Select Committee on European Union Sixteenth Report


135.  We welcome the Communication. It is a useful, though limited, Commission initiative to improve the quality of internal monitoring of EU legislation in order to ensure its compatibility with fundamental rights. The Communication does not, and could not, even if it were intended to do so, address the wider issues raised by our witnesses. It is nonetheless a significant step by the Barroso Commission which exposes the Commission's legal reasoning in relation to particular proposals and also challenges the other institutions, particularly the Council and the Parliament, and the Member States to justify their actions (paragraphs 26 & 28).

Establishing a human rights culture

136.  Much of the Communication is not new but builds on existing provisions and practice. It is nonetheless a vast improvement on the 2001 Decision it replaces simply by reason of the fact that it is in the public domain. It is clear that if awareness and standards are to be raised, the Communication will have practical implications for the education and training of Commission staff and for the relationship of the Commission with civil society
(paragraph 18).

137.  We share the hope that the Communication will result in a raising and maintenance of standards of compliance. While undoubtedly actions speak louder than words in this context, it would be somewhat unfair to be overly critical of the Commission and the new Communication, which is trying to lay down and instil a number of procedures aimed at ensuring that fundamental rights are not just a lot of "noise" but actually mean something and are a reality in EU legislation (paragraph 22).

Reinforcing the present regime—impact assessments, explanatory memoranda and recitals

138.  It would be helpful if the Commission could identify and publish the criteria, and any guidance given, for deciding to carry out an impact assessment of a proposal not appearing on the Work Programme. In principle all legislative proposals should be subject to impact assessment. Therefore, in any instance where no impact assessment has been carried out, and especially any proposal relating to freedom, security and justice issues, the Commission should set out the reasons for not doing so in the explanatory note accompanying the proposal (paragraph 38).

139.  It is our experience that Third Pillar measures commonly raise issues relating to fundamental rights. We have no doubt that impact assessments are particularly important in respect of such proposals. Indeed the failure of Member States to provide background information and explanations for the measure being proposed makes our own scrutiny work that much more difficult and places a further burden on the Government faced with our requests for clarification. We therefore recommend that Member States should carry out impact assessments before bringing forward any proposal under the Third Pillar. Any such proposal should also be supported by a full explanatory memorandum including a section dealing with fundamental rights (paragraph 41).

140.  The application of the Communication to delegated or implementing legislation (comitology) is a matter to be kept under review (paragraph 44).

141.  We doubt whether the current categories of economic and social rights issues used in impact assessments will be sufficient to provide for the analysis of all relevant fundamental rights. We regret that the Commission has not taken the opportunity to include a separate (fourth) section for fundamental rights. We are not persuaded by the argument that a separate section would result in "needless repetition". The Commission, when formulating a proposal, needs to consider both economic policies and fundamental rights very carefully. Having a separate category for fundamental rights in impact assessments would greatly assist in such consideration (paragraph 56). It would also help to avoid the risk of rights being overlooked in some cases (paragraph 50). It might go some way in countering the perceived shift in the balance in the relationship between fundamental rights and exceptions (paragraph 54).

142.  It is a matter of concern that the impact assessment might be misused to justify a decision to go ahead rather than simply inform the decision-taking. This is something on which we will need to keep an eye (paragraph 52).

143.  The preparation of impact assessments has substantial resource implications for the Commission. The need to identify and examine the fundamental rights implications of proposals during that process will increase that burden. But it is a cost which we believe is necessary if better regulation is to be achieved (paragraph 57).

144.  We welcome the inclusion in the explanatory memorandum of a special section summarising the reasons for concluding that fundamental rights have been respected. The Commission is to be commended. Its strategy is not, however, without risk: disclosing its position in the explanatory memorandum may increase the Commission's exposure to criticism and challenge (paragraph 60).

145.  Serious thought needs to be given to how explanatory memoranda and other supporting documentation are kept up to date as proposals proceed through the legislative machine. The 2003 Inter-Institutional Agreement on Better Regulation only partly addresses the problem. It would be desirable, where changes are adopted, for the institution or institutions concerned to provide a supplementary memorandum explaining the change and how compliance with fundamental rights is assured (paragraph 64).

146.  We do not underestimate the importance of Commission staff being adequately trained and supported. Public confidence will be increased if that process is visible and open to comment and review. In particular, any guidance issued by the Commission should be made publicly accessible (paragraph 69).

