§ 11.6 a.m.
§ Lord Hope of Craighead
rose to move, That this House takes note of the report of the European Union Committee on the EU Charter of Fundamental Rights (8th Report, HL Paper 67).
The noble and learned Lord said: My Lords, I particularly welcome the opportunity that this occasion provides for a full debate on this important and controversial issue before the Feira European Council, which is to take place at the beginning of next week.
In the first paragraph of our report there appears a sentence which I wish to draw to your Lordships' attention at the outset in order to emphasise the context for this debate. It says that the occasion for the report is the proposal of the Cologne European Council in June last year that the fundamental rights applicable at EU level should be consolidated in a charter and thereby made more evident. Three 1850 important points are made in that sentence about this proposal that I wish to highlight at once before I proceed to mention some of the details.
The first point is that the proposal relates to fundamental rights applicable at EU level. This is essential to a proper understanding of its subject matter. In a phrase, the proposal is not directed to the issues that arise about fundamental rights within the separate jurisdiction of each member state. It is about controlling the institutions and bodies of the EU, to which primarily the charter will be addressed. It is about ensuring that these institutions and bodies respect the fundamental rights of people within the EU in regard to all matters within the framework of the powers conferred on them by the treaties.
It is a remarkable fact that, while each of the member states within the EU is a signatory to the European Convention on Human Rights and Fundamental Freedoms and while each of them has incorporated the principles of that convention into its national law, there is no equivalent regime at EU level. Every person in every member state enjoys the protection of the convention at member state level, wherever he or she happens to be within the EU. But that protection is lacking wherever that person is affected by things that are done or omitted to be done by or under the direction of the institutions of the Community. This is a weak point within the current arrangements which needs to be addressed.
The second point which arises from that sentence is what the proposal tells us about the nature of the process that it has in mind. It is primarily one of consolidation. It is not intended to confer new powers on the EU. It is intended to be a process of reorganisation, dealing only with existing rights and competences. It is intended to make these rights more visible. As matters stand, there is no list of fundamental rights in the treaties, although Article 6(2) of the EU treaty declares that the Union is founded on respect for human rights and fundamental freedoms.
So what we have is a general principle but no clear means of identifying the rights and freedoms to which it refers. Violations of these rights and freedoms may occur through ignorance. Where violations do occur, they may go undetected. So, when the Cologne proposal said that these rights were to be consolidated, what it had in mind was not the creation of new rights, but a process by which the existing rights would be more accessible—both to individuals and to the institutions and bodies also.
But it has to be recognised that the proposal is not confined to reproducing the provisions of the European convention in a Community instrument. That in itself would be a rather pointless and confusing exercise. It would be pointless because the provisions of the ECHR as such do not need to be repeated. The convention can speak for itself. It would be confusing because the ultimate judicial authority for the enforcement of the European convention resides in Strasbourg. Its jurisprudence is not the same as that of the European Court of Justice in Luxembourg, which has its own views as to the formulation for the 1851 purposes of Community law of human rights principles. An attempt simply to produce a parallel system to the ECHR within the EU would be bound to create uncertainty and would carry with it the risk of undermining respect for the convention.
What the proposal has in mind, as we in the committee understood it, was something quite different. The Cologne declaration makes it clear that the charter is intended to embrace Community rights as well as the convention rights. It contemplates that the charter will include not only the convention rights and rights derived from the constitutional traditions common to member states, but also what it describes as the fundamental rights that pertain only to the Union's citizens. Its inspiration is Article 6(2) of the EU treaty. It suggests that in drawing up the charter, account should be taken also of some of the economic and social rights that exist within the EU, so long as they are not merely objectives for action under the treaty. This raises an important issue about content.
The third point arising from that first sentence relates to the purpose of the exercise, as identified by the Cologne Declaration. It is, as I have already said, to make these rights more evident. It states that there is a need to make their overriding importance and relevance more visible to the Union's citizens. That there is such a need can hardly be doubted, for the reasons that I have already indicated. But the evidence which we received indicates that it is unlikely that all member states will be content with a document that simply says what the rights are—nor even with one that goes on to define their content and to explain their sources. It is already clear that any charter that is adopted by the Council will be seen by some, and perhaps by many, as having a greater political and legal significance. There are those who insist that its function should be to cure the present lack of structure as regards the protection of fundamental rights at EU level. This raises an important issue about the status of the proposed document.
Perhaps I may turn briefly to the report itself, in which we sought to address these issues. Noble Lords will see from the contents pages that the subcommittee which carried out this inquiry had the benefit of a substantial amount of evidence which was given to it both orally and in writing. The witnesses included various organisations, academics and practitioners as well as several people who deserve special mention. We had the benefit of oral evidence from Mr Keith Vaz, the Minister for Europe; from Mr Hans KrÜger, the Deputy Secretary General of the Council of Europe; and from Advocate General Francis Jacobs of the European Court of Justice. We also had the benefit of evidence from the three United Kingdom representatives on the convention which was set up to draft the proposed charter: in particular from the noble Lord, Lord Bowness, who represents this House; and the Prime Minister's representative, the noble Lord, Lord Goldsmith. I look forward very much indeed to the contributions which they will be 1852 making to this debate. Furthermore, I should like to pay tribute to the contribution that was made to our discussions by all our witnesses.
We were well aware that the proposal for an EU charter of fundamental rights was, and still is, an extremely sensitive one, both in this country and throughout the EU. It would be easy to jump to conclusions of one kind or another, depending on the background from which one comes. What we in the committee tried to do was to gather together in our report as much evidence as we could from as many sources as possible. We formed views and we have made recommendations based on that evidence. We hope that in this way we have been able to contribute to an informed debate on the subject. We also hope that our report may have been of some assistance to Her Majesty's Government in the decisions that will soon have to be taken about the contents of the document and the status that it should have within the EU.
Perhaps I may deal first with the issue about status. One of the odd features about the work that is currently being undertaken by the convention is that no decision has yet been taken as to the status that the document is to have once the draft has been finalised. All we know at present is that a European charter is to be proclaimed on the basis of the draft document. The Cologne conclusions tell us that it is only then that consideration will be given to the question of whether and, if so, how the charter should be integrated into the treaties of the EU. In an ideal world, one would no doubt prefer to put the horse before the cart and resolve the issue of status first, before addressing the issues about content. But that is not the creature with which we have been presented. We must accept that and face up to the consequences.
There are two particular points that I would make in order to focus this issue for debate. The first is that, however much some may wish that the document should be accorded as little by way of status as possible—that it should be regarded, as the Minister indicated to us in his evidence, as a showcase of existing rights and nothing more than that—the reality is likely to be quite different. Even if there is no unanimity on the point, there will be those who will seek to elevate its status. They will be able to point to the composition of the Commission, which in itself gives it a certain kind of legitimacy, and to the fact that it will have been endorsed at the highest political level in the EU. "If you want to know what the rights are", it will be said, "you will find them in the charter." The charter will be seen as putting flesh on the bones of Article 6(2) of the EU treaty. As the noble Lord, Lord Goldsmith, said in his evidence to the committee, the charter is being drafted as if it could be a legally binding document. So we anticipate that it will not be long before it is used in conjunction with Article 6(2) of the EU Treaty, as if it were an exposition of the human rights principles enshrined in that article. Whatever else is done with the charter, the European Court of Justice will inevitably find itself being asked to use the document as source material to give content to these principles.
1853 The second point is that there are good reasons for thinking that it would be unsatisfactory for the charter to be no more than a showcase. There are at present significant gaps in the protection of the individual at EU level. These arise partly because the circumstances in which an individual can commence proceedings directly against an EU institution in the European Court of Justice are very limited, and partly because an EU measure can only be challenged on the ground that it contravenes the convention if it has been implemented at national level. There is also an increasingly significant gap in regard to the third pillar where, as a result of the Maastricht and Amsterdam Treaties, there is greater scope for EU actions and policies to affect the rights and freedoms of the individual. As we point out in our report, the EU now has powers to adopt a range of measures in the field of visa control and asylum and immigration policy which may give rise to human rights concerns. Provision has been made for closer co-operation between police and Customs officials to prevent and combat crime. At present, the jurisdiction of the European Court of Justice over these matters under the treaties is very limited. Furthermore, as the judgment of the Strasbourg court in February 1999 in Matthews v. United Kingdom about the exclusion of Gibraltar from direct elections to the European Parliament has shown, the fact that a member state has obligations under Community law cannot affect its liability for a breach of the convention. This indicates that there is already some instability within the existing system. What is needed to meet this difficulty is an EU charter that is inserted into the EU treaty, and thus made binding on all the bodies and institutions of the EU—not just in the Community pillar but in the second and third pillars also.
The committee suggests to the Government, notwithstanding what the Minister said to us in his evidence, that it would be better to take a more positive stance on this issue. The problem is that a showcase charter on the one hand and one that is justiciable on the other are two quite different concepts. We suggest that it should be recognised that the time has come for the provision of effective remedies for the infringement of existing rights at EU level. The charter provides an opportunity for this to be done which, we suggest, should be taken. At any rate, one cannot sensibly conclude the drafting process without having in view the use that is to be made of the document.
Connected to the issue of status is the question as to the relationship of the charter with the European Convention on Human Rights. Concern has been expressed about the possibility that different standards will emerge as a result of differences between the Community courts and the European Court of Human Rights in their interpretation of the rights expressed in the convention. The committee has recognised these concerns. They give rise to two particular recommendations.
The first is that great care needs to be exercised when the charter is being drafted not to create a divergence between its terms and the terms used by the convention. This is essential if we are to preserve legal 1854 certainty. The probability is, as I have said, that the charter will be treated in practice as much more than a mere showcase. That is why it is so important to argue from a position of strength about its content and its use of language in that context. The second recommendation is a more radical one, although it received strong support from our witnesses. Its importance is underlined by the fact that a consequence of making fundamental rights more visible is bound to be an increase in the number of cases in the Community courts that raise issues about these rights. That will increase the risk of a divergence between the jurisprudence of the Community courts and the European Court of Human Rights in Strasbourg, as the decisions of neither of these courts are binding on the other. There are various ways in which this problem might be addressed. But the best solution to the problem of inconsistency would be for the EU to accede to the ECHR. This is plainly a complex matter, both legally and politically. No doubt it is one for decision in another context than that which was envisaged at Cologne. The Portuguese presidency has put the matter on its list of possible subjects for the IGC. The committee urges the Government to support this initiative.
I turn now, more briefly, to the second main issue, which relates to the content of the charter. The committee did not see its task as being to comment on matters of detail. What we have sought to do instead is make some general points on matters of principle which we believe ought to be recognised before the draft is finalised. I do not need to go over all the details. They are set out in the report. But one of the matters to which we draw attention deserves to be specially mentioned.
As I have said, the Cologne conclusions made it clear that it was intended that the charter should deal with existing rights. As we in the committee understood the position, it was not intended to be a launching pad for new rights or competences. If the drafting work is faithful to this intention, its effect will be to make more visible the same rights and competences as we have now. But its reference to economic and social rights does create a difficulty. In practice relatively few economic and social rights are justiciable—that is, are capable of being interpreted and applied by the courts. If the charter is to include such rights, great care needs to be taken to ensure that their inclusion does not enlarge the competence of the EU or the Community by the back door. In the committee's view it would be impracticable to make such rights justiciable at EU level unless and until they had become generally recognised as such at national level. This suggests that the economic and social rights that are not justiciable should be put in a different chapter of the charter so that their status is made clear. In this respect we support the position that is adopted by Her Majesty's Government.
Other issues, such as the impact of the charter on enlargement, are discussed in the report. But the key issues are those about status and content. If the draftsmen were to give way to the temptation to build as much as possible into the document—particularly 1855 to include in it, contrary to the advice which the noble Lord, Lord Goldsmith, has quite rightly urged upon them, new rights and competencies and matters that are not yet justiciable—we shall be in difficulty. Not only would this be a departure from the original idea expressed at Cologne; it would also result in a missed opportunity if the document could not be agreed. That would make it impossible for us to do something useful to close the gaps that need to be closed if we are to restrict the activities of the institutions and bodies of the EU so that they too, as well as the member states, will know what the fundamental rights and freedoms are and will respect them in what they do.
But what this exercise has revealed, above all, is that the crucial step that has to be taken, if the gaps are to be closed and the uncertainties removed, is that of accession to the ECHR. That, as one of our witnesses has observed, is the most rational and transparent solution. As we say at the end of our report, it would secure the ECHR as the common code for Europe. We believe that the question of accession should be on the agenda for the IGC.
The Motion is that the House takes note of this report. I commend the report to the House.
Moved, That this House takes note of the Report of the European Union Committee on the EU Charter of Fundamental Rights (8th Report, HL Paper 67).— (Lord Hope of Craighead.)
§ 11.32 a.m.
§ Baroness Billingham
My Lords, I rise to make my maiden speech with well-placed trepidation. Alongside all the good advice from colleagues about House rules and procedures was the rider, "And for goodness sake choose a non-controversial topic for your maiden speech". My future flashed before my eyes as I looked at the list of speakers who were to follow me. Could there be a more polarised position or topic where consensus was less likely? My Lords, no. That is not the only howler I have managed in the few weeks that I have been here. On day two I sat on the wrong Bench—and not any old wrong Bench, which in my case could have been alongside noble Lords on the Liberal Democrat, Opposition or even the Cross Benches. I committed the ultimate faux pas—I almost said "cardinal sin"—by sitting on the Bishops' Bench. Worse, I was wearing this very jacket and so was even colour co-ordinated. Imagine if that had been caught on camera: "Synod sensation—outrage up and down the country".
Having put that behind me, I look forward to participating in the work of your Lordships' House, whose high reputation is well earned, especially the work of the European Union Committee. I readily confess to a sense of pride in being able to participate in this valued and valuable work. Today's debate illustrates that value and gives us the opportunity to raise the profile of human rights against the background of an excellent report.
Reading the report, I became increasingly impressed by the quality of the exchanges. As a Member of the European Parliament, where I served on the Economic 1856 and Monetary Committee and was Chief Whip for the Party of European Socialists, the reputation of the House of Lords Select Committee was legendary. The barrage of barristers, added to the other expert members of the committee, must have presented a pretty daunting panel to the impressive list of witnesses. I fear that had I been called before the committee I might have pleaded a headache and run.
The report comes just months before the 50 year-old European Convention on Human Rights is written into UK law. Not only is it timely, but it can underline and highlight the scope and value of those rights. The next IGC takes place in December in Nice. By then the draft charter will be drawn up. It gives us a unique opportunity to deepen and strengthen the culture of rights and responsibilities at all levels across the EU and to endorse our demand for universal human rights.
It is clear from a number of the witnesses, as well as from today's speakers, that there is a wide divergence of opinion on this subject. The polarisation between those who seek to make the charter mandatory is more than balanced by those who see it as a threat to the power of national government. To many in the latter camp, the very suggestion of a pan-European charter is anathema and stokes their Europhobia. Make no mistake: that view is not restricted to a marginalised minority; I even have some of it in my own family. How can I not when my daughter is married to the son of the marginally Eurosceptic honourable Member for Bolsover?
Those views must be taken on board along with the fears expressed by several of the witnesses that the charter would serve to confuse and complicate the existing European courts and competencies. Those fears can be allayed. Therefore, I concur with the opinion expressed in the report:There was general agreement among our witnesses that the position of the Council of Europe should not be undermined and that any weakening of the Strasbourg system would be detrimental to the protection of human rights across Europe".It is clear that legislation which produces legal uncertainty and potential conflicts between two courts is in no one's interest. But a clear and concise charter which is readily understood by all European citizens is long overdue. Of all the problems brought to me as an MEP, those based on legal confusion were by far the most difficult to handle. We had a host of time-share scams, some of which are still unresolved today, claims of unfair imprisonment and dozens of cases of individuals fighting for pension rights or simply payments from companies outside the UK. Many of these people were at their wits' end. In all those cases my offices in Northampton and Brussels spent months trying to unravel the problems.
For the average citizen, the whole issue of rights is an impenetrable maze. To go to an MEP is but one option; the Petitions Committee of the European Parliament and, of course, help from elected Members in the other place are also possibilities. But there is no blueprint. Imagine the joy in being able to look up on the Internet exactly what to do to find help. That is just one of the benefits that flow from the charter.
