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Lord Goldsmith: My Lords, that question would be better addressed to the member states which have taken that view. The European Court of Justice has taken the view that it is outside the competence of the European Union to sign up to the treaty. There are difficult political and legal questions. Certain states do not wish to see the jurisprudence or the legislation of the European Community subjected to the court in Strasbourg. But it is a fact that some are implacably opposed to it at the moment.
Lord Lester of Herne Hill: My Lords, leaving aside the question of whether the convention is competent to deal with accession, does the noble Lord agree that accession would provide an effective answer to filling the gap identified by the committee? If that is not the way of doing it, what would be his other proposal for filling the gap in order to bind the European Union institutions into complying with the convention rights?
Lord Goldsmith: My Lords, there are undoubtedly advantages in the accession route in dealing with certain of the problems identified by the committee and to which I have referred. I refer to the legal
The second part of the noble Lord's question related to the alternative. The alternative is the two-part document to which I have referred. It ties the right absolutely in the field of the ECHR to the ECHR right so that, to the extent that the European Court of Justice has jurisdiction (which it does by virtue of Article 6(2) of the treaty), the Court will regard that document as an important, solemn statement of what the member states, the Council, the Commission and the Parliament believe are the fundamental freedoms which the European Union institutions must respect.
My noble friend Lord Shore of Stepney referred to some of this exercise as juvenilia. He referred in particular to one of the articles which refers to a day of rest. The day of rest is perhaps one of the oldest and, some would say fundamental, rights which is to be found. It has an even older and greater pedigree than that of habeas corpus. I share the great privilege of having attended a school that my noble friend Lord Shore of Stepney attended. Indeed, the noble Lord, Lord Rodgers of Quarry Bank, in part bears its name. As a juvenile I recall being inspired by the words of my noble friend. I am much older now. I do not know what that says about my noble friend. He was very young at the time. I do not regard this as a juvenile exercise. I regard it as an important step in the continued protection of human rights. I hope that future debates will not be dumbed down by a Eurosceptic press. I hope that we shall continue to have debate which is as informed and thoughtful as today's is.
Lord Pearson of Rannoch: My Lords, in that light of those remarks, perhaps I may put a question to the noble Lord who has given us such an authoritative insight into the whole process and presumably into the present attitude of Her Majesty's Government.
Do Her Majesty's Government feel at variance with the European Commission in its aims for this charter? I say that because I have with me a brief quote from Mr Antonio Vittorino, the European Commissioner for Justice and Home Affairs. I understand that he is the Commission's representative on the convention. The quote does not sound quite so innocent. It states:
Lord Goldsmith: My Lords, Commissioner Vittorino is indeed the Commission's representative on the body. He subscribes to the articles which I read at the beginning of my speech: that this is not to extend the competence of the Union; that it is addressed to the European Union institutions; and that it affects member states in so far as they implement Community law. I suggest that that is what is important in this debate. That is what President Herzog has said. Ultimately, it will be for Her Majesty's Government to decide on the content of this document which we continue to seek to improve. I am confident that Her Majesty's Government will decide in the interests of the British people because that is what this document is about: the right thing to do.
Baroness Howells of St Davids: My Lords, I very much doubt whether I can add much to this debate which has attracted so many learned friends and so many eminent speakers. I refer in particular to the maiden speech of the noble Baroness, Lady Billingham, with whose sentiments I concur. However, I feel a necessity to contribute if only to justify my existence as the alternate to the noble Lord, Lord Bowness, whose grasp and understanding of the purpose of the charter and his attendance at the meetings spared me the necessity of speaking in Brussels but left me time to listen to the discussions on my few attendances and read the presentations. For that I crave your Lordships' indulgence.
The creation of this charter presented the committee with a number of questions which have been argued both in Brussels and in the report presented to the House. Most have been debated by earlier speakers. As the report points out, the issue needs further consideration by us all.
I rehearse here the questions posed. Do we need such a charter given existing human rights? Which rights need to be protected? What, if anything, is the form and legal status of the instrument and its relation to EC treaties and the European Convention on Human Rights? Are we at risk of creating different systems of protection within the EU and the wider Europe with the possible damage to legal certainty and general confusion? What are the mechanisms for monitoring compliance and dealing with breaches?
