You are here: Publications and Records > Lords Publications > Lords Hansard > Daily Hansard
Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Fowler: My Lords, I thank everyone who has taken part in this debate, particularly the Minister who defended her department exactly as we expected. It was, if I may say so, not exactly the flavour of the debate. She said precious little about the 1,000 foreign prisoners, the illegal immigrants, the scene at the open prison, and national insurance. I must say, in the gentlest possible way, that I have rather reconsidered my position as to her representation, even with her exceptional offer of free representation, as she may not get around to what I am charged with.

It has been a good debate. There has been a great deal of criticism of the Home Office, from my noble friend Lord Marlesford and my noble friend Lord Norton—in a powerful speech—from the noble Lord, Lord Dholakia, and my noble friend Lady Anelay on the Front Bench. There was even a little from the noble Lord, Lord Corbett, at the end; he was verging into that area. There have been proposals for change from the powerful duo of the noble Baroness, Lady Stern, and the noble Lord, Lord Ramsbotham, advocating their separate ministry of justice. Personally, however, I agree with my noble friend Lord Brooke that the priority is to manage better what we have.

However, throughout the debate, there has been a touch of sadness, because the Home Office was once a department of state with a national and international reputation. Frankly, few would claim that that is the
 
8 Jun 2006 : Column 1468
 
case at the moment. Unless Ministers are careful, the tag of "not fit for purpose" will be hung round the neck of the Home Office and its Ministers.

However, as the Minister said, we will return to this issue again. I thank all noble Lords who took part. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.

Fundamental Rights Agency (EUC Report)

4.31 pm

Lord Brown of Eaton-under-Heywood rose to move, That this House takes note of the Report of the European Union Committee on Human Rights Protection in Europe: The Fundamental Rights Agency (29th Report, HL Paper 155).

The noble and learned Lord said: My Lords, it would not be altogether surprising if this proposal for a new EU fundamental rights agency were to be received with some scepticism. At the moment, human rights generally are getting a poor press. Undeservedly so in my opinion, but it is so. Fundamental rights, which, in the absence of a constitutional treaty, lack the force of law, are treated warily by many, and the idea of yet another EU agency—indeed two new agencies as will be immediately apparent from the scope of this debate—is unlikely to be greeted with universal enthusiasm.

I shall return later to the question of whether there should be two new agencies, rather than one—a question that I suspect other speakers will also address—but first let me indicate briefly why, taken as a whole, the EU Committee—and not least Sub-Committee E, of which I have the honour to be chairman—extends a cautious welcome to the proposed new agency. I say "a cautious welcome" because for this new agency to be worth while and successful a number of conditions must be satisfied. Among them are that the agency must be more than merely a postbox for collating and sorting information coming from other agencies; it must have power to seek out information for itself; it must be competent to act in relevant areas, not least, as I shall suggest, in third pillar matters where fundamental rights questions often arise; it must be independent rather than subject to excessive control by the Commission or the Council; and it must avoid the risk of duplicating rather than complementing the work of the Council of Europe, which is the pre-eminent body in the human rights field.

Let me come at once to some of the concerns about this proposal that are highlighted in the committee's report, particularly about the scope of the agency's work. I fear that I have time to comment only on two or three of them. The first is the very important question of whether the agency should have a third pillar remit. The third pillar, let us remind ourselves, is concerned with police and judicial co-operation in criminal matters. The committee feels strongly that the agency should have that remit. Third pillar proposals regularly engage fundamental rights; for example,
 
8 Jun 2006 : Column 1469
 
measures such as the European arrest warrant and the exchange of personal data in criminal investigations. The committee thinks that it would be odd and unsatisfactory not to empower the agency to operate in those areas. We understand that both the European Commission and the Parliament support us in this view. Certainly, in June of last year, when the Commission adopted the proposal for a regulation establishing the new agency, it adopted at the same time a decision empowering it to act in third pillar matters.

We understand that the Commission found our report particularly convincing on this point. The European Parliament too strongly supports a third pillar remit. Indeed, the LIBE Committee, the Parliament's committee on civil liberties, justice and home affairs, in a draft report this year, suggested that the agency should be empowered not merely in third pillar matters but in second pillar matters too; that is to say, with regard to common foreign and security policy matters. We do not go that far, but we certainly urge a third pillar role for the agency.

However, the Government are opposed to this and appear to question both the legal base for it and the value of empowering the agency to operate in this area. We are rather puzzled by those objections. Certainly, neither of them was raised in the Government's original letter clarifying their approach to the proposal before we embarked on our inquiry. If, as the Government now say, Article 308 of the Community treaty allows for the establishment of the agency, providing the Council as it does with the means to attain the objectives of the Community if the treaty has not itself provided the necessary powers, it is difficult to see how Article 6 of the Union treaty and Title 6 of the Union treaty, which provides for common co-operative action under the third pillar, could fail to constitute a sufficient legal base for the protection of fundamental rights there too. After all, the main treaty provision which requires respect for fundamental rights is Article 6(2) of the Union treaty, which provides:

Article 6(4) provides:

Surely, empowering the fundamental rights agency to act in third pillar matters would be an obvious case of the Union providing itself with the means necessary to attain its objective of respecting fundamental rights as required by Article 6(2).

