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Scrutiny is not among the activities set out in article 5. The lack of scrutiny of EU legislation for compliance with human rights is one of the big gaps. That process is pretty well missing. I believe that the European Scrutiny Committee made a recommendation about this, as did the Committee in the Lords in 2006. I suppose I am advocating something similar to part of the role of my own Committee, which scrutinises domestic legislation for its compliance with human rights standards. It is said that the Commission’s job is to ensure compliance, but that raises the issue of who monitors the Commission’s work, a point raised by the hon. Member for Beaconsfield (Mr. Grieve). Realistically, that should be the role of the Fundamental Rights Agency, although it does not yet have it. Nor, I suspect, does it have the relevant expertise. It does not have the indispensable legal advisers that my Committee has, nor a partner equivalent to ours—the Ministry of Justice—that has an overarching responsibility
to ensure compliance and to co-ordinate across government. Ultimately, that should be part of the presidency’s job.
Human rights scrutiny should be done at the earliest possible stage of European legislation—long before it reaches member state Parliaments, where any such scrutiny will be cursory at most. My Committee does not have the resources to scrutinise European legislation properly for the purposes of human rights; as it stands, we are pretty stretched doing our domestic job. That important aspect should be addressed.
As I mentioned, the Fundamental Rights Agency is a first-pillar organisation, although originally it was intended to be a third-pillar one. The Lisbon treaty, of course, abolishes all references to pillars, but regulations for the agency remain first-pillar arrangements, although under article 31 there are provisions for review. It seems to me that in practice it would be impossible for the agency to do its job effectively if it were simply a first-pillar organisation. For example, to monitor and scrutinise effective action against people trafficking involves the full range of the three former pillars: not only European institutions, but police, justice and crime—and, I suppose, foreign affairs, given the issue of source countries. If we are to enforce on the issue of people trafficking, we need to recognise that.
The work programme of the Fundamental Rights Agency is interesting. Many British universities have also been involved in its work. The survey on discrimination against and victimisation of migrants is similar to the British crime survey. I am pleased to see that my old university, Warwick law school, is working on good practice in ethnic profiling by police and border forces, and I am sure it will produce an excellent report. As a result, there is analysis of how migrants are treated by the media. I wish the school luck on that; my Committee did some work on that issue and found it difficult.
Edinburgh and Glasgow universities are supporting work on pathways to violent radicalisation, although I think it potentially rather simplistic. There is also work on homophobia and the protection of children’s rights in the light of the new rights in the treaty—objective indicators are being considered to measure progress in that respect. There is also holocaust education, on which we have a good record.
Earlier, the issue of EU accession to the European convention on human rights arose. It arose because of a 1994 European Court of Justice decision that the European Union could not accede. The Lisbon treaty, of course, provides for that mechanism. The real problem at the moment is getting the Council of Europe to agree—that requires unanimity on its part. All the countries involved have now ratified, save Russia, which I hope will get around to doing so before too long.
The risk of the European Court of Justice and the European Court of Human Rights developing divergent views on similar issues has been raised. It is important to recognise that those who advocate that line accept, effectively, that the charter and the European convention effectively deal with the same sort of issues—otherwise, the risk would not even be discussed. The answer is to look at the position of the ECJ as an EU institution. If the EU accedes to the European convention, it does so
with all its institutions, including the ECJ. Effectively, therefore, the ECJ itself, as an EU institution, would become subordinate to the convention and the rulings of the ECHR. It would have to comply with views expressed by the European Court of Human Rights as arbiter of the convention. The circle is easily and properly squared by simply looking at the status of the different institutions that would follow from that.
I am pleased that the charter incorporates children’s rights into the treaty under chapter III, which covers equality. It is a pity that that will not apply in the UK, because that might help us to deal with the reservation that the UK has expressed about the convention on the rights of the child in relation to immigration matters, which is now under review by the Government. I hope that we do not have to rely on the charter to resolve that.
Several issues arise in relation to the protocol. Nothing in the charter creates new justiciable rights, partly because of subsidiarity and partly because the solidarity heads are not rights as such but are more by way of principles. Even if they were rights, it is possible in the long term that the ECJ might make them enforceable. The protocol therefore becomes belt-and-braces protection. Having looked at the terms of the charter, that does not particularly worry me. The charter is an excellent document that sets out a whole series of excellent rights. It should inform our own future debates on a British Bill of Rights, which would, I hope, include most of the things that are set out in the charter, including the social, political and economic rights. That would be a huge step forward for our society and our democracy. I rather regret the reservation of the UK’s position on the protocol. This is a very progressive document. We have nothing to fear from it and there would be an awful lot to be gained if it applied in the UK.
