Human Rights: ECC Report

HL Deb 26 November 1992 vol 540 cc1087-118

5.33 p.m.

Baroness Elles rose to move, That this House takes note of the report of the European Communities Committee on Human Rights Re-examined (3rd Report, HL Paper 10).

The noble Baroness said: My Lords, just two years ago the European Commission issued a communication in which it sought a mandate from the Council of Ministers to negotiate the Community's adherence to the European Convention on Human Rights. The report before your Lordships today contains the results of the deliberations of the European Communities Select Committee Sub-Committee E with regard to that communication.

Our discussions centred on some complex legal issues and we are particularly fortunate this evening that we shall have the opportunity of benefiting from the very great experience and knowledge of the noble and learned Lord, Lord Slynn of Hadley, in his maiden speech. He is the first member of the Judicial Committee of your Lordships' House who has also served both as advocate general and judge at the European Court of Justice in Luxembourg. We very much look forward to hearing from him later.

Just 12 years ago the committee considered the same subject, arising from a Commission memorandum. The committee came to the conclusion that it did not favour Community accession to the European convention, and we have come to the same conclusion. It must be said that, as in 1980, there has been some difference in emphasis among some of our members and, indeed, as in 1980, there have been one or two cases of what one might term "reluctant acquiescence" to our conclusions. At this juncture we wish to express our thanks to all those who gave evidence, both written and oral, and to the legal adviser, assistant and clerk who devoted so much time and effort to the preparation of the report.

Since 1980 many measures have been taken to improve the protection of the human rights of individuals who live within the member states of the European Community. Not only are all member states signatories to the convention, but they now all recognise the right of individual petition and the jurisdiction of the European Court of Human Rights in Strasbourg, which I shall refer to as the "Strasbourg Court". More resources have been allocated to the Strasbourg institutions, the Commission and the Court to assist them in reducing some of the delays which are inherent in the system at the moment.

It should be noted that all states applying for membership to the Community are now under an obligation to ratify the convention. Cases affecting the rights of European Community institutions' staff were at the time (1980) subject to very serious delay. The establishment of the Court of First Instance in Luxembourg has dramatically reduced waiting time for these cases which often involve the redress of grievances concerning violations of rights.

The growth in the number of petitions to the European Parliament has led to some cases coming before the Luxembourg Court, and the proposal in the Maastricht Treaty (assuming that that treaty comes into force) for the appointment of an Ombudsman or Parliamentary Commissioner to receive petitions will be one more step in ensuring greater protection of human rights. One further strengthening of protection is the new treaty provision which will enable the European Parliament to set up an investigative committee in cases of maladministration by Community institutions. On these last two matters, whether or not the treaty comes into force, the provisions could still be introduced by means of inter-institutional agreements between the institutions of the Community so as not to lose the possibility of those very valuable proposals.

The Commission bases its claim for Community adherence to the convention on two main grounds. The first is political. Adherence would reinforce the high profile that human rights protection plays in the Community's policies and activities both internally and in relation to third countries. It would also, apparently, enhance the standing of the Community itself.

The committee found no evidence to support the view that there was any doubt whatever as to the Community's total commitment to the protection of human rights. The inter-institutional declaration in 1977, proclaiming determined attachment to the respect for human rights, was just one example of the Community's position. I should like to take this opportunity to pay tribute to the late Lord Broxbourne who was a member of Sub-Committee E and who played such a vital role in getting the declaration onto the Floor of the European Parliament and in carrying it forward to completion.

The Commission also claims that there is a gap in the Community's legal system—that, unlike the member states, the Community as such is not subject to the control system of the Strasbourg Court and that it enjoys a kind of "immunity" from the convention. In our analysis of the Commission's claims, our primary and overriding consideration (as in 1980) was whether accession to the convention would ensure greater protection of human rights. Would the individual benefit from accession by the Community to the convention or would it make no difference?

First, it is recognised that, despite recent additional protocols relating, for instance, to property rights, the convention is concerned mainly with the civil and political rights of the individual. The European Community in its treaty provisions has up to now been mainly concerned with economic and social rights. It is, of course, accepted that in the development of the Community there is a certain growing overlap of interests, but the Luxembourg Court has over the years recognised the protection of human rights as part of its general principles. Already in the 1960s, the Court stipulated in the Stauder case that,

"fundamental rights were enshrined in the general principles of Community law and protected by the Court".

Since that time there has developed a corpus of Community law concerned with the protection of the human rights of the individual with specific reference to the convention as, for instance, in the Rutili case and in subsequent cases coming before that Court.

Secondly, the committee has analysed some of the recent major cases coming before the Luxembourg Court involving human rights. The committee was impressed by the concern of the Court to ensure its protection where there has been a violation of rights suffered by an individual as a result of Community law or action or where there has been an infringement through national action implementing Community law. The Court, in applying general principles of protection for human rights, has not always confined itself to the convention. As in the Orkem case, which is also quoted in our analysis in the report, the Court went beyond the provisions of the convention and showed that it was willing and prepared to examine rights not guaranteed by the convention. A summary of our examination of case law is set out in paragraph 74 of the report.

It is accepted by the committee that there may be potential gaps in the legal system, where, for instance, the jurisprudence does not yet exist or where the individual is not able to bring a case before the Luxembourg Court. However, as we say in the report:

"None of our witnesses was able to point convincingly to a single case where an individual had been denied justice in terms of the Convention on complaining of a Community action".

I have quoted paragraph 71 verbatim in order to clarify a misunderstanding contained in the Foreign and Commonwealth Office's reply, for which I thank the Minister. We did not maintain that there was not a single convincing case where an individual's rights had been infringed as a result of a Community action. On the contrary. We pointed to cases where there had been infringement, but where the individual had received justice from the Luxembourg Court.

While we consider the gap claimed by the Commission to be very marginal, in view of the development of the case law of the Luxembourg Court, the committee recommends that there should be closer co-operation between the Luxembourg and Strasbourg Courts as well as easier access for the individual to the Luxembourg Court, mainly under Article 173 or by reference from a national court under Article 177.

Without going into the complexities of the arguments there are important legal issues which could affect the United Kingdom. These were raised in the Commission's communication and I shall touch on them very briefly. I shall not go into the legal arguments because that would take some considerable time, which I am sure would not be acceptable to your Lordships' House, particularly this evening.

First, would accession of the Community to the convention confer increased competence to legislate internally, involving supervision of national implementation of obligations? Would the Community's external competence be increased, becoming party to international agreements involving human rights provisions? The arguments set out in paragraphs 89 to 91 of the report lead to our conclusion, in agreement with the Foreign and Commonwealth Office witness, although apparently not entirely clear in the Foreign and Commonwealth Office's reply, that,

"it would be essential that any instrument of accession by the Communities should be accompanied by a statement of interpretation by all Member States which would specify that the Community accepted responsibilities under the Convention only within the limits of its own competence".

That is an important point that should be noted. We added, in paragraph 93, that it would be possible in the future for the Community to become a party to international instruments relating to human rights, but only by the unanimous agreement of the member states.

For those who would like to see the European Convention on Human Rights incorporated into United Kingdom domestic law, this issue cannot be ignored. It was touched on by our committee, although it was not one of the main issues considered. It is accepted that, Community law having supremacy over national law, in so far as the convention forms part of the principles of Community law, a national action implementing Community law can be challenged within the terms of the convention, as in the Kent Kirk case which is included in the report.

The new provisions contained in the Maastricht Treaty—should it come into force—strengthen the role of the Luxembourg Court. Article F(2) stipulates that the Union shall respect fundamental rights, as guaranteed by the European Convention on Human Rights and Fundamental Freedoms. Even if the Community were to accede, it should be pointed out that migration and asylum questions, which are possibly among the more frequent subjects of human rights cases, would still necessitate any Community resident to have recourse to the Strasbourg Court, as these matters fall within co-operation in the fields of justice and home affairs and are outside Community competence. The treaty stresses nevertheless that these issues shall be dealt with in compliance with the convention and the Status of Refugees Convention. The convention would still remain a guideline for courts when dealing with these issues although they are not within Community competence as such.

Finally, it must be observed that the Commission considered that the institutional difficulties which would be incurred in Community accession to the convention were not insurmountable, although it was recognised that they did exist. The committee concludes that institutional difficulties are among the main obstacles against accession, and witnesses agreed with that assessment. At present the convention is open only to member states. It would therefore have to be amended to allow for the Community as such to accede. The Community would claim representation on the Strasbourg Commission and the Strasbourg Court. Membership of the Committee of Ministers —the Strasbourg Committee of Ministers—poses a problem. One suggestion by the Brussels Commission was that cases considered admissible by the Strasbourg Commission should go straight to the Court—the Strasbourg Court. That is unacceptable on two counts.

