Government Response to the Sixth Report
of the House of Lords Select Committee on the European Union,
THE FUTURE STATUS OF THE EU CHARTER OF FUNDAMENTAL
The House of Lords Select Committee on the European
Union published its report "The Future Status of the EU Charter
of Fundamental Rights" on 3 February 2003. The Government
response addresses the Committee's key conclusions (reproduced
in the paragraphs in bold below.)
Any new constitution for the Union should be accompanied
by a bill of rights.
1. The Government does not accept that any
new constitution has to have a bill of rights. It does agree that
the treaties should be clarified and simplified and that they
should state the fundamental values that guide the Union. Currently,
the Union is obliged to respect as general principles of Community
law fundamental rights as guaranteed by ECHR and the constitutional
traditions common to the Member States. Those sources of law are
external to the Union's legal order. There is a respectable argument,
based on the avoidance of unnecessary duplication and legal confusion,
for retaining that system.
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
2. The Government agrees that the Charter
was not drafted in a form suitable for legal status. We are currently
considering whether the changes proposed by the Convention's Working
Group on the Charter satisfy our concerns to an extent which would
allow us to consider a change in the legal status of the Charter.
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.
3. The Government agrees.
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.
4. Accession to the ECHR is seen by most
EU partners as complementary, not alternative, to incorporation
of the Charter. The Government agrees that, in the even of accession,
great care would need to be taken to ensure that there is no enlargement
of Community/Union competence.
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.
5. The Government agrees that the necessary
changes to the ECHR to allow the EU to accede would have to be
agreed upon by the signatories to the ECHR. Similarly, on accession,
the EU would have to decide if it should make any reservations
or derogations in respect of those matters within its competence.
The Member States would also retain their own reservations and
derogations in respect of those matters within their competence.
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.
6. The Government agrees with the theory
of the first proposition (but would have many objections to putting
this into practice). On the second, it should be borne in mind
that the ECHR is a floor not a ceiling so far as human rights
standards are concerned.
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.
7. We are not in favour of individual right
of access to the European Court of Justice. The issue of remedies
for breaches of the ECHR is dealt with adequately in our view
by the ECHR and the Human Rights Act. (this issue has been reviewed
in the Convention by a special Discussion Circle on reform of
the ECJ. A copy of the Group's agreed final report is enclosed.)
(a) The Charterhorizontal clauses and
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).
8. The Government agrees and is currently
considering amendments to the horizontal clauses proposed by the
Convention Working Group.
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).
9. The Government agrees.
(b) Accession to the ECHR
The EU should have legal personality (para 119).
10. The Government is considering this proposal.
If the Union were to accede to the Convention,
the Member States should be able to agree any qualifications or
reservations (paras 122, 123).
11. The Government agrees.
The autonomy of the Community legal order would
not 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).
12. The Government tends to agree with those
who say that the autonomy of the Community legal order would not
be endangered by EC/EU accession to the ECHR. The ECJ would remain
the "sole supreme arbiter of questions of Union law and of
the validity of Union acts". The ECHR would exercise, as
a specialised court, an external control on the EU institutions
as it already does with national courts of the Member States.
The Government is considering this issue further.
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).
13. Effective remedies for rights accepted by
the Member States should already be available under national law.
It is for the Member States to agree what, if any, further remedies
may be required at Union level (see also the final report of the
Convention Discussion Circle on the ECJ, enclosed with this response).
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).
14. The Government does not agree. It does not
and cannot support any extension of ECJ jurisdiction over CFSP.
Foreign policy is an area where national courts have not traditionally
exercised jurisdiction or have been reluctant to interfere. There
is no ECJ jurisdiction in CFSP at present nor should there be,
in respect of an area in the EU which is intergovernmental. CFSP
is inherently different from other Union activity in the nature
of the powers exercisedthese are essentially executive
functions exercised at the international level rather than legislative
powers impacting on individuals.
15. Similarly, on police and judicial co-operation,
we must ensure the right balance is struck. The Government is
firmly opposed to the general communitisation of criminal procedural
law. It is also opposed to the creation of a European Public Prosecutor.
The Government is therefore opposed to any general extension of
ECJ jurisdiction in this area. The JHA Working Group report recognised
the close link between criminal law and national structure. For
that reason, although the Government is willing to consider preliminary
rulings jurisdiction for the Title on the Area of Freedom, Security
and Jurisdiction in Part II of the draft Constitutional Treaty,
it should be limited to ensure that Member States can restrict
the courts or tribunals competent to refer a case to the ECJ.
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).
16 This issue was examined in some detail
by the Convention Discussion Circle on the ECJ, in which Baroness
Scotland participated. That Group heard that both the ECJ and
Court of First Instance were divided on the need to relax the
standing rule in Article 230(4) TEC and could itself reach no
consensus on the matter. Baroness Scotland pointed out that the
situation in some national jurisdictions, including the UK, meant
that there was no practical gap or lacuna to be addressed. A copy
of that Group's report is enclosed with this response.
The resources of the Community Courts and the
Strasbourg Court need strengthening to enable cases to be decided
within a reasonable time (para 133).
17. The Government attaches great important to
the Courts' work. Improving their effectiveness is a key aim.
We will work to ensure the Courts have resources to do their job
properly and efficiently. Changes under the Treaty of Nice, which
came into force on 1 February, will also facilitate the allocation
of work between the European Court of Justice (ECJ) and the Court
of First Instance (CFI), as well as providing for judicial panels
to be attached to the CFI. Work is underway to implement these
changes which should enable the Courts to carry out their work
as efficiently as possible.
18. As for the ECHR, a three-year reform programme
aimed at reducing the backlog is in train. The programme includes
a significant uplift in resources of £9m extra over 2003-5;
the UK's share is currently estimated to be around £1.2m.
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.
19. The Government would be happy to participate
in any debate the House may decide upon.
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