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Charter of Fundamental Rights (EUC Report)

1.21 p.m.

Lord Scott of Foscote rose to move, That this House takes note of the report of the European Union Committee on The Future Status of the EU Charter of Fundamental Rights (6th Report, HL Paper 48).

The noble and learned Lord said: My Lords, I express my gratitude to your Lordships, the so-called "usual channels", who have arranged this debate on the Select Committee's report on the charter. Time and events have overtaken the report, which was published on 3rd February. Its purpose was to discuss the pros and cons of the various alternatives for incorporating a Bill of Rights into the proposed new constitution for the European Union.

We wanted the comments of the Select Committee, and of this House if a debate could have been arranged in time, taken into account both by the Government in deciding what representations they would make in the course of the negotiations, and by the Convention on the Future of Europe, chaired by Valery Giscard d'Estaing, and by its working party. Time has moved on. We received the Government's response to the report on 29th May, which was some four months after the report's publication.

In the meantime, a number of conclusions had been reached in the convention and by the convention's working parties. The final text of what the convention proposes for the new constitution, or at least the part of it that incorporates the provisions dealing with the charter, were handed over to me this morning. I doubt whether any other Members of the House, other than the noble Baroness, Lady Scotland of Asthal, will have had an opportunity to see the provisions.

The original date proposed for the debate was 10th June, some 10 days ago. However, the noble Baroness was at that time, and for some days thereafter, engaged in negotiating in Brussels the final terms of the provisions that found their way into the Giscard proposals, and so the debate was postponed until today.

The result of that postponement is that, instead of considering the contents of the report and the pros and cons discussed on the alternatives, your Lordships are able in fact to consider the actuality of what is proposed by the convention.

The first issue of note arising out of the report is whether the new constitution should have a Bill of Rights incorporated into it. The question assumes that

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there will be a new constitution. We did not go into that assumption in the consideration of the report; we took it as read. It is a safe assumption. The contents of the existing treaties plainly need adjustments to cater for the advent of 10 new member states.

There are two main arguments in favour of incorporating a Bill of Rights into the new constitution. First, there is at present no formal human rights limitation on the way in which the European Union institutions exercise their variety of powers. Each member state is a signatory to the European Convention on Human Rights. The European Union is not.

In December 2000, the member states agreed to the terms of the Charter of Fundamental Rights of the European Union. The member states agreed to preserve its provisions, but they did not incorporate the charter into European law. Nor, in the UK at least, did it become domestic law. It had legal influence nonetheless. It has become the practice for all legislative and regulatory measures of the EU to be checked for compatibility with the provisions of the charter. The European Court of Justice has, on a number of occasions, referred to the charter to assist it in identifying fundamental rights to be respected in the Community. Domestic courts in this country have referred to the charter for much the same purpose. It has had no formal legal force. It does not legally bind European institutions, nor does the European Convention on Human Rights formally bind European institutions.

The first conclusion that Sub-Committee E—which I had the honour to chair—came to when considering this issue preliminary to preparing a report was that it was high time that formal requirements of the observance of fundamental rights were built into the constitution, whatever it may become, so as to become binding on European institutions. I have not yet heard any sensible argument against that. It remains to be seen whether one will be forthcoming.

The second reason is the fear expressed by a number of witnesses who gave evidence to the sub-committee that the absence of a Bill of Rights in the proposed new constitution may undermine the credibility of that constitution. All new constitutions tend to have Bills of Rights incorporated into them. That is why it may be said that that should apply also for the new EU constitution.

In their answer to the recommendations in the report, the Government expressed disagreement with the proposition that the new constitution should have a Bill of Rights. It did not accept that that should be so. This remains therefore a major and fundamental issue that must be resolved at the intergovernmental conference in Greece later this year. Perhaps the Minister will indicate the Government's current thinking on the issue. Apart from saying that the Government objected or did not agree—objected is perhaps too strong—that there should be such an incorporation, the reason for that view was not expressed.

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Assuming that the new constitution will have a Bill of Rights, what form should it take? In the report, we considered three possible alternatives. One was that the European Convention on Human Rights, to which all member states already adhere, should become by accession on the part of the EU the European Union's Bill of Rights as well. There is clearly logic in that.

Another alternative was that a charter that was prepared some two or three years ago with the EU expressly in mind should be incorporated into the constitution to become the Bill of Rights. The third alternative was that both the other two should be combined: both accession to the European Convention on Human Rights and incorporation of the charter becoming the solution.

The present proposal from the Convention on the Future of Europe is the double-barrelled solution, the third alternative I mentioned—both accession to the European Convention on Human Rights and incorporation of the convention. It is proposed that the EU should have legal personality and enable itself to accede to an international treaty such as the European Convention on Human Rights. The convention would then become part of European law, binding on European institutions as it is already part of domestic law in this and other member states.

Secondly, the Giscard convention proposes that the articles of the charter, more or less as they stand—I shall return to the "more or less" later—shall be incorporated into the constitution. The charter provisions would thereby become part of European Union law. The Government's comment on that double-barrelled option was that they,

"would have many objections to putting [it] into practice".

