16 Jun 2000 : Column 1849

House of Lords

Friday, 16th June 2000.

The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers--Read by the Lord Bishop of Birmingham.

Life Peerages (Appointments Commission) Bill [H.L.]

Lord Kingsland: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Lord Kingsland.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Appointments Commission]:

[Amendments Nos. 1 and 2 not moved.]

Clause 1 agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment; Report received.

Suspension of Hospital Medical Practitioners Bill [H.L.]

Report received.

EU Charter of Fundamental Rights

11.6 a.m.

Lord Hope of Craighead rose to move, That this House takes note of the report of the European Union Committee on the EU Charter of Fundamental Rights (8th Report, HL Paper 67).

The noble and learned Lord said: My Lords, I particularly welcome the opportunity that this occasion provides for a full debate on this important and controversial issue before the Feira European Council, which is to take place at the beginning of next week.

In the first paragraph of our report there appears a sentence which I wish to draw to your Lordships' attention at the outset in order to emphasise the context for this debate. It says that the occasion for the report is the proposal of the Cologne European Council in June last year that the fundamental rights applicable at EU level should be consolidated in a charter and thereby made more evident. Three

16 Jun 2000 : Column 1850

important points are made in that sentence about this proposal that I wish to highlight at once before I proceed to mention some of the details.

The first point is that the proposal relates to fundamental rights applicable at EU level. This is essential to a proper understanding of its subject matter. In a phrase, the proposal is not directed to the issues that arise about fundamental rights within the separate jurisdiction of each member state. It is about controlling the institutions and bodies of the EU, to which primarily the charter will be addressed. It is about ensuring that these institutions and bodies respect the fundamental rights of people within the EU in regard to all matters within the framework of the powers conferred on them by the treaties.

It is a remarkable fact that, while each of the member states within the EU is a signatory to the European Convention on Human Rights and Fundamental Freedoms and while each of them has incorporated the principles of that convention into its national law, there is no equivalent regime at EU level. Every person in every member state enjoys the protection of the convention at member state level, wherever he or she happens to be within the EU. But that protection is lacking wherever that person is affected by things that are done or omitted to be done by or under the direction of the institutions of the Community. This is a weak point within the current arrangements which needs to be addressed.

The second point which arises from that sentence is what the proposal tells us about the nature of the process that it has in mind. It is primarily one of consolidation. It is not intended to confer new powers on the EU. It is intended to be a process of reorganisation, dealing only with existing rights and competences. It is intended to make these rights more visible. As matters stand, there is no list of fundamental rights in the treaties, although Article 6(2) of the EU treaty declares that the Union is founded on respect for human rights and fundamental freedoms.

So what we have is a general principle but no clear means of identifying the rights and freedoms to which it refers. Violations of these rights and freedoms may occur through ignorance. Where violations do occur, they may go undetected. So, when the Cologne proposal said that these rights were to be consolidated, what it had in mind was not the creation of new rights, but a process by which the existing rights would be more accessible--both to individuals and to the institutions and bodies also.

But it has to be recognised that the proposal is not confined to reproducing the provisions of the European convention in a Community instrument. That in itself would be a rather pointless and confusing exercise. It would be pointless because the provisions of the ECHR as such do not need to be repeated. The convention can speak for itself. It would be confusing because the ultimate judicial authority for the enforcement of the European convention resides in Strasbourg. Its jurisprudence is not the same as that of the European Court of Justice in Luxembourg, which has its own views as to the formulation for the

16 Jun 2000 : Column 1851

purposes of Community law of human rights principles. An attempt simply to produce a parallel system to the ECHR within the EU would be bound to create uncertainty and would carry with it the risk of undermining respect for the convention.

What the proposal has in mind, as we in the committee understood it, was something quite different. The Cologne declaration makes it clear that the charter is intended to embrace Community rights as well as the convention rights. It contemplates that the charter will include not only the convention rights and rights derived from the constitutional traditions common to member states, but also what it describes as the fundamental rights that pertain only to the Union's citizens. Its inspiration is Article 6(2) of the EU treaty. It suggests that in drawing up the charter, account should be taken also of some of the economic and social rights that exist within the EU, so long as they are not merely objectives for action under the treaty. This raises an important issue about content.

The third point arising from that first sentence relates to the purpose of the exercise, as identified by the Cologne Declaration. It is, as I have already said, to make these rights more evident. It states that there is a need to make their overriding importance and relevance more visible to the Union's citizens. That there is such a need can hardly be doubted, for the reasons that I have already indicated. But the evidence which we received indicates that it is unlikely that all member states will be content with a document that simply says what the rights are--nor even with one that goes on to define their content and to explain their sources. It is already clear that any charter that is adopted by the Council will be seen by some, and perhaps by many, as having a greater political and legal significance. There are those who insist that its function should be to cure the present lack of structure as regards the protection of fundamental rights at EU level. This raises an important issue about the status of the proposed document.

