Examination of Witness (Questions 220
- 240)
WEDNESDAY 1 MARCH 2000
MR RICHARD
PLENDER, QC
Chairman
220. Can I ask honourable Members to resist
the temptation to argue with each other during an evidence session.
(Mr Plender) I am very happy to agree with my friend,
Mr Cash, that it is wise to set out the respective competences
expressly.
Mr Cash
221. Even if you do not like them?
(Mr Plender) In any event setting it out expressly
would tend to avoid confusion in this area.
Mr Connarty
222. I notice how precise Mr Cash wants to be
on the very thing he opposes. Turning to the content of the Charter,
there is some debate about the principle underlying the ECHR which
is universality and all persons within the jurisdiction of a state
are entitled to human rights protection regardless of nationality,
race or sex. That still seems to be running through the schemes
setting up the Charter and the rights so far proposed for inclusion
in the Charter are derived partly from the ECHR and partly from
the Treaty, as we have heard. To what extent do you think all
these rights should be universal in scope and in particular extend
to third country nationals?
(Mr Plender) I have two comments to make, if I may,
about the content. Firstly, the European Convention itself provides
for the guarantee of rights by Member States to all persons within
their jurisdiction and then goes on to provide quite separately
that they shall be protected without discrimination. I favour
exactly the same in what I see as the ideal solution. That is
that rights are protected without discrimination as to nationality.
There are elsewhere in the EC Treaty provisions relating to particular
rights peculiar to citizens, notably rights in relation to voting
and movement throughout the Community, but those are not the rights
with which we are primarily concerned here and I would like to
see the rights in principle guaranteed to all persons within the
jurisdiction of the Union. The second large question that arises
as to the content of the rights is whether there are to be several
political rights, however conceived, or also economic and social
and cultural rights, as Lord Goldsmith contemplates in the latest
paper which I have read of 1st and 2nd of February this year.
I am not at all in favour of having a European Charter of some
kind of economic, social and cultural rights over and beyond the
European Social Charter.
223. You obviously see a difficulty between
putting into the same Charter these universal rights, rights such
as voting, which are given to European Union citizens. Do you
think it will not work because there will be an actual conflict
there?
(Mr Plender) As a matter of drafting I would put a
provision in the Convention on Human Rights in a separate Chapter
somewhere around Chapter III of the Treaty. That would leave within
Chapter II the short provisions we already have on European citizenship.
There are certain rights which are commonly associated with the
political membership of the Community, the right to vote, the
right to stand for election, the unqualified right to enter one's
own country. They are rather limited in number. In other respects
I would like to see rights guaranteed equally for persons irrespective
of citizenship so that if a person complains that a Regulation
made by the Commission adversely affects his property rights,
he can bring that complaint against the Commission whether he
be a United States' citizen or an Italian citizen.
Mr Connarty: That is fine. I understand that.
Mr Marshall
224. You have mentioned on a number of occasions
now so-called political rights and economic rights, social rights,
and you mentioned a third category which has slipped my memory—
(Mr Plender) Economic, social and cultural rights.
225. Cultural rights. Do you view those in the
same light as the classical rights which are presently enshrined
within the European Convention or do they mean something different,
namely like political objectives rather than human rights?
(Mr Plender) I regard them in different lights. That
may be in part because I am accustomed to the existing Council
of Europe system which distinguishes clearly between those matters
governed by the European Convention of Human Rights and those
governed by the European Social Charter but I do not think it
is only habit that leads me to see the two in a different sense.
Assessment of the content of a right to education or a right to
fair wages seems to me to involve quite a different kind of mental
exercise from assessment of the right to liberty or to a fairness
of trial. It involves much more an assessment of relative resources
within a population. These matters are not, I think, ideally suited
to judicial settlement and so I am not in favour of including
within the Convention, whatever the Convention may mean, these
two quite different types of rights. If I read Lord Goldsmith's
paper correctly, he contemplates dealing in one instrument with
two different types of rights. I would like to see them separated
out.
226. How would you separate them out in terms
of the Treaty?
(Mr Plender) I would not make economic, social and
cultural rights a justiciable matter at all.
