Select Committee on European Union Sixth Report


PART 3: INCORPORATING A BILL OF RIGHTS INTO THE EU CONSTITUTION

INTRODUCTION

43.  Discussion about incorporating a Bill of Rights into the EU Constitution highlights two anomalies: first, the absence from the Treaties of a list of fundamental rights; second, the fact that neither the Union nor the Community is party to the ECHR.[36] Incorporation of the Charter into a new Constitution would remedy the first of these anomalies. The proclamation of the Charter in December 2000 provided Member States with an opportunity to increase the protection of individuals in relation to the activities of the Union. This opportunity has not yet been taken although in practical terms the Charter has not been devoid of legal effect. As described above, it has been pleaded in aid before the Community Courts, the Strasbourg Court and in national courts. But on the key issue of whether it has conferred rights on the individual which he or she can enforce by obtaining a remedy for abuse of power by the EU institutions, the Charter, being in the Minister's words merely a "political document", is of very limited value.

44.  The groundswell of movement towards the adoption of some sort of constitution for the European Union is probably becoming irresistible. Modern constitutions are expected to contain Bills of Rights. Many see the Charter as fulfilling that role in a European Constitution. The Committee on the Affairs of the European Union of the Deutscher Bundestag has described the Charter as "one of the most modern fundamental rights catalogues in the world and an important element for a future constitution of the European Union".[37] And the majority of our witnesses took the view that the Charter should be an essential part of any form of constitutional Treaty for the Union. Omission would, in BEG's view, be "both anomalous and unsatisfactory given the broad and potentially increasing range of powers enjoyed by the EU institutions" (p 57). JUSTICE said that "a binding catalogue of fundamental human rights guarantees is an essential part of the constitutional structure of the Union. The EU Charter of Rights, which includes comprehensive and carefully drafted protection for both civil and political and economic and social rights, would, if made binding, fully ensure such accountability" (p 77).

45.  That any EU Constitution should include a Bill of Rights, specifying rights of the citizen and limiting the powers of the EU institutions seems beyond argument. But whether the Charter is the answer is at least debatable. Another way in which the position of the individual could in practical terms be improved would be by EC/EU accession to the ECHR. This is not necessarily an alternative requiring a choice to be made. But in considering what the future role of the Charter should be the options need to be examined. In this part of the Report we consider, with the benefit of the written and oral evidence that we have received, the arguments for and against incorporation of that Charter into the Treaties or into a new constitutional Treaty for the Union as well as the case for EC/EU accession to the ECHR. In doing so we make both general and, sometimes, detailed recommendations. These are brought together and listed in Part 6 of this Report.

INCORPORATING THE CHARTER—THE CASE/ARGUMENTS IN FAVOUR

(A) GREATER TRANSPARENCY, LEGAL CERTAINTY

46.  A number of witnesses supported incorporation of the Charter into the Treaties because so doing would remove the uncertainty surrounding the present status of the Charter and bring greater transparency and legal certainty. JUSTICE pointed out that although declaratory instruments have an important role to play in building human rights awareness and protection internationally they do not constitute a sufficient constitutional protection against bodies exercising State power (p 78). Liberty said that "it would be a clear advantage of incorporation that the rights available to citizens of the European Union (and those within its jurisdiction) would be (a) more visible and visibly part of their legal heritage and (b) directly enforceable and perceived as such" (p 88).

47.  There is general agreement that in its areas of competence the Union must respect fundamental rights as "general principles of Community law"[38] and the Charter would add detailed content to that obligation. It would make clear, and thus reinforce, the need for the Union institutions to meet the requirements not only of the ECHR but also of other international human rights instruments (such as the International Covenant on Civil and Political Rights) by which the Member States are bound.

(B) ENFORCEABLE RIGHTS

48.  Most witnesses assumed, or at least expected, that upon the incorporation of the Charter into a new constitution the rights would become enforceable by the individual. BEG said: "incorporation would send a clear signal to EU citizens that the rights contained in the Charter were real, enforceable rights … Any impression that the Charter constitutes a catalogue of political aspirations that the Union has pledged to uphold but cannot be held to would be dispelled" (p 57).

49.  However, the Government has dissented from the view that incorporation of the Charter would create new rights or give remedies which were not presently available. Baroness Scotland said: "The reality is that the whole point of the horizontal provisions was to say that there would be no new jurisdiction, no new competence and no new encroachment into a different field. There should not be, simply by virtue of incorporation of the Charter, a significant increase in the call on the use of remedies in relation to the Charter, it should not change things. That is certain". In the light of that statement she was asked in the next question: "Are you not going to be giving individuals a whole raft of new rights?" to which her response was "No" (QQ 254-5).