Perhaps I may turn briefly to the report itself, in which we sought to address these issues. Noble Lords will see from the contents pages that the sub-committee which carried out this inquiry had the benefit of a substantial amount of evidence which was given to it both orally and in writing. The witnesses included various organisations, academics and practitioners as well as several people who deserve special mention. We had the benefit of oral evidence from Mr Keith Vaz, the Minister for Europe; from Mr Hans Kru ger, the Deputy Secretary General of the Council of Europe; and from Advocate General Francis Jacobs of the European Court of Justice. We also had the benefit of evidence from the three United Kingdom representatives on the convention which was set up to draft the proposed charter: in particular from the noble Lord, Lord Bowness, who represents this House; and the Prime Minister's representative, the noble Lord, Lord Goldsmith. I look forward very much indeed to the contributions which they will be

16 Jun 2000 : Column 1852

making to this debate. Furthermore, I should like to pay tribute to the contribution that was made to our discussions by all our witnesses.

We were well aware that the proposal for an EU charter of fundamental rights was, and still is, an extremely sensitive one, both in this country and throughout the EU. It would be easy to jump to conclusions of one kind or another, depending on the background from which one comes. What we in the committee tried to do was to gather together in our report as much evidence as we could from as many sources as possible. We formed views and we have made recommendations based on that evidence. We hope that in this way we have been able to contribute to an informed debate on the subject. We also hope that our report may have been of some assistance to Her Majesty's Government in the decisions that will soon have to be taken about the contents of the document and the status that it should have within the EU.

Perhaps I may deal first with the issue about status. One of the odd features about the work that is currently being undertaken by the convention is that no decision has yet been taken as to the status that the document is to have once the draft has been finalised. All we know at present is that a European charter is to be proclaimed on the basis of the draft document. The Cologne conclusions tell us that it is only then that consideration will be given to the question of whether and, if so, how the charter should be integrated into the treaties of the EU. In an ideal world, one would no doubt prefer to put the horse before the cart and resolve the issue of status first, before addressing the issues about content. But that is not the creature with which we have been presented. We must accept that and face up to the consequences.

There are two particular points that I would make in order to focus this issue for debate. The first is that, however much some may wish that the document should be accorded as little by way of status as possible--that it should be regarded, as the Minister indicated to us in his evidence, as a showcase of existing rights and nothing more than that--the reality is likely to be quite different. Even if there is no unanimity on the point, there will be those who will seek to elevate its status. They will be able to point to the composition of the Commission, which in itself gives it a certain kind of legitimacy, and to the fact that it will have been endorsed at the highest political level in the EU. "If you want to know what the rights are", it will be said, "you will find them in the charter." The charter will be seen as putting flesh on the bones of Article 6(2) of the EU treaty. As the noble Lord, Lord Goldsmith, said in his evidence to the committee, the charter is being drafted as if it could be a legally binding document. So we anticipate that it will not be long before it is used in conjunction with Article 6(2) of the EU Treaty, as if it were an exposition of the human rights principles enshrined in that article. Whatever else is done with the charter, the European Court of Justice will inevitably find itself being asked to use the document as source material to give content to these principles.

16 Jun 2000 : Column 1853

The second point is that there are good reasons for thinking that it would be unsatisfactory for the charter to be no more than a showcase. There are at present significant gaps in the protection of the individual at EU level. These arise partly because the circumstances in which an individual can commence proceedings directly against an EU institution in the European Court of Justice are very limited, and partly because an EU measure can only be challenged on the ground that it contravenes the convention if it has been implemented at national level. There is also an increasingly significant gap in regard to the third pillar where, as a result of the Maastricht and Amsterdam Treaties, there is greater scope for EU actions and policies to affect the rights and freedoms of the individual. As we point out in our report, the EU now has powers to adopt a range of measures in the field of visa control and asylum and immigration policy which may give rise to human rights concerns. Provision has been made for closer co-operation between police and Customs officials to prevent and combat crime. At present, the jurisdiction of the European Court of Justice over these matters under the treaties is very limited. Furthermore, as the judgment of the Strasbourg court in February 1999 in Matthews v. United Kingdom about the exclusion of Gibraltar from direct elections to the European Parliament has shown, the fact that a member state has obligations under Community law cannot affect its liability for a breach of the convention. This indicates that there is already some instability within the existing system. What is needed to meet this difficulty is an EU charter that is inserted into the EU treaty, and thus made binding on all the bodies and institutions of the EU--not just in the Community pillar but in the second and third pillars also.

