Select Committee on European Union Fortieth Report


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.


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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