FUNDAMENTAL RIGHTS AGENCY (10774/05)
Letter from Rt Hon Baroness Ashton of
Upholland, Parliamentary Under Secretary of State, Department
for Constitutional Affairs to the Chairman
You wrote on 1 December 2005[159]
asking me to clarify further the Government's position on various
aspects of the Commission proposal (reference COM(2005) 280 final)
for a Council Regulation establishing a European Fundamental Rights
Agency and Council Decision to extend the remit of this Agency
to Title VI of the Treaty on European Union (Police and Judicial
Co-operation in Criminal Matters). I have also taken note of the
publication of the Committee's Sixteenth Report on 29 November
2005 on the subject of "Human Rights Proofing of EU Legislation"
for which I will send you a separate reply.
I would like to address the Committee's concerns
in turn:
Common Foreign and Security Policy—We
note the Government's position and would be grateful for an explanation
of why they consider that the Agency should have no CFSP remit.
The Government is clear that the primary focus
of the Agency should be to provide assistance and expertise on
fundamental rights issues to EU Institutions. The Commission's
proposal does not include a second pillar remit and there seems
to be little appetite for such a remit among Member States. The
Government believes that, with limited resources, it is necessary
for the Agency to concentrate upon areas in which it has the greatest
potential for relevance and utility. The Agency's primary purpose,
building upon the mandate of the European Monitoring Centre on
Racism and Xenophobia, should be as a fact-finding and opinion-giving
body able to serve EU Institutions. The Agency should also have
a role to play in promoting best practice through the provision
of guidance and generic advice.
For these reasons, the Government thinks that
an extension of the Agency's remit to second pillar matters would
run the risk of overloading the Agency. A remit based on Title
V of the Treaty on European Union would dilute its role and also
lead to unwelcome and inefficient duplication with other established
human rights bodies (particularly the Council of Europe and the
Council Working Group on Human Rights—COHOM—which
acts within the scope of the CFSP).
The geographical scope—The Committee
welcomes your statement that the Agency's external role should
be well-defined and limited. To what extent should the Agency
be competent to provide information on countries with which an
association agreement containing human rights clauses has been
agreed? Should candidate and potential candidate countries be
able to choose to participate in the Agency?
The Government is concerned that an extension
of the Agency's geographical scope would threaten the Agency's
efficiency and effectiveness. Just as the Agency could be overburden
by too wide a thematic mandate, so there is a risk that too wide
a geographical mandate would also risk overburdening the Agency
and compromising efficiency. The Government, together with many
Member States, is clear that an extension of the Agency's scope
to third countries could easily overwhelm the Agency, particularly
in its early days, and thus should be avoided. However, the Government
believes that the Agency should play a role in assisting candidate
countries prepare for membership of the EU.
The issue of whether candidate or potential
candidate countries "choose" to participate in the Agency's
work is covered by article 27 of the proposed Regulation on the
Fundamental Rights Agency. This article gives candidate countries
the possibility of participation in the Agency subject to the
decision of the relevant Association Council.
Pre-legislative scrutiny—While we are
reassured by your view that the Agency would have some role to
play in the pre-legislative process, we consider that this role
should be clearly defined and should not be merely an "informal
means" of pre-legislative scrutiny. The Agency's participation
at the early stages of all legislative proposals would ensure
maximum consideration of and respect for human rights and we urge
the Government to press for a more precise role for the Agency
in this regard, in line with the views expressed in paragraphs
113-116 of our recent Report "Human Rights Proofing of EU
Legislation", 16th Report of Session 2005-06, HL Paper 67.
I am responding separately to your Committee's
Sixteenth Report on "Human Rights Proofing of EU Legislation".
