8th REPORT, SESSION 1999-2000: EU CHARTER
OF FUNDAMENTAL RIGHTS
Memorandum to the Select Committee on
the European Union by the Foreign and Commonwealth Office
1. The Government welcomes the Committee's
thorough and thoughtful report. While it does not agree with every
recommendation or judgement made by the Committee, the Government
believes that the report is an important and measured contribution
to the debate on the Charter.
2. As the report does not contain separagraphte
policy recommendations as such, this response follows the format
of Part 4: Opinion, and covers the issues raised in each section.
3. It is certainly true that there is no
existing catalogue of fundamental rights as such in the EU Treaties
and that neither the EU nor the Communities are party to the European
Convention on Human Rights (ECHR) or to any other human rights
instrument. The Government believes that it is useful that the
Charter will provide a catalogue.
4. The Government shares the Committee's
conclusion that this is more than a clerical or academic exercise,
and involves complex and important legal and political issues.
5. The Government welcomes the Committee's
acknowledgement (paragraph 123) that the Charter Convention has
to act within the limits of the Cologne European Council Conclusions.
It also welcomes the Committee's recognition (paragraph 124) that
a declaration, as advocated by the Prime Minister and supported
by a number of EU partners at the Feira European Council, would
have value. As the Committee says, rights enjoyed by EU citizens
are scattered through the EC/EU treaties. There is a clear benefit
in bringing them together, along with core civil and political
rights drawn from the ECHR. It should also help to clarify the
obligations of the EU institutions.
6. The Government does not accept that a
declaratory Charter would not confer direct and tangible benefits
on individuals (paragraph 126). While it is true that it would
not confer new rights and remedies, it would help the democratic
process of empowerment by making rights more visible to the people.
The 1998 Eurobarometer poll in the UK showed that, when asked
what they wanted to know more about, 46 per cent were interested
in their rights as European citizens. The Committee asserts that
" a `showcase' Charter readily accessible to, and comprehensible
by, all, on the one hand, and a Charter justifiable in the ECJ
are really two quite different concepts. We doubt whether these
functions can be adequately met within a single instrument"
(paragraph 126). The Government believes that the Cologne Conclusions,
and the merits of the argument, constitute a strong case for concentrating
on the former.
7. It will not surprise the Committee that
the Government does not accept its conclusion that it runs the
risk of appearing to be extremely negative (paragraph 127). The
Government's position has been positive and constructive throughout.
We have always seen the Charter as an opportunity. The Minister
for Europe has consistently spoken of the positive value of the
Charter. But preserving legal certainty is just as important as
enhancing visibility. Put simply, even a declaratory Charter is
too important to get wrong. A poorly drafted Charter could actually
set back, rather than enhance, the protection of human rights
in Europe. In addition there is the need to observe the remit
agreed at the Cologne European Council. So the Government believes
that its positive but careful approach is the right one.
(i) Accountability of the Institutions
8. The Government agrees with Lord Goldsmith's
evidence that the Charter can help to put flesh on the bones of
Article 6(2) of the Treaty on European Union (TEU)making
the institutions' obligations more specific. This will help guarantee
against the misuse of power by EU institutions. But the Government
does not agree with the Committee that there are significant gaps
in human rights protection, which need remedying at European level.
The institutions are bound by Article 6(2) TEU to respect fundamental
rights and can be held to account before the European Court of
Justice (ECJ) in accordance with Article 46(d) TEU for their compliance,
wherever the Court has jurisdiction under the First Pillar or
under the TEU. It is true that direct challenges by individuals
are possible only in the First Pillar and have to meet the rules
on standing, but there is a considerably wider scope for actions
against an institution brought by another institution or by a
Member State. In any event, individuals may raise issues based
on fundamental rights in proceedings on matters of Community law
before national courts, from which references to the European
Court of Justice for preliminary rulings may be made.