The committee suggests to the Government, notwithstanding what the Minister said to us in his evidence, that it would be better to take a more positive stance on this issue. The problem is that a showcase charter on the one hand and one that is justiciable on the other are two quite different concepts. We suggest that it should be recognised that the time has come for the provision of effective remedies for the infringement of existing rights at EU level. The charter provides an opportunity for this to be done which, we suggest, should be taken. At any rate, one cannot sensibly conclude the drafting process without having in view the use that is to be made of the document.

Connected to the issue of status is the question as to the relationship of the charter with the European Convention on Human Rights. Concern has been expressed about the possibility that different standards will emerge as a result of differences between the Community courts and the European Court of Human Rights in their interpretation of the rights expressed in the convention. The committee has recognised these concerns. They give rise to two particular recommendations.

The first is that great care needs to be exercised when the charter is being drafted not to create a divergence between its terms and the terms used by the convention. This is essential if we are to preserve legal

16 Jun 2000 : Column 1854

certainty. The probability is, as I have said, that the charter will be treated in practice as much more than a mere showcase. That is why it is so important to argue from a position of strength about its content and its use of language in that context. The second recommendation is a more radical one, although it received strong support from our witnesses. Its importance is underlined by the fact that a consequence of making fundamental rights more visible is bound to be an increase in the number of cases in the Community courts that raise issues about these rights. That will increase the risk of a divergence between the jurisprudence of the Community courts and the European Court of Human Rights in Strasbourg, as the decisions of neither of these courts are binding on the other. There are various ways in which this problem might be addressed. But the best solution to the problem of inconsistency would be for the EU to accede to the ECHR. This is plainly a complex matter, both legally and politically. No doubt it is one for decision in another context than that which was envisaged at Cologne. The Portuguese presidency has put the matter on its list of possible subjects for the IGC. The committee urges the Government to support this initiative.

I turn now, more briefly, to the second main issue, which relates to the content of the charter. The committee did not see its task as being to comment on matters of detail. What we have sought to do instead is make some general points on matters of principle which we believe ought to be recognised before the draft is finalised. I do not need to go over all the details. They are set out in the report. But one of the matters to which we draw attention deserves to be specially mentioned.

As I have said, the Cologne conclusions made it clear that it was intended that the charter should deal with existing rights. As we in the committee understood the position, it was not intended to be a launching pad for new rights or competences. If the drafting work is faithful to this intention, its effect will be to make more visible the same rights and competences as we have now. But its reference to economic and social rights does create a difficulty. In practice relatively few economic and social rights are justiciable--that is, are capable of being interpreted and applied by the courts. If the charter is to include such rights, great care needs to be taken to ensure that their inclusion does not enlarge the competence of the EU or the Community by the back door. In the committee's view it would be impracticable to make such rights justiciable at EU level unless and until they had become generally recognised as such at national level. This suggests that the economic and social rights that are not justiciable should be put in a different chapter of the charter so that their status is made clear. In this respect we support the position that is adopted by Her Majesty's Government.

Other issues, such as the impact of the charter on enlargement, are discussed in the report. But the key issues are those about status and content. If the draftsmen were to give way to the temptation to build as much as possible into the document--particularly

16 Jun 2000 : Column 1855

to include in it, contrary to the advice which the noble Lord, Lord Goldsmith, has quite rightly urged upon them, new rights and competencies and matters that are not yet justiciable--we shall be in difficulty. Not only would this be a departure from the original idea expressed at Cologne; it would also result in a missed opportunity if the document could not be agreed. That would make it impossible for us to do something useful to close the gaps that need to be closed if we are to restrict the activities of the institutions and bodies of the EU so that they too, as well as the member states, will know what the fundamental rights and freedoms are and will respect them in what they do.

But what this exercise has revealed, above all, is that the crucial step that has to be taken, if the gaps are to be closed and the uncertainties removed, is that of accession to the ECHR. That, as one of our witnesses has observed, is the most rational and transparent solution. As we say at the end of our report, it would secure the ECHR as the common code for Europe. We believe that the question of accession should be on the agenda for the IGC.

The Motion is that the House takes note of this report. I commend the report to the House.

Moved, That this House takes note of the Report of the European Union Committee on the EU Charter of Fundamental Rights (8th Report, HL Paper 67).--(Lord Hope of Craighead.)

11.32 a.m.

Baroness Billingham: My Lords, I rise to make my maiden speech with well-placed trepidation. Alongside all the good advice from colleagues about House rules and procedures was the rider, "And for goodness sake choose a non-controversial topic for your maiden speech". My future flashed before my eyes as I looked at the list of speakers who were to follow me. Could there be a more polarised position or topic where consensus was less likely? My Lords, no. That is not the only howler I have managed in the few weeks that I have been here. On day two I sat on the wrong Bench--and not any old wrong Bench, which in my case could have been alongside noble Lords on the Liberal Democrat, Opposition or even the Cross Benches. I committed the ultimate faux pas--I almost said "cardinal sin"--by sitting on the Bishops' Bench. Worse, I was wearing this very jacket and so was even colour co-ordinated. Imagine if that had been caught on camera: "Synod sensation--outrage up and down the country".