However, to clarify the point raised in your letter, the Government
believes that the volume of EU legislation is such that a formal
pre-legislative role for the Agency would be unfeasible and would
also create duplication with the work of the Commission Legal
Service. The Commission itself highlighted in its internal Communication
of 27 April 2005 (reference COM(2005) 172 final) the limited role
of the Agency in this respect. The Commission acknowledged that
the data collection and expertise of the future Agency should
be "used as input for the methodology"[160]
but does not formally entrust the Agency with the task of scrutinising
all EU legislation for compliance with fundamental rights. This
is the task of the Commission which, as guardian of the Treaties
and hence of fundamental rights, is ultimately responsible for
monitoring compliance with fundamental rights by EU Institutions.
Overlap with the Council of Europe and other
agencies—The Agency will have a Third Pillar remit and its
scope extends to Member States' institutions and agencies. This
may increase the risk of overlap. The Dutch Senate has recently
urged its Government to prevent the establishment of the Agency
on the grounds that it unnecessarily duplicates the work of the
Council of Europe and Organisation for Security and Co-operation
in Europe and that it makes an undesirable distinction between
EU Member States and other European countries. What is the position
of the other Member States on this issue and can anything more
be done to reassure the Council of Europe that its role in protecting
human rights will not be adversely affected by the Agency?
You say that maximising co-operation with
other relevant bodies such as the European Gender Equality Institute,
the OSCE and the UN is "being considered"; what suggestions
have been made? You may be aware that the proposal for a Gender
Equality Institute is currently under scrutiny by Sub-Committee
G and evidence submitted by the Equal Opportunities Commission
expresses a firm preference for "one integrated European
body covering all equality strands including gender". What
is the Government's view?
The Council of Europe should be reassured by
the knowledge that the Government together with the overall majority
of Member States are very clear that the Agency should not duplicate
the work of existing human rights organisations, particularly
the Council of Europe. This is a central theme in the discussions
related to the Agency's management structure where the Council
of Europe should be adequately represented. As you pointed out
in your letter, the Dutch Senate has questioned the Commission's
proposal for creating a possible duplication of the Council of
Europe by extending the Agency's remit to third pillar matters.
Discussions in the Council of the EU Working Group have not yet
reached the subject of the Agency's third pillar remit and the
Government is still considering its position on this matter. However,
the Government sees, in this remit, the potential risk of overloading
the Agency and duplicating the work carried out by the Council
of Europe.
The Government deems it crucial that the work
of the Agency should take full account of the gender dimension
and that any overlap with the European Institute of Gender Equality
should be avoided. The Commission's proposal clearly states[161]
that the Director of the European Institute of Gender Equality
may attend as observer the meetings of the Agency's Management
Board. Some Member States have also suggested the modification
of the text of the proposal, specifically article 8(1), explicitly
to indicate that the Agency will co-operate with the Office for
Security and Co-operation in Europe and the UN System. The Government
takes a positive view of these steps in so far as they avoid any
potential overlap between the Agency and other international human
rights bodies.
The Government believes that merging the European
Institute for Gender Equality with the Fundamental Rights Agency,
or other human rights agencies, would marginalise gender equality
issues within the wider context of fundamental rights. Establishing
two separate but co-operating Agencies, one on fundamental rights
and one on gender equality, will raise the profile of these important
topics within the European Union and will avoid any unnecessary
duplication.
Structure of the Agency—Have there
been significant changes to the provisions in the proposal? In
respect of the independence of Commission representatives on the
Management Board, you say "The Government deems it appropriate
to consider other models of agencies established by the EU to
provide a firm foundation for the Agency's management and for
its accountability to the Council". We would welcome an explanation
of this statement.
The Government believes the management structure
should ensure both the operational independence of the Agency
and its ultimate accountability to the Council. The Government
and the other Member States are currently examining a French proposal
for an alternative management structure of the Agency. Although
the proposal was only recently made available to Member States
and has not yet been fully analysed, the Government takes the
preliminary view that a dual structure, based on a Management
Board and a Scientific Committee, might prove a better means of
ensuring the independence of the Agency from the Commission, the
Agency's accountability to the Council and effective advice and
expertise in human rights issues.
