CHAPTER 6: IMPLICATIONS OF THE COMMUNICATION
FOR OUR OWN WORK
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".
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"
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
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.
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
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