Having put that behind me, I look forward to participating in the work of your Lordships' House, whose high reputation is well earned, especially the work of the European Union Committee. I readily confess to a sense of pride in being able to participate in this valued and valuable work. Today's debate illustrates that value and gives us the opportunity to raise the profile of human rights against the background of an excellent report.

Reading the report, I became increasingly impressed by the quality of the exchanges. As a Member of the European Parliament, where I served on the Economic

16 Jun 2000 : Column 1856

and Monetary Committee and was Chief Whip for the Party of European Socialists, the reputation of the House of Lords Select Committee was legendary. The barrage of barristers, added to the other expert members of the committee, must have presented a pretty daunting panel to the impressive list of witnesses. I fear that had I been called before the committee I might have pleaded a headache and run.

The report comes just months before the 50 year-old European Convention on Human Rights is written into UK law. Not only is it timely, but it can underline and highlight the scope and value of those rights. The next IGC takes place in December in Nice. By then the draft charter will be drawn up. It gives us a unique opportunity to deepen and strengthen the culture of rights and responsibilities at all levels across the EU and to endorse our demand for universal human rights.

It is clear from a number of the witnesses, as well as from today's speakers, that there is a wide divergence of opinion on this subject. The polarisation between those who seek to make the charter mandatory is more than balanced by those who see it as a threat to the power of national government. To many in the latter camp, the very suggestion of a pan-European charter is anathema and stokes their Europhobia. Make no mistake: that view is not restricted to a marginalised minority; I even have some of it in my own family. How can I not when my daughter is married to the son of the marginally Eurosceptic honourable Member for Bolsover?

Those views must be taken on board along with the fears expressed by several of the witnesses that the charter would serve to confuse and complicate the existing European courts and competencies. Those fears can be allayed. Therefore, I concur with the opinion expressed in the report:

    "There was general agreement among our witnesses that the position of the Council of Europe should not be undermined and that any weakening of the Strasbourg system would be detrimental to the protection of human rights across Europe".

It is clear that legislation which produces legal uncertainty and potential conflicts between two courts is in no one's interest. But a clear and concise charter which is readily understood by all European citizens is long overdue. Of all the problems brought to me as an MEP, those based on legal confusion were by far the most difficult to handle. We had a host of time-share scams, some of which are still unresolved today, claims of unfair imprisonment and dozens of cases of individuals fighting for pension rights or simply payments from companies outside the UK. Many of these people were at their wits' end. In all those cases my offices in Northampton and Brussels spent months trying to unravel the problems.

For the average citizen, the whole issue of rights is an impenetrable maze. To go to an MEP is but one option; the Petitions Committee of the European Parliament and, of course, help from elected Members in the other place are also possibilities. But there is no blueprint. Imagine the joy in being able to look up on the Internet exactly what to do to find help. That is just one of the benefits that flow from the charter.

16 Jun 2000 : Column 1857

I can do no better than quote the conclusion of the Select Committee's report:

    "The potential significance of the Charter, both politically and legally, is very great".

The proclaimed aim of the Cologne Summit is to produce a charter of fundamental rights of overriding importance and relevance to the Union's citizens. In this way, the fundamental rights applicable at Union level can be consolidated in the charter and thereby made more evident. From that it is perfectly clear that the charter will deal with existing rights, and is certainly not a blueprint for new EU competencies.

I see this as an opportunity to provide a charter which brings clarity and transparency to existing rights and a restatement of the EU's determination to uphold existing fundamental civil rights which support human dignity and oppose all types of discrimination and xenophobia. If that is achieved, it will indeed be a charter to cherish.

In conclusion, I thank the Officers of the House and the many colleagues who have eased my transition into your Lordships' House with such patience and friendliness. It has been a very happy experience.

11.40 a.m.

Lord Lamont of Lerwick: My Lords, it is my great pleasure to congratulate on behalf of the whole House the noble Baroness, Lady Billingham, on her outstanding maiden speech. Having appeared with her on television and witnessed her charm and knowledge, I was in no doubt that it would be a great success. I enjoyed, as I know did the whole House, her story of sitting on the Bishops' Bench and it reminded me of the story in John Wells' book about the House. A noble Lord, I suppose Conservative, came in from the shires under force for the first time ever. He took one look at the Bishops' Bench, screamed, "Women!", left and was never seen again. However, I am sure that had the noble Baroness been sitting there he would have stayed.

