House of Lords - European Union

Select Committee on European Union Eighth Report

PART 4: OPINION

118. At first sight there can be no doubt as to the importance that Member States and the Treaties attach to fundamental rights. Article 6 of the Treaty on European Union declares that the Union is founded inter alia on "the respect for human rights and fundamental freedoms". It also provides that the Union must respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States. They are general principles of Community law. Under Article 7, a "serious and persistent breach" of fundamental rights by a Member State may result in the suspension of rights derived from the Treaty, including voting rights. As described above[47] implementation in practice of respect for fundamental rights in the context of the Union has significant internal and external dimensions.

119. But there are two significant gaps which are, against that background, surprising and which need to be filled. The first is the absence of a catalogue of fundamental rights in the Treaties even though the Treaties themselves have, in the words of the ECJ, acquired the status of a "constitutional charter".[48] The second is the fact that neither the EU nor the Communities are party to the ECHR or to any other international human rights instrument. The proposal for a Charter of Fundamental Rights highlights both these anomalies.

120. The proposed Charter, and the process of its preparation, is not a purely clerical exercise nor is it an academic exercise in jurisprudence. Our inquiry has revealed far more complex legal, political and constitutional issues. These go to the heart of the debate about the nature and future of Europe. Differing visions as to what the Union should look like inevitably colour such questions as the inclusion in the Charter of social and economic rights. Moreover the proposal for a Charter comes at a time when the Union is embarking on institutional change in preparation for a major enlargement. Within the next few years the geographical boundaries of the Union are likely to move substantially eastwards. A consequence of enlargement will be to bring further cultural, economic, social and political diversity to the Union. The Treaties expressly provide that States cannot join the Union unless they respect the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.[49] These are in effect the basic building blocks of the Union.

121. The purpose of international human rights instruments is to confer rights on the individual and ultimately the individual will measure the success of the Charter in practical terms of what it actually does for him or her. The Charter presents a major opportunity for giving more effective protection to the individual in relation to the activities of the institutions of the EU. Translating the principles described above into a reality which is readily recognisable to the peoples of Europe and meaningful in their daily lives is perhaps one of the greatest challenges which confronts those who have been given the task of preparing the Charter.

The status of the Charter

122. It is clear that there exists a wide variety of views and expectations as to the status the Charter might have. At one end of the spectrum, the Minister, Keith Vaz MP, described the Charter as "a showcase of existing rights". At the other end, the European Parliament has called for the Charter to be legally enforceable. It is not alone in seeing it as a key feature within the existing constitution (if not yet a Constitution) of the Union. A preliminary question, therefore, is whether the status of the Charter—a showcase or something more extensive - should be resolved before embarking on a detailed discussion of the content of the Charter. There is something quite odd in drafting a document before a decision has been taken as to its ultimate status and legal effect. This might well be said to be putting the cart before the horse.

123. The Convention has, however, to act within the remit set for it by the European Council. The Cologne Conclusions make clear that no decision has been taken on the legal status and position of the Charter with regard to the Treaties:

"The European Council will propose to the European Parliament and the Commission that, together with the Council, they should solemnly proclaim on the basis of the draft document a European Charter of Fundamental Rights. It will then have to be considered whether and, if so, how the Charter should be integrated into the treaties".

We were told that the document is being prepared in a form that could be taken into the Treaties and made legally binding. So the work being undertaken in the Convention is, as Lord Goldsmith pointed out, not a mere indexing exercise. We have been able to see some of the working documents of the Convention (the drafting body)[50]. Rights are being identified systematically. The Convention is seeking to define the content of each right in a formal way. Each provision has a commentary attached. This, as we shall explain further below, may raise questions affecting other international human rights instruments to which Member States are party, especially the ECHR. Conscious of this, the Convention is discussing the inclusion in the Charter of so-called "horizontal clauses"[51] explaining the relationship with, and safeguarding the position of, the ECHR and the jurisprudence of the Strasbourg Court.

