iii. The effect of the Protocol
5.91. As outlined above, the Charter itself contains
articles concerning the scope and interpretation of the rights
it contains. The question of whether the Protocol intends to depart
from these articles and set out a different interpretation to
be applied specifically in the UK and Poland has created some
confusion.
5.92. Professor Guild pointed to the lack
of clarity in the Protocol, saying "it is not entirely clear
exactly what the objective of the Protocol is beyond some kind
of statement about fundamental rights and their application in
the UK and Poland". She considered a variety of interpretations
to be possible (QQ E178-179). The Law Society of Scotland
also pointed to the lack of clarity as to what would be the position
in the UK and commented on the "unfortunate lack of legal
certainty" that would result (p E165). Dr Sariyiannidou
concluded that the Protocol was "a matter of presentation
rather than content or substance" (p G37).
5.93. Given the lack of clarity as to the aim
of the Protocol, witnesses found it difficult to judge what the
Protocol's effects might be. Martin Howe QC noted: "one has
to ask whether [the Protocol] is simply declaratory of the consequences
of the Charter across the whole European Union or whether, alternatively,
it is intended to create some different legal effect of the Charter
inside the United Kingdom and Poland, as compared with the other
Member States". He concluded that the Protocol might have
no substantive legal effect and might simply be a reassertion
of Article 51(1) of the Charter itself (QQ E283 & E285).
As Professor Shaw highlighted, the recitals of the Protocol
appear to indicate that there is no change intended to the status
quo (Q E71).
5.94. In seeking to identify what would be the
effect of the United Kingdom and Polish Protocol, the important
question, according to Professor Peers, was the extent to
which the rights in the Charter differed from the general principles
of Union law: if the ECJ ruled that the Charter rights and the
general principles were one and the same, then, in Professor Peers'
view, "the distinction between the Charter and the general
principles is irrelevant and therefore the British Protocol is
meaningless".[93]
However, if there was some scope for discussion as to whether
the Charter and the general principles encompassed the same rights,
then Professor Peers considered that the Charter might have
some impact and the Protocol could be important. He concluded
that even if the Charter and the general principles were to some
extent different, the Protocol would not exclude the Charter entirely
for the UK. It would simply prevent national courts and the ECJ
from criticising national law in light of the Charter. However,
as the recitals to the Protocol reaffirmed, the Protocol did not
limit obligations incumbent on the UK as a result of Union law
generally and those rules would continue to apply (Q E106).
Andrew Duff MEP suggested that even if the Charter was not identical
to the general principles at present, over time the case-law would
develop in this direction (p E137).
5.95. Professor Chalmers thought that the
Protocol was not worth a great deal (Q S31). However, this
view was not shared by Professor Dashwood. He saw the Protocol
as part of the belt-and-braces approach of the Government. In
his view the Charter did not create new rights and did not enlarge
the possibility of acts of Member States or EU institutions being
challenged on fundamental grounds and the Protocol provided additional,
but unnecessary, protection for the United Kingdom in this regard.
For those who took the opposite view and considered that, to some
extent at least, the Charter did create new rights, then for Professor Dashwood,
the Protocol provided that as far as the United Kingdom was concerned
the Charter must be interpreted as not creating new rights (Q E332).
Jane Golding also emphasised that, in her view, the Protocol was
secured by the United Kingdom in order to provide certainty that
"it had covered all the angles" (Q E474).
5.96. Mr Straw was quite frank about the
intention behind the Protocol and its likely effect: in his view,
the Protocol was intended to reflect the terms of the Charter's
horizontal articles themselves. He told us "[the Protocol]
puts beyond doubt what should have been obvious from other provisions"
(Q E541).
5.97. Professor Jacqueline Dutheil
de la Rochère, of the University Paris II (Panthéon-Assas),
did not consider that the Protocol would lead to any great change
in the way the Charter was applied, given the careful drafting
of the horizontal articles of the Charter itself. She concluded
that although the Protocol would probably provoke a significant
amount of discussion and debate among lawyers, it might in the
end produce little in the way of case-law (p E141).
5.98. Some witnesses who welcomed the Charter
were concerned about the operation of the Protocol. The Trades
Union Congress (TUC) raised two issues. First, they were concerned
that the Protocol might hinder the use of the ECJ to ensure access
to existing EU-based workers' rights. They pointed to the recent
practice of the Court to draw on the Charter when interpreting
EU employment directives and considered that it would be "unacceptable"
for the Protocol to restrict the Court's power to do so in future.
