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Fundamental Rights Agency (EUC Report)

My Lords, I congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on his maiden speech. The clarity with which he presented the report shows that he will chair Sub-Committee E with the same distinction as that of his predecessors who listened to his speech. He has always been a person of perceptive judgment, and he said that he would not be surprised if there were some who found a trace of scepticism about this report. I would not want to disappoint him; he is right, in my case in particular. Why is that the case, when I come from a background, or at least from chambers, that are devoted to human rights principles? It is that very concern about human rights that teaches me in particular to be very careful about any new institutions that affect the public perception of human rights. They are of fundamental importance, and if we are to create agencies designed to safeguard them, those agencies must be given a clear remit, a proper scope for inquiry with staff and resources, and the ability to influence the public, whose human rights are being affected. I am afraid that I do not find this proposal for a fundamental rights agency meeting any of those requirements. That is why, while I accept the political reality that it will take place, I remain sceptical. I do not favour the creation of bodies as acts of symbolism, generally speaking. Even in Sub-Committee E, or the sub-committee that looked into gender equality, when intelligent, considered and detailed analysis continues, meeting after meeting, it can produce a state of affairs in which intellectual generosity adds to proposals an importance they do not really deserve. I shall ask the questions which led me to make that comment. What is the fundamental rights agency supposed to do? What are the fundamental rights it is assigned to safeguard? Would it work? First, what is the agency supposed to do? In our national consideration of human rights and an agency to safeguard them, we in Parliament have in the past few years debated at length whether we should have an agency, a commission or a commissioner, because we consider it not only such an important but such a complex question. There are three points we usually have in mind to illustrate that complexity. First, such a body or person should be able to review the observance of human rights in our society. Secondly, there should be a check on legislation with regard to its human rights compliance. Finally, perhaps, and very controversially, there should be a body that can investigate either serial breaches of human rights within the country, which are fortunately very rare, or egregious cases of particular breaches of human rights. We thought that that required really serious debate. We have not yet reached a national consensus on how to safeguard our human rights within the United Kingdom. But we have two means of seeking to do so within the law: one is the European convention, described in this report as the seminal instrument; secondly, we have our common law principles. The combination of the two usually gives reasonable protection. If that is the situation domestically, what happens when we turn to Europe with regard to the proposal? The agency will have a review function of some kind; it will not check legislation except under some fuzzy notion of quasi-pre-legislative scrutiny, and it certainly will not be able to introduce any investigative procedures of individual or serial cases of breaches of human rights. So we are left with the review function. What kind of review, designed to achieve what, is going to be effective at the European level? I cannot imagine that it is supposed that this agency will be a surrogate to investigate national compliance of human rights. Rather, it will be there to determine whether European legislation has been applied so as to comply with human rights. That is a limited function, but it should be clearly identified. At the moment, to the question of what the agency is supposed to do, the answer appears to be, ““We will have to wait and see””. Next, what are the fundamental rights that the agency is supposed to safeguard? We already have the European convention applied in every member of the Union. We already have the Council of Europe and its attempts to ensure compliance with the convention, with the added role of the Secretary-General to make inquiries as he thinks appropriate. So what else will this agency safeguard? To the best of my knowledge, the phrase ““fundamental rights”” does not figure in British jurisprudence. We talk about human rights but not fundamental rights in a legal sense. So I ask myself: what are they? They are convention rights and perhaps certain fundamental aspects of some international conventions, but I am not so sure that they are rights under the Charter of Fundamental Rights. It reproduces to a great extent the convention, but it also has a chapter, or chapters, dealing with economic and social rights, which we in our society have not yet accepted as being fundamental rights—certainly not by legislation and, in my view, not by general public debate. So in what way will this agency safeguard rights not yet recognised in our country or in many European countries? Only three or four years ago, my noble and learned friend Lord Hope, as chairman of the committee, followed by my noble and learned friend Lord Scott of Foscote, produced reports about this charter and its future status. In the sixth report in 2002–03, it was said by the Minister, my noble friend Lady Scotland, that it gave no new rights, no new jurisdiction and no new competence. The horizontal provisions which we insisted on being inserted in it were designed to ensure that no one in this country—or, so far as we were concerned, in Europe—could say that a breach of the charter would produce a remedy. That was our position and, so far as I am aware, it remains our position. In those circumstances, what are these rights that the agency will protect, above and beyond convention rights? The noble Baroness, Lady Thomas, must forgive me for not spending time on the gender equality institute, but I am sure that if I paid it adequate attention, the line of my critique would be much the same as the one I have just gone through. At the very least, I would conclude with the question: two agencies? Why not one? The report talks about a proliferation of useless agencies. I would not want to be so unkind as to use the word ““useless”” but certainly I would object to a proliferation of agencies in terms of competence, efficiency and cost. I shall close on the important issue of rights. If the agency starts to act in respect of rights not yet recognised by us as rights that give competence to courts and Parliament, how can we endow it to Europe and one of its agencies? My last question is: will it work? I propose to the Minister what I might call the ““herbaceous”” approach to this matter: take it slow, take it carefully and do not spend a lot of money on it until we find out where it might go—in the pragmatic Anglo-Saxon expectation that it might not get anywhere. I am making a quip about something serious, but if we are serious about protecting fundamental rights in the European context and an agency is required, let us have a proper agency and a proper remit, properly funded and properly supported by the peoples of Europe and not by those in Brussels. Your Lordships have listened to the words of neither a Europhobe nor a Europhile but, I hope, a Eurorealist.