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Lord Lea of Crondall: My Lords, before the noble Lord sits down, perhaps he will comment on the fact that this is a remarkable innovation as regards the relationships between parliaments around the EU and the creation of a report to the summit in Portugal and then in Nice. Can the noble Lord give us a little more insight into two aspects of that situation? We are very happily in a position today to be able give some feedback to our colleagues here because we have representation of this House and, indeed, of another place, on the convention--I have the noble Lord in mind, and my noble friend Lord Goldsmith. As I said, is it not a remarkable innovation? But do other parliaments come to that convention with a more concrete remit? I believe that that question will have some resonance in the future because this is an interesting development and one upon which we must keep a steady eye. Can the noble Lord comment on whether or not we need more systematic feedback? Indeed, I believe that the noble Lord, Lord Tordoff, has already raised this matter.

Lord Bowness: My Lords, with the leave of the House, I can say that I believe it is a unique arrangement. I understand that this is the first occasion upon which national parliaments have been involved in such proceedings. I have heard criticism on many occasions that national parliaments are ignored. But whatever the shortcomings of this particular procedure may be, I should have thought that the principle here is one that would be welcomed. I do not seek to pretend that these arrangements are ideal; indeed, I am but their servant and have been asked to do a particular job. I was not responsible for establishing them. Such questions need to be directed elsewhere. However, it is a valuable change that national parliaments should be included in this way.

The position of those from other national parliaments is very varied. My understanding is that some members are freer to express a view and adopt a position than others. Some members of some national parliaments seem to be mandated rather than representative members.

Clearly time has been a problem in this instance. Noble Lords will appreciate that the first meeting took place in December. I did not give evidence to the committee chaired by the noble and learned Lord, Lord Hope of Craighead, until the New Year. We are debating its report in June of this year. There is a programme of 18 meetings, each spread over about two days, the majority of which have already taken place. It has not been easy to discuss before the whole House in Parliament what has occurred. In future a different process might be more advantageous for all concerned.

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Lord Goldsmith: My Lords, I welcome the fact that in recent weeks there has been for the first time significant public interest in, and debate on, this topic. I do not welcome all of that comment, some of which has been ill informed and unbalanced. For that reason, as the representative of the Prime Minister on the body we are discussing--I declare that interest--I join enthusiastically with other noble Lords in thanking the noble and learned Lord, Lord Hope of Craighead, for initiating this debate which enables us to debate at a timely moment in a more informed and thoughtful way the implications of this important document.

I also join in expressing respectful admiration for the lucidity and clarity of the report of the committee of your Lordships' House under the chairmanship of the noble and learned Lord. As one would expect, it examines the issues in clear and even terms and without preconceived notion or prejudice. I also declare an interest as the co-chairman of an international human rights organisation, the Human Rights Institute of the IBA, and as a practising barrister. In her maiden speech my noble friend Lady Billingham referred to "a barrage of barristers". I appreciate that collective noun. I have heard far less kind versions, of which perhaps the only one I would mention within the confines of your Lordships' House is the far less admirable term "a confusion of barristers".

The first matter on which I should like to touch is the nature of the exercise: what is the charter for and what will it do? The charge has been made against the charter that its purpose is to enlarge the power of Brussels and that it will create new rights, which will either damage the competitiveness of British business, or take away rights and liberties of the British people. One newspaper mentioned giving more power to decide our rights to the unaccountable foreign judges in Brussels. The vision is painted of a wide accretion to the powers of the European Union. I believe that that is a false picture and one that should be dispelled. Your Lordships' committee did not see that as the purpose of the exercise. It wisely counsels that care should be taken with regard to the drafting of the document to avoid those events happening by the back door. We must continue to work to ensure that that does not happen. However, I firmly believe that it is not the purpose of the charter to extend the power of Brussels or to create new rights in the way that has been mentioned.

