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Lord Goldsmith: My Lords, if the convention is to achieve its work, as we are mandated to do by the end of the year, and if it is a fact, as the noble Lord, Lord Goodhart is good enough to accept that it may be--and I tell the noble Lord that it is a fact--that other member states are implacably opposed to accession, how is the convention to complete its work by December against that background if it is going to say, "We are not going to do our job; we are going to wait for accession, even though a number of states are opposed to it"?

Lord Goodhart: My Lords, the view which I expressed was that a binding charter mirroring the European Convention on Human Rights would be good. Accession would be better still. The two are not mutually inconsistent. Therefore, I should like to see a binding convention which mirrored the ECHR. Accession would then be a matter for the next stage, which is clearly a matter for the IGC.

A binding charter could, and indeed should in some respects, go beyond the present text of the ECHR, particularly in the field of discrimination, where the draft 12th Protocol to the European Convention exists but is not yet in force. Indeed, the European Community is legislating against discrimination under Article 13 of the European Communities Treaty and has now published two draft directives which are to be debated in your Lordships' House next week. If those rights are not included, the charter is likely to be out of date shortly after it had been agreed.

For reasons that have already been explained, the charter should not include economic and social rights

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as binding rights, and preferably not at all. Nor should it be used to impose provisions on matters such as biotechnology. Indeed, some pressure groups want to use the charter as an opportunity to legislate on environmental issues on which there is, as yet, no sufficient consensus.

I found what the noble Lord, Lord Brennan, said to be inconsistent. First, he said that the people of Europe should have the right to have the European Convention on Human Rights observed by the EU institutions as well as by their own governments, but then he proceeded to say that there should be no accession and no binding charter. I find it impossible to understand how the result that he first wanted could possibly be achieved.

Lord Brennan: My Lords, perhaps I may remind the noble Lord that a few moments ago he described how one could have a binding charter with accession later. I had the same view in mind. If I expressed it with a lack of felicity, I apologise, but there is no inconsistency.

Lord Goodhart: My Lords, I am glad to hear that. I believe that the committee was right to say, in paragraph 130,


    "The main function of the Charter may therefore be seen as being to improve the practical enjoyment of the fundamental rights that are already secured by the ECHR so that those rights are more effectively enjoyed by individuals within the EU and the obligations that they place on public authorities in particular are more effectively discharged".

Similar conclusions have been reached by the Select Committee on European Scrutiny in another place.

The purpose of the ECHR is to limit the rights of authorities and to enlarge the rights of individuals. Extending the ECHR to the European Union institutions would limit the rights of those institutions and enlarge the rights of the citizens and residents of the European Union. Therefore, it will restrict, rather than extend, the competences of the EU institutions.

I regret that the noble Lord, Lord Lamont, and other noble Lords who support him, do not recognise that this unanimous report is not a document for Euro-enthusiasts, but a document that should satisfy both the Europhiles and the Europhobes. Your Lordships' House is asked to note the report, not to approve it. I hope that most noble Lords who have read the report and have listened to the debate today will feel that it has earned approval, even if the House is not asked to give it formally.

2.32 p.m.

Lord Howell of Guildford: My Lords, we have had a rich and expert debate of such high quality as I have never experienced in my short time in the House. It is difficult to know where the lay person is supposed to enter the labyrinth. I seize upon one phrase from the marvellous maiden speech of the noble Baroness, Lady Billingham, when she spoke of the impenetrable maze of human rights legislation and the awe with which one contemplates the matter in trying to bring it into better order.

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The debate goes to the heart of the future of Europe and, therefore, affects every man, woman and child in this kingdom and in the whole of Europe. As the excellent report identifies, and as the noble Lord, Lord Lester, and my noble friend Lady Park said, we are dealing--sadly, on a Friday afternoon--with absolutely fundamental issues about the way in which Europe will be structured in future and with whether it will be an old-fashioned and over-centralised body or whether it will adjust to the looser, network age that lies ahead. With great respect to the noble Lord, Lord Goodhart, I do not believe that whether we are pro- or anti-European is relevant. It is a pity that the arguments about xenophobia and so on should have entered the debate. That is not the issue. The issue is how we live together in civic order as free citizens, in free republics and kingdoms in the greater Europe that is emerging.

One question hanging over the debate is whether these proposals are necessary. Paragraph 39 of the report also asks whether there is a need for this charter. From the layman's point of view it is a bit surprising that such a need should be felt. We have the European Convention on Human Rights, but we have hardly had time to digest it, as it does not enter into our law until 2nd October. Perhaps a little pause while we digest its implications might be a prudent, democratic procedure. It has just arrived, and we are looking at it.