1857 I can do no better than quote the conclusion of the Select Committee's report:The potential significance of the Charter, both politically and legally, is very great".The proclaimed aim of the Cologne Summit is to produce a charter of fundamental rights of overriding importance and relevance to the Union's citizens. In this way, the fundamental rights applicable at Union level can be consolidated in the charter and thereby made more evident. From that it is perfectly clear that the charter will deal with existing rights, and is certainly not a blueprint for new EU competencies.
I see this as an opportunity to provide a charter which brings clarity and transparency to existing rights and a restatement of the EU's determination to uphold existing fundamental civil rights which support human dignity and oppose all types of discrimination and xenophobia. If that is achieved, it will indeed be a charter to cherish.
In conclusion, I thank the Officers of the House and the many colleagues who have eased my transition into your Lordships' House with such patience and friendliness. It has been a very happy experience.
§ 11.40 a.m.
§ Lord Lamont of Lerwick
My Lords, it is my great pleasure to congratulate on behalf of the whole House the noble Baroness, Lady Billingham, on her outstanding maiden speech. Having appeared with her on television and witnessed her charm and knowledge, I was in no doubt that it would be a great success. I enjoyed, as I know did the whole House, her story of sitting on the Bishops' Bench and it reminded me of the story in John Wells' book about the House. A noble Lord, I suppose Conservative, came in from the shires under force for the first time ever. He took one look at the Bishops' Bench, screamed, "Women!", left and was never seen again. However, I am sure that had the noble Baroness been sitting there he would have stayed.
The noble Baroness drew on her knowledge of the subject before us from her years in the European Parliament. I know that in a general election she contested Banbury for the Labour Party. Her speech today shows that the House of Commons' loss is our gain and we greatly look forward to hearing her in the future.
I should also like to congratulate the noble and learned Lord, Lord Hope, and the committee on their report. Even for those of us who have considerable reservations about the proposed charter, it is an extremely valuable document in clarifying the issues, which it does with great lucidity. I have read the whole report and find it an immensely careful and impressive document.
I hesitate to intervene in the debate because it is one in which many distinguished lawyers are to speak. I am sure that the House is looking forward to the speeches of the noble Lords, Lord Lester and Lord Goldsmith, in particular. However, it is important that the debate is not entirely taken up by lawyers. It is important that we non-lawyers should have our say. I should have 1858 preferred to have made my jarring speech perhaps after the lawyers rather than before them, but that is not how it has turned out.
The document makes clear beyond doubt that the EU has been involved in the subject of human rights for some time. The ECJ has consistently emphasised the particular significance it attaches to the European Convention on Human Rights. As the noble and learned Lord, Lord Hope, said, the founding treaties did not mention fundamental rights, but the Court of Justice has been the principal actor in identifying and articulating the content of such rights as binding on the communities. Successive treaty amendments have captured the essence of its jurisprudence without attempting to codify it.
The Maastricht and Amsterdam Treaties entrenched the concept of fundamental rights. The Amsterdam Treaty even introduced provisions with the potential to create new Community rights.
However, in paragraph 13, the report also makes it clear that the Luxembourg Court's assertion of human rights jurisdiction has been seen as a necessary expedient to ensure the supremacy of Community law. That has been one of the reasons it has been interested in human rights.
That the EU has been involved in human rights for some time does not of course itself make it right for the EU to extend its influence further in that field. That has been the whole problem with so many of the arguments about EU integration. At each stage, we are always told that the EU is already doing something and that therefore it should do more. That is not in itself an argument and it is what has got us into the political problem we have today in trying to decide what the EU is all about. Each step should be justified on its merits—and that means really justified on its merits, not simply saying, "We have been doing this already and therefore we should do more of it".
Human rights is one of those fig leaf phrases such as "social justice" or "people's democracy" which can be abused and is not always what it appears at first sight. Human rights has become something of an industry, and not just for lawyers.
The EU charter of fundamental rights is a high sounding idea which, if implemented, will under Article 13 give people the right to marry; under Article 5, the right not to be held in slavery; and even better, under Article 14, the freedom not just of thought but also of conscience. Those are lofty ideas.
Article 18, which gives the right of access to documents of the European Parliament, might be thought not to be in quite the same league. If I said I thought that was a right I could live without, I might be accused of flippancy—though perhaps I could legitimately wonder why access to the documents of the European Parliament is a right but access to the documents of national parliaments is not mentioned. Article 39, which gives the right to reconcile family and professional life, is an ideal easier to write down than to achieve.
1859 We have been assured that the charter is only about existing rights and not about new rights. But, if I may say so, there is something rather arrogant in the assumption that we can create new rights at the flick of our fingers and they will come into being.
The questions which must be asked are: are the existing fundamental rights really under attack in any meaningful way and will a charter of such highly generalised aspirations really increase the happiness of the citizens of this country? Will it really be of any practical use to the citizen?
We may be told that it is for the courts and the lawyers to decide whether it is of practical significance, but we are entitled to ask: what will the wider consequences be? By "consequences" I mean both the intended consequences and the unintended consequences which can not be foreseen. Some of the proposed articles are so vague one does not know how the courts will interpret them or where they will lead to. Article 1, relating to the dignity of the human person, states:The dignity of the human person must be respected and protected".Could that eventually be interpreted by the courts as powers and rights against abortion and the rights of the unborn child? No one can tell where these articles will lead or how they will be interpreted.
It is the case that signing the European Convention on Human Rights is already a condition of membership of the EU. All member states have signed it, so what is the point and the need to have yet another charter? The noble and learned Lord, Lord Hope, made the point that it is not just a repetition, a reiteration, of the rights contained in the convention. But at the same time he emphasised the need not to have a conflict between the two charters. That will be exceedingly difficult to avoid.
Is the charter really necessary? I notice that the Bar, by which is meant the Bar Council International Relations Committee, the Bar Human Rights Committee and the Bar European Group, was critical of the value of having another charter and believed that resources involved in producing this charter could have been employed on less glamorous projects. It concluded that,few independent commentators and few lawyers practising in the field would have put an EU charter of rights anywhere near the top of their list of useful initiatives for improving the effectiveness of human rights protection in the EU".There is the vexed question of the so-called "social rights" which has exercised many people and exercised the CBI. It is worried that Britain's new-found competitiveness has been achieved despite and not because of European legislation. I do not want to comment on that controversy; my views on the subject of social rights are predictable and I shall not weary the House with them. But how can one have rights in a charter where they are not justiciable? Can the vague social rights as they are written down really be justiciable?
1860 In justification of the charter, the report attempts to identify a juridical gap. It argues that there is at present a significant gap in that individuals are not fully protected against the misuse of power by EU institutions which breach the European Convention on Human Rights. Paragraph 128 states:The individual's ability to challenge the measure on fundamental rights grounds is more restricted where the measure is taken by an EU institution than it is where it has been taken by a national authority".Paragraph 131 states:If the decision in question is not addressed to that person, he or she can only institute proceedings",that is, against part of the EU,where the decision is of direct and individual concern to him or her".It is difficult for a non-lawyer to comment on the so-called "juridical gap". I cannot dispute the precise points. The question is: how significant are they? Incidentally, I heard the foreign minister of one country say that the charter would be binding only on the institutions of the European Union. Paragraph 148 of the report makes it perfectly clear that in its operation it is binding not only on the institutions on the European Union but also on national governments.
If the juridical gap is significant, surely there is another way of tackling it; that is, instead of having a charter of fundamental rights, there should be accession by the EU to the European Convention on Human Rights. Paragraph 141 of the report states:It can now be seen that accession would have significant advantages. Accession by the Union and Communities would render their institutions and activities subject to the same degree of supervision as those of the Member States".Surely that is a much better way of approaching the issue. Therefore, why are we not doing it in that way? Why are we not going down that road? We are not doing that because that is not what the politicians want. It is not grand enough architecture for them. This is a political document and its purpose is political. Mr Vaz, the Minister at the Foreign Office, made that clear when he appeared before the committee and before the committee of which I am a member. He emphasised that the purpose was visibility. He said:The Charter … will be one of the most important things that we have seen come out of the European Union in the last decade, because it will be the first time that there has been positive communication with ordinary people".Rights are to be derived from Europe. The rights that have evolved and been fought over and which have been part of our history are to be ascribed to the European Union. We are to be given cards telling us what our rights are: our right to marry and our right not to be held in slavery. When that is explained, it smacks more of propaganda than anything else and of insulting history.
There is another purpose in it. Mr Prodi and Mr Fischer have called it a "constitution" for the European Union. It was put particularly well by Andrew Duff, the Liberal Democrat MEP and rapporteur of the charter for the European 1861 Parliament, who recently gave evidence to a committee of which I am a member. He was a very thoughtful and worthwhile contributor to the debate. He said:It is part of the process of federalising the EU. The consequence of the charter installing … fundamental rights … is par: of the federalising process".That was his view.
We are told that the charter may be simply declaratory. However, that may not be so. The British Government may not get their own way on that. Even if it is only declaratory, it will still have a profound effect on the courts and there will still be scope for conflict between the ECHR and the ECJ. Therefore, I do not believe that the aspiration to have it merely as a declaration solves the problems.
I have two objections to what is proposed. First, I believe that the charter will ensure that the EU becomes less democratic and more judge-driven. It seems to me that many questions arise, such as the position of gays in the Armed Forces, the retirement age for men and women, the pension rights of homosexual couples and their rights under inheritance laws. Those subjects have attracted much attention. They are important questions; I do not doubt that. However, many of them concern matters on which political decisions should be made in this country. I believe that we could profitably remember the judgment of Abraham Lincoln when he said:The candid citizen must confess that if the policy of the government, on vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made — the people will have ceased to be their own rulers".And what goes for the American Supreme Court goes for the European Court of Justice.
My second reservation concerns the danger that fundamental freedoms, won over centuries, could be at risk in a vague, ill-defined effort to impose a unified system of law on Europe. We have had proposals on a European public prosecutor; we have had proposals relating to corpus juris, which appeared to threaten habeas corpus in a certain area. Of course, it is significant that the Charter of Fundamental Rights does not mention the right of habeas corpus. Why not? Because habeas corpus does not exist in Europe; it exists in England, America and countries which have our legal system.
I believe that we should be extremely careful before signing away more of our basic rights to courts in Europe. British law is not based on a fixed code, as in continental systems; it is law that has grown out of the reality of cases and has been able to adjust and change with the times. It is when one begins to write things down that one perhaps sees the wisdom of not writing them down; the wisdom of not having a written constitution rather than having such a constitution. We have a system which has served us well, and all people of all political parties should fight hard to protect it. We should think most carefully before we go down the road of endorsing this Charter of Fundamental Rights.
§ 11.55 a.m.
§ Lord Lester of Herne Hill
My Lords, the House has abandoned the custom whereby each of us congratulates a maiden speaker. Nevertheless, I cannot resist congratulating the noble Baroness, Lady Billingham, on an excellent maiden speech. It is marvellous to have an experienced parliamentarian of good humour, as she is, contributing to our work. Perhaps I may also say that she will never be intimidated by a barrage of barristers or a conclave of clerics. But if ever she comes to these Benches, she will be most welcome.
It is a great privilege and pleasure to serve on the subcommittee that produced this report, especially under the wise, skilful and hard-working chairman, the noble and learned Lord, Lord Hope of Craighead. He manages to combine great learning, practical common sense and the rare ability to get the best from members of the sub-committee and the witnesses. I also pay tribute to the legal advisers to the sub-committee, Dr Christopher Kerse and Leigh Gibson, who made a major contribution to what I believe is a great state paper, the contents of which will be studied across Europe. I can say that as I did not write a word of it myself. As the noble and learned Lord said, the cogency of the report was enhanced also by the quality of those who gave evidence.
The noble and learned Lord, Lord Hope, explained the issues very clearly. I shall simply highlight some of the main points while trying to avoid repetition, and answer some of the points made by the noble Lord, Lord Lamont of Lerwick.
The first point that we emphasised was that the proposed charter is not purely a clerical exercise; nor is it an academic exercise in jurisprudence. The complex legal, political and constitutional issues go to the heart of the debate about the nature and future of Europe. The differing visions (and in some cases nightmares) about the Union colour the debate. However, despite the differing political traditions and values represented on our sub-committee, it is striking that we were unanimous in our conclusions and recommendations, and that should give cogency to them.
The charter exercise presents a major opportunity to give more effective protection to the individual in relation to the activities of the EU's institutions. As the noble and learned Lord said, there is a significant it gap in existing protection against the misuse of power by EU institutions in breach of the European Convention on Human Rights. The individual's ability to challenge a measure as breaching his fundamental rights is more restricted when the measure is taken by an EU institution than when it is taken by a national authority. Surely all noble Lords would wish to give effective protection to the rights of the individual against the misuse of EU powers. That is not a question of extending EU competence; it is a question of limiting EU competence under the European rule of law.
The central aim of the charter is, or should be, to ensure that the institutions and bodies serving the EU are more clearly bound to observe the requirements of 1863 the convention—as are national legislatures, national governments and national courts. That is surely an aim on which all noble Lords should be able to agree.
The objections raised by the noble Lord, Lord Lamont, are at their heart really objections to the European Convention on Human Rights itself. They are objections that were voiced within the Cabinet of the Attlee government in 1949–50, in the face of Winston Churchill; David Maxwell Fyfe, later Lord Kilmuir; the late head of my chambers, Sir John Foster; the great Conservative European movement of the time, which, with its Liberal allies, was advocating the creation of a European convention on human rights.
It was the British socialists above all at that time who spoke in exactly the same way as does the noble Lord, Lord Lamont, now, and as I suspect the noble Lord, Lord Bruce of Donington, will shortly in this debate. The Attlee government inveighed against the vague and woolly rights to be included in the European convention. They disliked the idea that judges would be given power to decide what they regarded as political questions. They were against an international or European jurisdiction and were worried about the diminution of their powers.
It is excellent that that outdated, outmoded view is not at all the view of the Labour Party and the present Government. Indeed, it is not the view of a substantial part of the Conservative Party or of any part of the Liberal Democrats. Surely there is widespread agreement now that the European convention system has been a great success, that it is excellent that we have made the convention rights directly effective in our courts to relieve the over-burdened European Court of Human Rights. To the extent that there is an attack of that kind on the European charter, it is misplaced. The reality is that the convention system needs to be made to work better, and that includes limiting the powers of the EU institutions and their officials where they breach our basic rights and freedoms.
The noble Lord also referred to habeas corpus, that great British invention. I have news for him. Habeas corpus — which Dicey thought was worth a hundred written constitutions or Bills of Rights, proved fairly worthless in a number of British cases, since all that the authority had to do was to show a lawful excuse for the detention and the judges had to bow down. I am delighted to see the noble and learned Lord, Lord Wilberforce, in his place. It was he and his fellow Law Lords who in a great case, Khawaja, were influenced by Article 5 of the European Convention on Human Rights—the European writ of habeas corpus, since it guarantees the right to liberty—and refreshed the tired old English writ of habeas corpus by modelling it much more on the European writ of habeas corpus in Article 5. European law came to the rescue of inadequate English law, if I may say so without causing cardiac arrest in some parts of the House. Therefore, we have a good deal to thank the European system for as well as making a great contribution to it.
1864 I have said what the central aim of the charter ought to be. There are two ways of meeting that aim, as we point out in the report: either accession of the European Communities and European Union to the convention or incorporation of the convention verbatim into the treaties. Because of the risk of conflict between two European courts, in Strasbourg and Luxembourg, we believe that the better way is accession, as, I think, does the noble Lord, Lord Lamont. Accession is a crucial step if the gap in protection is to be closed. The question of accession is one for the Inter-Governmental Conference, and we urge the Government to support the inclusion of this topic on the IGC's agenda. We very much hope that the noble Baroness the Minister will be able to indicate that the Government have accepted that central recommendation to put it on the agenda.
We also recommend in the report that the charter should include the rights proposed to be added to the convention by the various protocols, in particular the non-discrimination provisions in draft protocol 12. We explain that the convention is the benchmark standard of human rights protection in Europe, which should be reflected in the charter. We emphasise as strongly as we can the need to avoid paraphrasing or rewording the convention, pointing out that rewording the convention rights would run the risk of confusion, as it would open the door to reinterpretation of the convention based on the new wording. It would confuse and mislead.
We also emphasise that the question of EU accession to the convention, and the question of the content and status of the charter, should not detract from other pressing matters, such as persuading all member states to sign up to the existing protocols, and the very important matter, to which we give a glancing reference, of securing the independence of the judges sitting on the Strasbourg court and generally making that over-burdened court work better.
