Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 80 - 99)


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

  Q80  Chairman: So you would like a discrete section dealing with all aspects of human rights?

  Dr Toner: I think that might be helpful, yes. We do recognise that in the guidelines and in the literature that is there already to guide the use of impact assessments there are questions that relate to fundamental rights, but we do think it would be helpful to collect together everything under one heading to focus people's minds on this. My third point relates back to our welcoming of this in principle but having some concerns about how it may work in practice. From looking at the literature of environmental impact assessments there is some concern that in some contexts this operates in such a way as to simply permit a developer to justify what they wish to do in practice. It is not always effective in preventing or allowing concerns to be raised about potentially environmentally damaging development and sometimes simply allows the developer to justify what it wishes to do, and I have certainly picked that up from the background reading that I have done on the environmental use of impact assessments. We hope that this will not be the case here transferred into the context of fundamental rights assessments, that this will just permit political decisions essentially that have already been made or political preferences that are there within the Commission or within other institutions to be justified without adequate and proper scrutiny.

  Q81  Chairman: It ought to inform a decision whether to go ahead rather than merely justify a decision to go ahead, is that what you are saying?

  Dr Toner: We hope it will work in that way, but we wonder. Finally, we have some remaining concerns about how this will actually operate in practice within the Commission. One of our concerns at this particular stage is that we understand that there is further guidance for Commission officials. We understand that a document has been prepared about how to do impact assessments on fundamental rights and how to deal with these issues within the impact assessment framework. I understand that it has even been used on one or two occasions, but I have not had sight of that yet and we do think it will be important to see that and to get behind the scenes and know what is going on before we can give any more definitive assessment of how this process will work and what use it will be.

  Q82  Chairman: It would be helpful to see the internal guidance that is in fact going to direct the way ahead with impact assessments.

  Dr Toner: Yes, I think it will.

  Q83  Chairman: Let us move on to comitology. Are there any special problems that arise through that process?

  Professor Guild: This question has fallen to me by common agreement among all four of us! What I want to say is about comitology being the mechanism through which a decision is taken, at what level a particular form of regulation takes place and what kind of legislative scrutiny that legislation should be subjected to. This particular proposal seems to insert a whole separate layer of possible provisions going into legislation, certainly in the form of recitals and into the explanatory memoranda, which are not subject to the same scrutiny. Unless it fits within the existing rules on comitology it seems to me that it will create difficulties.

  Q84  Chairman: Does JUSTICE have anything to add on that one?

  Dr Metcalfe: No, my Lord Chairman.

  Q85  Chairman: We have already touched on recitals and the explanatory memoranda. JUSTICE greatly welcomes the thought that finally there is going to be some, however brief, reasoned exposition of the approach to human rights for a particular measure. Is there anything you feel that could strengthen that or should that be subject to any additional validatory process or anything of that sort?

  Dr Metcalfe: I do not have anything more to add in relation to what I said earlier. I know there is a debate as to whether this extended recital should be used or whether it should be tailored to the specific legislation in question. In our view, and we are not fixed to this particular point, the standard recital would be acceptable so long as the explanatory memoranda set out in detail the reasons. However, from the common lawyer's point of view, we would tend to regard the recital and the statement of compatibility as somehow equivalent. However, it may be that a different approach is required in relation to European law.

  Q86  Chairman: You are going to get something more, as I understand the Commission's Communication, than you would get under a section 19 bare declaration here.

  Dr Metcalfe: Yes, we very much hope so. This is why we welcome the use of explanatory memoranda.

  Q87  Chairman: I do not think there has ever been any question of the courts here being enthralled with a Section 19 declaration.

  Dr Metcalfe: There was one case where a Section 19 declaration had been made in relation to the 1999 Immigration and Asylum Act for trucks carrying illegal immigrants and that was subsequently found to be incompatible by the High Court and Court of Appeal. That was one instance in UK law where a statement of compatibility has been shown to be inadequate.

