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Fundamental Rights Agency (EUC Report)

My Lords, I begin by saying to the noble Lord, Lord Howard of Rising, that on the basis of that speech there is nothing unequal about us. I congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on introducing the debate. I have looked forward to it because, as the noble and learned Lord knows, I spent a large amount of my time in work in the European Union on this issue. Indeed, I remember with great affection appearing before the noble and learned Lord’s committee for what I thought was going to be 45 minutes which, I think, turned into two and a half hours—a very enjoyable two and a half hours. I am grateful to the noble and learned Lord for bringing this matter forward. Although he began by saying that human rights may have a poor press, I hope that your Lordships’ House can agree that human rights are fundamental to the way in which we wish to live in our society and of which we should be extraordinarily proud in terms of the Human Rights Act. The noble Lord, Lord Howard of Rising, quite rightly indicated that the fundamental rights agency and the gender equality institute have been the subject of criticism. The difficulty in working with the European Parliament, the Council of Ministers and, indeed, with your Lordships’ House is that criticisms vary. We have either gone too far, not far enough or we should have had two institutes or one. We need to consider carefully whether in both cases we have organisations worthy of funding and whether we give them power in the third pillar. There are as many views as there are Members of your Lordships’ House. That is one of the interesting and enjoyable parts of trying to discover what the UK position should be. The noble Lord, Lord Lester, set me off on my Hans Christian Andersen days which, for me, will always be Danny Kaye. Noble Lords who remember the film will know that there is a great song in it which begins, ““The king is in the altogether””, which will be with me for the rest of this debate. I love the idea of the noble Lord, Lord Lester, being the little child in that context. I am not sure I quite agree with the analogy but, none the less, it is important. I understand the point he is trying to make with the fairy-tale that he so kindly gave us today. I want to start by saying a couple of things about how we work in the European Union in the context of this dossier. Noble Lords will know that this is an important dossier in that it is a unanimity dossier within the Council of Ministers. The European Parliament has played a very important role in deliberating on how the fundamental rights agency, which I know best in this context, should work. I pay tribute to Kinga Gál, a rapporteur in the LIBE Committee in the European Parliament, who sought to try to bring together disparate views in the European Parliament as well as to formulate sensible propositions. Noble Lords may know that the commissioner for justice and home affairs issues, Franco Frattini, has been very keen to see the fundamental rights agency as part of the balancing between the work we have to do in order to tackle issues of serious and organised crime and terrorism on the one hand, which lead to our need to share information and to think strategically across the 25 nations about how we deal with those issues, and to ensure that people’s fundamental rights are not disturbed by having the agency. So, he would always describe it as part of the balancing act that he is trying to maintain on these issues. It is worth saying that the UK also has a balancing act to perform, which is to recognise issues where we simply do not have a view that is recognised by other nation states, either with the gender institute through qualified majority voting or through the fundamental rights agency, even where we might be quite isolated, although, because of the unanimity nature of the dossier, in a stronger position. In our work in the European Union we always have to consider very carefully which issues we feel it is right to press. So I agree with a huge amount of what was said and accept entirely some of the criticisms raised. I hope that in the comments I make noble Lords will perhaps understand better why we have not pushed particular issues which, from the point of view of either the committee or individuals, may seem to be fundamental and where on other issues we felt strongly that the UK should have a strong position. The noble and learned Lord, Lord Brown, raised the issue of the third pillar in the fundamental rights agency. I confirm to the noble Lord, Lord Howard of Rising, who quite rightly asked about the legal base on these issues, that there is now consensus among member states to use Article 308 of the treaty establishing the European Community as the legal base for the regulation that establishes the agency. There was a lot of deliberation about the legal base for the agency. When Commissioner Frattini was thinking about involving the European Parliament, he thought about using the legal base in Article 13(2), but discovered that would have affected the work that the agency could do. He therefore decided against it and rather considered how best the Parliament could be involved consultatively. The noble Lord, Lord Howard of Rising, was right to raise the fact that there was quite a lot of discussion about how best we might take that forward. We had to consider the legal basis for third pillar involvement. We were clear that the third pillar remit does not exist. We understand that the equivalent of Article 308 is absolutely clear that there is no basis for third pillar involvement. We are joined in our opposition to that by Germany, Slovakia, Ireland, Malta and Cyprus. Indeed, the working group met this week to consider those issues yet again. I want to make clear that just because we do not have the third pillar remit—and feel strongly that they should not be a third pillar remit because there is no legal basis for it—does not mean that we feel that police and judicial co-operation in criminal matters should have no scrutiny. Far from it. As noble Lords will know, that has been part of our dialogue with the Council of Europe. The Council of Europe has what I consider to be quite effective mechanisms to consider such matters. Of course, we always retain our national law. We are very clear and are joined by other nations in the view that there is no legal basis on which the agency can have a role in the third pillar. That remains a key part of our strategy that we shall pursue in the final discussions on the question of the role of the fundamental rights agency. In that sense, that is not a political decision.