As for the value which the agency would bring to consideration of third pillar matters, we believe that there is a clear role for a body expert in EU law to advise on compliance with fundamental rights at both the legislative and the implementation stages. Although the Government's original response to our report was that the agency would simply duplicate
 
8 Jun 2006 : Column 1470
 
existing human rights monitoring, which is effectively carried out by the Council of Europe and other international bodies, we are glad to note from the Minister's latest letter to the committee that it is now apparently acknowledged that advice on compliance with fundamental rights in third pillar matters might, indeed, be helpful. In this connection perhaps I may say how enormously grateful we are to the Minister for providing a response last week to our discussions on all this in time for today's debate. Alas, the Government it appears are not alone in opposing a third pillar. Apparently they are joined by Slovakia and Germany.

The second important question arising about the scope of the agency's remit is whether it should have a legislative scrutiny role. Article 4(2) of the original draft regulation said, in terms, that the agency's opinions should not extend to questions of the legality of proposals from the Commission or the positions taken by the institutions in the course of legislative procedures. We thought that that was a pity and that the agency could play a valuable scrutiny role. It seemed to us unsatisfactory to have an agency that could intervene only after the adoption of a proposal, even when it was evident that the proposal raised serious human rights issues. Again, it appears that the Government took a different view and thought that the agency should not play any such role.

Happily, the European Parliament shared our view. The LIBE Committee's most recent report proposed that the regulation should provide for pre-legislative scrutiny and we are glad to note that Article 4(2) of the proposed regulation has now been amended by the presidency to allow for some such limited role. At the request of the European Parliament, the Commission or the Council, the agency will be permitted to formulate opinions on specific topics concerning Commission legislative proposals.

My third and final question concerning the scope of the agency's work is whether to include in the text of the regulation express reference to the European Convention on Human Rights or the Charter of Fundamental Rights. Article 3(2) as originally drafted—on which we originally reported—stated that,

I have already cited Article 6(2), which expressly refers to the convention. Our report suggests that the agency should use the charter as the principal point of reference, but it would be impossible to monitor fundamental rights across the Union without reference to the convention, which is, of course, the seminal instrument in the field—so the convention should be expressly mentioned in the text.

The Government agree that the agency should refer to the charter as an important political declaration that reaffirms rights already agreed by member states in previous treaties, including the ECHR but, because the charter is not legally binding, to avoid confusion, as they put it, the Government want to remove mention of the charter from the body of the regulation
 
8 Jun 2006 : Column 1471
 
and place it in the recitals. In other words, far from adding reference to the convention in the text of the regulation, as we advocate, the Government want to remove reference in the text even to the charter.

We note from the new presidency text of the regulation that Article 3(2) has been amended not merely to retain its reference to the charter but also to include reference to the convention. It is true that neither the convention nor the charter have formal legal force binding on European institutions. The convention does not because, although all member states are signatories, the EU itself has yet to accede to the convention although for many years that has been advocated, most recently by the Juncker committee, chaired by the President of Luxembourg. The charter does not have legal force because it has not been incorporated into European law, but the charter puts flesh on the bones of Article 6(2). It identifies what it refers to as the constitutional traditions common to member states.

The question is whether there should now be a new European institute for gender equality as well as a new fundamental rights agency. This is discussed in chapter 4 of our report under the simple title, "One Body or Two?" Initially, the question was considered by Sub-Committee G under the chairmanship of the noble Baroness, Lady Thomas of Walliswood. It concluded that the case for a separate body had not been demonstrated, but suggested that Sub-Committee E should consider the question again in the context of our inquiry into the fundamental rights agency. We, too, concluded that so far from there being any justification for creating a separate gender institute, there would in fact be positive advantages in having a single body to cover human rights and all equality strands. After all, in the domestic context, the Government have recently supported the establishment of a single new body, the Commission for Equality and Human Rights, to incorporate all the existing bodies—the Equal Opportunities Commission, the Commission for Racial Equality, and the Disability Rights Commission—as well as tackling other forms of discrimination.

The fundamental rights agency is intended to incorporate the nine year-old European Monitoring Centre on Racism and Xenophobia. One might ask whether it is inconsistent to absorb that body's work within a larger human rights agency, yet at the same time establish a separate body to deal with gender equality. Is gender equality really more important than racial discrimination? We found no convincing argument for two bodies rather than one. We do not accept that gender rights would be marginalised by the creation of one body, and we regret the proliferation of EU agencies and the loss of the economies of scale that would result from one body rather than two. It may seem as though the political die has been cast so far as that issue is concerned. It is to be hoped, however, that our report may contribute to other battles that may be won.

In presenting this report, I am all too conscious of the many, many issues raised by the proposal, with which our report deals and on which it is impossible to
 
8 Jun 2006 : Column 1472
 
touch. I hope other members of the committee will make other important points, and that the noble Lord, Lord Norton of Louth, will speak on the agency's independence, particularly in the context of its management structures. I also await with interest the views of the noble Baroness, Lady Thomas, on the related question of the gender institute, and I greatly look forward to the Minister's response on at least some of the points that we have made.

Finally, I pay tribute to all the members of my sub-committee, particularly our legal assistant, Michelle Lafferty, whose contribution to the inquiry and the text of the report has been immense. I am really most grateful to them all.

Moved, That this House takes note of the Report of the European Union Committee on Human Rights Protection in Europe: The Fundamental Rights Agency (29th Report, HL Paper 155).—(Lord Brown of Eaton-under-Heywood.)

4.48 pm

Next Section Back to Table of Contents Lords Hansard Home Page