15 February 2006
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland
As explained to your officials prior to the
recent GAERC Council meeting, where proposals have undergone substantial
changes following their deposit for scrutiny, we expect them to
be re-submitted and cleared from scrutiny before any agreement
is reached in the Council. We are disappointed that the revised
Fundamental Rights Agency proposal was not re-submitted before
the GAERC Council, where it was hoped agreement could be secured.
As outlined in our recent report on the Agency, we have been aware
for some time of the progress of negotiations and the substantial
changes being discussed in the Council and the Parliament. This
does not, however, relieve the Government of the responsibility
of submitting revised drafts to us. As you know, a similar situation
recently arose in respect of the proposal for a European Small
Claims Procedure and I understand that you are taking action to
address the problem.
In the case of the Fundamental Rights Agency,
we agreed on 12 June to waive the requirement to resubmit in order
to clear the way for agreement to be reached at the GAERC that
day. On this occasion we had seen the revised text and a number
of the proposed changes were discussed in the debate in the Chamber
on 8 June. This should not set a precedent for future cases and
is no substitute for following the correct procedure in future.
We note that the recent GAERC Council meeting
failed to reach agreement on the proposal establishing a Fundamental
Rights Agency and this has now been referred back to COREPER.
Like our sister committee in the Commons, we look forward to seeing
the revised proposal under cover of an Explanatory Memorandum.
6 July 2006
Letter from Rt Hon Baroness Ashton of
Upholland to the Chairman
Thank you for your letter of 6 July. I am extremely
sorry if there has been any appearance of discourtesy. As you
know, I take the process of Scrutiny very seriously and am anxious
that we follow both proper procedures, and also the expressed
wishes of the House and your Committee.
As you know, we had a very full and useful debate
in the House on 8 June of both the Fundamental Rights Agency and
the Gender Institute. As a result, your Committee agreed on 12
June to waive the requirement to resubmit in order that agreement
could—if possible—be reached at the GAERC meeting
that very day. I was very grateful for the co-operative attitude
taken by the Committee, which I fully recognise is an exception
to normal practice.
I am sorry we did then not formally submit the
final version of the Austrian Presidency Proposal to the Sub-Committee.
The truth is that there was very little time between receiving
the Committee's agreement and the GAERC meeting. And as things
turned out, it was not possible to reach anyway, and the dossier
has now passed to the Finnish Presidency, who are aiming to take
a revised proposal to the Justice and Home Affairs Committee in
October. We are expecting the Finns to produce a revised Regulation
and, when they do, we will resubmit it to both Scrutiny Committees,
together with a new Explanatory Memorandum, as requested by the
Commons European Scrutiny Committee. I hope this clarifies any
misunderstanding.
More generally, it seems to me that there might
be value in Peter Thompson (the Head of our European and International
Division) meeting Chris Kerse to review the way the Scrutiny process
is working and to ensure that, in the next Session, we are able
fully to satisfy the Sub-Committee's requirements across the board.
Depending upon what progress they make, that might be the precursor
to a meeting between the two of us about the way we can make the
Scrutiny process work more smoothly.
11 July 2006
Letter from Rt Hon Geoff Hoon MP, Minister
for Europe, Foreign and Commonwealth Office to the Chairman
Following my Evidence Session before the Committee
on 13 July, I promised to respond in writing to the following
question.
FUNDAMENTAL RIGHTS
We note the commitment in the Preliminary Agenda
for Finland's Presidency (dated 24 May) to "mainstream human
rights policy, incorporating it into all EU policy areas"
and to increase its coherence. Is securing agreement on the Fundamental
Rights Agency proposal a priority for the Government? Will the
UK be prepared to block the adoption of this proposal if other
Member States agree on a Third Pillar remit?
We welcome the Commission proposal to establish
a European Fundamental Rights Agency (FRA). There are, at present,
no EU bodies to assist Community institutions on fundamental rights
issues. The FRA will fill this gap. In order to add real value,
the Agency should be a fact-finding and opinion-giving body, assisting
Community Institutions on fundamental rights issues. It should
avoid duplicating the work already done by the Council of Europe
and other human rights institutions.
