Select Committee on European Union Sixteenth Report


HUMAN RIGHTS PROOFING EU LEGISLATION

CHAPTER 1: INTRODUCTION

1.  This Report addresses a particular aspect of the Union's policy and law-making process, namely the need to ensure the compatibility of Union acts with fundamental rights. All those involved in the Union's legislative process (and especially the Council of Ministers and the European Parliament as legislators) should ensure that regulations, directives, framework decisions etc comply with fundamental rights[1], many of which are restated in the EU Charter of Fundamental Rights (the Charter).

2.  A particular responsibility falls on the Commission which in the large majority of cases is responsible for the preparation and drafting of EU legislation. How the Commission goes about ensuring its compliance with fundamental rights is the subject of a recent Communication from the Commission, Compliance with the Charter of Fundamental Rights in Commission Legislative Proposals: methodology for systematic and rigorous monitoring.[2] The Communication is one of the first initiatives of the Commissioners' Group on Fundamental Rights, Anti-discrimination and Equal Opportunities, recently established under the Barroso Commission.

The 2005 Communication

3.  The Communication of 27 April 2005:

  • explains how Commission departments monitor compliance with fundamental rights at the preliminary stages[3] of EU legislation;
  • indicates how the current system is to be strengthened by making changes to the impact assessment and the explanatory memorandum;
  • clarifies the role of the Commissioners' Group on Fundamental Rights, Anti-discrimination and Equal Opportunities, including their role in monitoring the work of the Council and the European Parliament as legislative authority;
  • points out how the public would be made more aware and informed about Commission monitoring of respect for fundamental rights in EU legislation.

Reasons for our inquiry

4.  Compatibility of EU legislative proposals with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and other international human rights instruments, as well as the Charter, is a matter of continuing concern to the Committee. In carrying out its detailed scrutiny of draft EU legislation, we frequently raise ECHR and other fundamental rights issues with Ministers and have been concerned to ensure that EU law is ECHR compliant both in the form it is agreed in Brussels and when implemented at national level. We therefore decided to conduct a brief inquiry into the issues raised by the new Communication.

5.  The changes set out in the Communication have been described as "the first fruits of the Commission working groups on fundamental rights set up by Commission President Jose Manuel Barroso in 2004 to appease European Parliament concerns about his new team".[4] The Communication replaces a 2001 Decision of the Commission on the application of the Charter. It does not change the status of the Charter or individual provisions of it. Nor does it anticipate the Constitutional Treaty.[5] The Communication is essentially directed at the Commission's internal procedures and thus we sought to obtain more information about current and proposed practice in this area and to ascertain the extent to which the Communication would bring about real changes in the Commission's practice. Secondly, the inquiry complements that recently undertaken by the Committee into Ensuring Effective Legislation in the EU.[6] The purpose, form and content of impact assessments are common ground. Thirdly, our inquiry sought to assist in further defining our own practice in scrutinising EU legislation for compatibility with fundamental rights and thus to take forward a recommendation outstanding from the Committee's 2002 Review of Scrutiny of European Legislation.[7]

The inquiry

6.  The inquiry was carried out by Sub-Committee E (Law and Institutions)[8] under the chairmanship of Lord Brown of Eaton-under-Heywood. The views of interested parties (including those who assisted the Committee in its earlier inquiries into the EU Charter) were sought. The Committee also had the benefit of meetings with Dr Clemens Ladenburger (Commission's Legal Service), representatives of the Immigration Law Practitioners' Association (ILPA) and JUSTICE, and Baroness Ashton of Upholland, Parliamentary Under-Secretary of State, Department for Constitutional Affairs. A list of those who gave evidence is set out in Appendix 1. The evidence, written and oral, is printed with the Report. We would like to thank all those who assisted in the inquiry.

7.  This Report is made for the information of the House.



1   The Treaty on European Union (TEU) requires the Union to respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law (Article 6(2) TEU). The European Court of Justice has often said "Fundamental rights form an integral part of the general principles of law, the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories". Cases C-387/02, 391/02 and 403/02, Silvio Berlusconi and others, judgment of 3 May 2005. Back

2   COM(2005) 172 final. Back

3   That is at preparatory and inter-departmental consulting stages, see the Commission's Memorandum printed with this Report (p 1). Back

4   See europe information 2958-April 30, 2005, at p I.4. Back

5   The Communication has, however, been differently construed. See EU 'cherry picking' from rules the voters rejected. Sunday Telegraph, 16 October 2005, at p 2. Back

6   9th Report, 2005-06, HL Paper 33. Back

7   The Select Committee's 2002 Review of Scrutiny of European Legislation (1st Report, 2002-03, HL Paper 15) recommended that the Government's Explanatory Memoranda (EMs) delivered to Parliament should include "a section on any potential human rights issues. The Government should consider making a formal statement as is now issued on primary legislation, that, in the view of the Minister signing the EM, the proposal is compatible with the provisions of the Human Rights Act 1998" (para 48).  Back

8   The membership of the Sub-Committee is listed on the inside cover page of this Report. Back


 
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