PART 1: INTRODUCTION |
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 Treatiesthat 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.
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.
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.
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.
THE OPTIONS: THE CHARTER AND/OR THE ECHR
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
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
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
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
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
EU Charter of Fundamental Rights, 8th Report 1999-2000,
HL Paper 67. Back
Ibid, para 121. Back