Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 60 - 79)


Professor Elspeth Guild, Dr Helen Toner, Ms Marilyn Goldberg and Dr Eric Metcalfe

  Q60  Chairman: Good afternoon. May I welcome you and say how grateful we are to you for coming. As you know, we are live, the television screens are on. There is a transcript of what is said this afternoon. You will get a copy of that and have a chance to revise it syntactically or otherwise if you need to. May I ask you in turn to introduce yourselves so that that will be on the record too? I am not sure who wishes to start. Professor Guild?

  Professor Guild: Thank you very much. I am Professor Elspeth Guild of the University of Nijmegen and I am here in my capacity as Co-Chair of the Immigration Law Practitioners` European Sub-Committee.

  Dr Toner: Dr Helen Toner, a lecturer in law at the University of Warwick and also a member of the ILPA European Law Sub-Committee.

  Ms Goldberg: I am Marilyn Goldberg. I am working for JUSTICE as an EU Legal Officer on the European Charter projects.

  Dr Metcalfe: Dr Eric Metcalfe. I am the Director of Human Rights Policy at JUSTICE.

  Q61  Chairman: Thank you very much. You can see who we are because we display our names in front of us. I know you have all had sight of the questions that we want your help on this afternoon. I think the best thing is if we ask all of you to deal with the questions as they arise. Perhaps I can start by thanking you for your written contributions which have been of enormous help. In a sense we will take them as read, but if you want to expand on aspects of them, that would also be very helpful. The first question is whether you think that the Communication should indeed be welcomed. Is it on the whole an encouraging thing? I get the sense that ILPA are rather more sceptical about this than JUSTICE. Is that fair? Have you seen each other's contribution?

  Professor Guild: Yes.

  Q62  Chairman: Perhaps you could give an overview on how you reacted to the Commission's proposal.

  Professor Guild: Thank you very much, my Lord Chairman. We have indeed had the benefit of reading the evidence of the other parties. The scepticism which appears in our submissions I think rests primarily on four issues. We welcome the Communication. However, we would wish to note that more noise about human rights and fundamental rights protection does not mean that there is better protection. As we hear more and more about fundamental rights at the EU level we are concerned that it is not in fact leading to better protection. Secondly, it seems to us that the European Charter of Fundamental Rights is perhaps a good legal base on which to seek to achieve better human rights proofing of EU legislation and that it is in fact a justiciable set of rights against which individuals can seek to promote their rights. Thirdly, in the Communication there is a suggestion that the protection of fundamental rights should fall on a series of bodies which are not in fact in any way related specifically to the democratic process. We would just wish to reiterate that in our view democracy is the mechanism in which the protection of fundamental right is inserted as a central element and one cannot offload one's duties to protect and ensure that legislation complies with fundamental rights by giving it to agencies or monitoring bodies that are outside the democratic process itself. Our fourth and final point is that we are very concerned that any mechanisms which seek to fundamental rights-proof legislation of the three kinds proposed in the Communication must not have the consequence of constituting an obstacle to judicial scrutiny of compliance with fundamental rights implications, in respect of the concerns of individuals that their rights have not been protected.

  Q63  Chairman: Thank you very much. Dr Toner?

  Dr Toner: I do not think I have anything to add at this stage to that general introductory question, thank you.

  Q64  Chairman: Dr Metcalfe?

  Dr Metcalfe: I would like to state at the outset that   JUSTICE welcomes the principle of the Communication, which is that all legislation should be subject to internal scrutiny before it is presented. We do, however, share some of ILPA's reservations in relation to the practice. In relation to the principle, I would say that perhaps historically too much emphasis has been placed upon the judiciary and the courts to protect fundamental rights and perhaps too little attention has been paid to the idea of the legislators themselves, including those who drafted and prepared the legislation, the obligations upon them to come up with law that is compatible with fundamental rights and in that spirit we welcome the Communication. The constitutional burden for protecting rights should fall, first and foremost, on those who come up with the legislation, not those who enforce it. In practical terms, however, we do think that it is possible to go further. In terms of the Communication itself, we think that the Commission should require impact assessments in all cases. We also think they should extend the categories under which impact assessments are required. A third and perhaps more general point that is beyond the remit of the Communication or indeed the Commission itself is that we would like to see the scrutiny process extended beyond the Commission to the other legislative processes within the EU institutions, the Council and the Parliament. In that sense we welcome the spirit of the Communication even if in practice it falls short.

