Select Committee on European Union Sixteenth Report


128.  As mentioned at the outset of this Report, compliance with fundamental rights is an important aspect of our own scrutiny of EU legislation. The issue is particularly acute in relation to initiatives in the area of Justice and Home Affairs (for example, immigration and asylum policy, data protection, criminal law and police co-operation) but is also relevant in relation to a range of other EU policy and activities, including relations with third States. We have, for some time now, been considering how our scrutiny work might be improved in this respect.

129.  In our 2002 Report on review of scrutiny of EU legislation we 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".[58] In their Response to that Report, the Government said: "Where human rights issues arise, the EM will of course draw attention to them in the section on legal implications. The Government will in future offer a preliminary view on the compatibility of the proposal with the 1998 Human Rights Act. The EU is in any case, by virtue of Article 6(2) of the TEU, committed to respect fundamental rights as guaranteed by the European Convention on Human Rights". Discussions have since been going on to see how human rights issues might best be dealt with in EMs.

130.  We asked whether the Government's view had developed in the light of recent experience, including the volume of work in the area of justice and home affairs (which seems likely to increase further under the Hague Programme). If the Commission's "verification" of legislative proposals extends to the Charter why should not the Government's preliminary view on compatibility also encompass the Charter and not just the ECHR? Baroness Ashton of Upholland replied: "We have never been shy in expressing our views on proposals that have come from the Commission, either ones with which we are in full agreement or others perhaps where we take a slightly different view. Certainly we would expect in the course of looking at the proposals that come forward to take note of what has been said in this context and to look at that in the context both of our own legislation and also in terms of the human rights legislation and also in terms of the Charter. If we felt there was something where we had a difference of opinion I think we would say so" (Q 136).

131.  But it was not clear whether the Government would in the context of EMs delivered to Parliament express a view on compatibility with the Charter. The Minister said: "it would be my expectation that we would behave in the context of the proposals in Europe in exactly the same way as we behave in the context of our proposals on domestic legislation. We have as a Government taken a view about the importance of human rights and I expect that to continue in our attitude towards Europe" (Q 138).

132.  We are conscious of the burdens which the scrutiny timetable may impose on Departments. An EM has to be delivered to Parliament no later than 10 working days from the deposit of the document to which it relates. We accept that it may take a little longer where documents pose special problems. But a general extension for any proposal raising a fundamental rights issue would, in our view, be unacceptable. The scrutiny committees need to be able to start their work as soon as possible and it is not infrequent that we face a tight political or legislative Brussels timetable.

133.  On the other hand it is our experience that a thorough analysis of all EU documents deposited for scrutiny would be time consuming and in many cases scarce resources would be taken up endeavouring to prove a negative (i.e. that there were no fundamental rights obstacles or objections to the document in hand).

134.  We therefore conclude that, while we will continue to look at all documents for human rights implications, the obligation on the Government to include a paragraph (not just a statement of compliance) on fundamental rights in EMs should be restricted to draft EU legislative acts (e.g. regulations, directives, framework decisions). That paragraph should address but not be limited to ECHR rights. Appreciation of fundamental rights in the widest sense (including the Charter) should be part of all Ministers', and their officials', mindset. The Charter may have its imperfections but in many respects it gives a clear statement of rights generally identifiable and accepted under international and/or Community law.[59] Further, if the Commission has done its homework under the Communication (by including sections in explanatory memoranda addressing fundamental rights) then the burden on Departments should not be great.

58   Review of Scrutiny of European Legislation. 1st Report, 2002-03, HL Paper 15, at para 48. Back

59   The Explanatory Notes to the Charter, prepared by the Praesidium of the Convention, set out the derivation of each Charter Article. CHARTE 4473/00 CONVENT 49, of 11 October 2000. Back

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