Drafting work on a new EU Charter of Fundamental Rights was completed in Brussels on September 26th. Following a vote today it will go to the heads of government at Biarritz in a fortnight where its controversial legal status will be determined.
The idea of a charter had its origins in two objectives: to reduce the gulf between citizens and the Union by projecting it as more than an economically-driven entity; and, more ambitiously, to lay the basis for a European constitution.
EU leaders gave the task to a 62-member "convention" - 15 representatives of governments, one of the Commission, 16 MEPs and 30 members of national parliaments. Ireland is represented by the former Minister, Mr Michael O'Kennedy, and the Dail by Mr Des O'Malley and Mr Bernard Durkan. Differing levels of ambition, however, opened up profound differences over the fundamental legal status of a final text.
Most governments, Ireland's included, want the text to be merely a political declaration enumerating existing rights. To go beyond that would be to get involved in the complex business of amending the treaty.
Potentially, too, it could lay the basis for a clash of jurisdictions between EU courts and the Council of Europe's Court of Human Rights (ECHR).
Ireland and others on Tuesday last succeeded in diluting ambiguous references to the supremacy of the ECHR's jurisprudence after Mr O'Kennedy had warned the praesidium that unless changes were made Ireland would oppose the final draft.
But for most MEPs the charter is pointless unless it leads to the establishment of new rights. The row is unresolved, but the convention yesterday concluded work on a text (fundamental.rights@consilium.eu.int) that could technically be incorporated.
While most of the charter rights mirror those in the European Convention on Human Rights or the European Social Charter, the text also elaborates new ones such as the right to environmental sustainability. These include rights relating to new technology such as prohibitions on eugenic practices or cloning, protection for patients' informed consent, and data privacy. It also protects family life, children's rights, and access to documents.
But Ireland also shares the view, expressed by the British representative Lord Goldsmith, that the charter should treat differently traditional fundamental rights, such as that to life, and what he deems to be social "principles" such as the right to access to welfare or housing. Ireland has fought to ensure that such principles should not be regarded as justiciable in the courts.