(C) A TAILOR-MADE BILL OF RIGHTS

50.  The majority of witnesses took the view that the Charter should be an essential part of any form of Constitutional Treaty for the Union. The Charter goes, intentionally, beyond the ECHR and is specially tailored to the circumstances of the Union". The Charter includes, for example, rights which are peculiar to the Union (for example the fundamental economic freedoms—the rights of movement of persons, goods, services, capital—and the specific citizenship rights accorded by the EC Treaty) as well as economic and social rights. Some saw these rights as a part of an indivisible body of fundamental rights. Advocate General Jacobs said: "In a modern bill of rights appropriate for the European Union it is appropriate to have some account given of economic and social rights as well as civil and political rights, it would be difficult to omit that side of the rights altogether" (Q 154). It should be recalled that when giving its initial instructions on the preparation of the Charter the European Council specifically required the draftsmen to take account of economic and social rights[39].

(D) THE CREDIBILITY OF THE EUROPEAN UNION

51.  For some there is an overwhelming political case for enhancing the status of the Charter. In the view of Professor Spiros Simitis, Professor at Johann Wolfgang-Goethe University, Frankfurt, a failure to incorporate the Charter into the Treaties would undermine the credibility of the European Union "… to solemnly proclaim the willingness to guarantee fundamental rights by adopting a Charter exclusively devoted to these rights but to refuse to include it in the documents regarded as the constitutive elements of the European Union would inevitably discredit all prior declarations of a special commitment to both a democratic society and to fundamental rights" (p 97). Mr Andrew Duff MEP believed that the political case was irresistible: "I find it an inconceivable proposition that contemporary Europeans should seek to draft a Constitution and exclude an explicit bill of rights … If we are going to have one then it will have to be the Charter" (Q 104).

(E) SIMPLER AND MORE SPEEDY EXERCISE THAN ACCESSION TO THE ECHR

52.  Incorporation of the Charter into the Treaties or a new constitutional Treaty would have to be agreed by all Member States and the necessary amendments to the Treaties and/or the new constitutional Treaty ratified by each Member State in accordance with its own constitutional procedures. That, as the recent history of the ratification of the Nice Treaty has shown, may be time-consuming and politically controversial. But EC/EU accession to the ECHR would require much more, including both EC/EU Treaty amendment and ECHR amendment. Taking a body such as the Union into the ECHR regime is unprecedented and would require complex technical treaty amendment prior to unanimous agreement and ratification by all 44 members of the Council of Europe.

INCORPORATING THE CHARTER—THE ARGUMENTS AGAINST

53.  There are a number of substantial arguments against incorporating the Charter, at least in its present form, into the Treaties.

(A) BALANCE OF RESPONSIBILITIES BETWEEN EUROPEAN INSTITUTIONS AND NATIONAL GOVERNMENTS—EXTENDING UNION COMPETENCE

54.  The CBI believe that incorporating the Charter into the Treaty and giving it "full legal status" would create legal uncertainty and risk altering the balance of responsibilities between European institutions and national governments (p 61). The Charter contains a number of Articles (for example, Article 9 (right to marry) and Article 10 (freedom of religion)) dealing with matters where the Community/Union currently has no or only limited competence to act. The question raised is what effect, if any, incorporation of the Charter in the Treaties might have on the respective competences of the Union and the Member States. The debate would become that much more significant if the Charter were to be incorporated as one of the fundamental elements of a new constitutional Treaty. In such a case the provisions of the Charter would, in JUSTICE's view, have a higher law status than other Treaty Articles: "The terms of the Charter should be seen as basic principles that inform the EU legal order. Its principles should be a tool of interpretation for other Treaty Articles, and should condition the application of these Treaty Articles where there is inconsistency with Charter rights" (p 79). BEG contended that Charter articles should take precedence over other Treaty Articles in the event of conflict: "This would be consistent with the status normally given to constitutional rights provisions" (p 57).

55.  While many witnesses were confident that incorporation of the Charter would not affect the balance of competences (and indeed Statewatch thought the Working Group's preoccupation with the subject ill-informed and unnecessary), others were less certain. That this issue may have serious political and practical implications can be seen most clearly from the difference of views of the CBI and ICTUR (International Centre for Trade Union Rights) on the possible effects of certain of the Charter's economic and social rights.

56.  ICTUR envisaged the Charter having significant effects in relation to collective labour rights. ICTUR noted that the Charter went far beyond existing EC law, which effectively excluded competence over rights of association and strike action.[40] ICTUR believed that, if incorporated into the Treaties, the Charter (and in particular Articles 12, 27 and 28) might have an influence on the interpretation of the directives on information/ consultation; might protect the right to take industrial action as against Member State's duty to ensure the functioning of the single market; might reinforce the immunity for collective agreements from competition law; might permit legislation on the freedom of association and strike action notwithstanding Article 137(6) EC; and, might enhance the legitimacy of framework agreements as a source of legislation (p 76). ICTUR argued that it should be made explicit that the Charter could be used in the interpretation of existing competences and that it should also be possible for the Charter to be a source of competence where the Treaties do not make full provision for the rights guaranteed by the Charter (p 77).

