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House of Commons
Session 2006 - 07
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General Committee Debates
European Standing Committee Debates

Fundamental Rights



The Committee consisted of the following Members:

Chairman: Mr. Christopher Chope
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Clarke, Mr. Charles (Norwich, South) (Lab)
Cunningham, Tony (Workington) (Lab)
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Flello, Mr. Robert (Stoke-on-Trent, South) (Lab)
Fraser, Mr. Christopher (South-West Norfolk) (Con)
Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
Hughes, Simon (North Southwark and Bermondsey) (LD)
Hurd, Mr. Nick (Ruislip-Northwood) (Con)
Lepper, David (Brighton, Pavilion) (Lab/Co-op)
Linton, Martin (Battersea) (Lab)
Lucas, Ian (Wrexham) (Lab)
Prentice, Bridget (Parliamentary Under-Secretary of State for Constitutional Affairs)
S(r)an Jones and David Slater, Committee Clerks
† attended the Committee
The following also attended, pursuant to Standing Order No. 119(5):
Cash, Mr. William (Stone) (Con)

Standing Committee

Tuesday 28 November 2006

[Mr. Christopher Chope in the Chair]

Fundamental Rights

[Relevant Documents: EU Document No. 10755/06 and EU Document No. 13104/06.]
4.30 pm
The Parliamentary Under-Secretary of State for Constitutional Affairs (Bridget Prentice): I am pleased to be here on behalf of the Under-Secretary of State for Constitutional Affairs, my hon. and learned Friend the Member for Redcar (Vera Baird), whose remit this debate would normally be, but who is unfortunately tied up with other departmental matters. I hope that I shall be able to answer any questions, but I will ensure that a detailed written response is sent if I am unable to respond orally.
I am delighted to serve under your chairmanship, Mr. Chope. This is the first time that I have done so in this Committee. We have the opportunity today to discuss two important proposals to establish a fundamental rights agency and a fundamental rights and citizenship programme. These proposals are separate, but I hope that we can discuss them together because the subjects are obviously similar.
I shall give a brief overview of the Government’s position on both proposals. Although we are broadly content with the regulation establishing the fundamental rights agency, it will not surprise any Member here that we have strong reservations about the proposed decision to extend the agency’s remit to the third pillar. The Government would also strongly object to any change to the wording of the references to the charter in the recitals of the regulation as drafted in the Austrian presidency text that hon. Members have seen.
I shall address the two issues in turn. On the charter of fundamental rights and freedoms, the Government have repeatedly supported the view that the charter is an important political declaration that was proclaimed in Nice on 7 December 2000—almost exactly six years ago—but it is not legally binding on member states or any EU institution. It is true that the Commission is using the charter as a point of reference to monitor the compliance with fundamental rights of its legislative proposals, but that will not change the legal status of the charter and it remains not legally binding. As all member states have signed up to it, it is natural that some member states and EU institutions may choose to refer to it as an important political declaration.
On the agency’s third pillar remit, I am afraid that the Government are in genuine disagreement with the recommendation of the House of Lords and with the current presidency proposal. The Government simply do not consider that there is an appropriate legal base in the treaty establishing the European Union to support a Council decision extending the agency’s activities to the third pillar. In addition, we consider that an agency empowered with a third pillar remit would increase the risk of duplication with the work of the Council of Europe. The agency would avoid that risk by focusing on fundamental rights issues within Community law.
That does not preclude the possibility of a compromise. One possibility that has been canvassed is for the issue to be reconsidered in two or three years under the review clause of the regulation establishing the agency. By then, the legal position may have changed. However, no matter what compromise is tabled, the Government are clear that at present there should be no third pillar decision accompanying the regulation establishing the agency because that would be impossible under the current treaties.
I am aware that the Committee has raised concerns about the agency’s third pillar remit, particularly on the propriety of naming the agency a European Union body when in effect the Government are opposing the European Union side of the agency. My colleague, Baroness Ashton, has already addressed this point, but let me confirm that although I share the Committee’s concerns, I would expect the agency to be addressed as a Community body. That decision does not depend only on the UK Government.
The Committee will be aware that many member states support the agency’s third pillar remit, and thus, in the spirit of co-operation and as long as the third pillar decision is not included in the final proposal, we should not remain inflexible on other points.
I now want briefly to address the proposal that will establish a fundamental rights and citizenship programme for the period from 2007 to 2013. It is part of the larger fundamental rights and justice programme that the Government support. The Government’s main concern about the programme is about the fact that references to the charter are contained in the substantive articles of the proposed decision. I will not repeat myself, but will only state that the references to the charter in the programme as worded would not be acceptable to the Government.
The Chairman: We have until half-past 5 for questions to the Minister. Questions should be brief, seriatim and one at a time for each hon. Member. If people comply with that, I am sure that we will be able to fit in all the questions in the time available.
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship, Mr. Chope. The Minister quite rightly pointed out that the new agency should not have any role in relation to police and judicial co-operation under the third pillar remit, and that it would only be a Community body. However, a decision is imminent. The agency will, as I understand it, come into force on 1 January 2007. Have Ministers won the argument? Have recital 32 and article 28 of the proposal been removed or significantly amended?