First, not all admissible cases go to the Court; some are decided upon by the Committee of Ministers. Many are not of the nature or importance that they should take up the time of the Strasbourg Court. Secondly, this procedure would create priorities for EC cases over cases from Council of Europe member states which are not members of the European Community, as well as increasing the congestion with which both the Strasbourg Commission and Court are faced.

It may interest noble Lords to know that according to the latest report dated 1991 there are 2,332 cases undecided in the Commission, with 250 cases at the end of 1990 still before the Court and an average—this is a generous average—of five to six years before a case is heard. Those who follow these matters as reported in The Times will notice that the applications for nearly all the recent cases were lodged in 1986 and judgments have been coming forward in the past few months. Delay of this length cannot be conducive to redressing grievances resulting from violations of human rights and fundamental freedoms.

The increasing number of states now becoming members of the Council of Europe and parties to the convention is to be warmly welcomed, as the principles of democracy and the guarantee of the protection of human rights and fundamental freedoms spread across the whole of Europe. The numbers of cases coming to Strasbourg are inevitably thereby increased and make even less attractive the idea that European citizens should have recourse to Strasbourg when they have the possibility, with very much less delay and assurance of judicial protection of their rights under Community law, of resort to the Luxembourg Court.

As it was affirmed in the Magna Carta, justice delayed is justice denied. That remains true today, 700 years later. The committee remained unconvinced that Community accession to the convention would ensure greater protection for the individual resident in the Community and we would encourage the continued development of the Luxembourg Court's jurisdiction in human rights cases arising from Community action. I beg to move.

Moved, That this House takes note of the report of the European Communities Committee on Human Rights Re-examined (3rd Report, HL Paper 10)— (Baroness Elles.)

5.48 p.m.

Lord Archer of Sandwell

My Lords, it is a pleasure to follow the noble Baroness. She may remember that nearly a quarter of a century ago she succeeded me as the United Kingdom delegate to the United Nations Third Committee.

I am sure she would agree that in those days this whole debate would have been inconceivable. If René Cassin, Sean MacBride and Lionel Elvin could have read this report they would have believed that their life's work was vindicated. The European Convention was an esoteric subject discussed by a few eccentrics. If I remember correctly, not a single country then accepted the right of individual petition. Now the arguments begin from the axiom that there is a substantial body of jurisprudence which has emanated from the Strasbourg Court and interfaces with human rights jurisprudence in other regions of the world and with the human rights committee under the international covenant.

As the noble Baroness reminded the House—it was repeated several times in the evidence to the committee of Mr. Lester—the Luxembourg Court, while it cannot apply the convention as it could do if the Community were to accede, a matter to which I hope to return in a moment, has repeatedly looked to the convention for guidance. One consequence of that—it was a dream many years ago—is that part of the decision-making machinery of virtually every European government is that at some stage the matter is referred to the human rights section of the Foreign Ministry to consider whether the proposal has any human rights implications.

In the early years of Amnesty International, we were struggling to get the expression "human rights" into the English language. Now, the whole concept is very much part of our governance. So the nature of the discussion has changed. The debates now relate to questions such as whether the rights to which people in this country are admittedly entitled under the convention are best protected by reference to the commission or whether they should be enforceable in the national courts. As the noble Baroness asked, how can the Strasbourg court best be helped to cope with the flow of cases? The whole human rights scene has been transformed. It is not surprising that there are people who say, "Well, you human rights campaigners, you have won all you could conceivably have hoped for. If you want more, aren't you just being fussy?".

I understand that feeling and I concede that there has been one major change since the inception of the convention. Then, human rights were thought of as contrasting with major acts of tyranny. Before the Second World War, the world believed that what a government did to its own subjects was a matter to be dealt with within the confines of national sovereignty: the rest of the world was not interested in a family affair. It was events in Nazi Germany and occupied Europe which persuaded the civilised world that the international community must establish standards for governments and the all-mighty nation state should have to answer at the bar of international opinion for its conduct to its own citizens. Never again, it was said, would the world wash its hands of tyranny in one country. That was the philosophy behind the convention.

I accept what the noble Baroness implied: that now, cases heard by the European Commission and Court relate more usually to a conflict of human rights. The issue relates to where the emphasis is to be placed between two contending rights. It is arguable that that kind of issue is best resolved by the political process, and, in the last resort, by an electoral majority following political debate. Of course, there are some situations which do not fit into that pattern; for example, where one section of the community is permanently in a minority in relation to an important electoral issue, as in Northern Ireland. But I concede that it is not self-evident that those issues are best decided by enunciating the principle in a form which commends itself to one generation, based upon the experiences of that generation, removing it from all future political debate, and then inviting the court to decide how that interfaces with another principle similarly enshrined—and all that in a situation which was not contemplated by those who enshrined it. I accept, at least, that it is not self-evident.

There is a very little historical evidence to help us to decide whether human rights are better protected under a healthy electoral system or a healthy judicial system, for the obvious reason that the two are usually found together. If the one withers, it is not often that the other maintains a robust existence. So I do not believe that a Bill of Rights—we are discussing a European Bill of rights—is a substitute for a lively political sensitivity to civil economic rights and freedoms.

A great American judge, Learned Hand, expressed it better than I could ever hope to do. He said: Liberty lives in hearts of men and women. When it dies there, no constitution, no law, no judge can save it". But where the political system is in the process of being forged and where it has not yet fully matured, then there is a need for an effective judicial procedure. The European debate, in a number of countries including the United Kingdom, has reached the stage where most people and most political parties are prepared to accede to a substantial degree of integration in the regulation of economic matters, and, perhaps to a lesser degree, of social matters, and for that purpose to create a powerful bureaucracy. That is not a moral judgment. Sometimes a powerful bureaucracy is necessary if an activity is to be subject to a sensible degree of co-ordination and regulation. But a bureaucracy, by definition, consists of officials who, understandably, are committed to the implementation of what they believe to be a valuable policy. If the price in a particular instance is that the individual should be hurt, then they may be prepared, like most of us, to bear with fortitude the misfortunes of others. They are likely to perceive objections as ill-informed and unreasonable.

Justice, in its memorandum to the committee—the noble Baroness will remember—pointed out how many countries, including the United Kingdom, which believed that their human rights record was of a high order, were surprised to find how often they had violated the convention. A bureaucracy requires to be subjected to some scrutiny either by a political or a judicial process. We have been prepared to accept economic integration, with a consequent bureaucracy, but we have not been prepared to accede to the political integration which would have endowed the European Parliament with the necessary muscle to scrutinise it. So in relation to human rights, we may be in danger of finding ourselves with the worst of all worlds.

It may be that 10 years from now a parliamentary ombudsman, in a stronger European Parliament, may provide stronger support for human rights, especially when the right of direct petition is understood and widely used. But, until then, I believe it important that the commission should be subject to a more direct scrutiny than would be possible by the indirect application of the convention through the Luxembourg court. I say that with great deference in the presence of the noble and learned Lord, Lord Slynn, to whose contribution we are all very much looking forward and who is himself an exception to what I am going to say. It is a court where most of the judges achieved distinction in fields which did not include a human rights jurisprudence. It is revealing and encouraging that the commission itself feels the need for more direct scrutiny by the juridical processes of the convention. I find myself persuaded that it is right.

I am fortified in that conclusion by another matter to which the noble Baroness adverted which was put to the committee by Dr. Pipkorn that there is also a presentational factor. We are continually and properly preaching human rights to the third world and there is now a great deal of discussion about how aid should be related to human rights. The third world may wonder whether the Community is wholly dedicated to its own philosophy if it finds that the Community does not accede to the convention which embodies the international standards of the countries of Western Europe.

I accept that there may be technical difficulties. I should be worried about the future of the law and the legal profession if I believed that, where there was obviously a will, we were defeated technically in finding a way. I have the misfortune to differ from the committee's conclusions, but I am sure that the House is indebted to the committee for its careful and well-informed report and for inviting us to participate in the debate.

5.59 p.m.