(ii) The Standing Rules
9. The Government agrees with the Committee
that this is not a new issue nor one restricted to the human rights
field. Nor are changes to the rules on standing within the Charter
Convention's remit. In any event, the Government does not support
changes to make it easier for individuals to challenge acts of
the institutions directly before the ECJ. As the Committee recognises,
there would also be serious practical implications for the ECJ's
workload, which is already overburdened. Individuals have the
right to challenge in the Community courts measures of the EU
institutions, which directly and particularly affect them. In
the case of measures, which are generally applicable, remedies
are available in the national courts where an individual satisfies
national rules on standing. And the IGC has other priorities,
notably key institutional reforms to prepare for enlargement.
(iii) The Third Pillar
10. The Government does not accept that
Third Pillar activity lacks judicial supervision. Even though
the Treaty of Amsterdam ushered in new potential for Union activity
in the Third Pillar, this is essentially inter-governmental in
nature. New justice and home affairs (JHA) instruments (such as
the Europol Convention or the Customs Information System Convention)
already contain relevant safeguards. And, as the Committee recognises
(paragraph 135), Member State agencies are mainly responsible
for taking forward and implementing these areas of co-operation.
UK police and customs agencies must act within our national law
and are entirely accountable to the courts for their actions.
Moreover many initiatives require domestic legislation to give
them practical effect and it is open to Parliament to introduce
any additional safeguards it thinks appropriate, consistent with
maintaining the integrity and effectiveness of the initiative.
11. As regards data protection these JHA
instruments contain provisions relating for example to the protection
of automated data, subject right of access, correction of incorrect
data and the transmission of data to third parties. They also
provide for the establishment of an independent data protection
supervisory body to ensure that the relevant provisions are complied
12. As far as liability is concerned, there
is no exemption for Member States. The instruments make clear
that it is the Member State responsible for example for the inputting
of incorrect data which will be responsible under its national
law for the payment of any relevant compensation for resulting
damage or injury.
13. A range of specific safeguards will
be available with regard to those Schengen provisions incorporated
into EU law following the Treaty of Amsterdam. For example, for
those elements assigned a First Pillar base, the EC Data Protection
Directive will be relevant. As far as cross-border surveillance
is concerned, this would be regulated by the Regulation of Investigatory
Powers Bill currently before Parliament.
14. The Government does not accept that
we should agree to extend full ECJ jurisdiction over the very
sensitive areas covered by the Third Pillar. These raise sensitive
issues relating to national sovereigntylaw and order and
the criminal justice process. An acceptance of extended jurisdiction
would have to be on a "once and for all" basis. This
would be a significant extension of the ECJ's legal responsibilities.
In any event, there is already some scope for the review or interpretation
of Third Pillar measures by the ECJ, at the suit of the Commission
or the Member States, pursuant to Article 35(6) and (7) TEU.
(i) Incorporating civil and political
rights into the Charter
15. The Government entirely agrees with the Committee's
emphasis on the importance of legal certainty. It welcomes the
Committee's support for its position on the need to avoid differential
standards of human rights protection, protect the status of the
ECHR and preserve legal certainty. We agree that the core of the
Charter's civil and political rights should be those drawn from
16. To an extent the Charter drafts have
included rights drawn from the Protocols to the ECHR (eg property,
education, double jeopardy). But not all Member States are party
to all Protocols, and it is important that the Charter does not
pre-empt their decision on participation. This is particularly
true for Protocol 12, which is not yet open for signature.
17. We recognise what the report says about
the implications of accession for the relationship between the
Strasbourg and Luxembourg Courts, and can see some advantages
in such an approach in terms of ensuring further consistency in
approach between the two Courts. But we do not believe it is essential,
given the requirement to respect fundamental rights in Article
6.2 of the Treaty on European Union, which is justifiable in accordance
with Article 46(d) TEU. Furthermore, as the Committee notes, the
ECJ has ruled that the EC does not at present have the competence
to accede. Accession would require changes to both the Convention
and the EU/EC Treaties. The ECJ already applies the ECHR and its
case law without accession.
18. In addition, as the Committee recognises,
there are formidable problems which would have to be addressed.