Second, they expressed a concern that the Protocol would restrict
the right of UK citizens to claim rights through the ECJ and that
this would lead to a widening difference between rights for UK
and other EU citizens over time (pp G39-40). The ETUC, however,
noted that the Protocol did not allow the United Kingdom to evade
its obligations under EU law (p G30).[94]
5.99. Witnesses who expressed concerns at the
introduction of a legally binding Charter did not appear to be
reassured by the existence of the Protocol. David Heathcoat-Amory MP
complained that the Protocol was "wafer thin" and Neil
O'Brien feared that the Court would interpret the Protocol however
it liked (QQ S94-95). Sally DeBono was also dubious that
the Government's "red line" would hold (p S131).
5.100. The Chartered Institute of Personnel and
Development was concerned that the protection afforded by Article
1 of the Protocol in respect of the Title IV Solidarity provisions
of the Charter might be traded at some future point in return
for concessions in other areas, a worry shared by Professor Shackleton
(pp G18, G38).
5.101. Dr Sariyiannidou suggested that the
ECJ's obligation to ensure the uniform application of EU law would
trump the UK Protocol. This could be relevant if the Court were
to be asked to interpret, for example, UK implementation of EU
labour and social legislation. She considered that the United
Kingdom would have more success in resisting the Charter through
insisting on a rigorous application of the principle of subsidiarity
in Article 51(1) (pp G36-37).
5.102. The recitals make several references to
the desire of Member States to "clarify"—not prescribe—the
application of the Charter. Lord Goldsmith, who was to a large
extent responsible for drafting the horizontal provisions of the
Charter in his role as Government representative on the Convention
and who also drafted the Protocol, emphasised this point in a
recent paper to the British Institute of International and Comparative
Law: "The negotiations at the June European Council and subsequent
Intergovernmental Conference provided Government with the opportunity
to bolster existing safeguards and set in stone how the Charter
will operate in the UK, as in all Member States".[95]
5.103. We therefore see the broad legal effect
of the Protocol as follows:
(a) Article 1(1) reflects the fact that
the Charter does not create new rights—if a national law
is inconsistent with a provision of the Charter then it is also
inconsistent with an EU or international norm. This also reflects
Article 51 of the Charter.
(b) Article 1(2) is in line with the frequent
references in the Title IV rights to national laws and practices
and also with Article 52(5) of the Charter which sets out the
approach which should be taken to "principles" in the
Charter. But it also brings some welcome clarity to Title IV.
Article 52(5) read in the light of the Explanations could have
led to a conclusion that some Title IV "rights", such
as Article 33, represent enforceable rights which could be relied
upon directly before British courts. The Protocol appears to put
beyond doubt that this would not be possible. In these circumstances
it must be regarded as very unlikely that the ECJ would, in interpreting
the Charter, hold that Title IV involved justiciable rights in
relation to any Member State, but Article 1 paragraph 2 of the
Protocol would in our view preclude it making such a ruling in
relation to the United Kingdom. However, Title IV reflects principles
which could, we think, still bear on the interpretation, or even
the validity, of legislative and executive acts under Union law,
as provided by the last sentence of Charter Article 52(5), and
so indirectly affect individual rights. We have also noted above
that, to the extent that the Union legislates in areas which are
within its competence quite apart from the Charter, national legislators
and courts will anyway be subject to that legislation.
(c) Article 2 reflects a common-sense interpretation
of those articles in the Charter which refer to national laws
and practices and of Article 52(6) of the Charter, which stipulates
that "full account" is to be taken of national laws
and practices where there is a reference to them. But it is a
useful clarification of what might otherwise have been open to
argument. Again, however, we think it unlikely that Article 2
of the Protocol precludes the use in relation to the United Kingdom
and Poland of any relevant Charter articles in the way contemplated
by the last sentence of Charter Article 52(5), when interpreting
or ruling on the validity of legislative or executive acts taking
place under Union law on the basis of a Union competence not connected
with the Charter.
