§ 7.58 p.m.
§ The Principal Deputy Chairman of Committees (Baroness White) rose to move, That this House takes note of the report of the European Communities Committee on the proposed accession of the EEC to the Convention for the Protection of Human Rights and Fundamental Freedoms (71st Report, Session 1979–80, H.L. 362).
§ The noble Baroness said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I should perhaps say that after the display of learning and legal experience that we have enjoyed today it is a little intimidating for a lay person who has never even sat on a magistrates' bench to introduce a discussion on the subject of human rights, and in particular on the proposition that the European Communities should directly adhere to the European Convention on Human Rights. Frankly it would never have occurred to me to do so had I not been privileged to preside over a specially appointed sub-committee of your Lordships' Select Committee on the European Communities.
§ The basis of our consideration was a memorandum issued for discussion by the Commission of the European Communities which was first examined by our legal sub-committee, with some assistance from other members. I should like to say how much indebted we are to the noble and learned Lord, Lord Fraser of Tullybelton, who directed that preliminary inquiry on which Annex A of the report that we are discussing is based. But the Select Committee were of the view that such a fundamental matter should perhaps be looked at in a wider context, taking into account social and political considerations as well as legal ones.
§ Further evidence was taken by the specially appointed sub-committee, some on and some off the record. We are extremely grateful to our distinguished witnesses and also wish to record our gratitude to our two admirable specialist advisers, Professor Cornford and Professor Jacobs.
§ The result of this further consideration was to confirm us in the view of our legal sub-committee that, on balance, no strong enough case had been made out to support the proposal for direct Community adherence in addition to the adherence by each member state, which was the basis of the proposition put forward in the EEC Memorandum. I must say frankly that there were some differences of emphasis among our members, and some, I know, acquiesced in this view with reluctance. But the weight of evidence from persons of great experience in European legal matters was undoubtedly against direct accession by the Community.
§ I must admit that I myself underwent a process of conversion. I had initially supposed that if the matter were looked at in broad terms some of the technical difficulties envisaged by our legal sub-committee 1348 could perhaps be overcome, and in a sense, of course, this remains true. Given the political will, no doubt one could remodel the present European judicial institutions operating under the convention and the Community in Strasbourg and Luxembourg respectively. One could amend the Treaty of Rome so that, for example, matters affecting criminal jurisdiction became part of the direct responsibility of the European Communities, which at present they are not, being the responsibility of the member states.
§ But I found that if asked whether I could with conviction affirm that, if all that would be required to bring the two systems properly in line were accomplished, it would result in more certain justice for individual citizens, or in a more efficacious protection of basic human rights and fundamental freedoms, I simply could not do so. As we say on page xvi of our report, we remained unconvinced that, even if desirable, the game would be worth the candle. We also concluded that it was more urgent to try to ensure that the present European Convention on Human Rights was fully sustained, both by removing the derogations to which it remains subject in certain member states of the EEC and by providing more adequate resources for the European Commission of Human Rights and the European Court of Human Rights, both at Strasbourg, so that they might be able to work more expeditiously.
§ We emphasised that in our opinion all member states, present and future, should not only be signatories of the European Convention, as indeed all the present members are and the two remaining candidate states are, but that they should fully accept the Strasbourg jurisdiction, including the right of individuals to petition, which is not granted, for example, in France, or, I believe, in Greece. Exceptions such as those made by the United Kingdom relating to immigrants should cease. The Commission in Brussels might have put forward a proposition to make this full acceptance mandatory on member states, but it did not do so. The proposals actually made is that the Community should come into the act itself, and it was to this proposals that we had to address ourselves.
§ I will leave to my learned colleagues the more sophisticated legal arguments which they are more capable of adducing than I am, but I wish to touch on some further points of elucidation which seem to me important to the lay person. One must recognise in the first place that there are varying definitions of what constitutes basic human rights. Such definitions may differ both in content and in status. The first relevant document in our times was, of course, the United Nations Universal Declaration of Human Rights of 1948. This was a most moving political affirmation by the nations so recently subject to the atrocities of tyranny and war which, as I well recall, made a profound impression at the time by its avowed universality. But it is a declaration, it is not a justiciable instrument.
§ The European Convention of Human Rights of 1950, which is the matter we are discussing tonight, while not fully legally binding, does provide for a Commission of Human Rights, to examine the facts submitted by an aggreived party and to attempt to reach a settlement, and also a Court of Human Rights, to which admissible applications, if not settled through the Commission, may be referred. One must recognise 1349 that the process, as I understand it, is one of authoritative review. It is not strictly a court of appeal from the decisions of national tribunals.
§ In addition, the European Court at Luxembourg, which is the Community's own court, and which is not bound by the European Convention on Human Rights since the Community is not a party to it, in practice takes cognisance of it and has built up a growing body of case law with the provisions of the European Convention well in mind. It has, no doubt, been strengthened in this course by the formal declaration of 1977 by the heads of the Council, the Commission and the Parliament, the three main institutions of the Community, that they attached prime importance to the protection of fundamental rights, as derived from the constitutions of member states and from the European Convention. This was confirmed in 1978 by the Council and later by the then nominated Parliament.
§ One of the questions in our minds was, would the Luxembourg Court be any more effective a defender of fundamental rights than it is at present if the Community did adhere directly to the convention. I, for one, was not convinced. Nor, as recently as 1976, was the Commission at Brussels, and this was at a time when the Luxembourg Court had a shorter, and of course less comprehensive, record behind it than it has today. But since that date the Commission has changed its mind and put forward the proposition we are now considering.
§ We were told that this was, in part at least, due to the concern of lawyers in certain member states, in particular in the Federal Republic of Germany, where the schedule of human rights is so extensive that one may even claim a right to the full development of one's personality—a right which I am sure many of us would have wished to enjoy! If it is accepted that EEC legislation takes precedence over domestic law, as it normally is, then, it was suggested, a serious clash of legal loyalties could ensue, and therefore direct accession by the Community was desirable. But, my Lords, this, it seems to me, would not cure the disability of the clash of loyalties, for this reason: that the European Convention on Human Rights being less extensive than the German codes, the difficulty could still arise even after accession. That argument, therefore, seems to me by no means conclusive.
§ Meanwhile, the more fundamental difficulty is that the areas of activity covered by the Community and those dealt with in the European Convention on Human Rights simply do not coincide. The convention covers the basic individual rights of freedom from arbitrary arrest, right to a fair trial, protection from torture or degrading punishment, freedom from discrimination and the like. Within the Community, however, such matters remain within the jurisdiction of the member states. The Treaty of Rome, on the other hand, is concerned with the establishment of a common market and with the harmonisation of trade. It is true that its provisions have indeed been stretched in various directions not originally contemplated by the first signatories, but its area of competence certainly does not cover the main provisions of the European Convention on Human Rights.