The Government did not explain what those objections were or why they had them. What is the nature of their objections? Perhaps they are the same objections—no more nor less—than their objections to having any Bill of Rights at all. We await further information.

I draw your Lordships' attention to several textual points about the charter. First, it was not drafted as a document intended to have direct legal effect. As I said, it was not incorporated into European law at the time that it was formally proclaimed. It was drafted to express any policy aspirations that all member states shared rather than providing precise legal rules. That feature of the charter is apparent from its contents, the following examples of which are taken at random. Under the heading "Freedoms", Article 13 of the charter states:

"The arts and scientific research shall be free of constraint",

which is a broad definition. However, there are some forms of scientific research, such as the cloning of humans or embryo research, which is a topical example, that nearly everyone accepts must be subject to some constraints, albeit of varying degrees of strictness. Article 13 simply cannot mean what it says.

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Secondly, under the heading, "Equality", Article 21 says:

"Any discrimination based on any ground such as"—

and there is then an enumeration of matters including—

"sexual orientation shall be prohibited",

but everyone accepts that the activities of paedophiles must be prohibited and restrained, so Article 51 also cannot mean what it says.

Under the heading "Citizens Rights", Article 42 states that any citizen of the EU has a right of access to documents of the Union's institutions. That is carrying freedom of information to a fine degree. The breadth of that right is not expressed in the charter to be subject to any restrictions at all. However, Article 49 states:

"A European law shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents".

So Article 42 cannot mean what it says.

The report draws attention to those and other examples of the inappositeness of the charter articles for precise legal application. The question of a possible re-drafting was mentioned, but it is accepted, for practical political reasons, that the charter cannot be subjected to a wholesale re-draft.

The convention's solution to the problem is to propose that each of the charter articles in turn should be accompanied by an official commentary explaining the intended function and scope of the article. The preamble to the charter has had a sentence added to it from its December 2000 form. It states that the charter,

"will be interpreted by the Courts of the Union and the Member States with due regard"

to the official accompanying explanations. Thus, the explanation accompanying Article 13, the article about "arts and scientific research" being "free of constraint", states that the right is to be exercised subject to the limitations authorised by Article 10 of the ECHR. As many of your Lordships will know, Article 10 of the ECHR permits constraints to be imposed for various purposes, such as the interests of public safety and the protection of health and morals. So that cuts down the charter articles. Anyone who reads it would not understand them without also reading the accompanying explanation.

Article 21, the no discrimination article, is accompanied by an explanation which says that it,

"does [not] lay down a sweeping ban of discrimination in such wide-ranging areas",

which limits the scope of the discrimination ban. The explanation accompanying Article 42—the right of access to documents—states that the right only applies within the limits for which provision is made in Articles 1-49(3). There one finds provision made for the expected public security, national security restrictions on the right.

The articles of the charter as incorporated do not mean what they say; they must be read in conjunction with their respective explanations. So far as it goes, the technique of accompanying legally imprecise articles with explanations that give them precision is to be

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welcomed. I think that the Government also welcome that technique. However, the text of the official explanations is not yet settled. The version to which I have been referring, dated 3rd June, was supplied to us by the noble Baroness, Lady Scotland. However, it contains a request for comments and suggestions to be made by 10th June. That date has now passed and presumably some were made. What the end result will be, those suggestions having been taken into account, we simply do not know.

If the charter is to be incorporated into the constitution, in my view, and in that of both the sub-committee and the Select Committee, it is of the highest importance that the articles should be accompanied by explanations that lend satisfactory legal precision to their intended effect. Otherwise, there will be a field day for lawyers, although not for anyone else. We believe that the Government share that view and hope that their representatives at the IGC will rigorously examine the commentary with that in mind.

The next point of concern is related to the vexed issue of competencies. It is a feature of the charter articles—as it is of the articles of the ECHR—that their language is such that they are capable of applying to matters that are outside the competencies of the EU and its institutions, but to matters that are within those competencies. It is essential, and this is also a view shared by the Government, that any entrenching of these articles in EU law via the new constitution should not lead to any extension of those competencies. If they are to be extended, it should be as an intended variation of the present arrangements, not via some sort of competence creep that might emerge from application of the new Bill of Rights.

Outside the competencies given to the EU and its institutions under the new constitution, it must remain for member states to pay whatever regard to the articles of the charter or the European convention may be required under their respective domestic laws.

On the so-called "horizontal clauses" in the charter, Articles 51 and 52 are intended to deal with the potential problems of "competence-creep", and they have been subjected to amendments specifically directed to that end. The official explanations that accompany these two amended articles are lengthy, complicated and important. Sub-Committee E has not yet had an opportunity to subject them to the scrutiny they undoubtedly deserve.

Subject to that need for scrutiny, my present impression is that the amended Articles 51 and 52, coupled with the explanations, ought to prevent the incorporation of the charter from producing the competence creep that I mentioned. It is certainly essential that that should be so, but the Minister's comments on this aspect of the proposals would be valuable.