124. We recognise that a purely declaratory instrument, as advocated by the Government, would have some value. The incremental accretion of rights by successive Treaty amendments has, arguably, resulted in a somewhat fragmented approach to fundamental rights. The Treaties contain references to a range of international instruments without any clear indication of the weight to be attached to each. Rights of various kinds are scattered throughout the Treaties. They lack an over-arching and unifying framework to draw them together and make them more explicit for individuals. A Charter that was informative rather than legislative in character, setting out rights applicable within the Union, would provide greater transparency. It could enhance certainty and consistency in the standards to be met by Union institutions in the development of policy and by Member States in the implementation of that policy.

125. However, a Charter "solemnly proclaimed" may not be devoid of legal effects, even though it does not of itself create justiciable rights. Lord Goldsmith saw the Charter as putting flesh on the bones of Article 6(2) of the TEU. It would help in the definition of "fundamental freedoms". The ECJ would not be obliged to have regard to such a Charter, but it might in fact well do so. An instrument prepared by such a body as the Convention and endorsed at the highest political level in the Union is unlikely to be overlooked and weight is likely to be attached to it. It might thus help to remove some of the ambiguity implicit in relying on what is a purely judicial process to ascertain the fundamental rights which form part of the general principles of law governing Union activity.

126. Nevertheless, while the importance of making rights more visible should not be underestimated, our witnesses were generally highly sceptical of the value of adding one more declaration to those that already exist. Such a Charter might well have an impact in raising the level of respect for human rights - we would not wish to discourage that - but it has been strongly argued that at a practical level the individual would derive greater benefit from having more effective remedies. A "showcase" Charter readily accessible to, and comprehensible by, all, on the one hand, and a Charter justiciable in the ECJ are really two quite different concepts. We doubt whether these functions can be adequately met within a single instrument. While a declaratory Charter might help to clarify the obligations of the institutions of the EU, it would not confer direct and tangible benefits on individuals.

127. As mentioned above the Convention is preparing the Charter on the basis that it could be incorporated into the Treaties. This is sensible, given the uncertainty as to the final status of the Charter. But it also imposes a number of constraints on the drafting process. The final document, even if in two parts as proposed by the Government, may well not be easily accessible to individuals. It is likely that at Nice other European governments will point to the gaps in the protection of the individual and argue that the time has come for the provision of effective remedies for the rights that are well defined in the ECHR but are not yet binding on the institutions of the EU. We believe, for the reasons we shall explain below, that the Government should be taking a more positive stance on this matter. For example, Mr Vaz stated that nothing would be binding on 31 December 2000 that is not binding now.[52] The present line adopted by the Government runs the risk of appearing to be extremely negative when it comes to the practical protection of the individual against the infringement of rights by the EU institutions.

Filling the gaps

(I) ACCOUNTABILITY OF THE INSTITUTIONS

128. As witnesses explained, there is at present a significant gap, in that individuals in Europe are not fully protected against the misuse of power by EU institutions that breaches the ECHR. The individual's ability to challenge a measure on fundamental rights grounds is more restricted where the measure is taken by an EU institution than it is where it has been taken by a national authority.

129. In respect of legislation made or a decision or other action taken at a national level the Member State is answerable in the national court in respect of its obligations under domestic law, Community law and the ECHR. An individual aggrieved can complain to the European Court of Human Rights where his or her fundamental rights have been violated, subject to the usual requirement that domestic remedies should first be exhausted. But where the matter complained of is solely the act of one of the EU institutions then the individual's opportunity to obtain redress is quite different. This is because the circumstances when an individual can commence proceedings directly against an EU institution in the Community Courts are very limited. Moreover, the ECJ will consider allegations of infringement by the institutions of fundamental rights but only in the context of a breach of Community law. The individual has no recourse to the Strasbourg Court because neither the Union nor the Communities are party to the ECHR. Though the ECJ may, via the notion of general principles of Community law, take into account the ECHR and the jurisprudence of the Strasbourg Court, the latter court exercises no supervisory jurisdiction over the EU and its institutions.