The noble Baroness drew on her knowledge of the subject before us from her years in the European Parliament. I know that in a general election she contested Banbury for the Labour Party. Her speech today shows that the House of Commons' loss is our gain and we greatly look forward to hearing her in the future.

I should also like to congratulate the noble and learned Lord, Lord Hope, and the committee on their report. Even for those of us who have considerable reservations about the proposed charter, it is an extremely valuable document in clarifying the issues, which it does with great lucidity. I have read the whole report and find it an immensely careful and impressive document.

I hesitate to intervene in the debate because it is one in which many distinguished lawyers are to speak. I am sure that the House is looking forward to the speeches of the noble Lords, Lord Lester and Lord Goldsmith, in particular. However, it is important that the debate is not entirely taken up by lawyers. It is important that we non-lawyers should have our say. I should have

16 Jun 2000 : Column 1858

preferred to have made my jarring speech perhaps after the lawyers rather than before them, but that is not how it has turned out.

The document makes clear beyond doubt that the EU has been involved in the subject of human rights for some time. The ECJ has consistently emphasised the particular significance it attaches to the European Convention on Human Rights. As the noble and learned Lord, Lord Hope, said, the founding treaties did not mention fundamental rights, but the Court of Justice has been the principal actor in identifying and articulating the content of such rights as binding on the communities. Successive treaty amendments have captured the essence of its jurisprudence without attempting to codify it.

The Maastricht and Amsterdam Treaties entrenched the concept of fundamental rights. The Amsterdam Treaty even introduced provisions with the potential to create new Community rights.

However, in paragraph 13, the report also makes it clear that the Luxembourg Court's assertion of human rights jurisdiction has been seen as a necessary expedient to ensure the supremacy of Community law. That has been one of the reasons it has been interested in human rights.

That the EU has been involved in human rights for some time does not of course itself make it right for the EU to extend its influence further in that field. That has been the whole problem with so many of the arguments about EU integration. At each stage, we are always told that the EU is already doing something and that therefore it should do more. That is not in itself an argument and it is what has got us into the political problem we have today in trying to decide what the EU is all about. Each step should be justified on its merits--and that means really justified on its merits, not simply saying, "We have been doing this already and therefore we should do more of it".

Human rights is one of those fig leaf phrases such as "social justice" or "people's democracy" which can be abused and is not always what it appears at first sight. Human rights has become something of an industry, and not just for lawyers.

The EU charter of fundamental rights is a high sounding idea which, if implemented, will under Article 13 give people the right to marry; under Article 5, the right not to be held in slavery; and even better, under Article 14, the freedom not just of thought but also of conscience. Those are lofty ideas.

Article 18, which gives the right of access to documents of the European Parliament, might be thought not to be in quite the same league. If I said I thought that was a right I could live without, I might be accused of flippancy--though perhaps I could legitimately wonder why access to the documents of the European Parliament is a right but access to the documents of national parliaments is not mentioned. Article 39, which gives the right to reconcile family and professional life, is an ideal easier to write down than to achieve.

16 Jun 2000 : Column 1859

We have been assured that the charter is only about existing rights and not about new rights. But, if I may say so, there is something rather arrogant in the assumption that we can create new rights at the flick of our fingers and they will come into being.

The questions which must be asked are: are the existing fundamental rights really under attack in any meaningful way and will a charter of such highly generalised aspirations really increase the happiness of the citizens of this country? Will it really be of any practical use to the citizen?

We may be told that it is for the courts and the lawyers to decide whether it is of practical significance, but we are entitled to ask: what will the wider consequences be? By "consequences" I mean both the intended consequences and the unintended consequences which can not be foreseen. Some of the proposed articles are so vague one does not know how the courts will interpret them or where they will lead to. Article 1, relating to the dignity of the human person, states:

    "The dignity of the human person must be respected and protected".

Could that eventually be interpreted by the courts as powers and rights against abortion and the rights of the unborn child? No one can tell where these articles will lead or how they will be interpreted.

It is the case that signing the European Convention on Human Rights is already a condition of membership of the EU. All member states have signed it, so what is the point and the need to have yet another charter? The noble and learned Lord, Lord Hope, made the point that it is not just a repetition, a reiteration, of the rights contained in the convention. But at the same time he emphasised the need not to have a conflict between the two charters. That will be exceedingly difficult to avoid.

Is the charter really necessary? I notice that the Bar, by which is meant the Bar Council International Relations Committee, the Bar Human Rights Committee and the Bar European Group, was critical of the value of having another charter and believed that resources involved in producing this charter could have been employed on less glamorous projects. It concluded that,

    "few independent commentators and few lawyers practising in the field would have put an EU charter of rights anywhere near the top of their list of useful initiatives for improving the effectiveness of human rights protection in the EU".

