Examination of Witness (Questions 201
- 219)
WEDNESDAY 1 MARCH 2000
MR RICHARD
PLENDER, QC
Chairman
201. Mr Plender, welcome to this evidence session
of the European Scrutiny Committee. The Committee did visit Brussels
as part of our inquiry into the IGC and we took some evidence
from two MEPs on what was known as the "George and Joe"
report, probably known as that because of the difficulty in pronouncing
the names of the two MEPs who made the report! We thought it would
be interesting for us to supplement that evidence we took by inviting
yourself to come and see the Committee. We are delighted that
you are able to be with us. Could I just ask the first question.
We have difficulty in understanding the need for a legally enforceable
Charter given that the European Convention on Human Rights and
the ECJ's commitment to apply rights derived from it within the
EC. What are the best arguments for adopting a legally enforceable
Charter?
(Mr Plender) The European Convention
on Human Rights guarantees rights as against the Member States.
It does not guarantee rights as against the European Union and
the European Community. Since the Single European Act the European
Union has had more and more responsibility in areas vitally affecting
individuals, for example new responsibilities on police matters,
on matters relating to immigration control, asylum and so forth.
Insofar as national authorities deal with these matters, the individual
has access to the European Convention. Insofar as the European
Union does so, the individual does not have the protection of
the Convention. I think the individual should have the protection
of the Convention equally whether he is complaining of something
done by a national immigration officer or something done by the
European Union, for example a false entry in the SIS or SIRENE
system. So the case for a legally enforceable Convention is to
control errors made by the European Union.
202. Are the limitations on the European Court
of Justice's jurisdiction in relation to Justice and Home Affairs
issues reason to adopt a binding Charter?
(Mr Plender) I think they are. If the European Court
already had jurisdiction to exercise the control over the Union
that I spoke of, there would be lessconcern for finding an alternative
mechanism, but there are great constraints on the jurisdiction
of the European Court. By the way, there are quite separate and
related problems of the Court having the resources to exercise
the jurisdiction it is likely to have, but that is another Chapter.
Mr Bradshaw
203. You used an example in your first answer,
a couple of bits of terminology, SIS and SIRENE. What are they?
(Mr Plender) SIS stands for Schengen Information System
and SIRENE stands for Supplementary Information Request on the
National Entry. The Schengen Information System or SIS was a system
set up originally by those Member States which were parties to
the Schengen Agreement, excluding the United Kingdom, in which
they pool police information for immigration purposes, and the
SIRENE system takes that further by including photography, fingerprints
and other data that can be used for non-immigration purposes.
One of the papers that is before the Committee addresses this
problem. It is written by a man called Tim Eicke on behalf of
Liberty and he, I thought, gave a good practical example. German
police put information on the Schengen Information System computer;
it turns out to be wrong; an individual tries to enter the Community,
say in the Netherlands; he is refused admission in reliance of
the information on the Schengen Information System. He can complain
under ordinary Dutch law about exclusion but he cannot complain
of anything done under the Schengen Information System because
that is all done by the European Union and if he suffered a loss,
he suffered a loss as a result of something done to him by the
Union and the Union is not bound by the Convention. If I could
wave a magic wand and choose the ideal solution, I would not have
a new Convention or Covenant binding the European Union. I would
just have the Union ratify the European Convention.
Mr Marshall: We can all go home!
Chairman: Mr Marshall?
Mr Marshall
204. I was just saying we can now go home; you
have answered all our questions! Your main area of concern is
that those aspects of the European Community and European Union
where it is acting as, in effect, a quasi independent organisation,
are not covered by the European Convention on Human Rights?
(Mr Plender) Yes.
205. But other areas where nation states have
responsibility, individuals can take their case to the European
Court on human rights?
(Mr Plender) Yes.
206. And you say the argument for a Charter,
if there is an argument for a Charter, is to cover that area where
there is responsibility at the present time. Again, you have already
given the answer that anticipates some further questions. So you
would suggest that the ideal way would be for the European Union
to sign up to the European Convention on Human Rights?
(Mr Plender) Yes.