(d) The Protocol should not lead to a different
application of the Charter in the United Kingdom and Poland when
compared with the rest of the Member States. But to the extent
that the Explanations leave some ambiguity as to the scope and
interpretation of the Charter rights, and as to the justiciability
of the Title IV rights especially, the Protocol provides helpful
clarification. We would not be surprised if, in considering the
scope of the Charter in future, EU and domestic courts had regard
to the terms of this Protocol in order to assist interpretation
of the Charter's horizontal articles, even in cases where the
United Kingdom and Poland were not involved. Indeed, given that,
despite media reports, it is an interpretative Protocol rather
than an opt-out, it is perhaps a matter of regret, and even a
source of potential confusion, that it was not expressed to apply
to all Member States.
5.104. In assessing the impact of the Protocol,
it should be recalled, as highlighted by Professor Peers,
that the Charter is not the only "door" to protection
of fundamental rights in the EU. New Article 6(3) TEU on general
principles of Union law also provides a means for challenge to
EU law and UK implementing legislation on the basis of violations
of fundamental rights, as is the case under existing Article 6(2).
Nothing in the Protocol changes the position in this regard as
the legally binding status of the Charter is irrelevant where
a fundamental right constitutes a general principle (Q E106).
The Court's approach to this has been clearly demonstrated in
the context of the recent rulings on the right to collective action.[96]
Where a Charter right is declared by the Court to constitute a
general principle which would exist under EU law irrespective
of the Charter, any protection afforded by the Protocol will fall.
The extent of the ECJ's current interpretative practice is recognised
by Martin Howe QC, who concluded that the power of the ECJ to
rule on violations of the Charter (and therefore on violations
of rights which presently exist only under international treaties
outside the EU/ECHR context) might already exist because the Court
recognised that the basic principles in the Charter were general
principles common to the Member States (Q E283).
5.105. Ultimately, the interpretation of the
Protocol is a matter for the courts and, in both the national
and EU contexts, we do not think it is possible at this stage
to predict precisely what courts would decide if faced with the
task of interpreting the Protocol's language. Clearly, European
and domestic courts could not ignore the text of the Protocol
but it is likely that the ECJ will develop a tendency to refer
to Charter rights and their origins, as well as new Article 6(3)
TEU[97] on the
general principles of EU law, and would develop its fundamental
rights jurisprudence on that basis.
5.106. To the extent that the Protocol does in
practice limit the application of the Charter in the United Kingdom,
some witnesses suggested that there might well be an indirect
application of the Charter in any case through rulings of the
ECJ on how EU legislation should be interpreted. A ruling on a
case not involving the United Kingdom and based on an interpretation
of the Charter would in principle have to be respected and followed
by UK courts (Q E284).
5.107. Andrew Duff MEP criticised the Government
for negotiating a special Protocol and highlighted the risk of
the UK's self-imposed exclusion from development of Charter case-law:
he considered that in the long term the United Kingdom would inevitably
be brought under the umbrella of the Charter but would have deprived
itself of the opportunity to help shape the fundamental rights
regime by preventing its courts from playing a role at this early
stage of the Charter's development. He saw the Charter as having
a symbolic value that, for example, Schengen did not and concluded
that, "It does seem rather bizarre for any government—especially
a social democratic one—to seek to deprive its people of
the higher standards of rights protection now required by the
rising level of European integration" (p E137).
5.108. Fair Trials International also condemned
the Government's negotiation of the Charter Protocol, expressing
deep disappointment at the signal such a move sent about the UK's
commitment to securing equal rights for all EU citizens and, more
broadly, the EU's commitment to fundamental rights. In FTI's view,
the acceptance of different fundamental rights standards in the
EU seriously compromised the EU's credibility and undermined the
effectiveness of the EU's human rights policy (p E148). The
ETUC said it "deplore[d] the political message" that
the Protocol sent to citizens. They stressed the indivisibility
of the Charter and the importance of avoiding an "à
la carte" instrument which depended on the political
considerations of the day (p G29).
5.109. One effect of the Protocol will be
to discourage the ECJ from basing its analysis of fundamental
rights solely on the Charter. British courts are therefore generally
unlikely to be faced with the problem of deciding, in the light
of the Protocol, how they should treat case-law of the ECJ interpreting
EU law on the basis of the Charter alone.
5.110. The Protocol may have the effect of
reassuring those who have concerns about giving the Charter legally
binding status.
5.111. British courts already refer to the
Charter in identifying the scope of fundamental rights.[98]
Nothing in the Protocol will prevent them from continuing to do
so in future, drawing on the Charter in the same way as they draw
on many international human rights instruments, when interpreting
the content of fundamental rights.