The fifth issue relates to the implications of the incorporation of the Bill of Rights for the European Union's Courts and their jurisdiction. The purpose of a Bill of Rights must be to provide citizens with new protection and new rights against abuse of power or

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excessive or wrongful exercise of power by Union institutions or bodies. Where that has happened one would expect to find that the aggrieved citizen would have an effective right of recourse to the European Courts and effective remedies once he got there. But at present, under the treaty, a citizen's right of access to the European Courts is distinctly limited. It is dealt with under Article 230(4) of the treaty establishing the European Communities.

In order to institute proceedings in the European Court, a citizen must show that the action to which he objects is of "direct and individual concern" to him. The words "and individual concern" have been strictly interpreted by the European Courts so as to prevent an individual from bringing an action alleging invalidity of some European Union legislation on the grounds of access to competence or on any other grounds. He must show that it would affect him personally and not just in a general way as a citizen along with others.

The Giscard convention, responding to the point that the incorporation of the Bill of Rights requires an amendment of the restrictions imposed by Article 230(4), has proposed to add words which would allow an individual to institute proceedings in a European Court,

"against a regulatory act which is of direct concern to him without entailing implementing measures".

I read that slowly because I am by no means sure what it means. It is obviously intended as a relaxation. The requirement that the action complained of be of "individual concern" has gone, but the relaxation applies to an objection to a "regulatory act" only. What is meant by regulatory act is unclear. It may be that it is directing itself to subordinate legislation and that it would not allow an objection on this relaxed footing to be taken to an item of primary legislation. That is a guess; it may not be right. What the words, "without entailing implementing measures" mean, goodness knows. I do not. The amendment is highly important. It is very new. We have not yet had the reaction of the Government to it. I do not know whether the noble Baroness has a better view than I of what it means. If she has, I hope that she will tell us; if she has not, I hope that she will take steps to have it elucidated. It will be of great importance to citizens to know what right of access to European Courts they will have under the new constitution.

I should like to make one final point on the jurisdiction of the European Court. At present, the Court has no jurisdiction on second pillar matters—common foreign and security policy matters—and a restricted jurisdiction only on third pillar matters of justice and home affairs matters. I suggest to the noble Baroness that any matters within the competence of the European Union or its institutions will, if the present proposals go forward, be within their respective competencies, need to be matters in respect of which the rule of law can be seen to apply by complaints being justiciable before the European Courts. The European Union, in all its competencies, should be subject to the rule of law.

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Whether the final constitution will involve any extension of Union competencies in second pillar and third pillar matters we do not yet know. Maybe it will not. I understand that the Government are to oppose any such extension. If that opposition carries the day, the need for an extension to the European Court of Justice's jurisdiction will not be so pressing. But if the competencies of the Union and its institutions are to be extended and if the new Bill of Rights is to be incorporated, there is a very strong argument that the jurisdiction of the ECJ should be correspondingly extended. It would be helpful to have the Minister's comment.

I have mainly directed my remarks to the incorporation of the charter into the constitution. The accession of the European Union to the ECHR, if that comes about, will raise much the same issues. It will raise the same need to prevent competence creep, the same need to consider an extension to the jurisdiction of the ECJ and the same arguments for and against will apply. I do not need to repeat myself as to that.

The political practicality of accession to the ECHR may be an obstacle to that being achieved. All the signatories and not simply the member states—there are signatories that are not member states—will need to agree any consequential changes that the accession of the European Union might involve.

In summary, is the Union to have a Bill of Rights? Should it be the charter? If so, what attention can be paid to the explanations to the horizontal clauses and to European Court of Justice jurisdiction? Should the European Union accede to the ECHR and what should the jurisdiction of the ECJ be, having regard to these changes? These are all matters which require attention. They are issues of potentially very great importance to all the citizens of this country and therefore to Parliament. They deserve and, I believe, will have your Lordships' careful attention. I therefore commend this report to the House. I beg to move.

Moved, That this House takes note of the report of the European Union Committee on The Future Status of the EU Charter of Fundamental Rights (6th Report, HL Paper 48).—(Lord Scott of Foscote.)

1.47 p.m.

Baroness Thomas of Walliswood: My Lords, in taking part for the first time in a debate on a report based on the work of Sub-Committee E, of which I am a member, I take some consolation from the words of the noble Lord, Lord Morgan, in the previous debate—namely, that constitutional change should not be an elite concern. I certainly would not consider myself to be among the elite on this issue.

I shall speak largely about incorporation but perhaps from a slightly different perspective. As a person, on the matter of incorporation of the

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European Charter of Fundamental Rights into the new constitution I support the general view expressed by Professor Arnull that,

"a constitution for the Union which did not contain a Bill of Rights—could be regarded as undermining the statement in an earlier provision of the Treaty on the European Union that the principle of respect of fundamental rights is one on which the Union is founded".

I am aware that not everyone shares that view although most of our witnesses did.

The noble and learned Lord, Lord Scott of Foscote, laid before us in great detail some of the legal difficulties involved in the incorporation of the charter into a constitution. In layman's terms, the main benefit of the charter is that incorporated into the new constitution it would offer citizens a wide range of justiciable rights.