227. So you would be in favour of the declaratory
thing?
(Mr Plender) I am all in favour of adding to certain
of the declarations at the beginning of the EC Treaty which declare
the objectives if they are found to have deficiencies in some
respects. It has to be said that the declarations and aims that
already exist are pretty ephemeral. The aims of the Common Agricultural
Policy are stated as producing a fair standard of living for farmers
and cheap food for purchasers, which you may regard as opposite
ends of the same spectrum. Economic and social objectives can
certainly be spelt out in the Treaty but if we are to have some
independent review of the way in which states or even the Community
make social decisions of this kind, then I think that any independent
review should not be by a Court but by a body more akin to that
which already exists under the European Social Charter, that is
the Committee of Experts.
Ms Jones
228. Mr Plender, you have already answered one
question I was going to ask you which is about should the European
Union accede to the European Convention on Human Rights. As you
are most probably aware, the Council of Europe Parliamentary Assembly
has invited the European Union to do just that but we do not know
if the European Union will accede to the European Convention on
Human Rights. Given that some of the people who are sitting on
the drafting Convention have made it clear that they regard this
Charter as providing "healthy competition" to the Council
of Europe and the European Convention on Human Rights, that phrase
has actually been used, do you think it is now almost inevitable
that you are going to get judicial conflict because if there is
a view that human rights protection is now a matter of competition
and therefore the Strasbourg Court is not seen as having supremacy
over the Luxembourg Court, is it not now inevitable that we are
going to get conflict and divisiveness in implementing the Convention
and this new Charter if it becomes legally binding?
(Mr Plender) That is exactly what I fear. As to whether
it is inevitable, I have not yet given up hope that this can be
avoided, but it is certainly a likely outcome of having two courts,
should we have two courts, both with multi-national composition
and considerable international respect interpreting one and the
same document that there would be conflict unless, as Mr Cash
earlier suggested, one makes very clear what is the hierarchy
in this matter. I see no damage whatever to the reputation or
standing of the Court of Justice in Luxembourg if it remains the
inferior of the Court of Human Rights in Strasbourg on matters
relating to the Convention, as the Court in Strasbourg is inferior
to the Court of Justice in Luxembourg on matters relating to the
EC Treaty.
229. Right, can I move on to another question.
There is another reason why some of us are a bit concerned about
the way in which the European Union is going about drawing up
this Charter and that is that the Council of Europe membership
is much larger, there are 41 member states, and even after enlargement
it will still be almost twice the size of the European Union.
If we are not careful we will end up with a two-tier structure
of human rights protection. There is an argument that those members
of the Council of Europe in the European Union, will end up with
some kind of superior human rights protection compared to the
non-EU members of the Council of Europe. I would be interested
to know what your views are on the argument that inadvertently
we may well be moving into an area where we end up with a superior
and inferior tier of human rights in the European Union.
(Mr Plender) I think the answer to Ms Jones' second
question is very much on the same lines as the answer to her first.
Yes, I see the danger and wish to avoid the danger and wish to
avoid the danger by having one and the same document and Strasbourg
machinery because in part the Strasbourg machinery is for all
the 41 Member States, whether it be Finland or the Ukraine.
Mr Connarty
230. I have a supplementary on that. Similarly,
European Union citizens and those living in the European Union
are not necessarily the same. You mentioned the idea that whether
you came from the United States of America or Italy you should
somehow have the same redress. Do you think there is a danger,
as Jenny has said, not only outside but inside of different rights
for those living in the EU? I am thinking, for example, of the
parallel of Turkish residents who had lived in Germany for many
years and had no rights because their rights came through blood
line. Do you think there is a danger of that happening within
the EU? Could it be constructed in such a way that anyone who
lived in the EU would have the same protection of the Charter
just by residing in the EU, not just citizens?
(Mr Plender) The rights of the Convention are guaranteed
by Member States to everyone within their jurisdiction. So, insofar
as it operates perfectly, the Convention guarantees the same rights
to the Turkish gastarbeiter as to a German national resident
of Cologne.
231. Is that true in terms of the right to stand
for election?