There is the vexed question of the so-called "social rights" which has exercised many people and exercised the CBI. It is worried that Britain's new-found competitiveness has been achieved despite and not because of European legislation. I do not want to comment on that controversy; my views on the subject of social rights are predictable and I shall not weary the House with them. But how can one have rights in a charter where they are not justiciable? Can the vague social rights as they are written down really be justiciable?

16 Jun 2000 : Column 1860

In justification of the charter, the report attempts to identify a juridical gap. It argues that there is at present a significant gap in that individuals are not fully protected against the misuse of power by EU institutions which breach the European Convention on Human Rights. Paragraph 128 states:

    "The individual's ability to challenge the measure on fundamental rights grounds is more restricted where the measure is taken by an EU institution than it is where it has been taken by a national authority".

Paragraph 131 states:

    "If the decision in question is not addressed to that person, he or she can only institute proceedings",

that is, against part of the EU,

    "where the decision is of direct and individual concern to him or her".

It is difficult for a non-lawyer to comment on the so-called "juridical gap". I cannot dispute the precise points. The question is: how significant are they? Incidentally, I heard the foreign minister of one country say that the charter would be binding only on the institutions of the European Union. Paragraph 148 of the report makes it perfectly clear that in its operation it is binding not only on the institutions on the European Union but also on national governments.

If the juridical gap is significant, surely there is another way of tackling it; that is, instead of having a charter of fundamental rights, there should be accession by the EU to the European Convention on Human Rights. Paragraph 141 of the report states:

    "It can now be seen that accession would have significant advantages. Accession by the Union and Communities would render their institutions and activities subject to the same degree of supervision as those of the Member States".

Surely that is a much better way of approaching the issue. Therefore, why are we not doing it in that way? Why are we not going down that road? We are not doing that because that is not what the politicians want. It is not grand enough architecture for them. This is a political document and its purpose is political. Mr Vaz, the Minister at the Foreign Office, made that clear when he appeared before the committee and before the committee of which I am a member. He emphasised that the purpose was visibility. He said:

    "The Charter ... will be one of the most important things that we have seen come out of the European Union in the last decade, because it will be the first time that there has been positive communication with ordinary people".

Rights are to be derived from Europe. The rights that have evolved and been fought over and which have been part of our history are to be ascribed to the European Union. We are to be given cards telling us what our rights are: our right to marry and our right not to be held in slavery. When that is explained, it smacks more of propaganda than anything else and of insulting history.

There is another purpose in it. Mr Prodi and Mr Fischer have called it a "constitution" for the European Union. It was put particularly well by Andrew Duff, the Liberal Democrat MEP and rapporteur of the charter for the European

16 Jun 2000 : Column 1861

Parliament, who recently gave evidence to a committee of which I am a member. He was a very thoughtful and worthwhile contributor to the debate. He said:

    "It is part of the process of federalising the EU. The consequence of the charter installing ... fundamental rights ... is part of the federalising process".

That was his view.

We are told that the charter may be simply declaratory. However, that may not be so. The British Government may not get their own way on that. Even if it is only declaratory, it will still have a profound effect on the courts and there will still be scope for conflict between the ECHR and the ECJ. Therefore, I do not believe that the aspiration to have it merely as a declaration solves the problems.

I have two objections to what is proposed. First, I believe that the charter will ensure that the EU becomes less democratic and more judge-driven. It seems to me that many questions arise, such as the position of gays in the Armed Forces, the retirement age for men and women, the pension rights of homosexual couples and their rights under inheritance laws. Those subjects have attracted much attention. They are important questions; I do not doubt that. However, many of them concern matters on which political decisions should be made in this country. I believe that we could profitably remember the judgment of Abraham Lincoln when he said:

    "The candid citizen must confess that if the policy of the government, on vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made ... the people will have ceased to be their own rulers".

And what goes for the American Supreme Court goes for the European Court of Justice.

My second reservation concerns the danger that fundamental freedoms, won over centuries, could be at risk in a vague, ill-defined effort to impose a unified system of law on Europe. We have had proposals on a European public prosecutor; we have had proposals relating to corpus juris, which appeared to threaten habeas corpus in a certain area. Of course, it is significant that the Charter of Fundamental Rights does not mention the right of habeas corpus. Why not? Because habeas corpus does not exist in Europe; it exists in England, America and countries which have our legal system.

I believe that we should be extremely careful before signing away more of our basic rights to courts in Europe. British law is not based on a fixed code, as in continental systems; it is law that has grown out of the reality of cases and has been able to adjust and change with the times. It is when one begins to write things down that one perhaps sees the wisdom of not writing them down; the wisdom of not having a written constitution rather than having such a constitution. We have a system which has served us well, and all people of all political parties should fight hard to protect it. We should think most carefully before we go down the road of endorsing this Charter of Fundamental Rights.