In written evidence, Justice, at page 77 of the report, stated that,

"given the increasing capacity of EU institutions to affect individuals' human rights, a binding catalogue of fundamental rights guarantees is an essential part of the constitutional structure of the Union".

I find it difficult to understand why anyone should, in principle, oppose such rights of the citizen against the Commission, the Council and the Parliament. Surely, European Union civil servants and European Union institutions should be liable to challenge if they abuse their powers. A practical problem—again, the noble and learned Lord, Lord Scott of Foscote dealt with this in detail—arises from the need to reform the operation of the European Court of Justice to enable effective access to legal remedies available under the charter.

In paragraph 163, the committee concluded that in order for citizens to be able to avail themselves of the legal remedies theoretically available under the charter the operation of the European Court of Justice should be reviewed and, where necessary, reformed to give practical effect to the incorporation. I confess that I am disappointed with the Government's negative response to that conclusion and I hope that the Minister will be able to elaborate on the reasons for it.

A more serious problem is the wide coverage of the European Charter, incorporating as it does a large part of the ECHR together with economic and social rights taken from the Social Charter and from various existing international texts. An argument can certainly be made that even if one accepts that citizens have a right, for example, to equal access to education, to a pension or to decent healthcare, these are all aspects of rights that are best satisfied via the relevant government policies and actions, as provider and enabler.

Furthermore, it raises the whole thorny problem of subsidiarity. The British and, no doubt, other member states hold fast to their own rights and duties to ensure the well-being of their people in these matters. The question is whether, in incorporating the charter within the new constitution of the European Union, we are doing something that will encourage competence creep from the member states to the Union. Perhaps I should reassure the House that, as an

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enthusiastic supporter of the European project for all of my adult life, I have no wish to see the Commission encroach upon the powers of member states unless there is a convincing reason for overturning the principle of subsidiarity.

The Convention Working Group on the Charter was alive to this problem and proposed a solution in the form of the so-called horizontal clauses. Noble Lords will have seen that we paid a good deal of attention to them and proposed several trenchant amendments, to be found on page 25. In particular our suggested amendments to sections 1 and 2 of Article 51 spell out plainly that the operation of the charter should respect the limits of the power of the Union as conferred on it by other parts of the treaty and that the charter does not extend the scope of application of Union law beyond the powers of the Union.

Of course we are not able to debate the clauses today in the final form decided on by the convention working group. I have not seen the relevant horizontal clauses so I do not know what they now say. Perhaps the Minister will be able to enlighten us. Indeed, in a sense it is difficult to debate our report outside its true context, that of the constitution itself. Personally, I found that the attitude of the Government towards incorporation of the charter was not particularly helpful during the course of our committee's work. The Minister could not offer us any real sense of the Government's opinion on the incorporation. Not for the first time I was left thinking that, in a sticky situation, I should like to have the noble Baroness, Lady Scotland of Asthal, on my side.

The government response to our report makes it clear that they are still in what I would call a state of hostile neutrality towards incorporation. I do not think that I can follow the noble and learned Lord, Lord Scott of Foscote, in hoping that the Government will negotiate vigorously and even in a slightly hostile manner on the charter during the process of discussion now about to take place at Council and IGC level. I hope that the Government will use their negotiating power and credit on other matters where they may be more likely succeed, because in my view the incorporation of the charter is extremely likely to go ahead, it having been given a fair wind by many institutions within the Union as well as by member states. There may be better issues on which energy and credit could be spent.

I look forward to hearing what the Minister has to say. I hope she will tell us that the Government are adopting a more positive attitude to what is in my view a very important issue.

1.54 p.m.

Lord Neill of Bladen: My Lords, I hesitated about whether I should say anything this afternoon because I was confident that my noble and learned friend Lord Scott of Foscote would say everything about the committee's work that needed to be said. I, too, am a member of that sub-committee. I do not know whether noble Lords noted a recent aphorism from Signor Berlusconi, the Prime Minister of Italy, who said in

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relation to a friendly state that that state—I need not identify it—missed a good opportunity to remain silent. As a general test to apply to one's interventions, that might not be a bad rule. Your Lordships will be the judge of whether I am transgressing and have missed the opportunity.

I have only one major point to make about the charter and what is proposed in the latest text from Giscard d'Estaing and his colleagues: this matter is becoming very complicated and difficult and we are going to lose the average citizen having any knowledge at all of what we are now talking about. People have heard of the Convention on Human Rights; that has hit home, perhaps not down at the Old Bull and Bush, but it is a known fact out there. But if you ask someone whether they have heard about the Charter of Rights, I venture to say that even in your Lordships' House you will receive what might be called a "non-response" unless they happen to serve on the appropriate committee. A kind of blaze of apathy meets discussions of the kind we are now having on this extremely important matter.

The aspects of complexity to which I want to draw attention are fourfold, on each of which I shall say a few words. First, I turn to the notion of both a charter and a convention; secondly, the actual status of what is written in the charter; thirdly, the status of the Explanatory Memorandum; and, fourthly, a word about remedies. In relation to the last, unlike the chairman of our committee, I have not received the latest word. What I have is the text of Parts 1 and 2 of the convention, but I have not seen the latest proposals on remedies, so noble Lords will be relieved to learn that what I have to say on them will be extremely truncated.

