COMMENT

Promoting European values

Giving all citizens of the EU a stake in its affairs and the full protection of the law will need action as well as words, argues Lord Brennan QC

The success of a new convention for Europe will depend on the perception by its citizens of the union as a community of values, inviting their full participation and contribution at all levels.

If citizens are to believe that they have a stake, they must have trust - trust in the values and objectives of European integration, trust in the procedures of European institutions, trust in the people responsible for carrying them out, and trust above all, in the system of judicial protection provided within the union.

The present governmental structure of Europe has recently been described bluntly, but nevertheless accurately, as a combination of an unaccountable commission, an undemocratic council majority, a weak European Parliament (neither of the first two are directly elected, the third, only by a meagre number of voters), and a Court of Justice with restricted powers.

Yet the preamble to the European Convention on Human Rights declares that human rights are 'best maintained by an effective political democracy'.

In the convention's draft of the first 16 articles of a new constitutional treaty, article 2 expressly declares that 'the union is founded on the values of respect for ...

the rule of law, respect for human rights ...'

By article 3 'the union shall seek to advance its values in the wider world'.

By article 5 the Charter of Fundamental Rights shall be 'an integral part of the constitution', and the union may accede to the European Convention on Human Rights but in any event such fundamental rights 'shall constitute general principles of the union's law'.

These high aspirations must have practical effect.

In Europe we should have a single judicial system with the full protection under the law as between its citizens and European legislation and institutions.

That can be achieved in three ways.

First, the existing treaty under article 230(4) severely restricts such protection.

Secondly, the recognition of rights under the ECHR must be given full effect.

If there is no accession to the convention then this would have to be through the Court of Justice.

Thirdly, if the charter is to become an integral part of the constitutional treaty and is to be legally binding, then the rights it creates must be defined.

How is the citizen to know whether he has a right, a freedom or a principle? To advise him that he should look to the terms of the charter, the convention commentary on it, and the horizontal provisions under articles 50-52 hardly resounds with the power and clarity of a declaration of human rights.

The charter in its first part replicates the European Convention.

In its second part it sets out economic and social rights which are either not recognised, or if recognised, not enforceable in many European

countries - namely, rights against discrimination, the right to strike, the right to social security and pensions, and the right to environmental protection.

The citizen must know whether these rights are justiciable or non-justiciable.

And above all, he must know what remedies there are for these rights.

But in the charter he will find none.

Nor in the convention debate so far is there any indication of how he can exercise charter rights in respect of European legislation or institutions, in particular before the Court of Justice.

There is no remedy of a declaration, no right to protective measures, and no provision for compensation.

Rights without remedies are of no value.

Indeed, the declaration of them without remedies triggers a rapid decline of trust in the system of judicial protection.

The conclusion is clear.

A reformed article 230(4) of the treaty, together with application of the convention rights by the enforceability of them, and charter rights must be dealt with under the constitutional treaty.

The citizens of Europe are entitled to protection under the law and access to justice before the European Court.

These are the values which any decent thinking democrat would wish to be in place for the protection of EU citizens between themselves and their institutions.

Lord Brennan QC heads the convention working group of the Council of the Bars and Law Societies of the European Union and is also a former Bar Council chairman