Lord Slynn of Hadley

My Lords, the protection of human rights is a subject which can generate strong feelings, so on the first occasion when I have the privilege of speaking in your Lordships' House I must steer between the Scylla of being controversial or at any rate too controversial and the Charybdis of being so anodyne that at the end it may be thought that I have said nothing. Whether or not I steer between those dangers in the course of my speech, for which I ask the indulgence of the House, I thank the noble Baroness, Lady Elles, for the gracious words with which she began her speech and for the kind remarks made by the noble and learned Lord, Lord Archer of Sandwell.

The proposal that it should be made possible for the European Community to accede to the Convention on Human Rights, and that the Community should do so, has had a somewhat chequered history. When I was asked by the noble and learned Lord, Lord Hailsham of Saint Marylebone, as Lord Chancellor, to go to the European Court of Justice 12 years ago, I found that senior lawyers in the Commission seemed very enthusiastic about the idea. Then, perhaps partly because of the report of the Select Committee of this House on human rights, but also for other reasons, the enthusiasm seemed to cool and the idea was put aside.

Now, the proposal has been revived and, as I understand it, with more vigour. There is plainly nothing wrong in the Commission reviving a proposal after leaving it on one side. On the contrary, it seems to me that the proposal needs to be looked at from time to time, if it is not adopted.

The question, however, as I see it at the moment, is whether it is now right to adopt the proposal that the Community and indeed perhaps the three communities should accede to the Convention on Human Rights. There are clearly arguments in favour of doing so, as has been shown in the speech of the noble and learned Lord, Lord Archer of Sandwell.

It is a natural progression, when all the member states have ratified and granted rights of individual petition. It looks right, since nationals of all member states would have a right of access to an independent commission of inquiry and a Court of Human Rights in Strasbourg, if breaches of the convention by the Community or by the institutions are alleged. Accession would avoid the peculiarity of the European Court of Justice being both defendant and judge in cases brought by officials of the Court alleging breaches of human rights.

Yet, on the other hand, it is quite clear that accession by the Community would only open up such a right to go to the Court in areas concerned with Community activity. It would not affect, it would not enlarge, the citizen's rights against his own member state and it seems to me that the number of cases at the moment which are likely to be involved will be few.

In that regard, it is a critical factor, as the noble Baroness has already indicated, that from the early days the European Court of Justice has established that fundamental principles of law exist beyond those spelt out in the treaty. The Court recognised that certain rules of fairness, reasonableness and legal certainty are observed by all the member states, which member states must have intended to apply to action in the Community. Those principles, I venture to suggest, have had a very beneficial effect in protecting the citizen against arbitrary and unreasonable conduct.

The Court of Justice slowly recognised that fundamental or human rights were included among those general principles. After France had ratified the convention, she finally accepted that the principles set out in the convention should be reflected in Community law.

I suggest that that was a major step and the Court of Justice now asserts categorically that these fundamental human rights are part of the law of the Community which it is the Court's duty to secure and enforce. It has thus recognised such fundamental rights as the right not to be discriminated against on the basis of religious faith; the right to develop property as set out in the protocol to the European convention, subject to acceptable restrictions in the general interest by way of planning controls and otherwise. The Court has recognised rights of the defence such as the right to a fair hearing. It has recognised that retroactive legislation making acts criminal which were not criminal at the time is wholly illegal and unacceptable.

It is important, I think, to bear in mind that in all this the European Court in Luxembourg has followed the interpretation of the convention adopted by the Court and the Commission in Strasbourg and has refrained from laying down wide-ranging decisions in uncharted areas. So there is considerable consistency between what has been done by the Court of Justice and what is done by the Court and Commission in Strasbourg. I doubt very much whether it can really be said, as I think was suggested by some of the witnesses to the committee, that the court in Luxembourg is not in a position to be informed of what is going on in the Strasbourg institutions.

It is clear, on the other hand, that if these cases have been few—and they have been very few where both the principle and a breach of the principle have been established—in the definition of the rights, the Court has done much and is capable of doing much in the limited area of Community activity. It has done so —and I think this is important—to such an extent that even the German Supreme Constitutional Court— which has a basic law of human rights which at one time it was disposed to insist upon against Community legislation—now accepts that it will not test the validity of Community directives against that basic law, but will leave it to the Court of Justice to apply the necessary rules of fundamental rights.

A special point has been raised in the discussion before the committee, as appears from the report, about officials and other employees of the Community. Is it necessary that the Community should accede to the Convention on Human Rights in order to protect the interests of those officials? I doubt very much whether that is necessary. It seems to me that the detailed rules governing the conditions of employment of employees of the Community are dealt with by the new court of first instance and by the Court of Justice in a way which sufficiently protects their interests. I doubt very much whether allegations of breach of the convention are likely to be raised by officials in many cases.

So for my own part I do not feel concern that in practice—whatever the theoretical or cosmetic objections may be—officials of the Court or of the other institutions are likely to be prejudiced.

The Commission has suggested that there may be gaps. There is undoubtedly a risk that some cases will not get to the Court of Justice. The Court can only deal with situations falling within the area of Community law which come before it. But I observe that Mr. Anthony Lester (who has been referred to and who has great experience in this area and who 10 years ago was against the Community acceding to the convention) now feels on balance—I repeat on balance—that the Community should accede.

If I were satisfied that there were serious gaps, I should agree with that. But on balance I do not consider that in practice it has been shown that there is any need for the Community to accede.

Finally, it would be perhaps somewhat strange for the United Kingdom to be supporting accession when we have not made the convention part of our domestic law. This is something which I suggest needs now to be thought about again in the light of the subjects raised in the report of this committee.

On the one hand, some people are perturbed by the block which seems to have occurred in the Supreme Court of Canada by the number of cases flowing from the adoption of the charter of human rights. On the other hand, I commend to the House two considerations which arise out of this report. The first is that every time the European Court recognises a principle set out in the convention as being part of Community law, it must be enforced in the United Kingdom courts in relation to Community law matters, but not in domestic law. So the convention becomes in part a part of our law through the back door because we have to apply the convention in respect of Community law matters as a part of Community law.

Secondly, when I was counsel for the United Kingdom on many occasions in the court of the commission on human rights at Strasbourg it was quite plain that many, although perhaps not all, of the cases could be dealt with just as well and more expeditiously by our own judges here.

I have for many years felt it would be right that the convention should now become part of our domestic law. Having read the report of the committee I feel fortified in that view. I mention this briefly because it seems to me to put in perspective the proposal that the Community should accede to the convention. The committee is right to conclude that the Community for the moment has more urgent and more immediate things to do, yet the topic is an important one and the situation must be monitored. I am grateful to the noble Baroness, Lady Elles, for having introduced this debate.

6.12 p.m.

Viscount Colville of Culross

My Lords, there are a number of strands in what we are discussing this evening. We are talking only about taking note of the report of the sub-committee. The very first strand which I must grasp is the one which involves thanking the noble and learned Lord, Lord Slynn, for his maiden speech. He said that it was 12 years ago that the noble and learned Lord, Lord Hailsham, invited him to participate in the European Court. It feels to some of us that it was about 12 years ago that this debate was due to start. However, I note there are a number of noble Lords waiting for subsequent business and I must therefore be brief.

Your Lordships will look with amazement at the distinction of the noble and learned Lord, Lord Slynn, in his professional life at the Bar and in the European Court. Noble Lords will appreciate what an asset we now have in this Chamber, not only from having listened to him today but also when they realise that he has already taken charge of matters and is now chairman of the sub-committee. I had the pleasure of sitting under his jurisdiction. I know he is very much in command of the subject. Your Lordships will want to hear him on many future occasions. He made a number of very constructive comments and we welcome him as a Member of this Chamber who has now made his maiden speech. If he so wishes, he can be even more controversial in future.

There is one other person who requires a word of congratulation, and that is my noble friend Lady Elles. My noble friend must be the only person to have been in charge of the sub-committee who is not a Law Lord. She was in charge when the debate took place which led to the report now before your Lordships. She has an amazingly clever way of timing the reports. It is not just a matter of the organisation of the committee and the chairmanship of it; it is also a matter of the timing of what has been produced. If noble Lords did but know what my noble friend has done behind the scenes to get these matters at a suitable moment in front of Parliament—I hope also in front of parliaments across Europe—they too would thank the noble Baroness. I sat underneath her chairmanship, and I profited greatly from the knowledge I acquired.