§ It seemed to most of us, therefore, that if the Community as such became a signatory to the conventon 1350 it might indeed add to its stature as a European institution, but in our view it could not ensure any greater safeguard to the citizen in the matter of his basic human rights and fundamental freedoms than could the member state to which he belongs. In the course of the evidence proferred, it became clear that a major element in the motivation of some at least who most strongly pressed for direct Community adherence was the enhancement of what one might call the "persona" of the European Community. This appeared at least as important as any belief that human rights would in practice be more adequately safeguarded by Community direct accession.
§ I must say that since our report was written opinions have been expressed in favour of direct accession by the Economic and Social Committee of the European Community and by the Parliamentary Assembly of the Council of Europe, who were responsible, of course, in the first place for the European Convention. So far as I know, no opinion has been expressed in public by the European Parliament in relation to the current memorandum although, as I mentioned previously, the nominated Parliament considered the matter prior to the direct elections in 1979 and expressed itself at that time in favour of direct accession, with various reservations. Having read the appropriate documents, I must say that I have some impression that the first two bodies mentioned above were perhaps as much concerned with what would appear to be progressive as with a thorough evaluation of what substantive benefits would, in practice, result from direct accession.
The Economic and Social Committee of the Community recognised indeed that direct accession would:
afford only limited protection for individuals in so far as it [the European Convention on Human Rights] is mainly concerned with civil and political liberties and does not embody adequate safeguards for social rights".
The European and Social Committee went on to refer to the proposal usually canvassed as an alternative to direct accession, namely, that the Community should draw up its own separate inventory of human rights, which could then, of course, include those relevant to the economic and social matters which are its main concern.
§ The difficulty here, as we have endeavoured to explain in the report to which we are drawing the attention of your Lordships' House, is that agreement on such art inventory might take years to attain. For a start, for example, how in a free society does one enforce the right to work? There are many other propositions of a similar nature which would have to be taken into account. There was, in fact, a European Social Charter intended to be complementary to the European Convention on Human Rights, which was signed in Turin in 1961 under the aegis of the Council of Europe, but as I recall none of our witnesses even mentioned it. We point out in our report that if such matters are to be embraced, it might be better to amend the convention itself, not to formulate a separate inventory subject to different jurisdiction, which would divide the 21 states of the Council of Europe unnecessarily in our view into the Community on the one hand, and the rest on the other. Surely in matters as basic as human rights and fundamental freedoms Western Europe should endeavour to remain one.1351
§ I have no doubt that subsequent speakers will seek to enlighten us on why a Bill of Rights for the United Kingdom, so pertinaciously supported by the noble Lord, Lord Wade, and now, I see, attracting a great deal of attention in another place, while it is indeed germane to the subject, is not the issue with which we have been trying to deal in the report which is before your Lordships. Other speakers will also, no doubt, touch on the possible changes which direct accession might bring in the relationship between the Council of Europe's Court at Strasbourg and the Community's Court at Luxembourg. We were warned about the jungle of complications which might ensue by some of our witnesses who were highly experienced in the legal matters of the European court.
§ Our conclusion is that with the exception of safeguarding the position of the Communities' own employees, which is a special case but which we believe could be dealt with by other means, full observance of the convention by all member states and further development of the hitherto satisfactory case law at the European Court at Luxembourg seems to your Lordships' Committee to be the best course to pursue. I beg to move.
§ Moved, That this House takes note of the Report of the European Communities Committee on the proposed accession of the EEC to the Convention for the Protection of Human Rights and Fundamental Freedoms.—(Baroness White.)
§ 8.16 p.m.
§ Lord Wade
My Lords, I should like to thank the noble Baroness, Lady White, for introducing this debate and for outlining her report. I am well aware of the amount of time and work which has been devoted to producing this report. I think that it would be fitting to pay some tribute to the valuable work of the EEC Committees in this House. They provide, if I may say so, evidence of the usefulness of a second Chamber and I think that that is true, whatever one's views may be about the composition of the second Chamber.
So far as the report is concerned, I cannot pretend that the subject is simple. But at the outset I think that it would be useful to try to put the subject of human rights into perspective, and by that I mean that one must recognise the importance of human rights and the role that Western European countries can play in this field. Alas! the world is cluttered up with constitutions containing provisions about human rights and the preservation of individual liberty, and many of those written constitutions contain clauses in the nature of a Bill of Rights. But alas! all too often those provisions are broken or ignored. One can find appalling breaches of human rights in many parts of the world. However, what matters is that the principles should be taken seriously and that there should be some adequate provision for implementation.
I personally believe that it is an important step forward if one can find a way of adopting the concept of a group of nations with collective obligations and a provision for implementation and redress of individual grievances. That idea, which is in embryo—it shows what should be developed—is contrary to the conventional idea that each separate sovereign state 1352 will safeguard its own citizens and that is all that is required. If that ever were so, I doubt whether it is so today.
The protection of human rights is increasingly international in its implications, and I suggest that that proposition must provide part of the background to the debate that we are holding today. For this reason I think that there is particular merit in the European Convention on Human Rights. In my view it is an attempt to achieve this collective responsibility. It recognises that upholding human rights is not a matter which is the sole concern of one particular nation. The subject of human rights is clearly international in character. Therefore, the strengthening of the European Convention should be encouraged and assisted in every way possible. I am sure noble Lords will agree that these may be platitudes, but it is a point that I think needs stating.
But what are we to do about it? How can the European Convention be encouraged and strengthened? I would not suggest that the procedure at present under the European Convention is perfect. Apart from other considerations, the delays are serious; and I shall return to this matter in a few moments because it is relevant to this debate. But, as the noble Baroness has pointed out, the main proposal before us is that the European Communities should accede to the convention. I think that I am fair when I say that the report points out that if it is thought to be desirable to adopt the principle, then the problems involved in accession could be overcome. I think that I recall words to that effect.
However—and this is, I think, in line with some of the remarks made by the noble Baroness—undoubtedly there are practical difficulties. For example, we are not dealing with one group of nations; we are dealing with two interlocking groups, to both of which the United Kingdom belongs. Furthermore, as the noble Baroness has said, it is true that one group is primarily concerned with social and economic rights, and the other with so-called classical human rights, although in so far as methods of breaking them are concerned, some of them are extremely modern, and unpleasantly so. Nevertheless, there is that distinction.
What are we to do? One suggestion is that there should be two separate categories of rights. That, again, is a point that was mentioned by the noble Baroness. I think that that would be unwise. A somewhat similar idea, though in a rather different context, was discussed at some length by the House of Lords Select Committee on my Bill of Rights. The question was: should we have a new set of principles; should they be drawn up separately for a new kind of Bill of Rights; or should we rely on the principles in the European Convention? It was decided, I think unanimously, that if there was to be a Bill of Rights at all, we should avoid having two sets of principles side by side on this subject of human rights.
