13 EU Accession to the European Convention
on Human Rights
| (32123)
10817/10
—
| Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)
|
| Legal base | Article 6(2) TEU and Protocol (No 8); Article 218(8) TFEU, unanimity; consent
|
| Department | Ministry of Justice
|
| Basis of consideration | Minister's letter of 4 November 2013.
|
| Previous Committee Reports | HC 83-xiv (2013-14) chapter 16 (11 September 2013); HC 86-xxix (2012-13) chapter 4 (23 January 2013); HC 428-xiv (2010-12) chapter 6 (26 January 2011).
|
| Discussion in Council | Not applicable
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information awaited
|
Background and previous scrutiny
13.1 An outline of the history, scope and substance of the
European Convention for the protection of Human Rights and Fundamental
Freedoms (ECHR) and developments to date in the process for accession
of the EU to the ECHR are set out in our previous Reports.[62]
13.2 In brief, a provisional Accession Agreement
was finalised at the early April meeting of the "47+1"
Council of Europe negotiating group, conditional upon internal
EU procedural steps being completed prior to the required approval
by unanimity in the EU Council.[63]
It was expected that:
a) EU Internal Rules, regulating at EU-level
certain necessary internal arrangements for EU and Member State
participation in the Council of Europe, would need to be agreed,
initially within the Council's Working Party on Fundamental Rights,
Citizen's Rights and Free Movement of Persons (FREMP)—work
on this has been ongoing; and
b) a request would be made by the Commission
for an Opinion from the Court of Justice pursuant to Article 218(11)
TFEU, on whether the "agreement envisaged is compatible
with the Treaties". The Article requires that where the "Opinion
is adverse, the Agreement envisaged may not enter into force unless
it is amended or the Treaties are revised".
13.3 In our last Report on this document in September,[64]
we said that despite the fact that it had been expected that publication
of a proposal for Internal Rules would precede the referral of
the provisional Agreement to the ECJ, the Minister of State for
Policing and Criminal Justice (Damian Green) had informed us on
16 August that the referral had already taken place and that the
UK intended to intervene in the proceedings by the 15 October
deadline. The conclusions to that Report contain our comments
on the Commission's Request for the Court's Opinion which the
Minister had invited us to make. We requested the Minister to:
- provide an estimate of when
the Court of Justice might deliver its Opinion;
- clarify whether discussions on the Internal Rules
in FREMP are continuing regardless, and if so, to keep us informed
of any developments; and
- provide us, in due course, with a summary of
the points raised in the Government's intervention.
13.4 We also invited the Secretary of State for
Justice to appear in person before us as soon as possible after
the Conference Recess.
Minister's letter of 4 November 2013
13.5 The Secretary of State says that he is happy
to appear before us to provide evidence but asks us to note that
he will be "constrained" on some areas and says that
we should assess whether an evidence session would be useful now
or better left until the publication of the Commission's proposal
on Internal Rules.
13.6 He informs us that the UK observations have
been submitted in the referral process but adds that as the matter
is now subject to litigation:
"I will be unable to provide evidence on any
of the documents or matters under discussion before the Court".
13.7 This includes the UK's observations which
we had asked to see and the Minister adds
"Since the Court documents are confidential,
I am unfortunately unable to share those with you until the litigation
has concluded. However, I am grateful to the Committee for its
report and the Government took into account the comments made
when settling the UK's observations".
13.8 He says that the Court of Justice has yet
to confirm its timetable but that he will keep us informed of
developments.
13.9 On the subject of the Internal Rules, the
Secretary of State says that the Government is continuing to press
the Commission to publish a proposal as soon as possible. He adds:
"The Commission has published its 2014 work
programme which notes a legislative initiative on the Internal
Rules. However we understand that the Commission only intends
to present a proposal on the Internal Rules following receipt
of the Court's Opinion. I understand that the Commission's Work
Programme will be the subject of an Explanatory Memorandum shortly.
We do not know whether the Internal Rules will continue to be
discussed informally in FREMP in the absence of a legislative
proposal. Although I would be happy to listen to the Committee's
views about what the Internal Rules should contain, until we see
the proposal, I'm afraid that discussion on their content will
be limited."
13.10 He says that he will keep us informed of
any developments on all of the matters addressed in his letter.
CONCLUSION
13.11 We thank the Secretary of State for
his letter, which deals with all the matters we had raised, except
that he does not clarify the precise basis on which confidentiality
of the documents involved in the Article 218(11) TFEU process
is asserted. Given that the accession of the EU to the ECHR is
an issue of the highest political and legal significance and of
considerable public interest, the need for transparency and accountability
in respect of arguments being advanced by both the institutions
and the Government is paramount. It would therefore be helpful
if the confidentiality of any documents before the Court in that
process were not just asserted, but precisely substantiated to
Parliament, given that competing public interest principles are
in play. Simply to state that confidentiality attaches to documents
"subject to litigation" is not sufficient; especially
as non-party access to court documents in the English legal system,
particularly in the field of judicial review, has been expanded
since 2006 to meet the need for "open justice". As confidentiality
of court documents has become the exception rather than the rule
in our own and many other national legal systems, we ask the Minister
to explain why the reverse situation applies at EU-level.
13.12 So we ask the Minister to confirm:
- the exact legal basis in
the Statute of the Court of Justice, the Rules of Procedure of
the Court of Justice and any case law of the Court of Justice
or the General Court which supports confidentiality of the court
documents in proceedings before the Courts; and
- whether that legal basis for confidentiality
still applies to the process envisaged by Article 218(11) to which
specific court rules apply.
13.13 On the question of what the Internal
Rules should contain, we can at least say at this stage that we
would want the highest possible procedural safeguards to be included
to avoid a Member State being pressurised into adopting an internal
"common position" to which it was opposed, to be presented
as an "en bloc" vote of all the EU Member States in
the Council of Europe.
13.14 On the question of the timing of an
evidence session, we will reserve our final view until we receive
a response to the paragraphs above.
13.15 In the meantime, the draft Council Decision
remains under scrutiny.
62 See headnote. Back
63
Pursuant to Article 218(8) TFEU. Back
64
See headnote: HC 83-xiv (2013-14) chapter 16 (11 September 2013). Back
| 