On my first point concerning the charter and the convention, my noble and learned friend Lord Scott referred to Article 1.7 covering fundamental rights. Paragraph (1) of that article states:

"The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes the Second Part of this Constitution".

The next paragraph states:

"The Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Accession to that Convention shall not affect the Union's competences as defined in this Constitution".

For the ordinary citizen, things are already becoming rather difficult. The EU itself will apply to become a party to the convention, and thus the Strasbourg convention along with its caselaw and so forth will all become part and parcel of European law. That is in addition to what will happen forthwith once the constitution is adopted; that is, the charter will come on board.

Again, the man in the street might think, when it states that:

"The Union shall recognise the rights, freedoms and principles set out in the Charter",

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that it is a resounding declaration and proclamation of what is actually going to happen, but when one reaches the horizontal clauses, one finds a more complicated situation. Qualifications appear in relation to that declaration. Thus Article 51 states:

"The provisions to this Charter are addressed to the institutions, bodies and agencies of the Union with due regard to the principle of subsidiarity and to the Member States only when they are implementing Union law".

I shall skip the second sentence and move on to the second paragraph of the article, where it states:

"This Charter does not extend the scope of application of Union law beyond the powers of the Union or establish any new power or task for the Union or modify powers and tasks defined by the other parts of the Constitution".

That immediately calls into question what any earlier article might have said. Article 14, for example—I pick these examples at random—is headed "Right to Education". It states:

"Everyone has the right to education and to have access to vocational and continuing training".

In the second paragraph of the explanation it states:

"It was considered useful to extend this article"—

beyond Article 2 of the protocol to the Strasbourg convention—

"to vocational and continuing training".

It then refers to point 15 of some other document.

The process for someone trying to make head or tail of this is very difficult. It looks as though you have a declaration of all these rights, and then you come across language which clearly underlines that some of them may not mean what they say at all—the noble and learned Lord, Lord Scott, referred to the obscurity of the language—because you have not got an EU competence within which they could be articulating a rule or principle. It is a difficult and complicated concept.

As to the status of the explanatory memorandum, to which the noble and learned Lord referred, the original text stated in part 2 that the explanatory memorandum was of "no legal value". That is not perhaps a perfect translation but I suspect that the thought behind it was that it was not intended to be a legal document defining what was said.

But, as the noble and learned Lord pointed out, we have now moved beyond that to the revised form of the preamble—it is, of course, in draft form—which now states that the charter will be interpreted by the courts of the Union and the member states,

"with due regard to the explanations prepared at the instigation of the Praesidium of the Convention which drafted the Charter".

So some kind of status is now accorded to the explanations.

I find the explanations quite difficult. Let me take the issue of double jeopardy as an example. Under the heading of "Right not to be tried or punished twice in criminal proceedings for the same criminal offence", Article 50 of the charter states:

"No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law".

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That looks like a straightforward, good old-fashioned declaration against double jeopardy, an issue we have debated quite recently in your Lordships' House.

However, if you look at the explanatory note, there is a reference to Article 4 of one of the protocols to the convention, the second paragraph of which states:

"The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law on penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings which could affect the outcome of the case".

I can hear the ordinary innocent man saying, "What is the effect so far? I have had a declaration of what the right is and I now have a quotation from another piece of human rights law". Further in the explanation, at the end of that paragraph, it states:

"The very limited exceptions in the conventions permitting the Member States to derogate from the 'non bis in idem' rule are covered by the horizontal clause in Article 52(1) of the Charter concerning limitations. As regards the situations referred to by Article 4 of Protocol No 7"—

which I have just read—

"namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR".

I hope that I am being completely fair when I say that that material is incredibly difficult. You state a right which is not fettered; there is then a quotation from something which purports to fetter it; and then you are told to look at the power in Article 52 to derogate on certain terms.

I do not have time to elaborate on that issue in great detail. I reinforce the point made by the noble and learned Lord, Lord Scott, about the commentary on these horizontal clauses, which are extraordinarily long. Article 51 has more than a page of commentary; and the explanation on Article 52—which is another horizontal clause—runs to about four pages and introduces some extraordinarily difficult concepts.

I take my last example from the text on page 59 of the latest document we have. Paragraph 5 of Article 52 clarifies the distinction between the rights and principles set out in the charter. According to that distinction, subjective rights shall be respected whereas principles shall be observed. At the end of the paragraph it states that in some cases an article of the charter may contain both elements of a right and of a principle, and gives some examples.

I have probably said enough to indicate the tremendous difficulty and complexity of having these two documents side by side. Will the Minister give some consideration to the plea that if you are going to have a charter at the forefront of a new convention, you should do your best to make it clear, simple and effective? The method that has been adopted is almost the worst possible method that could have been adopted.

As to remedies, it is essential that there should be adequate remedies. One has to study the small print of the latest proposal, but it does not look as if it goes as

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far as the Advocate General, Francis Jacobs, would have wanted it to go when he gave his testimony to the committee. Those are my observations.

