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
49
TEU Article 49. Back
50
As mentioned above (para 4) the drafting body has somewhat confusingly
been called "the Convention", the term commonly used
to refer to the ECHR. Back
51
Not to be confused with the issue of "horizontality"
(see paras 76 and 149). Back
52
Q 240. Back
53
Section 2(1) requires any court determining a question which has
arisen in connection with the ECHR to take into account inter
alia any judgment, decision, declaration or advisory opinion
of the Strasbourg Court. Back
54
Human Rights, 71st Report 1979-80, HL Paper 362. Paragraph
22. Back
55
For example, the repatriation of illegal residents or the adoption
of minimum standards for granting or withdrawing refugee status
may raise issues relevant to Article 3 ECHR (prohibition of torture
or inhuman or degrading treatment or punishment) and Articles
5 and 6 (due process). Back
56
The extension of the Eurodac database to include certain categories
of illegal immigrant was the subject of a Report, Fingerprinting
Illegal Immigrants: Extending the Eurodac Convention, 10th
Report 1998-99, HL Paper 69. Back
57
European Union Databases, 23rd Report 1998-99, HL Paper
120. Back
58
The Committee notes that the UK has not ratified Protocols 4 and
7. Back
59
A text has been finalised but has yet to be considered by Ministers
in the Council of Europe. Back
60
The "Convention" proposal (Article Y of the draft Convent
13) should be reworded, to refer specifically to the level of
protection accorded to these rights under the ECHR as interpreted
by the Strasbourg Court. Back
61
Human Rights, 71st Report 1979-80, HL Paper 362; and Human
Rights Re-examined, 3rd Report 1992-93, HL Paper 10. Back
62
Paragraph 82 of Human Rights Re-examined, 3rd Report 1992-93,
HL Paper 10. Back
63
The background to this is described in paragraph 17 above. Back
64
CONFER 4716/00. Note from the Presidency IGC 2000: Possible
proposal for entering other items on the Conference agenda. Back
65
Case 5/88, Wachauf v Germany [1989] ECR 2609. Back