Select Committee on European Union Thirteenth Report


Memorandum to the Select Committee on the European Union by the Foreign and Commonwealth Office

  1.  The Government welcomes the Committee's thorough and thoughtful report. While it does not agree with every recommendation or judgement made by the Committee, the Government believes that the report is an important and measured contribution to the debate on the Charter.

  2.  As the report does not contain separagraphte policy recommendations as such, this response follows the format of Part 4: Opinion, and covers the issues raised in each section.


  3.  It is certainly true that there is no existing catalogue of fundamental rights as such in the EU Treaties and that neither the EU nor the Communities are party to the European Convention on Human Rights (ECHR) or to any other human rights instrument. The Government believes that it is useful that the Charter will provide a catalogue.

  4.  The Government shares the Committee's conclusion that this is more than a clerical or academic exercise, and involves complex and important legal and political issues.


  5.  The Government welcomes the Committee's acknowledgement (paragraph 123) that the Charter Convention has to act within the limits of the Cologne European Council Conclusions. It also welcomes the Committee's recognition (paragraph 124) that a declaration, as advocated by the Prime Minister and supported by a number of EU partners at the Feira European Council, would have value. As the Committee says, rights enjoyed by EU citizens are scattered through the EC/EU treaties. There is a clear benefit in bringing them together, along with core civil and political rights drawn from the ECHR. It should also help to clarify the obligations of the EU institutions.

  6.  The Government does not accept that a declaratory Charter would not confer direct and tangible benefits on individuals (paragraph 126). While it is true that it would not confer new rights and remedies, it would help the democratic process of empowerment by making rights more visible to the people. The 1998 Eurobarometer poll in the UK showed that, when asked what they wanted to know more about, 46 per cent were interested in their rights as European citizens. The Committee asserts that " a `showcase' Charter readily accessible to, and comprehensible by, all, on the one hand, and a Charter justifiable in the ECJ are really two quite different concepts. We doubt whether these functions can be adequately met within a single instrument" (paragraph 126). The Government believes that the Cologne Conclusions, and the merits of the argument, constitute a strong case for concentrating on the former.

  7.  It will not surprise the Committee that the Government does not accept its conclusion that it runs the risk of appearing to be extremely negative (paragraph 127). The Government's position has been positive and constructive throughout. We have always seen the Charter as an opportunity. The Minister for Europe has consistently spoken of the positive value of the Charter. But preserving legal certainty is just as important as enhancing visibility. Put simply, even a declaratory Charter is too important to get wrong. A poorly drafted Charter could actually set back, rather than enhance, the protection of human rights in Europe. In addition there is the need to observe the remit agreed at the Cologne European Council. So the Government believes that its positive but careful approach is the right one.


  (i)   Accountability of the Institutions

8.  The Government agrees with Lord Goldsmith's evidence that the Charter can help to put flesh on the bones of Article 6(2) of the Treaty on European Union (TEU)—making the institutions' obligations more specific. This will help guarantee against the misuse of power by EU institutions. But the Government does not agree with the Committee that there are significant gaps in human rights protection, which need remedying at European level. The institutions are bound by Article 6(2) TEU to respect fundamental rights and can be held to account before the European Court of Justice (ECJ) in accordance with Article 46(d) TEU for their compliance, wherever the Court has jurisdiction under the First Pillar or under the TEU. It is true that direct challenges by individuals are possible only in the First Pillar and have to meet the rules on standing, but there is a considerably wider scope for actions against an institution brought by another institution or by a Member State. In any event, individuals may raise issues based on fundamental rights in proceedings on matters of Community law before national courts, from which references to the European Court of Justice for preliminary rulings may be made.