207. And that would be far better than any kind
of declaratory declaration by the European Union or a legally
binding—
(Mr Plender) I think it would be far better because
it would avoid the problem of duplication if we have two Conventions
interpreted by two courts with broadly similar objects. I would
prefer that but that was not what was proposed at the Cologne
Summit.
208. We are not quite sure what was proposed
at the Cologne Summit, are we? There are these two points of view,
on the one hand there should be a legally binding set of rights
and on the other, more the British point of view, that there should
be a declaratory proclamation of what the individual rights are
under the European Union and how you can seek redress. Would your
preferred option be the latter, the declaratory declaration proclamation
and the European Union signing up to the European Convention?
(Mr Plender) I am not at all enamoured by the idea
of a mere declaration. I have two reasons for being against it.
The first is that I think in a fairly short space of time a mere
declaration will breed disenchantment or cynicism. People will
be told by way of declaration "You have these rights"
and when they try to enforce them in the courts they will find
they cannot, and that will not be a positive development. Secondly,
I have a distinct sense of déjà vu here.
I am very conscious that we have had a change of Government since
the Single European Act but at the time of the Single European
Act there was inserted into the EC Treaty what is now the new
Chapter on European citizenship declaring rights of European citizens
and the Government of the time said publicly and repeatedly, "This
is not creating new rights; this is merely declaring what is already
in the Treaty", and some lawyers, whom I could identify,
were instructed to argue before the courts that that was so. It
did not last long. The European Court soon reasoned that once
Member States declare rights they must be presumed to intend to
do something and confer rights and the European Union read rights
into the new declaration. I think that either a declaration will
not have any effect, in which case it will breed cynicism, or
it will have an effect, in which case the United Kingdom's aspirations
that it would be merely declaratory would be disappointed and
most probably it will be a bit of one and a bit of the other.
Mr Cash
209. Just on a point of information. I do not
know if I misheard you, Mr Plender, but I think you said the Single
European Act and I think you meant the Maastricht Treaty.
(Mr Plender) Yes, I did.
Mr Paterson
210. Surely a simpler solution to this problem
is not to give the European Union the right to trample on human
rights in the first place. You quoted a case of the German immigration
service having the wrong information. Surely that could be satisfactorily
left to Dutch law as it has been for the last few centuries?
(Mr Plender) But the European Union already has competence
in this area. We already have new Titles invested in the European
Union with competence in this area and to the extent the European
Union has competences I would like to see the competences controlled.
Mr Paterson: Or reduced.
Mr Bradshaw
211. Could I pick you up on something, you said
that in an ideal world you said you would rather have the European
Union ratify the Convention. What are the arguments against that?
(Mr Plender) Some I know would fear subordinating
the Luxembourg Court to the Strasbourg Court—and ratification
probably would mean subordinating the Luxembourg Court to the
Strasbourg Court. Some would regard a system in which the European
Union is subject to the Convention as a step which makes the European
Union more state-like in that the Convention was conceived as
a mechanism for controlling excess of state power, whatever may
be the effect of the Human Rights Act here. I am not impressed
by these arguments and I have difficulty at the moment in thinking
of other arguments.
Chairman
212. Would there be less risk of the ECJ departing
from, or not taking sufficiently seriously, human rights if it
were required to apply an EU Charter?
(Mr Plender) I am sorry, Chairman, could you repeat
that?
213. Would there be less risk of the ECJ departing
from, or not taking sufficiently seriously, human rights if it
were required to apply the EU Charter?
(Mr Plender) I think there probably would. The European
Court strains at the moment to apply the European Convention on
Human Rights as much as it can without, of course, having jurisdiction
to do so directly. It already takes the Convention pretty seriously.
One of the many problems created in assessing the present proposals
is that we do not really know, Mr Chairman, what would be the
subject matter of the new Charter or Convention. If the new Charter
were identical to the European Convention on Human Rights, then
it would at least reinforce and increase the power of the European
Court in Luxembourg to take account of it. If, as some have proposed,
it were to be much broader and were to include economic, social
and cultural rights then this would increase the risk that any
Court would find one genus of right in conflict with another genus
of right.