Like the noble and learned Lord, Lord Archer of Sandwell, I have sat on human rights bodies. We used to talk in terms of flowers, tributes and other such things. Those matters are appropriate today both in terms of the noble and learned Lord and my noble friend. However, the flowers cover a substantial substance in this debate because although we may not be doing more than taking note of the report I believe we shall send out messages to all the Community countries as well as to those people who are interested in the matter in this country.

It is enticing to think that the European Communities should join and become members of the European convention and that it would be good for us all if they did. However, this House was not convinced in 1980 that that was the way forward and there are reasons set out in the new report before the House this evening which show that even now not only are there no more reasons but matters have progressed very much further, as indeed the noble and learned Lord, Lord Archer, said, although I do not think he came to the same conclusion. What we have done is to look at the detail of the matter but not to go beyond the terms of reference. I know that other noble Lords will want to do that and will want to talk about wider issues. However, on this particular point and on this particular report, we in the sub-committee have had to confine ourselves to the particular issues that were before us.

There is no doubt that the technical issues that would be involved in the various European Communities joining as members of the convention would be very substantial. I say in passing that just at this moment I would have thought that there were more important and more pressing issues and tasks —as the committee says in paragraph 105—for the diplomats of the European Community to address. There may come a time when everyone has the leisure to undertake what is required, but I should have thought that this was not the moment. I do not say that through wanting to be fussy or not fussy, as the noble and learned Lord, Lord Archer, said. If one looks at the substance of the matter one sees that it is not a question of fussiness at all because we already have, in terms of the results of the courts at Luxembourg and indeed in this country something which has gone beyond a mere approach to being fussy about whether we are looking after human rights.

Of course we have to look after human rights. But we need to look at the substance of the convention we are discussing and, it is suggested, the Communities should join. What are the rights that we are being asked to commit the Communities to join? They are the right to life, although that is not really something that the European Communities are involved in; inhuman, degrading treatment; slavery; a fair tribunal; a fair hearing; the avoidance of retrospective criminal offences—one might think of the war crimes legislation—private life and property; freedom of thought; conscience and religion; freedom of expression; and freedom of association. In addition there are protocols which, particularly in the case of the United Kingdom, involve rights of property.

Most of those rights are already encompassed in the machinery of justice in this country and in the European Court, as the noble and learned Lord said. In this short debate we are not talking about an instant vision of what the European Communities are about. We are not considering encompassing the entire range of United Nations conventions and covenants on civil and political rights or economic and social rights. Those are not matters which are before the House this evening, however much some Members may wish that they were. Nor ought we to spend much time talking about the competence of the Communities in joining the convention on human rights, although that is equally an extremely difficult subject and one which is controversial in its own right.

We should remember that before the House, and before Parliament and the country, there is now the whole issue of subsidiarity and the way in which it will be applied, in the context not only of the text of the Maastricht Treaty but also of the Single European Act and the way in which that has already passed into law so that it now binds all of us, regardless of any amendments which may have to take place.

What is the gap? When the Commission put forward the proposal that the Communities should join the convention it saw a conspicuous gap. Noble Lords have not identified—even the noble and learned Lord, Lord Slynn, did not make much inroad into the matter—a large gap which needs to be filled by a difficult legislative process which is now being suggested. I note that the noble Lord, Lord Owen, and the noble Lord, Lord Jenkins of Hillhead, as they now are, signed the note on page 57 of the document that we produced in 1977 saying that the Communities would abide by the convention on human rights. I suggest that no one on this side of the House would disagree with that.

Because there was some time during the general election we asked for examples of the gap and what would be achieved for the citizen by the Communities joining and becoming members of the convention. Your Lordships will see in paragraph 72 what the staff, who did so much to help us, produced by way of the jurisprudence of the European Court. They had to find a very elaborate example under Article 10, concerning freedom of expression, to show how one would get into difficulty if the Communities did not join. The rest is quite straightforward.

Noble Lords will have seen the quotations from cases which are set out in the footnotes. One which is not set out goes back to 1979. It is the case of Hauer v. Rheinland-Pfalz which concerned vine planting. It was subsequently affirmed in a milk quota case about 10 years later. The issue concerned the right of property, which is covered by Protocol 1. In summary, the court said that even if it is not possible to dispute in principle the Communities' ability to restrict the exercise of the right to property in the context of the "market", it is still necessary to examine whether the restrictions correspond to the objectives of general interest pursued by the European Communities, or whether they constitute a disproportionate and intolerable interference with the rights of the owner impinging on the very substance of the right to property.

I think that is what human rights is about. It is about property. Other issues are also involved. That is what the court was saying 13 years ago. It is saying so now, loud and clear. The noble and learned Lord. Lord Slynn, has been saying that himself in the participation which he has enjoyed in the deliberations at Luxembourg.

I ask that this evening the House takes note of the report. We should not go any further at the moment. I understand that there is an entirely different debate about whether we should incorporate the convention into our own law and whether we should subscribe to some of the protocols to which we have not subscribed. But that is not the issue which is before the House this evening. I hope, therefore, that we shall restrict ourselves to moderate and well informed debate upon the exact issue which the Commission has put forward. If we want to go further we must have another debate.

6.25 p.m.

Lord Finsberg

My Lords, perhaps I may say how much I, too, enjoyed the speech of the noble and learned Lord, Lord Slynn. From the other centre of good restaurants—Strasbourg—I have often watched with envy what goes on in Luxembourg. I now know that behind what goes on in the restaurants in Luxembourg is the excellence of the judicial system. Certainly, the noble and learned Lord is a great acquisition for this House.

The reports of your Lordships' Select Committee are highly respected throughout Europe. Talking to many of my colleagues, I find that more than those of any other parliament your Lordships' documents are regarded with deep respect because they convey a sense of what is right and they follow through a proper analysis. This particular report needs to be read in conjunction with the earlier report—the 71st report —which, as my noble friend Lady Elles said, dates from the 1979–80 Session.

I am sad to see that neither in that report nor in the current report was evidence apparently taken from the Council of Europe. I have had the great privilege of being a member of the Council of Europe for some 10 years. I lead the United Kingdom delegation and I have just ceased being president, the first British president for more than 25 years. It is that assembly which elects the judges and the commissioners to the commission and to the court at Strasbourg. Therefore, I have been closely involved. I put it to your Lordships that there is another side to the report which has not come out so far.

My noble friend Lady Elles spoke about the problem of membership of the court and the commission when the Community accedes. That is going to happen, there should be no mistake about that. The simplest solution is that of double hatting. It is well known in international organisations. It is known in NATO, the Western European Union and elsewhere. During the time that a particular country holds the presidency, for example, of the Commission, it would sit on the appropriate bodies of both the court and the Commission.

My noble friend also spoke about the delays at Strasbourg. Yes, indeed, there is appalling delay in the cases at Strasbourg. In comparison justice in this country is not always very swift. However, we are addressing the subject. We are considering three possible options—although I hesitate to say that after the earlier Statement. The options are: whether the judges should now become full-time judges; whether there should be a merging of the commission and the court; or whether the court should sit in panels, which is not unknown. All those ideas are being addressed with a degree of urgency because we realise that justice is being denied in that cases are taking too long.

The noble and learned Lord, Lord Archer, referred to René Cassin. I have a feeling that he would have been saddened at how slowly things had developed since his pioneering days. I also believe that he would have been saddened at the balance of conclusion that the sub-committee has come to in its report today. I noted one other sentence that the noble and learned Lord used. He said that the world was sad at the sight of tyranny and would never let it happen again. The people of Serbia and Bosnia must think very ill of a world where civilised governments have not had the courage to take action.

The Council of Europe is the oldest and largest institution in Europe. It has some 27 member countries, with a queue of up to 10 more countries waiting to come in. We are responsible for the convention and I believe, as does the noble Baroness, that much of what is in her report has been overtaken by events. Many who gave evidence on that last occasion have changed their minds, notably Anthony Lester. I notice that the noble and learned Lord, Lord Slynn, said that, on balance, he had come to a different view. The committee in its report in paragraph 119 has also, on balance, come down against. So it is a fairly narrow feeling as to whether or not, in the view of the committee, we ought to give our voice and say "accede" to the convention, so far as the Community is concerned.

Conditions have certainly changed very much. As has already been said, every country now within the Council of Europe admits the right of individual petition. They all recognise the competence of the court, and although my noble friend said that the Community wants adherence to the convention to be a prerequisite for membership of the Community, in many cases that is a long way away: 10 or 20 years. But those countries want membership of the Council of Europe. We have made it a condition not merely of membership but of guest membership, which is the precondition state, that they must in fact accept all the principles without reservation: principles of human rights, agreement about the convention and agreement to follow multi-party democracy.