There are two good reasons for that. One is the time that would be taken in drawing up a new category and getting it through Parliament. The other is the possible difficulties of conflict between the two sets of principles and the problems facing courts in having to interpret two different sets of principles on human rights. So I think that the decision of the Select 1353 Committee of this House was right. The circumstances are now not quite the same as regards the European Communities, but I think that the views expressed by the noble Baroness and found in the report are right.
I find myself in agreement with the report on another point. There was discussion on the question whether the accession to the convention could be used as a means of securing a Bill of Rights by the back door. There were some very interesting questions and answers in the evidence (of which the noble Baroness is well aware), beginning with the taking of evidence from Sir Ian Sinclair and others at page 1 and onwards of the taking of evidence. Incidentally, I appreciate the reference to myself made by the noble and learned Lord, Lord Scarman, but time does not permit me to read out the appropriate columns on pages 10 and 11. However, perhaps I could refer to the question as to how the back door process might work. According to my notes—and the noble and learned Lord, Lord Scarman, will tell me whether I have summarised the position accurately—he said:It would infiltrate. It would come in by the back door. It would infiltrate and would soon be out of the kitchen and into the front door".I take his point, but if I were to follow that metaphor, I should be inclined to say that it might infiltrate as far as the kitchen and then get stuck in the cloakroom. However, I shall not pursue that metaphor any further, but I prefer the front door approach.
As has been pointed out, one of the major difficulties arises from the fact that accession will affect only what is defined as "Community acts". I think that the public might find the definition of "Community acts" somewhat confusing. There might even be differences of opinion between the lawyers, but I would not like to suggest that. Clearly, I have to admit that there are legal and constitutional complexities. Yet I believe that most noble Lords would agree that, as the initiative has come from some of our European partners, it would be unwise to spurn this idea altogether or merely to suggest that the proposal should lie on the table. I also think that we should recognise that the strengthening of the convention is in the long-term interests of us all.
I think that I can best sum up my view on this by saying that, however much we may approve of the general idea, we must approach it with sympathetic caution. However, I am anxious to be as positive as I can. What advice ought we to offer the Government under these circumstances? I shall only presume to pick on three short points. First—and this can only be a recommendation because it refers to another country, and powerful though the Government may be, they are not yet able to tell other countries what to do, although they can make recommendations—I hope that the United Kingdom will try to persuade France to agree to the right of individual petition to the Human Rights Commission and the Court of Human Rights. I think that that is a very important point.
Secondly, we must put our own house in order. That in my view, although I know there are differences of opinion, must involve incorporation of the principles of the European Commission into our domestic law. That of course was part of the terms of what I have referred to as my Bill, and it would give those with a 1354 complaint that the convention has been broken the opportunity to go to a British court. I should mention in passing that the latest report I have from another place—as your Lordships know, the Bill has been passed through all its stages in this House—is that about 160 MPs in the Commons have now signed a motion urging that the Bill should be debated on Second Reading as soon as possible. So there is some support, but we must wait to see what happens.
I have two reasons for hoping that the Government will take this as seriously in the Commons as they have done in this House. One is that it would be a step towards strengthening the enforcement of principles of the European Convention, and the second is that it would relieve some of the pressure on the work of the staff and personnel of the Commission and the human rights court. That brings me back to the point about delays. The delays are undoubtedly a handicap. I think they could be relieved if a number of these complaints could be heard in a British court.
I come to my third and last point. There is obviously much more that could be said. We should encourage the developing jurisprudence of the Economic Community in the field of human rights. I do not myself think that a clash between the Community and the convention is inevitable. But time does not permit me to examine that in detail, much as I should like to do. Therefore, I say in conclusion that I believe there are ways ahead without at present embarking on the complex operation of bringing about the accession of the Economic Community to the European Convention. In the meantime, I should like again to thank the noble Baroness, Lady White, for embarking on the valuable task of bringing this subject to the notice of this House.
§ 8.33 p.m.
§ Lord Scarman
My Lords, it is always a pleasure to follow the noble Lord, Lord Wade, when one is discussing human rights. It is also a great pleasure to express appreciation and gratitude to the noble Baroness, Lady White, for introducing this debate. I was a member of the legal sub-committee which considered the legal problems to which this proposal gives rise. I am also a member of the Select Committee whose report we are considering this evening. At the outset I must express my sadness that we were unable to support the recommendation contained in this European Commission memorandum that the EEC,should adhere without undue delay to the European Convention on Human Rights".I was convinced, like the noble Baroness and others, that the institutional and technical difficulties which are set out in the report are such that at present, given the state of political will in some member states, it is not practicable to pursue a policy of accession by the EEC to the Council of Europe or to the convention. But that is for me a particular sadness because, like the noble Lord, Lord Wade, I see human rights as something of such infinite value that international action is necessary in order to persuade nations internally to protect human rights within their borders.
It is for that reason that I think it is worthwhile this evening saying some words of praise for the European Commission—often dismissed somewhat 1355 cynically in public debate in this country as an over-weighted bureaucracy—for its imagination in proposing that the institutions of the Common Market (and that, of course, includes itself) should be subject to the discipline of the European Convention of Human Rights, and subject to the jurisdiction of the European Court of Human Rights. That was a very remarkable initiative indeed, and I think it would be quite wrong for this House not to recognise and applaud that initiative.
Let us look just for a moment at some of the advantages that accession would secure were it institutionally and technically possible. They are very real. First, accession would show a commitment by the European Communities, clear and irreversible, to the cause and protection of human rights. It would do so in the most realistic way possible by embodying the European Convention into the constitution of the European Communities. One could not have a clearer or more irreversible commitment than that. The European Commission wishes that commitment if it be possible, because that is what its memorandum says.
Secondly, if the Communities were to accede to the convention, accession would commit member states, and, perhaps even more important, prospective member states of the Communities, to the protection of human rights. Thirdly, and less often considered but a very real advantage in accession, there would be the effect of accession upon the legislative and administrative organs of the Communities. One of our expert witnesses put it in very effective terms by saying:Accession would have a predisposing effect"—that was his phrase—on the work of the Communities' legislative and administrative organs".The importance of that is that no directive or regulation would be drafted without an eye cocked towards the constitutional obligations protecting human rights. No administrative action would be taken without an eye cocked towards the provisions of the European Convention now part and parcel, by accession, of the constitution of the Communities. Those are very important advantages and it is greatly to the credit of the European Commission that it has seen those advantages, has put them down on paper and has not proposed—the matter has not reached that stage—but has recommended that we should accede if we can.
With the exception of the institutional and technical arguments, which are unfortunately insuperable as matters now stand, the arguments against accession are of minimal importance. They can be analysed as two: first, that it is quite unnecessary; and secondly, that in any event (because the European Convention deals with the classic civil and political liberties and because the Common Market deals with social and economic questions) there is little in the convention of value to the Communities. Let us briefly examine those arguments.