Those and many other questions are still open for debate despite the excellent Select Committee report to this House. One of the questions yet to be tackled is the universal character of the charter. Could the Council of Europe isolate itself from the rest of the world? The values of the charter fundamental rights should not be seen to be for Europeans only. People from other regions of the world should also be encouraged in some way to aspire to the acknowledgement of their fundamental rights. We are constantly being made aware of persons who put their life and security in danger for the sole reason that they appeal to have their human rights respected.
Despite the questions, I welcome the charter. I believe that it is a clearer way of exporting to countries which hope to join the Community the rights, responsibilities and values that are held so dear within the European Union. I believe that the charter will be a document which sets out in a more accessible form the many rights EU citizens already enjoy at European level and would make it easier for EU citizens to know the civil and political rights they already enjoy under the various treaties.
I believe that the charter would make existing rights clearer and more accessible and would deepen and strengthen the culture of rights and responsibilities at all levels across the EU, identifying and complementing existing legal instruments on fundamental rights. It would emphasise communal values within the EU. It should show clearly its opposition to all types of discrimination. It would declare boldly to European citizens their right to participate in the democratic process, to live, study and work, to provide and receive services, and set up businesses anywhere in the EU.
There appears to be a concern that we could create a two-tier system of human rights protection with two rival jurisdictions, with the waste and possibly unnecessary expenditure that duplication would bring. It is to prevent such a thing happening that the British Government support for our non-justiciable charter, ably argued by my noble friend Lord Goldsmith, has gained much support from those around the table in Brussels.
It was interesting to note how the opinions changed and how other government representatives supported the arguments advanced by my noble friend, Lord Goldsmith. However, the final decisions on the form, the content and the legal status of the charter lie with the European Council. The British Government will have ample opportunity to question and debate further all the issues raised.
I welcome this charter. I believe it is a way of exporting to countries hoping to join the Community the rights, responsibilities and values which are held so dear by the UK and the European Community.
Baroness Park of Monmouth: My Lords, I have read the committee's admirable report--lucid and fair as it is--with the greatest interest and respect. I hope that other noble Lords will forgive my temerity in venturing into a highly specialised debate, although after the brilliant speeches of, in particular, my noble friend Lord Lamont and the noble Lord, Lord Shore of Stepney, I feel slightly inadequate. However, I do have some broad concerns. They are not Europhobe; they merely constitute some real anxieties which may well, I may say, be shared by, for instance, the Danes.
We are at the stage when the Government evidently believe that they are simply taking part in a harmless statement of virtuous intent, informative rather than legislative. Unfortunately, I believe that the Bar Council's written evidence has correctly identified the real purpose and probable effect of the Cologne initiative. It quotes the European Parliament's reference to,
Joschka Fischer, the German Foreign Minister, last year confirmed that for the Germans it was indeed a question of consolidating the legitimacy and the identity of the EU. The Bar Council concluded that,
As the committee points out, we must also consider the effect on enlargement, where enforcement of the whole convention will be a very large task, not least in countries like Turkey. If the EU can exclude Austria because it has elected one politician--not even the leader of the country--whom it regards as undesirable, what will happen when and if the charter becomes a treaty obligation, and, presumably, justifiable? Not least, the Petersberg tasks envisage intervention in another country's internal affairs, as in Kosovo, in the name of humanity. We must remember that anything written into the treaty can be withdrawn or changed only by unanimity, the doctrine of the acquis communautaire.
It is serious enough that we may find ourselves taking a national decision to act in just that way to protect human rights in another country. But what would be the consequences if we were bound by treaty to defend human rights on the decision of an unaccountable European Union? At the very least, I hope that the usual urge to cover the agenda and fulfil the commitments under each presidency is not allowed--I am greatly reassured by the words of the noble Lord, Lord Bowness--to hasten a decision on whether to incorporate the convention on human rights into the treaty. I respect the convention itself, if only because I remember and honour its origins. But I do not wish it to become part of any treaty. There are too many vital issues which still need long and serious consideration.