130. The main function of the Charter may therefore be seen as being to improve the practical enjoyment of the fundamental rights that are already secured by the ECHR so that those rights are more effectively enjoyed by individuals within the EU and the obligations that they place on public authorities in particular are more effectively discharged. It is unsatisfactory that the individual's ability to challenge an EU measure on the grounds that it contravenes the ECHR is dependent on whether that measure is implemented at national level.

131. The aim should therefore be to ensure that the institutions and bodies serving the EU are more clearly bound to observe the requirements of the ECHR. There are two ways that this might be achieved. One is by the accession of the Communities/Union to the ECHR. The other is by the incorporation of the ECHR verbatim into the Treaties. The latter could, as Professor Toth explained, be accomplished by amendment of the Treaty on European Union. Incorporation would increase the risk of divergence between the ECHR as applied by the Strasbourg Court and an "incorporated" ECHR as applied by the Luxembourg Court. The risk of conflict between the two courts might be reduced by the inclusion in the Treaty of a provision along the lines of section 2 of the Human Rights Act 1998[53] that obliged the Community Courts to have regard to and follow the jurisprudence of the Strasbourg Court. But the better way of reducing the risk of conflict would be accession, as this would enable the Strasbourg Court to act as the final authority. We discuss the question of accession below.

(II) THE STANDING RULES

132. Another perceived gap in the protection of human rights in the Union is the restricted standing rules of the Community Courts. These are set out in the EC Treaty itself. Article 230, fourth paragraph, limits the circumstances in which an individual can challenge a decision of a Community institution. If the decision in question is not addressed to that person, he or she can only institute proceedings where the decision "is of direct and individual concern" to him or her. The ECJ has, in practice, given these words a strict interpretation, with the result that the opportunities for an individual or a group of individuals or, for example, an NGO are extremely limited. The best that can be hoped for is to be able to challenge the measure indirectly in a national court and for that court to make a reference (under Article 234 EC) to the ECJ for a preliminary ruling.

133. The problems/difficulties of Article 230 are neither new nor restricted to the field of human rights. In the absence of some filtering mechanism, removing or relaxing the "direct and individual concern" requirement might lead to a large number of actions being brought in the Community Courts with serious practical implications for the already burdened workload of these Courts. A general review of remedies and procedures is, however, beyond the scope of this inquiry. It would raise a considerable number of issues extending beyond those arising from the proposed Charter. That said, the effectiveness of a Charter which would fill the gaps in the present regime should not be prejudiced by unnecessarily restrictive procedural rules. The Charter should not appear to be lame from the outset. But any discussion of the amendment of Article 230 should be held in the context of the debate on the reform of the Community Courts presently being undertaken in parallel with the IGC.

(III) THE THIRD PILLAR

134. The other significant gap in protection identified by witnesses concerned those areas where at present judicial supervision of Union activity is limited. Witnesses pointed to a need for more explicit and effective guarantees of civil liberties in relation to what are now Parts IV EC (ex Third Pillar) and VI TEU (the Third Pillar). Within the framework established by the Maastricht and Amsterdam Treaties, there is greater scope than before for EU actions and policies to impinge on individual rights and freedoms. In its first report on human rights, the Committee emphasised that "the Community has no criminal jurisdiction, no police, no criminal courts, no prisons" and that a number of ECHR provisions would thus be largely inapplicable within the Community.[54] While it remains the case that the Community has no explicit powers in these areas important changes have taken place. The Community has powers, under the new Title IV of the EC Treaty, to adopt a range of measures in the field of visa, asylum and immigration policy which may give rise to human rights concerns.[55] There is provision, under Title VI of the TEU, for closer operational co-operation between police and customs officials, also involving Europol, in the prevention and combating of crime. While such co-operation remains essentially inter-governmental there is greater involvement of Community institutions and a greater choice of legally binding instruments. Further, as the Committee has noted in earlier Reports, the risk of encroachment on individual privacy rights has also increased with the growth in the number of databases permitting the exchange of data in such sensitive areas as asylum [56] (the Eurodac database), immigration (the SIS—Schengen Information System) and policing (Europol and SIS databases).[57]