The need to secure the independence of the Strasbourg judges is not well served by the current system for their election by the parliamentary assembly, after nomination by their own governments, with tenure guaranteed for only three years for half of them and for only six years for the other half. That does not satisfy the minimum requirements, and it may encourage some governments to refuse to renominate judges of whose judgments they disapprove. There is an unsatisfactory screening process conducted by the parliamentary assembly which weakens the safeguards of judicial independence.
The noble and learned Lord, Lord Hope, pointed to the lack of sufficient judicial protection under the third pillar of EU actions and policies impinging on human rights. We also indicate the importance of legal certainty. I respectfully agree with what has been said about economic and social rights. They are not justiciable. They cover matters to which the other two branches of government, the legislative and executive branches, should have regard in discharging their obligations, and it would create an unholy mess if they were to be included in the same document as though they were legally enforceable.
1865 The most immediate external impact of the charter will be on the candidate countries involved in the current enlargement process. For their citizens, only recently liberated from totalitarian rule under the Soviet empire, the convention was held up as a beacon of hope for their freedom by great conservatives, particularly by Maxwell Fyfe in a great speech, and by other western European leaders throughout the decades of the Cold War. We emphasise that the charter should avoid the creation of two levels of protection in Europe, one within and one without the Union. Nothing should detract from securing, in all the candidate states, the enjoyment of the fundamental rights enshrined in the convention.
The practical benefits of filling the existing gap in protection risk being lost because of ill-informed political and press debate lacking in understanding of the nature of the gap and the practical ways of enhancing legal protection. The problems are aggravated by a lack of consensus about the legal status of the charter or its relationship to the convention.
On the one hand, there are zealots—of which I am not one—who would make the charter a cornucopia overflowing with economic, social and cultural rights, as well as civil and political rights, well-recognised rights but also newly-fashioned rights. Those zealots have no clear view of how the rights will be translated into practical reality. They would do well to heed the view of the comité des sages, of which my noble friend Lady Williams of Crosby was a distinguished member, which warned that there must be a continuing dialogue between the European institutions and the bodies representative of Europe's citizens to establish any new list of social and civil rights for the new millennium. Anything less would be undemocratic and counterproductive.
On the other hand, there are the other kind of zealots, often xenophobic zealots, who, quite sincerely, are concerned about preserving state sovereignty against what they see as a plot by the European institutions to run our lives.
They are surely equally mistaken. The main aim of the charter is or should be to protect the people of Europe against the misuse of power given to European institutions by the governments of the member states.
Then there are those who see the charter merely as an exercise in political rhetoric or as a showcase for existing rights. They run the risk of raising expectations that the charter will increase the effective European protection of human rights while being unwilling to will the necessary means of attaining that objective.
We observe in paragraph 127 of our report that the Government should take a more positive stance. The Government's present line, we think, runs the risk of appearing to be extremely negative when it comes to the practical protection of the individual against the 1866 infringement of rights by the EU institutions. We very much hope that the Minister's reply to this debate will be able to be much more positive today.
§ Lord Monson
My Lords, before the noble Lord sits down, will he justify his use of the word "xenophobic" to describe people who wish to retain national sovereignty? Whom do they hate?
§ Lord Lester of Herne Hill
My Lords, of course, there are two different strands of thinking among the Little Englander party or the Little Scotlander party. One strand is the straight states rights strand, which is worried about federalism. Another strand regards anything which is not distinctively English as, of itself, likely to be inferior and, therefore, distrusts a European Court, European principles, the European charter and European law. Those two strands often merge in the same group but sometimes they are separate. They are passionately and sincerely held views with which I respectfully disagree.
§ Lord Pearson of Rannoch
My Lords, before the noble Lord sits down, when he uses the word "xenophobe", does he include someone who believes that the forced and possibly premature conglomeration of disparate nations in Europe may lead to conflict, whereas a free trading association of democratic states is less likely to lead to conflict? I would just like to get it straight. Is one a xenophobe if that is what one believes? What is the noble Lord's definition of that word "xenophobe"?
§ Lord Lester of Herne Hill
My Lords, the concept of xenophobia does not include somebody who takes a different view from someone else about the machinery for the good government of Europe or of this country. That is not xenophobia at all. But a xenophobe or a Europhobe is somebody who believes that the British, or the English, as the case may be, are uniquely and innately superior to lesser breeds beyond English law who operate in the rest of Europe.
§ 12.12 p.m.
§ Lord Plant of Highfield
My Lords, first, perhaps I may say how privileged I felt to be a member of this committee, chaired so brilliantly by the noble and learned Lord, Lord Hope of Craighead. In particular, I pay tribute to the legal assistants and legal clerk who helped me to understand the extremely complicated legal consequences of the idea of the European Union becoming a signatory to the European Convention on Human Rights. To sit among what was, in the striking phrase of the noble Baroness, Lady Billingham, a "barrage of barristers" was certainly a mind-stretching experience for someone whose academic trade has been very different.
It seems to me that the present initiative which we are discussing today is desirable and inevitable. I reached that conclusion somewhat reluctantly, but I think that it is true.
First, the European Union is not and could not be just an economic entity, certainly not since the single market. There are several reasons for that. First, there 1867 is the general point that markets must be embedded in institutional frameworks and that failure to attend to the link between markets and strong institutional structures has caused major problems; for example, in the attempt to turn Russia into a market economy. We must always bear in mind the relationship between markets and the wider institutional setting within which they operate and on whose legitimacy they draw.
Secondly, a single market will require robust institutions to ensure a level playing field for market transactions within that single market. So given that increasing range of competence for EU institutions, it seems extremely important to me that individual rights should be protected against the exercise of power by those EU institutions, both when they are acting directly and when member states are implementing EU policy.
A central theme of writing about the nature of markets and, indeed, capitalism has been that the rule of law is absolutely critical to markets. I agree with the noble Lord, Lord Lester, that for a single market, we need a European rule of law in relation to the inevitable exercise of power by European institutions. Part of that rule of law must be the protection of the personal freedom of individuals. That seems to me to be on all fours with the liberal democratic—in the lower case sense of that term—understanding of the nature of the rule of law. That is the liberal democratic ideal of the rule of law.
The proposed charter is one way of making sure that the European institutions operate with the same respect for human rights as member states, when acting in a wholly domestic capacity, act in respect of the ECHR. There is almost a Groucho Marx kind of issue in relation to the European Union and the ECHR in that member states must accede to the ECHR while the Union to which they are acceding does not. That is paradoxical. I shall return to that point.
The European Union cannot be, and is not, only an economic unit. So it can be argued that a set of basic values must be asserted as being foundational to its institutional identity and, indeed, its institutional legitimacy.
That is particularly important in two contexts: the first is enlargement; and the other is in relation to existing member states—for example, as regards the situation in Austria at the moment. If the EU is not only an economic entity, the test of membership cannot be only the economic one of preserving a liberal market order but also a respect for the basic legal and constitutional identity of the European Union itself. So it seems to me that there must be a set of basic values.
That is not something new. It is not something which has been discovered in the past year or two. As the report makes clear on pages 7 and 8, there were references to values even in the European Coal and Steel Community documents, in the Treaty of Rome, in the preamble to the Single European Act of 1987, and in Article 6 of the European Union Treaty so that 1868 fundamental rights and freedoms would be protected. So it seems to me that there is a basis of values here which must exist for institutions of this size, robustness and complexity to work properly. The charter is an attempt to articulate, to spell out and to make more concrete what those values may mean.
Having said that, there are obviously different views about the best way of handling the question of how those values might be articulated and developed in a charter. I am sure that the noble Lord, Lord Lamont, is absolutely right to say that that is as much a political as a jurisprudential matter. I do not believe that the exercise in which the Cologne council is engaged can simply be a matter of tracking and showcasing the rights that we already have under the EU treaties or EU documents.
There are three reasons for that. First, there is the vexed question of social and economic rights. That is quite a good example of why it cannot be just a jurisprudential matter. As mentioned by several noble Lords, social and economic rights may not be justiciable. I am not sure how we know which are and which are not, antecedently of a justiciable process being undertaken; nevertheless it is argued by some—I do not believe this myself, but I shall not detain the House with my quirky views—that there is a categorical difference between civil and political rights, on the one hand, and social and economic rights, on the other, in terms of their justiciability.
It seems to me that if there is a right to the protection of civil and political rights, the protection of civil and political rights runs up against exactly the same sort of resource constraints and the need for rationing and fair distribution of resources as is true of social and economic rights.
My point is that there is a political issue about how far to incorporate social and economic rights. It is not just a jurisprudential matter. Of course, those political judgments will be informed, as the noble Lord, Lord Lamont, said, by considerations about global competitiveness, and so forth, rather than just theoretical arguments about justiciability. So it cannot be simply that we are tracking existing rights; there are political issues that have to be resolved.
In listening to the evidence over the weeks in which we were involved in this process, the idea of tracking or showcasing rights that are somehow there seems quite difficult because some of those who gave evidence appeared to be a bit vague about where "there" was. There are different documents, different protocols, different treaties, and different aspects of the jurisprudence of the European Court of Justice. It was not clear what one was tracking. To a non-expert in this area, the range of matters seemed to be ambiguous.
The decision about what has to be at the core of the charter has to be a political one and not just a matter of tracking a set of already latent lights, as it were. Because of such political complexities and complications, I believe, at least at this stage of the evolution of the European Union, that it is best to stick as closely as possible to the European Convention on 1869 Human Rights. That is likely to be the least politically controversial. If social and economic rights are to be recognised or represented, they should be represented in a different document. As I said earlier, that is slightly counter-cultural or counter-intuitive from my point of view, as I do not believe that there is a vast asymmetry between rights. However, in terms of politics, I believe that there is a good case for putting social and economic rights in a separate charter.
Essentially, my argument about the centrality of the ECHR is a political one, and not a jurisprudential one. First, keeping to the ECHR would lead perhaps to the highest degree of consensus because it has been incorporated by member states. That is the Groucho Marx point that I made earlier. Secondly, subject to one or two conditions that I shall mention, it should create greater legal certainty than having a different set of European Union rights set out in a different convention or charter. Thirdly—in a sense, this is a point made by the noble Lord, Lord Lamont—constitutions, like markets, do not exist in a vacuum. There is a danger in running too far ahead of public opinion and public confidence. We have to go over this slowly and surely. People in Europe and in this country are more familiar with the European convention and there are dangers in going way beyond that.
There is also the serious point made in the report that the more widely the rights are drawn and the vaguer they are, the more chance there is that the competence of the institutions of the European Union will be increased indirectly or by the back door. Whether the competence should be increased should be a matter of political negotiation and not of legal and judicial pronouncement or decision.
In terms of trying to stick closely to the European convention, there are three possibilities: first, direct accession; secondly, verbatim incorporation of the convention into an amended treaty; or thirdly, a new charter that would, nevertheless, stick as closely as possible to the text of the European convention. There are major dangers in trying to stick fairly closely, but not absolutely, to the ECHR.
In his evidence, Andrew Duff, talked about having a précis or a paraphrase of the convention. I believe that would be a terribly bad idea. We must keep as closely as possible to it. I fully support the judgment made in the recommendations of the report that we should look to accession as the neatest and most legitimate matter. I hope that the Minister will inform the House of the Government's attitude.
Any conception or theory of rights has to meet four conditions: it has to identify who are the bearers of the rights; against whom are the rights held; what is the right a right to; and in virtue of what does the bearer of the right hold that right. The document that we have produced answers all those points.
One point that has not been mentioned is whether the beneficiaries of the rights should be citizens of the European Union or people who are resident or just happen to be in the European Union. Page 38 of the 1870 report contains some wise words on that matter. It states that rights should be guaranteed for people in the Union, but goes on to say that,we recognise that in respect of certain categories of rights, in particular those essential to the current notion of EU citizenship under the Treaties (such as the right to vote and stand as a candidate at elections for the European Parliament), it may be appropriate to make clear that these rights only apply to those 'citizens'".Who is to be a beneficiary is an important issue. I agree strongly with the proposal in the report. It is a political issue and not a jurisprudential one. I believe that we need some political guidance on how we proceed.
§ 12.28 p.m.
§ Lord Shore of Stepney
My Lords, I congratulate the noble Baroness, Lady Billingham, on her most courageous speech. Controversy has surrounded the generality of this issue. The report has been put together by a most learned den of lions which included, no less, a learned judge as the chairman, six QCs, three professors of related subjects of government and only one other person who matches the noble Baroness in courage, her colleague and mine, the noble Baroness, Lady Goudie, who is no more than a humble citizen among that tremendous company. That is courage indeed. I congratulate the noble Baroness, Lady Billingham, and look forward to hearing from her again.
I regret having to speak before having had the chance to hear the noble Lords, Lord Bowness and Lord Goldsmith, as they have been directly associated with this proposal. My noble friend Lord Goldsmith is the Prime Minister's chosen man to represent all our rights and to ensure that they are not jeopardised by any developments in Europe. That is a grave responsibility and too heavy for any two peers and two Members of Parliament to bear.
We must contain our excitement about this report, as it is clearly an interim proposal. We do not yet know what the charter will contain. We have a pretty good idea. No fewer than 50 proposals have been put forward, but they could change quite radically before being put up for approval by the European Council. Moreover, we do not know what the report's status is.
I decided not to make a long speech, largely because the noble Lord, Lord Lamont, has put the case with great moderation and outstanding force for proceeding carefully and with considerable reserve. However, I nearly changed my mind when I heard the noble Lord, Lord Lester. Several of his comments seemed to be a caricature of the arrogant Europhile, pouring scorn on the history and institutions of his own country. But then I realised he was only spoofing, and pulling our legs. It was just a tease, so we can, after all, move on.
I do not for a moment believe that, as the Minister, Mr Keith Vaz, says, this charter is merely a showcase for existing rights or an index of rights already accumulated. Why would so many high-powered people have been involved? With respect, it was naive of the committee to have looked simply at the two 1871 paragraphs in the Cologne presidential conclusions relating to that. Have we no knowledge, background or history to inform us? Is it just coincidence that all this arose during the German presidency, that it was the Cologne summit, that it was a German proposal or that the German Foreign Minister is an open, declared, passionate federalist? That is highly relevant.
The other great partner in these affairs does not perhaps wholly dominate but has a powerful influence, as well we know. I refer to France. I am surprised that no mention has yet been made of the French position. We have been greatly helped in this matter by a speech made on 26th April by the Minister's opposite number, a Mr Moscovici. That is an unusual name for a French Minister. The points he made are absolutely relevant and of great importance. They were politically motivated. For the French, the social provisions that go beyond the remit of the European Commission on Human Rights and the convention are important. They embrace a vast new area of social and environmental policy. The charter will give greater force to what I think they call the European form of contemporary capitalism. I understand that that is not wholly endorsed by my noble friends in Government, who like to adopt a rather different approach. To the French all this matters enormously and has been brought within the remit of this charter.
The French are still a bit uncertain as to whether they should go along with the Germans and argue for treaty status. The French are subtle and realise that there will be quite an argument. But they would like to have two stages. They think that after the first stage, with all its declaratory force, they can come back at the second stage and obtain treaty status. The charter was drafted under the chairmanship of the former German president, with the intention of it being turned easily into a treaty. That could not be much clearer. The French Minister says:Finally, let's be realistic, the Court of Justice of the European Communities can already draw on the principle contained in the ECHR when it establishes its case law. In fact, pursuant to Article 6(2) of the EU Treaty, 'the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms', and the EC Court of Justice ensures that they are respected".That makes the matter pretty clear. The charter merely reinforces what is already virtually there. That will do for the French. They are not without influence in these matters, particularly when they are working with their German partners.
The noble Lord, Lord Lamont, commented on several of the rights, but some of them are absolutely bizarre. Article 35 refers to a right for rest periods and annual leave. That is a fundamental human right! How trivial can you get. Article 39 is a lovely one: the right to reconcile family and professional life. That does take a lot of working out, but it must be left to the practice and judgment of ordinary men and women.
What will be the practical effect of this report? It is bound to give greater authority, in the broad sense, to all the proposals that will forward the European integrationist project, particularly in the vast area of 1872 anti-discrimination. It will justify the Commission introducing a spate of new directives to prevent discrimination on grounds of race—we are well ahead of it in that regard—gender, sexual practice and behaviour. There is no end to it, including the nonsense of interfering with the Armed Forces so that rank and file soldiers can take legal action against their officers outside the court martial system. I find that kind of juvenilia incredible.