Lord Bruce of Donington: My Lords, I am once again very happy indeed to be in complete agreement with the words that have fallen from the lips of the noble Baroness, Lady Park of Monmouth. She indeed set forth the position that, as I would assure others, including the noble Lord, Lord Lester of Herne Hill, who after his criticism of me has promptly disappeared, there is a proper case to be made for those of us who have almost the temerity to dissent from things that are said and done in this House.
In my fairly long experience here, it has never been considered that a Member of your Lordships' House is xenophobic or holds any particular prejudice. During my 25 years' of service in this place, dissension has always been considered to be an honourable position for those whose beliefs are sincerely held and do not normally arise from undue prejudice one way or the other.
Having made that comment, I should like to say that I very much admired the report that we are considering in our debate today. With few exceptions, the speakers who have articulated its contents indicate--I say this with no intention of causing offence--a typically British way of dealing with an argument or discussion. The chairman of the committee presented his account of the report and some of its contents with the utmost clarity and, I believe, with real fairness. I should like to congratulate him on the report itself and extend my congratulations to all those who took part in what is, after all, an important exercise.
However, we must remember that few individuals in the United Kingdom are either aware of the arguments that have been adduced today or, indeed, aware of their effects (if any) on their own lives. Some 351 million people reside in Europe--or perhaps I should say half of Europe. We need to be a little careful when we describe the European Union as covering the whole of Europe geographically. Exactly what advantages will accrue to the majority of those 351 million citizens in the Europe we are discussing? Although I was probably hooted out of court at the time, I once raised the point that one European ombudsman would find it very difficult to deal with the bailiwick of some 351 million people. That is undoubtedly the case.
What we are really considering here is the relevance of a document to the mass of the people of Europe and, indeed, of the United Kingdom itself. How many people will feel that their interests are vitally affected? What fundamental freedoms as experienced by them will be enhanced by what is likely to be enacted?
It is all very well for lawyers, accountants, businessmen and so forth to conduct extremely learned arguments involving important questions of principle. All that is fine and is, indeed, a rather British way of carrying on. But do not let us assume for one moment that the contents of the document we are considering today have the slightest relevance for millions and millions of people living not only in Europe, but in our own country. In fact there is, of course, a democratic deficit here.
When it is advocated in an assembly that these matters are of vital significance, that is--if I may say so--a slightly optimistic move, because they are not. A very distinguished Oxford professor, Professor McCrudden, pointed that out when giving evidence before the committee, and I refer your Lordships to pages 12 and 13 of the report. He was referring to Article 6 of the charter of fundamental freedoms, to which reference has already been made. He said,
An alternative route would be to regard the whole question of the charter as an opportunity to deepen the democratic reach of the European Union as a whole and to give legitimacy to the notion of rights by virtue of the fact that they are the result of democratic discussion, debate and participation. Participation could also be seen as making those rights more real and true, because they are shared values. Thus the drawing up of the rights is in fact as valuable as the rights that emerge from the process.
To what extent has the ordinary man in the street been involved in this? One could say, with some legitimacy, that Members of Parliament, in particular those who have direct contact with comparatively limited directorates, are in a position--sometimes, not always--to articulate the views of ordinary people on this matter. That could certainly apply to Mr Vaz, the Minister in charge of European affairs. He answered questions put to him by the committee on a fairly extensive scale. I refer to pages 103 and 104 of the report, where he returned to certain important aspects towards the end of his examination.
As one who has on more than one occasion over the past few years been not entirely uncritical of Her Majesty's Government's attitude towards Europe, on this occasion I completely agree with the Government. This is not a launch pad for a new set of rights, as Mr Vaz states at page 103.
It has been possible to learn a considerable amount from this debate. However, we must view this issue in the context of matters as they are. I hope that it will be agreed that my observations are impartial, not animated by any kind of personal animosity. Let us look at the institutions that will be involved.
