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Lord Lester of Herne Hill: My Lords, I am grateful to the Minister. Is it not the case that at the moment the real gap is that EU institutions and officials are not under a legally binding duty to comply with the convention rights, and therefore there are no remedies? If that is right, then will the Government add to their three criteria the need for effective legal remedies for the abuse of power by the EU institutions in direct breach of convention rights?
Baroness Scotland of Asthal: My Lords, as I have already said, the Government believe that the process already available has the capacity to do that in terms of enforcement. One has to look very clearly, of course, at the gap referred to by the noble Lord and the protection of the right of an individual to complain about acts of EU institutions which breach convention rights. We say that that is possible in the current structure.
Lord Lester of Herne Hill: My Lords, perhaps I may pursue the question. I am concerned with standing: with the question of individuals pursuing the matter. The issue to which I seek an answer is straightforward. In the Government's view is there an enforceable, legal, binding duty upon the EU institutions and officials to comply with the convention rights. I understand that the view of the committee is that there is no such duty enforceable in law. That is the gap.
With respect, it seems to us that greater weight should be given to the existing obligation of the Union in Article 6(2) of the Treaty of the European Union to respect fundamental rights as set out inter alia in the ECHR. As others have said, the Union institutions may be held to account for their compliance with that obligation before the ECJ under Article 46(d) of the TEU. We feel that greater emphasis should be given to the role of the ECJ over many years in applying the convention and its case law to cases which come before it raising human rights. In only a tiny handful of cases has any significant divergence of interpretation between the two courts arisen. The EU is not a human rights-free zone, as some may have been attempting to suggest.
It is important not to forget, in making a comparison between the available routes to challenge national action and that of the Community institutions in the human rights field, that the competences of the institutions and the degree to which they involve potential breaches of human rights are far more limited than those of national governments.
The other main area where significant gaps are seen by the committee and other noble Lords is the third pillar. But here, too, the picture is not as bleak as some would paint it. New justice and home affairs instruments such as the Europol Convention already contain relevant safeguards such as data protection requirements, supervisory bodies and national court remedies.
The Government do not accept that we should agree to extend the ECJ jurisdiction over the very sensitive areas covered by the third pillar. Those raise issues relating to national sovereignty--law and order and the criminal justice process. An acceptance of extended jurisdiction would have to be on a "once-and-for-all" basis. This would be a significant extension of the ECJ's legal responsibilities.
Moreover, the Government do not see such a step as necessary. Where damage is caused by incorrect or unauthorised processing of data by Europol itself, the person affected can go to the national court where the damage occurred. If the suit is successful that member state can reclaim damages from Europol.
Lord Goodhart: My Lords, I am grateful to the Minister for giving way. Is not there a serious problem with the fragmentation of jurisdiction: that one has different results from different national courts? Would not there be substantial advantage in bringing the third pillar under both the ECHR and the jurisdiction of the ECJ in order to ensure conformity throughout the EU?
The preferred remedy of the noble and learned Lord, Lord Hope, the noble Lord, Lord Lester, and others for the perceived gaps in protection is EC/EU accession to the ECHR. That is the way most noble Lords have expressed it today. However, here, too, the Government are not persuaded. We recognise what the report says about the implications of accession for the relationship between Strasbourg and the Luxembourg courts and can see some advantages in such an approach in terms of ensuring consistency of approach between the two courts. But we do not believe that it is necessary. There is already a commitment to respect fundamental rights such as those guaranteed in the ECHR in Article 6(2) of the Treaty of the European Union. The noble Lord, Lord Brennan, was right to raise concerns about this issue.
The European Court of Justice has ruled that the EU does not at present have the competence to accede. Accession would, therefore, require changes to both the convention and the EU and EC treaties. The ECJ already applies to the ECHR and its case law without accession.