I am in the middle of preparing a report on the application of Moldova to become a guest member. One of the things that may hold Moldova back is that it has not fully committed itself to those principles. But Hungary, Poland and the Czechoslovak Federal Republic (until 31st December) have all signed. That was an enormous advance, and it will be many years before they can come to the Community.

The Commission wants to sign; it wants to accede. I suggest to my noble friend Lord Colville of Culross that the Commission must have taken into account its workload before deciding that it wished that to happen. So I do not believe that it thinks it has more important things to do. The European Parliament wants to sign. The Assembly of the Council of Europe wants to sign. As noble Lords well know, the Assembly of the Council of Europe is not a directly elected body; it has membership from the national parliaments of the 27—members who are close, I like to think, to what is happening in their own parliaments and in government. The body which is not sure is the Committee of Ministers. I am sad that it still has to be convinced.

Reading this report I noticed on page 11 in paragraph 17 (i) a quotation from the previous report which states: The Committee do not underestimate the difficulties of achieving this common level of commitment". It is accepted that it will be difficult but those who have already said that they wish to accede have taken that into account. Further down, and perhaps even more important, in paragraph 18 we are told that in 1979 the European Parliament passed a resolution in favour. That parliament was comprised of members drawn from national parliaments. Members of our two Houses were there and took part in that decision, and they said that they wished the Community to accede to the convention. So the United Kingdom Parliament has already expressed a view. That needs to be remembered.

I had intended to mention, as the noble and learned Lord, Lord Archer, mentioned, the comment of Dr. Pipkorn, but I can save the House the trouble of listening to me on that. I should also like to tell your Lordships about the views of the Secretary General of the Council of Europe, Madame Catherine Lalumière, who produced earlier this year, in February, a very interesting report for the Ministers in which she makes it very clear that in her view it would be a good thing if the Community were to accede.

That matter is now being looked at by the Committee of Permanent Representatives, which has decided to refer the question to a working group for further study. A comment was made, I think by my noble friend Lady Elles, that if the Community were to accede it would require unanimity from all the countries who have membership. I might perhaps add that it was only in December 1991 that the Community became a member of the Food and Agriculture Organisation and there was little difficulty in getting unanimity on that point.

Finally, the Secretary General again stresses, the legal and political significance of the Community becoming a party to the Convention. This would highlight the central role of the Convention and its supervision machinery in the protection of human rights in Europe, as recognised by the Charter for a new Europe which was adopted at the CSCE Summit in Paris on 19–21 November 1990. The importance of the Convention and its role as a point of reference was emphasised in the Declaration on Human Rights adopted by the European Council on 28–29 June 1991". It all seems very difficult but it is not for this House to solve those difficulties. All noble Lords have to do is assert that no harm can be done to the cause of human rights by saying, "Yes, it is time that the Community acceded to the Convention". If I thought for one moment that we would be infringing anyone's rights, I should have looked for a stronger report against the idea from the sub-committee, but I do not. I do not believe that that is going to happen. Some may say, "Well, it will not do much for human rights". I shall not argue on that point. But as nobody says it will harm them, I believe that we must make some progress instead of being, as I fear we are on this occasion, negative.

Therefore, I go along with what the noble and learned Lord, Lord Archer, said, and I disagree with the report. I hope very much that my noble friend Lady Trumpington will agree that the House and their Lordships do not share the view of the sub-committee. I am sad about the report because, as I said. they are usually superb. However, I believe that this report has gone slightly off beam. I hope too, echoing the words of the noble Lord, Lord Colville, that it will not be long before the House has a report with a Motion that is positive rather than one which merely "takes note".

6.40 p.m.

Lord Hacking

My Lords, two noble Lords have disagreed with the recommendation of the report of the sub-committee of which I was a member under the able chairmanship of the noble Baroness, Lady Elles. I participated in every session of our deliberations on the matter. I was present at every session of the giving of evidence, except when the Commission gave its evidence. Of course, I had the opportunity fully to read that evidence before we wrote our report. At the end of our deliberations I joined with my fellow sub-committee members in endorsing the recommendation that appears in the report.

It is right to record that I was the sub-committee member most attracted to the proposition that the Community should now accede to the European Convention on Human Rights. We considered the matter with the greatest of care. I was conscious of the greater experience of other members. The noble Baroness, Lady Elles, has great experience in the European Parliament and my noble friend Lord Colville of Culross has great experience in human rights issues and in attending important meetings on that subject in Geneva. I hope therefore that I shall accurately construe the deliberations of our committee in telling your Lordships that, in looking at the two main planks of the argument which the Commission presented to the Council, we saw the logic of the argument that the Community should in its own actions—that is, the actions of the Commission, its institutions, and directives—be subject to the human rights convention. It should not, as it were, be above the law on the issue of human rights.

It is also right to record that the sub-committee could see the logic of the Community in taking up every important human rights issue internationally. for example, we considered the Haiti response following the denial of human rights in that country after a forcible change of government. We therefore saw the logic of the argument that, in making representations in the international field, the Community should have the mantle of accession to the convention.

We also listened to the powerful arguments presented to us by a number of our witnesses. The argument presented by Mr. Philip Allott, is recorded at the beginning of our report. The quotation that we recorded in paragraph 28 was a direct quotation from Mr. Philip Allott who stated: The installing of fundamental rights in a constitutional system is not merely a technical matter or even a routine political matter. In the case of the EC, it goes to the very legitimacy of the EC as a democracy, a democracy containing democracies". Notwithstanding the powerful argument we came to our decision because politics is the art of the possible and the art of the practical, is it not? Nor do I believe it right that we turn down the symbolism of the European Community acceding to the Commission. As has been said by other noble Lords, on looking at the matter with greater care there is no question of the Community having doubtful credentials in the area of human rights.

Perhaps I may give one other insight into the deliberations of the sub-committee so that your Lordships can see how eventually on balance we came down in favour of our recommendations, as was pointed out by the noble Lord, Lord Finsberg, in paragraph 119. One of the issues that we considered was the advantage of an individual petition to both the Commission and the court. That has been accepted, though it has not been ratified. It is contained in Protocol 9 of the convention. In considering that matter we were aware of, and mentioned in our report, the difficulties of the individual in presenting an application to the European Court in Luxembourg under Article 173. There are severe limitations on the individual presenting a petition under that article.

Of course, we had to look at the court in Strasbourg and at the question of delay. Regrettably we found that the delay was in the region of five to six years. Such a delay is a defiance of the granting of human rights. We greatly welcome the noble and learned Lord, Lord Slynn, to the Chamber and to the chairmanship of our sub-committee. As he said, this is an important subject which we must continue to monitor. That also expresses the view of the sub-committee in reaching its recommendations.

I wish to draw one further matter to the attention of my noble friend the Minister. It concerns the ratification by the United Kingdom of Protocols 4, 6 and 7. One of the matters that we considered was this. If the Community were to accede to the European Convention, what would it be acceding to? Would it be acceding to the original text of the convention and how many of the protocols would it be acceding to? That focused upon the position of the United Kingdom which, with Turkey, is alone in ratifying the convention but not Protocols 4, 6 and 7. Will the Minister indicate the Government's proposals to ratify those protocols? We are rather out of line with most member states. If your Lordships later examine Protocols 4, 6 and 7 you will find them largely in accordance with English law.

Protocol 6 relates to the abolition of the death penalty. There are some exceedingly macabre statutes of Parliament dating back to the 14th century and they should have been repealed by Parliament long ago. But the practical position is that we have long since abandoned the death penalty and I am glad to record that.

Your Lordships will know that I am using new language in addressing Members on this side of the House. I should be grateful if I could have an answer from my noble friend the Minister either when she addresses the House or perhaps she will write to me afterwards.

6.48 p.m.

Lord Holme of Cheltenham

My Lords, I must first apologise to the House—I have already apologised to the Minister—because I must leave before the end of the debate. I regret that all the more since the debate has been particularly interesting. On behalf of Members on these Benches I wish to express my gratitude to the sub-committee and to the noble Baroness, Lady Elles, who so ably introduced our deliberations tonight.

From these Benches I speak for a party and as someone who has reached the firm conclusion that we should incorporate the European Convention into UK law. It was good to hear the judicious and elegant maiden speech of the noble and learned Lord, Lord Slynn, and to note that he too has reached that conclusion.