135. In many of these areas the ECJ may, under the terms of Article 35 TEU and Article 68 EC, only exercise a limited jurisdiction. Judicial supervision is particularly circumscribed in relation to police and judicial co-operation in criminal matters. The opportunity should be taken to look again at the role of the Community Courts in this area. Individuals are entitled to protection and assurance that there is effective and uniform judicial supervision by the Community Courts in these as in other Union activities, irrespective of whether they are carried out by the institutions, by bodies such as Europol or through the agency of the Member States. We accept that this may not be a subject for the Convention to debate. But it is a matter that should be considered in the context of the current work on the reform of the Community Courts and the IGC.

Relationship with the ECHR

136. The relationship between the Charter and the ECHR is perhaps the most important issue in the debate on the proposed Charter. We are aware that there is considerable concern that a restatement of ECHR rights in the Charter could give rise to conflict with the ECHR rights as interpreted by the European Court of Human Rights. This could result in differential standards of human rights protection, significantly undermining the status of the ECHR and creating legal uncertainty. This issue can be subdivided into, first, the extent to which and how ECHR rights are to be reproduced in the Charter and, second, the question of the accession of the EU and Communities to the ECHR.

(I) INCORPORATING CIVIL AND POLITICAL RIGHTS INTO THE CHARTER

137. Legal certainty is particularly important in the present context. One of the guiding principles in drafting the Charter should be that it is dangerous to tamper, by paraphrase or other means, with language accepted as universally applicable in international human rights instruments. It is imperative that the Union should not do anything that might undermine the authority of the two UN International Covenants that have informed the drafting of many regional codes and by which all EU Member States are bound. The same consideration applies, at the European level, to the ECHR.

138. It seems clear that a statement of civil and political rights will comprise a major part of the Charter. The preliminary documents emanating from the Convention show that the Charter will rely heavily on the rights set out in the ECHR. As the ECHR rights are common to all Member States, they must form the core of any Charter for use within the EU. But we consider that the Charter should also include the rights proposed to be added to the ECHR by the various Protocols[58], in particular the non-discrimination provisions in the draft[59] Protocol 12. The ECHR is the "benchmark" standard of human rights protection in Europe, and the Charter should reflect this. We cannot, however, emphasise too strongly the need for the text of the Charter to avoid paraphrasing or revising the ECHR. Rewording the ECHR rights would run the risk of confusion, as it would open the door to re-interpretation of existing ECHR guarantees based upon the new wording. At the level of the individual, it would only confuse and mislead if the Charter were to do anything other than restate the ECHR's provisions in full including their qualifications and exceptions. Even in the few cases where the ECHR overlaps another source (such as the Council of Europe Social Charter, on the right to freedom of association) there would not be a need to alter the wording of the ECHR so long as the Court had judicial access to the Social Charter. The inclusion of a "horizontal clause" expressly saving the ECHR and the jurisprudence of the Strasbourg Court[60] might help clarify the position of the Charter for the informed reader if the text of the ECHR is to be paraphrased but it would do nothing for the average individual. The inclusion of such a clause would moreover run counter to the Government's idea that the Charter should simply be a "showcase" of existing rights. But a horizontal clause is needed to maintain the supremacy of the ECHR pending accession of the Communities/Union to the ECHR.

(II) ACCESSION

139. The question of the European Communities' accession to the ECHR has been examined and discussed for many years. The ECJ's ruling in 1996 that the Treaties, as then drafted, did not confer power on the Communities to accede to the convention largely checked but did not extinguish that debate. It has been taken up with renewed vigour in the context of the Charter. Witnesses did not see the Charter as being a substitute for accession to the ECHR but as being complementary to it. The majority favoured accession.