(Mr Plender) No, but these are not rights protected
as such by the European Convention. However, insofar as a right
is protected by the European Convention, it is protected for everyone
subject to the jurisdiction of the state.
Mr Cash
232. Of course, at this juncture we do not actually
know what this drafting Committee is going to come up with by
way of a list. At the very best you can only surmise. It is true
to say that under the Amsterdam Treaty already there is an application
of the European Convention on Human Rights within the aegis of
the European Treaty on the European Union and thereby within the
jurisdiction of the European Court. So there is, if I may say,
I would not like to say a contradiction but there is an incompatibility
between your proposition that somehow it would appear you think
we could keep Strasbourg separate from the European Court when
in practice under the European Treaty the European Convention
on Human Rights is in fact already being made applicable within
the jurisdiction of the European Court, which leads me to fear
"the Russian doll effect" of political considerations.
That is what is going to determine the outcome of any Treaty amendment
within the framework of any new Treaty—it might be this
one or a later one—the Trojan Horse or inner Russian doll
is going to be a European Convention on Human Rights subsumed
into the greater jurisdiction (applicable to European citizens
as a whole) of the European Court of Justice.
(Mr Plender) Mr Chairman, Mr Cash is right in saying
that the Court of Justice already has a certain jurisdiction to
apply the European Convention on Human Rights but that jurisdiction
is distinctly circumscribed. There are two main categories of
limits upon the jurisdiction. First of all, insofar as a matter
is within the Court's jurisdiction, their express reservation,
for example Article 6 says the Court of Justice is not to have
jurisdiction on matters relating to internal borders, that is
what I had in mind when dealing with the Schengen Information
System problem a moment ago. Secondly, there are limits on the
European Court's jurisdiction in relation to Title IV matters
and limits on access to the European Court even when it does have
jurisdiction. I do not therefore see a tension between my preferred
solution, which would be to incorporate the European Convention,
and the feature to which Mr Cash draws attention, that is the
fact that to some degree the Court already has the power to do
so.
233. But the present reservations that you accurately
described are only reservations because politically they were
decided by way of Treaty amendment and therefore the restrictions
were politically driven. It is a matter of legal interpretation
but they were politically driven. My argument is simply this:
that this is the open door through which the enhancement of the
jurisdiction of the Court will be made. Therefore, although you
are trying to draw a distinction between (in shorthand) Strasbourg
and Luxembourg, for practical purposes the door to Luxembourg
has already been half opened . In practice it will continue to
be opened because this end is driven by political considerations
towards a political union. The Charter of Fundamental Rights is
one means that Mr Fischer and others have in mind when seeking
to realize their objective of a constitution for Europe.
(Mr Plender) Mr Chairman, Mr Cash is absolutely right
in saying that the Articles that I described all have a political
origin; so they do. I am not sure, but the Committee I am addressing
is better qualified to judge this than me, that the political
origin was so much that of limiting the competence of the Community
or the Union as the concern at the time to impose manageable restraints
on the burden to be given to the Court of Justice. Even if the
real principal object were to impose a political limit, to propose
a limit for political reasons upon the jurisdiction of the Court
of Justice, then to the extent I am free to express an opinion
on the point I would say the time has come to change that political
judgment because it produces some practical inconveniences. I
do not, by the way, adhere to the view that the Court of Justice,
in which I have worked for some time, is consciously a political
animal or tribunal.
Mr Dobbin: I think, Chairman, Mr Plender has
answered my question in response to the comments by Mr Cash.
Chairman
234. The Cologne Council took the view that
a Charter was necessary in order to make fundamental rights "more
evident", and one of the issues for the drafting Convention
will be how to make the list of rights comprehensive and accessible
for ordinary EU citizens. At the recent meeting of the drafting
Convention, Lord Goldsmith suggested that the Charter should be
divided into two parts, the first being a clear list of rights
with the second part being a more formal account of the legal
source of the rights and enforcement mechanism. What would the
advantages and disadvantages be of such an approach?