In addition, there are formidable legal problems which would have to be addressed. I mention just a few of them: the risk of extending EC competence into human rights areas where it currently has none; the difficulty in preserving member states' existing reservations and powers to derogate from the ECHR; the uncertain impact on the UK's domestic legislation, including the Human Rights Act; and--and by no means least--the EU, as opposed to EC, accession would have additional problems linked to the question of legal personality, including implications for the pillared structure of the Union.
I leave aside for now the fuller political and practical implications. But we should not underestimate the potential effect on the caseload of the two international courts involved, which are both already seriously overloaded, with consequent lengthening delays in delivery of judgments and legal uncertainty meanwhile. So accession is an issue that we shall approach only with the greatest of care. Rightly, it is neither an issue for the charter convention nor for the IGC, which has other pressing priorities. I have to say to the noble Lord, Lord Lester, that there is no intention to add this issue to the list currently before the IGC.
In the past two or three weeks there has been a highly charged debate in the UK press about the charter. Some journalists have predicted that it marks the end of the British way of life. This is clearly not the case. It is worth quoting again the comments of President Herzog, which have already been mentioned by the noble Lords, Lord Bowness and Lord Goldsmith. As noble Lords will know, President Herzog chairs the drafting convention. In Die Welt last week, to bring us back down to earth, he said that the charter would create no new powers for the EU over
It is for that very reason that we feel that the work undertaken by the convention to fashion an instrument which will bring clarity and accessibility to the ordinary man in the street will be of real benefit. We are, as the noble Lord, Lord Bowness, and the noble Baroness, Lady Howells, have already said, having influence in the convention and that should give us much comfort. I should also say to the noble Lord that I for one will never misunderstand his passion for anything other than real support for this Government.
I should like to deal with one last issue. The United Kingdom has a long and proud tradition in the protection and promotion of human rights in Europe. This country played a substantial role in the drafting of the ECHR and was the first to ratify it. The charter is not the only string to our bow, no matter how much others would like it to be so. The Government have a continuing global rights agenda. Furthermore, the noble Lord, Lord Lester, was right to emphasise the considerable contribution made by this Government through the Human Rights Act. In saying that, we in turn honour him and others who participated greatly in its formation.
Our strong commitment to the development of a culture of rights and responsibilities across Europe means that we are determined to ensure that the charter will complement and not undermine the ECHR. If the convention can produce a clear, user-friendly draft that protects legal certainty, then it will have done the citizens of Europe a very great service.
Lord Hope of Craighead: My Lords, the Minister has summed up with great skill and clarity the issues that have arisen both from the report and from the many outstanding speeches to which we have listened in this debate. It remains for me only to make a few concluding remarks.
First, perhaps I may thank all those who have contributed to this debate. I thank in particular the noble Baroness, Lady Billingham, for having had to tackle the difficult task of entering the labyrinth at the very outset and thus needing to warm up the debate immediately after my opening remarks. That was a formidable task for a maiden speaker.
Secondly, I should like to associate myself with the thanks that have been so kindly expressed for the work of the legal adviser and his assistant. I believe that all members of the committee recognised that, without their valuable work, the report would not have been anything like the document it is today. We owe them
At the beginning of the debate I said that I welcomed the occasion for a full debate on this important and controversial issue. I believe that those adjectives have been fully realised; this certainly has been a full debate. However, it has above all underlined the importance of the issue and I think that we have gained a sense--from the opening and right through to the end--of the elements of controversy that have emerged as regards many of the issues that we have had to discuss.
A particular point about the debate which I value very much was that made by the noble Lord, Lord Lamont, at the beginning of his speech; that is, his wish that the matter should not be taken up entirely by lawyers. That has not been the case today and I believe that our debate has benefited immensely from the contributions of those who are not lawyers. They have brought into the discussion perspectives of great importance as we try to evolve a system of human rights, which, as has been pointed out, is something that affects every man, woman and child in the Union.
However, it is clear that anyone who reads the report ought also to read the proceedings of the speeches that have been made in this debate. Without those contributions, the report would express only a part of the general feeling of the House as regards the issues we have debated.
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