Examination of Witnesses (Questions 80
WEDNESDAY 13 JULY 2005
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
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
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,
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.