(Mr Plender) Chairman, I have read Lord Goldsmith's
proposal and the advantages I can best assess from what I take
to be his objectives. As I have been reading him in recent weeks
he began by favouring a mere declaration and then, perhaps in
response to a certain amount of Dutch and other comment, he has
proposed that there should be a declaration plus a substantive
content. I now note him saying that he would like to have short
statements that could be put up on one sheet of paper on every
Council wall. I have difficulty with that statement for two reasons.
First of all, I cannot see why the sort of Covenant that I have
in mind should be put up on council walls at all unless I understand
him to be talking about local authority councils. I conceive the
measure as rather the controlling of the European Union. Secondly,
the declarations as drafted by Lord Goldsmith are certainly short
and snappy but for that reason they are bound to be misleading;
they cannot be otherwise. The statement that every EU national
has the right to set up in business throughout the EU is simply
wrong. It cannot be right. Even a Belgian national does not have
an unqualified right to set up a business in Belgium. You try
setting up a wool shop in Bruges to see how many restrictions
there are. Certainly not every British national has the right
to establish himself in Belgium equally with a Belgian national.
There are limitations laid down by the Treaty. One of my objections
to the short statement, if it is to take the form of a solemn
declaration, is that it is liable to be misleading. If it is for
public consumption the one thing it should not be is misleading.
If you want to inform the public, there are many ways in which
that can be done without it taking the form of a separate public
declaration. I go on further to the disadvantages of the public
declaration. The public declaration part one is likely to affect
and colour the interpretation of part two. I would prefer to have
part two without part one and leave part one to Saatchi &
Saatchi or some other appropriate body.
Mr Cash: Can I come back on that very interesting
point which has been made. This is not in any sense a comment
on the point as you have made it but in respect to previous evidence
that we have had. I think you have, if I may say, accurately described
the movement we have been informed of within the Committee papers
of the position of the Government through its spokesman Lord Goldsmith
because when Mr Vaz came to see us it was clearly stated that
it was going to be a showcase and a political declaration and
that was the Government's position. We all know governments can
shift position, but what you have done today is illustrate the
dangers because of the differences of interpretation and pressures
that can be exerted in the Treaty framework and the amoeba like
quality they sometimes acquire that you would effectively end
up with the political declaration being not as simple as that
but in fact a series of propositions which could ultimately be
capable of some sort of legal interpretation, or worse, left mouldering
on a rubbish dump.
Chairman: I think that was a compliment!
Mr Rammell
235. That was a speech.
(Mr Plender) Chairman, I know that I gave my opinions
on the subject strongly and even a little flippantly with the
reference to Saatchi & Saatchi, but, I do think if we are
to have two parts of one and the same document we have to give
careful consideration to the effect that the first part might
have on the second. If the first part is merely intended for public
education then that can be achieved without it forming an integral
part of the whole. If it is education of the public, information
to the public is better achieved, in my view, by way of a separate
document. The declaration of rights will always be general even
as expressed in the European Convention on Human Rights. An attempt
to reduce it to a single page may be admirable but is likely to
be misleading and may have an effect upon the content of the remainder
if it forms part of an integral document.
Mr Marshall
236. Could I be clear that what the British
Government and at least one or two other governments are seeking
to do is to highlight the rights that people already have under
the various European Union Treaties, that is the whole point,
and how those rights can actually be exercised through the various
legalistic organisations within the European Union. So the big
problem I have in my head is clearly those rights already exist,
so what we are seeking to do is to show people these are the rights
which the European Union guarantees for them. Why do we need a
separate legalistic instrument to enshrine them in treaty? If
they are already there why do we need to go down another legalistic
road?
(Mr Plender) Mr Chairman, obviously in answering Mr
Marshall's point one has to ask why does one need each part. The
first part, informing the public, certainly every government and
inter-governmental organisation has an important duty to inform
the public of what it is doing. It is important for the public
to be aware of their rights. I would not like anything that I
have said to be thought for a moment to detract from that principle.
Of course the public should be informed and there should be, as
there are, a number of methods of informing the public of their
rights under the European Convention and there should be adequate
information on the content of whatever should be the outcome of
what was mooted at the Cologne Summit. The second part is the
articulation of definitions of the rights that the public has.
