Select Committee on European Union Thirty-Seventh Report


Letter from Rt Hon Baroness Ashton of Upholland, Parliamentary Under Secretary of State, Department for Constitutional Affairs to the Chairman

  I am grateful to the Committee for its report on "Human Rights Proofing of EU Legislation". I am pleased to note that the Committee broadly welcomes the Commission Communication on Compliance with the Charter of Fundamental Rights (COM(2005) 172 final), and that it considers the Communication to be an improvement on the Commission's previous efforts (notably the 2001 Decision—SEC(2001) 380/3) in ensuring compliance with fundamental rights.

  The Committee has raised in its Report some suggestions to HM Government which would like to address in turn.

  Paragraph 26 (16th Report—pp 14-15)—We welcome the Communication. It is a useful, though limited, Commission initiative to improve the quality of internal monitoring. 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, as we explain below, exposes the Commission's legal reasoning in relation to particular proposals and also challenges the other institutions and the Member States to justify their actions.

  The Communication is focused purely on the internal workings of the Commission and does not challenge the Member States to justify their actions in respect of compliance with fundamental rights. I would like to refer the Committee to Harriet Harman's appearance before the House of Commons European Union Standing Committee on 18 January 2006, at which she gave evidence on the Charter of Human Rights and Commission Legislative Proposals. She said: "I stress that the Commission communication on its compliance is an internal communication of the Commission and is already being put into effect in the Commission. It affects the Commission's work; it does not affect the work of our legislature, our Government or any agencies in this country. It is about the Commission doing its work better".[12] As I said in my Explanatory Memorandum of 14 July 2005, and in my appearance before the Committee on 19 July 2005, the Government welcomes the Commission Communication as an instrument to improve the Commission's compliance with fundamental rights. The Commission has clearly signalled an intention to lead by example in terms of human rights, and to balance its work on security and anti-terrorism with measures to protect and promote fundamental rights. The Commission also wishes to make its work more transparent, more credible, and more consultative. This Communication forms part of these efforts, and is, in the Government's view, to be welcomed. Although, as the Committee says, the Communication is somewhat limited, the Government considers it is an important step on the part of a European Institution towards the mainstreaming of fundamental rights principles and standards.

  Paragraph 41 (16th Report—pp. 18-19)—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 134 (16th Report—p. 38)—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 (eg 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.

  With regard to the Committee's recommendation that Member States should carry out impact assessments before bringing forward any proposal under the Third Pillar, it should be noted that there is at present no uniform method for Member States to explain the fundamental rights compliance of their proposals. However, it is the responsibility of each Member State to review the consistency of their proposals with human rights standards, and to ensure that their proposals are in line with the principles of subsidiarity and proportionality.

  The Government confirms its earlier position that explanatory memoranda should contain a preliminary view of compatibility with European Convention Rights as discussed at paragraph 129 of the Committee's Report. We envisage that such statements will comment on compatibility with the "Convention Rights" as defined by the 1998 Human Rights Act, in line with domestic legislation compatibility statements, and will focus on the potential effect of the proposed legislation in the UK. We recognise that if the Constitutional Treaty is ratified it will be important to expand this statement to also refer to the Charter of Fundamental Rights. Where the Government was broadly confident that a proposal did not give rise to human rights compatibility concerns, a "positive" statement would be included in the explanatory memoranda.[13] On the other hand, if the Government could not be confident about the human rights compatibility of a proposal, it would make a "negative" or "non-committal" statement.[14] The Government agrees that these statements would apply to explanatory memoranda on legislative proposals (ie Directives, Regulations, Decisions and Framework Decisions) but not to second pillar instruments or non-legislative documents. Where the Government was not confident about compatibility, the explanatory memoranda would give further background on why the Government had reached that view. But, given the speed at which a first explanatory memorandum has to be submitted, it is inevitable that these arguments might not be fully developed at an early stage. In these circumstances the Government would provide the Committee with further information as the implications become clearer.

  The Government agrees with the Committee that "appreciation of fundamental rights in the widest sense (including the Charter) should be part of all Ministers', and their officials, mindset". In fact, one of the main reasons for passing the Human Rights Act 1998 (which came into force in October 2000) was to entrench the human rights culture into domestic law. The Government has subsequently ensured the Human Rights Act was assimilated into the workings of the courts, the legal system and public authorities. This included, for example, establishing a Human Rights Fast Track Group of all relevant Government departments and prosecuting agencies to identify test cases at an early stage and ensure they were brought before the courts quickly so that any precedent could be followed. The Government has also established a Ministerial Forum of Human Rights where the principal Non-Governmental Organisation and pressure groups can put their concerns directly to Ministers and have an on-going dialogue about the Human Rights Act. The Government is currently taking the human rights culture beyond policy makers, lawyers and the courts. The acknowledgement of and respect for human rights should be not just in police stations and prisons, but also in care homes and hospitals, and social services departments. The Government will be providing guidance to managers and staff across our public authorities about how to put these values into practice. In addition, the Government has proposed in the Equality Bill the establishment of an independent Commission for Equality and Human Rights to further promote and protect human rights.

  Paragraph 127 (16th Report—p. 36)—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.

  The Government thinks such an approach would overstate the importance of the Communication which will take effect alongside the work of the Commission Legal Service and the proposed Fundamental Rights Agency.