My last point perhaps follows on from those examples, and here I disagree with the noble Lord, Lord Lamont. I do not believe that the solution is for the European Union to sign the 1950 European Court of Human Rights Convention. I remember that convention well. I remember why the British took the lead in setting it up and persuading others to agree it in post-war Europe. We were determined to ensure that, should anything like the ghastliness of the fascist and Nazi regimes reappear in western Europe, there would be a public place and voice for those who were being persecuted by them and those who were dissident from them. They would be able to have their day in court internationally, with the backing of decent men and women who in their own governments were following practices which we would generally accept as being right and proper. We have ended up not with those great principles being defended but with the trivia of interventions of the most juvenile kind.
My conclusion is certainly not that the European Union should sign up to the ECHR but rather that we should oppose it and propose instead a radical review of the ECHR and its conventions. We can then bring it up to date and make it something which we can again respect.
§ 12.42 p.m.
My Lords, it was an unexpected pleasure for me and it has been a privilege to be one of the two United Kingdom representatives to the convention. Noble Lords will understand after this morning's debate that, when asked, I say that I am a representative "from" the House of Lords and I do not presume to try and be a representative "of the House of Lords. Nevertheless, I can say to the noble and learned Lord, Lord Hope of Craighead, the chairman of the committee, that his report has already been mentioned by the UK representatives in the proceedings of the convention. Members of your Lordships' House will not be surprised to know that many members from other member states are already aware of its contents and appreciate its value.
There are two members of the United Kingdom Parliament in the convention. The other place is represented by Mr Win Griffiths. And I am grateful to the noble Baroness, Lady Howells of St Davids, who stands as my alternate in the event of my not being able to go to Brussels.
When I read the committee's report, two thoughts rushed into my head; a third came this morning when I recalled the noble Baroness, Lady Billingham, saying that I could claim a headache rather than give evidence. First, I wished I had had the report at the 1873 time I gave evidence. It might have been a more worthwhile experience for the committee and less gruelling for me, though I thank the chairman and the committee for their courtesy. Secondly, I wished I had had the report and its clear statement of the issues when the convention started its work.
The convention and its composition is set out in the report of the committee and I do not propose to go through that in detail. It is surprising that the United Kingdom press caught up with the convention rather belatedly, bearing in mind that it has been sitting since December. It was originally referred to by the Council of Ministers as "the body". Some members felt that that was somewhat unglamorous and chose to rename it "the convention".
As the report makes clear, the convention is to present a draft charter to the European Council prior to its meeting in Nice. The council then proposes to make a joint proclamation with the Parliament and Commission of the document as the European Union Charter of Fundamental Rights. That timetable seems to have speeded up as we have gone through the process, with the request that there be a draft ready for the Feira meeting, though there was little of settled substance that could be taken to that meeting.
I should like to emphasise that if and how the charter is to be integrated into the treaties is not a decision for the members of the convention. The members of the convention are charged by the Cologne and Tampere decisions to do a job. Whether or not we would have started from here is irrelevant. But the charter, if drafted, needs to be in a form which will enable it to be incorporated in the treaties if the European Council decides so to do.
It has been suggested that the convention is a political process. I do not demur from that. Nevertheless, it is worth pointing out that the convention chairman is Mr Herzog, a former president of the Federal Republic of Germany and a former president of its constitutional court. The members, whilst they come from political institutions, include many academic lawyers, former ministers, former prime ministers and two former secretaries-general of the Council of Europe. I must say to my noble friend Lord Lamont that it is coincidental that I am a lawyer; I go as a representative from the United Kingdom Parliament. So I accept the charge, if charge it be, that the discussions have a political element.
It surprised me that, when the press chose to report on the convention, it did so as though it had just discovered what was going on. It is worth reminding ourselves that all the papers and the submissions have been available on the Internet to anyone who wished to look. An open hearing was held at which many different representative organisations gave evidence. The applicant states are being heard next week in Brussels. Some who wished to have their views heard put their submissions directly on the website. Reference has already been made to the submission of the Bar Council of England and Wales. It gave a telling presentation pointing out the possible clashes of jurisdiction and conflict between the European charter and existing conventions.
1874 A great variety of organisations, including, not surprisingly, those concerned principally with human rights and the removal of discrimination, religious groups, the press, radio, television, property-owning interests, commercial interests, employers and employees all gave evidence. They all had strongly-held views as to what should be contained in the charter. I believe that many will be disappointed because the charter must not and should not be drafted in such a way as to raise false hopes. Inevitably those who take a somewhat antagonistic view towards the work of the European Union will describe the process as one set up to draft a constitution for a United States of Europe. But even if some members of the convention see it as a first step in that direction, it is far from the general view. Parliamentarians from other countries have no wish to infringe or subordinate the provisions of the constitutions of their own member states.
The majority, while recognising the desirability of ensuring the recognition of existing fundamental rights by the European institutions, recognise the very real risks that may arise from a charter which, if incorporated into the treaties, would possibly be interpreted by the European Court of Justice in a manner different from the established jurisprudence of the Strasbourg Court.
Whether to include economic and social rights raises difficult questions. Indeed, are they truly fundamental rights when compared with the right to life and dignity of the individual? As the noble Lord, Lord Plant of Highfield, said earlier, there is a large political dimension to the question. Members of the convention may share the aspirations implicit in the social and economic rights, but there are serious political differences as to how those aspirations are to be achieved and, therefore, details of delivery are a matter for the member states whose traditions in these matters vary greatly. Even members with generally similar political views from different member states have different views, depending on the traditions of their own member state, as to how these matters should be dealt with.
The noble Lord, Lord Goldsmith, the British Government's representative, has argued consistently, persistently, persuasively and, on occasions, I believe some of his colleagues would have said, even valiantly to ensure that the draft charter avoids the extension of any competence for the European Union and any conflict between the existing convention and the treaties.
Members' concerns about the charter being used to extend the power of the European Union are putting their faith in what are described as the "horizontal articles", which seek to limit the application of the charter to the European institutions and the member states when implementing Union legislation. The question is: will they do the job? In parenthesis, I should just like to point out to your Lordships that the business of the convention is an interesting one to observe in that, unlike most bodies within the United Kingdom, there is no one to advise the body itself. Of course, the noble Lord, Lord Goldsmith, has his 1875 advisers, as do other representatives. But everyone comes from a particular point of view and there is no "one set" of individuals to give an opinion to the body as a whole. Indeed, supporters of the charter acknowledge the potential for problems, even if the charter remains declaratory. Legal experts have acknowledged that even a declaratory charter could have a potential effect.
Many of those questions could be overcome if the EU signed the existing convention—the solution put forward not only by the committee of your Lordships' House but also, I believe, by the European Committee in the other place. But I repeat: it is not for the convention to decide whether the charter should be incorporated into the treaty. That will be a matter for the European Council. However, because that prospect exists, I believe that the convention has a responsibility to get it into a form that is acceptable to the governments and the parliaments of member states. It will be an important re-statement of fundamental principles that guide the Union. That message needs to be clear to the citizens and to those who aspire to citizenship.
I have to tell my noble friend Lord Lamont that I believe that the EU is not a mere market-place; it was not meant to be and it should not be. Nevertheless, accession by applicant states should not be made more difficult by the inclusion in the charter of what might be unattainable economic and social rights. It is obvious from the convention and proceedings that belief in the concept of a European Union (although not necessarily a federal state of Europe on the model of the USA) based on a common set of values—peace and prosperity—is as alive today as it ever was. I know that some will dismiss the convention and its workings as an irrelevance. But others, both inside and outside the convention, while sharing many of the concerns, wish to make it a workable reality. They are too numerous to write off as people living in the past with an outdated view of Europe. To stand aside completely from the process would be a grave political mistake, and not understood by our partners.
Within the convention the practical and political problems are being seriously discussed. Those of us who move among the members of the European Parliament and the national parliamentarians, know that there is no evidence of any continental conspiracy to subvert the constitution of the United Kingdom. The manic ravings of the Sun newspaper, obsessed with German plots (with or without the assistance of the French), do not assist in the holding of a rational debate. Unfortunately, more serious commentators are now suggesting that the current draft has settled the matter. There is much more discussion to come and, probably, at least another draft in the light of that discussion. The process if far from over. There are nearly 800 pages of amendments to the first draft and we are nowhere near a conclusion, or a final draft.
I submit that there is a need for the fundamental rights of European citizens and those living within its boundaries to be more visible, for the Union institutions to be bound by those rights and for the 1876 charter to be such and give expression to the ideals of liberty, democracy, respect for human rights, fundamental freedoms and the rule of law upon which the Union is founded. The report of the committee, chaired by the noble and learned Lord, Lord Hope of Craighead, is a valuable contribution to the serious debate that should take place on such serious issues.
§ Lord Lea of Crondall
My Lords, before the noble Lord sits down, perhaps he will comment on the fact that this is a remarkable innovation as regards the relationships between parliaments around the EU and the creation of a report to the summit in Portugal and then in Nice. Can the noble Lord give us a little more insight into two aspects of that situation? We are very happily in a position today to be able give some feedback to our colleagues here because we have representation of this House and, indeed, of another place, on the convention—I have the noble Lord in mind, and my noble friend Lord Goldsmith. As I said, is it not a remarkable innovation? But do other parliaments come to that convention with a more concrete remit? I believe that that question will have some resonance in the future because this is an interesting development and one upon which we must keep a steady eye. Can the noble Lord comment on whether or not we need more systematic feedback? Indeed, I believe that the noble Lord, Lord Tordoff, has already raised this matter.
My Lords, with the leave of the House, I can say that I believe it is a unique arrangement. I understand that this is the first occasion upon which national parliaments have been involved in such proceedings. I have heard criticism on many occasions that national parliaments are ignored. But whatever the shortcomings of this particular procedure may be, I should have thought that the principle here is one that would be welcomed. I do not seek to pretend that these arrangements are ideal; indeed, I am but their servant and have been asked to do a particular job. I was not responsible for establishing them. Such questions need to be directed elsewhere. However, it is a valuable change that national parliaments should be included in this way.
The position of those from other national parliaments is very varied. My understanding is that some members are freer to express a view and adopt a position than others. Some members of some national parliaments seem to be mandated rather than representative members.
Clearly time has been a problem in this instance. Noble Lords will appreciate that the first meeting took place in December. I did not give evidence to the committee chaired by the noble and learned Lord, Lord Hope of Craighead, until the New Year. We are debating its report in June of this year. There is a programme of 18 meetings, each spread over about two days, the majority of which have already taken place. It has not been easy to discuss before the whole House in Parliament what has occurred. In future a different process might be more advantageous for all concerned.
§ 1 p.m.
§ Lord Goldsmith
My Lords, I welcome the fact that in recent weeks there has been for the first time significant public interest in, and debate on, this topic. I do not welcome all of that comment, some of which has been ill informed and unbalanced. For that reason, as the representative of the Prime Minister on the body we are discussing—I declare that interest—I join enthusiastically with other noble Lords in thanking the noble and learned Lord, Lord Hope of Craighead, for initiating this debate which enables us to debate at a timely moment in a more informed and thoughtful way the implications of this important document.
I also join in expressing respectful admiration for the lucidity and clarity of the report of the committee of your Lordships' House under the chairmanship of the noble and learned Lord. As one would expect, it examines the issues in clear and even terms and without preconceived notion or prejudice. I also declare an interest as the co-chairman of an international human rights organisation, the Human Rights Institute of the IBA, and as a practising barrister. In her maiden speech my noble friend Lady Bellingham referred to "a barrage of barristers". I appreciate that collective noun. I have heard far less kind versions, of which perhaps the only one I would mention within the confines of your Lordships' House is the far less admirable term "a confusion of barristers".
The first matter on which I should like to touch is the nature of the exercise: what is the charter for and what will it do? The charge has been made against the charter that its purpose is to enlarge the power of Brussels and that it will create new rights, which will either damage the competitiveness of British business, or take away rights and liberties of the British people. One newspaper mentioned giving more power to decide our rights to the unaccountable foreign judges in Brussels. The vision is painted of a wide accretion to the powers of the European Union. I believe that that is a false picture and one that should be dispelled. Your Lordships' committee did not see that as the purpose of the exercise. It wisely counsels that care should be taken with regard to the drafting of the document to avoid those events happening by the back door. We must continue to work to ensure that that does not happen. However, I firmly believe that it is not the purpose of the charter to extend the power of Brussels or to create new rights in the way that has been mentioned.
That is not just my view. It is also the view of President Herzog, who has already been mentioned. He is the German delegate to the body we are discussing, my opposite number, as it were, from Germany. He is also the chairman of the body and a distinguished man. He is the former president of the Constitutional Court and a former head of state. He stated as recently as 6th June—however, I have heard him say this many times—as reported in. Die Welt, that the charter will create no new powers for the European Union over its member states and that it will apply only to European institutions without imposing new 1878 rights on member states. He also added that the charter is not the kernel of a future European constitution.
Those limitations on the charter are reflected even in the present draft which, as the noble Lord, Lord Bowness, has said, is an incomplete and unfinished product. Article 46(2) states:This Charter does not establish any competence or any new task for the Community or the Union or modify competences and tasks defined by the Treaties".It also emphasises, in Article 46(1) —although I believe that the drafting can be improved—that the provisions of the charter are addressed to the institutions and bodies of the Union within the scope of their competence and only to member states when they are acting to implement Community law. As the noble and learned Lord, Lord Hope of Craighead, said, our mandate, and this exercise, is about the rights applicable at European Union level. It is not about respect for, let alone creation of, rights at the national level.
I suggest that that is not a surprising conclusion when one looks—as the report has done—at the historical background to how this charter comes into existence. It is perhaps a surprising fact—as is noted— that the creation of the European Communities in the 1950s occurred at the very time when the great building blocks for the protection of human rights were in the process of being laid down, following the period in which they had been so profoundly violated by fascist and other dictators. I refer to the creation of the United Nations, which is founded explicitly on the reaffirmation of,faith in fundamental human rights and, in the dignity and worth of the human person";to the beginnings of a global and universal international human rights system, of which the Universal Declaration of Human Rights is perhaps the most obvious and clearest example, but which includes many other conventions agreed in Geneva in relation to many important matters of fundamental freedoms; and to the regional level where the Council of Europe was established. Just 50 years ago, the European Convention on Human Rights produced and then put into practice a vigorous and imaginative judicial system for the protection of the human rights and fundamental freedoms of individuals against the power of the state or other great bodies.
The member states of the European Union have for many years been bound by these obligations. The UK, as is well known, played a major part in the drafting of the convention—one of its draftsmen later became a Conservative Lord Chancellor, Lord Kilmuir—and it ratified the convention in 1951, one of the first countries to do so. Over 30 years ago this country accepted the right of individuals to take cases to the court in Strasbourg. From October this year, the European convention will apply as a matter of domestic law in the whole of the United Kingdom through the Human Rights Act.
But despite those events, the founding treaties of the European Communities made no mention of fundamental rights. As your Lordships' committee 1879 points out, that may not be surprising because the focus of the treaties was then economic integration. The Communities were not operating then in areas which were considered inherently likely to violate human rights. As the competence of the Communities has grown, and as the law making of the Union has increased, many have seen the need for an explicit recognition at the Union level of the rights that citizens—and others within the protection of the European Union territories—possess and a greater need to ensure control of the powers of the Community's legislators and administrators in a similar way as legislators and administrators of the member states are constrained, as they are, by the application of the European Convention on Human Rights.
Maastricht, in what is now Article 6(2) of the treaty establishing the Union, recognised explicitly for the first time the concept of respect on the part of the European Union institutions for fundamental rights. As has been noted, the Court of Justice developed a jurisprudence in which it treated those rights as part of general principles of law. But nowhere in the treaties or anywhere does one find a clear list of what those fundamental freedoms are. That leaves vague and unclear for the citizen the rights which the European Union is expected to respect. It leaves not too little but too much discretion for the European Court of Justice to determine what those fundamental freedoms would be.
That is the background and, in my view, the genesis of the European Council's decision for a political declaration of existing rights enjoyed by European citizens because,at the present stage of the development of the European Union, the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident".So the purpose of the charter is to make existing rights at the European Union level more visible. I suggest that that is for two reasons: first, to reinforce the protection and responsibilities of human rights in the European Union—bringing together into a document the rights that citizens and others possess is valuable to reinforce in the minds of those who should be respecting the rights the fact that those rights exist—and, secondly, to make clear what are the rights and the freedoms which the European Union should respect.