147.  Further consideration needs to be given to the possibility of incorporating in EU legislation more specific and detailed recitals addressing any fundamental rights issues. But a recital, even if substantially expanded beyond the standard Charter form, may be no substitute for the more coherent approach proposed for explanatory memoranda provided that they are readily accessible. It is for consideration whether explanatory memoranda should be attached, as a matter of course, to the legislation, perhaps by a suitable footnote reference against the Charter or other recital in the preamble (paragraph 81).

148.  The extent to which compatibility statements or certificates create a legal presumption that a legislative act is fundamental rights compliant will depend on the approach and attitude of the courts. To date formal statements in recitals have not stopped overt condemnation of measures, particularly those in the area of immigration and asylum law, and their challenge, or threat of challenge, in the European Court of Justice on grounds of incompatibility with fundamental rights (paragraph 83).

Monitoring compliance

149.  Notwithstanding the strengths and merits of the methodology set out in the Communication, any system of proofing EU legislation which is solely internal to or dependent on the Commission is subject to two criticisms. First, no system of ensuring that EU measures are compatible with fundamental rights can be effective unless the Council and the European Parliament also ensure, throughout their role in EU legislative and decision making processes, that final texts are compatible with fundamental rights. Second, however admirable internal regimes may be, experience, particularly in the United Kingdom context, would suggest that independent expertise from outside the administration may be needed to inform and, where necessary, act as a check on the actors during the legislative process (paragraph 87).

150.  Viewed from our perspective, and particularly in light of the work of the Joint Committee on Human Rights, it seems a little odd that the Commission should be monitoring the legislative process rather than the European Parliament. The European Parliament could have a greater involvement in monitoring compliance of legislative proposals with fundamental rights. There is also a continuing role for national parliaments (paragraph 73). There is a monitoring role for the Parliament's Civil Liberties, Justice and Home Affairs Committee to develop. We greatly encourage it to do so and would welcome the opportunity to discuss with them how best this might be done and what assistance might be given by national parliaments
(paragraph 89). Greater involvement by the European Parliament and by national parliaments would go a long way to address the perceived democratic deficit in the mechanisms promoted by the Communication (paragraph 110).

151.  The Commission's right to bring annulment proceedings (under Article 230 TEC) is very much a last resort as a remedy to secure compliance with fundamental rights in EU law-making and its exercise may be complicated by political and procedural considerations. We would prefer to see the Commission being more active during the negotiation of legislation in resisting any amendment which may violate fundamental rights and where necessary exercising its right to withdraw or alter its proposed legislation before adoption by the Council (paragraph 94).

152.  We wait to see how active the Commissioners' Fundamental Rights Group of Commissioners will be and what effect the Group will have on the development and implementation of Union legislation and policies enhancing respect for fundamental rights (paragraph 102).

153.  Ensuring Member States' respect for fundamental rights within the scope of application of EU law is a matter of concern, as recent developments surrounding the European Arrest Warrant demonstrate. Monitoring Member States is, however, a matter outside the scope of the present Communication (paragraph 107).

154.  The Fundamental Rights Agency is currently only a proposal and there are differing views on what its role should be, not just in relation to draft EU legislation but also the Member States. There is also a need to make clear how the work of the Agency would relate to the well-established role of the Council of Europe concerning the definition and safeguarding of human rights. The proposal is currently held under scrutiny and these are questions that we shall pursue further in that context (paragraph 116).

Publicising the Commission's internal monitoring of fundamental rights

155.  There is no doubt that the Communication is an improvement on the 2001 Decision, but it would have been even better had it provided practical ideas and means for improving communication with outsiders and enabling them to have an input. To encourage assertion of rights is the aim, but it is not best achieved by anything in the Communication. There need to be clearer mechanisms for NGOs and others to be able to identify problems and, in the language of the Communication, "assert their fundamental rights" in the preparation and passage of EU legislation. This is something to which we would urge the Commission to give further consideration (paragraph 124).

156.  We welcome the Government's positive approach to the need to monitor application of the Communication by the Commission. Should the opportunity arise, particularly during the United Kingdom Presidency, we urge the Government to initiate a discussion in the Council, drawing attention to the importance of the Communication for the standing of EU legislation and inviting the Commission to produce an annual report on the working of the Communication (paragraph 127).

Implications for the work of the Committee

157.  In our 2002 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. We have reviewed that recommendation in the light of the Commission's Communication. We 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 (paragraph 134).

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