There is not the slightest doubt that as the Common Market develops, so will its administration and laws have a greater impact on the social life of the citizens of Europe. I need mention only a few matters in the Treaty of Rome to show immediately how the potential of the European Convention for the Common Market 1356 is very real: freedom of movement; the freedom of establishment; rights of residents. Think of the problem in Europe of the migrant worker; think of the problems of the environment. Then we have the protection of communications. All those are matters coming within the scope of the activities of the Common Market, some of them mentioned in the treaty, some not, but all of them requiring a greater alertness for the protection of human rights as we develop the legislative and administrative structure required by the treaty in those fields.
The other argument about it being unnecessary is, again, one which has little weight but is of considerable interest. It is rightly said, "We do not need to embody the European Convention into the constitution of the Common Market because we already have the developing jurisprudence of the European Court of Justice, a jurisprudence which recognises, by decision of the judges, the rights and freedoms protected by the European Convention". It is one of the great virtues of the European Court of Justice, a matter to which I willingly pay tribute, that it has been alert to develop and protect human rights in the jurisprudence of the Communities. Indeed, in Nold v. The European Commission in 1974 it said something which I believe deserves to be quoted. The court said in that case:Fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States. It cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the constitutions of those States. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories can supply guidelines which should be followed within the framework of Community law".That is marvellous stuff and I agree with every word of it, but it is no argument against accession. One cannot infer from this jurisprudence that it is unnecessary to incorporate the convention by statute, so to speak, in Common Market law. The reason is that sooner or later the European Court will be faced with something, in a regulation or directive, which is inconsistent with some provision of the European Convention. Can one be sure that, when the court is faced with some written law and has only to put against it general principles culled from constitutions and international treaties in the way described in the Nold case, it will always prefer the general principle of law? One need only look at national case law, and see how difficult it is to protect general principles against the words of the statute, to understand that there really is here a problem, and it is a problem which would be resolved in favour of the convention if one were to have accession.
It is with sadness therefore that I accept that the institutional and technical difficulties are such that we cannot support this European Commission initiative by saying, "Yes, let us be up now and doing it". What, then, is the course we should take? I wholeheartedly agree with the noble Lord, Lord Wade, that as at present circumstanced, we should not spend time doing the impossible, working for an early accession of the Common Market to the European Convention. What we should be doing is strengthening the procedures, institutions and jurisprudence of the European Con- 1357 vention and of the Council of Europe.
I can think of a number of measures where strengthening is necessary. The European Commission for Human Rights, as our report mentions, now has something like 2,400 applications a year and a substantial number of those must be considered in considerable detail. Yet its staff is only 20. Let us strengthen the staff of the Commission for Human Rights. Why should we not consider making it a condition for future membership of the Common Market that the member not only signs and ratifies the European Convention but accepts the compulsory jurisdiction of the European Court of Human Rights and the right of individual petition? We could also with advantage see whether the Convention itself could not now be extended to cover certain economic and social rights.
I think that if we were to say to the present member states of the Common Market, as the noble Lord, Lord Wade, suggested, "Please now accept the compulsory jurisdiction of the court, accept the right of individual petition", we should be making a move in the right direction. But I have no doubt at all that if we strengthen the Council of Europe, if we strengthen the convention and the institutions, and if we keep going the interest in the Common Market in human rights, the time will come when the technical and institutional difficulties will melt away. Unfortunately that time is not yet here, but let us now work steadily where we can, so that when the time does arise the opportunity is taken.
§ 8.51 p.m.
§ Lord Plant
My Lords, I welcome most warmly the interest shown by this House in the question of the accession of the European Communities to the European Convention on Human Rights. In addition, I should like to express my appreciation of the work which the Select Committee on the European Communities has put into this very complex question, and in particular the work down by our chairman, my noble friend Lady White. During my chairmanship of the Northern Ireland Human Rights Commission I had special regard to the European Convention of Human Rights. Unlike two previous speakers, I was not converted by our discussion of legal niceties to the view that the EEC should not accede. So naturally I regret that the committee, at least for the present, is not in favour of the Community acceding to the convention.
I want briefly to put on record the reasons for the Commission taking at the present time an initiative in the field of the protection of human rights. First, the judgment of the German Federal constitutional court, and to some extent the judgment of the Italian constitutional court, in May 1974, posed a threat to the Community's legal order. The German court maintained that it had a right to review Community legislation in the light of the fundamental rights laid down in the German constitution for as long as there were no Community catalogue of fundamental rights corresponding to those contained in the German constitution.
Secondly, the Commission's memorandum is a byproduct of the reflections on enlargement. There is an overriding necessity to maintain and guarantee the Community's identity and in particular its democratic nature and liberal regime in the field of human rights. The need exists to assist in every way possible fragile 1358 democracies within the Community, particularly in the new member states.
Thirdly, there is an increasing pressure from public opinion, in particular as manifested in the European Parliament, in favour of a written catalogue of human rights binding on the Community.
Fourthly, faced with those various pressures, the political institutions of the Community cannot remain passive. It is not sufficient for them to sit back and rely on the possibility of the European Court of Justice having the opportunity rapidly to develop relevant case law to cover a wide spectrum of human rights, through much tribute has indeed rightly been paid to the court's case law in the field of human rights.
Why did the Commission choose to recommend the accession of the Community to the convention? First of all, the option of drawing up now a special catalogue of human rights was, I believe rightly, eliminated. It is essential to maintain unity in the field of human rights in the whole of Western Europe. The convention is a remarkable achievement of the Council of Europe, and it must not be undermined by the Community developing its own catalogue before adhering to the convention. From a more practical point of view, it is clear that a new catalogue would take decades to draft. I welcome the fact that the committee also shares that view.
I should like therefore briefly to mention the principal arguments in favour of Community accession to the convention. The convention provides a catalogue to which all the member states have already subscribed. Community accession would reinforce the impact of the convention—a unique instrument guaranteeing the respect of human rights. Accession would put the Community in a position to defend its actions challenged before the organs of the convention. Accession would restore the original scope of the convention as regards Community citizens. Henceforth all acts, those of member states and those of the Community, would be subject to Strasbourg's control.
Accession would provide our citizens with a binding written catalogue of human rights, known in advance, which must be respected by all the Community institutions. It would therefore reduce the risk of a challenge to the Community order by the German Federal constitutional court.
If representative democracy or human rights one day come under threat within any of our member states, Community accession could in times of difficulty help to maintain them. It is not impossible that if problems of that kind were to arise within a member state, the other member states might prefer to deal with the problems within a Community framework. Finally, and to my mind of great importance, accession would mean that the activities of the Community would be subject to a specialised international control in the field of human rights.