However, having reached that conclusion I do not share the noble and learned Lord's view that the time is not right to incorporate the convention into Community law. I have in that view been affected by the evidence given to the committee, which was generally of extraordinarily high quality. I refer not just to the evidence given by Justice and by Liberty and the characteristically analytical evidence given by Anthony Lester, whose contribution in this area and over many years is so immense, but also to the evidence given by the Commission's own lawyer, Dr. Pipkorn, who said—and this really summarises the position of the Commission— It makes the position of the Community in the field of protection of human rights more coherent and fills a gap in the protection of human rights as regards Community legal acts. One of the reasons that the sub-committee—and I recognise that this is, on balance, a balanced argument —thought that the time was not right to do this was that the Community has, in its own words, "more pressing tasks". I am certain that the Community has many pressing tasks. We read about them in the newspapers every day. We discuss them in this House. But can they really be described as more pressing than anything that would potentially lead to the improvement of the primacy given to human rights in the European Community? In the current political climate in Europe it is surely becoming increasingly difficult to divorce human rights from other areas of Community activity.

if there were accession it would mean that the European Convention on Human Rights would become directly binding on Community institutions, and this would assist in filling the gap—and I recognise that there is argument about how wide that gap is—in human rights protection that exists in areas which fall under Community competence. Individuals would have recourse under Community law in situations where a Community act can be seen to be in violation of the convention.

The real issue is: what kind of European Community do we want? That of course is not in the end a juridical issue; it is an intensely political issue and one of current controversy. There is disagreement about whether the European union that the Treaty of Rome envisages will eventually be a federal community, a confederal Community, or a looser association of nation states nevertheless striving to find some kind of political unity. On these matters there is legitimate and continuing disagreement. But I very much doubt that any of us would want to have a European Community that did not rest on the inviolability of individual human rights as its fundamental and basic principle, more important than any other pushings and shovings of the political process.

During the Maastricht debate there was discussion of what should be done in the Community and what should be done by the member states. There is no doubt that the competence of the Community over the years has increased—and probably will increase—but I would argue that it ought to be constrained at all times by the primacy of individual rights, so that as the institutions develop greater powers and wider duties and come into conflict with individual rights and freedoms, it is clear where the priority lies.

I suspect—I fear this may be the case—that the sub-committee was slightly over-influenced by the evidence of the Foreign and Commonwealth Office. We know that the Government—and perhaps the noble Baroness will be able to refer to it in her concluding remarks—are conscious of the thin-end-of-the-wedge argument; that any discussion of the European convention is potentially embarrassing for the British Government, which, in my view curiously, refuses to incorporate the convention.

I believe that if the European convention was incorporated into Community law so that the Community could be seen to control its own human rights with integrity, this would lend credibility and moral force—a point made by the noble and learned Lord, Lord Archer—to action that the Community takes on human rights issues beyond its own borders through the use of trade sanctions, or the linking of development aid to human rights records.

I should like for a moment to digress from the tight focus of the sub-committee's report to this question of the external attitudes of the Community. There is a case that has continually been put on the back burner, and that is the dispute in the western Sahara. Morocco has been guilty of many gross abuses of basic human rights involving both its own nationals and Sahara wari people who have been arrested, imprisoned, and tortured without trial, and who, in some cases, have disappeared without trace. I am glad to say that requests by Morocco for additional aid from the EC have recently been turned down, and rightly so, on the specific grounds that Morocco is deliberately delaying the UN peace plan for the western Sahara, and indeed that it has recently arrested hundreds more of the Sahara wari people who were peacefully demonstrating. Could Her Majesty's Government confirm that they are also opposed to these continuing Moroccan practices and are prepared to say so in New York and at the United Nations?

Reverting to the sub-committee's report, there is one other point that I should like to raise on what I might call the log-jam argument. The argument is developed quite strongly in the report that there is already something of a log jam in the European Commission and Court, and that that would be further increased. I have no doubt that there is some truth in this. It always strikes me as slightly odd that when people use this as an argument for not incorporating the European convention into Community law that they do not recognise that the logic of it is that we should help in this country to relieve some of that pressure by incorporating the convention into United Kingdom law. It is a strong supporting argument.

One final point that I should like to make is that the events in Germany and in other parts of Europe have highlighted a need for additions to the Community protections of human rights, whether we incorporate the convention or not. We desperately need a prohibition on the grounds of race discrimination to be added to the prohibition of discrimination on the grounds of gender. Events of recent weeks prove this. The parallel need is for governments to send a clear message both to right-wing extremists who are flourishing throughout the Community and to those whom they are persecuting that the permanent legal residents of the Community who are not EC nationals should not be considered second-class citizens. Some 8 million people in the Community continue to be deprived of the rights of free movement which are enjoyed by their EC national colleagues, and continue to be subject to cumbersome impediments to their ability to acquire EC nationality. As long as these obstacles remain no amount of rhetoric about human rights from member states will convince these people that the people and governments of Europe are on their side.

In conclusion, I would say on this issue that it would be a great shame if, yet again on these Community matters, Britain is the laggard and not the leader; that we are elaborately finding reasons for being out of step. The noble Lord, Lord Finsberg, has said that throughout the Community, its institutions and the Council of Europe, many people have thought about this and decided that it is right symbolically and probably right practically. It would be refreshing to see the Government prepared to take the lead in the creation of a citizen's Europe, because a lot of the political problems in Europe are fundamentally due to the fact that people do not believe that Europe is for the people of Europe. If nothing else, the incorporation of the convention into Community law would demonstrate that Europe is for people and not just for governments.

6.58 p.m.

Lord Judd

My Lords, one of the great things about this House is the opportunity to learn from its expertise and experience, which are so wisely deployed. I have certainly learnt from this debate today. It was a particular privilege to hear the distinguished maiden speech of the noble and learned Lord, Lord Slynn of Hadley. It generously fulfilled our expectations in its clarity, insight and perspective. His observations on the evolution and enhancement of the role of the European Court of Justice in the realm of human rights cannot be lightly dismissed, and I do not do so. However, I noticed that his conclusions were on balance, and he will therefore at least understand if the balance for some of us comes down in another direction.

I should like to pay tribute to the members of the European Communities Committee for producing such an interesting report on the Community's commitment to human rights, and on the question of whether or not the Community should accede to the Convention. The noble Baroness, Lady Elles, and the noble Lord, Lord Hacking, spoke to it well tonight. The committee has undertaken its work during one of the most significant and dramatic periods in the history of the European Community. This, I believe, has added to their burden, and it is a testimony to their diligence that they have been able to produce such a comprehensive, thought-provoking and balanced report despite the distractions caused by the Maastricht treaty negotiations and the subsequent Danish vote against the treaty, which have thrown the whole ratification process into turmoil.

Notwithstanding these recent difficulties, it has become very clear that many within the European Community have become increasingly concerned with the protection of human rights. This concern is widely regarded as central to the future economic and political development of the Community and, reflecting this, the preamble to the Single European Act specifically refers to respect for human rights.

We must build on this and develop the Community's emphasis on human rights and democracy. I shall argue the same case as I was glad to hear my noble and learned friend Lord Archer argue, together with the noble Lords, Lord Holme and Lord Finsberg, with all his Council of Europe experience. One of the ways to promote the objectives would be for the Community now to accede to the convention and for it to take steps to strengthen the Conference on Security and Co-operation in Europe as regards its human rights regime. That is vital not only to the overall development of existing member states, but also to that of the former Communist states of central and eastern Europe which are currently queueing up eventually to join the European Community.

The Community that they join must be seen to have a meaningful and tangible commitment to human rights and, equally, to be seen to te taking an active part in protecting them, not only externally through its aid and co-operation policy but also internally with regard to the individual rights of its citizens. There must be no opportunity for this central priority in the fight to preserve decent society to be perceived or portrayed as part of the hollow rhetoric of armchair conscience.

The current fighting in Bosnia-Herzegovina and its attendant refugee crisis, the incidence of ethnic conflict throughout central and eastern Europe and the grim resurgence of fascism in Western Europe highlight the need for the European Community demonstrably to develop such resolve and for it to take a lead in promoting effective measures to bolster the CSCE. It must be asked whether, if the latter's human rights mechanisms had been stronger, changes in the former Yugoslavia could have been less anarchic and less bloody.