  Q65  Chairman: So you think it can be usefully built upon but it is incomplete insofar as it offers sufficient safeguards at the moment?

  Dr Metcalfe: It would be incomplete if it were to be the only protection in terms of legislative scrutiny within the EU institution as a whole, yes.

  Q66  Lord Lucas of Crudwell and Dingwall: If your job in the Commission is, say, compiling regulations on the permitted colours of cows, how familiar are you going to be with human rights legislation? Will you be able to see the human rights problems coming up if you are an ordinary run-of-the-mill lawyer doing drafting and that sort of regulation or do you need a specialist unit? If you do need a specialist unit, should it be independent of the Commission or should it be a creature of the Commission?

  Dr Metcalfe: I think in the first instance you would turn to the Legal Services Unit, but if you are concerned you do not have the expertise yourself and it is outside your Directorate General then you would turn to the DG for Human Justice and Security and seek their advice. What you should be looking at is an internal awareness. Even the person who is charged with picking the colours for particular motifs or whatever should still have an awareness that there are these principles out there that can have an impact on their own decisions.

  Q67  Lord Lucas of Crudwell and Dingwall: Does anything like that exist? Is that the way the Commission works?

  Dr Metcalfe: I could not tell you. I am not in a position to offer that kind of analysis about how the Commission works.

  Professor Guild: My Lord Chairman, I think that is definitely a question to ask the Commission officials, particularly the Legal Service, how they ensure that their legislation takes account of obligations at the EU level.

  Chairman: We have a note of that.

  Q68  Lord Borrie: I wonder if I might ask Professor Guild a question, it is really raising an issue with her about the general point with which I entirely agree, that sometimes if there is a lot of noise about fundamental rights there is not necessarily the proper procedures to ensure that they exist and are enforced. I think it was in the second of her four points that she seemed to be somewhat unfair to this particular Communication, which after all is trying to actually devise a number of procedures within the legislative process so that experts, such as the Legal Service and other possible bodies in the future, if there is a fundamental rights agency who will be expert on this, would have a say and would report and would have the value in impact assessments and so on of ensuring that fundamental rights were not just a lot of noise but actually meant something and was a reality.

  Professor Guild: I do not want to be too harsh on this   proposal, but it seems to me that this Communication cobbles together three quite disparate ideas into one document which come from a variety of different sources and are perhaps not fully digested. The first is the idea that references to fundamental rights should be going into explanatory memoranda and into recitals of EU legislation where appropriate. Then there is the question about how we determine which legislation requires a mention in the recitals and which legislation requires something in the explanatory memoranda, but there is no question about whether or not something needs to go into the body of the text of the Commission proposal for legislation beyond the recitals and the explanatory memoranda, that seems to me to be a bit problematic. The second thing which the Communication does is it takes a process which seems to have been pulled together on impact assessments driven by the environmental protection lobby, which set out as a policy tool the use of this impact assessment idea. In 2002 we extended this from environmental to economic and also social impacts and then in this Communication we pull out a couple of words that appeared in that 2002 Communication on impact assessments referring to fundamental rights and we  said, "This would be jolly good. Let's have fundamental rights impact assessments in respect of legislation." So it is a bit out of context, it is freeloading on the back of a policy tool which has been designed in completely different fora and for completely different purposes. Maybe it will be a jolly good idea and maybe it will not be, but it seems to me it needs to be digested a little bit further. The third thing is that we decided to set up this committee of commissioners that is supposed to be monitoring. One of the interesting things which I noted from the evidence you have had from the Commission's Legal Service is that the remit is fairly unclear as to what it is supposed to be monitoring, who it is supposed to be monitoring and it clearly does not have any power to require anybody else to be monitored, nor to provide sanctions in respect of a decision of inadequacy as a result of the monitoring process. So we have something which purports to be some sort of monitoring taking place, which limits to a small number of persons those who are monitoring, but where it is fairly unclear exactly what they are monitoring and the question of relationship with monitoring implementation at the national level is left completely aside, with only a reference to the Fundamental Rights Agency, and the question of what we are going to be monitoring and how is fairly unclear except that they seem to think they are going to be monitoring the two other branches, which must be the Parliament and the Council.