Accession is an issue that should be approached only with the
greatest care. We are encouraged by the fact that the ECJ and
the European Court of Human Rights have in recent months been
informally discussing co-operation and the impact of the Charter.
(i) Economic and Social Rights
19. The Government agrees that it is important
to ensure that coverage of economic and social rights does not
enlarge competence by the backdoor. There will be a horizontal
article making this explicitly clear. It also welcomes the Committee's
comments on the different nature of those economic and social
"rights" which are more in the nature of principles
to inform policy-making rather than rights enjoyed by individuals.
20. EU citizens enjoy a number of important
economic and social rights under the EC/EU Treaties. These deserve
a place in the Charter. But the Government agrees that the exercise
is not about creating new justicable rights through the Charter.
21. The universality of fundamental ECHR
rights is an important concept. The Government agrees that the
core civil and political rights drawn from the ECHR should continue
to apply to all natural and legal persons within the jurisdiction
of a State which is party (as is the case under the ECHR itself).
But as explained above, there is also a place in the Charter for
important EC/EU Treaty rights pertaining to EU citizens, such
as the right of establishment, the right to vote and stand in
European Parliament elections and the right to approach the EU
(iii) Who should be Bound
22. The Government agrees that the Charter
should apply to the EU institutions and bodies and to Member States
where they are applying or making use of the power of derogation
from community law. The Government agrees that it would be better
not to extend coverage to non-state actors.
23. In the Government's view, the Charter
is a useful way to help candidate countries prepare for accession
by making their citizens more aware of the EU's obligation to
respect fundamental rights. As these countries are already parties
to the ECHR, they are already committed to respect the core civil
and political rights. The Government is not in favour of raising
the threshold for EU membership, which reinforces the already
strong case for sticking to existing rights. It was notable from
the hearings organised with applicant countries on 19 June 2000
how many of them expressed the wish to avoid anything which would
undermine the ECHR, produce legal uncertainty and complicate or
delay the enlargement process.
24. The Government shares the Committee's
view that the Charter Convention has been commendably transparent.
The Charter website has allowed widespread access to documents
and many organisations and NGOs have posted their own proposals.
The Government has set up a link to the Charter website from the
FCO site. The Government also welcomes the direct hearings at
the Convention of NGOs in late April and applicant countries in
mid-June. Lord Goldsmith held a seminar with some 15 NGOs on 24
March, and has attended several others in the UK and other EU
25. The Government agrees with the Committee
(paragraph 153) that the Charter Convention is not the right place
to legislate on new rights. But the timeframe for completion of
the draft Charter should be adequate as long as the Convention
sticks to the mandate of the Cologne European Council.
26. The Government would like to record
it appreciation for the work of Lord Goldsmith QC as the Prime
Minister's representative. He continues to make a highly effective
and widely respected contribution to the drafting of the Charter.
His commitment and expertise are invaluable. The Convention has
also benefited strongly from the input of the four Parliamentary
representatives: Win Griffiths MP and Lord Bowness and their alternates,
David Chidgey MP and Baroness Howells of St Davids.
27. The Government agrees with the Committee
that the Charter is a very significant initiative. We share the
view that its usefulness depends on the status it is to have and
the purpose it is intended to serve. Properly constructed and
presented, the Charter should strengthen the culture of rights
and responsibilities within the EU. This will have a powerful
effect in reinforcing in the minds of those involved in drafting,
taking and applying EU decisions, the rights that citizens possess
and the need to respect them. A charter which spells out the fundamental
obligations of the EU institutions as they go about their daily
business will represent real added value.
28. In the meantime, the Charter drafting
process continues. The last Charter Convention meeting before
the summer break took place on 17-19 July. We expect the Praesidium
to circulate revised draft articles, to be discussed when the
Convention reconvenes on 11-12 and 25-26 September. At the Feira
European Council, Heads of Government agreed that the Convention
should aim to deliver a draft to the Council of Ministers by the
Biarritz European Council in mid-October. The Government will
continue to keep the Scrutiny Committees informed of developments.