5.21 pm
Mr. Edward Davey (Kingston and Surbiton) (LD): It is always a pleasure to follow the hon. Member for Hendon (Mr. Dismore), especially when it is not a Friday. He speaks with great authority on these matters, and the Committee that he chairs does an awful lot of good work. He talked about the agency for fundamental rights and the fact that we are not absolutely clear how it is going to develop. I share his concerns. It will have an important role, but we need to be clearer how it will operate and how it will check the Commission. I hope that the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice), will respond to the hon. Gentleman’s comments.
I want first to set the scene for the positive role played in the development of human rights by Europe and by Britain. As the Lord Chancellor said, we should be very proud of that, and it is worth reflecting on. I also want to argue that there is nothing new of substance in the charter of fundamental rights—certainly nothing to be scared of—and to deal with remarks made particularly by Conservative Members in that regard. I then want to argue that the charter has a useful role and underlying purpose.
Mr. Dismore: I am sure that the hon. Gentleman recalls that the Lord Chancellor challenged Conservative Members to say which of the rights they disagreed with, and none has so far done so.
Mr. Davey: The hon. Gentleman is right, except in one regard—the right hon. Member for Wells (Mr. Heathcoat-Amory) appeared not to like academic freedom, so at least one Conservative Member has pointed to a right that they would no doubt get rid of.
Mr. Heathcoat-Amory: The hon. Gentleman has a gift for missing the point, and he has demonstrated it again. The assertion that scientific research must be free of constraint is in the charter, and it is entirely unconditional. Those of us interested in matters such as animal welfare and animal rights believe, contrary to that assertion, that Parliament should set limits to scientific research and that that should be debated and decided in a democratic Chamber according to the preferences of our constituents, not exported to a Court over which we have no control. That has nothing to with the hon. Gentleman’s remark.
Mr. Davey: The right hon. Gentleman is the one who is missing the point. Not only is the article he refers to deduced from article 10, as the Lord Chancellor said in his answer, but it in no way fetters this Parliament in making laws in this area.
Mr. Lilley: Is it now the policy of the hon. Gentleman and his party to be in favour of the unrestricted right of research scientists to carry out experiments on animals?
Mr. Davey: The question is one of process and how we establish the restrictions if there are to be any. We believe that they should be decided in this House. We are debating legislation in this area in Parliament at the moment, in the other place. I do not see the right hon. Gentleman’s concern.
Mr. Grieve: The hon. Gentleman started by echoing the Lord Chancellor’s rather facile attack when he asked, “Which of these rights do you not like?” He was then forced, within about 35 seconds, to admit that it is all a matter of process. Perhaps we could now have a debate about process and whether the processes envisaged by the charter are sensible ones for this country to adopt.
Mr. Davey: It is a question of both. It is not just about rights or processes—[Hon. Members: “Both!”] Of course it is a matter of both. And I have to say that I disagree with the hon. Gentleman deeply on both issues.
Mr. Clappison: Will the hon. Gentleman give way?
Mr. Davey: No, I would like to make some progress. I shall give way to the hon. Gentleman later.
I believe that this country has a proud record in pushing for human rights, and I believe that the European Union has played a superb role in pushing for them in other countries. In the early part of the debate, people were saying that it is important that British citizens have their rights protected when they go to other EU member states. I also think, however, that the people of Britain would like to see higher standards of human rights and civil rights in other EU countries.
One of the great dynamics behind the accession of other countries to the Union is that they are forced to raise their standards of human rights. We saw that in Romania, in particular. A decade ago, Members of this House were concerned about the way in which orphans were treated in Romania, and because of its desire to join the European Union, standards of child care, particularly for orphans, were raised massively in that country. That is surely something we all welcome. It is just one example of the many practical things that have happened because the European Union has said, “If you want to join the club, you have to meet our high standards of human rights.”
Mr. Clappison: Will the hon. Gentleman give way on that point?
Mr. Davey: I will give way to the hon. Gentleman later.
I also think that my previous point applies to democracy. The whole point of the European Union is that it has forced people to accede to the democratic values that we share, and as the hon. Member for Wolverhampton, South-West (Rob Marris) said from a sedentary position, that is a very important development for the long-term peace of the world.
Human rights in the EU have been a major dynamic for good, but that is not to say that we can be complacent. One only has to read the reports of Amnesty International or Human Rights Watch, not just about such countries as Bulgaria or Romania, but even about this country, to learn that those who are watching EU Governments are noticing infringements of human rights. In such countries as Poland, we are seeing relatively extreme breaches of human rights. The 2007 Amnesty report states that in Poland:
“Lesbian, gay, bisexual...people were subjected to discrimination and intolerance.”
It refers to the problems faced by Romany people in Bulgaria, and with regard to Romania:
“The Council of Europe and the European Parliament expressed concern at Romania’s lack of willingness to engage in a thorough investigation into allegations of collusion with the US-led programme of renditions and secret detention centres.”