Given that it seems unlikely that the Union will simply accede
to the European Convention, we must contemplate that the drafting
Committee will come up with something rather different. I am keen
that what it comes up with that is rather different should be
as precisely framed as possible. That is partly because the area
of human rights involves important political and social choices.
It is right that those choices should be made so far as possible
through the elected representatives of the peoples. They should
not be left for determination at a later stage to a court, which
can do no more than to endeavour, in good faith, to give effect
to what was intended (or what would have been intended had the
drafter known of the conditions had they existed at the time when
the decision had to be taken).
Mr Connarty
237. I want to go back and link up with the
rights of certain people who lived in Germany. We had a scenario
in the last few months where one state that was part of the European
Union was about to take unilateral action which would have denied
people some rights. I may be ill-informed, but even with the Convention
on Human Rights there appeared to be citizens in one state who
did not have certain rights such as the right to vote, the same
as a Member of the House lost the right to vote in Germany by
choosing to have a British passport; she could not have both.
So there are losses of rights with the European Convention of
Human Rights. Do you think with a Charter of Fundamental Rights
it would be possible to prevent Member States taking unilateral
action to deny what seemed like very fundamental rights to people
who live within their borders who may not be their citizens. It
did seem we looked into the abyss a few weeks ago where it appeared
rights could have been unilaterally denied because of the political
complexion of one of the partners in the Austrian government.
Would the new Charter be able to and how can it be structured
to make that clear?
(Mr Plender) Chairman, there is no reason why the
new Charter should not be able to guarantee rights for all persons
within the jurisdiction of Member States as the European Convention
on Human Rights does already, subject only to a very few limitations.
It is, I think, widely accepted, however, that there is a limited
number of rights which are peculiarly associated with citizenship.
Voting is the obvious one and it must be remembered that the United
Kingdom is rather unusual in the liberality that it adopts to
dual or multiple citizenship. Many other states are much less
liberal in their view of the point and I do not presume to criticise
those who say that if you are a German national and acquire citizenship
of another Member State and take part in the political institution
of that Member State you must exercise your choice and be either
a citizen of that state or of Germany. I doubt that there would
be between the contracting states a sufficient political will
to deprive countries of their right which they presently enjoy
to restrict multiple citizenship.
Mr Bradshaw
238. Can I seek clarification on the answer
you gave earlier as to why there were arguments against what you
actually have advocated which is that the European Union ratifies
the Convention. As Mr Marshall said at the beginning of the meeting,
we could all go home because you gave us your ideal scenario right
at the beginning. You seemed to suggest although that was the
ideal the reason we were not doing it was nervousness or timidity
or paranoia about the Community taking on some statehood. Could
you explain that a little more clearly?
(Mr Plender) I am not of the people in the room the
best one to explain that.
Mr Cash
239. I will deal with it afterwards!
(Mr Plender) I do understand that there is a body
of opinion opposed to the European Union's ratification of the
Convention because that tends in the view of the opponents to
make the European Union more of a state and less of a union of
states. More of a state because the Convention is designed for
the control of states' powers and also more of a state because
it necessarily subjects to the European Union's supreme Court,
the Court of Justice, the interpretation and application of questions
of fundamental rights in the work of the European Union. Others
present may express what I take to be their objections better
than I do, more accurately than I do, but that is the broad thrust
of one of the arguments I understand is levelled against me.
Mr Bradshaw
240. But you think they are wrong?
(Mr Plender) Yes, I think that now that the decision
has been taken politically by the Member States to invest the
European Union with a number of competences in matters particularly
of police co-operation and aliens control and now that the European
Community is regularly exercising functions having a direct bearing
on the ordinary work of individuals and of commercial undertakings,
that there is such an obvious lack of judicial control that it
has to be redressed.
Chairman: Mr Plender, thank you very much. In
bringing this session to a close on behalf of myself, and I am
sure my colleagues on the Committee, we have found this evidence
session very useful and it will certainly assist in our work in
preparing our report into the IGC. Thank you very much, it is
very kind of you.
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