliament expected more from the Charter than the Cologne remit. The protection of the individual had to be strengthened. The genesis of the Charter had also to be seen "within the context of the wider process of constitutionalisation that is taking place". These two driving forces did not, in his view, conflict. The principal purpose of the Charter would be to provide the citizen with proper protection from abuse of power. Other solutions, such as improving access to the Court of Justice, were not sufficient by themselves. A subsidiary reason concerned the democratic legitimacy associated with European citizenship: fundamental rights had to be "installed far more explicitly within the construct of the Union" (QQ 88, 91-4).

54. Mr Timothy Kirkhope MEP said: "I see the Charter, as a Conservative, as being an opportunity to fill the one gap that there is and that is the gap in relation to the accountability of the European institutions themselves". But he did not envisage the Charter creating any new enforcement rights or procedures for individuals, though he acknowledged that the European Ombudsman foresaw an expansion of his role. It would be for the Member States to police whether the Community institutions were acting in compliance with fundamental rights. On the wider implications Mr Kirkhope acknowledged that there were those who saw the Charter as another step along the road to integration. "From my point of view I do see this as a very worrying situation. I do not want to see a European constitution as such coming about as a result of this" (QQ 44, 46, 54).

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