The ink is barely dry on the paper that was prepared at the instance of the European Parliament and others looking into the conduct of the Commission in the recent fraud and irregularity scandals. I have been engaged on this matter for nearly a quarter of a century, and have been much reviled for my attempts, which have ultimately been vindicated.
What was said about the Commission? It was stated that it was difficult to find anyone with a sense of responsibility. But those people are still there. Do we have any regard for that in our negotiations or discussions with the European institutions? Or are we going to ignore that completely? We now know the extent of corruption--I say the word deliberately--between the French and the German leaders. I am talking about Kohl and M. Mitterrand. These are the people with whom we are supposed to go on dealing as though nothing at all happened. As for the Italian position--the position of Sr. Prodi--are we really going to continue negotiating, talking and passing pleasantries with people of this kind?
People are talking about the United Kingdom being at the core of Europe--meaning, of course, the restricted Europe to which I have referred. But is this the kind of Europe of which we want to be at the core? Or is it perhaps that the core already lies here in the United Kingdom? We provided a large part of the troops and materiel by means of which the dictatorships on the Continent were either defeated or rescued. Perhaps we do not know that. I am well aware that there have been deficiencies in British governments in regard to sleaze and matters of that kind. But they are as nothing, compared with the scale
This time, therefore, when we go to Europe to discuss this matter, let us not take on the role of suppliants trying to work our passage to the core of Europe--because the present core is rotten, and members know that. Let us, therefore, go to Europe with a good sense of humour, a pleasantness which possibly few would care to emulate, and with a positive attitude to the great good that can follow from listening carefully to what is said in this House and more particularly in another place. Then one will find that the naked ambitions of the Commission to become the government of Europe will come to nothing. So long as we involve our own countrymen--who are not wealthy people and who do not even know what rights they have, if they have any--we can go forward with an approach which the traditions of our own country entitle us to take.
These are not small matters. They will engage our intellects and will involve much argument--and possibly, so far as I am concerned, insult. Nevertheless, they are the very essence of which the United Kingdom is made.
Lord Brennan: My Lords, I ask the forgiveness of the noble Baroness, Lady Billingham, and other Members of this House for having to listen to yet another barrister. But I want to reassure your Lordships that some of us earnestly wish to be regarded as ordinary human beings as well.
I am a member of each of the Bar committees that put forward a paper to the Select Committee; however, I speak on my own behalf and not theirs. I commend the report. The work of my noble and learned friend Lord Hope of Craighead and the other members has produced a balanced and clear report calling for the most serious consideration of an essential question: how are we to protect the human rights of our citizens within the European Union?
Three questions arise with regard to that objective. The first is: what is the situation now as to the protection of such rights? Secondly, will the charter make a difference? Thirdly, are there more steps yet to be taken to protect those rights?
What is the situation now? Each member state of the Community has incorporated the convention into its national law. That means that every person in those countries is protected as to his or her civil and political rights. Every one of them has ultimate recourse to the Court in Strasbourg.
External to the Union, practically every trade and accession agreement--for example, Lome--involves the European Union requiring third countries to honour human rights. When one looks at the situation within Europe, frankly it is embarrassing. Why? I put some obvious problems for your Lordships' consideration. There is lack of transparency in the decision-making of European bureaucrats at whatever level; and there is certainly a lack of information.
Beyond that, your Lordships' House must understand that the ordinary citizen has no effective recourse within Europe. Europe resolves its disputes before the ECJ by governments and the Commission. This problem means that there is no adequate method of judicial review of Community action available to the ordinary citizen. Preliminary rulings are an inadequate alternative. There is an absence of control over the third pillar areas which the noble and learned Lord, Lord Hope, identified. Of greatest concern is the absence of judicial control over treaty provisions which in themselves would breach what we believe to be essential human rights such as the right to vote. That right was upheld by the European Court of Justice in the case of Matthews, although it had been taken away by action of the European Union.
These are major problems where access to justice about human rights is simply not available. Even when it is, what does the treaty tell a citizen or company about their rights? Article 6(2) has been cited by the noble and learned Lord. That is a very loose expression of fundamental rights, even less a statement of how they can be properly protected.