Bridget Prentice: My understanding is that they have not been removed or amended. As I said, we oppose the idea that that role should be part of the third pillar. Recital 32 will have to be amended accordingly and that will happen at some stage in the future—I cannot give the hon. Gentleman a particular date at this stage.
Mr. Bellingham: I refer the Minister to page 71 of the bundle, and a letter from her colleague the noble Baroness Ashton, who states that the Government will almost certainly
“find itself in the position of having to override the scrutiny process either at the COREPER meeting...or at the JHA Council”,
which is next week. Are the Government really going to override the scrutiny process and when was the last time that they did so?
Bridget Prentice: I assume that the hon. Gentleman is referring to the letter to my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty). As Baroness Ashton said, if necessary, the Government would have to override the scrutiny. I cannot think at the moment of any specific precedents for that, but of course the Government will not have to override scrutiny if the document is cleared today. In a sense, that is in the hands of the Committee.
Mr. William Cash (Stone) (Con): On a point of order, Mr. Chope. I find the Minister’s remark astonishing. She knows perfectly well that if there were to be a vote against the proposal today—I speak as a member of the European Scrutiny Committee since 1985—it would be simply astonishing if that were not overturned on the Floor of the House. That happens every single time. The Minister is not merely being disingenuous but is perhaps going a little too far in exaggerating the position that she has adopted.
The Chairman: That is not a point of order, but a matter for debate. We can get on to the debate once we have finished the question session.
Mr. Bellingham: I turn now to the subject of the cost of the agency. The Under-Secretary of State for Culture, Media and Sport, the hon. Member for Tottenham (Mr. Lammy), who was then a junior Minister in the Department for Constitutional Affairs, was asked in a debate in Westminster Hall, which can be found in column 267WH in the Hansard of 2 February 2005, about the budget for a new agency. He said that the basis for the discussions of the budget for the new agency would be governed by the budget of the EU Monitoring Centre on Racism and Xenophobia, which is currently €8.2 million. He said that it would go up in line with inflation. Am I right to say that, according to the document before us, the budget for the new agency in 2013 will actually be €29 million? Will it employ 100 staff?
Bridget Prentice: My understanding is that under human rights law, system co-existence is a long-established practice. The budget will be as my hon. Friend the Member for Tottenham described, and I have no reason to resile from that. We will have to monitor the budget closely. It will be higher than the monitoring centre, because there will be a larger staff, which will inevitably mean a larger budget between 2007 and 2013. I shall write to the hon. Gentleman if I can find specific figures for him. The only reason for any budget increase will be the greater number of staff.
Mr. Cash: The Minister, in opening, said that the charter was not legally binding, but I am sure she knows that the European Court of Justice has the power to adjudicate. How does she distinguish between what is not legally binding and what falls within the adjudication remit of the European Court of Justice?
Bridget Prentice: As I said, the charter is not legally binding. People will regard it as an important document. We regard it as an important political declaration ourselves. However, we have made it clear that it is not legally binding, so the Court will have no jurisdiction over it. It is a political document making a political declaration, and member states make a political point when raising it.
Mr. Cash: Is the Minister saying that the Court will not adjudicate on the charter?
Bridget Prentice: I am saying that the Court will adjudicate on that which is legal, not that which is political.
Simon Hughes (North Southwark and Bermondsey) (LD): I, too, am very happy to serve under you, Mr. Chope—I think for the first time.
There are many interesting questions about the proposal, but I shall start at the beginning. Will the Minister clarify what she said about the timing and political decision making from now on? The proposal is that the new bodies, the programme and the agency, should start on 1 January next year, and that the current European arrangements should then end. Is everything in place? Is it awaiting only a political decision? Or, because we are five weeks away from the end of 2006, will the new arrangements not start on1 January 2007 in any event?
There is a linked question. If, at the next Justice and Home Affairs Council, the UK sustains its reservation, with other countries potentially taking a similar view, will that prevent the agency and/or the programme from coming into effect until an agreement at a later date?
Bridget Prentice: The hon. Gentleman makes two important points. The next Justice and Home Affairs Council is next week, on 4 and 5 December, and there will be transitional arrangements for the first few months. It will not be all systems go on 1 January; there will be an overlap, and the transitional arrangements being made will be discussed in more detail next week.
The hon. Gentleman’s second point escapes me. Perhaps he will remind me of it.
Simon Hughes: It was whether the coming into effect depends on the decision of the Justice and Home Affairs Council and a political decision to give the green light.
Simon Hughes: I shall press the Minister a little further on that if I may. Do we need a majority or unanimous decision next week to set up the agency and get it going from 1 January? If it requires a majority and there is a majority in favour of it going ahead with all the proposed powers, including those to deal with the third pillar, will it go ahead irrespective of the UK’s objection? If our agreement is required, will it go ahead only if there is agreement next week about its remit being less than is currently proposed? Or will it go ahead at a later date after further discussions and agreements at later JHAC meetings?
 
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Prepared 29 November 2006