So, in my view, the charter is not about creating new rights enforceable in the domestic arena; it is not about giving Brussels new powers to control our lives. It is about restricting the powers of Brussels so that it respects the fundamental freedoms that we all have. The charter, if it succeeds, will set out for the first time the human rights obligations of the European Union institutions—that is, the Commission, the Parliament and so on.
The purpose of the charter is not to create new rights in areas that are essentially those of national competence, and it is not the purpose of our job to attempt to create new additional individual rights, or even to develop new rights. That is especially true in 1880 the social and economic fields because those rights give rise to complex issues which require more detailed consideration and more detailed drafting than our body, having regard to its mandate and to the time pressures under which it is working, is really geared to do.
Such new or developed rights—I have sympathy with a number of them—should be created through detailed national legislation or, where there is an existing European Union competence, through the detailed drafting process of directives. Like the noble Lord, Lord Bowness, I fear that some bodies and organisations will be disappointed because they have been encouraged—not by the United Kingdom Government—to see the charter as a vehicle for creating new rights at a national level, which it is not intended to do.
The second area on which I want to touch concerns the question of how the objectives of the charter should be achieved. As the noble Lord, Lord Bowness, said, the draft that your Lordships have seen in the papers is a work in progress, but the process is open and clear to public scrutiny. I understand that there are now more than 1,500 pages of amendments to the 50 articles to which the noble Lord, Lord Shore of Stepney, referred. My amendments are placed in your Lordships' Library and in the Library of another place. There are many changes which, in my view, need to be made to the existing draft. I have made those views clear in my oral interventions and in my written amendments.
One of the important issues that I have continually stressed is the need for legal certainty, an issue to which the noble and learned Lord, Lord Hope of Craighead, referred. Our body does not have the task of deciding whether, ultimately, the charter will be legally binding. That is a decision which will be left to member states at the end of the exercise. I say nothing about its status—it is more appropriate that the Minister should refer to that—but it obviously creates some difficulties for the draftspersons dealing with it. Does one draft a document on the assumption that it will not be legally binding and therefore allow oneself to use general and vague—language—the—language—of political aspiration—which, if contrary to one's assumption it did become binding, would be left to a court to fill in the detail? That would not be a safe course to take.
So the working basis has been to draft a document which could be legally binding—not, as The Times leader suggested, because it was an admission by me that this meant that it would be or might be legally binding, but because it is simply a working hypothesis; it is a safer way to draft. If it does not become legally binding at any stage, the document will stand just as well.
I should like to return to the important question of how to reconcile the need for a visible statement of citizens' rights with something which has the legal precision necessary not to leave great gaps for interpretation. I agree entirely, and say nothing more, about the importance referred to by your Lordships' committee of not creating divergence between the 1881 European Convention on Human Rights and this charter. That would produce competition in the field of human rights between parallel texts, which would give rise not to a greater strength of human rights but a greater weakness. Those are not my words, but a paraphrase of the words of the Council of Europe.
I have proposed that the way the exercise should be done—your Lordships will see this in the amendments—is to produce a two-part text; a text which in one part contains a clear and simple statement of what the right is, and in the second part ties that clearly to the existing right; for example, the right existing under the European Convention on Human Rights, under the European Treaty or under a directive, so that there is no difference between the two. That has the benefit of greater visibility of what the right is and greater legal certainty. To some extent, that idea has been accepted already by the convention because the document must be seen as having a statement of reasons as well as an identification of the right. I commend that to your Lordships.
Perhaps I may make two final points. First, one area where I do not share the view of your Lordships' committee is that accession to the European Union is the answer. The reason it is not the answer is that it is not on the table so far as we are concerned at the moment. There are other member states implacably opposed to that taking place, and achieving it would require amendment of both the treaty of the European Union and the European convention. Whether it will be on the table at a later date is a different matter. Therefore, we must continue and make the best of the job that we have to do, which I believe is positive and valuable.
§ Lord Tordoff
My Lords, can the noble Lord indicate why some people are implacably opposed to that route?
§ Lord Goldsmith
My Lords, that question would be better addressed to the member states which have taken that view. The European Court of Justice has taken the view that it is outside the competence of the European Union to sign up to the treaty. There are difficult political and legal questions. Certain states do not wish to see the jurisprudence or the legislation of the European Community subjected to the court in Strasbourg. But it is a fact that some are implacably opposed to it at the moment.
§ Lord Lester of Herne Hill
My Lords, leaving aside the question of whether the convention is competent to deal with accession, does the noble Lord agree that accession would provide an effective answer to filling the gap identified by the committee? If that is not the way of doing it, what would be his other proposal for filling the gap in order to bind the European Union institutions into complying with the convention rights?
§ Lord Goldsmith
My Lords, there are undoubtedly advantages in the accession route in dealing with certain of the problems identified by the committee and to which I have referred. I refer to the legal 1882 certainty and to ensuring that the European institutions do not diverge from respect for the European convention. But it gives rise to legal problems which, with respect, the committee's report does not answer. For example, how does accession operate in a way which does not impose on the European Union an obligation to extend its competence? As the noble Lord well knows, certain of the ECHR rights would give rise to positive obligations.
The second part of the noble Lord's question related to the alternative. The alternative is the two-part document to which I have referred. It ties the right absolutely in the field of the ECHR to the ECHR right so that, to the extent that the European Court of Justice has jurisdiction (which it does by virtue of Article 6(2) of the treaty), the Court will regard that document as an important, solemn statement of what the member states, the Council, the Commission and the Parliament believe are the fundamental freedoms which the European Union institutions must respect.
My noble friend Lord Shore of Stepney referred to some of this exercise as juvenilia. He referred in particular to one of the articles which refers to a day of rest. The day of rest is perhaps one of the oldest and, some would say fundamental, rights which is to be found. It has an even older and greater pedigree than that of habeas corpus. I share the great privilege of having attended a school that my noble friend Lord Shore of Stepney attended. Indeed, the noble Lord, Lord Rodgers of Quarry Bank, in part bears its name. As a juvenile I recall being inspired by the words of my noble friend. I am much older now. I do not know what that says about my noble friend He was very young at the time. I do not regard this as a juvenile exercise. I regard it as an important step in the continued protection of human rights. I hope that future debates will not be dumbed down by a Eurosceptic press. I hope that we shall continue to have debate which is as informed and thoughtful as today's is.
§ Lord Pearson of Rannoch
My Lords, in that light of those remarks, perhaps I may put a question to the noble Lord who has given us such an authoritative insight into the whole process and presumably into the present attitude of Her Majesty's Government.
Do Her Majesty's Government feel at variance with the European Commission in its aims for this charter? I say that because I have with me a brief quote from Mr Antonio Vittorino, the European Commissioner for Justice and Home Affairs. I understand that he is the Commission's representative on the convention. The quote does not sound quite so innocent. It states:If brought off successfully"—whatever he means by that—the charter would mark a definitive change in the community, which would thus move away from the essentially economic raison d'être of its origins to be a full political union".That surely is worrying to many people, not just us crazy Eurorealists.
§ Lord Goldsmith
My Lords, Commissioner Vittorino is indeed the Commission's representative on the body. He subscribes to the articles which I read at the beginning of my speech: that this is not to extend the competence of the Union; that it is addressed to the European Union institutions; and that it affects member states in so far as they implement Community law. I suggest that that is what is important in this debate. That is what President Herzog has said. Ultimately, it will be for Her Majesty's Government to decide on the content of this document which we continue to seek to improve. I am confident that Her Majesty's Government will decide in the interests of the British people because that is what this document is about: the right thing to do.
§ 1.23 p.m.
§ Baroness Howells of St Davids
My Lords, I very much doubt whether I can add much to this debate which has attracted so many learned friends and so many eminent speakers. I refer in particular to the maiden speech of the noble Baroness, Lady Billingham, with whose sentiments I concur. However, I feel a necessity to contribute if only to justify my existence as the alternate to the noble Lord, Lord Bowness, whose grasp and understanding of the purpose of the charter and his attendance at the meetings spared me the necessity of speaking in Brussels but left me time to listen to the discussions on my few attendances and read the presentations. For that I crave your Lordships' indulgence.
The creation of this charter presented the committee with a number of questions which have been argued both in Brussels and in the report presented to the House. Most have been debated by earlier speakers. As the report points out, the issue needs further consideration by us all.
I rehearse here the questions posed. Do we need such a charter given existing human rights? Which rights need to be protected? What, if anything, is the form and legal status of the instrument and its relation to EC treaties and the European Convention on Human Rights? Are we at risk of creating different systems of protection within the EU and the wider Europe with the possible damage to legal certainty and general confusion? What are the mechanisms for monitoring compliance and dealing with breaches?
Those and many other questions are still open for debate despite the excellent Select Committee report to this House. One of the questions yet to be tackled is the universal character of the charter. Could the Council of Europe isolate itself from the rest of the world? The values of the charter fundamental rights should not be seen to be for Europeans only. People from other regions of the world should also be encouraged in some way to aspire to the acknowledgement of their fundamental rights. We are constantly being made aware of persons who put their life and security in danger for the sole reason that they appeal to have their human rights respected.
We need to see the charter as a strengthening of universal and not specifically European values. By being too European-specific, the charter could be in 1884 danger of appearing to withdraw from any external control as regards the very countries which are more likely to deny fundamental rights. I believe that the arguments have been made clearly in the submissions of Amnesty International, although at this stage I do not support its call for a legally binding document.
Despite the questions, I welcome the charter. I believe that it is a clearer way of exporting to countries which hope to join the Community the rights, responsibilities and values that are held so dear within the European Union. I believe that the charter will be a document which sets out in a more accessible form the many rights EU citizens already enjoy at European level and would make it easier for EU citizens to know the civil and political rights they already enjoy under the various treaties.
I believe that the charter would make existing rights clearer and more accessible and would deepen and strengthen the culture of rights and responsibilities at all levels across the EU, identifying and complementing existing legal instruments on fundamental rights. It would emphasise communal values within the EU. It should show clearly its opposition to all types of discrimination. It would declare boldly to European citizens their right to participate in the democratic process, to live, study and work, to provide and receive services, and set up businesses anywhere in the EU.
There appears to be a concern that we could create a two-tier system of human rights protection with two rival jurisdictions, with the waste and possibly unnecessary expenditure that duplication would bring. It is to prevent such a thing happening that the British Government support for our non-justiciable charter, ably argued by my noble friend Lord Goldsmith, has gained much support from those around the table in Brussels.
It was interesting to note how the opinions changed and how other government representatives supported the arguments advanced by my noble friend, Lord Goldsmith. However, the final decisions on the form, the content and the legal status of the charter lie with the European Council. The British Government will have ample opportunity to question and debate further all the issues raised.
I welcome this charter. I believe it is a way of exporting to countries hoping to join the Community the rights, responsibilities and values which are held so dear by the UK and the European Community.
§ 1.31 p.m.
§ Baroness Park of Monmouth
My Lords, I have read the committee's admirable report—lucid and fair as it is—with the greatest interest and respect. I hope that other noble Lords will forgive my temerity in venturing into a highly specialised debate, although after the brilliant speeches of, in particular, my noble friend Lord Lamont and the noble Lord, Lord Shore of Stepney, I feel slightly inadequate. However, I do have some broad concerns. They are not Europhobe; they merely constitute some real anxieties which may well, I may say, be shared by, for instance, the Danes.
1885 The first is that the issue is a hybrid. Is it a legal issue, a political issue or a constitutional question? If we are to accept the approach of the Minister for Europe,it is more political than legal, and it is certainly not constitutional. It is a political presentation of the existing rights that people have".When the noble and learned Lord, Lord Hope, pointed out that according to the Cologne declaration the Council will have to consider whether, and if so how, the charter should be integrated into the treaties. The Minister's reply was that,there will be no new rights that are binding on the citizens of Britain and the EU that are not binding on them now".That is reassuring. He did not, however, exclude the possibility that there might be treaty action. Indeed, while he said later—implicitly confirming the political nature of the issue—that,the charter … will be one of the most important things we have seen come out of the EU in the last decade, because it will be the first time there has been positive communication with ordinary people",he noted that the governments are doing what Cologne asked them to do,declaring existing rights, and we will see later whether or not treaty amendment is necessary".He added:Some countries are against treaty amendment —we have heard that confirmed by the noble Lord, Lord Goldsmith—because of the referenda that will have to ensue".All that sounds very innocuous. We are just conducting a small exercise in public relations, and nothing will change. Why then did the European Council at Cologne suggest that the question of the advisability of setting up a Union agency for human rights and democracy should be considered? What is it going to do? That is exactly the procedure followed to move from thinking about a little harmless intergovernmental collaboration on defence and security to the common defence and security entity, moving towards a common defence.
We are at the stage when the Government evidently believe that they are simply taking part in a harmless statement of virtuous intent, informative rather than legislative. Unfortunately, I believe that the Bar Council's written evidence has correctly identified the real purpose and probable effect of the Cologne initiative. It quotes the European Parliament's reference to,a mandatory fundamental rights system",as,a fundamental step towards providing the EU with a democratic constitution",and reaches the following conclusions:At the constitutional level, however, there can be no doubt that to give Treaty status to a free-standing catalogue of fundamental and other rights would assist those who see the EU developing into an autonomous state … A 'patriated' catalogue of human rights, tailored for the specific requirements of the EU, would strengthen the hand of those who wish for the EU to develop in the traditional model of the federal … state".1886 Joschka Fischer, the German Foreign Minister, last year confirmed that for the Germans it was indeed a question of consolidating the legitimacy and the identity of the EU. The Bar Council concluded that,if the function of the Charter is to publicise or comment on existing rights, there would be no point in giving it Treaty status. If its function is to guarantee new rights"—it should be remembered that the Minister assured the committee that there would be no new rights—the question of whether it should have Treaty status is an essentially political one, with important consequences for the future constitution of Europe, including the balance of power between the ECJ and the member states".I apologise for such lengthy quotation, especially since the report makes it so clear that the noble Lords who formed the committee reviewed all these issues in great depth and with great care. But I needed to quote chapter and verse to make three points. First, are we once again looking at a skilfully engineered Euro-creep, analogous to what happened over the CDSI, made easier by the fact that there are really three sides to this question—constitutional, legal and political? And what will happen to subsidiarity, which we have fought so hard to secure? Are the Human Rights Act and the convention as it stands really not enough to protect our citizens? And is it really impossible to bring the EU itself—that is, the Community's organs—within its scope without treaty change?
As the committee points out, we must also consider the effect on enlargement, where enforcement of the whole convention will be a very large task, not least in countries like Turkey. If the EU can exclude Austria because it has elected one politician—not even the leader of the country—whom it regards as undesirable, what will happen when and if the charter becomes a treaty obligation, and, presumably, justifiable? Not least, the Petersberg tasks envisage intervention in another country's internal affairs, as in Kosovo, in the name of humanity. We must remember that anything written into the treaty can be withdrawn or changed only by unanimity, the doctrine of the acquis communautaire.
The committee refers to,the perception of the Union exercises greater vigilance over the human rights performance of other countries than over the actions and policies of its own institutions".I am sure that that Dutch whistle-blower would agree.
Our own new defence policy is relevant to this. We have to consider the unforeseen possible consequences of treaty status. The Strategic Defence Review said:The British do not want to stand idly by and watch humanitarian disasters or the aggression of dictators go unchecked".The latest defence White Paper takes a significant step further, quoting Kofi Annan's new peace-keeping doctrine, an approach based on "inducing consent" and "coercive inducement", an approach which the White Paper says the UK is developing. The White Paper states:We are working on a doctrine which takes account of circumstances where the consent of any of the parties to a conflict is uncertain and where we may need to be prepared to use military force to coerce compliance in order to create a secure and stable environment".1887 It is serious enough that we may find ourselves taking a national decision to act in just that way to protect human rights in another country. But what would be the consequences if we were bound by treaty to defend human rights on the decision of an unaccountable European Union? At the very least, I hope that the usual urge to cover the agenda and fulfil the commitments under each presidency is not allowed—I am greatly reassured by the words of the noble Lord, Lord Bowness—to hasten a decision on whether to incorporate the convention on human rights into the treaty. I respect the convention itself, if only because I remember and honour its origins. But I do not wish it to become part of any treaty. There are too many vital issues which still need long and serious consideration.
§ 1.38 p.m.
Lord Bruce of Donington
My Lords, I am once again very happy indeed to be in complete agreement with the words that have fallen from the lips of the noble Baroness, Lady Park of Monmouth. She indeed set forth the position that, as I would assure others, including the noble Lord, Lord Lester of Herne Hill, who after his criticism of me has promptly disappeared, there is a proper case to be made for those of us who have almost the temerity to dissent from things that are said and done in this House.