140. We ourselves have looked in detail at the question of the European Communities' accession to the ECHR on two occasions.[61] The main conclusion, in both Reports, was that the institutional difficulties presented by Community accession to the ECHR, although surmountable if there was sufficient political will, outweighed the "marginal increment" to the protection of human rights. Other more immediate and practical steps could be taken, such as extending individuals' right of access to the ECJ in cases alleging a violation of human rights by the Community. The Committee did, however, recognise that the Community's "lack of formal commitment to external review of its own conduct has become harder to explain in political terms"[62] and that accession, seen in this light, might have a symbolic value. Moreover, we did not rule out the possibility of accession at some future date if significant benefits for the individual could be demonstrated. There would have to be procedural mechanisms to minimise the risk of "double procedural delays" in exhausting Community remedies and obtaining a hearing before the Strasbourg Court.

141. These conclusions need to be looked at again in the light of the proposed Charter. It can now be seen that accession would have significant advantages. Accession by the Union and Communities would render their institutions and activities subject to the same degree of supervision as those of the Member States. This would have the undoubted capacity to fill the substantive gap in the protection of fundamental rights described at paragraphs 128-9 above. There would no longer be a need, where an individual sought to rely on a provision of the ECHR before the Community Courts, to depend on the divination of fundamental rights as "general principles" of Community law. Accession to the ECHR would bring the further advantage that the Strasbourg Court would be enabled to act as an external control on the jurisprudence of ECJ, as it already does in the case of the Member States. This would guarantee the status of the ECHR as the primary mechanism for the protection of human rights in Europe.

142. We do not mislead ourselves in thinking that accession by the Union (and Communities) to the ECHR would be anything but politically and legally complex. Treaty amendments would be needed, certainly to the ECHR and probably to the EU Treaties. But we do not doubt that, given the political will, the legal and other skills can be found to overcome the difficulties. First, however, the matter has to be put on the agenda. The Minister was adamant that the question of accession was not for the Convention (the drafting body). That is right in the formal sense, though the evidence suggests that the matter may have been discussed and/or opinions offered in that forum. The question of accession by the Union to the ECHR is one for the IGC. We note that the Portuguese Presidency has put accession (and the incidental, but important, matter of the international capacity of the Union[63]) on a list of possible subjects for the IGC.[64] That is a significant step that we urge the Government to support.

143. We would add that the question of EU accession to the ECHR and, indeed, the content and status of the Charter should not detract from other pressing matters. These include ensuring that all Member States have ratified the Protocols to the ECHR, securing the independence of the judges sitting on the Strasbourg Court and generally making that court work better and more efficiently.

Scope and content of the Charter

(I) ECONOMIC AND SOCIAL RIGHTS

144. The Cologne Conclusions expressly contemplate that in addition to civil and political rights the Charter will include certain economic and social rights. The Conclusions refer to such rights "as contained in the European Social Charter and the Community Charter of the Fundamental Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union". The last clause points to a difficulty surrounding economic and social rights. While it is commonly said that economic, social and cultural rights and civil and political rights are indivisible and interdependent, in practice relatively few economic and social rights are justiciable. There are, for example, two UN Covenants, one on civil and political rights and the other on economic, social and cultural rights. The first is regarded as justiciable, enforceable by the Human Rights Committee as a body of jurists. The other is regarded as equally important but not justiciable in the same sense and is usually considered as a matter to which the legislative and executive branches of government should have regard in discharging their obligations.

145. Some witnesses argued that only economic and social rights that were justiciable should be included in the Charter. A right is justiciable only where it is capable of being interpreted and applied by the courts. In those (rare) cases where the ECHR provision is "twin" to a social right incorporated in another relevant source—as in the case of the "right to freedom of association" and the Council of Europe Social Charter—it could be made clear that the existing ECHR article may be interpreted by the Court taking account of the other provision. While the Cologne Conclusions seem to make clear that "aspirations" should not be included, to use justiciability as the criterion for inclusion in the Charter is likely to be both legally and politically controversial. That said, useful lessons could be learnt from the experience of the common and civil law countries that have gone through a similar exercise before. No Member State or other common law country to the best of our knowledge has a charter of rights which goes beyond the basic civil and political rights, apart from some limited additions dealing with discrimination, rights to freedom of association and some "directive principles" to inform policy-making in the socio-economic field. The non-binding nature of such rights should be made apparent on the face of the Charter. This suggests to us that economic and social rights that are not justiciable should be put in a different chapter of the Charter so that their status, as compared to the core civil and political rights, is made clear.