The potential for ethnic conflict throughout central and eastern Europe underlines the need for both the Community and the CSCE to have strong and effective human rights regimes. The economic and political development of the former communist states can be facilitated through the European Community, but these countries must be left in no doubt that membership of the Community will ultimately depend on their commitment to democracy and their record on protecting human rights.

If those standards are not rigorously applied there is a real danger that central and eastern Europe will be plunged into still more dreadful ethnic and nationalist conflict. The incidence of the nightmare of so-called "ethnic cleansing" in the former Yugoslavia and the use of national laws by certain republics of the former Soviet Union to discriminate against ethnic Russians indicates the kind of dangers that can emerge all the more easily in the absence of such criteria unyieldingly applied.

Those countries wishing to join the European Community must meet the required standards of democracy and respect for human rights. They must demonstrate their commitment in those areas and accept that they have obligations to respect the human rights of their citizens, including full rights for minority groups. However, equally, European Community recognition of new states and their international borders should depend on the respect of each of those states for democracy and human rights.

The premature recognition of the republics of the former Yugoslavia illustrates the dangers and consequently the Community must, for example, proceed with the greatest care in relation to the case of the former Yugoslav republic of Macedonia which is currently seeking independence and international recognition. The fulfilment of these prerequisites for international recognition could be better achieved if the European Community as such were to accede to the Convention and if it thereby became still more clear that the European Community endorsed a human rights regime which had to be met before any country was deemed fit and ready to join it.

The member states of the Community are all now party to the convention and it is this key issue of whether the European Community itself should accede which was the main question dealt with by the Select Committee. As we have read and learnt, the committee concluded that the Community should not at present accede, and I understand that view is shared by the Government. The report argued that accession would, not bring major practical improvements to the protection of the rights of individuals resident in the Community", and that the technical difficulties involved would far outweigh the advantages.

In view of the outstanding quality of so much of the report, I find this a disappointing conclusion. Given the increasing human rights dimension to the role and work of the Community and its institutions—a development advanced recently by the European Parliament's adoption during April 1989 of the declaration of fundamental rights and freedoms of European citizens—it is a conclusion which I find difficult to accept.

The Government's hostility to accession is, as has been pointed out, out of step—not, of course, an unusual experience these days—with current trends within the Community; trends which indicate growing support for the Community's accession to the convention. Reflecting that, accession has the support of the European Parliament and the European Commission. Perhaps in winding up the Minister will tell us when this matter will next be discussed by the Council of Ministers and what she anticipates the Government's position will be in that discussion. Perhaps she will also give an indication of current thinking within the Council in relation to accession.

The Government's hostility is also at odds with recent events which have witnessed the Community becoming involved in a growing number of areas with human rights implications. European Community law now has a direct applicability to rights guaranteed in the convention in areas such as privacy and data protection, insurance law, access to employment and education, policing and extradition arrangements, the effect of harmonisation on the differing legal status of minorities —for example, gypsies—and the impact on human rights of new technologies; for example, biotechnology and environmental protection. This is by no means a comprehensive list and Community participation has been extended further as a result of the treaty on European union signed at Maastricht. This seeks to bring matters such as freedom of movement, trans-European networks, the regulation of land use, asylum and immigration policies and judicial co-operation in civil and criminal matters within the scope of common European Community action. The treaty provides for there to be respect for the convention, but provides no specific means of ensuring it.

Organisations such as Justice have therefore found it difficult to follow the committee's reasoning that the Community's accession would provide "limited benefits" and that, the Community has more pressing tasks". Surely the Government must consider that it is precisely because these pressing tasks impact on human rights that it is important that they are carried out within the framework and subject to the provisions of the convention.

There is a closely related matter; namely, the United Kingdom's refusal to incorporate the convention into United Kingdom law. That is unusual and, as has been argued tonight, it certainly demands separate debate. However, I am sure that the Minister recognises the important relationship between the incorporation of the convention into UK law and the European Community's accession to the convention. It should in that context be noted that the UK's position and that of Ireland and Denmark is increasingly isolated, particularly as the countries of central and eastern Europe now acceding to the convention at the same time automatically incorporate it into their domestic law, even though there are far greater difficulties in aligning domestic law with the convention's provisions. However, one point must be stressed, as has been underlined in the debate: whatever the arguments for incorporation into domestic law, the proposal for the European Community's accession in no way amounts to "back-door incorporation" into the UK as it would affect only the application of Community, not domestic, law.

Accession would give the European Community credence and strengthen its institutions, especially as the Community is increasingly being called upon to act on human rights violations outside its borders. Reflecting that, there are growing links between development aid and recipient countries' human rights records and increased joint action in the former Yugoslavia which may have to be replicated in other countries of the region. The moral authority for the Community's actions in these areas would be much greater if the Community's commitment to human rights extended to the supervision of its own acts. That would strengthen the Community's world role and give it greater authority in its dealings with countries and other institutions, as well as reinforcing its policies in areas such as aid and development.

The accession of the Community to the Convention is also particularly important as the Community heads towards greater levels of integration. Against that background, Justice, the United Kingdom-based human rights organisation, has stressed that any Community moves towards greater integration must be supported by the safeguard of a legal system—which, as we have heard tonight, would have to be properly resourced—based on respect for fundamental human rights. Justice has emphasised that it is vital to ensure that the Community's institutions, are not just committed to human rights but bound by them as well. This issue will not go away. Sooner rather than later the Community will have to address it.

Admittedly, the Maastricht Treaty allows for citizens of member states to petition the European Parliament and also for the creation of an ombudsman, to whom application could also be made. Justice, however, has warned that, welcome as these remedies are, they are not an effective substitute for a binding legal framework", which the European Community acceding to the convention could provide.

The treaty does refer to the European Convention on Human Rights as being a body of law which the European union will respect, but it fails to indicate itself how that respect is to be guaranteed. This again accentuates the need for a formal European Community accession to the convention, and it would be illuminating if the Minister could tonight elaborate on how this respect can be effectively and consistently guaranteed without such an accession.

I believe the Community's accession to the convention is desirable because democratic values and the protection of human rights are central to the future development of the Community, particularly since the countries of central and eastern Europe are desperate to join the Community. These countries must be given achievable political and economic targets which will take into account their human rights record as one of the main prerequisites for their membership. In this respect, the Community's accession could play a pivotal role in the membership process and in the overall development of the Community as a whole.

Failure to ensure the development of these countries along democratic lines and to facilitate their emergence as countries which offer full protection for human rights could plunge Europe into a destructive cycle of ethnic and nationalist violence and conflict. There is no room for complacency. The danger signs are there for all to see: indeed, those who recall the pre-Second World War history of Europe tremble at the familiar patterns which are emerging. The Government must consider how they would encourage the development of the Community and its enlargement, in the light of the Government's own hostility to the Community's accession to the convention.

Accession to the convention would enhance the world role of the European Community and reinforce its involvement in the field of protecting human rights. The Community has considerable influence, and it deals with a large number of countries and institutions. Formalising its support for this convention will give it even greater stature and provide it with the means and authority to promote respect for human rights throughout the world. Acceding to the convention is particularly important at the current moment, because the Community is in the process of embarking upon its most ambitious stage of development to date. Endorsement of the convention would therefore give a clear indication of the sort of vision and hopes its leaders have for the future of the Community, and indeed for its domestic and international role.

7.16 p.m.

Baroness Trumpington

My Lords, I start with praise and with a very deep apology. My praise is of course due to the noble and learned Lord, Lord Slynn of Hadley, for steering his superb maiden speech with such authority into port. It is only too obvious how greatly his speech has been appreciated by your Lordships. It has been a rare experience to listen to the noble and learned Lord.

My apologies to your Lordships are for the fact that I, and not my noble friend Lady Chalker of Wallasey, am standing here. My noble friend has asked me to say how very disappointed she is to miss this important debate at the last moment. Life, as we know, is a question of timing; and when two equally important events suddenly converge something has to give. My noble friend Lady Chalker is greatly beholden to my noble friend Lady Elles for initiating this debate and of course my noble friend will read your Lordships' speeches with the very greatest interest. In the meantime I can only crave your Lordships' indulgence for my inadequacies.

The Government welcome the key findings of the Select Committee report on the question of Community accession to the European Convention on Human Rights; and also the opportunity to debate the issues involved. The report of the committee provides a detailed and balanced account of these. The Government gave evidence during the hearings, and they have of course given a full response to the report. I should like, however, to restate briefly the position of the Government on Community accession.