But what of the courts? In order to protect one's rights within the EU one must do so either initially within one's own country or before the European courts, eventually finishing up at the European Court in Luxembourg. That is a long process and may result in a decision which sends one to Strasbourg, as several cases illustrate; the European Court of Justice then being told by Strasbourg that it has not complied with what Europe believes is proper convention observance. One would hope that it would then go back to the European Court of Justice, but no; the ECJ would be bound by the provisions of the treaty under which it first acted and might yet contravene the convention. Therefore, within the courts system there is no speedy, clear or adequate resolution of human rights.
What does the present situation tell us? The citizen has a very hard time getting satisfaction, even if he knows where to identify his rights within Europe or the European courts system can accommodate his claim. Those are very serious deficiencies that need to be remedied. One is not endowing Europe with greater power but providing effective control of European power where it infringes human rights.
The second question is: will this charter make a difference? It has two requirements if it is to do so. First, will it produce accountability by European institutions? Secondly, will it lead to effective remedies? They are distinct matters. That distinction is important. A charter of rights without effective
I support the present position of the Government in seeking as a reasonable European position a declaratory statement of rights. I commend the approach of my noble friend Lord Goldsmith to establish a section of essential rights in this charter and a second by which each is given adequate explanation. That is a tribute to his intellectual acuity. As the months go by we shall see whether his diplomatic skills match his acuity. It is a tough but important task. The declaration of such rights must be brought home not only to the ordinary citizen but to those who will be affecting their rights: European politicians and bureaucrats. At the moment that is simply not done.In its declaratory form it should at the very least embrace the convention rights which each of the member states has accepted as the rights of its citizens. The manner of explanation makes it difficult, but it is very important that there is no significant divergence between convention rights and any charter rights, especially as they are intended to encompass that which now exists. The desire that we must all share to avoid such divergence is obviously necessary. If there were such divergence, there would be uncertainty and a risk of seriously conflicting decisions between the European Court of Justice and the Court in Strasbourg. There would be a potentially adverse consequence on the relationship between the European Union and the Council of Europe and there would certainly be difficulties about the possible creation of a two-tier system of human rights between existing member states and applicant countries which are waiting to be considered as new members.
But--and it is an important "but"--any declaratory document would, in my view and apparently in that of the noble and learned Lord, Lord Hope, be used by courts at the very least as a guide to the way they should consider human rights within Europe. It is therefore inevitable that it should be couched in language which is legally reliable and not vague.
What is the alternative to the declaratory route? It is, in its briefest measure, the accession of the European Union through its institutions to the convention. I am extremely concerned about that for the following reasons. First, to human rights activists, lawyers and ordinary people, an accession which meant simply that convention rights would apply in Europe would be perfectly acceptable. I regret to say that that is a naive intent by those involved in pursuing it, because any reasonable observer will accept that the constitutional implications of accession are as, if not more, important than the human rights implications.
That is so for two reasons. First, such a legislative act by treaty would constitute the European Union in clear form as the equivalent of a state; an international legal entity in its own right. That step should not be taken by the member states of the Union until they are satisfied that it is entirely justified and will not be abused thereafter. Secondly, the competence of the European Court of Justice would be increased by such accession. Again, the longer term problem arises--so
I am a supporter of European co-operation, but I would be blind in my own thinking--and I suspect that my colleagues here would be, too--if I were not aware of the problems which the noble Lord, Lord Tordoff, wondered were exercising the minds of those countries which did not want this step to be taken yet. I am not ultimately saying that there should be no accession. I am saying that it is a step to be taken only after the very greatest care and consideration.
So what is the difference that the charter will make? It will tell people what their rights are in a declaratory form. Should accession now take place? Not yet. Finally, what steps should still be taken beyond the charter to protect the human rights of our citizens in Europe? If the noble Lord, Lord Lamont, will forgive me, we are not talking about judge-driven rights; the giving or controlling of them. We are talking about, within a democracy, the provision of fundamental rights which cannot be breached by the "democratic action" of Parliament because they are above democratic intervention. The world accepts it and we accepted it by introducing the Human Rights Act.