  In conclusion, the Government broadly welcomes the Communication. We support all efforts to ensure respect for fundamental rights and all attempts at better regulation. And we welcome the Commission's desire for its work to be more transparent, more credible and more consultative. We share the Committee's hope that the Communication will raise and maintain standards of compliance with fundamental rights, and encourage citizens and civil society to assert their fundamental rights. We will continue to watch the application and development of the Commission's new methodology carefully.

20 February 2006

Letter from the Chairman to Rt Hon Baroness Ashton of Upholland

  Thank you for your letter of 20 February which was considered by the Select Committee at its meeting on 14 March. I am sure you will not be surprised to learn that the Committee is disappointed at the Response you have given on behalf of the Government.

  You note that the Commission, by its Communication, has signalled an intention to lead by example. However, there appears to be little that the Government are prepared to do to follow that example. You say that there is at present no uniform method for Member States to explain the fundamental rights compliance of proposals they themselves put forward under the Third Pillar. Is there not a case for a uniform method and/or certainly something more helpful and transparent than is often the case at present?

  As regards draft EU legislative acts which are submitted for scrutiny by this Parliament, you reject the inclusion of a paragraph dealing with fundamental rights in Explanatory Memoranda signed by Ministers. You offer a "positive" or "negative" statement. While the scrutiny procedure may leave little time for detailed consideration within Departments we would reiterate the point that if the Commission complies with the Communication the burden on Departments would be greatly reduced. Further, the Commission's analysis will not, of course, be restricted to the ECHR but encompass all rights under the Charter.

  The compliance statements offered by the Government raise concerns, not only of principle but also relating to their terms. We believe that the issue which should be addressed following deposit of a legislative proposal is not whether it could be given effect to without, for example, ECHR breach but whether the instrument itself raises ECHR issues. If it does, then the EM should state which Articles of the ECHR might be engaged and why the view is being taken that the instrument is or is not compatible with the Convention. We acknowledge that there are, as mentioned, time, and therefore resource, constraints. But the Government could, for example, take the Commission's analysis and comment on it, indicating whether they agreed with it and if not, why not, as well as identifying any omissions. Would you not agree that this would be an efficient way to proceed?

  The issue of whether a proposal can be implemented or take effect without breach is, we agree, also very relevant but the suggested compliance statement raises further questions here. For example, we would wish to be assured that such effectiveness or implementation was possible across the Union, not just the UK. We are concerned that the Government's proposal betrays an insular approach to matters many of which are transnational or cross-border. Further, it is by no means clear to what extent the Government, in making the "positive" statement, would rely on the argument that ECHR obligations trump EC ones as a matter of international law or even domestic law under the Human Rights Act.

  In order for our scrutiny of EU legislation to be effective we are very much dependent on the co-operation of the Government. Providing a statement, perhaps in the manner suggested above, of the extent to which fundamental rights and signalling any difficulties would expedite our work and reduce the extent to which we would need to question Ministers during the scrutiny process. There would, we believe, be practical benefits for both Parliament and the Government. We would therefore invite you to reconsider this matter.

  Finally, we note that you reject our suggestion that the Council might invite the Commission to produce an annual report on the working of the Communication. You say that such an approach "would overstate the importance of the Communication which will take effect alongside the work of the Commission Legal Service and the proposed Fundamental Rights Agency". This is a matter to which we propose to return in the context of our inquiry into the Agency.

15 March 2006

Letter from Rt Hon Baroness of Upholland to the Chairman

  Thank you for your letter of 15 March 2006 regarding the Government's response to the Committee's 16th Report Human Rights Proofing EU legislation. I am sorry for the very long delay in sending this reply. This was due to the need to ensure thorough consultation within Government.

  In my initial response of 20 February 2006 to the Committee's 16th Report I said that the Government's position was that explanatory memoranda on European Union legislative proposals should contain a statement of compliance with Convention rights. In your letter of 15 March 2006, you indicated the Committee's disappointment with that response.

  Following further consideration, I am now pleased to inform you that the Government will provide an analysis (not just a statement) of compliance with fundamental rights (as described by Article 6(2) of the Treaty on the European Union) in the explanatory memoranda of European Union legislative proposals submitted for scrutiny.

  If the Committee agrees that this is a sensible way forward, the Cabinet Office, with the assistance of my Department, will update its guidance to Departments accordingly. In some cases, it may be difficult for Departments to complete the analysis within the current ten-day deadline. In the rare cases where this occurs, we hope that, subject to consultation with your Committee staff on a case-by-case basis, the Government may either submit an explanatory memorandum later than the usual ten-day deadline, or provide the analysis in a supplementary memorandum. If new issues or concerns arise during the negotiations on proposals, the Government will provide relevant information either by way of Ministerial correspondence or supplementary memoranda.

26 March 2007

12   Harriet Harman MP in European Standing Committee, Charter of Human Rights and Commission Legislative Proposals, 18 January 2006, Hansard, Column Number 3. Back

13   The statement might be along the line of: "In the Government's [preliminary] view, the proposal can be given effect [or, in the case of a proposed Regulation, `can take effect'] in the UK in a way which is compatible with the Convention rights" Back

14   The statement might be along the line of: "In the Government's [preliminary] view, it [will/may] not be possible to give effect to the proposal [or, in the case of a proposed Regulation, `The proposal may not be capable of taking effect'] in the UK in a way which is compatible with the Convention rights. The Government will address this when negotiating on behalf of the UK" Back

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