ACCESSION TO ECHR
5.112. Witnesses generally welcomed EU accession
to the European Convention on Human Rights. Professor Maria Kaiafa-Gbandi,
of the Aristotle University of Thessaloniki, noted the importance
of EU participation in the ECHR, particularly in light of its
increasing powers (p E162).
5.113. While Fair Trials International were in
favour of EU accession to the ECHR, they expressed some concern
at the risk of overlap and confusion between the EU and the Council
of Europe (p E148). Martin Howe QC saw Union adhesion to
the ECHR as one way of dealing with the problem that might be
created by increasing interpretation of the ECHR (via the Charter)
by the Luxembourg Court (Q E279). Accession itself is not
without difficulties: Professor Chalmers pointed to the problems
that would arise in relation to ECHR accession regarding accountability
and what "exhaustion of domestic remedies"—a condition
which has to be fulfilled for a case to be admissible in Strasbourg—would
mean in the EU context (Q S16).
5.114. Mr Heathcoat-Amory MP noted
that, at present, there is no provision in the ECHR for accession
of non-States. He concluded that "it is quite clearly foreseen
that the European Union shall accede to a body in that sense like
a State" (Q S58). Maria Fletcher suggested that while
the wording of Article 6(2) states that the Union "shall
accede" to the ECHR, given the need for unanimity for any
accession decision under Article 218(8) TFEU this may not be as
straightforward as some expect (p E152).
5.115. Finally, the Law Society of Scotland highlighted
a potential problem which could arise in Scotland as a result
of the dual human rights jurisdiction of the Union and the Council
of Europe. The Scotland Act 1998, which introduced devolution
in Scotland, requires all legislation passed by the Scottish Parliament
to be compatible with both ECHR rights and EU law. Where there
is an incompatibility with either, the Scottish legislation in
question is "not law". Clearly any inconsistency between
the Union and the Council of Europe could have undesirable consequences
for Scotland (p E165).
5.116. Protocol 14 to the ECHR was prepared with
EU accession in mind and as a result amends Article 59 of the
ECHR, which deals with signature and ratification. New Article
59(2) provides that, "The European Union may accede to this
Convention". Further amendments will be required to make
accession possible from a technical point of view but it is quite
clear that special arrangements have been and will be made to
allow the EU to accede to the ECHR as an international organisation
rather than a State.[99]
5.117. Clearly there will be issues which will
have to be resolved but we do not consider there to be any serious
problems or obstacles here. We note the importance of consistency
in the two regimes for Scotland and the obligation on its legislature
under the devolution settlement. This problem has existed since
the entry into force of the 1998 Scotland Act and will not be
made worse by the Treaty of Lisbon. On the contrary, accession
to the ECHR would help to secure consistency.
5.118. We have in the past identified strong
reasons for supporting EU accession to the ECHR.[100]
The Strasbourg Court would then be recognised as the final
authority in the field of human rights. This would assist to avoid
any risk of conflict between European Union law and the European
Convention on Human Rights as interpreted in Strasbourg, by placing
fundamental rights on a single consistent foundation throughout
the EU. We continue to be of the view that the Government should
encourage Member States to pave the way for accession by the Union
to the ECHR at the earliest opportunity.
49 Case 11/70 Internationale Handelsgesellschaft mbH
v Einfuhr und Vorratsstelle für Getreide und Futtermittel
[1970] ECR 1125, paragraph 4. Back
50
Ex-Article F, TEU. TEU articles were renumbered following amendments
introduced by the Treaty of Amsterdam in 1997. Back
51
Article 6(1) TEU. Back
52
The European Convention for the Protection of Human Rights and
Fundamental Freedoms, signed in Rome on 4 November 1950, was agreed
in the context of the Council of Europe, an intergovernmental
organisation now comprising 47 member States and not to be confused
with the European Community or the European Union. Back
53
Article 6(2) TEU. Back
54
See, for example, Case C-283/05 ASML Netherlands BV v Semiconductor
Industry Services GmbH (SEMIS), opinion of Advocate General Léger,
28 September 2006, paragraph 102, and judgment of the Court, 14 December
2006, paragraph 26. Back
55
Presidency Conclusions of the Cologne European Council, 3-4 June
1999, Document 150/99 REV 1 at paragraph 44. Back
56
Decision of the European Council at Annex IV of the Cologne Presidency
Conclusions. The European Social Charter guarantees social and
economic human rights. It was adopted in the framework of the
Council of Europe in 1961 and revised in 1996 (1961 Charter: Council
of Europe Treaty Series 35, adopted on 18 October 1961; 1996 Charter:
Council of Europe Treaty Series 163, adopted on 3 May 1996). The
revised version was signed by the United Kingdom in 1997 although
only the 1961 version has been ratified by the United Kingdom.