146. If economic and social rights are included in the Charter, careful consideration needs to be given to ensuring that their inclusion in the Charter does not enlarge the competence of the Union or the Community by the backdoor. For example, if the rights set out in the European Social Charter are included in the new Charter even with a qualification as to their justiciability, there is nevertheless a possibility that the ECJ might come to regard itself as entitled to give effect to those rights in the same way as it now gives effect to those social and economic rights which are already recognised by the Treaties (such as the right to take up employment in any Member State). Any attempt to enlarge competence in this way would be highly controversial. The purpose of the Charter should be to protect individuals against infringement of their fundamental rights by the institutions of the EU or by Member States applying Community or EU legislation. To this extent, the Charter could be regarded as restricting the competence of the EU institutions. While there are increasing pressures in the human rights movement to make social and economic rights justiciable, it would be impracticable to make such rights justiciable at the EU level unless and until they have become generally recognised at the national level as justiciable.

(II) BENEFICIARIES

147. Although it is commonplace to talk about the "citizens" of Europe, it seems generally agreed that the Charter should not be limited or, if it is to confer rights, be restricted to EU citizens in the technical sense of that expression under the Treaty. It is in the very nature of basic civil and political rights that they should be guaranteed to all, not just nationals of the Member States. Were the Charter to be restricted in its application to "EU citizens" this would emit a peculiar and potentially unhelpful signal to the international community and would be inconsistent with most of the provisions of the ECHR. The starting point for the Charter should be that rights should therefore be guaranteed for all people within the Union. That said, we recognise that in respect of certain categories of rights, in particular those essential to the current notion of EU citizenship under the Treaties (such as the right to vote and stand as a candidate at elections for the European Parliament), it may be appropriate to make clear that these rights only apply to those "citizens". Where rights are limited to certain categories of person that should be made clear in the Charter and justification should be given for this restriction.

(III) WHO SHOULD BE BOUND

148. A further question affecting the scope of the Charter is the extent to which it would describe or, if itself creating enforceable rights at EU level, impose duties on Member States. There seems to be no dispute that the Community institutions should be bound. The Charter should also apply to bodies, such as Europol, created within the framework of the Treaties. It was generally agreed by our witnesses that Member States should also be bound when applying Community laws. The involvement of Member States should not be controversial. Under existing jurisprudence of the ECJ[65], Member States are bound, when implementing Community law, by "the requirements of the protection of fundamental rights in the Community legal order". We can see no reason why the Charter should not reflect that position in the same way.

149. The question was raised before us as to whether the Charter should be addressed to any body or person other than the European Union institutions and Member States. There may be situations where private parties are involved in the delivery of Community/Union policies. The example was given of carriers who are required to implement particular aspects of the Community's visa and immigration policy. Might the Charter, either directly or indirectly, impose obligations on non-State parties in such circumstances? This is the so-called question of "horizontality". Under the ECHR this matter has been left to be determined by the courts. We doubt whether the Charter should deal with this level of complexity. It would be best for "horizontality" to be dealt with by the courts on a case by case basis, taking account of the particular facts and the rights being invoked.

External dimension—enlargement

150. We have been conscious during our consideration of the proposed Charter of its potential impact on the Union's relations with third States. As described in Part 2 above, since 1995 a standard clause requiring respect for human rights has been inserted in all general trade, co-operation or association agreements between the EU and third countries. The perception that the Union exercises greater vigilance over the human rights performance of other countries than over the actions and policies of its own institutions may, however, undermine its credibility in promoting adherence to international human rights standards. For this reason the Charter, although only applicable within the Union, may serve as a shield to defend the EU against accusations of double standards in its external relations with third countries.