  Q69  Chairman: How would you like to see the group develop? Its remit is to drive forward the interest in human rights and concern for human rights. How would you like to see it brought into play in order to further the objectives of the Communication?

  Professor Guild: From what I understand of the supplementary document about the group of commissioners, which my colleague, Helen Toner, has managed to extract from the internet with great difficulty, it seems that what this group of commissioners does is it reduces from 25 to eight commissioners those who are responsible for monitoring fundamental rights. They can be replaced, of course, by members of their Cabinet. It seems from the document that the person who is going to hold the power on deciding the monitoring is the Deputy Secretary General. If this group of commissioners is actually given any powers, that person will become a key person in terms of the power of monitoring what happens to Commission proposals as they go through the legislative process and in calling to task all of the different parts of the Commission, the Council and the Parliament as regards fundamental rights. So it could become, were it to be given any power to require anyone to produce any information about monitoring, were it to be given any sanctions as regards failure, a rather powerful role. Then you have to ask who is going to be this Deputy Secretary General and what will its relationship be to the democratic bodies in the European Union, both at national and EU level of course.

  Q70  Lord Goodhart: I should perhaps start by making a declaration of my interest. I was Vice-Chair of JUSTICE. Professor Guild, there are all sorts of interesting questions following on from what you have said. There are proposals—indeed we have them before us today—for setting up a Fundamental Rights Agency as part of the EU. Is there any point in having a Fundamental Rights Agency and a separate group of commissioners to monitor what the Commission is doing in terms of fundamental rights, or would it be better to merge the two and have the   Fundamental Rights Agency responsible for monitoring the Commission?

  Professor Guild: It seems to me the Fundamental Rights Agency has an absolutely critical and different role from this group of commissioners because the Fundamental Rights Agency is supposed to be reaching into the Member States, so that is where we get the question of compliance with EU fundamental rights obligations at the national level. The question is what is the relationship with the Ombudsman as regards the EU level. I will leave that aside perhaps for a later investigation into what the Fundamental Rights Agency is doing. At least we have the idea, as we have at the national level with the CRE and this new body that we are about to set up, of an intermediary body between our democratically elected Parliament, our bodies that are part of the democratic process and our citizens to help the citizen to access rights and to ensure that rights are protected. I think the Fundamental Rights Agency, should it work in a particularly effective manner to help those who live within the European Union, should be fulfilling that kind of a monitoring role vis-a"-vis the implementation as regards what is happening at the national level and fundamental rights. This group of commissioners seems to have a duty which is much more related exclusively to the EU level. If I have understood it correctly, though I could be entirely wrong and one of my colleagues will correct me on this if I am, it is about what happens in the legislative process. Perhaps I might be permitted to be slightly colloquial in an explanation. Let us say the Commission proposes a Directive, for instance the Directive on Family Reunification for Third Nationals, and it is a rather nice proposal, it has got its human rights stuff in there, its explanatory memorandum and its recital and it is all looking quite satisfactory. It goes off to the Parliament and the Parliament mauls it a bit. It goes off to the Council, the Council mauls it entirely and demands a redraft with much less fundamental rights stuff in it. So out it comes, the Commission has to obey its political masters and it produces a second draft where a whole series of rights have been taken out. It then goes back and gets mauled further. Nobody is overseeing this process from the declaration that everything is satisfactory as regards fundamental rights in the first draft until it eventually gets adopted in a form which the European Parliament considers to be so inadequate that the Parliament has started proceedings against the Council before the European Court of Justice because it considers the Directive does not comply with fundamental human rights. I think it is that process that this group is going to be monitoring. I think what they would like to be able to do is to call in the Council and say, "You can't do that, fundamental rights are getting lost in this process," and so it goes on, but as it has no powers and no sanctions it is not entirely clear how this is going to happen.

  Q71  Chairman: So you would like to see the Council introduced into the process and perhaps submitting to some extent to oversight by this group? Is that a possible way forward?