What steps should be taken? First, these rights must be known to people, and the declaratory form seeks to achieve that. Secondly, they must be visible in their effects, as the Confederation of British Industry, in its submission to the committee, thought they should be. They should be visible within the bureaucracy.
What about other steps? As a topic, that question has not received emphasis in today's debate on the effective protection of human rights. What about more freedom of information from Community institutions? What about more reasoned decisions? What about extending the right of judicial review of Community action? What about a compliance provision such as figures in our human rights legislation where the European Union is required to certify that that which it is legislating or deciding comes within the human rights charter? And what about increasing the number of powers of the European ombudsman?
In further measure, as the International Commission of Jurists suggested (I am sure through the intervention of the noble Lord, Lord Goodhart), why is there not a complaints procedure within European institutions to deal with matters before lawyers are involved? And, in order to speed up justice, why not a three-man judicial panel to make preliminary and early rulings about human rights infringements? None of those steps requires a charter. Each one is of compelling importance and the call for a charter should not mask their importance. Finally, what should the Government do?
This topic will not go away. The protection required under the third pillar will be sought by many. Accession will be a topic at IGCs. It is inevitable. Therefore, as this year develops the Government must formulate a reasoned policy. That clearly cannot be done until the final form of the charter is known. When it is, the charter, the question of accession and the importance of protecting rights by the means that I have described could all form part of that reasoned government policy.
I close by asking a question in a rhetorical form. I invite your Lordships to consider the answer to it. Are we in this country, which has given each of our citizens the benefit of the human rights convention, to deny it to them when they face action by European Union institutions or by our own state in applying Community law? The answer is obvious. The citizen is entitled to the same protection. It is that which the report emphasises, which makes the report so important and which makes essential the need for a reasoned policy and diplomatic cure for the rest of the convention.
Lord Goodhart: My Lords, I begin by declaring an interest in this matter. I am Vice-Chairman of JUSTICE and a member of the executive committee of the International Commission of Jurists, both of them bodies which submitted evidence to the committee.
As the first of the wind-up speakers, I hope that I may be allowed to congratulate the noble Baroness, Lady Billingham, on her maiden speech, which showed, if I may say so, great good sense and the benefit of experience as a Member of the European Parliament. Clearly, she has made herself a very strong candidate for service on the EU Select Committee or one of its sub-committees, like it or not!
I also join my colleagues on the sub-committee--my noble friend Lord Lester and the noble Lord, Lord Plant--in paying tribute to the chairmanship of the noble and learned Lord, Lord Hope, and to the work of our adviser, Dr Kerse. Certainly the quiet authority of the noble and learned Lord, Lord Hope, and the obvious thoroughness with which he has done his homework make him the ideal chairman for a body of this kind.
This has undoubtedly been a most valuable debate, particularly, I believe, because of the extremely important speeches made by the two Members of your Lordships' House, the noble Lords, Lord Bowness and Lord Goldsmith, who have participated in the process of the drafting of the charter. I agree with everything that was said by the noble Lord, Lord Bowness, and with most of what was said by the noble Lord, Lord Goldsmith.
The noble Lord, Lord Lamont, and a number of others argued the anti-European case. It is a case with which I strongly disagree, but the noble Lord argued it cogently and effectively. I wish I could say the same of some other noble Lords who spoke in the same interest, whose views appeared to me to be indistinguishable from those of the Sun, which was
What is the function of the charter and what should its contents be? As the noble and learned Lord, Lord Hope, started by saying, part of the problem is that those questions are being decided back-to-front. We need to decide, first, whether the charter is to be binding or declaratory and, then, what should go into it. The Government's view is that the charter should be declaratory or informative, which means much the same thing, and should include only rights which are already justiciable under the European Convention on Human Rights or under the EU and EC treaties. That was made clear in evidence both by Mr Vaz, the Minister, and the noble Lord, Lord Goldsmith. I believe that the Government are wrong on the first issue but broadly right on the second.