16 Jun 2000 : Column 1862

11.55 a.m.

Lord Lester of Herne Hill: My Lords, the House has abandoned the custom whereby each of us congratulates a maiden speaker. Nevertheless, I cannot resist congratulating the noble Baroness, Lady Billingham, on an excellent maiden speech. It is marvellous to have an experienced parliamentarian of good humour, as she is, contributing to our work. Perhaps I may also say that she will never be intimidated by a barrage of barristers or a conclave of clerics. But if ever she comes to these Benches, she will be most welcome.

It is a great privilege and pleasure to serve on the sub-committee that produced this report, especially under the wise, skilful and hard-working chairman, the noble and learned Lord, Lord Hope of Craighead. He manages to combine great learning, practical common sense and the rare ability to get the best from members of the sub-committee and the witnesses. I also pay tribute to the legal advisers to the sub-committee, Dr Christopher Kerse and Leigh Gibson, who made a major contribution to what I believe is a great state paper, the contents of which will be studied across Europe. I can say that as I did not write a word of it myself. As the noble and learned Lord said, the cogency of the report was enhanced also by the quality of those who gave evidence.

The noble and learned Lord, Lord Hope, explained the issues very clearly. I shall simply highlight some of the main points while trying to avoid repetition, and answer some of the points made by the noble Lord, Lord Lamont of Lerwick.

The first point that we emphasised was that the proposed charter is not purely a clerical exercise; nor is it an academic exercise in jurisprudence. The complex legal, political and constitutional issues go to the heart of the debate about the nature and future of Europe. The differing visions (and in some cases nightmares) about the Union colour the debate. However, despite the differing political traditions and values represented on our sub-committee, it is striking that we were unanimous in our conclusions and recommendations, and that should give cogency to them.

The charter exercise presents a major opportunity to give more effective protection to the individual in relation to the activities of the EU's institutions. As the noble and learned Lord said, there is a significant gap in existing protection against the misuse of power by EU institutions in breach of the European Convention on Human Rights. The individual's ability to challenge a measure as breaching his fundamental rights is more restricted when the measure is taken by an EU institution than when it is taken by a national authority. Surely all noble Lords would wish to give effective protection to the rights of the individual against the misuse of EU powers. That is not a question of extending EU competence; it is a question of limiting EU competence under the European rule of law.

The central aim of the charter is, or should be, to ensure that the institutions and bodies serving the EU are more clearly bound to observe the requirements of

16 Jun 2000 : Column 1863

the convention--as are national legislatures, national governments and national courts. That is surely an aim on which all noble Lords should be able to agree.

The objections raised by the noble Lord, Lord Lamont, are at their heart really objections to the European Convention on Human Rights itself. They are objections that were voiced within the Cabinet of the Attlee government in 1949-50, in the face of Winston Churchill; David Maxwell Fyfe, later Lord Kilmuir; the late head of my chambers, Sir John Foster; the great Conservative European movement of the time, which, with its Liberal allies, was advocating the creation of a European convention on human rights.

It was the British socialists above all at that time who spoke in exactly the same way as does the noble Lord, Lord Lamont, now, and as I suspect the noble Lord, Lord Bruce of Donington, will shortly in this debate. The Attlee government inveighed against the vague and woolly rights to be included in the European convention. They disliked the idea that judges would be given power to decide what they regarded as political questions. They were against an international or European jurisdiction and were worried about the diminution of their powers.

It is excellent that that outdated, outmoded view is not at all the view of the Labour Party and the present Government. Indeed, it is not the view of a substantial part of the Conservative Party or of any part of the Liberal Democrats. Surely there is widespread agreement now that the European convention system has been a great success, that it is excellent that we have made the convention rights directly effective in our courts to relieve the over-burdened European Court of Human Rights. To the extent that there is an attack of that kind on the European charter, it is misplaced. The reality is that the convention system needs to be made to work better, and that includes limiting the powers of the EU institutions and their officials where they breach our basic rights and freedoms.

The noble Lord also referred to habeas corpus, that great British invention. I have news for him. Habeas corpus-which Dicey thought was worth a hundred written constitutions or Bills of Rights, proved fairly worthless in a number of British cases, since all that the authority had to do was to show a lawful excuse for the detention and the judges had to bow down. I am delighted to see the noble and learned Lord, Lord Wilberforce, in his place. It was he and his fellow Law Lords who in a great case, Khawaja, were influenced by Article 5 of the European Convention on Human Rights--the European writ of habeas corpus, since it guarantees the right to liberty--and refreshed the tired old English writ of habeas corpus by modelling it much more on the European writ of habeas corpus in Article 5. European law came to the rescue of inadequate English law, if I may say so without causing cardiac arrest in some parts of the House. Therefore, we have a good deal to thank the European system for as well as making a great contribution to it.