  Professor Guild: My Lord Chairman, I have not thought about that. That is an option that I have not really reflected on. Something needs to happen. The fact that what is going on at the moment is not entirely satisfactory I think is well reflected in the document. The fact that we need to find some other mechanism is self-evident. When we look in our policy toolbox, it is not good enough just to pull out human rights assessments or fundamental rights assessments or groups of commissioners, I think we have to have a little bit more reflection and the role of the Council is fundamental in this.

  Q72  Chairman: This is a Commission Communication and in a way it cannot be criticised for not carrying the matter beyond the powers of the Commission itself, but you are really saying that it needs co-operation from the other organs of government in Brussels, are you not?

  Professor Guild: Indeed. I would say in particular it would benefit enormously from a little bit more democratic legitimacy, for instance a bit more participation from the European Parliament to give it some teeth on the legitimacy front.

  Q73  Chairman: Let us move on to impact assessments which are obviously a very important aspect of that and I think, Dr Metcalfe, you have already mentioned those. Can you focus on what you see as the inadequacies of the Communication so far as carrying impact assessments to where it ought to go?

  Dr Metcalfe: We find the Communication's justification for not requiring an impact assessment in every case to be unsatisfactory. While it may be correct that some problems only arise "with detailed implementing provisions or with very specific elements of a legal instrument which an impact assessment could not forecast," it does not seem to us to be an adequate reason for not carrying out the impact assessment in the first place. It seems puzzling to us how you can arrive at a conclusion that a particular piece of information is not suited for an impact assessment until you have carried out an impact assessment and, if that is the conclusion, then that should inevitably form part of the assessment's conclusion itself. I do not think it is possible to rule out a priori the idea that any particular legislation by subject area is unsuited for impact assessments. We consider that impact assessments are particularly important in respect of proposals carried out under the Third Pillar and this is a lacuna in the Communication because a Member State can initiate a proposal for legislation and the Communication obviously is unable to cover what the Member States are able to do when they bring forward proposals. Just as the Commission should be carrying out impact assessments in every case, there is no reason why impact assessments should not be carried out by Sweden or by the United Kingdom when they are proposing measures. I have already noted that we consider the categories which have been relied upon by the Communication, that is to say economic, social and environmental impacts, to be profoundly unsatisfactory. We do not think it is possible to capture the full range of possible impacts on fundamental rights. I think, building on what Professor Guild has already said in relation to how the impact assessment device came about, that is to say through the environmental lobby, it becomes clear that that has been unsatisfactorily adopted to the field of fundamental rights, because you are not talking for instance about the CO2 emissions that are going to be emitted by a factory, you are dealing with how this particular proposal will impact fair trial rights. Fair trial rights do not fall within economic or environmental considerations and I think it is only by distorting their importance quite considerably that you could assess their impact in social terms. Accordingly, we do not think that the existing range of categories is at all adequate. We accept it is perhaps a problematic device to use in relation to fundamental rights because rights protect values and goods and these are unquantifiable to a certain extent. So how can you assess the impact of something when it is unquantifiable? Nonetheless, we would like to see some sense of a broader picture so that when the Commission itself is drawing up proposals it should have regard to those rights and should give their insight as to how they believe their particular proposals will affect those values. We accept it may be a difficult exercise for European civil servants to carry out, but, nonetheless, we feel it is important if this scrutiny is to have any real value.

  Q74  Lord Goodhart: Given what has happened to the EU constitution, it looks as if we are going to be stuck with the Third Pillar for a good many years to come. Is not one of the major problems here that the Commission has no role in relation to Third Pillar matters, and does that not mean that a fundamental rights impact assessment is actually not going to apply to a great deal of business carried out by the EU nations where an impact assessment is most needed?

  Dr Metcalfe: Yes, and we are deeply concerned about that. That is why we have said that the Communication has no scope to cover what Member States do in relation to Third Pillar activities. We thought it was important to highlight in our evidence today and in our submissions that this is what we see as a major area, I completely agree with that.

  Q75  Lord Clinton-Davis: Have you imparted those views to anybody in the Commission or anywhere else? What has been the response?