In my fairly long experience here, it has never been considered that a Member of your Lordships' House is xenophobic or holds any particular prejudice. During my 25 years' of service in this place, dissension has always been considered to be an honourable position for those whose beliefs are sincerely held and do not normally arise from undue prejudice one way or the other.
Having made that comment, I should like to say that I very much admired the report that we are considering in our debate today. With few exceptions, the speakers who have articulated its contents indicate—I say this with no intention of causing offence—a typically British way of dealing with an argument or discussion. The chairman of the committee presented his account of the report and some of its contents with the utmost clarity and, I believe, with real fairness. I should like to congratulate him on the report itself and extend my congratulations to all those who took part in what is, after all, an important exercise.
However, we must remember that few individuals in the United Kingdom are either aware of the arguments that have been adduced today or, indeed, aware of their effects (if any) on their own lives. Some 351 million people reside in Europe—or perhaps I should say half of Europe. We need to be a little careful when we describe the European Union as covering the whole of Europe geographically. Exactly what advantages will accrue to the majority of those 351 million citizens in the Europe we are discussing? Although I was probably hooted out of court at the time, I once raised the point that one European ombudsman would find it very difficult to deal with the bailiwick of some 351 million people. That is undoubtedly the case.
1888 What we are really considering here is the relevance of a document to the mass of the people of Europe and, indeed, of the United Kingdom itself. How many people will feel that their interests are vitally affected? What fundamental freedoms as experienced by them will be enhanced by what is likely to be enacted?
It is all very well for lawyers, accountants, businessmen and so forth to conduct extremely learned arguments involving important questions of principle. All that is fine and is, indeed, a rather British way of carrying on. But do not let us assume for one moment that the contents of the document we are considering today have the slightest relevance for millions and millions of people living not only in Europe, but in our own country. In fact there is, of course, a democratic deficit here.
When it is advocated in an assembly that these matters are of vital significance, that is—if I may say so—a slightly optimistic move, because they are not. A very distinguished Oxford professor, Professor McCrudden, pointed that out when giving evidence before the committee, and I refer your Lordships to pages 12 and 13 of the report. He was referring to Article 6 of the charter of fundamental freedoms, to which reference has already been made. He said,Article 6 … a classic example of where it makes the point that the Community and the Union is based on the principles of human rights and fundamental freedoms without actually defining what those are".That statement was not challenged by the chairman at any point, any more than was the professor's later observation, in answer to the chairman.
An alternative route would be to regard the whole question of the charter as an opportunity to deepen the democratic reach of the European Union as a whole and to give legitimacy to the notion of rights by virtue of the fact that they are the result of democratic discussion, debate and participation. Participation could also be seen as making those rights more real and true, because they are shared values. Thus the drawing up of the rights is in fact as valuable as the rights that emerge from the process.
To what extent has the ordinary man in the street been involved in this? One could say, with some legitimacy, that Members of Parliament, in particular those who have direct contact with comparatively limited directorates, are in a position—sometimes, not always—to articulate the views of ordinary people on this matter. That could certainly apply to Mr Vaz, the Minister in charge of European affairs. He answered questions put to him by the committee on a fairly extensive scale. I refer to pages 103 and 104 of the report, where he returned to certain important aspects towards the end of his examination.
As regards the proposed challenge, Mr Vaz stated that:What I want to be absolutely clear about is that there will be no new rights that are binding on the citizens of Britain and the European Union that are not binding on them now.Towards the end of his submission he continued by saying,but I think it would be premature to decide now whether or not it should go into the Treaties".1889 He states emphatically:This is not a constitution for the European Union. This is not a bill of rights for the European Union … It is not a constitution. There is no mandate from Cologne to go beyond what we have said. There is a mandate, as the Lord Chairman has said, to look at this in Nice to see how best it can be preserved, but what it will not be is a new constitutionAs one who has on more than one occasion over the past few years been not entirely uncritical of Her Majesty's Government's attitude towards Europe, on this occasion I completely agree with the Government. This is not a launch pad for a new set of rights, as Mr Vaz states at page 103.
Then the noble Lord, Lord Lester of Herne Hill, intervened—not to make any suggestion as to whether or not Mr Vaz was phobic. He said,there is a practical problem at the moment, a gap, in that the citizens of Europe are not adequately protected against the misuse of power by European Union institutions that breach the human rights convention".Well, well! I welcome the noble Lord—as someone who has queried my phobias—to the ranks of phobic sanity in this matter. I entirely agree with him.
It has been possible to learn a considerable amount from this debate. However, we must view this issue in the context of matters as they are. I hope that it will be agreed that my observations are impartial, not animated by any kind of personal animosity. Let us look at the institutions that will be involved.
The ink is barely dry on the paper that was prepared at the instance of the European Parliament and others looking into the conduct of the Commission in the recent fraud and irregularity scandals. I have been engaged on this matter for nearly a quarter of a century, and have been much reviled for my attempts, which have ultimately been vindicated.
What was said about the Commission? It was stated that it was difficult to find anyone with a sense of responsibility. But those people are still there. Do we have any regard for that in our negotiations or discussions with the European institutions? Or are we going to ignore that completely? We now know the extent of corruption—I say the word deliberately—between the French and the German leaders. I am talking about Kohl and M. Mitterrand. These are the people with whom we are supposed to go on dealing as though nothing at all happened. As for the Italian position—the position of Sr. Prodi—are we really going to continue negotiating, talking and passing pleasantries with people of this kind?
People are talking about the United Kingdom being at the core of Europe—meaning, of course, the restricted Europe to which I have referred. But is this the kind of Europe of which we want to be at the core? Or is it perhaps that the core already lies here in the United Kingdom? We provided a large part of the troops and matériel by means of which the dictatorships on the Continent were either defeated or rescued. Perhaps we do not know that. I am well aware that there have been deficiencies in British governments in regard to sleaze and matters of that kind. But they are as nothing, compared with the scale 1890 of corruption and of misfeasance at political levels throughout Europe with one or two notable exceptions among the smaller states.
This time, therefore, when we go to Europe to discuss this matter, let us not take on the role of suppliants trying to work our passage to the core of Europe—because the present core is rotten, and members know that. Let us, therefore, go to Europe with a good sense of humour, a pleasantness which possibly few would care to emulate, and with a positive attitude to the great good that can follow from listening carefully to what is said in this House and more particularly in another place. Then one will find that the naked ambitions of the Commission to become the government of Europe will come to nothing. So long as we involve our own countrymen—who are not wealthy people and who do not even know what rights they have, if they have any—we can go forward with an approach which the traditions of our own country entitle us to take.
These are not small matters. They will engage our intellects and will involve much argument—and possibly, so far as I am concerned, insult. Nevertheless, they are the very essence of which the United Kingdom is made.
§ 1.57 p.m.
§ Lord Brennan
My Lords, I ask the forgiveness of the noble Baroness, Lady Billingham, and other Members of this House for having to listen to yet another barrister. But I want to reassure your Lordships that some of us earnestly wish to be regarded as ordinary human beings as well.
I am a member of each of the Bar committees that put forward a paper to the Select Committee; however, I speak on my own behalf and not theirs. I commend the report. The work of my noble and learned friend Lord Hope of Craighead and the other members has produced a balanced and clear report calling for the most serious consideration of an essential question: how are we to protect the human rights of our citizens within the European Union?
Three questions arise with regard to that objective. The first is: what is the situation now as to the protection of such rights? Secondly, will the charter make a difference? Thirdly, are there more steps yet to be taken to protect those rights?
What is the situation now? Each member state of the Community has incorporated the convention into its national law. That means that every person in those countries is protected as to his or her civil and political rights. Every one of them has ultimate recourse to the Court in Strasbourg.
External to the Union, practically every trade and accession agreement—for example, Lomé—involves the European Union requiring third countries to honour human rights. When one looks at the situation within Europe, frankly it is embarrassing. Why? I put some obvious problems for your Lordships' consideration. There is lack of transparency in the decision-making of European bureaucrats at whatever level; and there is certainly a lack of information. 1891 Often a decision is made which is either arbitrary or inadequately reasoned. I reassure the noble Lord, Lord Lamont, that we are not talking simply about ordinary people, deserving though their rights are, but companies whose future may be seriously affected by decisions within the European Union that anyone would agree contravene the ordinary standards of human rights such as a fair trial and a reasonable punishment.
Beyond that, your Lordships' House must understand that the ordinary citizen has no effective recourse within Europe. Europe resolves its disputes before the ECJ by governments and the Commission. This problem means that there is no adequate method of judicial review of Community action available to the ordinary citizen. Preliminary rulings are an inadequate alternative. There is an absence of control over the third pillar areas which the noble and learned Lord, Lord Hope, identified. Of greatest concern is the absence of judicial control over treaty provisions which in themselves would breach what we believe to be essential human rights such as the right to vote. That right was upheld by the European Court of Justice in the case of Matthews, although it had been taken away by action of the European Union.
These are major problems where access to justice about human rights is simply not available. Even when it is, what does the treaty tell a citizen or company about their rights? Article 6(2) has been cited by the noble and learned Lord. That is a very loose expression of fundamental rights, even less a statement of how they can be properly protected.
But what of the courts? In order to protect one's rights within the EU one must do so either initially within one's own country or before the European courts, eventually finishing up at the European Court in Luxembourg. That is a long process and may result in a decision which sends one to Strasbourg, as several cases illustrate; the European Court of Justice then being told by Strasbourg that it has not complied with what Europe believes is proper convention observance. One would hope that it would then go back to the European Court of Justice, but no; the ECJ would be bound by the provisions of the treaty under which it first acted and might yet contravene the convention. Therefore, within the courts system there is no speedy, clear or adequate resolution of human rights.
What does the present situation tell us? The citizen has a very hard time getting satisfaction, even if he knows where to identify his rights within Europe or the European courts system can accommodate his claim. Those are very serious deficiencies that need to be remedied. One is not endowing Europe with greater power but providing effective control of European power where it infringes human rights.
The second question is: will this charter make a difference? It has two requirements if it is to do so. First, will it produce accountability by European institutions? Secondly, will it lead to effective remedies? They are distinct matters. That distinction is important. A charter of rights without effective 1892 protection of them within the courts is a grand gesture in itself but of no moment to those it is designed to protect.
I support the present position of the Government in seeking as a reasonable European position a declaratory statement of rights. I commend the approach of my noble friend Lord Goldsmith to establish a section of essential rights in this charter and a second by which each is given adequate explanation. That is a tribute to his intellectual acuity. As the months go by we shall see whether his diplomatic skills match his acuity. It is a tough but important task. The declaration of such rights must be brought home not only to the ordinary citizen but to those who will be affecting their rights: European politicians and bureaucrats. At the moment that is simply not done. In its declaratory form it should at the very least embrace the convention rights which each of the member states has accepted as the rights of its citizens. The manner of explanation makes it difficult, but it is very important that there is no significant divergence between convention rights and any charter rights, especially as they are intended to encompass that which now exists. The desire that we must all share to avoid such divergence is obviously necessary. If there were such divergence, there would be uncertainty and a risk of seriously conflicting decisions between the European Court of Justice and the Court in Strasbourg. There would be a potentially adverse consequence on the relationship between the European Union and the Council of Europe and there would certainly be difficulties about the possible creation of a two-tier system of human rights between existing member states and applicant countries which are waiting to be considered as new members.
But—and it is an important "but"—any declaratory document would, in my view and apparently in that of the noble and learned Lord, Lord Hope, be used by courts at the very least as a guide to the way they should consider human rights within Europe. It is therefore inevitable that it should be couched in language which is legally reliable and not vague.
What is the alternative to the declaratory route? It is, in its briefest measure, the accession of the European Union through its institutions to the convention. I am extremely concerned about that for the following reasons. First, to human rights activists, lawyers and ordinary people, an accession which meant simply that convention rights would apply in Europe would be perfectly acceptable. I regret to say that that is a naive intent by those involved in pursuing it, because any reasonable observer will accept that the constitutional implications of accession are as, if not more, important than the human rights implications.
That is so for two reasons. First, such a legislative act by treaty would constitute the European Union in clear form as the equivalent of a state; an international legal entity in its own right. That step should not be taken by the member states of the Union until they are satisfied that it is entirely justified and will not be abused thereafter. Secondly, the competence of the European Court of Justice would be increased by such accession. Again, the longer term problem arises—so 1893 eloquently put by my noble friend Lord Shore—of what happens if at stage two the French say, "Now that we have a charter and an accession, we want social and economic rights to be introduced into the system whereby the European Court would eventually be able to dictate not democratically but judicially how economic and social rights should be applied within the Union".
I am a supporter of European co-operation, but I would be blind in my own thinking—and I suspect that my colleagues here would be, too—if I were not aware of the problems which the noble Lord, Lord Tordoff, wondered were exercising the minds of those countries which did not want this step to be taken yet. I am not ultimately saying that there should be no accession. I am saying that it is a step to be taken only after the very greatest care and consideration.
So what is the difference that the charter will make? It will tell people what their rights are in a declaratory form. Should accession now take place? Not yet. Finally, what steps should still be taken beyond the charter to protect the human rights of our citizens in Europe? If the noble Lord, Lord Lamont, will forgive me, we are not talking about judge-driven rights; the giving or controlling of them. We are talking about, within a democracy, the provision of fundamental rights which cannot be breached by the "democratic action" of Parliament because they are above democratic intervention. The world accepts it and we accepted it by introducing the Human Rights Act.
What steps should be taken? First, these rights must be known to people, and the declaratory form seeks to achieve that. Secondly, they must be visible in their effects, as the Confederation of British Industry, in its submission to the committee, thought they should be. They should be visible within the bureaucracy.
What about other steps? As a topic, that question has not received emphasis in today's debate on the effective protection of human rights. What about more freedom of information from Community institutions? What about more reasoned decisions? What about extending the right of judicial review of Community action? What about a compliance provision such as figures in our human rights legislation where the European Union is required to certify that that which it is legislating or deciding comes within the human rights charter? And what about increasing the number of powers of the European ombudsman?
In further measure, as the International Commission of Jurists suggested (I am sure through the intervention of the noble Lord, Lord Goodhart), why is there not a complaints procedure within European institutions to deal with matters before lawyers are involved? And, in order to speed up justice, why not a three-man judicial panel to make preliminary and early rulings about human rights infringements'? None of those steps requires a charter. Each one is of compelling importance and the call for a charter should not mask their importance. Finally, what should the Government do?
1894 This topic will not go away. The protection required under the third pillar will be sought by many. Accession will be a topic at IGCs. It is inevitable. Therefore, as this year develops the Government must formulate a reasoned policy. That clearly cannot be done until the final form of the charter is known. When it is, the charter, the question of accession and the importance of protecting rights by the means that I have described could all form part of that reasoned government policy.
I close by asking a question in a rhetorical form. I invite your Lordships to consider the answer to it. Are we in this country, which has given each of our citizens the benefit of the human rights convention, to deny it to them when they face action by European Union institutions or by our own state in applying Community law? The answer is obvious. The citizen is entitled to the same protection. It is that which the report emphasises, which makes the report so important and which makes essential the need for a reasoned policy and diplomatic cure for the rest of the convention.
§ 2.15 p.m.
§ Lord Goodhart
My Lords, I begin by declaring an interest in this matter. I am Vice-Chairman of JUSTICE and a member of the executive committee of the International Commission of Jurists, both of them bodies which submitted evidence to the committee.
As the first of the wind-up speakers, I hope that I may be allowed to congratulate the noble Baroness, Lady Billingham, on her maiden speech, which showed, if I may say so, great good sense and the benefit of experience as a Member of the European Parliament. Clearly, she has made herself a very strong candidate for service on the EU Select Committee or one of its sub-committees, like it or not!
I also join my colleagues on the sub-committee—my noble friend Lord Lester and the noble Lord, Lord Plant—in paying tribute to the chairmanship of the noble and learned Lord, Lord Hope, and to the work of our adviser, Dr Kerse. Certainly the quiet authority of the noble and learned Lord, Lord Hope, and the obvious thoroughness with which he has done his homework make him the ideal chairman for a body of this kind.
This has undoubtedly been a most valuable debate, particularly, I believe, because of the extremely important speeches made by the two Members of your Lordships' House, the noble Lords, Lord Bowness and Lord Goldsmith, who have participated in the process.; of the drafting of the charter. I agree with everything that was said by the noble Lord, Lord Bowness, and with most of what was said by the noble Lord, Lord Goldsmith.