As regards the principal objections which have been raised against accession to the convention, I should like to say that I believe the Commission has demonstrated that the catalogue is appropriate for, and adapted to, the Community; that the rights protected by the convention could be affected by Community activities; and that the convention does contain certain rights that the Community might violate. Furthermore, the Commission has sought clearly to 1359 demonstrate that Community accession to the Convention will be relevant only to Community acts as such. It will not in any way change the status of the convention within our member states as regards national acts. Finally, as regards the more technical problems involved, as the committee concludes, they are serious but not decisive—a point of view which the Commission has always maintained.
In conclusion, I would say that I continue to be convinced that at present the most realistic Community initiative in the field of human rights is accession to the convention. As long as the Community remains outside the convention it cannot have any direct influence on the reforms of the institutions of the convention, et cetera. Furthermore, it is simply not within the power of the Commission to oblige the individual member states to accept the individual right of petition. Finally, I would wish to emphasise what my noble friend Lady White has already told the House: that the Parliamentary Assembly of the Council of Europe has voted in favour of Community accession to the convention. I hope that the British Government will do the same.
§ 8.58 p.m.
§ Lord Fraser of Tullybelton
My Lords, I wish to add only a footnote to what has been said by the noble Baroness, Lady White, and my noble and learned friend Lord Scarman, in commending the report to your Lordships' attention. I was the chairman of the legal sub-committee which gave first consideration to the report, and I was very glad when the subcommittee was replaced in the later stages by a more comprehensive sub-committee appointed for the purpose and not limited to lawyers, because this is not by any means only a lawyers' problem.
I must be frank and say that I approach the consideration of this subject in a frame of mind that is rather different from that of both the noble Baroness and my noble and learned friend. From the beginning I have felt that it would probably be inappropriate for the Community to accede to the convention, because despite what has been said, a large part of the convention has very little to do with the subject matter of the Community. Some of the early and important rights preserved in the convention are rights to liberty, rights to fair trial on criminal matters—things of that sort—which are not within the scope of the Community, are nothing to do with the Community and are quite inappropriate subjects for the Community to have anything to do with. It is quite true that there are other articles of the convention which are appropriate to the Community, and there is a considerable overlap. I quite agree with my noble and learned friend Lord Scarman that as time goes on the Community's scope may expand and the overlap will increase, but at the moment they are not by any stretch of the imagination congruent one to the other.
In these circumstances, it is right, I think, that the report concludes that the benefits of adherence at the moment would be to some extent symbolic rather than real. I think that is so; and, in fact, there was a very impressive expression of opinion by one of our witnesses, Professor James Fawcett, who is himself President of the European Commission of Human Rights, who 1360 said that in the present state of acceptance of the European Court adherence will be largely window-dressing. Your Lordships will find that on page 44 of the report, I think. Of course, window-dressing and symbolic matters may be very important—I do not say they are of no importance—but one has to consider what is the most effective way of really trying to improve the position of human rights in Europe at the moment, and that is clearly not the way to do it.
It is better, as I think the noble Baroness said, that we should encourage the acceptance of the right of individual petition to the European Commission, which is not universally accepted by all the members of the Community at the moment. There are three member states which do not recognise that right at the moment. There are also ways of improving the effectiveness of the European Court, with its delays, to which reference has also been made. These are practical lines upon which progress could be made much more effectively than by going in for a symbolic piece of window-dressing (if I may use the phrase again) such as is suggested.
The practical difficulties of adherence at the moment are really very considerable, because adherence would mean amending both the European Convention and the Treaty of Rome. Amending the European Convention means getting the unanimous approval of the 21 member states, which is plainly not an easy thing to do because the convention would certainly have to be adapted to suit the Community, which is not a state and would not fit easily into the machinery of the convention. As for amending the Treaty of Rome, we all know that that would be an extremely difficult thing to do, perhaps impossible at the moment. Those are the real reasons against proceeding at the moment which weighed with me, and I was particularly impressed, I must frankly admit, by the evidence given by two of our witnesses.
One of them was Professor Fawcett, to whom I have already referred. He, as President of the European Commission of Human Rights, would be the person, one would have thought, who would have encouraged adhesion at the moment. He came out quite bluntly and said that he thought it would be a mistake to adhere at the moment. That is in his written evidence; I think it is on page 38 of the report. He said:I wholly agree with its conclusion"—this is, of the legal sub-committee—that accession of the Community to the convention is not advisable",and he underlined the word "not". Coming from that source, that is a very impressive piece of evidence, I suggest.
The other evidence which weighed with me was the evidence of the last witness printed in the report, Professor Mitchell, who was the man in favour of human rights in general, very much interested in the Community. He also concluded that it would be a mistake to try to adhere at the moment. Those were witnesses, both of whom one would have expected to come down on the other side. When they came down on the side that they did, it weighed very heavily with me. Just consider what would happen if we embarked upon a process of trying to amend the Treaty of Rome in order to adhere to the European Convention, and 1361 failed—and I should have thought from observing what goes on at the moment within the Community, that that is by no means an impossibility. It might have very unfortunate results, and make the Community even less harmonious than I am afraid it sometimes is at the moment.
My Lords, even supposing that those hurdles were overcome, there is one real disadvantage which I think would follow from adherence at the moment, and that is that what Professor Fawcett called "the heirarchy of appeals" from one court to another will be to some extent increased. Already we have an almost alarming heirarchy of appeals, starting from lower courts in this country, and then perhaps with a preliminary reference to the European Court and back again here, with a possible petition to the European Commission after all that. The possibility of petitioning the European Commission would be increased in respect of Community acts in a way which is not available at the moment. So the possibilities of long litigation spun out over years would be to some extent increased, and that is to my mind a positive disadvantage of adherence.
I do not wish to sound entirely hostile to the idea; I am not. I think there is a great deal to be said for encouraging a close liaison between the Community and the convention, and that is in fact being done in what seems to me to be a sensible and practical way by the European Court, which, as my noble and learned friend said, has accepted the principles of the convention and said it will apply them. That seems to me to be a satisfactory, slow and pragmatic way of proceedings, much better than getting involved in arguments about amending the Treaty and the convention, which might break down. On that rather more (if I may perhaps say so) sober note, I would also commend the report to the attention of the House.
§ 9.8 p.m.
§ Lord Avebury
My Lords, I should like to echo the tributes paid by others who spoke of the skilled chairmanship of the noble Baroness, Lady White, and to thank her for giving us the opportunity of debating her report this evening. I started off as she did hoping that I would come to the conclusion that this proposal should be recommended to your Lordships, and I was disappointed, after listening to all the arguments over a period of several months, that I had come down on the same side as she had and conclude with reluctance that the proposed accession of the EEC to the European Convention on Human Rights would not have the beneficial effects claimed for it and which the noble Lord, Lord Plant, still thinks it might have. If one considered that the proposal was going to assist in the maintenance of democracy in member states, if one thought that it was going to reinforce the impact of the convention or to provide the citizens of all the member states with a catalogue of human rights which had to be accepted, then there would have been no doubt in our mind. We should have welcomed the proposal with open arms. But, on the other hand, if we find, as the noble and learned Lord, Lord Fraser of Tullybelton has said, that the effects of accession would be largely symbolic or even, some would say, cosmetic, and designed primarily to improve the image of the Community but having very little practical 1362 benefit for individuals in the member states, then we must ask ourselves whether this is the best way of extending human rights in the Community.
