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Much has been said over the last year about human rights, especially in the context of the effects of the Scotland Act and, more recently, the Human Rights Act in relation to the applicability of the European Convention on Human Rights in Scots law. The next addition to this hierarchy of norms will be, so it seems, the Charter of Fundamental Rights which was signed by the EU Member States in October. The Charter is presently the focus of debate regarding both its legal status and the nature of the rights it contains, as well as its inter-relationship with other legislation and, notably, the European Convention. Here we take a look at the background to the Charter and its possible future status.

The European Union and Human Rights

It goes without saying that the European Communities have as their stated aim economic integration through the establishment of the single internal market. The constituent EC Treaties, when they were originally signed in the 1950s, contained no express provisions concerning the protection of human rights in the context of the European Communities. Over the years, however, the European Court of Justice has, through its case law, developed the concept of the application of fundamental rights within the community legal structure and it increasingly appeared that the EU felt it had a role in this area.

In 1994, a proposal that the European Communities as a body accede to the European Convention on Human Rights was put forward. However, the European Court of Justice, on being asked for its opinion, judged that the Communities would not be competent to take such an act, although individual Member States of the EU were all signatories of the Convention1, and the idea of wholesale accession to the Convention was abandoned. However, the ECJ continued to apply the principles enunciated by the Convention to cases coming before it.2

In this context, the Treaty of Amsterdam marked a step forward on the way to a formal legislative recognition of the principle of the protection of fundamental rights by the European Union. Article 6(1) of the Consolidated Treaties states that:

“the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”

Article 6(2) provides more specifically that:

“the Union shall respect fundamental rights, as guaranteed by the European Convention for the protection of human rights and fundamental freedoms signed in Rome on 1st November 1950 and as the result from the constitutional traditions common to the Member States, as general principles of community law”.

The Treaties, then, make specific reference not only to the legal traditions of the Member States, but also to the European Convention on Human Rights.

Development of the Charter

The European Council, at its meeting in June 1999 at Cologne, determined that over and above the references to human rights in the Treaties there was a need to establish a Charter of Fundamental Rights, which would enumerate specific rights drawn from a number of sources. The purpose of the Charter would be to make fundamental rights more visible and accessible by setting them out in a single document. The Conclusions of the Cologne Council state that such a Charter is necessary to the legitimacy of the Union and that the obligation to respect fundamental rights had been confirmed and defined by the jurisprudence of the European Court of Justice. It was left to the European Council in Tampere later that year to agree on the method for working out the details of such a Charter.

After the Tampere Council, a Convention was set up following its recommendations and consisted of representatives of the Member States, a representative of the President of the Commission, and a number of members of the European Parliament and of the national parliaments (from Scotland’s point of view, the Convention included David Martin, one of the Scottish MEPs and the Vice-President of the European Parliament). The Convention met between December 1999 and July 2000 and published a draft Charter at the end of July. This draft was thereafter amended to take account of demands from, amongst others, the UK Government, which would not have signed the Charter unless certain clauses relating to social and economic rights were made subject to national laws and practices. A final version of the Charter was published in September.

Content of the Charter

The Charter consists of a Preamble, detailing the context in which it was felt necessary to make such a Charter, and indicating that its intention is to reaffirm the rights which result from the traditions and international obligations common to the Member States, the various constituent European Community Treaties, the European Convention on Human Rights, the Social Charters adopted by the Community and the Council of Europe and, last but not least, the case law of the European Court of Justice and the European Court of Human Rights.

The Preamble is followed by seven chapters –

  • Chapter I: Dignity (Articles 1 - 5)
  • Chapter II: Freedoms (Articles 6 – 19)
  • Chapter III: Equality (Articles 20 – 26)
  • Chapter IV: Solidarity (Articles 26 – 37)
  • Chapter V: Citizens’ Rights (Articles 28 – 45)
  • Chapter VI: Justice (Articles 46 – 49)
  • Chapter VII: General Provisions (Articles 50 – 53).

The full text of the Charter can be found at

Effect of the Charter

Member States signed the Charter in October in Biarritz, but the question of the legal status of the Charter is being deferred to the next European Council which will take place in Nice in December. At the moment, it seems likely that the Charter will remain a declaration of rights and will not be integrated into the Treaties. The actual effect of such a Charter remains to be ascertained, and is the matter of some debate at the moment. There have been criticisms to the effect that a declaration of rights which are unenforceable would be pointless and, indeed, would merely confuse the public, rather than making rights more accessible to citizens. However, it has also been commented that a Charter of Fundamental Rights, even one which is stated to be ‘declaratory’, would have some intrinsic legal value because of the role of the ECJ in establishing and applying general principles and law. It is felt that it may be inevitable that the ECJ would, in its judgments, take account of the content of the Charter, just as, in the past, it has given effect to general statements of principle in the European Treaties.

  1. Opinion 2/94 on Accession of the Community to the ECHR [1996] ECR I-1759.
  2. For the inter-relationship between Community law, human rights law and Scots law, see the article by Aidan O’Neill, QC in JLSS vol. 45 no. 2, February 2000 at page 36.
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