47. Mr Vaz said that the Government was "extremely
enthusiastic and positive" about the whole process. The Charter
would be a "showcase of existing rights". It presented
"a real opportunity" and would provide "a real
service" for citizens of Europe. The Minister believed that,
if properly constructed and presented, it could help to strengthen
the culture of rights and responsibilities across the European
Union. Bringing existing fundamental rights together in a single
document endorsed by Member States and Community institutions
would have a powerful effect in reinforcing in the minds of administrators,
governments and legislators the rights that citizens possess and
the need to respect them. Mr Vaz said: "the Charter will
be one of the most important things that we have seen come out
of the European Union in the last decade, because it will be the
first time that there has been positive communication with ordinary
people" (QQ 260, 264, 287).
48. Nonetheless, the general reaction of the other
witnesses was, in differing degrees, to welcome the notion of
a Charter in principle. Professor Simitis said: "It materialises
the governing principles of the Union, ensures the visibility
of fundamental rights, promotes the development of the Union marked
by the awareness of both the individual's rights and the need
to prevent and combat discrimination, furthers the identification
of the EU-citizens with the policies of the Union and increases
thus its credibility" (p 186). Professor Boyle, University
of Edinburgh, said: " Law has inter alia a declamatory
and educational function which at present is ill served in the
case of the EU". The Charter should focus on the most fundamental
rights already guaranteed by EU law (p 121). While the European
Court might, via the "general principles" of Community
law, protect against infringement of fundamental rights by Community
institutions, Professor Schermers, University of Leiden, considered
codification of those rights in a Charter would nevertheless be
desirable, though not necessary. An EU Charter restricting the
powers of the institutions would play a role similar to that played
by constitutional charters in relation to domestic legislation.
But there were risks, especially as regards the demarcation of
the applicability of the Charter where, for example, Member States
executed Community rules (p 184). Mr Krüger, Deputy Secretary
General of the Council of Europe, believed that there was a need
for greater protection in the Union. "We in Strasbourg very
much see the Union as being comparable to a domestic legal system
in which the acts of the Union, which more and more affect the
European citizen, should be subject to some sort of scrutiny in
human rights and fundamental rights terms" (Q 179).
49. Justice believed that there was a value in having
a Charter that made visible existing rights in the EU. But it
doubted whether such an instrument would have any value if it
were not accompanied by enforcement mechanisms, such as a Human
Rights Commission and other monitoring mechanisms (Q 119). Liberty
agreed with Justice that there was a definite need to improve
or introduce mechanisms to monitor and enforce rights in the Union
(Q 122). The British Institute also spoke of the need for institutional
changes, such as the appointment of a Commissioner for Human Rights
and the setting up of an agency to monitor human rights and gather
information (p 132). In the view of Professor Gaja, University
of Florence, such enforcement mechanisms were needed because judicial
protection was likely to be effective only for some rights and
for the benefit of a limited number of individuals (p 149).
50. Dr Quinn, National University of Ireland, welcomed
the drafting of an EU Human Rights Charter describing it as one
more vital stepping stone in the building of a European constitution.
The debate, in his view, went far beyond equality and citizens'
rights. Other arguments in favour of developing the internal dimension
of human rights in the Union had some weight, in particular "credibility"
(matching the Union's internal policy with its external action)
and "legitimacy" (bringing Europe closer to its peoples).
But Dr Quinn attached most weight to "constitution building".
The paramount concern should be "rational" constitution
building. The draftsmen of the Charter should assume that they
were contributing to the unfolding of a developing EU constitutional
order (p 163).
51. Others were cautious about the constitutional
implications of the initiative and not all witnesses saw the need
for a Charter or for any extensive action going beyond it. The
CBI said that Member States participated in a successful system
of rights guaranteed by their adherence to the ECHR. That could
be complemented, first, by making the existing rights and freedoms
more visible, thus promoting a culture of rights and responsibilities
across the Union, and, second, by improving the efficiency and
speed of the procedures of the Strasbourg and Luxembourg Courts
52. Both Mr Win Griffiths MP and Lord Bowness saw
their job as members of the Convention as being to fulfil the
remit of the Cologne conclusions. Mr Win Griffiths thought that
that itself would be significant. But he accepted that there were
those who wanted to take the process much further and there might
be a need to develop compromises and to look at things outside
that remit. He envisaged that the Charter might have "an
annex of aspirations". There were people, including some
from national parliaments, who saw the Charter as an opportunity
to start drafting a European Constitution. Others saw it as an
opportunity to rewrite the existing laws and update them or to
produce a whole set of new rights. Lord Bowness thought that there
would be enormous practical and legal difficulties if the Charter
was not limited to existing rights (QQ 61,64-5, 73).
53. Mr Duff MEP acknowledged the difficulties but
the European Parliament expected more from the Charter than the
Cologne remit. The protection of the individual had to be strengthened.
The genesis of the Charter had also to be seen "within the
context of the wider process of constitutionalisation that is
taking place". These two driving forces did not, in his view,
conflict. The principal purpose of the Charter would be to provide
the citizen with proper protection from abuse of power. Other
solutions, such as improving access to the Court of Justice, were
not sufficient by themselves. A subsidiary reason concerned the
democratic legitimacy associated with European citizenship: fundamental
rights had to be "installed far more explicitly within the
construct of the Union" (QQ 88, 91-4).
54. Mr Timothy Kirkhope MEP said: "I see the
Charter, as a Conservative, as being an opportunity to fill the
one gap that there is and that is the gap in relation to the accountability
of the European institutions themselves". But he did not
envisage the Charter creating any new enforcement rights or procedures
for individuals, though he acknowledged that the European Ombudsman
foresaw an expansion of his role. It would be for the Member States
to police whether the Community institutions were acting in compliance
with fundamental rights. On the wider implications Mr Kirkhope
acknowledged that there were those who saw the Charter as another
step along the road to integration. "From my point of view
I do see this as a very worrying situation. I do not want to see
a European constitution as such coming about as a result of this"
(QQ 44, 46, 54).