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Creation of a Fundamental Rights Agency

14th March 2005

We are considering a proposal from the European Commission regarding the creation of a European Fundamental Rights Agency, building upon the European Monitoring Centre on Racism and Xenophobia.

We are considering a proposal from the European Commission regarding the creation of a European Fundamental Rights Agency, building upon the European Monitoring Centre on Racism and Xenophobia. The proposal was published on 25 October 2005 and suggested various models regarding the proposed Agency's remit, structure and tasks. The Government submitted its official response to the proposal on 10 January 2005 and the matter was the subject of an Adjournment Debate at Westminster Hall on 2 February 2005. As was made clear on that occasion by my hon. Friend the member for Altrincham & Sale West, the Opposition remains strongly opposed to the creation of a Fundamental Rights Agency.

First, [as has been clearly demonstrated through questions this afternoon,] there are already numerous bodies carrying out the activities with which the Agency would be entrusted. Indeed, there is not enough time to list the number of national, European, International, regional and non-governmental organisations that work in the human rights field . I have here a list of hundreds of such organisations that have responded to the Commission's proposals. -Read a few- I could go on...

Needless to say, at a European level, we have not only the Centre on Racism and Xenophobia, but also the Human Rights Commissioner, the Council of Europe, the network of independent experts, the European Co-ordinating Group of National Human Rights Institutions, the European Commission against Racism and Intolerance and a recently proposed European Gender Institute . Why does Europe feel it needs yet another body to monitor its treatment of human rights? Does it have so little confidence in the internal checks and balances of its institutions? In fact, modern Europe generally prides itself on its excellent human rights record and yet it expects British taxpayers to pay for yet another organisation to repeat the work that will already have been carried out by countless other bodies.

Secondly, despite the fact that the Government finds it "highly appropriate that the proposal for a FRA builds upon the foundations established by the EUMC" , the Conservative Opposition believes it is not a sound basis on which to build an organisation to monitor human rights. Indeed, an external evaluation of the Centre concluded that "the Centre cannot be said to have represented value for money" that "improvements in quality and value are... necessary" . This underlines the likelihood of a Fundamental Rights Agency, building upon the Centre's model, swallowing up the British taxpayers' money without delivering any results.

Further, it is important to appreciate that this Agency is technically meant to be independent of the European institutions, even though the EU intends to fund it in its entirety. We doubt that the Centre, or any organisation built upon its model, would possess the necessary quality of independence. Indeed, the Centre has a poor record of transparency, independence and accountability. An external evaluation report found that the Centre has some confusion as to its objectives, giving too much weight to establishing a profile as a campaigning organisation . This is particularly worrying given that the Centre currently has a mandate to consider the acts of individuals between themselves. In short, a political European body should not be able to dictate to British people how they should act through some kind of European snoopers charter.

During the Adjournment Debate of 2 February 2005, the Minister stated that "the monitoring centre has produced important reports on anti-Semitism". It is true that the Centre produced a 112-page study on anti-Semitism in 2002, but what the Minister failed to report was that that report was never released. A source familiar with the report stated that "the decision not to publish was a political decision" . Apparently, the Centre was not comfortable with the conclusions that Muslims and pro-Palestinian groups were behind many of the anti-Semitic incidents examined.

How could an Agency based on the Centre provide a valuable contribution to human rights if that Centre shies away from some of the issues central to human rights transgressions? Just because an issue is sensitive does not justify hiding certain conclusions from the public, especially when the public has paid for the report. No matter what the result, the Centre should have published that report, as any truly independent body would have done. How can we move forwards in the field of human rights if we allow political bodies to shield us from meaningful debate on real issues? We cannot. And, in any case, whose politics should this Centre follow in any event? It is for these reasons that we believe that this proposal would not work, not only in theory, but in also practice.

Finally, the Conservative Opposition does not support the creation of a Fundamental Rights Agency as it is beyond the EU's mandate to create such a general human rights monitoring body. We believe it is entirely inappropriate for continental bureaucrats to monitor such sensitive national issues. And yet this is typical of the underhand spread of competences at the EU level, which the Government refuses to recognise and control. As stated by the Labour member for Hull, North at the recent Adjournment Debate on this matter, this would amount to the "federalising creeping encroachment by the Commission in the field of human rights" and be "tantamount to giving the EU a general human rights competence" . In effect, it is typical of Brussels' self-perpetuating bureaucracy, answerable to no one and paid for by the tax payer. To give insult to injury, not only would this proposal allow Europe to gnaw further into our national sovereignty, it would also lead to the institutionalisation of the cult of political correctness at a European level.

