16th REPORT: HUMAN RIGHTS PROOFING EU
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 DecisionSEC(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 Reportpp 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".
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 Reportpp. 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 Reportp. 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.
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.
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
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 Reportp. 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
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
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
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
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