A declaratory charter is not altogether without value. Rights are indeed now scattered through the EU treaties as well as being contained in the European Convention on Human Rights. The charter would no doubt make those rights more accessible, more easily visible, to the ordinary person. But, as the noble Lord, Lord Goldsmith, made clear, even a declaratory charter is likely to have some legal effect. Article 6(2) of the Treaty on European Union provides:
First, if the charter rewrites the convention, it creates, as has already been pointed out, possible conflicts between the courts in Strasbourg and in Luxembourg. The European Convention on Human Rights is, of course, incomplete, especially in regard to discrimination, and needs some updating. But it has stood the test of time remarkably well, and as far as I am aware all human rights organisations involved in this debate are agreed that it is essential that there should be no conflict between the convention and the human rights jurisdiction of the European Union. If there were such a conflict there is a risk that the Strasbourg Court, whose jurisdiction includes all 42 member states of the Council of Europe, would be regarded as providing second-class justice.
Further problems arise if the charter goes beyond the rights now regarded as justiciable in the courts and includes economic and social rights, such as those in the European Social Charter--for example, the right to housing, social security and healthcare, now regarded as policy objectives rather than justiciable rights. Speaking for myself, I think there is a strong case in the long run for recognising legally enforceable fundamental rights to minimum standards on matters such as social security, education and healthcare. These are now on the agenda of many human rights organisations, including some in which I am involved. But it is clear that that process has only just begun, and most economic and social rights are not recognised as legally enforceable rights in any of the member states of the European Union.
There is, of course, a statutory right in the United Kingdom to, for example, social security, a right which is enforceable in our own tribunals and courts. But the recognition of a fundamental right to social security would go beyond that and would mean, for example, that a claimant could argue that the statutory provision itself was inadequate to meet his or her fundamental rights. Until those rights are recognised as both fundamental and justiciable in the member states of the European Union, it is inappropriate to recognise them as fundamental rights in the treaties of the European Union themselves.
Incorporating into the new charter rights under the European Social Charter or other economic and social rights, as France and some other states want, even on a declaratory and non-justiciable basis, would in the first place lead to confusion for readers of the charter who might not appreciate the distinction. More important, there is a risk that Article 6(2) might prove to be a gateway through which the European Union institutions eventually became bound to give effect to economic and social rights. If the charter is binding, and economic and social rights are justiciable, the European Union institutions could be required to give effect throughout the Union to fundamental economic and social rights, and possibly be regarded as having the competence to do so.
Having said that, it may be surprising that the committee supported the proposal that the charter should be binding. In doing so, I should make it clear that we were talking about a binding charter which was limited to existing rights. We did not consider--and our view might have been different had we done so--a charter which extended those rights.
The reason why the committee proposed that the charter should be binding is because of the gap in the coverage of the European Convention on Human Rights. That gap has already been explained. The EU and the EC are not parties to the European convention. The European Court of Justice held in 1996 that the European Communities did not have power, under the treaty, to become a party to the convention. As a result, the European Union institutions are not subject to the European Convention on Human Rights and their acts cannot be challenged on the grounds of inconsistency with that convention.
To a large extent, the member states are subject to the ECHR when they are applying European Community legislation. But there is also extremely wide agreement that the coverage of the European Community needs to be extended to the actions of the European Union under the third pillar.
That could be achieved by a binding charter which repeated the European Convention on Human Rights and, in that way, made it directly part of European Union law. We should welcome that as achieving at least part of the solution, though it could possibly lead to some divergence of opinion between the Luxembourg and Strasbourg courts because they would be acting independently in interpreting the same text.
But better still, the desired result could be achieved by a change in the treaties which enabled the European Community and the European Union to adhere to the ECHR. On that, I do not agree with the noble Lord, Lord Goldsmith. His arguments against accession were the least persuasive part of what was otherwise an extremely persuasive speech. He said that other states were opposed to that. Indeed, that may be so but that is a fact rather than an argument. He said also that the European Convention on Human Rights contained positive obligations. So it does. But most of those obligations do not apply in practice to the European Union, which, for example, has no prisons and no criminal courts. Those obligations which could apply should be observed.
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