Negotiations by the FRA are still ongoing in
Brussels at working group level. The Finnish Presidency hopes
to reach agreement on the Agency by October 2006, so that it can
start work in January 2007.
It is unlikely, at this stage, that the question
of the UK blocking the adoption of the proposal on account of
the Third Pillar remit will arise. A number of Member States share
our view that there is no adequate legal base in the current treaties
that allows the Council to extend the Agency's remit to Third
Pillar matters (police and judicial co-operation). We will continue
our efforts to remove the Third Pillar remit from the proposal.
20 July 2006
Letter from Rt Hon Baroness Ashton of
Upholland to the Chairman
In my letter of 11 July 2006, I stated I expected
to receive a revised and final text of the proposal to establish
a Fundamental Rights Agency (FRA) in October and to submit an
Explanatory Memorandum of the amended proposal to Parliament.
I am writing to you to inform you of the latest
developments on the FRA proposal and the proposal to establish
a Fundamental Rights and Citizenship Programme (FRCP) which falls
under the same Council Working Group. Following the discussions
at the Council Working Group, there is as yet no political agreement
on both proposals. The main areas of discussion on the FRA proposal
are the references to the Charter of Fundamental Rights, the Agency's
geographical scope, the Agency's role under Article 7 Treaty on
European Union and the Agency's possible third pillar remit. The
main points of discussion on the FRCP proposal are the references
to the Charter, the limitation of the Programme to Community law,
the types of actions listed in the Programme and their geographical
scope. This means the current drafts of the proposals, as last
amended by the Austrian Presidency, are likely to change again.
The Finnish Presidency is pushing forward the
discussions and aims to achieve political agreement at the Justice
and Home Affairs (JAI) Council of 5-6 October 2006. Although agreement
may still not be reached, as was the case at the June General
Affairs and External Relations Council, the Presidency appears
to be strongly committed to this deadline. It is, in my judgement,
unlikely the Government will be able to postpone it.
The Government expects to have the final versions
of the proposals only at the very late stage of the negotiations.
In the case of the FRA proposal, the final text could be expected
following the COREPER meeting of 27 September or 4 October. For
the FRCP, the final text could result from the Council Working
Group meeting of 28 September. As my officials have already indicated
to the Committee Clerk, this would mean that the Government would
be unable to complete the Parliamentary scrutiny process in time
for the JAI Council of 5-6 October.
The Presidency's timetabling is such that the
Government may have to override scrutiny either at the JAI Council
of 5-6 October or at a later Council as the same problem will
re-occur until the Council reaches a definite political agreement.
The Government will, of course, provide the Explanatory Memoranda
of the final texts of the proposals as soon as they are made available
following the JAI Council 5-6 October or a later Council when
agreement will be reached.
I am aware of the importance of Parliamentary
scrutiny of European legislation and I hope I made it clear in
my update to you that the Government has considered very carefully
what would be involved in any decision to override the scrutiny
process and how the Presidency's timetabling offers no feasible
alternatives to this decision.
I shall keep you informed on the progress of
the FRA and FRCP dossiers and I would be happy to meet you to
discuss these matters further.
8 September 2006
159 Correspondence with Ministers, 45th Report of
Session 2005-06, HL Paper 243, pp 434-435. Back
160
Communication from the Commission on Compliance with the Charter
of Fundamental Rights in Commission legislative proposals",
COM(2005) 172 final, 27 April 2005, paragraph 26, p 7. Back
161
Commission Proposal for a Council Regulation establishing a European
Union Agency for Fundamental Rights and Council Decision empowering
the European Union Agency for Fundamental Rights to pursue its
activities in areas referred to in Title VI of the Treaty on European
Union (COM(2005) 280 final, Article 11(8), p 20). Back
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