1 Creation of a Fundamental
Rights Agency
| (26126)
14223/04
COM(04) 693
| Commission Communication: The Fundamental Rights Agency — public consultation document
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| Legal base | — |
| Department | Constitutional Affairs
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| Basis of consideration | Minister's letter of 24 January 2005
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| Previous Committee Report | HC 38-i (2004-05), para 1 (1 December 2004) ; and see (24803) 12135/03: HC 63-xxxviii (2002-03), para 6 (19 November 2003), HC 42-iv (2003-04), para 4 (7 January 2004) and HC 42-xi (2003-04), para 8 (25 February 2004)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | For debate in European Standing Committee B (decision reported on 1 December 2004)
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Background
1.1 On 12 and 13 December 2003, the European Council decided to
"build upon the existing European Monitoring Centre on Racism
and Xenophobia and to extend its mandate to make it a Human Rights
Agency". We considered the Commission's consultation document
on 1 December 2004 and recommended it for debate in European
Standing Committee B in view of the issues of general importance
it raised and which ought to be debated so as to inform the Government's
approach to the matter.
1.2 We noted that the consultation document discussed
the arguments in favour and against two options for the role of
the proposed Agency. On the one hand , the remit of the Agency
might be confined to the scope of Community (or Union) law, so
that its role would be to help to ensure compliance with fundamental
rights by complementing the existing Community arrangements such
as judicial review by the Court of Justice. In this connection,
we noted the explanation by the Commission that confining the
Agency's remit strictly to the areas of Community competence would
avoid duplicating the work of other bodies operating at international
and national level.
1.3 The other option would be to give the Agency
a broader role so that it would monitor the observance of human
rights generally within the Member States, regardless of whether
the matters monitored fell within the scope of Community law.
We noted the explanation by the Commission that with the narrower
remit outlined above the Agency could not be asked to collect
and process the information needed for the purposes of proceedings
under Article 7 EU if the situation "had no connection with
Union law or extended beyond the fundamental rights field".
We noted the Commission's view that Article 7 EU "allows
the Union to act outside the field of EU law, in areas where Member
States act autonomously". If the Agency were to act as an
"early warning instrument" for situations covered by
Article 7 EU, the Commission nevertheless considered that it should
in any event be "required only to provide institutions with
the expertise that allows them to base their decisions on reliable
and objective data". The Commission also questioned whether
such an extensive remit could be reconciled with the aim of an
effective Agency and suggested that it could lead to overlap with
the work carried out by the Council of Europe and national human
rights bodies.
1.4 In our consideration of the consultation document,
we agreed with the Government's view that there was no case for
the broader role for the proposed Agency. We were also concerned
about the ambiguous references to the Charter of Fundamental Rights,
and we doubted that it should be used to determine the competence
of the Agency, unless and until it came into legal force. We also
believed that the Commission was right to voice concerns about
the risk of the Agency duplicating the work of the institutions
of the Council of Europe in the field of human rights, and considered
it would be highly regrettable if the Agency were to be given
a role which led to the marginalisation of the European Convention
on Human Rights and its institutions.
The Minister's letter
1.5 With her letter of 24 January 2005, the Parliamentary
Under-Secretary of State at the Department for Constitutional
Affairs (Baroness Ashton) sends us a copy of the Government's
formal response to the Commission's consultation paper. The Government
believes that the main focus of the proposed Agency should be
to "serve as a fact finding and opinion-giving body that
can help EU institutions and Member States in their implementation
of Community law".
1.6 The Minister summarises the UK position as follows:
"The UK Government strongly believes that the
focus of the Fundamental Rights Agency (FRA) should be upon compliance
by the institutions of the EU with human rights. The legal base
for the FRA should be Articles 284 and 308 of the Treaty establishing
the European Community (TEC) and not Articles 6 and 7 of the Treaty
establishing the European Union (TEU).
"The primary purpose of the FRA should be data
collection and analysis. As such, it would build upon the existing
functions of the European Monitoring Centre on Racism and Xenophobia
(EUMC), but expanding its reach from anti-discrimination into
the wider protection offered by human rights norms. This move
towards an integrated approach to equality and human rights is
consonant with the approach of the UK, where legislation to create
a Commission for Equality and Human Rights has recently been announced.
Additional tasks for the FRA should be the promotion of awareness
and best practice through the provision of guidance and generic
advice, and the development of links with civil society. The Agency
should operate in those areas in which it can best add value;
to this end, setting priority thematic areas would ensure that
its work was focused and relevant. The definition of these priority
areas should be determined according to where the need for greater
information and awareness of fundamental rights is greatest.
"Respect for fundamental rights has been for
many years a general principle of the Community, and the Agency
should look first at those human rights which thereby form part
of Community law. In this context, the Charter of Fundamental
Rights could also be used as a starting point, as a statement
of rights, freedoms and principles applicable at Union level,
bearing in mind its horizontal Articles and the official explanations.
In addition, although it should not play a policy or operational
role on human rights issues in third countries, it is for consideration
whether the Agency should be available to provide assistance to
countries interested in EU best practice, for example as part
of the accession process or European Neighbourhood Policy.
"The UK believes that an Agency established
with such a remit would be able to focus on tasks of greatest
priority to citizens throughout the EU. Any role for the FRA based
upon Articles 6 and 7 TEU would compromise its effectiveness and
run the risk of overload. It would also lead to unwelcome and
inefficient duplication with other established or developing institutions
in the Council of Europe, within the Union itself, and within
Member States — in the case of the latter also compromising
the principle of subsidiarity."
1.7 These points are developed in more detail in
the UK's response, which comments, in particular, on the core
functions of the proposed Agency, its geographical and substantive
scope and the need to avoid duplication of the work of the Council
of Europe. The UK's reply also makes the point that any new Agency
would have to be based on Articles 284 and 308 EC, since it is
not thought that Articles 6 and 7 EU provide an adequate legal
base for the creation of a monitoring agency.
Conclusion
1.8 The Government's response to the Commission's
consultation document is an important statement which should be
made available for the purposes of the debate in European Standing
Committee which we have already recommended.
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