57.  Not surprisingly, these were the very sorts of arguments and conclusions about which the CBI expressed strong concern. The CBI believed that there was "a significant risk that incorporation of the Charter would transfer power to the EU on a range of issues which, under the principle of subsidiarity, fall to national governments to determine. For example, Member States specifically excluded issues such as the right to strike and unfair dismissal from the European Treaty because the differing systems of industrial relations which exist across Europe mean that it is more appropriate for these issues to be decided at national level. The CBI expressed concern that radical change might be introduced "through the back door—as a side effect of incorporation of the Charter—rather than specific legislative proposals" (p 63). Three Articles were, in the view of the CBI, so wide in scope as to extend EU competences beyond current agreement: Article 21 (prohibition on discrimination); Article 28 (right of collective bargaining and action); and Article 30 (protection in the event of unjustified dismissal).

58.  Article 51(2) of the Charter aims to ensure that the Charter does not create any new power for the Community or the Union or modify any existing one. That Article was the subject of much discussion in the Convention Working Group and the text of the Article has been changed to strengthen it. This has been a major concern of the Government (Q 254).[41]

(B) IMPLICATIONS FOR ACTS AND POLICIES OF MEMBER STATES - IMPINGING UPON MEMBER STATES FREEDOM OF ACTION

59.  A key issue is the extent to which the Charter would be applicable to acts done by the Member States. This issue was addressed at the time of its preparation. Under Article 51(1) of the Charter, its provisions apply to the Member States "only when they are implementing Union law".

60.  A number of witnesses drew attention to the fact that this limitation was not applied by the ECJ in determining the compatibility of Member States' rules with the ECHR. In the ERT case, for example, the Court held that Member States were obliged to comply with fundamental rights when acting "within the scope of Community law".[42] Even that formulation, as BEG pointed out, is capable of differing interpretations. BEG believed that the ECJ would adopt the narrower view of the applicability of the rights contained in the Charter to the actions of Member States (p 58). Professor Arnull agreed: "Article 51.1 … goes on to say that the Member States are addressed by the Charter only when they are implementing Union law. That is an embodiment of the effect of the existing case law of the Court of Justice. It is rather a truncated form of the case law of the Court of Justice which I think shows that Member States have to comply with the general principle of respect of fundamental rights either when they are giving effect to a Community act or when they are seeking to invoke a derogation for which Community law provides" (Q 9).

61.  Perhaps more problematic is the scope of the Charter itself. Concerns have been raised in relation to "rights" enshrined in the Charter, which are not replicated in either the ECHR or the EC Treaty, and especially in relation to the economic and social rights set out in Chapter IV under the heading "Solidarity". The CBI considered the current text of the Charter to be that "of a political aspirational document which is wholly unsuitable to become legally binding" (p 64). Particular examples could be found in Article 14 (right to education), Article 26 (integration of persons with disabilities), Article 27 (workers' right to information and consultation within the undertaking), and Article 31 (fair and just working conditions). The CBI believed that incorporating the Charter would "inappropriately translate a political aspirational document into a directional instrument with legal status" (p 62).

62.  Other witnesses were resistant to any notion that social and economic rights should be declaratory only and to attempts to exclude them from, or restrict their scope in, the Charter. Liberty and the British Institute of Human Rights (BIHR) contended that the "suggestions made by the United Kingdom originate not in a justified or justifiable concern over the limits to those rights but from a persistent and, in the view of these organisations, irrational refusal to recognise that economic, social and cultural rights are exactly that, namely "rights", which are within limits enforceable, rather than mere "ambitions" or "principles". This position is clearly out of step with current thinking on human rights" (p 89). In Liberty's view, any fear concerning the result of allowing economic, social and cultural rights to remain in the Charter was "clearly misplaced" (p 90).

(C) NOT IN A FIT STATE TO BE INCORPORATED

63.  We asked for views on whether, in view of its form and content, the Charter really was suitable to become legally enforceable. Mr Timothy Kirkhope MEP doubted whether the Charter was in a fit state to be incorporated into the Treaties or any Constitution (Q 80). Fair Trials Abroad believed that the Charter "would not bring any added benefits to the citizen in its current state. To leave the application of the Charter, with its inadequate protection, to be determined over time by the Court of Justice would be less than desirable" (p 68). Professor Toth identified the following as giving rise to problems: "the extremely wide range and varied nature of the rights and freedoms in question; the nature of the corresponding obligations that the Charter imposes on the institutions and the Member States; the wording and lack of enforceability (justiciability) of some of its Articles; possible incompatibility with existing Treaty provisions" (p 110).