151. The most immediate external impact of the Charter, at the present time, will be on the candidate countries involved in the current enlargement process. Within the next few years, the geo-political reach of the Union is likely to extend to the east, to encompass the former Communist States of central and eastern Europe, and to the south, to Cyprus and Malta. The Helsinki European Council in December 1999 proclaimed Turkey as "a candidate State destined to join the Union". The Union can no longer be viewed as an exclusive western European phenomenon. EU membership will depend on meeting the "political" criteria set by the Copenhagen European Council in June 1993—stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. The Charter would give substance to these criteria so that acceding States have a clear understanding of the human rights standards to be met before accession. All the candidate countries are members of the Council of Europe and are party to the ECHR. A Charter going beyond the ECHR and existing Treaty rights would be likely to raise the threshold for EU membership. This might, in turn, jeopardise the enlargement process. In our view, the Charter should avoid the creation of two levels of protection in Europe, one within and one without the Union. Nothing should detract from securing, in all the candidate countries, the enjoyment of fundamental rights enshrined in the ECHR.

The procedure—the Convention

152. Finally, there has been some criticism of the Convention in regard to its composition and procedure. In particular it was said that civil society was not represented and that national parliaments were not being given adequate opportunity to express their views. It should be said straightaway that the work of the Convention is extremely transparent. Documents are being made publicly available quickly (largely via the Internet), meetings are being held in public and interested parties are being consulted. The composition of the "Convention" is also welcome: representation from national parliaments and the European Parliament provides the opportunity for a more direct input from elected representatives than is the norm at EU level. There are, of course, practical limitations, not least the timetable that the Convention must follow. But overall we are satisfied that the preparation of the Charter is being undertaken in an open, fair and efficient manner, given the remit of the Cologne Council.

153. We have, however, two concerns. First, were the Charter to include a substantial body of "new rights", by which we mean rights not established as such within the ECHR or other international human rights instruments or within the EU Treaties, there would be a need to engage other interested parties more closely in the process. The very tight timetable and the Convention's membership are not well adapted to such an exercise. Second, there is a danger that the narrowness of the time frame given to the Convention may lead to the serious questions that have to be addressed in respect of the Charter and the choices that have to be made being obscured and glossed over in the rush to complete the text for adoption at the Nice European Council. While momentum is usually to be welcomed in European matters, the importance of the issues raised by the Charter and of the drafting process must not be lost sight of.

Conclusion

154. The potential significance of the Charter, both politically and legally, is very great. Work on it is proceeding rapidly, in order to enable a first reading by Ministers at Feira in June and adoption by the end of the year. The creation of any Charter of fundamental rights has implications for the future of the Union. Its content will send signals to the peoples of Europe and to the international community. At the practical level of safeguarding the interests of the individual there is a need for a Community statement of fundamental rights, and the Charter could fill that need. The extent of its usefulness will depend, however, on the status it is to have and the purpose it is intended to serve. A declaration by the European Council of rights already existing and protected in EC law might provide a list of rights that would be clear and accessible to the public and reinforce the protection of ECHR rights as an integral part of Community law. But a political act of that kind would close none of the gaps that currently exist in Community law in the protection of fundamental rights within the EU. While skilful drafting might side-step questions of potential conflict with the ECHR and European Court of Human Rights, a non-binding Charter would not prevent alternative rights or interpretations of ECHR rights being adopted by the Community courts. Accession to the ECHR remains the crucial step required if the gap is to be closed. Accession of the EU to the ECHR, enabling the Strasbourg Court to act as an external final authority in the field of human rights, would go a long way in guaranteeing a firm and consistent foundation for fundamental rights in the Union. It would secure the ECHR as the common code for Europe. The question of accession by the Union to the ECHR should be on the agenda for the IGC.

RECOMMENDATION

155. The Committee considers that the proposal for a European Union Charter of Fundamental Rights raises important questions to which the attention of the House should be drawn and makes this Report to the House for debate.

47 Part 2, paras 24-27 above. Back

48 This is how the Court of Justice described the EEC Treaty in Opinion 1/91 [1991] ECR I-6079. Back