We also have the European Court of Human Rights, whose fount is the Council of Europe. Its clear purpose in the post-war period has already been graphically described. We also have the national safeguards of our rights and freedoms. There is our system of ombudsmen, which was referred to by the noble Lord, Lord Bruce of Donington, in a marvellously down-to-earth speech so typical of his concern for detail, real life and feelings. It contrasted with some of the more ethereal and technical arguments raised. The noble and learned Lord Brennan came from a quite different angle and made a marvellously lucid speech, pointing out the other things that should, or do protect our rights and which fall outside the charter.

I do not know whether the noble Minister will agree with me, but the common theme to the contributions made today is that accession to the European Convention on Human Rights would, despite the difficulties in engineering it, be a straightforward, agreeable and supported course. In a clear speech, my noble friend Lord Lamont set out that view, which was also expressed by the noble Lord, Lord Plant, in a speech full of common sense with which I largely agreed. The noble Lord, Lord Goodhart, has also given that as part of his party's approach to this matter.

The noble Lord, Lord Brennan, said that we were being a bit naive, and one bows to his enormous expertise. The noble Lord, Lord Goldsmith, also identified the difficulties.

I have no interests legal or otherwise to declare on this matter, but as a layman it seems that that might be a first step before plunging into the more elaborate

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charter. The report asks witnesses why the charter is needed. In paragraph 39 and the following paragraphs several answers are given which are not all that convincing. A whole range of expert legal witnesses were marshalled and their reasons seemed to boil down to just three.

The first argument is that the Union is becoming more powerful, impinging on people's rights and freedoms, and so we must do something about that. More protection is needed for the citizens of Europe. But that is only half the argument, because an alternative view is that it might be possible to restrain this accretion of power and to restrict some of the powers going to the centre in an age when the centralisation of power is out of fashion and inappropriate. If the noble Lord, Lord Goldsmith, is right and the charter restricts Brussels, I might warm to it. But I should really have to believe that. Indeed, in the past I have advocated the kind of constitution that severely limits the competences, and reverses some of the trends towards increased competences in Brussels which may have been necessary 10 or 20 years ago but are completely unnecessary in a world of networks that no longer needs a central power to control it.

That is the first reason for needing this charter that came through from the report. The second reason is a little more worrying and I am not sure it is consistent with the first reason; that is, that the Union apparently needs legitimacy. To quote Mr Fischer, the German Foreign Minister, it needs identity; it must somehow be beefed up. This charter will enable the Union to stand tall in international affairs and be more like the United States of America--a real country; a real state. That appears to me to be a contradictory argument.

The third reason why we need the charter is to achieve legal certainty. The layman may ask what that is. I know it means something in the world of law, but the law does not look a certain thing to the ordinary citizen. We need the charter to make the rights more visible. Again, that is a high aspiration but hard to achieve. And we need the charter to achieve greater reliability.

I recount those reasons because they lead to my first conclusion; that is, that it is still an open question whether we need this charter. If there is a gap, is the best way to fill it by constructing this whole new project rather than by just working on the course of joining the European Convention on Human Rights, even though that too, as the noble Lord, Lord Shore, reminded us in a marvellously trenchant speech, is an institution which could do with a bit of reform, along with the European Commission, the Council of Ministers and all the other European institutions inside and outside the EU?

That is my first general observation; the question of whether or not we really need the charter has been left much more open than has been suggested. A second minor point is that the politics and the culture of rights is only half the story. No one mentioned, not even in this excellent report let alone in the debate, the other half; that is, the principle of duties. The two go together and on them the civic order depends. It is a

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matter of regret that there has been so much mention of rights; a whole culture of rights has been worked up in a huge debate, yet the duties and responsibilities side of the equation received little attention.

The truth is that, without a balancing concern for duties, the politics and culture of rights rapidly degenerate into a debate not about liberties, but into a clamour for more benefits which, in the end, the whole of society has to provide. As the philosopher David Selborne remarked,


    "The politics of dutiless rights is turning out to be the politics of the civic graveyard".

All those, both in the law and outside, who debate on these matters should ponder on that before putting too much emphasis on rights alone.

That said, we have this convention in which the noble Lord, Lord Goldsmith, and my noble friend Lord Bowness are working with such assiduity in order to achieve a balanced and moderate outcome. They have a problem and they do not need me to tell them that. There is no agreement as to the status of this enterprise or the forthcoming document. The British Government, in the words of Mr Vaz, believe it to be a showcase of existing rights. Is it that, or has that showcase already burst open? Is it not rapidly becoming a binding new constitutional regime? I do not know the answer. Or is that simply what it looks like and, in the words of the noble Lord, Lord Goldsmith--though not in his speech today--it has been drafted to look like a constitutional document, ready to go into the treaties as a "precautionary hypothesis". I love that phrase; it is a very nice phrase from the noble Lord.


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