Select Committee on European Union Sixth Report



157.  Any new constitution for the Union should be accompanied by a bill of rights.

158.  The Charter, preferably appropriately revised but if that is impracticable then as it stands, could be incorporated into the new constitution so as to constitute the requisite bill of rights.

159.  If this Charter option is adopted great care must be taken via the "horizontal" clauses to ensure that Union and Community competences are not thereby enlarged and that the Charter rights are enforceable only in respect of the acts of the EU or its institutions within their respective competences or the acts of Member States in relation to the implementation of EU law.

160.  An alternative course would be for the Union to accede to the ECHR so that the ECHR became the Union's bill of rights. Here, too, however, the accession should not enlarge Union competences or the competences of Union institutions.

161.  The main difficulty with accession by the Union to the ECHR is that the necessary changes in the ECHR Treaty would have to be agreed upon by all its signatories. This unanimity might be very difficult, politically, to achieve. The difficulty would be enhanced by the need to obtain unanimity also on the reservations or derogations to accompany accession.

162.  There is no conceptual reason why the Charter option and the accession to the ECHR option should not be combined. The combination, if it could be brought about, would provide maximum protection to individual citizens in respect of any alleged breach of fundamental rights by the EU or its institutions.

163.  The extent of the practical benefits to be brought to individual citizens either by incorporation of the Charter, or by accession of the Union to the ECHR, or by both, is likely to be limited and disappointing unless there is at the same time a reform of the remedies obtainable by citizens from the Community courts. Without this reform the new bill of rights may take on the appearance of a false prospectus. A review of the jurisdiction of the ECJ and the rules governing and limiting the ability of individual citizens to obtain remedies from the Community courts should be put in hand immediately, with a view to implementation of any necessary reforms at the same time as the coming into effect of the new bill of rights.


164.  (a) The Charter—horizontal clauses and commentary

·  The horizontal clauses provide significant advantages for legal certainty as regards the definition of competences. It is essential to ensure that the horizontal clauses are as clear and unambiguous as possible (paras 91, 92). They may need to be strengthened to ensure that the Charter does not extend the competences of the Community and the Union (para 96, 99, 101).

·  If the Charter is to be incorporated into the Treaty there is a need for an authoritative commentary or "interpretation", which should be published and be readily available to the citizen and the courts (para 94). It should include a statement to the effect that the Charter is not intended to fetter the powers of Member States outside the field of Community/Union law to pursue whatever policies they choose (para 98).

165.  (b) Accession to the ECHR

·  The EU should have legal personality (para 119).

·  If the Union were to accede to the Convention, the Member States should be able to agree any qualifications or reservations (paras 122, 123).

·  The autonomy of the Community legal order would not be endangered by EU accession to the ECHR. The position of the ECJ would be analogous to that of national constitutional or supreme courts in relation to the Strasbourg Court. But any uncertainty as to the application of the domestic remedies rule should be clarified in the instrument of accession (paras 126, 130 and 131).

166.  (c) Remedies

·  If incorporation of the Charter is to confer any real benefit on individuals, the rights that will have been created will need effective remedies in order to give those rights substance and make them meaningful (para 142).

·  No matter within the scope of the Charter and within EU competences should be outwith the jurisdiction of the ECJ. The Court should have jurisdiction over Second and Third Pillar matters, and over all EU institutions and bodies (paras 146, 148, 150).

·  The standing rule in Article 230(4) TEC should be re-examined. We urge the Government to press the Convention to do so as a matter of urgency, working in close conjunction with the Community Courts (para 156).

·  The resources of the Community Courts and the Strasbourg Court need strengthening to enable cases to be decided within a reasonable time (para 133).


  1. The Committee considers that incorporating the Charter into the Treaties raises important questions to which the attention of the House should be drawn and recommends the Report to the House for debate.

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