The noble Lord, Lord Lamont, and a number of others argued the anti-European case. It is a case with which I strongly disagree, but the noble Lord argued it cogently and effectively. I wish I could say the same of some other noble Lords who spoke in the same interest, whose views appeared to me to be indistinguishable from those of the Sun, which was 1895 described in such graphic language by the noble Lord, Lord Bowness. I also regret slightly that we have not heard from any of the three Conservative Members on the sub-committee, although one of them was indeed present for part of the debate.
What is the function of the charter and what should its contents be? As the noble and learned Lord, Lord Hope, started by saying, part of the problem is that those questions are being decided back-to-front. We need to decide, first, whether the charter is to be binding or declaratory and, then, what should go into it. The Government's view is that the charter should be declaratory or informative, which means much the same thing, and should include only rights which are already justiciable under the European Convention on Human Rights or under the EU and EC treaties. That was made clear in evidence both by Mr Vaz, the Minister, and the noble Lord, Lord Goldsmith. I believe that the Government are wrong on the first issue but broadly right on the second.
A declaratory charter is not altogether without value. Rights are indeed now scattered through the EU treaties as well as being contained in the European Convention on Human Rights. The charter would no doubt make those rights more accessible, more easily visible, to the ordinary person. But, as the noble Lord, Lord Goldsmith, made clear, even a declaratory charter is likely to have some legal effect. Article 6(2) of the Treaty on European Union provides:The Union shall respect fundamental human rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the Member States, as general principles of Community law".Even a declaratory charter, therefore, is likely to be looked at by the European Court of Justice as source material for identifying the fundamental rights protected by the Treaty on European Union. This creates a dilemma. If the charter merely lists and repeats existing rights, it will be not much more than an indexing exercise which could be carried out by a couple of junior members of the chambers of the noble Lord, Lord Goldsmith, in a couple of weeks. But, if it rewrites existing rights or goes beyond them to include social and economic rights, and other rights not currently justiciable, that creates dangers.
First, if the charter rewrites the convention, it creates, as has already been pointed out, possible conflicts between the courts in Strasbourg and in Luxembourg. The European Convention on Human Rights is, of course, incomplete, especially in regard to discrimination, and needs some updating. But it has stood the test of time remarkably well, and as far as I am aware all human rights organisations involved in this debate are agreed that it is essential that there should be no conflict between the convention and the human rights jurisdiction of the European Union. If there were such a conflict there is a risk that the Strasbourg Court, whose jurisdiction includes all 42 member states of the Council of Europe, would be regarded as providing second-class justice.
1896 Further problems arise if the charter goes beyond the rights now regarded as justiciable in the courts and includes economic and social rights, such as those in the European Social Charter—for example, the right to housing, social security and healthcare, now regarded as policy objectives rather than justiciable rights. Speaking for myself, I think there is a strong case in the long run for recognising legally enforceable fundamental rights to minimum standards on matters such as social security, education and healthcare. These are now on the agenda of many human rights organisations, including some in which I am involved. But it is clear that that process has only just begun, and most economic and social rights are not recognised as legally enforceable rights in any of the member states of the European Union.
There is, of course, a statutory right in the United Kingdom to, for example, social security, a right which is enforceable in our own tribunals and courts. But the recognition of a fundamental right to social security would go beyond that and would mean, for example, that a claimant could argue that the statutory provision itself was inadequate to meet his or her fundamental rights. Until those rights are recognised as both fundamental and justiciable in the member states of the European Union, it is inappropriate to recognise them as fundamental rights in the treaties of the European Union themselves.
Incorporating into the new charter rights under the European Social Charter or other economic and social rights, as France and some other states want, even on a declaratory and non-justiciable basis, would in the first place lead to confusion for readers of the charter who might not appreciate the distinction. More important, there is a risk that Article 6(2) might prove to be a gateway through which the European Union institutions eventually became bound to give effect to economic and social rights. If the charter is binding, and economic and social rights are justiciable, the European Union institutions could be required to give effect throughout the Union to fundamental economic and social rights, and possibly be regarded as having the competence to do so.
Having said that, it may be surprising that the committee supported the proposal that the charter should be binding. In doing so, I should make it clear that we were talking about a binding charter which was limited to existing rights. We did not consider—and our view might have been different had we done so—a charter which extended those rights.
The reason why the committee proposed that the charter should be binding is because of the gap in the coverage of the European Convention on Human Rights. That gap has already been explained. The EU and the EC are not parties to the European convention. The European Court of Justice held in 1996 that the European Communities did not have power, under the treaty, to become a party to the convention. As a result, the European Union institutions are not subject to the European Convention on Human Rights and their acts cannot be challenged on the grounds of inconsistency with that convention.
1897 To a large extent, the member states are subject to the ECHR when they are applying European Community legislation. But there is also extremely wide, agreement that the coverage of the European Community needs to be extended to the actions of the European Union under the third pillar.
That could be achieved by a binding charter which repeated the European Convention on Human Rights and, in that way, made it directly part of European Union law. We should welcome that as achieving at least part of the solution, though it could possibly lead to some divergence of opinion between the Luxembourg and Strasbourg courts because they would be acting independently in interpreting the same text.
But better still, the desired result could be achieved by a change in the treaties which enabled the European Community and the European Union to adhere to the ECHR. On that, I do not agree with the noble Lord, Lord Goldsmith. His arguments against accession were the least persuasive part of what was otherwise an extremely persuasive speech. He said that other states were opposed to that. Indeed, that may be so but that is a fact rather than an argument. He said also that the European Convention on Human Rights contained positive obligations. So it does. But most of those obligations do not apply in practice to the European Union, which, for example, has no prisons and no criminal courts. Those obligations which could apply should be observed.
§ Lord Goldsmith
My Lords, if the convention is to achieve its work, as we are mandated to do by the end of the year, and if it is a fact, as the noble Lord, Lord Goodhart is good enough to accept that it may be—and I tell the noble Lord that it is a fact—that other member states are implacably opposed to accession, how is the convention to complete its work by December against that background if it is going to say, "We are not going to do our job; we are going to wait for accession, even though a number of states are opposed to it"?
§ Lord Goodhart
My Lords, the view which I expressed was that a binding charter mirroring the European Convention on Human Rights would be good. Accession would be better still. The two are not mutually inconsistent. Therefore, I should like to see a binding convention which mirrored the ECHR. Accession would then be a matter for the next stage, which is clearly a matter for the IGC.
A binding charter could, and indeed should in some respects, go beyond the present text Of the ECHR, particularly in the field of discrimination, where the draft 12th Protocol to the European Convention exists but is not yet in force. Indeed, the European Community is legislating against discrimination under Article 13 of the European Communities Treaty and has now published two draft directives which are to be debated in your Lordships' House next week. If those rights are not included, the charter is likely to be out of date shortly after it had been agreed.
For reasons that have already been explained, the charter should not include economic and social rights 1898 as binding rights, and preferably not at all. Nor should it be used to impose provisions on matters such as biotechnology. Indeed, some pressure groups want to use the charter as an opportunity to legislate on environmental issues on which there is, as yet, no sufficient consensus.
I found what the noble Lord, Lord Brennan, said to be inconsistent. First, he said that the people of Europe should have the right to have the European Convention on Human Rights observed by the EU institutions as well as by their own governments, but then he proceeded to say that there should be no accession and no binding charter. I find it impossible to understand how the result that he first wanted could possibly be achieved.
§ Lord Brennan
My Lords, perhaps I may remind the noble Lord that a few moments ago he described how one could have a binding charter with accession later. I had the same view in mind. If I expressed it with a lack of felicity, I apologise, but there is no inconsistency.
§ Lord Goodhart
My Lords, I am glad to hear that. I believe that the committee was right to say, in paragraph 130,The main function of the Charter may therefore he seen as being to improve the practical enjoyment of the fundamental rights that are already secured by the ECHR so that those rights are more effectively enjoyed by individuals within the EU and the obligations that they place on public authorities in particular are more effectively discharged".Similar conclusions have been reached by the Select Committee on European Scrutiny in another place.
The purpose of the ECHR is to limit the rights of authorities and to enlarge the rights of individuals. Extending the ECHR to the European Union institutions would limit the rights of those institutions and enlarge the rights of the citizens and residents of the European Union. Therefore, it will restrict, rather than extend, the competences of the EU institutions.
I regret that the noble Lord, Lord Lamont, and other noble Lords who support him, do not recognise that this unanimous report is not a document for Euroenthusiasts, but a document that should satisfy both the Europhiles and the Europhobes. Your Lordships' House is asked to note the report, not to approve it. I hope that most noble Lords who have read the report and have listened to the debate today will feel that it has earned approval, even if the House is not asked to give it formally.
§ 2.32 p.m.
§ Lord Howell of Guildford
My Lords, we have had a rich and expert debate of such high quality as I have never experienced in my short time in the House. It is difficult to know where the lay person is supposed to enter the labyrinth. I seize upon one phrase from the marvellous maiden speech of the noble Baroness, Lady Billingham, when she spoke of the impenetrable maze of human rights legislation and the awe with which one contemplates the matter in trying to bring it into better order.
1899 The debate goes to the heart of the future of Europe and, therefore, affects every man, woman and child in this kingdom and in the whole of Europe. As the excellent report identifies, and as the noble Lord, Lord Lester, and my noble friend Lady Park said, we are dealing—sadly, on a Friday afternoon—with absolutely fundamental issues about the way in which Europe will be structured in future and with whether it will be an old-fashioned and over-centralised body or whether it will adjust to the looser, network age that lies ahead. With great respect to the noble Lord, Lord Goodhart, I do not believe that whether we are pro-or anti-European is relevant. It is a pity that the arguments about xenophobia and so on should have entered the debate. That is not the issue. The issue is how we live together in civic order as free citizens, in free republics and kingdoms in the greater Europe that is emerging.
One question hanging over the debate is whether these proposals are necessary. Paragraph 39 of the report also asks whether there is a need for this charter. From the layman's point of view it is a bit surprising that such a need should be felt. We have the European Convention on Human Rights, but we have hardly had time to digest it, as it does not enter into our law until 2nd October. Perhaps a little pause while we digest its implications might be a prudent, democratic procedure. It has just arrived, and we are looking at it.
We also have the European Court of Human Rights, whose fount is the Council of Europe. Its clear purpose in the post-war period has already been graphically described. We also have the national safeguards of our rights and freedoms. There is our system of ombudsmen, which was referred to by the noble Lord, Lord Bruce of Donington, in a marvellously down-to-earth speech so typical of his concern for detail, real life and feelings. It contrasted with some of the more ethereal and technical arguments raised. The noble and learned Lord Brennan came from a quite different angle and made a marvellously lucid speech, pointing out the other things that should, or do protect our rights and which fall outside the charter.
I do not know whether the noble Minister will agree with me, but the common theme to the contributions made today is that accession to the European Convention on Human Rights would, despite the difficulties in engineering it, be a straightforward, agreeable and supported course. In a clear speech, my noble friend Lord Lamont set out that view, which was also expressed by the noble Lord, Lord Plant, in a speech full of common sense with which I largely agreed. The noble Lord, Lord Goodhart, has also given that as part of his party's approach to this matter.
The noble Lord, Lord Brennan, said that we were being a bit naive, and one bows to his enormous expertise. The noble Lord, Lord Goldsmith, also identified the difficulties.
I have no interests legal or otherwise to declare on this matter, but as a layman it seems that that might be a first step before plunging into the more elaborate 1900 charter. The report asks witnesses why the charter is needed. In paragraph 39 and the following paragraphs several answers are given which are not all that convincing. A whole range of expert legal witnesses were marshalled and their reasons seemed to boil down to just three.
The first argument is that the Union is becoming more powerful, impinging on people's rights and freedoms, and so we must do something about that. More protection is needed for the citizens of Europe. But that is only half the argument, because an alternative view is that it might be possible to restrain this accretion of power and to restrict some of the powers going to the centre in an age when the centralisation of power is out of fashion and inappropriate. If the noble Lord, Lord Goldsmith, is right and the charter restricts Brussels, I might warm to it. But I should really have to believe that. Indeed, in the past I have advocated the kind of constitution that severely limits the competences, and reverses some of the trends towards increased competences in Brussels which may have been necessary 10 or 20 years ago but are completely unnecessary in a world of networks that no longer needs a central power to control it.
That is the first reason for needing this charter that came through from the report. The second reason is a little more worrying and I am not sure it is consistent with the first reason; that is, that the Union apparently needs legitimacy. To quote Mr Fischer, the German Foreign Minister, it needs identity; it must somehow be beefed up. This charter will enable the Union to stand tall in international affairs and be more like the United States of America—a real country; a real state. That appears to me to be a contradictory argument.
The third reason why we need the charter is to achieve legal certainty. The layman may ask what that is. I know it means something in the world of law, but the law does not look a certain thing to the ordinary citizen. We need the charter to make the rights more visible. Again, that is a high aspiration but hard to achieve. And we need the charter to achieve greater reliability.
I recount those reasons because they lead to my first conclusion; that is, that it is still an open question whether we need this charter. If there is a gap, is the best way to fill it by constructing this whole new project rather than by just working on the course of joining the European Convention on Human Rights, even though that too, as the noble Lord, Lord Shore, reminded us in a marvellously trenchant speech, is an institution which could do with a bit of reform, along with the European Commission, the Council of Ministers and all the other European institutions inside and outside the EU?
That is my first general observation; the question of whether or not we really need the charter has been left much more open than has been suggested. A second minor point is that the politics and the culture of rights is only half the story. No one mentioned, not even in this excellent report let alone in the debate, the other half; that is, the principle of duties. The two go together and on them the civic order depends. It is a 1901 matter of regret that there has been so much mention of rights; a whole culture of rights has been worked up in a huge debate, yet the duties and responsibilities side of the equation received little attention.
The truth is that, without a balancing concern for duties, the politics and culture of rights rapidly degenerate into a debate not about liberties, but into a clamour for more benefits which, in the end, the whole of society has to provide. As the philosopher David Selborne remarked,The politics of dutiless rights is turning out to be the politics of the civic graveyard".All those, both in the law and outside, who debate on these matters should ponder on that before putting too much emphasis on rights alone.
That said, we have this convention in which the noble Lord, Lord Goldsmith, and my noble friend Lord Bowness are working with such assiduity in order to achieve a balanced and moderate outcome. They have a problem and they do not need me to tell them that. There is no agreement as to the status of this enterprise or the forthcoming document. The British Government, in the words of Mr Vaz, believe it to be a showcase of existing rights. Is it that, or has that showcase already burst open? Is it not rapidly becoming a binding new constitutional regime? I do not know the answer. Or is that simply what it looks like and, in the words of the noble Lord, Lord Goldsmith—though not in his speech today—it has been drafted to look like a constitutional document, ready to go into the treaties as a "precautionary hypothesis". I love that phrase; it is a very nice phrase from the noble Lord.
§ Lord Goldsmith
My Lords, I am afraid that that comment must have come from someone else. I do not recognise those as my words.
§ Lord Howell of Guildford
My Lords, I shall, therefore, reserve my approval for others. The comment came from a newspaper article. The noble Lord has obviously been wrongly quoted. I shall certainly do him the courtesy of letting him have the reference so that he knows where these words are attributed to him and can, if he wishes, take steps to dissociate himself from them. However, I thought that it was rather a good phrase.
Having listened to the debate and tried to be as balanced as one can, my own view is that this must be part of a process of expanding the European Union's powers and solidifying this type of constitution for the Union—not a limiting one but rather, I am afraid, an expansive contribution. I say that because, again, I rely on the report; indeed, it is a virtual Bible. In paragraph 81 it makes clear that the ambition is to extend the charter to all three pillars. But both Houses have been told that two of those pillars are supposed to be intergovernmental not supranational; in other words, they are to be controlled by the governments, and the rights restraining them, within the nation states. But, no, the ambition is to cover all three pillars, not just justice and home affairs but also the defence and foreign policy pillar. The determination is obviously there on 1902 every front to incorporate this into the treaties. I do not know whether that will be incorporated through the treaty of Nice, but it is there.