What I believe it seems to boil down to is the remote, almost unthinkable, possibility that an EEC directly-applicable instrument might contravene some provision of the European Convention and a citizen who is wronged by the effects of that instrument would have no adequate remedy. If one is talking about an instrument which has to be ratified by the member states, then the first line of defence is that Parliament would refuse to enact that instrument; and if the vigilance of your Lordships was eluded by the instrument, the citizen would have a right of action against the Government at Strasbourg and the court would have the power to get that instrument repealed. So we are not talking about instruments that have to be enacted by member states but only about those instruments which are directly applicable and the institutions of the European Community, the Council and the Commission have power to legislate directly only on certain limited matters. In doing so, they cannot require member states to do anything which would infringe any of the provisions of the convention because of the effect of Article 234 of the Treaty.
If they did try to do so, then reference could be made to the European Court at Luxembourg; and that court has declared—and the noble and learned Lord, Lord Scarman, quoted its Declaration of 1974—that it would treat the convention and the decisions made under it as guidelines which it would follow in its task of interpretation. Although it is not obliged to do so, as the noble and learned Lord, Lord Scarman, pointed out, it is possible that in future the Luxembourg Court might decide that a written provision should take precedence over general law. I must say that it is hard to imagine why it should do so.
The only important example given of alleged violation of the convention rights by the Commission to your Lordships' committee was the case of Alvis in 1963. Mr. Alvis was on the staff of the Commission and was dismissed because he was an alcoholic, and, although his dismissal was said to have been amply justified, he was not given a proper hearing, which was a violation of Article 6 of the Convention which says that everybody is entitled to a fair hearing in determining his civil rights. The solution to the problem of Mr. Alvis is the one mentioned by the noble Baroness, Lady White: that the commission should include an appropriate reference to the convention in the terms and conditions of employment of its employees. Then, apart from the Commission's role as an employer, it is highly improbable that any of its other acts would come into conflict with the convention.
The convention deals mainly with what have been termed the classical civil and political rights: the right to life; to freedom from arbitrary arrest and imprisonment; the right of a fair trial, of freedom of expression, and so on. Those cannot be affected by the acts of an entity which is not a state and has few of the attributes of a state, such as the power to detain in the exercise of criminal jurisdiction. It takes great imagination and ingenuity to construct theoretical examples of cases where the Commission would be able to do something which did contravene the convention.
1363 Apart from the one case of Alvis, the report does not mention any other. There is the possibility which the noble and learned Lord, Lord Scarman, mentioned that in future, as the Common Market develops, it will have a greater impact in certain areas that he mentioned, such as freedom of movement, right of residence and the freedom of establishment. Only the other day your Lordships were discussing a report of another sub-committee on a proposal to extend the rights of residence. That is an interesting example. Supposing the recommendation that the right of residence should be extended to non-workers were accepted and we were to allow those people to come here and to be given this right under the proposal—students, the retired, and so on then it would have to be done through an amendment of the immigration rules, not the Act. It could be done by the Secretary of State laying amendments to the immigration rules which would then require the approval of both Houses of Parliament.
Those rules would themselves be subject to the jurisdiction of Strasbourg and, as we know, there are cases that have been brought before the European Court in the past and there will no doubt be cases in the future arising out of the immigration rules. The noble and learned Lord, Lord Scarman, will recall that the last time we discussed changes in the immigration rules was when certain women either not born in this country themselves or whose parents were not born here were deprived of the right to have their spouses take up residence with them in the United Kingdom. That proposal is likely to result in a number of cases being brought before the European Commission and, in the end, to the Court.
So if the further proposals are brought forward by the Community for extending rights of residence, in a similar way they would have to be enacted by statutory instruments in both Houses of Parliament and the same considerations would arise as I have just mentioned. The objections to accession, which have been referred to by a number of noble Lords already, are really numerous and formidable. I agree with the noble Lord, Lord Fraser of Tullybelton, that particularly the evidence that was given by Professor Fawcett—and I also found that of Mr. Anthony Lester, whose experience is probably unrivalled in the European Court—clinched the matter so far as I was concerned.
I respectfully agree with Mr. Lester when he suggests that priority should be given to improving the existing machinery of the convention. Whatever anybody may say, I think that it is inevitable that if the proposals for accession were to be pursued, they would have the effect of distracting attention from the other issues of far greater importance. These have already been mentioned.
To summarise them, they are: first of all to reduce the backlog of cases by increasing the resources available to the Commission. I agree that it is absolutely scandalous that cases should take as much as eight years from the initial complaint to the final determination of the court. I must declare an interest, as both the litigant in person against Her Majesty's Government, and as a representative of someone who has a complaint. I am acting on his behalf. I consider that justice delayed is justice denied. The 1364 many years which elapse before a person can get satisfaction in the European Court is tantamount to a serious denial of justice. Therefore, I agree with those noble Lords who have suggested that one of the first priorities should be to increase the resources available to the Commission.
I warmly welcome any pressure that can be brought to bear on France—the odd man out—to grant individual rights to petition. As the noble Baroness, Lady White, mentioned, if Greece also follows that bad example one hopes to persuade them also to adhere to the convention. Also, as has been mentioned, it should be made a condition that future states acceding should grant rights of individual petition and to see that there are effective remedies before national tribunals for claims of violations, which in the opinion of this House could be realised by incorporating the convention into our domestic laws. My noble friend Lord Wade has so persistently and effectively advocated this. I was very glad to hear him say that this is now gaining a tremendous amount of support in another place.
That is a proposal which has an enormous effect for the better on the lives of individuals in this country and will certainly enable many of the cases which go to Strasbourg now, and which give rise to these inordinate delays which I have mentioned, to be dealt with in the English courts. Finally, to widen the scope of the convention so that it approximates more closely to the United Nations covenant on civil and political rights.
I can only endorse the main conclusions reached by the committee when it said:But if the prime consideration is the protection of human rights within the Community, rather than the role of the Community in the protection of human rights, then the Committee feel bound to endorse the view put to them that reform of the procedures of the Convention itself, increased resources for its institutions, especially the Human Rights Commission, and full acceptance of its jurisdiction by all the contracting parties should enjoy a higher priority than accession to the Convention by the Community.".
§ 9.19 p.m.
§ Lord Goronwy-Roberts
My Lords, my noble friend Lady White deserves our gratitude for a speech which combined her warm sympathy for human rights and the quite admirable clarity with which she dealt with the complex issues which are the subject of this very important but rather difficult report. I think her speech effectively expressed the views of most of us, at least at this stage in the continuing public discussion, which I believe the Government, like the Opposition, quite rightly expect to go on for quite a time before the issue is finally decided. I would certainly join with my noble friend in thanking the sub-committee for the care with which they considered these matters, assembling valuable testimony and stating a number of balanced conclusions.
