Select Committee on European Union Sixth Report



1.  The EU Charter of Fundamental Rights ('the Charter') was "proclaimed" at the Nice European Council in December 2000. But the Council postponed taking any decision to incorporate the Charter into the Treaties—that issue is being given detailed consideration by the Convention on the Future of Europe ('the Convention'), set up to prepare the way for the 2004 InterGovernmental Conference ('the IGC'). The Convention established a Working Group to consider the issue. The Working Group has now reported back to the Convention.[1]

2.  Preparation of the Charter was not a purely clerical exercise. Nor was it an academic exercise in jurisprudence. It raised complex legal, political and constitutional issues going to the heart of the debate about the nature and future of Europe.

3.  In 2000, at the time of the negotiation and preparation of the Charter, this Committee, under the chairmanship of Lord Hope of Craighead, conducted an inquiry into and reported on the Charter.[2] The Committee approached the Charter, in draft as it then was, from an essentially practical standpoint. All international human rights instruments are aimed at conferring rights on individuals and the Committee took the view that the measure of the success of a Charter intended to guarantee fundamental rights and freedoms would be what in practical terms it actually achieved for the citizen. The Charter presented a major opportunity for protection to be given to individual citizens of the Union in relation to the activities of the various institutions of the Union.[3]
Extract from our Report EU Charter of Fundamental Rights


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.


4.  The attention being paid to the Charter by the Convention persuaded the Committee to revisit the Charter, its contents and its status. We decided to examine, in particular, the position the Charter might occupy in any new constitution for the Union and its relationship with the European Convention on Human Rights ('the ECHR'). In doing so we have tried to adopt the same practical approach as that adopted by our predecessors.


5.  There is an important debate being conducted not only within but also outside the Convention as to whether there should be a constitution for the European Union and, if so, what its terms should be. It is not our intention in this Report to engage in this debate. It is apparent, however, that there is a political impetus moving the Convention towards a recommendation for a new constitution. The premise on which this Report is based, therefore, is that a new constitution for the European Union will emerge from the deliberations of the Convention. We think it safe to assume, also, that if there is to be a new constitution for the Union a Bill of Rights in some form will be a part of that new constitution. The Charter, either as it stands or in some revised form, might constitute the requisite Bill of Rights. But, of course, each Member State is a signatory to the ECHR. Since, however, the Union, unlike its constituent Member States, is not a signatory to the ECHR, the ECHR Articles do not apply to actions or omissions of the Union or of its various institutions. Citizens of the Union have at present no direct ECHR protection against an oppressive but lawful exercise by a Union institution of powers conferred on it under European law.

6.  In these circumstances a number of different options appear to be available to be taken in order to produce a Bill of Rights as part of a new European constitution.

7.  The Charter, as it stands, might be made a part of the new constitution. Two particular problems (although some might not regard them as problems) are associated with this option. First, the Charter, as it at present stands, is expressed to cover a number of matters that are outside the competence of the European Union or any of its institutions. It is not intended, by the side-wind of incorporation of a Bill of Rights into a new European constitution, to increase the competences of the Union or of its institutions. Nor is the principle of subsidiarity to be undermined or eroded by such a side-wind. The so-called "horizontal" clauses (which will be examined in more detail later in this Report) are intended to ensure that the impact of the Charter is confined to regulating the manner in which the European Union and its institutions exercise their powers under their Treaty competences.

8.  The second problem associated with this first option is that many of the Articles of the Charter are of an aspirational character, intended to inform the approach of Member States to problems associated with the subject matter of the Articles in question. The terms of these Articles lack the precision and definition that would be expected of Articles in a Bill of Rights intended to be enforceable in a court of law by individual citizens.

9.  Nonetheless, the Charter has come to be seen by many as already constituting an EU Bill of Rights notwithstanding its present lack of legal force. The text is up-to-date and drafted specifically for the Union. It goes beyond the ECHR in content and reflects fundamental freedoms and economic and social rights derived from other international instruments as well as the common constitutional traditions of the Member States.

10.  A second option would be to revise the Charter so as, first, to exclude provisions which relate to matters not within the competences of the Union or its institutions and, second, to revise and re-draft what remains, substituting where necessary a more precise statement of enforceable rights for the aspirational character of the present contents. The revised Charter could then be incorporated into the new constitution.

11.  It seems to be generally accepted that, excepting the horizontal clauses, there is no practical possibility of changes being made to the text of the Charter. It may be right that this is the present political reality but it is regrettable. The text of the Charter has been criticised, even by some of its most ardent supporters. Revision is desirable. And, post-incorporation, any amendment of what would have become part of the Union's constitution would be very cumbersome and much more difficult to achieve. This state of affairs underlines the importance of the horizontal clauses and the proposal that the Charter should be supported by an explanatory commentary.

12.  A third option would be to step back from the Charter, leaving it with its present status unchanged, and to look elsewhere for the new constitution's Bill of Rights. The search might need to go no further than the ECHR. If the Union were to accede to the ECHR and become bound, under European law, to comply with the ECHR Articles, just as Member States under their respective domestic laws are so bound, the ECHR would become for the Union a Bill of Rights. But the ECHR does not cover certain civil and political, and social and economic rights which many consider valuable.

13.  It was the main conclusion of the Committee's earlier Report that the best way forward to secure effective protection of citizens against the misuse or abuse of power by EU institutions lay in accession by the Union to the ECHR.

14.  Another ECHR option, as an alternative to the EU acceding to the ECHR, would be for the text of the ECHR to be incorporated into the new EU constitution. This would raise the same competences difficulties that incorporation of the Charter would raise. The same, or similar, horizontal clauses would be needed.

15.  The final option would be to combine one or other of the ECHR options with the Charter option. The majority of those giving evidence to us, while recognising that accession to the ECHR would be legally and politically complex, supported both accession by the Union to the ECHR and also incorporation of the Charter into a new Union constitution.

16.  We have endeavoured in this Report to examine the pros and cons of these various options; incorporation of the Charter or of the ECHR; EU accession to the ECHR; or a combination. The choice to be made between these options must take account of their respective pros and cons but will, of course, be heavily influenced by the political dimension and dynamic of the current debate.

17.  It is important to recognise also that, independent of which option is to be preferred, the issue of judicial remedies must be addressed. Rights amount to nothing if they cannot be effectively enforced. We doubt whether a citizen will be much impressed if access to a remedy is not available to him when he believes that his rights under the new constitution have been infringed. Neither the Convention, nor the Working Group, has yet done any serious work on this issue. This neglect is unsatisfactory. Work needs to be set in hand immediately, with the UK Government taking a leading role in persuading the Convention and the Community Courts to examine and put forward proposals aimed at ensuring that an individual can pursue an effective remedy in his national courts and, where necessary, directly in the Community Courts, for breach of his rights under the new constitution.


18.  The inquiry was carried out by Sub-Committee E (Law and Institutions) under the chairmanship of Lord Scott of Foscote. The membership of the Sub-Committee is listed in Appendix 1. The witnesses are listed in Appendix 2. The evidence, written and oral, is printed with the Report. We would like to thank all those who assisted in the inquiry.

1   Final report of Working Group II. Doc. CONV 354/02. 22 October 2002. Back

2   EU Charter of Fundamental Rights, 8th Report 1999-2000, HL Paper 67. Back

3   Ibid, para 121. Back

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