(ii)   The Standing Rules

  9.  The Government agrees with the Committee that this is not a new issue nor one restricted to the human rights field. Nor are changes to the rules on standing within the Charter Convention's remit. In any event, the Government does not support changes to make it easier for individuals to challenge acts of the institutions directly before the ECJ. As the Committee recognises, there would also be serious practical implications for the ECJ's workload, which is already overburdened. Individuals have the right to challenge in the Community courts measures of the EU institutions, which directly and particularly affect them. In the case of measures, which are generally applicable, remedies are available in the national courts where an individual satisfies national rules on standing. And the IGC has other priorities, notably key institutional reforms to prepare for enlargement.

 (iii)   The Third Pillar

  10.  The Government does not accept that Third Pillar activity lacks judicial supervision. Even though the Treaty of Amsterdam ushered in new potential for Union activity in the Third Pillar, this is essentially inter-governmental in nature. New justice and home affairs (JHA) instruments (such as the Europol Convention or the Customs Information System Convention) already contain relevant safeguards. And, as the Committee recognises (paragraph 135), Member State agencies are mainly responsible for taking forward and implementing these areas of co-operation. UK police and customs agencies must act within our national law and are entirely accountable to the courts for their actions. Moreover many initiatives require domestic legislation to give them practical effect and it is open to Parliament to introduce any additional safeguards it thinks appropriate, consistent with maintaining the integrity and effectiveness of the initiative.

  11.  As regards data protection these JHA instruments contain provisions relating for example to the protection of automated data, subject right of access, correction of incorrect data and the transmission of data to third parties. They also provide for the establishment of an independent data protection supervisory body to ensure that the relevant provisions are complied with.

  12.  As far as liability is concerned, there is no exemption for Member States. The instruments make clear that it is the Member State responsible for example for the inputting of incorrect data which will be responsible under its national law for the payment of any relevant compensation for resulting damage or injury.

  13.  A range of specific safeguards will be available with regard to those Schengen provisions incorporated into EU law following the Treaty of Amsterdam. For example, for those elements assigned a First Pillar base, the EC Data Protection Directive will be relevant. As far as cross-border surveillance is concerned, this would be regulated by the Regulation of Investigatory Powers Bill currently before Parliament.

  14.  The Government does not accept that we should agree to extend full ECJ jurisdiction over the very sensitive areas covered by the Third Pillar. These raise sensitive issues relating to national sovereignty—law and order and the criminal justice process. An acceptance of extended jurisdiction would have to be on a "once and for all" basis. This would be a significant extension of the ECJ's legal responsibilities. In any event, there is already some scope for the review or interpretation of Third Pillar measures by the ECJ, at the suit of the Commission or the Member States, pursuant to Article 35(6) and (7) TEU.


  (i)   Incorporating civil and political rights into the Charter

15.  The Government entirely agrees with the Committee's emphasis on the importance of legal certainty. It welcomes the Committee's support for its position on the need to avoid differential standards of human rights protection, protect the status of the ECHR and preserve legal certainty. We agree that the core of the Charter's civil and political rights should be those drawn from the ECHR.

  16.  To an extent the Charter drafts have included rights drawn from the Protocols to the ECHR (eg property, education, double jeopardy). But not all Member States are party to all Protocols, and it is important that the Charter does not pre-empt their decision on participation. This is particularly true for Protocol 12, which is not yet open for signature.

(ii)   Accession

  17.  We recognise what the report says about the implications of accession for the relationship between the Strasbourg and Luxembourg Courts, and can see some advantages in such an approach in terms of ensuring further consistency in approach between the two Courts. But we do not believe it is essential, given the requirement to respect fundamental rights in Article 6.2 of the Treaty on European Union, which is justifiable in accordance with Article 46(d) TEU. Furthermore, as the Committee notes, the ECJ has ruled that the EC does not at present have the competence to accede. Accession would require changes to both the Convention and the EU/EC Treaties. The ECJ already applies the ECHR and its case law without accession.

  18.  In addition, as the Committee recognises, there are formidable problems which would have to be addressed. Accession is an issue that should be approached only with the greatest care. We are encouraged by the fact that the ECJ and the European Court of Human Rights have in recent months been informally discussing co-operation and the impact of the Charter.