One main question—probably the main question—is this. How can human rights be best protected within the Community? Is it by immediate accession of the Community to the European Convention, as the European Commission and the Council of Europe, with a certain parental pride, as my noble friend suggested, and others propose? We have heard a very powerful argument in favour of that course tonight from the noble and learned Lord, Lord 1365 Scarman, who, however, deferred to the circumstantial inhibitions which the report so clearly deploys. There are advantages and difficulties in following that course—that is the accession of the Community as an entity to the convention. One advantage would be that certain gaps in the protection of human rights by the Community could then be made good. But the report describes these deficiencies as "minor" and the committee heard very strong evidence from experts that the considerable political resources which might be necessary to achieve quite limited benefits would be much better devoted to more pressing needs in the field of human rights.
Still, for those who regret, as the noble and learned Lord, Lord Scarman, said, our inability at the moment to press forward in support of accession, the report specifically does not rule out for the future the accession of the Community to the convention. In the meantime, as I understand it, the report observes—and I quote from paragraph 33—thatmuch would be gained if all present and future Member States could be persuaded to accept fully the Strasburg jurisdiction—that is the individual right of petition to the European Commission on Human Rights and the compulsory jurisdiction of the Court—and if such acceptance should in future became a condition of membership of the Community".Your Lordships will have noted the use of the caveat, "could be persuaded to accept". Indeed, it would certainly be necessary to obtain the agreement of each member state to any such arrangement. Some no doubt would find it difficult to agree—some find it difficult to agree now, especially about the right of individual petition—but there is absolutely no doubt, as the report says so strongly, that the member states should all move in the direction of a high common standard of human rights, particularly in view of the enlargement of the Community, and indeed in view of the possible further enlargement of the Community—who knows?
The report comes down firmly against any attempt to frame a separate code of rights for the Community. That would indeed tend to a proliferation of codes, and in the first part of the report there is a very interesting section on proliferation. In this field, two is more than enough: two begins to suggest dichotomy. In any case, the Treaty of Rome, on which the Community was founded, offers a questionable basis for the further provisions that would be necessary to create a separate catalogue of human rights.
My noble friend quite rightly suggested that it is possible that Article 235 is sufficiently elastic, even for a provision of this magnitude. In this connection, it is worth quoting paragraph 33(ii) of the report, which very succinctly sums up the right conclusion in this matter. It reads:In our view it is essential that the convention should remain the common code for all of Western Europe, and if changes and additions are to be made they should be made within the convention.That is a practical proposition, partly because the task of amending or expanding the existing convention would be considerably easier than the task of negotiating a quite new catalogue of human rights for Europe—a separate Community code; and, also, partly because the convention lends itself more easily, and this is perhaps a personal point, to exception and reservation.
I am prepared to defend the principle of exception 1366 and reservation, if it needs defending, because exception or reservation is in practically every case, in my limited experience, forced upon participants and signatories. The right of reservation must continue, at least in the short or middle term, as a practical necessity. There is hardly a country in Europe which has not affixed its signature to some international agreement or other —indeed, to the convention—that has not itself reserved on some particular point.
My concluding remark is this. While there is clearly great advantage in a European Convention on Human Rights, especially as the Community itself expands, it must always be seen as a complement to international agreements and not as a substitute for them. My noble friend rightly reminded us that the UN Charter gave birth in 1948 to a declaration which has not been developed into anything of a justiciable character. Nevertheless, there are a number of agreements, plus declarations of that kind, which have this status—I almost said authority, but that would not be true in every case—of international acceptance, so far as it goes. It would be well for good Europeans to take care that in developing the European code of human rights, whichever form it takes and in whatever way the Community and its institutions play a role in applying such a code, it will always be seen as not an end in itself.
If I may say so, without presumption, I think that my noble friend Lord Wade came very close to it when he said: Let us have a substantial step forward to a common high standard for Europe. I would join him by adding: And let that substantial step forward, whatever it is, not be the final step. It is possible for Western Europe—we talk of Europe, but this is Western Europe—to be a kind of legal soldering iron, as it is possible for it, in the economic sense, to be successful within certain territorial bonds; when, in fact, the traditional mission of Europe and the reason for strengthening it through integration, economically and politically—above all, politically—is to go out across the five seas and carry the highest standards of civilisation to the far ends of the earth.
Whatever we can do to strengthen the protection of human rights in Europe is of course a good thing in itself. This is the matrix of reform and change, and has been for centuries. But we cannot stop there. Human rights apply in every part of the world, or they should. Europe has a duty to set its own house in order, in order that it can continue its age-old mission of civilisation throughout the world. The role of Europe is to liberalise itself by its own efforts and the world by its example.
§ 9.31 p.m.
§ Lord Trefgarne
My Lords, may I start this evening, as I started yesterday evening in my Answer to the Unstarred Question of the noble Lord, Lord Hatch of Lusby, with an apology for my voice. If I finally fade away, my noble friend Lord Long will stand up and read out whatever happens to be left of my speech.
This has been a most useful and instructive debate and your Lordships are, as usual, indebted to the Select Committee on the European Communities, under the chairmanship of the noble Baroness, Lady White, and to its sub-committees, especially that chaired by the noble Lord, Lord Fraser of Tullybelton, 1367 for a clear and comprehensive study of a very complex subject.
I should perhaps make clear now that Her Majesty's Government have not yet taken a definitive attitude on whether or not the Community should accede to the European Convention on Human Rights. There ought first to be a wider public debate throughout the Community on the proposals and we would like to hear more of the views of other member states both of the Community and of the Council of Europe. In their report, the Select Committee say they have sought to explain the arguments for and against accession in untechnical language. I suggest that they have succeeded admirably and their report will no doubt be used by others as a guide for their own discussions.
The Government, like the Select Committee, see a number of serious difficulties in the proposal. We believe that it would require amendment to the treaties. The use of Article 235 as a legal basis for the Community's adherence would not be justified because, although every member state is firmly committed to the protection of human rights, it cannot be said that this is an objective of the Community as laid down in the treaties. It also seems to us that a number of legal and institutional difficulties have been underestimated in the Commission's memorandum (but have been given a full airing in the report), and some of these would require complex arrangements to be agreed within the Community and with the other member states of the Council of Europe.
We are particularly concerned that accession might undermine the autonomy of both the European Court of Justice in Luxembourg and the Court of Human Rights in Strasbourg, and result in confusion and lengthy litigation. Each of these courts is at present the supreme arbiter in its respective field. References from one court to the other would lead to further substantial delays in litigation, which may have been delayed already by reference from a national court. It is no exaggeration to conclude that years, not simply months, could elapse before a final judgment could be given. The noble Lord, Lord Avebury, referred to this during his speech and I have a great deal of sympathy with the problems which he described.