  Dr Metcalfe: I know from recent conversations I had with civil servants in Brussels not so long ago about the problems they had themselves in preparing the impact assessments. It seems to me anecdotally that the civil servants themselves find it very difficult to carry out the impact assessments in relation to fundamental rights because of a lack of guidance. We have not made—other than this evidence—any formal submissions to the Commission in relation to this, but I would say from my own impressions certainly that they regard it as something in need of a great deal of development. If they are going to continue to do these impact assessments and we hope that they do, we hope they give a great deal more thought in terms of the guidance that they give to the people who are carrying them out because it is clear at the moment—again this is purely anecdotal evidence—they seem to be floundering in certain areas.

  Q76  Lord Goodhart: Do you think it would be desirable if all EU legislation followed the practice now followed in Parliament here and contained a note saying that this legislation is compliant with the Charter of Fundamental Rights?

  Dr Metcalfe: Absolutely. Under Section 19(1) (a) of the Human Rights Act all primary legislation introduced at Second Reading is required to have a statement of compatibility. There has been one instance of a statement of possible incompatibility and we feel the same should be true in European matters, that all legislative proposals, whatever their provenance or origin, should carry with them this certification. I see that in the role carried out both in the recital but also in the explanatory memorandum and it is a positive development. Whereas you do not have a statement of reasons attached to a statement of compatibility in UK legislation, with the explanatory memoranda you have the possibility of giving substantive reasons by the Commission that can then be deliberated upon by those who come afterwards to discuss its merits.

  Q77  Lord Lucas of Crudwell and Dingwall: In paragraph 5 of their submission Fair Trials Abroad talk about the lack of fundamental research that is done before creating an impact assessment. Do you all agree with that assertion and, if so, how would you express an obligation that might be put on the Commission to deal with that?

  Dr Metcalfe: My own experience of the research which was carried out in relation to impact assessments is only anecdotal. We do not have any information to say how well the Commission has performed in relation to impact assessments generally. It is apparent from their own communication that they are somewhat ad hoc. They themselves say that they do not carry them out when they do not see a sufficient connection with fundamental rights. As to how we would require that from the Commission, I am afraid that off the top of my head I do not have a useful formulation to offer, but we would be happy to think about that and perhaps write to you.

  Q78  Chairman: They have not yet started producing impact assessments in accordance with these recent guidelines, 15 June was when the new impact assessment guidance came out, but when they do and when they start filling out these various boxes under the various headings, economic, social and environmental, and start addressing the human rights questions you will no doubt be alert and in a position at that stage to comment upon how successful this new scheme is.

  Dr Metcalfe: We hope so, but again we are judging by outcomes. It is not always apparent in an impact assessment from what has been written up as to the research they may have carried out. We hope that they will go into detail in their assessments as to the research that they have carried out, but I think that is something that remains to be seen.

  Q79  Chairman: Does ILPA have anything to add on the question of impact assessments? Dr Toner, I think you are worried that any averment of compliance should not be seen as a buffer and it should not discourage investigation as to the reality of the assertion.

  Dr Toner: Yes, that is one of our concerns. While we obviously welcome the idea of scrutiny and locking in this process of respect for fundamental rights from a very early stage, which is one of our concerns, that these processes should not add spurious legitimacy that is not really deserved by the reality of what has gone on, obviously in the end it will be of some interest to us, should it ever happen, what kind of attitude the Court of Justice will take as to what importance it attaches to the fact that something has gone through this process. I have four brief points that I think I would like to add. Firstly, a very brief point about the question of impact assessments by Member States and at other stages in the legislative process. That is obviously a concern and I am grateful to my colleagues for raising that. My understanding from the impact assessment literature rather than this particular Communication is that the Commission is quite aware of that and does wish to spread this practice and encourage it elsewhere, but obviously the Commission is telling us what it is doing internally. So it remains to be seen whether this practice will in fact spread and be used in other contexts. Secondly, we also share the concerns of JUSTICE about the inadequacy of this tripartite system of economic, social and environmental impacts. I will not dwell on that but, suffice to say, I think we can see these impact assessments as having a dual role and a dual purpose and certainly from the literature on the environmental assessment this comes through, that it can act both as a process of information gathering and can be seen as a way of instilling a culture of respect either for environmental concerns or for fundamental rights. In practice we have some concerns as to how effectively this tripartite structure, without a clear focus on fundamental rights to sharpen that, may not optimise either the information gathering or the culture building potential of this exercise.

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