  Q88  Chairman: This was the fining of the lorry drivers, was it not?

  Dr Metcalfe: That is correct.

  Q89  Chairman: I believe I sat on that myself. The part that the group is going to play, how does that interact with the part that other monitoring bodies within the Commission are already intended to play? There is a legal consultation process and as I understand it very often there is consultation with the Security, Freedom and Justice Group. How do you see the interplay between these internal bodies?

  Dr Metcalfe: My Lord Chairman, having discussed this with Professor Guild earlier, we felt that she might be better placed to take the lead in relation to this.

  Professor Guild: My Lord Chairman, I will pick up the question. Our experience so far is that, in following the adoption of legislation under what used to be called `justice and home affairs' and now within the remit of the Commission is justice, freedom and security, the engagement of the Commission officials in brokering a compromise among the Member States in the Council and with the Parliament has the tendency of compromising their position as an independent actor in assessing whether or not fundamental rights continue to be complied with. At the first stage where a proposal is made, if that proposal is made by the Commission, and of course in the First Pillar they now have a monopoly, the Third Pillar remains another matter; at least one has some sense that there has been some attempt made to ensure that there is compliance. In the negotiations, particularly in the first five years of the area of freedom, security and justice, we had a deadline in which the legislation had to be adopted and we see the political pressure to reach agreement at all costs leads to a diminution of standards, leading to a series of problems, for example I mentioned already the   Family Unification Directive. The Asylum Procedures Directive, which this Committee has looked at on two occasions so far and has criticised, looks like it may well be passed in an even more disastrous form, as regards the international obligations under the Geneva Convention, than it was the last time your Lordships looked at it. Therefore, we are looking at a situation which is not leading us to have a huge amount of confidence in the fundamental rights monitoring which is taking place throughout the process of the adoption of legislation. Will our group of Commissioners do better? Well, the question, I think, to a very large extent will be: what powers will that group actually have? Here, I think the answers which you have had from the Legal Services Commission are not particularly encouraging. They certainly have no coercive powers to ask anybody to come and give them evidence and no sanction powers, so it is a difficult to see what they are going to do. Also of course the Commissioners are part of the college of Commissioners and they have joint responsibility for ensuring that the treaties are respected, including the deadlines, and, therefore, they are under the same pressures. Can we expect that we will have different political negotiations as to the relaxing of fundamental rights standards in order to achieve a deadline from this group than we would have from one particular DG in itself? That is not entirely clear, and this brings us back to our Deputy Secretary General of that group who will be the lynchpin. I would also add that we have just had at the end of last month the decision of the European Court of Human Rights in Bosphorous Hara about the compatibility of EC legislation, concerning the freezing of assets in the Bosnian crisis. The case finally made its way to the European Court of Human Rights. The detail is infinitely complex, so I will not go through it all, but what the Court of Human Rights has done is it has set a new threshold for when it will intervene in the human rights protection regarding the ECHR compatibility of Member State acts pursuant to EC legislation where Member States act as a matter of obligation rather than discretion. It has set that threshold at `manifestly deficient'. Unless it is clear that the legislation is manifestly deficient and that the procedure through which the individual has gone in seeking to put forward his or her claim to fundamental rights is manifestly deficient, then the Court of Human Rights will not intervene. Now, we have not yet had any academic writing on the field or any other judicial consideration after this decision, so we are not entirely clear where it will go, but it looks as if it is a very, very high barrier. In other words, the EU is to take care of its fundamental rights concerns on its own and the Court of Human Rights will only intervene in very exceptional circumstances. This is very good for the coherence of EC law. We are not being challenged from the European Court of Human Rights on the supremacy of EC law, but it means that we have to be absolutely sure we are getting it right within the EC. The scrutiny level of the Court of Human Rights will be at a much lower level.

  Q90  Chairman: But will the European Court of Justice itself not entertain human rights-based arguments?