2.6 p.m.

Lord Goodhart: My Lords, we on these Benches welcome the report. It expresses a balanced and sensible view on complex and controversial issues, as the noble and learned Lord, Lord Scott of Foscote, and the noble Lord, Lord Neill of Bladen, have said.

Before turning to the substance of the debate I should like to express our concern about the delay in obtaining it. The report was adopted by the EU Committee of your Lordships' House on 3rd February, four-and-a-half months ago. It dealt with a very fast moving target. The work of the convention is now finished and the convention president, Mr Giscard d'Estaing, will present today or tomorrow the draft constitution to the EU summit at Thessaloniki. Many of the issues raised in the report have already been decided as far as the convention is concerned.

I recognise that the report itself is more likely to influence opinion than the debate in your Lordships' House on the report. Secondly, the draft constitution will, of course, have to be considered by an intergovernmental conference which will have power to amend it. Having said that, I believe it would have been more appropriate to have had this debate before the Easter Recess. I certainly support the idea of making arrangements to ensure that reports which deserve a debate in your Lordships' House should be debated more quickly, perhaps by arranging a debate in Grand Committee while something else is proceeding on the Floor of the House.

I turn to the substance of the report. The main issue is whether the existing charter of fundamental rights should be incorporated into the constitution. The report does not come to a firm conclusion, but says in paragraph 45:

"That any EU Constitution should include a Bill of Rights, specifying rights of the citizen and limiting the powers of the EU institutions seems beyond argument".

I agree with that absolutely. The need for a Bill of Rights arises because of the black hole so far as human rights attach themselves to the work of the European Union. Each member state is, of course, party to the European Convention on Human Rights and is bound by it. The EU itself is not bound by the ECHR and cannot at present be a party to it. Therefore, EU legislation cannot be directly challenged on human rights grounds. That could put the courts of member states into an insoluble conflict over EU legislation: they would be bound to implement that legislation under EU law but forbidden to do so by the European convention.

Sub-Committee E of the European Union Select Committee looked at the charter in 2000, when it was being drafted and negotiated. I was a member of Sub-Committee E and of the parent committee at the time. In our report published in May 2000, we recognised the existence of the black hole but had some concerns about the creation of a legally binding charter,

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particularly about possible conflict between the terms of the charter and the ECHR. We recommended, at that time, as the best solution, the accession of the EU to the ECHR so that it would become a single Bill of Rights, binding both on the EU and, by virtue of their separate participation in the ECHR, on the member states.

In the event, when the charter was adopted in 2000, it was given a merely declaratory status—that is, not itself declaring the law but treated as a statement of what were understood to be existing human rights recognised by the member states. It was at that stage denied formal legal status, due, to a considerable extent, to pressure from the United Kingdom, applied through the presence of the noble and learned Lord, Lord Goldsmith, now the Attorney-General, but then the representative of the United Kingdom Government on the convention which originally drew up the charter.

The status of the charter is now being reconsidered. It has been recognised that the black hole has to go and that a charter with merely declaratory status is not good enough. As I have already said, the committee has said in its report that the EU must have its own Bill of Rights.

In addition, the status of a declaratory charter is ambiguous. Its provisions, as statements of existing human rights generally recognised by the EU and its member states, are unlikely to be ignored by the courts. Indeed, they have not been ignored but have been considered, as the noble and learned Lord, Lord Scott, said, on a number of occasions.

I come back to whether the draft constitution should incorporate the charter of fundamental rights as the Bill of Rights or adopt the ECHR as a Bill of Rights through providing for accession. The creation of a new Bill of Rights, as distinct from the charter, is theoretically possible but, in practice, impracticable.

In practice, as the noble and learned Lord, Lord Scott, told us, the Giscard convention has fired both barrels: it has incorporated the charter but has also provided for accession to the ECHR. As the report points out, there are practical problems with accession. It will require amendments to the ECHR and the consent of all 44 member states of the Council of Europe. It would therefore plainly take years to achieve. The advantage of incorporating the charter is that if the constitution is adopted by the EU, the charter will be adopted as part of it and come into immediate effect. I now believe, having changed my mind somewhat since 2000, that this is the right course, mainly because accession to the ECHR will certainly take a long time and may well not be achieved at all.

I also feel that the risk of conflict with the ECHR has been reduced by the incorporation of Article 52.4 of Part 2 of the convention, which provides that, in so far as the charter contains rights corresponding to rights guaranteed by the ECHR,

"the meaning and scope of those rights shall be the same as those laid down by the said Convention".

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Further, the charter must apply only to the EU itself and its institutions and agencies. That is an issue that is absolutely central to the status of the charter. It should apply to member states only when they are implementing the law of the European Union. That is provided by Article 51.1. Article 51.2 provides:

"This Charter does not extend the scope of application of Union law beyond the powers of the Union or establish any new power or task for the Union".

We have what appear to be strong safeguards against the possibility of what the noble and learned Lord, Lord Scott, referred to as "competence creep".