On 9 December 1989, the Heads of State or Government of 11 of
the then 12 Member States adopted the text of the Community Charter
of the Fundamental Social Rights of Workers. The Community Charter
was not signed by the United Kingdom until 1998. Back
57
Recitals to the Charter. Back
58
OJ C 364/1 of 18.12.2000. Back
59
The full text of the original Explanations can be found in Document
CONVENT 49 of 11.10.2000. Back
60
Commission Communication Compliance with the Charter of Fundamental
Rights in Commission Legislative Proposals: methodology for systematic
and rigorous monitoring, COM (2005) 172. This Communication has
been the subject of a Report of this Committee: Human Rights
Proofing EU Legislation, 16th Report of Session 2005-06, HL
Paper 67. Back
61
Council Regulation (EC) No 168/2007 of 15 February 2007 establishing
a European Union Agency for Fundamental Rights OJ L53/1 of 22.02.2007.
See in particular recital (9) and Article 4(2). The Committee
has published a Report on the Agency: Human rights protection
in Europe: the Fundamental Rights Agency, 29th Report of Session
2005-06, HL Paper 155. Back
62
See, for example, the judgment of the Court of Justice of 3 May
2007 in Case C-303/05 Advocaten voor de Wereld VZW v Leden van
de Ministerraad; opinion of the Advocate General of 14 December
2006 in Case C-305/05 Ordre des barreaux francophones et germanophones
and others v Conseil des Ministres (in particular paragraph 48). Back
63
See the judgment of the Court of Justice in Case C-540/03 Parliament
v Council [2006] ECR I-5769 at paragraph 38. Back
64
Articles 51 to 54 of the Charter clarifying the Charter's scope
and applicability. Back
65
The adapted Charter and the revised Explanations have been published
in the Official Journal: OJ C 303/1 of 14.12.2007 and C 303/17
of 14.12.2007. Back
66
Paper by the Rt Hon Lord Goldsmith QC presented to the Heinrich
Böll Stiftung, 24 February 2001 "A Charter of Rights,
Freedoms and Principles" at paragraph 34:
http://www.gruene-akademie.de/download/europa_goldsmith.pdf. Back
67
Supra at paragraph 35. Back
68
An address by the Rt Hon Lord Goldsmith QC to the Liberty Annual
Conference, 8 June 2002 "Human rights v civil liberties":
http://www.attorneygeneral.gov.uk/attachments/LIBERTY%20ANNUAL%20CONFERENCE,%208%20JUNE%202002.doc. Back
69
Supra. Back
70
The UK has lodged no reservation to Article 6 of the Social Charter
on the right to bargain collectively. Article 6 was not amended
by the revised Charter in 1996. Back
71
E.g. Schmidt and Dahlström v Sweden (Application No.
5589/72), judgment of 6 February 1976, Series A, No 21 at paragraph
36. Back
72
Case C-438/05 International Transport Workers' Federation &
Finnish Seamen's Union v Viking Line ABP & OÜ Viking
Line Eesti, judgment of 11 December 2007 at paragraphs 43-44;
and Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet
and others, judgment of 18 December 2007 at paragraphs 90-92. Back
73
The European Parliament's website on the Charter also provides
extensive information regarding the source of Charter rights:
http://www.europarl.europa.eu/comparl/libe/elsj/charter/default_en.htm. Back
74
Council of Europe Treaty Series 164, adopted on 4 April 1997. Back
75
The right of collective bargaining in Article 28 of the Charter,
another particularly controversial article, is considered above. Back
76
Ratified by the United Kingdom on 20 August 1976. Back
77
Müller v Switzerland (Application No. 10737/84), judgment
of 24 May 1988, Series A, No 133 at paragraph 27. Back
78
Ratified by the United Kingdom on 20 August 1976. Back
79
Hertel v Switzerland (Application No. 25181/94), judgment
of 25 August 1998, Reports 1998-VI. Back
80
The right in Article 2 of the Protocol is accepted "only
so far as it is compatible with the provision of efficient instruction
and training, and the avoidance of unreasonable public expenditure"-United
Kingdom reservation made at time of signature of Protocol, 20
March 1952. Back
81
See, for example, judgment of 23 July 1968 on the merits of the
"Belgian Linguistic" case, Series A no. 6, paragraph
B.3: "In spite of its negative formulation, this provision
uses the term 'right' and speaks of a 'right to education'. Likewise
the preamble to the Protocol specifies that the object of the
Protocol lies in the collective enforcement of 'rights and freedoms'.