  Professor Guild: When it has competence.

  Q91  Chairman: Of course.

  Professor Guild: Indeed it will when it has competence, but the competence rules are quite different.

  Q92  Chairman: The next question is directed to the Commission monitoring the implementation of Directives and so forth, but in the Member States, and I think again we have touched on that, you contemplate that really being the task of the Fundamental Rights Agency when it comes into being. I think you, Dr Metcalfe, discussed that earlier on.

  Dr Metcalfe: Yes, we took the view that the Commission itself should play a role in monitoring this and also that there was a role for the Fundamental Rights Agency as well. I think in her earlier answer, Professor Guild referred to the role of the Fundamental Rights Agency as monitoring the   implementation, perhaps leaving it to the Commission to look towards pre-legislative scrutiny. I would say that the Fundamental Rights Agency in an ideal world should perform both functions and that will come down to a practical matter of resources, but I do not see any reason why you could not have both functions being carried out by both groups, that is to say, the Commission should be conducting pre-legislative scrutiny of its own legislative proposals and monitoring implementation by Member States and, similarly, the Fundamental Rights Agency should be looking at implementation by Member States and, in addition to that, looking at how well the Commission is doing when the Commission is coming up with its own proposals. I do not think it is redundant because I think it is particularly important for both groups to be carrying out their roles from their respective positions, the Commission as the legislator and as part of the Executive and the Fundamental Rights Agency as an independent, impartial body of experts. I believe that they both have a role to play at both stages of the legislative process both in terms of pre-legislative scrutiny and in terms of implementation.

  Q93  Chairman: Do you all perceive that the same way?

  Professor Guild: Yes, my Lord Chairman, I think we certainly agree that the role of the Fundamental Rights Agency, subject to the subsidiarity rules, is as   regards implementation. The Commission, in guarding the treaties, is under a duty to ensure that EC law is correctly applied in the Member States, so it has an obligation which is set out in the treaties themselves of monitoring applications at the national level of fundamental rights. In my experience though, while I have been involved as an expert for the European Commission monitoring the application in the UK of certain parts of EU legislation, I have never come across anybody who has been asked, as an expert in any Member State, to monitor the application of specific legislation in the context of fundamental rights. Therefore, on the one hand, you have a monitoring of fundamental rights by the Commission as a general topic and its committee of experts, but within the context of the monitoring of, say, the free movement of workers, an area one would imagine was quite sensitive to the issue of fundamental rights, there is no specific remit, so we do not see that happening at the moment.

  Q94  Chairman: How would you envisage they would set about that? Would they set up a group to investigate some particular aspect of implementation of Community law or how would they do that?

  Professor Guild: I think we are pulling in two different directions in the Commission at the moment. On the one hand, we are going to create this Fundamental Rights Agency and we are going to amalgamate two different bodies into that agency, so in one sense we are almost hiving that off away from the normal monitoring procedures which the Commission is required to carry out as regards legislation and saying, "Well, this is being done by an independent agency and takes place elsewhere, so it is not really us; it is one of those agency issues". On the other hand, it seems to me that certainly in the field of justice, freedom and security there is an increasing awareness of the need to monitor fundamental rights issues, and we have recently had the fundamental rights teams in DG Internal Market moved over to DG Justice, Freedom and Security, and DG Employment and Social Affairs lost its human rights competence some time ago. Therefore, we are seeing a consolidation, but, on the other hand, it does not seem as yet to be making its way outside or even within DG Justice, Freedom and Security into the actual units which are drafting up legislation, let alone monitoring it. If we take as an example the Asylum Reception Conditions Directive, the implementation date of which was passed on 2 February of this year, the Commission has been asked on a number of occasions to monitor the fundamental rights compliance of the Directive's application in a number of Member States and so far the Commission has declined to respond even to requests which have been put to it and, as far as we can tell, it is only bringing enforcement actions against those Member States which have failed to provide any legislation whatsoever to implement the Directive.