That is not just my view. It is also the view of President Herzog, who has already been mentioned. He is the German delegate to the body we are discussing, my opposite number, as it were, from Germany. He is also the chairman of the body and a distinguished man. He is the former president of the Constitutional Court and a former head of state. He stated as recently as 6th June--however, I have heard him say this many times--as reported in Die Welt, that the charter will create no new powers for the European Union over its member states and that it will apply only to European institutions without imposing new

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rights on member states. He also added that the charter is not the kernel of a future European constitution.

Those limitations on the charter are reflected even in the present draft which, as the noble Lord, Lord Bowness, has said, is an incomplete and unfinished product. Article 46(2) states:


    "This Charter does not establish any competence or any new task for the Community or the Union or modify competences and tasks defined by the Treaties".

It also emphasises, in Article 46(1)--although I believe that the drafting can be improved--that the provisions of the charter are addressed to the institutions and bodies of the Union within the scope of their competence and only to member states when they are acting to implement Community law. As the noble and learned Lord, Lord Hope of Craighead, said, our mandate, and this exercise, is about the rights applicable at European Union level. It is not about respect for, let alone creation of, rights at the national level.

I suggest that that is not a surprising conclusion when one looks--as the report has done--at the historical background to how this charter comes into existence. It is perhaps a surprising fact--as is noted--that the creation of the European Communities in the 1950s occurred at the very time when the great building blocks for the protection of human rights were in the process of being laid down, following the period in which they had been so profoundly violated by fascist and other dictators. I refer to the creation of the United Nations, which is founded explicitly on the reaffirmation of,


    "faith in fundamental human rights and, in the dignity and worth of the human person";

to the beginnings of a global and universal international human rights system, of which the Universal Declaration of Human Rights is perhaps the most obvious and clearest example, but which includes many other conventions agreed in Geneva in relation to many important matters of fundamental freedoms; and to the regional level where the Council of Europe was established. Just 50 years ago, the European Convention on Human Rights produced and then put into practice a vigorous and imaginative judicial system for the protection of the human rights and fundamental freedoms of individuals against the power of the state or other great bodies.

The member states of the European Union have for many years been bound by these obligations. The UK, as is well known, played a major part in the drafting of the convention--one of its draftsmen later became a Conservative Lord Chancellor, Lord Kilmuir--and it ratified the convention in 1951, one of the first countries to do so. Over 30 years ago this country accepted the right of individuals to take cases to the court in Strasbourg. From October this year, the European convention will apply as a matter of domestic law in the whole of the United Kingdom through the Human Rights Act.

But despite those events, the founding treaties of the European Communities made no mention of fundamental rights. As your Lordships' committee

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points out, that may not be surprising because the focus of the treaties was then economic integration. The Communities were not operating then in areas which were considered inherently likely to violate human rights. As the competence of the Communities has grown, and as the law making of the Union has increased, many have seen the need for an explicit recognition at the Union level of the rights that citizens--and others within the protection of the European Union territories--possess and a greater need to ensure control of the powers of the Community's legislators and administrators in a similar way as legislators and administrators of the member states are constrained, as they are, by the application of the European Convention on Human Rights.

Maastricht, in what is now Article 6(2) of the treaty establishing the Union, recognised explicitly for the first time the concept of respect on the part of the European Union institutions for fundamental rights. As has been noted, the Court of Justice developed a jurisprudence in which it treated those rights as part of general principles of law. But nowhere in the treaties or anywhere does one find a clear list of what those fundamental freedoms are. That leaves vague and unclear for the citizen the rights which the European Union is expected to respect. It leaves not too little but too much discretion for the European Court of Justice to determine what those fundamental freedoms would be.

That is the background and, in my view, the genesis of the European Council's decision for a political declaration of existing rights enjoyed by European citizens because,


    "at the present stage of the development of the European Union, the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident".

So the purpose of the charter is to make existing rights at the European Union level more visible. I suggest that that is for two reasons: first, to reinforce the protection and responsibilities of human rights in the European Union--bringing together into a document the rights that citizens and others possess is valuable to reinforce in the minds of those who should be respecting the rights the fact that those rights exist--and, secondly, to make clear what are the rights and the freedoms which the European Union should respect.

