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Lisbon Treaty (No. 3)

I will be coming to the question of accession later in my speech. At the moment, I am talking about the Fundamental Rights Agency, which has an obligation to complement the Council of Europe so as to avoid duplication. The Council of Europe's responsibility is to set the standards for human rights—such as those that we see in the convention—to monitor compliance with those standards and to provide a judicial function through the European Court. On the other hand, the European Union has a legislative function and a political function and much better enforcement capabilities. It seems to me, therefore, that the agency's job should be to develop recommendations from the Council of Europe and to implement them in such a way as to ensure that standards are met at EU level. I am pleased that a memorandum of understanding was signed by the EU and the Council of Europe in May last year. I have some doubts about the independence of the FRA, however, and whether it complies with the Paris principles. According to those principles, it should be independent, but, given the way in which the regulations that drew it up were framed, I doubt whether they fully comply with those requirements. Its work is to gather information, analysis and reports and to take an advisory role. It does not have investigative powers or powers of scrutiny, which is a problem. That is a major gap in the agency's work. Scrutiny is not among the activities set out in article 5. The lack of scrutiny of EU legislation for compliance with human rights is one of the big gaps. That process is pretty well missing. I believe that the European Scrutiny Committee made a recommendation about this, as did the Committee in the Lords in 2006. I suppose I am advocating something similar to part of the role of my own Committee, which scrutinises domestic legislation for its compliance with human rights standards. It is said that the Commission's job is to ensure compliance, but that raises the issue of who monitors the Commission's work, a point raised by the hon. Member for Beaconsfield (Mr. Grieve). Realistically, that should be the role of the Fundamental Rights Agency, although it does not yet have it. Nor, I suspect, does it have the relevant expertise. It does not have the indispensable legal advisers that my Committee has, nor a partner equivalent to ours—the Ministry of Justice—that has an overarching responsibility to ensure compliance and to co-ordinate across government. Ultimately, that should be part of the presidency's job. Human rights scrutiny should be done at the earliest possible stage of European legislation—long before it reaches member state Parliaments, where any such scrutiny will be cursory at most. My Committee does not have the resources to scrutinise European legislation properly for the purposes of human rights; as it stands, we are pretty stretched doing our domestic job. That important aspect should be addressed. As I mentioned, the Fundamental Rights Agency is a first-pillar organisation, although originally it was intended to be a third-pillar one. The Lisbon treaty, of course, abolishes all references to pillars, but regulations for the agency remain first-pillar arrangements, although under article 31 there are provisions for review. It seems to me that in practice it would be impossible for the agency to do its job effectively if it were simply a first-pillar organisation. For example, to monitor and scrutinise effective action against people trafficking involves the full range of the three former pillars: not only European institutions, but police, justice and crime—and, I suppose, foreign affairs, given the issue of source countries. If we are to enforce on the issue of people trafficking, we need to recognise that. The work programme of the Fundamental Rights Agency is interesting. Many British universities have also been involved in its work. The survey on discrimination against and victimisation of migrants is similar to the British crime survey. I am pleased to see that my old university, Warwick law school, is working on good practice in ethnic profiling by police and border forces, and I am sure it will produce an excellent report. As a result, there is analysis of how migrants are treated by the media. I wish the school luck on that; my Committee did some work on that issue and found it difficult. Edinburgh and Glasgow universities are supporting work on pathways to violent radicalisation, although I think it potentially rather simplistic. There is also work on homophobia and the protection of children's rights in the light of the new rights in the treaty—objective indicators are being considered to measure progress in that respect. There is also holocaust education, on which we have a good record. Earlier, the issue of EU accession to the European convention on human rights arose. It arose because of a 1994 European Court of Justice decision that the European Union could not accede. The Lisbon treaty, of course, provides for that mechanism. The real problem at the moment is getting the Council of Europe to agree—that requires unanimity on its part. All the countries involved have now ratified, save Russia, which I hope will get around to doing so before too long. The risk of the European Court of Justice and the European Court of Human Rights developing divergent views on similar issues has been raised. It is important to recognise that those who advocate that line accept, effectively, that the charter and the European convention effectively deal with the same sort of issues—otherwise, the risk would not even be discussed. The answer is to look at the position of the ECJ as an EU institution. If the EU accedes to the European convention, it does so with all its institutions, including the ECJ. Effectively, therefore, the ECJ itself, as an EU institution, would become subordinate to the convention and the rulings of the ECHR. It would have to comply with views expressed by the European Court of Human Rights as arbiter of the convention. The circle is easily and properly squared by simply looking at the status of the different institutions that would follow from that. I am pleased that the charter incorporates children's rights into the treaty under chapter III, which covers equality. It is a pity that that will not apply in the UK, because that might help us to deal with the reservation that the UK has expressed as regards the convention on the rights of the child in relation to immigration matters, which is now under review by the Government. I hope that we do not have to rely on the charter to resolve that. Several issues arise in relation to the protocol. Nothing in the charter creates new justiciable rights, partly because of subsidiarity and partly because the solidarity heads are not rights as such but are more by way of principles. Even if they were rights, it is possible in the long term that the ECJ might make them enforceable. The protocol therefore becomes belt-and-braces protection. Having looked at the terms of the charter, that does not particularly worry me. The charter is an excellent document that sets out a whole series of excellent rights. It should inform our own future debates on a British Bill of Rights, which would, I hope, include most of the things that are set out in the charter, including the social, political and economic rights. That would be a huge step forward for our society and our democracy. I rather regret the reservation of the UK's position on the protocol. This is a very progressive document. We have nothing to fear from it and there would be an awful lot to be gained if it applied in the UK.