  Q95  Chairman: Question 12 is directed to independent pre-legislative scrutiny and we have already touched on the procedures set out in the Communication as being self-regulating without, on the face of it, any external scrutiny. How do you see the need for external scrutiny? Who should supply it and is there a role for national parliaments? Who would like to respond to that question?

  Dr Metcalfe: In relation to the Fundamental Rights Agency, yes, we believe it should play an active role. We also believe that the national parliaments should continue to play the role, obviously speaking from JUSTICE's perspective and from a UK perspective, and, to avoid flattering my audience, we believe that the EU Committee does a particularly important job in this respect. What we are looking for in relation to the scrutiny of fundamental rights is something akin to what the Joint Committee on Human Rights does in the context of the national parliaments, so we would like to see that role continue. I am not sure to what extent there are analogues in the other European Member States, but I should be surprised if, by and large, they do not exist, but to the extent that they do not, it would be good for them to develop along this model. Just to make a very quick point to reinforce something which Professor Guild has said, we would not want to see this kind of scrutiny lead the European Commission itself to abdicate responsibility, just as we would not want to see government departments suddenly not bothering with the Human Rights Act simply because we had the Joint Committee or the forthcoming Commission on Equality and Human Rights. The mere fact that you have an independent agency that has been assigned to provide external scrutiny does not relieve the individual members of the Executive or the Legislature of their own responsibility to fundamental rights.

  Q96  Chairman: The principal and initial responsibility is on the body who is proposing the legislation?

  Dr Metcalfe: Yes, my Lord.

  Q97  Chairman: Can I just ask you, when you see  proposed legislation in Brussels and impact assessments and your antennae start quivering because you sense human rights concerns here, do you immediately communicate with somebody and,  if so, who? Do you communicate with the Commission or do you communicate with us or who?

  Ms Goldberg: It is quite difficult to establish communication sometimes with the Commission, I must say. There is not a lot of transparency, so in that respect we sometimes do not know to whom we should address ourselves and to which DG we should write to. Maybe Professor Guild can add something to this point about how easily we could address our points and concerns to the Commission.

  Q98  Chairman: How do ILPA react when they are concerned about a proposed piece of European legislation, Brussels legislation?

  Professor Guild: Well, my Lord Chairman, the first thing that happens is that there is a massive amount of traffic on the Internet and everyone starts emailing everybody else. We start to pull together ideas and we talk to our colleagues at JUSTICE and NGOs throughout the UK, saying, "What do you think about this?" When we consolidate this into a position, either it will formulate itself into a position or someone, for instance Professor Peers, will say, "Oh no, that's been dealt with already and the results are out", and that might end the discussion or it might not. We then proceed to formulate a position which may be a joint position with other NGOs working in the field, depending what the particular issue is. We have a number of problems that are ongoing with the correct application, for instance, of the pre-Accession agreements with Bulgaria and Romania as regards free movement of the self-employed. Here we discussed widely with other NGOs and with lawyers about what the problems were and then we have entered into dialogue with the Commission to some extent, with goodwill on some parts and kicking and screaming on other parts, trying to get some kind of response. Of course we enter into discussions with the national government as well regarding compliance with EU obligations and of course if this all comes to nought, then, as an association of solicitors and barristers, the issue tends to become judicialised.

  Q99  Lord Goodhart: It is my impression that in many cases actually the most effective way of making objections on human rights grounds known is to go through the European Parliament. Is that correct?

  Professor Guild: Yes, indeed. My Lord, the European Parliament is perhaps one of the most responsive and the most likely to pick up the issue, to instigate some kind of action, at least parliamentary questions, if not a debate, or if not in one of the committees an inquiry. Yes, we have seen the democratic arm of the European Union, the elected part, perhaps more sensitive to fundamental rights issues than any of the other institutions, barring of course the ombudsman.

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