So, in my view, the charter is not about creating new rights enforceable in the domestic arena; it is not about giving Brussels new powers to control our lives. It is about restricting the powers of Brussels so that it respects the fundamental freedoms that we all have. The charter, if it succeeds, will set out for the first time the human rights obligations of the European Union institutions--that is, the Commission, the Parliament and so on.

The purpose of the charter is not to create new rights in areas that are essentially those of national competence, and it is not the purpose of our job to attempt to create new additional individual rights, or even to develop new rights. That is especially true in

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the social and economic fields because those rights give rise to complex issues which require more detailed consideration and more detailed drafting than our body, having regard to its mandate and to the time pressures under which it is working, is really geared to do.

Such new or developed rights--I have sympathy with a number of them--should be created through detailed national legislation or, where there is an existing European Union competence, through the detailed drafting process of directives. Like the noble Lord, Lord Bowness, I fear that some bodies and organisations will be disappointed because they have been encouraged--not by the United Kingdom Government--to see the charter as a vehicle for creating new rights at a national level, which it is not intended to do.

The second area on which I want to touch concerns the question of how the objectives of the charter should be achieved. As the noble Lord, Lord Bowness, said, the draft that your Lordships have seen in the papers is a work in progress, but the process is open and clear to public scrutiny. I understand that there are now more than 1,500 pages of amendments to the 50 articles to which the noble Lord, Lord Shore of Stepney, referred. My amendments are placed in your Lordships' Library and in the Library of another place. There are many changes which, in my view, need to be made to the existing draft. I have made those views clear in my oral interventions and in my written amendments.

One of the important issues that I have continually stressed is the need for legal certainty, an issue to which the noble and learned Lord, Lord Hope of Craighead, referred. Our body does not have the task of deciding whether, ultimately, the charter will be legally binding. That is a decision which will be left to member states at the end of the exercise. I say nothing about its status--it is more appropriate that the Minister should refer to that--but it obviously creates some difficulties for the draftspersons dealing with it. Does one draft a document on the assumption that it will not be legally binding and therefore allow oneself to use general and vague language--the language of political aspiration--which, if contrary to one's assumption it did become binding, would be left to a court to fill in the detail? That would not be a safe course to take.

So the working basis has been to draft a document which could be legally binding--not, as The Times leader suggested, because it was an admission by me that this meant that it would be or might be legally binding, but because it is simply a working hypothesis; it is a safer way to draft. If it does not become legally binding at any stage, the document will stand just as well.

I should like to return to the important question of how to reconcile the need for a visible statement of citizens' rights with something which has the legal precision necessary not to leave great gaps for interpretation. I agree entirely, and say nothing more, about the importance referred to by your Lordships' committee of not creating divergence between the

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European Convention on Human Rights and this charter. That would produce competition in the field of human rights between parallel texts, which would give rise not to a greater strength of human rights but a greater weakness. Those are not my words, but a paraphrase of the words of the Council of Europe.

I have proposed that the way the exercise should be done--your Lordships will see this in the amendments--is to produce a two-part text: a text which in one part contains a clear and simple statement of what the right is, and in the second part ties that clearly to the existing right; for example, the right existing under the European Convention on Human Rights, under the European Treaty or under a directive, so that there is no difference between the two. That has the benefit of greater visibility of what the right is and greater legal certainty. To some extent, that idea has been accepted already by the convention because the document must be seen as having a statement of reasons as well as an identification of the right. I commend that to your Lordships.

Perhaps I may make two final points. First, one area where I do not share the view of your Lordships' committee is that accession to the European Union is the answer. The reason it is not the answer is that it is not on the table so far as we are concerned at the moment. There are other member states implacably opposed to that taking place, and achieving it would require amendment of both the treaty of the European Union and the European convention. Whether it will be on the table at a later date is a different matter. Therefore, we must continue and make the best of the job that we have to do, which I believe is positive and valuable.


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