The unique feature of the European Convention on Human Rights is this: that it provides individuals who have exhausted the national remedies open to them with a further means to seek redress from their own governments for violations of their human rights. The protection of individual rights is therefore at the very heart of the legal process in Strasbourg. We have approached the proposal for Community accession to the convention with that very much in mind. Our aim has been to determine whether accession would bring any significant benefit to the individual. It is because we consider that it would not, and also because of the considerable technical and legal problems surrounding accession, that we do not support the proposal made by the Commission.

The Commission has claimed that there is a considerable gap —this point was raised by my noble friend Lord Colville—in the protection of individual rights within the Community. We do not consider this to be the case. The United Kingdom was one of the first member states of the Community to ratify the convention, which it did in 1951. As my noble friend Lady Elles has already said, all member states have now signed and ratified the convention and have accepted the individual right of petition. They have accepted the jurisdiction of the court in human rights cases. In addition, there have been considerable improvements in the protection of human rights in the Community. The Court of Justice of the Communities has for some years consistently applied the European convention as interpreted in the case law of the Strasbourg institutions. Article F of the Treaty on European Union will commit the union to respect fundamental rights as guaranteed by the convention, and as they arise from the constitutional traditions common to member states, as general principles of Community law.

My noble friend Lady Elles has drawn attention to the precise terms of the committee's conclusions about the evidence given to it. The committee said in their report at paragraph 71: None of our witnesses was able to point convincingly to a single case where an individual has been denied justice in terms of the Convention on complaining of a Community action. We are sorry if, in our efforts to be concise in the Government's response, we did not do justice to the precise terms of this finding. We paid tribute then—and I do so again—to the careful and thorough analysis of potential problems which the committee undertook. The findings exhibit a very proper legal caution but, as a non-lawyer, it still seems to me a fair description of the outcome of the investigation that the perceived gap in protection is potential, not actual, and small, not large.

The Government are therefore in agreement with the committee's findings on those essential points. In our response to the committee's report, we highlighted some areas where the view of the committee and of the Government to an extent diverge. I should now like to comment briefly on those points.

On the question whether accession would involve an extension of Community competence, the committee's summary conclusion was that, The Community could accede to the ECHR without implications for its internal competence provided that any instrument of accession was accompanied by a suitable statement of interpretation". As I said in my response, the Government agree that an interpretive statement of that kind would help, but we remain doubtful whether it would be wholly effective in restraining an extension of internal competence in that field. Such statements as to the division of competence are quite rare and the Commission does not propose that any such statement should be made in this instant. Even if one were made, it would be for the Court of Justice, in the last analysis, to decide upon the effects, and we could not predict with any confidence what the outcome might be.

With regard to external competence, the Government and the committee are at one in the view that a consequence of accession would be to make it possible in the future for the Community to become party to other international agreements relating to human rights. The Government continue to believe that such an extension of competence externally, as internally, is unjustified and undesirable. Those are matters which, in accordance with the principle of subsidiarity, should remain primarily for the member states.

It is also our belief that incorporation—a point raised by the noble and learned Lord, Lord Slynn—far from increasing the protection of individual rights in the UK, may actually undermine our constitutional and democratic tradition whereby Parliament has supreme responsibility for enacting and changing our laws. Direct application of its provisions in the UK court would bring British judges into the political arena by forcing them to make decisions regarding the interpretation of the convention and effectively giving them the power to strike down laws passed through Parliament.

On incorporation, I should make it clear that we do not envisage any change in policy. Both at a legal and a political level, Community accession to the ECHR might increase pressure on the UK to incorporate the convention into domestic law. If the Community acceded to the convention as a whole, as the Commission proposes, and not simply to those provisions where it has competence, the convention would become binding on member states as a matter of EC law. That might lead to a situation where the convention was applied directly in the UK courts. We would not wish to allow such an important step as incorporation to be brought in by the back door.

Incorporation of the ECHR into domestic law would therefore have more far-reaching implications in the UK than in many other countries with different constitutional arrangements. Proponents of incorporation argue that giving UK citizens the means to seek redress in our domestic courts would benefit the individual. It is by no means certain that that would be the case. The experience of other states which have incorporated the convention into their law suggests that a significant number of cases would still be decided in Strasbourg.

The committee notes in its conclusions that it inclines to the view that the Council have, under Article 235 of the EC Treaty, the power to decide that the Community can accede to the European convention if member states, acting unanimously, decide that that is necessary.

I should like to stress that that conclusion is hypothetical. Member states of the Community have only once discussed the current Commission proposal for accession. Only two member states were fully in favour of Community accession to the convention. That aside, we continue to have doubts as to whether Article 235 of the EC treaty gives the Community adequate vires to accede. The question hinges on whether the promotion of human rights can be regarded as an objective of the Community. It is because we believe that, in a legal sense, it cannot, that we continue to doubt the Commission's assertion that Article 235 provides sufficient grounds for the Community to accede.

My noble friend Lord Hacking asked about Protocols Nos. 4 and 7 dealing with immigration.

Lord Hacking

My Lords, I asked also about No. 6.

Baroness Trumpington

My Lords, I am coming to No. 6. It is a different subject.

The UK has no plans to ratify the protocols. They are broadly drawn and not in conformity with our detailed laws. My noble friend asked also about Protocol 6. Successive governments have taken the view that capital punishment is an issue of conscience which will be decided by a free vote in Parliament. The noble Lord, Lord Judd, said that we were out of step with our Community partners. That was during the Dutch presidency last year. Given that lack of support for a measure requiring unanimity, subsequent presidencies have not scheduled discussion of the measure. With regard to the other point raised by the noble Lord—the discussion of EC accession in the Council of Ministers—I shall ask my noble friend to write to him.

I listened carefully to the arguments of my noble friend Lord Finsberg and the noble Lords, Lord Archer and Lord Holme, who indicated their disagreement with the principal conclusions of the committee. However, our position is clear.

First, I should like to record the gratitude of the Government to the Select Committee for its careful and excellent work in compiling this report. But our reservations are shared by the majority of the member states of the Community. Our opposition to Community accession to the European Convention on Human Rights is fully consistent with the Government's firm commitment to uphold and enhance human rights. We continue to work for the widest possible implementation of the established standards of human rights. Nor does our opposition to Community accession detract in any way from our support for the work of the Council of Europe; or our high regard for the European convention and the mechanisms in place for its enforcement.

During our presidency of the Council of Europe, which started this month, we will seek to enhance the convention by bringing forward discussion within the Council of Europe on reform of the procedures which are used in its application. There are important decisions to be taken in that respect. The membership of the Council of Europe is increasing rapidly. The backlog of cases, as most noble Lords commented, and therefore the delay in hearings at Strasbourg, is extremely serious. Reform will bring real improvements in the protection of the human rights of our citizens, in clear contrast to the marginal and symbolic improvements which, at best, Community accession may offer. Finally, a telling point which the Select Committee notes in its conclusions: the Community has more pressing tasks.

7.28 p.m.

Baroness Elles

My Lords, I thank the Minister for replying to our debate, especially at such short notice. We are therefore particularly grateful to her for undertaking that task. I should like to thank also all noble Lords who took part in the debate. Interestingly enough I believe we have a balance of the kind of arguments that we heard in our committee. Those in favour were slightly fewer than those against, which again reflects the committee; otherwise we should not have had that conclusion in our report.

I should like to thank most warmly the noble and learned Lord, Lord Slynn of Hadley, who has brought a new light to the debates of this House. We shall at last have somebody, who will be listened to, with great authority on the effects of European Community law on our national and domestic law. He is warmly welcomed. I hope that our learning curve will go ever up through his presence in this House and his participation in our debates.

At this juncture I do not believe that noble Lords will expect me to go into the details of the debate. There were many pressing points made on all sides. I say to my noble friend Lord Finsberg that a certain person was invited from the Council of Europe but did not reply to our invitation to give evidence to our committee. That was covered, but I shall not go into details. I would also like to say how much we all regard the Council of Europe as what I might call the threshold for entry into the European Community as a whole. It plays an important role in instilling the principles of human rights throughout Europe, particularly among new members of the Council of Europe.

I believe that we have all accepted the great importance of respect for human rights. Those who came to that conclusion in the report still hold that if one is going to be seen as respecting human rights one must provide facilities for the redress of grievances where there have been violations of human rights; otherwise, it is a sham and symbolic, serving no practical purpose. Until member states show the political will and the financial intention to improve the circumstances in Strasbourg, I remain firmly committed to the findings of our report.

On Question, Motion agreed to.