There is therefore no doubt that Article 2 does enshrine a right". Back
82
Point 15 of the Community Charter. Back
83
"In the exercise of any functions which it assumes in relation
to education and to teaching, the State shall respect the right
of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions". Back
84
These changes were first discussed in the context of negotiations
on the Treaty establishing a Constitution for Europe as that Treaty
would also, had it entered into force, have given the Charter
legally binding status. Back
85
This is discussed in greater detail in the section on rights and
principles above. Back
86
Contrast the case of France, a monist system, where international
obligations give rise to directly-enforceable rights under French
law once the international instrument has been ratified. Back
87
As the Explanations set out, the prohibition on expulsion where
there is a risk of torture or ill-treatment has been reflected
in the case-law of the Strasbourg Court which establishes that
Article 3 of the ECHR on the right to freedom from torture and
inhumane or degrading treatment also prohibits expulsion where
there is a risk of torture-Case 22414/93 Chahal v United Kingdom,
judgment of 15 November 1996, Report 1996-V at paragraph 74. Back
88
The Asylum and Immigration Act 1993 provides, in s.2, that "Nothing
in the immigration rules … shall lay down any practice …
contrary to the [Geneva] Convention". Back
89
R v Immigration Officer at Prague Airport, ex parte
ERRC [2004] UKHL 55 per Lord Steyn and Baroness
Hale of Richmond. Back
90
Human rights protection in Europe: the Fundamental Rights Agency,
29th Report of Session 2005-06, HL Paper 155 at paragraph 93. Back
91
As in Case C-145/04 Spain v United Kingdom, judgment of
12 September 2006, where Spain sought unsuccessfully to challenge
as contrary to European law the way in which the United Kingdom
gave the Gibraltarians the right to vote in elections to the European
Parliament, following the European Court of Human Rights' decision
in Matthews v. United Kingdom (Application No. 24833/94),
judgment of 18 February 1999, holding that the United Kingdom
was under the Human Rights Convention obliged to give them such
a vote. Similarly, the Strasbourg Court interprets the ECHR compatibly
with EU law, e.g. Bosphorus Airlines v Ireland (Application
No. 45036/98), judgment of 30 June 2005; and DH & Others
v Czech Republic (Application No. 57325/00), judgment of 13
November 2007 at paragraph 187. Back
92
We discuss this further below when we consider EU accession to
the ECHR. Back
93
This was a view shared by Maria Fletcher, lecturer in European
law at the University of Glasgow (p E152). Back
94
The Protocol recitals state that it is "without prejudice
to other obligations devolving upon … the United Kingdom"
under the Treaties and EU law generally. Back
95
Speech by the Rt Hon Lord Goldsmith QC to the BIICL, 15 January
2008: "The Charter of Fundamental Rights". Back
96
See discussion of the "right to strike", supra. Back
97
Current Article 6(2) TEU. Back
98
See for example R v East Sussex County Council and the Disability
Rights Commission ex parte A, B, X & Y [2003] EHC 167 (Admin)
per Munby J at paragraph 73: "the Charter is not at present
legally binding in our domestic law and is therefore not a source
of law in the strict sense. But it can, in my judgment, properly
be consulted insofar as it proclaims, reaffirms or elucidates
the content of those human rights that are generally recognised
throughout the European family of nations, in particular the nature
and scope of those fundamental rights that are guaranteed by the
Convention". Back
99
The Protocol will enter into force once it has been ratified by
Russia, the only remaining Council of Europe member State not
to have ratified it. Back
100
EU Charter of Fundamental Rights, 8th Report of Session
1999-2000, HL Paper 67 at paragraph 154; The future status
of the EU Charter of Fundamental Rights, 6th Report of Session
2002-2003, HL Paper 48; and Breaking the deadlock: what future
for EU procedural rights? 2nd Report of Session 2006-07, HL
Paper 20 at paragraph 52. At the moment the Community cannot accede
to the ECHR: see opinion 2/94 of the ECJ of 28 March 1996 [1996]
ECR I-1759. Back