Mr Rammell
214. Can I follow up my question. My question
has already been answered so I will ask another one, if I might.
So that we are clear for the record, you are saying there are
certain EU competences where at the moment citizens throughout
Europe do not have redress in terms of human rights. Can you specify
what those competences are in the British context?
(Mr Plender) The one tested very recently involved
the Marshall case which concerned voting in Gibraltar.
It is the Treaty itself which determines the rights of citizens
to vote within European parliamentary elections. The European
Court of Human Rights itself sought there to overcome the problem
that this is a Community matter by saying, "But the Member
States, and in particular the United Kingdom, in the course of
setting up these arrangements excluded the Gibraltarians from
the right to vote", but it cannot always do that and particularly
it cannot do that where a decision of which a person complains
is made by a Community institution. I said "Community".
Let me just take an example of a Commission decision of which
a person complains. The Commission may adopt legislation affecting
a commercial undertaking and the undertaking may not have access
to the European Court of Justice. It commonly does not because
to have access you have to show you are directly and individually
concerned by the measure. That is a very strict test. It rules
out judicial review at the Community level in many cases in which
there would be judicial review at the domestic level. If he cannot
challenge it directly, for some reason there is nobody to sue
in the United Kingdom or the Commission of which he complains,
there is nothing he can do, but the European Convention on Human
Rights provides that everyone is entitled to access to a court
and to standards of fairness in the court where he complains of
a violation of his civil rights—and civil rights means rights
in civil law, something that affects him commercially. That is
a case where I do not see a way in which the European Court of
Human Rights could overcome the practical problem when what you
are complaining of is something that the Commission has done,
not something a Member State has done.
Mr Marshall
215. Can I pursue that because that is not really
what is happening; it is not the Commission or institution. This
is what concerns me a little about the definitions you are giving
because in answer to my question you were saying there were competencies
exercised by the European Community's institutions which were
not covered by the present legal system, but what you are saying
about this case about Gibraltarians voting is not actually part
of the argument, is it, because they are forbidden from voting
in European elections because of an Article in the Treaty. In
response to the question that Mr Rammell asked, could you give
an example, there may not be one but could you give some hypothetical
example of what might happen with the European Union institutions
as opposed to something which involves an Article in the Treaty?
(Mr Plender) I have not made myself clear. I have
been trying to give three distinct pictures. The fiat is the case
about Marshall. An individual complains of a violation of his
right coming from the Treaty. "Well," says the European
Court of Human Rights in Strasbourg, "Although this is a
Treaty matter, we can give you redress because the real author
of your complaint is the state in ratifying the Treaty."
Fine, I can see that solution. Now take the second example of
the Community matter. Community rather than Union.
You have a Commission decision or a Commission Regulation which
significantly affects an individual or a trader. There the real
author is the Commission and he commonly will not have redress
in the European Court because he is not directly and individually
concerned. There I think he should have redress and the European
Convention on Human Rights would give it to him. The third case
I had in mind is of the European Union. That is the old Title
IV, particularly Justice and Home Affairs, which we are now in
the process of "communitarising", as the verb goes,
and bringing within Community competence a large number of measures
formerly adopted by the Schengen states under the Schengen system
where individuals are likely to be affected (and adversely affected)
by these measures. These are measures not so much in the commercial
sphere as in the sphere of individual relations with public authorities
and there it seems to be all the more important that there should
be access against any violation of what an individual conceives
to be his rights by the Union. The First Chapter of the Treaty,
you may have a solution, the Second Chapter, Community, I do not
think you have, and the Third Chapter, Union, I do not think you
have.
216. Three is going to slip into two eventually,
is it not?
(Mr Plender) Three is going to slip into two, yes.
Mr Robertson
217. To some extent you have covered what I
was going to ask but how do you see the Charter working in relation
to Member States' legal systems because we are going to end up
with a large number of legal systems here it seems? How do you
see the new Charter working particularly with the legal systems
of Member States?