16 Jun 2000 : Column 1864

I have said what the central aim of the charter ought to be. There are two ways of meeting that aim, as we point out in the report: either accession of the European Communities and European Union to the convention or incorporation of the convention verbatim into the treaties. Because of the risk of conflict between two European courts, in Strasbourg and Luxembourg, we believe that the better way is accession, as, I think, does the noble Lord, Lord Lamont. Accession is a crucial step if the gap in protection is to be closed. The question of accession is one for the Inter-Governmental Conference, and we urge the Government to support the inclusion of this topic on the IGC's agenda. We very much hope that the noble Baroness the Minister will be able to indicate that the Government have accepted that central recommendation to put it on the agenda.

We also recommend in the report that the charter should include the rights proposed to be added to the convention by the various protocols, in particular the non-discrimination provisions in draft protocol 12. We explain that the convention is the benchmark standard of human rights protection in Europe, which should be reflected in the charter. We emphasise as strongly as we can the need to avoid paraphrasing or rewording the convention, pointing out that rewording the convention rights would run the risk of confusion, as it would open the door to reinterpretation of the convention based on the new wording. It would confuse and mislead.

We also emphasise that the question of EU accession to the convention, and the question of the content and status of the charter, should not detract from other pressing matters, such as persuading all member states to sign up to the existing protocols, and the very important matter, to which we give a glancing reference, of securing the independence of the judges sitting on the Strasbourg court and generally making that over-burdened court work better.

The need to secure the independence of the Strasbourg judges is not well served by the current system for their election by the parliamentary assembly, after nomination by their own governments, with tenure guaranteed for only three years for half of them and for only six years for the other half. That does not satisfy the minimum requirements, and it may encourage some governments to refuse to renominate judges of whose judgments they disapprove. There is an unsatisfactory screening process conducted by the parliamentary assembly which weakens the safeguards of judicial independence.

The noble and learned Lord, Lord Hope, pointed to the lack of sufficient judicial protection under the third pillar of EU actions and policies impinging on human rights. We also indicate the importance of legal certainty. I respectfully agree with what has been said about economic and social rights. They are not justiciable. They cover matters to which the other two branches of government, the legislative and executive branches, should have regard in discharging their obligations, and it would create an unholy mess if they were to be included in the same document as though they were legally enforceable.

16 Jun 2000 : Column 1865

The most immediate external impact of the charter will be on the candidate countries involved in the current enlargement process. For their citizens, only recently liberated from totalitarian rule under the Soviet empire, the convention was held up as a beacon of hope for their freedom by great conservatives, particularly by Maxwell Fyfe in a great speech, and by other western European leaders throughout the decades of the Cold War. We emphasise that the charter should avoid the creation of two levels of protection in Europe, one within and one without the Union. Nothing should detract from securing, in all the candidate states, the enjoyment of the fundamental rights enshrined in the convention.

The practical benefits of filling the existing gap in protection risk being lost because of ill-informed political and press debate lacking in understanding of the nature of the gap and the practical ways of enhancing legal protection. The problems are aggravated by a lack of consensus about the legal status of the charter or its relationship to the convention.

On the one hand, there are zealots--of which I am not one--who would make the charter a cornucopia overflowing with economic, social and cultural rights, as well as civil and political rights, well-recognised rights but also newly-fashioned rights. Those zealots have no clear view of how the rights will be translated into practical reality. They would do well to heed the view of the comite des sages, of which my noble friend Lady Williams of Crosby was a distinguished member, which warned that there must be a continuing dialogue between the European institutions and the bodies representative of Europe's citizens to establish any new list of social and civil rights for the new millennium. Anything less would be undemocratic and counter-productive.

On the other hand, there are the other kind of zealots, often xenophobic zealots, who, quite sincerely, are concerned about preserving state sovereignty against what they see as a plot by the European institutions to run our lives.

They are surely equally mistaken. The main aim of the charter is or should be to protect the people of Europe against the misuse of power given to European institutions by the governments of the member states.

Then there are those who see the charter merely as an exercise in political rhetoric or as a showcase for existing rights. They run the risk of raising expectations that the charter will increase the effective European protection of human rights while being unwilling to will the necessary means of attaining that objective.

We observe in paragraph 127 of our report that the Government should take a more positive stance. The Government's present line, we think, runs the risk of appearing to be extremely negative when it comes to the practical protection of the individual against the

16 Jun 2000 : Column 1866

infringement of rights by the EU institutions. We very much hope that the Minister's reply to this debate will be able to be much more positive today.

Next Section Back to Table of Contents Lords Hansard Home Page