The Amnesty report says that even in the United Kingdom
“the government continued to erode fundamental human rights”—
a point that we have made continually. It is true that that the European Union has been a force for good in this area, but we cannot be complacent. That is why these debates are important, why the charter is important and why we should work with colleagues throughout the EU to go further in this area.
What extra dimension does the Lisbon treaty give human rights? It does not take us very far. Most of the big leaps in human rights occurred some time ago. Before Britain acceded to the European Union, the European Court of Justice dealt with protecting fundamental rights. That formed the basis of the principles of law that governed its rulings. Perhaps more significant is the way in which protecting human rights was developed by treaties, to which former Conservative Governments signed up. Conservative Members will have to answer that point.
It is interesting that the preamble to the Single European Act expressed the determination of European Community member states
“to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.”
In other words, the debate has been going on for a long time and parties throughout the House signed up to such protections. Article F of the Maastricht treaty states:
“The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
The background to our debate is therefore long established and was previously bipartisan. It is a shame that the Conservative party seems to be moving away from a commitment to those important human rights.
Rob Marris: It could be argued that such bipartisanship as existed finished in about 1996 or 1997, when the Conservative Government, to their shame, would not sign up to the social chapter or allow workers in this country a statutory right to paid holidays and so on. The Conservative party, to its credit, has held a fairly consistent position since 1996 or 1997 of not wishing to extend human rights. It is the wrong position but it is consistent.
Mr. Davey: I accept the hon. Gentleman’s analysis. When Conservative Members eventually determine their position, we will see whether they change or continue with that lamentable record.
Mr. Clappison: Perhaps the hon. Gentleman will answer a question about Liberal Democrat policy. If there were an opportunity to do so, would Liberal Democrats withdraw from the protocol and give the European Court of Justice and the charter full effect in the United Kingdom, free from the purported restrictions of the protocol? Yes or no will do.
Mr. Davey: There is a case for what the hon. Gentleman says. The protocol does not do much. I shall argue that in due course. Lawyers to whom I have spoken say that it is a padlock on belt and braces. In other words, it is otiose. For those who have been worried—whether the CBI, those from the trade union movement or hon. Members—it may serve a purpose, but I hope that I will convince others that the protocol is an unnecessary padlock because we already have other safeguards.
When one examines the charter, some of the paranoid concerns quickly disappear. The charter records existing rights. When one reads the explanations, one finds their sources. It applies primarily to EU institutions. Conservative Members should welcome the fact that the EU institutions will be restrained and restricted and have to adhere to rights. If they believe in limited government and restricting the abuse of power, they should support that.
Some hon. Members have asked what the point of the charter is, if it does not contain much and simply assembles existing rights. The Lord Chancellor answered that question when he spoke of rights being more visible. We in this country and this House might think, “Well, we know those rights—we’ve debated
them for decades.” However, there are citizens in some member states and in countries that hope to join for whom such rights are strange and new, and would be welcome. Having a charter that brings those rights together, so that they can be put up in lights to say, “If you join the European Union, these are the sorts of the benefits that you can enjoy,” is a good thing.
Mr. Harper: Given that all those rights supposedly exist already, would it not have been simpler to put them all in a book, rather than including them in a treaty that even the Commission accepts is designed to be unreadable and impenetrable?
Mr. Davey: I think that has already happened, so I am rather surprised by the hon. Gentleman’s intervention.
If one then wants to argue about the impact of the charter—I do not believe that it introduces any rights, as I have said—or one is concerned about whether there are enough safeguards and protections, one has only to read the text in the surrounding documents. The preamble to the charter is specific and clear about the ambitions in the charter being deliberately limited. If one is still worried, one should look at the treaty of Lisbon. I quoted the second paragraph of article 6.1, which is absolutely clear, in an intervention on the hon. Member for Aylesbury (Mr. Lidington), but he gave no answer. One can then look at article 51.2, in chapter VII of the charter of fundamental rights, which could not be clearer:
“This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.”
Again and again, in all the documentation, the fears that are sometimes put forward are dealt with.
Mr. Cash: I have heard a great deal this afternoon about there being no new rights. Citizenship of the Union currently complements national citizenship, which has enormous implications for the charter, but the new arrangements are that citizenship of the Union shall be “in addition” to national citizenship. Those are two completely different matters, which have enormous implications for how we are to be treated under the European Court of Justice.
Mr. Davey: I look forward to hearing the hon. Gentleman explaining the massively significant difference in his speech, because it passes my understanding.
After all the protections that I have outlined comes the protocol, which is legally binding, which, as we have heard, could not clearer. People who are scaremongering about the impact of the charter should therefore go back to the text and see the protections that are there.
Jon Cruddas (Dagenham) (Lab): Does the hon. Gentleman not accept that the charter has already had a role in interpreting European law in this country recently? For example, BECTU—the Broadcasting Entertainment Cinematograph and Theatre Union—used it in recent litigation, while the Advocate-General referred to it when he granted holiday rights to those with less than 13 weeks’ service.
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