A COMBINATION OF THE CHARTER AND
ACCESSION TO THE ECHR
136. It is significant that most of those who
are advocating accession do not see it as an alternative to the
inclusion or the incorporation of the Charter. They see it as
an addition. The Government's view was that there were "certain
inherent conflicts in trying to do both. Both may be possible
and we have to be very careful about how we construct such a possibility"
(Q 249). But, as Statewatch pointed out, we are not being forced
to choose between an enhanced status for the Charter and accession
to the ECHR (p 99). Integrating the Charter into the Treaties
would not prevent or restrict accession to the ECHR. And although
Article 52(2) of the Charter (one of the horizontal clauses) is
intended to regulate the relationship of the Charter and the ECHR,
whether that clause would be sufficient to avoid divergent interpretations
in the application of the ECHR has been questioned.
137. Accession by the Union or Community to the
ECHR would require not just the unanimous agreement of EU Member
States but the agreement of all contracting parties to the ECHR.
This might take some years to negotiate and conclude. There are
technical problems to overcome and it would be necessary first
for all parties to the ECHR to agree the changes and second for
those changes to be ratified by the Contracting Parties in accordance
with their national constitutional requirements. It is by no means
a foregone conclusion that negotiations would succeed, or that
ratification would take place, or that the process would be speedy.
Negotiations could not begin until the Union/Community had been
given the necessary powers to accede and the Council had agreed
the mandate to commence the negotiations. But, given the political
will, these difficulties would not prevent preliminary work being
put in hand earlier.
138. By contrast the Charter could be integrated
into the Treaties at the next IGC and could take its place as
the EU Bill of Rights at the same time as Member States ratify
the new EU Treaty. We agree that for these reasons integration
of the Charter should go forward, provided sufficient safeguards
for the ECHR and for Member States' competences can be secured
via the horizontal clauses, bolstered by the commentary.