  (i)   Economic and Social Rights

19.  The Government agrees that it is important to ensure that coverage of economic and social rights does not enlarge competence by the backdoor. There will be a horizontal article making this explicitly clear. It also welcomes the Committee's comments on the different nature of those economic and social "rights" which are more in the nature of principles to inform policy-making rather than rights enjoyed by individuals.

  20.  EU citizens enjoy a number of important economic and social rights under the EC/EU Treaties. These deserve a place in the Charter. But the Government agrees that the exercise is not about creating new justicable rights through the Charter.

(ii)   Beneficiaries

  21.  The universality of fundamental ECHR rights is an important concept. The Government agrees that the core civil and political rights drawn from the ECHR should continue to apply to all natural and legal persons within the jurisdiction of a State which is party (as is the case under the ECHR itself). But as explained above, there is also a place in the Charter for important EC/EU Treaty rights pertaining to EU citizens, such as the right of establishment, the right to vote and stand in European Parliament elections and the right to approach the EU Ombudsman.

(iii)   Who should be Bound

  22.  The Government agrees that the Charter should apply to the EU institutions and bodies and to Member States where they are applying or making use of the power of derogation from community law. The Government agrees that it would be better not to extend coverage to non-state actors.


  23.  In the Government's view, the Charter is a useful way to help candidate countries prepare for accession by making their citizens more aware of the EU's obligation to respect fundamental rights. As these countries are already parties to the ECHR, they are already committed to respect the core civil and political rights. The Government is not in favour of raising the threshold for EU membership, which reinforces the already strong case for sticking to existing rights. It was notable from the hearings organised with applicant countries on 19 June 2000 how many of them expressed the wish to avoid anything which would undermine the ECHR, produce legal uncertainty and complicate or delay the enlargement process.


  24.  The Government shares the Committee's view that the Charter Convention has been commendably transparent. The Charter website has allowed widespread access to documents and many organisations and NGOs have posted their own proposals. The Government has set up a link to the Charter website from the FCO site. The Government also welcomes the direct hearings at the Convention of NGOs in late April and applicant countries in mid-June. Lord Goldsmith held a seminar with some 15 NGOs on 24 March, and has attended several others in the UK and other EU countries.

  25.  The Government agrees with the Committee (paragraph 153) that the Charter Convention is not the right place to legislate on new rights. But the timeframe for completion of the draft Charter should be adequate as long as the Convention sticks to the mandate of the Cologne European Council.

  26.  The Government would like to record it appreciation for the work of Lord Goldsmith QC as the Prime Minister's representative. He continues to make a highly effective and widely respected contribution to the drafting of the Charter. His commitment and expertise are invaluable. The Convention has also benefited strongly from the input of the four Parliamentary representatives: Win Griffiths MP and Lord Bowness and their alternates, David Chidgey MP and Baroness Howells of St Davids.


  27.  The Government agrees with the Committee that the Charter is a very significant initiative. We share the view that its usefulness depends on the status it is to have and the purpose it is intended to serve. Properly constructed and presented, the Charter should strengthen the culture of rights and responsibilities within the EU. This will have a powerful effect in reinforcing in the minds of those involved in drafting, taking and applying EU decisions, the rights that citizens possess and the need to respect them. A charter which spells out the fundamental obligations of the EU institutions as they go about their daily business will represent real added value.

  28.  In the meantime, the Charter drafting process continues. The last Charter Convention meeting before the summer break took place on 17-19 July. We expect the Praesidium to circulate revised draft articles, to be discussed when the Convention reconvenes on 11-12 and 25-26 September. At the Feira European Council, Heads of Government agreed that the Convention should aim to deliver a draft to the Council of Ministers by the Biarritz European Council in mid-October. The Government will continue to keep the Scrutiny Committees informed of developments.

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