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Fundamental Rights Agency (EUC Report)

My Lords, I shall address my remarks principally to the report on the proposal for a fundamental rights agency, so ably introduced by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I speak as a member of Sub-Committee E of the EU Committee. In the time available, I wish to offer a general observation and address two specific aspects of the report. The general observation concerns the value of the reports emanating from the EU Committee. Their importance is not always apparent through having an observable impact on decision making. The real significance of the work of the committee lies in its capacity to contribute to debate and influence thinking. It is one of several bodies across the EU engaged in scrutiny, but it contributes with these bodies to the process of deliberation in Brussels. There is certainly more we can do. We shall shortly be debating the committee’s report on public awareness of the scrutinising role of this House with regard to EU legislation. The scrutiny undertaken by the committee, however, contributes at a number of levels, informing as well as influencing. The report on the proposed fundamental rights agency illustrates the contribution the committee can make in terms of informing debate and engaging with others in that debate. There has been a sharing of views with a number of bodies as the discussion on the proposal has progressed. There has certainly been some movement in the direction favoured by the committee in the two areas on which I propose to focus. The first is that of the independence of the agency, which may come as no surprise in the light of the comments of the noble and learned Lord, Lord Brennan. If there is to be an agency, it is important that it is fit for purpose. There is no point in having one that duplicates work done by other bodies, or that exists primarily for cosmetic purposes. If the agency is to carry out its tasks effectively and thus add value in the protection of human rights, it is crucial that it is able to work independently of other EU bodies. This is recognised under Article 15 but, as noted in the report, a number of the proposal’s provisions could compromise the agency’s independence by allowing other bodies to interfere in its work. Under the initial proposal, the threat came principally from the Commission, which was given responsibility for adopting the agency’s multi-annual framework. Among other things, the framework document was to be in line with the Commission’s annual work programme. The report also noted that the presence of two members of the Commission on the agency’s executive board effectively gave the Commission a veto in respect of the decisions made by the board. There was some indication from the Minister that the Council of Ministers was also moving in the direction of seeking a greater role through having to approve the agency’s annual work programme. The committee took the view that the independence of the agency required some detachment from executive bodies and that it would be strengthened through greater involvement by the European Parliament. It recommended therefore that the Parliament should be consulted before the multi-annual framework was adopted and that the agency should be accountable to the Parliament. The committee also favoured greater involvement by the Parliament in the process by which members of the board, and the agency director, were appointed. On the management structure, the committee was concerned by the move in the direction of having the membership based on the principle of ““one member state, one representative””, which clearly gave rise to an unwieldy management board. Such an approach may have been appropriate, or at least not too unwieldy, when there were 15 member states, but is difficult to sustain with a membership of 25. However, I shall not dwell on that matter because the noble Lord, Lord Harrison, made that very point. The committee felt that it should have a membership of 11, drawing on representatives of the Council of Ministers, Commission, European Parliament, and, in this case, the Council of Europe. In the Government’s response to the report, the Minister accepted the need for the agency to be as independent as possible, but argued the case for a strong link between the agency and national governments. Making the agency accountable to the European Parliament, she argued, would distance it from member states. She cited in support of her argument for a strong link with national governments the 2002 evaluation of the European Monitoring Centre on Racism and Xenophobia. She supported the Council approving the multi-annual framework on a proposal from the Commission and in consultation with the European Parliament. She argued against the principal recommendations in respect of the management board. Though the Minister may be right in contending that there is value in maintaining a link with member states—in other words, national governments—this should not be at the expense of the independence of the agency. The 2002 report to which she referred does not advocate the maintenance of a strong link between EU bodies and national governments and it is, of course, possible to engender support and trust among member states without investing them with power over the work of the agency. Since the Minister’s written response, negotiations have continued and there has been some progress. There appears to be a consensus in favour of the European Parliament being consulted on the adoption of the multi-annual framework as well as having a greater role in the appointment of the director. The Minister also reports that there appears to be a consensus in favour of member states appointing ““independent persons”” instead of representatives. This is welcome but essentially protects what was in the proposal at the time that the committee reported. So some step in the right direction is welcome, though it would be helpful to have gone further. I think it important that the principle of the agency being able to carry out its work independently—which does not mean that the agency is not accountable—is not only recognised, which it is, but that it is given somewhat firmer institutional protection. On this, the committee is more in line with the thinking of the European Parliament than the Government. I do not quite understand the Minister’s concerns. I understand the politics but not necessarily the substance of the argument. She may wish to take the opportunity today to provide a fuller case for the somewhat protective approach adopted by the Government. I turn to the second aspect, that of pre-legislative scrutiny. The noble and learned Lord, Lord Brown, has already touched on this. It is a subject on which I have form. The proposal fits well with the emphasis given to pre-legislative scrutiny in the United Kingdom. I was chairman of the Constitution Committee of your Lordships’ House when it published its report on Parliament and the legislative process. The report stressed the importance of pre-legislative as well as post-legislative scrutiny. The Minister in the inquiry recognised that one might be able to draw on the work of the Joint Committee on Human Rights as an example of the approach that might be taken. On the face of it, the argument for some degree of pre-legislative scrutiny to be undertaken by the agency is compelling. However, in her response to the report the Minister stressed that the principal role of the agency should be in respect of the implementation of legislation, and that the agency would in any event be limited by the treaties on what it could do by way of scrutinising legislative proposals. There would also be the problem of overload if it were to have responsibility for checking all legislative proposals. There is a distinction to be drawn between having a formal capacity to intervene and report and being empowered to offer advice. That was recognised by the Minister when she appeared before the sub-committee. In her written response to the report, she emphasised that the Government were firmly of the view that the agency should not,"““play a formal pre-legislative scrutiny role””," but she was almost wholly silent on the issue of an informal or advisory role. I say ““almost”” wholly because of the words in parentheses at the end of footnote 7 in her response, where she noted that only the Commission could bring infraction proceedings, ““although””—as she writes—"““the Agency’s reports could be used by the Commission to do so””." That gets to the relevant distinction. There is scope for the agency to produce thematic reports. The agency would be in a position to offer informed and detached advice. I therefore welcome the progress that has been made in negotiations and the changes to Article 4(2) that now appear in the presidency draft of the regulation. Under this provision, the agency will be able to formulate opinions on specific thematic issues at the request of the European Parliament, the Commission, or the Council in relation to Commission legislative proposals under Article 250 of the treaty establishing the European Community. The limitations on the agency in scrutinising the legality of Community law or questioning whether a member state has failed to fulfil an obligation under community law remain. I therefore welcome the change that has been made. It enables the agency to fulfil a worthwhile role and avoids overlapping with the work of the Council of Europe. It is a step in the right direction. As the noble and learned Lord, Lord Brown, said, there are some who will question the need to have another body looking at human rights. We already have the highly valuable work undertaken by the Council of Europe and—the point that I have developed elsewhere—there is more that national parliaments can do. The new body is not necessary for the completion of the single market. Given that, if the agency is to win acceptance, it must add value, and be seen to add value, in protecting human rights. Both aspects of the report that I have emphasised are core to achieving that. I welcome the changes that have been made, although I would have preferred more changes in line with the recommendations proffered by the committee. I commend the committee on what has been achieved. I end as I began. The EU Committee and other committees of the House fulfil an important role in informing and influencing debate. Perhaps they provide a good example of what the proposed agency might aspire to.