PART 13 OF THE BILL: EU 'THIRD PILLAR'
72. We note that Part 13 of the Bill would allow
Secretaries of State, the Lord Chancellor, the Treasury, and the
devolved executives to make subordinate legislation to give effect
to obligations and rights of the United Kingdom arising in EU
law under the 'third pillar' (Justice and Home Affairs).
Provisions could include the creation of new offences required
by EU law under the third pillar, which would not otherwise be
offences under the law in the United Kingdom. The immediate purpose
is to give effect to the Framework Directions on a European Arrest
Warrant and on Anti-Terrorism Measures currently being negotiated,
though as we noted above, Ministers seem to have indicated that
the first of these will actually be introduced by way of primary
legislation. The appropriateness of provision for implementation
by affirmative instrument will no doubt be considered by the Delegated
Powers and Regulatory Reform Committee of the House of Lords.
Drafts of these are subject to the scrutiny reserve, and are under
consideration by the House of Commons European Scrutiny Committee
and the House of Lords EU Committee, Sub-Committee E.
At present, it seems to us likely that the main human rights questions
to arise will be
- whether safeguards attaching to a European
arrest warrant will suffice to meet the requirements of the right
to liberty under ECHR Article 5; and
- whether any provisions relating to deportation and extradition
satisfy the requirements of the right to be free of the death
penalty under Article 1 of Protocol No. 6 to the ECHR and the
right to be free of torture and inhuman or degrading treatment
or punishment under Article 3 of the ECHR (from which Articles
no state is permitted to derogate under any circumstances), and
the Geneva Convention on the Status of Refugees 1951.
73. Any Orders made under the powers proposed in
the Bill would be scrutinized by the Joint Committee on Statutory
Instruments. Orders might be invalid to the extent of any incompatibility
with Convention rights. However, if an order were to amend primary
legislation (which it would have power to do), it would itself
be regarded as primary legislation for the purposes of the Human
Rights Act 1998, section 21(1). A court might make a declaration
of incompatibility in respect of it, but an incompatibility would
not affect the validity or effectiveness of the order.
74. We consider that it will be important to ensure
that the procedure for making orders adequately safeguards human
rights. Since other Committees are currently examining different
aspects of the proposals, we make no detailed comment on them
now, but we may decide to revisit the matter in the future.
75. We have considered other provisions of Chapter
13 of the Bill, but have concluded that it is not necessary to
draw attention to any of them at this time. As noted above, we
may in any case report further on this Bill at a later stage in
its passage through the two Houses.