Another difficulty is that there is no provision under the Human Rights Convention whereby a national court may refer directly to the Human Rights Court a question of interpretation or application of the convention, in the way that references to the Luxembourg Court are made under Article 177 of the Treaty; this could lead to the Luxembourg Court being asked to interpret the convention, resulting in two divergent streams of jurisprudence. Some difficulties could also arise because the pattern of reservations, derogations and ratifications of both the Human Rights Convention and its several protocols is not uniform among the member states of the Community. France has not, for example, as has already been mentioned, recognised the competence of the Commission of Human Rights to receive petitions from individuals, and the Netherlands, Greece, Italy and the United Kingdom have not become parties to Protocol No. 4 which is concerned, inter alia, with the right to liberty of movement within the territory of a state and the right to enter and 1368 leave the country of one's nationality.
We do of course have a fundamental national interest in the protection of human rights, and our dedication to the cause is not in question here. Nor is that of the European Community, whose concern for the protection of human rights has been made clear at the highest level by a joint declaration in 1977 from the Parliament, Council of Ministers and Commission, and by the Heads of Government of the Community meeting at the European Council in 1978. The Luxembourg Court has also shown that it takes practical account of human rights principles in its judgments.
We accept that a case could be made for a more formal and legally binding involvement of these principles in Community law and it has been suggested that, given the political will, a way could be found. But I wonder whether this is in practice the best way of ensuring adequate human rights protection within the Community; the Select Committee's report reinforces these misgivings, and suggests that other means such as supporting the development of the jurisprudence of the Luxembourg Court in relation to human rights, could be more effective.
From within the Community only France has so far expressed publicly opposition to the proposal. I have heard of no reaction from non-Community members of the Council of Europe, but they might well resist amendment, for example, to Articles 20 and 38 of the convention which prescribe that no two members of the Human Rights Commission or court may be nationals of the same country; and these provisions would probably need to be amended if the Community's candidates were to be appointed as members of the Commission and court. And is the European Convention really relevant to the activities of the Community? Large areas of the convention's provisions lie totally outside the Community's activities. The noble and learned Lord, Lord Fraser of Tullybelton, mentioned that point in his speech.
I have spoken so far mainly on the difficulties and dangers for the Community in the proposal under discussion, but are there not also difficulties and dangers for the convention and its institutions? I have already mentioned the possible undermining of the autonomy of both the courts. There is also the point that the European Commission of Human Rights and its court already have more than enough to do, and extra cases concerning the European Community would exacerbate the problem. Indeed, Professor Fawcett says in his evidence—and I agree that his evidence was indeed impressive—that the convention is badly in need of restructuring, and as President of the Commission of Human Rights, he is in as good a position as anyone to know. Mr. Anthony Lester also pointed to the dangers for the convention in his evidence, saying that the protracted accession negotiations would distract attention from the real improvements which need to be made in protecting human rights in Europe. I understand that Mr. Lester is an experienced practitioner at the Human Rights Bar, if there is such a thing.
It has been suggested that Community accession should be a first step towards the elaboration of the Community's own catalogue of fundamental rights. But even if the political will to negotiate the Community's accession existed on the part of each of the 1369 21 members of the Council of Europe (and this includes, of course, all the present members of the Community), the negotiation of amending protocols and subsequent ratification by each state would be a very lengthy process. The Community today has plenty of pressing problems to solve, on matters which are more directly relevant to the aims of the treaties than this proposal, whose benefits, if any, will be largely indirect and symbolic. And if we were to launch ourselves into this complex process which would demand a great deal in terms of manpower and money, could we be sure that our time and effort were in fact well spent? That the benefits to citizens of the Community would be commensurate with the expenditure of money and diversion of effort involved? The Government have not yet answered these questions, but I am bound to say, in the light of this report, that the case needs to be proved before we decide to turn to this, when the Community has so many other important tasks before it.
The European Convention and other international covenants already overlap in the field of human rights and discrepancies between them may cause confusion. Yet another catalogue would compound this confusion, and it would surely be better to concentrate our efforts on improving existing instruments and urging wider participation and better enforcement of them.
I make no apology for the fact that many of my arguments are already set out in the report of the Select Committee—that report is so comprehensive, that I could hardly have done otherwise, but it is significant that the committee reached much the same conclusion as that to which our own examination seems to be leading us: that the proposal is fraught with difficulties and dangers that may easily outweigh the benefits. The Government must, therefore, agree with the Select Committee when they ask: "Is the game worth the candle?".
I am grateful to your Lordships for your contributions to this debate tonight, and am sure that our partners in the European Community will examine closely our words, as well as the report itself, in considering their attitudes to the Commission's proposal. It would, I think, be unrealistic to expect any early progress on this problem; the European Parliament has not yet debated the proposals, and it will then need to be examined in great detail by a group of experts from all the member states. Within the Council of Europe framework, the Assembly debated the proposals last month and voted in favour, although I wonder whether they were then fully aware of all the difficulties.
As I have stressed, there is no doubt whatsoever about this Government's commitment to the protection of human rights. I hope, therefore, that your Lordships will not consider that the Government's attitude to the question of Community accession to the convention is unduly negative, even at this preliminary stage, but the obstacles are daunting, even to the most hardened human rights optimist.
§ Baroness White
My Lords, I would like most sincerely to thank every noble Lord who has taken part in this debate and also to express my gratitude for the very kind remarks that have been made both about the work of the Committee and the work of those who 1370 took part in it. I would hope very much nevertheless that we shall have made plain—with, I think, the principal exception of Lord Plant, who seems willing to overlook many of the practical difficulties which some of the rest of us find so daunting—to all concerned who read our debate, as I hope some may, that we are genuinely concerned about the problem of the maintenance of human rights.
I would particularly, if I may do so, address the Minister. We are very grateful to him for coming tonight and hope he will have a restful, recuperative weekend; we do appreciate his coming. I hope very much that he will take seriously the point several of us have made—that there is a very serious lack of resources for the existing institutions which are responsible for implementing the present convention. This has nothing directly to do with whether or not the Commission accedes, but we had very forceful evidence indeed that there is a lack of adequate resources. The noble Lord, Lord Avebury, in particular referred to the really quite intolerable delays. I would hope very much that this particular message will get home, that the Government, while accepting the general tenor of the report, which we appreciate, will nevertheless take seriously this question of resources. We may or may not be able either to improve our own position with the fourth Protocol or to influence our fellow members, but we should really endeavour to take seriously this question of the proper function and the reasonable expedition of the institutions in Strasbourg. That would be the best reward for the work of this Select Committee and all those who helped us and the witnesses who appeared before us. I would like to thank everyone very much indeed for taking part in the debate.
§ On Question, Motion agreed to.