64.  But while some witnesses saw difficulty and disadvantage in the variety of subject matter, form and character of provisions of the Charter, others disagreed and considered these features to be fully justifiable. Mr Duff said that the Charter "is far broader and wider than any single alternative formulation of rights. It flows from the sources which are stipulated quite clearly in the preamble and the general clauses - from a number of sources, including the corpus of law developed over now 50 years of the European Union which enjoys extensive scope … It is the breadth of the Charter which brings some of the richness of the Charter" (Q 121).

65.  Witnesses accepted that the Charter was not perfect and could be improved. But there was considerable doubt whether its renegotiation would result in anything substantially better. Others strongly resisted the very idea of change. To open up the Charter for amendment, Mr Duff said, "would be a mistake. It would first of all suggest that the first drafting was in some way improper … Or it was incomplete in its work. Secondly, we feel that we require far more experience of the Charter with mandatory force in practice before we should consider any supplemental amendment" (QQ 106-7).

66.  The Convention Working Group concluded that the content of the Charter represented a consensus reached by the previous Convention that should be respected and, excepting the so-called horizontal clauses, should not be re-opened. In Statewatch's view, this conclusion was "unfortunate". There were several provisions that could be improved. "In particular, the access to documents clause could be amended to apply to 'access to information' and to apply to documents held by all EU institutions or bodies. Provisions based on the Fourth ECHR Protocol and the International Covenant on Civil and Political Rights (ICCPR) could be added regarding procedural rights for migrants in expulsion cases. The rule relating to non-discrimination on grounds of nationality could be broadened to take greater account of human rights treaties. As for criminal law, it would be useful to have provisions based on the ICCPR (and ECHR Fourth Protocol) rules on compensation for wrongful conviction and the right to a criminal appeal" (p 103).

(D) LACK OF HOMOGENEITY—RIGHTS, PRINCIPLES, ASPIRATIONS

67.  The Charter contains a mix of provisions, not only as regards subject matter but also as regards the nature of the obligations prescribed. A number of witnesses were particularly critical of the more "aspirational" obligations. On the other hand, Mr Duff said: "Certainly the Charter includes a statement of values and principles as well as classical formulation of fundamental rights. In that it is exactly the same as all the other Bills of Rights that you find in any other constitution that I can find. It is not exceptional" (Q 106).

68.  While some provisions of the Charter clearly set out rights (for example, Article 8, the right to the protection of personal data) others have a less normative character and cannot necessarily be given effect by the courts. Professor Toth asked: "How can, for example, the Community or Member State Courts enforce the right to work (Article 15(1)) or the right of the elderly to lead a life of dignity and independence (Article 25)?" Other provisions were still less justiciable for the simple reason that they merely declare ideals and principles without conferring any right or freedom at all[43] (p 111).

69.  Some Articles might be classed as "principles", to be taken into account by the courts when interpreting the scope of rights in a particular area.[44] Others were seen as mere "aspirations". Article 37 of the Charter provides that a high level of environmental protection must be "integrated into the policies of the Union". Article 38 states that "Union policies shall ensure a high level of consumer protection". In JUSTICE's view these two Articles appeared to set out "programmatic objectives" rather than judicially enforceable rights. Article 12(2) states that "political parties at Union level contribute to expressing the political will of the citizens of the Union". This appears to be a statement of fact rather than a right. Nevertheless, JUSTICE considered that although such provisions were not likely to provide firm guarantees of protection, they could be used as guiding principles of interpretation by the ECJ (p 78).

  1. Baroness Scotland emphasised the fact that the provisions of the Charter were derived from different roots: the constitutional bases of Member States, common constitutional traditions, the ECHR and a number of other treaties (Q 222). The challenge was to separate out "fundamental principles which are justiciable in whole from principles which may be justiciable in part and from principles which are purely aspirational in nature". In the Government's view it was important that the horizontal articles should give "clarity as to what the boundaries are in the way in which they will be implemented" (Q 230).



36   EU Charter of Fundamental Rights, 8th Report 1999-2000, HL Paper 67, at para 119. Back

37   The Committee on the Affairs of the European Union 1998-2002, at p 15, Deutscher Bundestag October 2002. Back

38   Article 6(2) TEU. Back

39   Particularly those contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers. Back

40   Article 137(6) TEC. Back

41   See para 49 above. Back

42   Case C-260/89, [1991] ECR I-2925, at para 42. Back

43   See eg Articles 12(2), 22 and 36. Back

44   Q 185. Back


 
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