Making Rights Binding on the European Union

Speech by Andrew Duff MEP delivered to Federal Trust Conference on Mon 9th Oct 2000

The British prime minister should be congratulated for having shown his hand before the Biarritz European Council with regard to the Charter of Fundamental Rights. He has said that he will welcome the Charter as a proclamation of rights. This is a significant step forward for Mr Blair to make, and I congratulate him warmly for that decision. For a long time it appeared that the UK would not accept the Charter at all, and the fact that it now has has left others isolated and looking rather absurd, such as the Irish government and the CBI, who had expected to be able to shelter behind Her Majesty's Obdurate Government.

What we have now is a Charter of durable quality. As Tony Blair has found, it is persuasive. The extraordinary Convention set up to draft the Charter has been driven by the force of reasoned, if protracted argument. Of course Lord Goldsmith, the prime minister's representative, has won some points, and he has been consistent in arguing for legal certainty between the new Charter and existing fundamental rights regimes. But the UK has had to accept a wider expression of the social dimension of Europe than it wanted, and it lost its proposal to have an equally forcible second part of the Charter that threatened to tie down and qualify the articles of rights like the glossary of the Code of Justinian.

The British government has compromised like everyone else. Otherwise there would have been no consensus. The final draft belongs to all the members of the Convention, and it behoves us all now to report back and justify the result to those who appointed us to serve on the Convention, and to argue for it to a wider public.

The European Parliament, on the whole, has had a good Convention. The MEPs have been present, organised and proactive, and have brought a real parliamentary didactic to what would otherwise have been a wholly intergovernmental debate. A mark of our success is the ill-concealed scorn with which the Foreign Office regards the innovation of the Convention.

The Convention proceeded to draft the Charter on the presumption that it could have mandatory effect upon the European Union and upon member states when and in so far as they carry out EU law and policy. This pleased the big majority of the Convention, but it also placed upon us a necessary constraint. Preamble aside, we have successfully avoided flowery rhetoric. We have not produced a catalogue of aspirations for a United States of Europe. We have stuck quite well to our task of drawing on and explicating existing rights as found in the common national constitutional traditions, international treaties (especially the 1950 European Convention of Human Rights), the Treaties of the European Union and Communities, and the relevant jurisprudence of the European Court of Human Rights at Strasbourg and the European Court of Justice in Luxembourg.

So we have fulfilled our mandate from the European Council, and the result is that the Charter could become binding, and be justiciable in the ECJ. But the European Council has decided that the Charter will in the first instance be 'solemnly proclaimed' by itself, the Commission and the Parliament. It will then "have to be considered whether and, if so, how the Charter should be integrated into the Treaty". This raises a number of interesting questions. First, what is this 'proclamation' we are being asked to make? Biarritz should clarify this. What parliaments do is vote. They never 'proclaim'.

At its most risible, a proclamation is, surely, a pompous form of public relations - a baroque press release that can be recycled until suffocated by ennui. A wise public would greet such a thing with cynicism. I fear that Mr Vaz's famous notion of the Charter as a 'show-case' of existing rights comes somewhere close to this glorified PR exercise.

A variation on that theme, and a step up, would be for such a proclamation to become a Declaration of the Treaty of Nice, signed by all or only some of the member states. These declarations have interpretative value, although they are not legally binding. *** The next option would be for the Charter to be referred to specifically in Article 6.2 of the Treaty on European Union, thereby adding it to the ECHR, constitutional traditions common to member states and general principles of Community law as sources for the fundamental rights which the Union will respect. More forceful still would be to make the Charter a formal Protocol of the Treaty, attached to Article 6.2.

How much should we expect from Nice? Of course, the Parliament has asked, and will continue to ask, for the Charter to be installed in the first, entrenched part of a new constituent treaty of the Union so that it becomes part of the basic law of post-national Europe. But radical restructuring of the Treaty will not happen at this IGC. The most we can hope for is that Nice will take a decision in principle that such a constitutional reform should come about within a year or two. Perhaps the heads of government might even agree to set up a Convention-type process to do the drafting work - although I suspect they will only be driven that far if the product of this year's IGC is really and blatantly dismal, thus serving to contrast very badly with the prize of the Charter forged in the crucible of the Convention.

We must not exaggerate the importance of the Nice decision about the juridical nature of the Charter. For one thing, whatever happens on the Riviera, there will be other chances to amend the Treaties later on - and probably soon enough. For another, it may be wise to let the ECJ through case law to gain more experience of fundamental rights issues than they have at present (although it is not negligible). Its relationship with Strasbourg also needs careful management over time, and the Court itself is facing a period of intensive reform of its own working methods. In any case, the Court is bound to deploy the Charter in making its judgments just as the political institutions will be guided by its provisions as they make and implement policy both within and without the Union.

But is leaving the Charter in some political and legal limbo enough? I think not. Everyone has accepted the need not to create competing regimes in Europe for indivisible and universal rights. While a certain delay may be judicious, we need a principled decision to make the Charter ultimately binding. For not to entrench the Charter will induce the very legal incertitude that we are all trying to avoid.

The fact is that the European Union now represents a very real concentration of power, and it is necessary to shield and safeguard the citizen from any possible abuse of that power. That is, at heart, the argument for a mandatory Charter. A proclaimed Charter can only offer indirect protection by means of recourse to the general principles of EU law. We will be left in the hands of the courts responding to spasmodic cases brought coincidentally before them. For systematic and comprehensive legal protection we need a juridical Charter.