The charter does not extend the power of the European Union and its institutions; indeed, it limits them by requiring the use of existing powers to conform with human rights as laid down in the charter. The report says in paragraph 98:

"The Charter's impact on Member States' freedom of action is therefore circumscribed. It is not intended to fetter the powers of Member States outside the field of Community/Union law to pursue whatever policies they choose".

I therefore believe that the charter should be welcome not only to pro-Europeans who recognise a Bill of Rights as a necessary part of the constitution, but also to reasonable Euro-sceptics, as I would describe them, because it limits rather than expands the exercise of the powers by the European Union. I am therefore very pleased that the report is published in the name of, among others, the noble Lord, Lord Neill of Bladen, whom I know to be in the category of reasonable Euro-sceptics.

The charter is of course far from perfect. I entirely agree with the criticisms of the noble Lord, Lord Neill of Bladen, concerning the awkward relationship between the charter and the commentary, which is certainly a prospective source of great confusion. The charter contains some provisions that appear to fall outside the competencies of the European Union. For example, Article 25 states:

"recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life".

That is a perfect description of the functions of your Lordships' House.

The charter also contains some rights that are not significant enough to justify inclusion in a Bill of Rights. For example, Article 29 states:

"Everyone has the right of access to a free placement service".

A more important defect is the procedural difficulty that individuals will have in enforcing rights under the charter. As the report states in paragraph 142—and I entirely agree—

"If incorporation . . . is to confer any real benefit on individuals, the rights that will have been created will need effective remedies in order to give those rights substance and make them meaningful".

I strongly agree with the report's call for the re-examination of Article 230 of the Treaty of the European Communities, which puts barriers in the

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way of applications by individuals to the European Court of Justice. I agree wholeheartedly with the report's conclusion in paragraph 156:

"It seems to us essential that the creation of a Bill of Rights for the Union . . . should go hand-in-hand with the development of effective judicial remedies available to individuals in the event of any breach by the EU or any of its institutions".

The noble and learned Lord, Lord Scott of Foscote, referred to a new amendment intended to enlarge the rights of individuals. That amendment is so recent that, like the noble Lord, Lord Neill of Bladen, I have not seen it, although I have what I thought were the latest documents. Like the noble and learned Lord, Lord Scott of Foscote, I find it—certainly as he read it out—extremely difficult to understand.

We welcome the report and the charter and its incorporation into the draft constitution of the European Union as a Bill of Rights. However, we want steps to be taken to strengthen the ability of individuals to enforce it. The Government have succeeded in clarifying and strengthening the provisions that restrict the operations of the Bill of Rights to the institutions of the European Union and the implementation of European Union laws. I hope that as a result the Government feel able to accept the incorporation of the charter into the draft constitution.

2.20 p.m.

Viscount Bridgeman: My Lords, I should like to add my congratulations to the noble and learned Lord, Lord Scott of Foscote, and his committee on this excellent report and to say how pleasing it is to have two of the members of his committee—the noble Lord, Lord Neill of Bladen, and the noble Baroness, Lady Thomas of Walliswood—speaking. My noble friend Lord Howell of Guildford would normally have spoken for the Opposition in this debate, but he is unavoidably absent.

My first point is a general one connected with the draft of the European constitution of which the charter forms part. When the Charter of Fundamental Rights was conceived, in 2000, the Prime Minister stated, ahead of the Biarritz summit, that any charter of fundamental rights was only a political document and would not have legal standing. It is now included as part 2 of the constitution where, if enacted, it will be fully binding and under the jurisdiction of the European Court of Justice. That is despite the Government's response when, in paragraph 2, they agreed that the charter was not drafted in a form suitable for legal status. The noble and learned Lord, Lord Scott, has of course expanded the point in some detail.

In that connection I am slightly disturbed to read in paragraph 11, on page 9 of the report:

"It seems to be generally accepted that, excepting the horizontal clauses, there is no practical possibility of changes being made to the text of the Charter. It may be right that this is the present political reality but it is regrettable. The text of the Charter has been criticised, even by some of its most ardent supporters. Revision is desirable. And, post-incorporation, any amendment of what would have become part of the Union's constitution would be very cumbersome and much more difficult to achieve. This state

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of affairs underlines the importance of the horizontal clauses and the proposal that the Charter should be supported by an explanatory commentary".

Of course that last wish is in the process of being granted.

I was going to say that the latest version of the document is a good one, but then it was comprehensively taken to pieces by the noble Lord, Lord Neill. In view of the remarks of the noble and learned Lord, Lord Scott, that the drafting of the charter itself is on the relaxed side, it is absolutely essential, if this route is followed and the document is to have legal or quasi-legal status, that the commentary is a truly top-class document.

I would certainly welcome an explanation by the Minister of why between 2000 and now the Government changed their mind on the status of the charter. It raises justifiable fears among many people in this country that the charter and the constitution are being pushed through by stealth. The noble Lord, Lord Neill, spoke eloquently on behalf of the occupants of the Clapham omnibus on which, as he reminded us, some Members of your Lordships' House are occasionally passengers, too. They will not be all that impressed by the significance of the proposal that, in addition to the members states, the EU will become party to, for example, the Bill of Rights if it is enacted.