Finally, the determination is clearly there in Germany, where one's German friends feel very strongly about these matters. Germany's European policy demands that this becomes a part: of the treaty structure of Europe, and we hear the same voice from the European Parliament in Strasbourg and in Brussels. The protection of individual rights, with which we are all concerned and want to uphold and need ever to be on guard about, is a long way second in this whole project. I am sad to see it so readily accepted that a charter of rights really is needed and that the further safeguard of the rights of citizens will be thereby secured rather than going the ECHR route. However, I suspect that the ordinary citizen will see more layers of unintelligible legalism and a still larger role for the power of European central institutions, all of which are in a bad condition— indeed, one commissioner described them as suffering from "heart failure"—and more judge-made law. I agree with a very eminent QC, Mr David Pannick, whom I believe I am right in quoting this time, who said in the Financial Times the other day:It seems to be a complete recipe for chaos".Far from being what I believe the noble Baroness, Lady Williams, described as a "great experiment in democracy", this charter will work against a free and democratic Europe and against Europe's vital diversity. I do not regard it as a pro-European endeavour; indeed, I believe that it will restrict and not expand our liberties. Of course I wish the noble Lord. Lord Goldsmith, and my noble friend Lord Bowness luck—and goodwill—with their attempted amendments. But I doubt very much whet her they will succeed and whether the project upon which they have embarked will really carry Europe forward, or protect our citizens in the way that we desire.
§ 2.48 p.m.
§ The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal)
My Lords, I, too, should like to take this opportunity to thank the noble and learned Lord, Lord Hope of Craighead, first, for tabling this important debate and, secondly, for the erudition and skill with which he outlined the issues in the report. The quality of the debate has been commented upon by other speakers, but I should like to join my voice to those who say that it has been of an extremely high standard—not least the maiden speech full of warmth and insight of my noble friend Lady Billingham. She showed great talent. I am sure that t he valuable contribution she made today will be enhanced by the contributions that we shall hear from her in the years to come.
The tone of today's debate has been rightly set; it was a very balanced one. As I said, the usual erudition of the noble and learned Lord set that balance and we had rather a feast. Many of us expected to be treated 1903 to a real battle of the Titans—and, indeed, we were—but we have also had a cut and thrust and parry of the most skilful and delightful nature.
We started with the measured but clarion call of the noble Lord, Lord Lamont, which was immediately parried by the breadth and vision of the noble Lord, Lord Lester, the substance and balance of the noble Lords, Lord Bowness and Lord Plant, and of the noble Baroness, Lady Howells, and the fine speeches—I am sure we are all agreed on that—of the noble Lords, Lord Goldsmith and Lord Brennan. We heard the spice that the noble Lord, Lord Shore, added to the debate and the concern that was expressed by my very good noble friend Lord Bruce of Donington and the noble Baroness, Lady Park. The summing up of the noble Lords, Lord Goodhart and Lord Howell, was comprehensive.
Therefore I am tempted to say that as noble Lords have heard so many eminent lawyers speak in the debate they will have no desire to hear yet another and that I should keep my porridge cool by my own breath. However, I know that that will not do. Therefore I say straight away, and more seriously, that Her Majesty's Government very much welcome the publication of this thoughtful and erudite report. As with all Select Committee reports, we shall issue a memorandum in response which will, of course, also reflect upon some of the points raised today. I thank each and every member of the committee for their contribution to the work that has been carried out but also for their contributions to the debate.
Her Majesty's Government agree that the charter is an important exercise. We reassure noble Lords, particularly the noble and learned Lord, Lord Hope, and the noble Lord, Lord Lester, that Her Majesty's Government's position has been positive throughout. We have always seen the charter as an opportunity. The 1998 Eurobarometer poll in the UK showed that, when asked what they wanted to know more about, 46 per cent were interested in their rights as European citizens.
My honourable friend the Minister for Europe has spoken regularly on the charter's value. Properly constructed and presented, the charter should strengthen the culture of rights and responsibilities within the EU. This will have a powerful effect in reinforcing in the minds of those involved in drafting, taking and applying EU decisions the rights that citizens possess and the need to respect them. The Government welcome the conclusion in the report that an accessible declaratory charter would indeed have real value. That view has been endorsed by a number of noble Lords today.
I say to the noble Lord, Lord Howell, that implicit within the expression of those rights is the imposition of a clear duty. The balance which he seeks is inherent in the expression of the rights. Preserving legal certainty in that regard is just as important as enhancing visibility. My noble friend Lord Goldsmith in his fine and careful speech—some other speakers today have mentioned this—mentioned the legal complexity of the issues raised by the charter exercise.
1904 If we do not get it right, we could set back, rather than enhance, the protection of human rights in Europe. Therefore a positive but careful approach seems to be the right one to adopt.
As a number of noble Lords pointed out, in particular, the noble Lords, Lord Shore and Lord Bowness, the charter convention continues to work on its draft. I take this opportunity to place on record the Government's appreciation of the time and effort that my noble friend Lord Goldsmith has put in as the Prime Minister's representative. As a number of noble Lords have said, his commitment and expertise have been invaluable. The exercise has proved to be more time consuming than anyone could have predicted last year.
The convention has also benefited from the input of the four parliamentary representatives: my honourable friend Win Griffiths, the noble Lord, Lord Bowness, and their alternates, David Chidgey MP and the noble Baroness, Lady Howells of St Davids. I thank them for their work. However, I remind noble Lords that, whatever the outcome of the convention deliberations, it will be for Heads of Government, not the charter convention, to finalise the charter and to decide on its ultimate status and future when they consider the draft at the Nice European Council in December.
The United Kingdom's position—and therefore Her Majesty's Government's position—is clear. The Feira European Council next week will be a first chance for Heads of Government to take stock. At that meeting the Prime Minister will argue that a declaratory charter is the best way to raise the visibility of human rights while preserving legal certainty. In addition, he will spell out that to fulfil effectively its objectives set out by Heads of Government in Cologne last year, any draft charter should meet three key criteria.
First, it must preserve legal certainty. We must not weaken existing fundamental rights by creating legal or public confusion or competing jurisdictions, especially with the ECHR. We therefore very much endorse what has been said by a number of noble Lords in that regard. Secondly, it should contain existing rights—that is, rights drawn from the ECHR and the EU treaties—and the charter should not be a platform for new competencies, nor a launch pad for new EC legislation, nor a vehicle for removing member states' flexibilities under the ECHR and its protocols. Thirdly, it must be consistent with other EU policies and objectives, including the conclusions of the Lisbon Council.
It is particularly important that the charter should not involve the creation of new rights. The convention, although commendably transparent, is not equipped or constituted to be a legislative body. It has a more limited, specific task to do and, as the committee rightly said, not much time in which to do it. Cologne calls for the inclusion of existing economic and social rights, but aspirational objectives have no place. Proposals for new rights should be considered by legislators through the existing procedures, with care, 1905 deliberation, consultation of interested parties and so on. "Instant" new rights are not appropriate or acceptable.
A number of noble Lords said that there are significant gaps in the present level of protection of human rights within the EU. The Government are not persuaded that that is so. All the member states are parties to the ECHR and their national actions and law in the field of community law can be challenged in domestic courts, before the ECJ and, in some cases, before the European Court of Human Rights.
The committee and a number of noble Lords, however, have expressed that they see a gap in protection in relation to the right of an individual to complain about the acts of EU institutions on human rights grounds. This is in part a complaint about the rules of standing, which restrict the possibilities for an individual to bring before the ECJ a complaint about an act of an institution. As the committee recognises, it is not for the charter drafting body to tackle that issue.
Perhaps I may deal at this stage with a point raised by the noble Lord, Lord Goodhart, about the compliance of EU institutions with the ECHR and not being able to be challenged in the ECJ. That is not so. Article 46(d) gives the ECJ jurisdiction over that compliance. It is true that it is not easy for individuals to bring such actions because of the rules of standing in Articles 230 and 232 of the TEU, but actions by other institutions and member states can certainly be brought.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the Minister. Is it not the case that at the moment the real gap is that EU institutions and officials are not under a legally binding duty to comply with the convention rights, and therefore there are no remedies? If that is right, then will the Government add to their three criteria the need for effective legal remedies for the abuse of power by the EU institutions in direct breach of convention rights?
§ Baroness Scotland of Asthal
My Lords, as I have already said, the Government believe that the process already available has the capacity to do that in terms of enforcement. One has to look very clearly, of course, at the gap referred to by the noble Lord and the protection of the right of an individual to complain about acts of EU institutions which breach convention rights. We say that that is possible in the current structure.
§ Lord Lester of Herne Hill
My Lords, perhaps I may pursue the question. I am concerned with standing: with the question of individuals pursuing the matter. The issue to which I seek an answer is straightforward. In the Government's view is there an enforceable, legal, binding duty upon the EU institutions and officials to comply with the convention rights. I understand that the view of the committee is that there is no such duty enforceable in law. That is the gap.
§ Baroness Scotland of Asthal
My Lords, we believe that there is such a duty and that there is not such a 1906 gap. I can undertake to write to the noble Lord in more detail. But the Government's view is that there is not such a gap.
With respect, it seems to us that greater weight should be given to the existing obligation of the Un ion in Article 6(2) of the Treaty of the European Union to respect fundamental rights as set out inter alia in the ECHR. As others have said, the Union institutions may be held to account for their compliance with that obligation before the ECJ under Article 46(d) of the TEU. We feel that greater emphasis should be given to the role of the ECJ over many years in applying the convention and its case law to cases which come before it raising human rights. In only a tiny handful of cases has any significant divergence of interpretation between the two courts arisen. The EU is not a human rights-free zone, as some may have been attempting to suggest.
It is important not to forget, in making a comparison between the available routes to challenge national action and that of the Community institutions in the human rights field, that the competences of the institutions and the degree to which they involve potential breaches of human rights are far more limited than those of national governments.
The other main area where significant gaps are seen by the committee and other noble Lords is the third pillar. But here, too, the picture is not as bleak as some would paint it. New justice and home affairs instruments such as the Europol Convention already contain relevant safeguards such as data protection requirements, supervisory bodies and national court remedies.
The Government do not accept that we should agree to extend the ECJ jurisdiction over the very sensitive areas covered by the third pillar. Those raise issues relating to national sovereignty—law and order and the criminal justice process. An acceptance of extended jurisdiction would have to be on a "once-and-for-all" basis. This would be a significant extension of the ECJ's legal responsibilities.
Moreover, the Government do not see such a step as necessary. Where damage is caused by incorrect or unauthorised processing of data by Europol itself, the person affected can go to the national court where the damage occurred. If the suit is successful that member state can reclaim damages from Europol.
§ Lord Goodhart
My Lords, I am grateful to the Minister for giving way. Is not there a serious problem with the fragmentation of jurisdiction: that one has different results from different national courts? Would not there be substantial advantage in bringing the third pillar under both the ECHR and the jurisdiction of the ECJ in order to ensure conformity throughout the EU?
§ Baroness Scotland of Asthal
My Lords, I hear what the noble Lord says about the potential for fragmentation. There has been little or no evidence of it to date.
1907 The preferred remedy of the noble and learned Lord, Lord Hope, the noble Lord, Lord Lester, and others for the perceived gaps in protection is EC/EU accession to the ECHR. That is the way most noble Lords have expressed it today. However, here, too, the Government are not persuaded. We recognise what the report says about the implications of accession for the relationship between Strasbourg and the Luxembourg courts and can see some advantages in such an approach in terms of ensuring consistency of approach between the two courts. But we do not believe that it is necessary. There is already a commitment to respect fundamental rights such as those guaranteed in the ECHR in Article 6(2) of the Treaty of the European Union. The noble Lord, Lord Brennan, was right to raise concerns about this issue.
The European Court of Justice has ruled that the EU does not at present have the competence to accede. Accession would, therefore, require changes to both the convention and the EU and EC treaties. The ECJ already applies to the ECHR and its case law without accession.
In addition, there are formidable legal problems which would have to be addressed. I mention just a few of them: the risk of extending EC competence into human rights areas where it currently has none; the difficulty in preserving member states' existing reservations and powers to derogate from the ECHR; the uncertain impact on the UK's domestic legislation, including the Human Rights Act; and—and by no means least—the EU, as opposed to EC, accession would have additional problems linked to the question of legal personality, including implications for the pillared structure of the Union.
I leave aside for now the fuller political and practical implications. But we should not underestimate the potential effect on the caseload of the two international courts involved, which are both already seriously overloaded, with consequent lengthening delays in delivery of judgments and legal uncertainty meanwhile. So accession is an issue that we shall approach only with the greatest of care. Rightly, it is neither an issue for the charter convention nor for the IGC, which has other pressing priorities. I have to say to the noble Lord, Lord Lester, that there is no intention to add this issue to the list currently before the IGC.
In the past two or three weeks there has been a highly charged debate in the UK press about the charter. Some journalists have predicted that it marks the end of the British way of life. This is clearly not the case. It is worth quoting again the comments of President Herzog, which have already been mentioned by the noble Lords, Lord Bowness and Lord Goldsmith. As noble Lords will know, President Herzog chairs the drafting convention. In Die Welt last week, to bring us back down to earth, he said that the charter would create no new powers for the EU over 1908 its member states. It would apply only to EU institutions without imposing new rights on member states. He said that the charter was,not the kernel of a future European constitution".So we need a sense of balance when looking at this issue. I would say to my noble and dear friend Lord Bruce of Donington that we understand that the issues referred to in the charter are not as well known as we would like.
It is for that very reason that we feel that the work undertaken by the convention to fashion an instrument which will bring clarity and accessibility to the ordinary man in the street will be of real benefit. We are, as the noble Lord, Lord Bowness, and the noble Baroness, Lady Howells, have already said, having influence in the convention and that should give us much comfort. I should also say to the noble Lord that I for one will never misunderstand his passion for anything other than real support for this Government.
I should like to deal with one last issue. The United Kingdom has a long and proud tradition in the protection and promotion of human rights in Europe. This country played a substantial role in the drafting of the ECHR and was the first to ratify it. The charter is not the only string to our bow, no matter how much others would like it to be so. The Government have a continuing global rights agenda. Furthermore, the noble Lord, Lord Lester, was right to emphasise the considerable contribution made by this Government through the Human Rights Act. In saying that, we in turn honour him and others who participated greatly in its formation.
Our strong commitment to the development of a culture of rights and responsibilities across Europe means that we are determined to ensure that the charter will complement and not undermine the ECHR. If the convention can produce a clear, user-friendly draft that protects legal certainty, then it will have done the citizens of Europe a very great service.
§ 3.10 p.m.
§ Lord Hope of Craighead
My Lords, the Minister has summed up with great skill and clarity the issues that have arisen both from the report and from the many outstanding speeches to which we have listened in this debate. It remains for me only to make a few concluding remarks.
First, perhaps I may thank all those who have contributed to this debate. I thank in particular the noble Baroness, Lady Billingham, for having had to tackle the difficult task of entering the labyrinth at the very outset and thus needing to warm up the debate immediately after my opening remarks. That was a formidable task for a maiden speaker.
Secondly, I should like to associate myself with the thanks that have been so kindly expressed for the work of the legal adviser and his assistant. I believe that all members of the committee recognised that, without their valuable work, the report would not have been anything like the document it is today. We owe them 1909 an immense debt for the way they programmed our work and then gathered it together when we finalised the report.
At the beginning of the debate I said that I welcomed the occasion for a full debate on this important and controversial issue. I believe that those adjectives have been fully realised; this certainly has been a full debate. However, it has above all underlined the importance of the issue and I think that we have gained a sense—from the opening and right through to the end—of the elements of controversy that have emerged as regards many of the issues that we have had to discuss.
A particular point about the debate which I value very much was that made by the noble Lord, Lord Lamont, at the beginning of his speech; that is, his wish that the matter should not be taken up entirely by lawyers. That has not been the case today and I believe that our debate has benefited immensely from the contributions of those who are not lawyers. They have brought into the discussion perspectives of great importance as we try to evolve a system of human rights, which, as has been pointed out, is something that affects every man, woman and child in the Union.
While preparing the report, the committee tried as best it could to produce something that was as fair, complete and accurate as possible to use as a platform 1910 for further discussion. The noble Lord, Lord Shore of Stepney, was absolutely right when he said that it was an "interim report". I hope that I was able to make that clear at the beginning. We have had the unusual task of trying to examine a process that had begun but that had not ended. For that reason, in common with everyone who has contributed to the debate today, I await the outcome of the work engaged in by the noble Lord, Lord Bowness, and the noble Lord, Lord Goldsmith, with great anticipation. Together with my fellow members of the committee, I also await with keen anticipation the Government memorandum in response to the report we have prepared.
However, it is clear that anyone who reads the report ought also to read the proceedings of the speeches that have been made in this debate. Without those contributions, the report would express only a part of the general feeling of the House as regards the issues we have debated.
On Question, Motion agreed to.