Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 100 - 107)


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

  Q100  Lord Lucas of Crudwell and Dingwall: Would you like to see the group of Commissioners having an open-door policy on this, welcoming people's thoughts on what the human rights implications of proposals were? Certainly when the Commission talked to us, they did not seem to have any formal mechanism for raising or inspecting proposals for human rights consequences where those were not obvious. These things are perhaps more likely to be seen by outsiders. What if the Commission, say, operated an open bulletin board on the web or   something like that which was completely transparent, or how would you like to see it?

  Professor Guild: The first thing is that if they had a bulletin board, would anybody read it, particularly themselves? Therefore, if we take as an example the  Commissioner's Green Paper on Economic Migration in the European Union issued at the beginning of this year, there is a consultation process which has been extended, but we see in The Hague Action Plan that, even though we have had no response from the Commission to all of the submissions made to this Green Paper inquiry, we see in The Hague Action Plan that they are planning to take action, so even when they do ask us for our views on areas where they indicate that they want our views, it seems that the decision to take action will be taken irrespective of what our views are and before they have read the papers which is somewhat disappointing and does not lead us to have huge amounts of confidence in this additional question of fundamental rights. It seems to me that the protection of fundamental rights in any liberal democracy is intrinsically tied to the Parliament; it is the job of the Parliament, it is not a job of the Executive. It is the responsibility of the representatives to ensure that the constitutional norms are obeyed and upheld and I do not think that that end-of-the-line control can be moved forward in the process to the Executive which is under a whole series of political pressures about drafting legislation and adopting legislation. Of course we want them to take this into account and we would be delighted if they would listen at an early stage, front-loading is always better than end-loading, but it seems to me, and perhaps I am going beyond what we think and I am certainly not speaking for JUSTICE in this regard, though I am speaking on behalf of ILPA, that we think that the democratic process in the EU is part of the problem, the so-called "democratic deficit" which is picked up by the democratic scrutiny provided in some Member States, but certainly not all 25 and certainly not with the same power as in respect of national legislation, and can only partially fulfil this general problem which is structural.

  Q101  Lord Norton of Louth: Really it is that very point I would like to continue because what I wanted to raise was the role of the Parliament which we have only briefly touched on. What we have heard about the European Parliament so far has tended to be looking at it as the recipient of the monitoring, that there is monitoring of legislation going through the Parliament, rather than the Parliament itself having a fundamental role of monitoring which is the sort of thing we are used to. Could the European Parliament do more, and your earlier answer suggested that yes, it was useful when prompted, but is there a role it could fulfil on a much more consistent basis in terms of monitoring? Also you backed a point about national parliaments being mentioned, that what is done so far is good work in terms of the EU Committee here or the Joint Committee on Human Rights, but is there more that could be done at the national level, given the point you made about democratic deficit, in terms of the role that national parliaments could actually play in the process? Given the very point you have just made about the role of national parliaments, what is the process by which they could actually be doing more to address the very problem you just identified?

  Professor Guild: I think that there is much which needs to be done. I think that we need to look at what the structures are, particularly at the committee structures within the European Parliament. They, like many parliaments, have a human rights committee. Well, that is all very well and good, but that only picks up those issues which come to them dressed as human rights issues, so if you have legislation which is coming here dressed up as, for instance, the Services Directive, it will not be scrutinised necessarily by that committee. This then leads to: what are the structures we need to put into place? Do we need to reinforce fundamental rights scrutiny in all the European Parliament committees? I think that is certainly one option which is available. Do we need to ensure that there is some super-body, like our group of Commissioners that supervises what everybody is doing in the committees and supervising, supervising and supervising? I do not know. It seems to me that the proliferation of bodies is not necessarily the answer, but the reinforcement of existing committee structures and widening the remit might perhaps be a more effective mechanism. In respect of national parliaments we have the example of a number of Member States, the UK being one, where there is a very high level of scrutiny, where structures have been put in place over the last 10 years which in fact are very effective and one sees regularly different sub-committees of this Committee insisting on the right of scrutiny whenever there seems to be a failing on the part of the administration in submitting documents for scrutiny, so a very active role which it seems to me is extremely important not  only in scrutinising EU measures, but also fundamental rights measures.

  Q102  Chairman: Can I just ask you this, and I do not think it is related specifically to any of the listed questions, but do you feel that you are consulted as early as you should be in cases raising particular problems in your own spheres, human rights-related problems, or indeed problems related to other aspects in the field of immigration in ILPA's case?

  Professor Guild: My Lord Chairman, as a non-governmental organisation, we are never consulted early enough. Indeed to resolve this problem back in 1999, we drafted up for all of the institutions a set of draft proposals and directives to adopt in the field of immigration and asylum because we were a bit worried that they might not get it right. Of course they found our work terribly interesting and went ahead and drafted their own thing, so we did feel that they ought to have taken our efforts to consult with them a little bit more seriously. Yes, there is always the question: how do you get the business of government done when you have non-governmental organisations representing interest groups with particular constituencies, saying, "You have to consult us now"? It is always a matter of trade-offs. At what point in the deliberation, before it is congealed into a decision to proceed with legislation in a particular form, should that be open to consultation? There is a series of mechanisms where that is supposed to take place, for instance, Green Papers. We have a series of mechanisms where that discussion should take place, though the example I gave was one where certainly we have been given the impression that the consultation was not perhaps quite as open as we had thought it was when the Green Paper was released. Where does that leave us? I think that leaves us with constantly having to reassess the mechanisms by which consultation with civil society takes place in the drafting of legislation.