I also understand that the Government, when they get to the IGC in the autumn, intend to reverse certain items in the constitution—the "red lines", as we are told—but that the charter is not to be included in this renegotiation package and there is no intention of attempting to reverse any of its provisions. So we are stuck with a massive package of "rights", all indeed fundamental and admirable in themselves, but inappropriate to be the subject of enforcement anywhere save in the domestic jurisdiction of member countries. At the seminar on 17th June at the Foreign and Commonwealth Office, Mr Jack Straw and Mr Peter Hain sought to assure those attending that the proposed regulations did not impinge on national legislation on existing rights. Nevertheless, the fact remains that the safeguarding of many of those rights will pass from the member states to Brussels. Having said that, I shall attempt to be objective.

We have the Government's response to the committee's report, and I am pleased to note that many of the recommendations have been accepted. We are pleased to see that the Government fully recognise the importance of the horizontal clauses as a bulwark against the enlargement of Union and Community competencies—the competence creep.

I commend the clarity with which the various alternatives for the possible combinations of the charter, the ECHR and a Bill of Rights have been set out. I am grateful to the noble and learned Lord, Lord Scott, for further clarifying the matter in his excellent speech. I am, however, concerned by the Government's response to the recommendation at paragraph 163, page 39 of the report, in which they state that they are not in favour of individual right of access to the European Court of Justice, arguing that

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the issue of remedies for breaches of the ECHR is in their view dealt with adequately by the ECHR and the Human Rights Act. I note that this matter is addressed in the Framework of Proceedings of the Discussion Circle, paragraph 2, and the Minister's comments on that will be welcome. The latest document that we have may also be relevant in that regard.

I now turn to the horizontal provisions which the committee has highlighted. As many noble Lords have said, these are the essential defence against "competence creep" on the part of the Union. I note from the Minister's reply under Q219 on page 46 of the report that the Government are addressing the matter. However, in paragraph 91 on page 26, the Committee is unequivocal in its view:

"In our opinion, however, it is, in principle, unsatisfactory that the rights of the individual should, in effect, be curtailed by the horizontal clauses. Such an approach scarcely serves the interests of transparency or makes those rights more visible to the citizen".

It goes on in the next paragraph to state:

"It is essential to ensure that the horizontal clauses are as clear and as unambiguous as possible".

The Government must not stand accused by their citizens of in effect saying, "Don't worry, these horizontal clauses are here for your protection but I am afraid they come at a cost in the form of curtailment of your rights and loss of transparency". I shall welcome the Minister's comments on progress in that field.

Perhaps I may finally turn to the remedies proposed by the committee. The committee effectively says that the charter must have real teeth so that the rights conferred can be given real substance. The Government's reply is that rights are already available under national law—though I have to say in passing that this is a reflection on the need for the charter—but that it is for member states to agree what, if any, further remedies may be required at Union level, and these will emerge from the convention discussion circle. So much is riding on the outcome of their deliberations.

In the next recommendation covering paragraphs 146, 148 and 150 of the report, the committee states:

"No matter within the scope of the Charter and within EU competences should be outwith the jurisdiction of the ECJ",

and goes on to say that the court should have jurisdiction over the second and third pillars. Again, the noble and learned Lord, Lord Scott, made an eloquent case for that. But here the Government and the committee do not agree. I have to say that noble Lords on this side of the House are in agreement with the Government who state in their response that there is no ECJ jurisdiction in CSFP at present, nor should there be in the future. There are plenty of points on which we disagree with the Government as regards the charter and the wider constitution, but here the distinction between executive functions exercised at the international level and the legislative powers impacting on individuals is well made, and we support it.

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As I said, this is an excellent report. We have studied the Government's responses, and we look forward to hearing the reply from the Minister.

2.28 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I join noble Lords in thanking the noble and learned Lord, Lord Scott of Foscote, and his committee for producing the report. I thank the noble and learned Lord for the erudite and succinct way in which he opened the debate. He gave a comprehensive exposition of the position in which we now find ourselves. However, it was a little unfair of the noble and learned Lord to say that we gave no reason for resisting the incorporation of the charter as it then was.

I absolutely agree with the noble Baroness, Lady Thomas of Walliswood, that it is important—as was said by the noble and learned Lord—for us not to have competence creep and that there should be clarity in relation to the way in which the horizontals are played.

In the relatively short time I have available in which to speak it may be for the convenience of the House if I focus my reply on the outcome of the convention regarding the charter and on Her Majesty's Government's policy in this matter. As many noble Lords will know, I had the privilege and pleasure not only of appearing before the committee but also of representing Her Majesty's Government in the negotiations relating to the charter.

Before I do so, however, I hope that I can reassure the noble Lord, Lord Neill, that the charter is not such an esoteric matter as he fears. In today's issue of the Sun, reference is made to it on the front page—not with the accuracy that we would wish or the tone that we would desire, but there it is. I am reliably told that 4 million citizens each day delight in reading that newspaper. The subject is on the agenda now.

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