(Mr Plender) I share what I take to be your concern
that we should not have a number of overlapping systems. That
is one reason why I would prefer that we simply had one and the
same European Convention on Human Rights, which now applies, applying
also to the European Union. If that were done, then I do not see
much problem of duplication or slippage. The same instrument would
apply to two different jurisdictions. I do see a problem of duplication
and of confusion if the Charter differs from the European Convention.
That problem would be especially severe if the Charter dealt with
much the same area as the Convention, while differing in detail.
In this context, I note Lord Goldsmith's latest paper references
in the International Covenant on Civil and Political Rights, which
is something very similar to the European Convention on Human
Rights.
Mr Cash: Mr Plender, I think that one of the
problems that we are having with all this is that there is this
discussion about whether or not there is a conflict between the
European Convention on Human Rights on the one hand and any potential
jurisdiction, some of which by the way has already been conceded
under the Amsterdam Treaty, for the application of the European
Convention on Human Rights within the ambit of the jurisdiction
of the European Court of Justice itself. There is, however, a
bigger problem and it is this and it came out when we went to
Helsinki with the COSAC representatives, that far from, as you
suggested, that the European Convention on Human Rights, by which
I think you were referring to Strasbourg, would overtake Luxembourg,
because there is this drive for a political union and, as Mr Joschka
Fischer has said, "the decisive task of our time is a European
constitution", that the European Court and its jurisdiction
through the amplification of Amsterdam would actually arrive at
the point where you had within the ambit of the jurisdiction of
the European Court a completely new series of rights which were
not new in themselves necessarily but consolidated into one body
of law which would then be the Charter of Fundamental Human Rights
for and available to the citizens of Europe within the jurisdiction
of the European Court which would be a very powerful battering
ram, I would suggest, or a Trojan Horse rather, for political
union. So the question I would like to ask you is simply this:
do you not agree that whether or not it is the European Convention
or the ECJ route, that both are legally enforceable and that the
Government's proposals that it should be no more than a showcase
and that it should be a political declaration would be really
rather difficult to achieve? And that in practice the setting
up of any such legally enforceable EU Charter within the jurisdiction
of the EU would supersede the European Convention on Human Rights
and would be a powerful force to the critical mass of the creation
of a political union to which, as you know, I am thoroughly opposed.
Chairman
218. You got that in well. Just for the record!
(Mr Plender) I certainly agree with Mr Cash that the
proposal for a mere declaration devoid of any justiciable effect
would be difficult to achieve and I have already said in part
why that is so. As for the effect of a justiciable measure on
progress towards a European political union, I think I take a
different view of the probable outcome. A German politician aiming
at European political union is more likely to see in the European
Court an analogy with the Bundesverfassungsgericht than
he is with some supreme international tribunal like the International
Court of Justice. He is likely to see the Luxembourg Court as
the Court of a European federation while the Strasbourg Court
remains the court of a wider and looser European Union. So I am
not at all sure that the probable effect of investing the European
Court in Luxembourg with greater power would be to set it above
the Strasbourg Court. I do believe, however, that having two courts
with a multinational composition and the function of interpreting
one and the same Treaty presents the obvious difficulty of determining
superiority. I think that was what the European Court was talking
about in Opinion 2/94 when it looked at this matter in 1994. That
is why I favour a provision which would distinctly ensure the
superiority of the Strasbourg Court within its sphere of competence.
Mr Cash: Do you not agree that that would have
to be spelt out—I happen to be against it anyway—but
it would have to be spelt out, otherwise you would have competing
jurisdictions? It happens to be my opinion, shared by many others,
that if you were to have two competing jurisdictions ultimately
the decisions taken under further political treaties would lead
to the European Court being entrenched with its jurisdiction over
all these Charter rights and the European Court of Human Rights
would effectively be abolished.
Mr Marshall
219. He is talking about a different point.
You have made your position very clear that you are in favour
of the supremacy of Strasbourg.
(Mr Plender) Yes.
Mr Marshall: So the point Mr Cash puts to you
is a little irrelevant. You do not see two competing courts.
Mr Cash: That is his opinion.
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