  Q103  Lord Clinton-Davis: But presumably you have communicated your concerns to those responsible in the Commission and what has been their response?

  Professor Guild: Indeed, we communicate our concerns to those responsible in the Commission on a very regular basis and in respect of some concerns, we have tremendous co-operation. We find that officials within the Commission respond immediately and they express concern about, for instance, the misapplication or bad interpretation of EC law at the national level in some circumstances. We find, however, that when we are criticising measures which they have drafted themselves which are in the process of being adopted, there is perhaps less room for discussion and manoeuvre, not least because by the time a proposal for a Directive is on the table, the Commission officials who are responsible for shepherding it through its legislative process are already deep in the negotiations with the Parliament and with the Council. There is very little space in that particular time-frame for the Commission to enter into discussions with NGOs about proposals which are under consideration by the Parliament and the Council. At that point of course our efforts then go to discussing with the Parliament or with the Council and, of the three, the Council is the most difficult body to engage with where one is least likely to have a positive response. That being said, we have certainly noticed in some fields, immigration and asylum being one of them, that since the Council lost power and it all went off to the Commission, the people in the Council are terribly interested in talking to us.

  Q104  Chairman: Can we come then to the final question which is reviewing the Communication itself. How should that be taken forward? Should there be some annual report to the President or is this something again which should be left to the Fundamental Rights Agency or some other external body?

  Dr Toner: I think I will kick off by saying that it has become apparent from what we have said that we are very interested to see how this will operate and we are very concerned to follow this up and to have it reviewed and to see how it operates in practice, so I think it is vital. I do not know if anyone else wants to pick that up and give more thoughts about that and the detail.

  Dr Metcalfe: No, we do not have any more particular thoughts in relation to the detail. I would just perhaps like to add something and our experience I believe is very similar to that of Professor Guild in   relation to the lobbying of the European Commission. There is a profound sense of inertia when one deals with civil servants, even when they are consulting at a relatively early stage because, if I take a recent example, we were speaking to someone in relation to something which was implementing part of The Hague Programme, so you already had a strong sense of the Commission and its relative, I would not quite say "indifference", but something quite close to it, to concerns in relation to fundamental rights. There is a very strong sense of inertia that comes from some of the consultations that we have. By contract, in the United Kingdom, the human rights organisations have a standing four-monthly meeting with the Minister for Human Rights in the Department for Constitutional Affairs. It is not necessarily an ideal arrangement, but it is nonetheless a useful step in having regular contact between human rights groups and the Executive. It is possible that something similar could be arranged in relation to the European Union having regular meetings with the Commissioners possibly.

  Q105  Lord Goodhart: Could I just ask you something which is not entirely covered by any of the questions here, but it is something I would like to take up as a result of something I have read in ILPA's submission to us. In paragraph 15, talking about the Commission's Communication, it says that the relationship of rights and exceptions seems to be in the process of change and being recast into one of balance, giving a weight to the exceptions and rights which elevates the exceptions to the same purpose as the rights. You say that this seems to be a worrying and negative development. I wondered if ILPA could just point to any particular provisions in the Communication which lead them to raise this particular concern.

  Professor Guild: My Lord, this is a passage which is my responsibility and I am just going to try to find the exact position.

  Q106  Chairman: I think paragraph 14 is where you introduce the question of balance. You are troubled by The Hague Programme and the Agenda for Action.

  Professor Guild: Yes, indeed. If I could perhaps speak to our memorandum and my particular concerns in that regard, we take the view that if one is speaking of fundamental rights, one is speaking about rights which are contained either in national constitutional settlements or in supra-national or international human rights treaties of which the UK is a party. Certainly in the Human Rights Act or the European Convention on Human Rights, there is the primacy of the right and the interference by the State, permissible in a variety of the rights, is permitted under certain circumstances as an exception to the right itself. Therefore, in the assessment of rights, we are increasingly concerned as, for instance, in the Action Plan on The Hague Programme that these are increasingly presented as security and rights as a balancing operation and not as a relationship of primacy of rights against which an interference must be justified.

  Q107  Lord Goodhart: Are there any particular provisions in the Communication which give you concerns under this heading?

  Professor Guild: May I come back to you on this in writing because I am not sure I am going to be able to put my finger on it right now?

  Chairman: Indeed you may and that would be very helpful. Indeed if JUSTICE too have anything as an afterthought or anything which they would like to add, we would be grateful for that too. If there are no other specific questions and unless any of our four witnesses would like to add anything at all to what they have said, then it remains for me to thank you all very much indeed for coming. It has been enormously helpful. As I have indicated, we have already seen a lawyer from the Commission and we are going to see the Minister next week and we will then report and we hope that that will carry this enduring problem in respect of human rights a stage further. Thank you all very much indeed for coming.

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