It is for this reason that, were the Agency unfortunately to go ahead, the Conservative Opposition would only, in the alternative, support the narrow internal mandate for the Agency, which would limit its remit to monitoring issues within the ambit of EU law. The Opposition agrees with the Government that to act outside the scope of European law would be wholly unacceptable. There would be no legal basis for the Agency to have such a wide remit and it would be entirely contrary to the principle of subsidiarity. Indeed, it would be the first embodiment of a federal social policy.

However, we also do not believe that the Agency should have competence to monitor national implementing legislation. We note that the Joint Committee on Human Rights is currently doing a fair job monitoring domestic legislation against human rights that have been incorporated into British law following proper Parliamentary procedures. Why should British tax-payers pay for another, unaccountable non-domestic body with its own political agenda to ensure compliance with "fundamental rights" that have not even entered into our rule book?

The Government's policy in this regard is unclear at best. On the one hand, its explanatory notes to the Commission's proposal stated that it is "doubtful that comprehensive data collection in this regard is necessary or practicable" and that "it may be argued that there is already sufficient human rights law and monitoring at MS level" . On the other hand, the Government's official response to the European Commission proposed that national implementing legislation be included within the Agency's remit. Perhaps the Minister can clarify for the Committee whether there has been such a dramatic change in policy and, if so, the reasons behind it.

In line with its internal remit, we believe that the Agency should not have any mandate regarding third countries. Generally, all the responses to the Commission's proposals objected to such a wide remit. However, our Government's response seems to indicate that the Agency should "assist civil society [for example of candidate countries] in establishing NGO's and other networks at a national level" and "provide assistance to third countries at their request" . But surely it would be entirely unacceptable for British tax payers to have to foot the bill for the requests of third party countries who recognise Europe's soft touch in spending its budget on non-EU [never mind British] matters.

Again, the Government's policy regarding the application to third party countries is rather confused. On the one hand, as the Minister clearly stated, during the debate of 2 February, the Government does "not believe that the fundamental rights agency should play a policy or operational role in human rights issues in third countries" but on the other hand they do indeed seem to be supporting the Agency in giving advice and assistance to third party non-EU countries. I hope that the Minister will clarify this issue during today's debate.

However, even if the narrower, internal mandate were preserved, we would suggest that what my hon. Friend the member for Altrincham & Sale West described as "institutional mission creep" would spread into British domestic law and matters within our national competence.

First, as is increasingly clear, EU law affects, in some way or another, all areas of British life. It seems that it would not only be the actual European legislation that could be monitored, but the very subject area to which it relates. For example, the Government proposed that the Agency could usefully consider fundamental rights in the area of Employment. As we are all aware, some aspects of Employment law and practice are within the ambit of European law, some remain within domestic competence. But how in practice, I ask, could the Agency usefully study those areas of Employment covered by EU law without straying into those areas exclusively maintained by our national institutions?

I would suggest that this may be impossible in practice and, even if achieved, would produce incomplete, misleading reports that only take account of an imperfect snapshot of limited factors that affect employment issues. As such, the remit of the Agency would inevitable extend beyond the context of EU law. This scenario is not confined to Employment law. Despite the Opposition's efforts to retain exclusively domestic influence in various areas, it is difficult to think of one subject matter that is not touched in some way by Brussels' texts. And it is feared that this pattern will only continue so long as the present Government is in power.

Secondly, the Agency's proposed mandate is unacceptably vague and would inevitably allow the Agency's competences to seep into areas outside of the European institutions' actions. The Government, in its response to the European Commission, merely states that the Agency should be "focused" on the internal workings of the Union, which allows for any number of peripheral activities that could be external. Furthermore, in the same response, it referred to "social and legal policy " and stated that the Agency's work "should be decided upon according to where the need for greater information and awareness of fundamental rights is greatest" . How could the Government ensure that this would not include areas outside of the competence of the EU? This is crucial, particularly when many of the areas that are the most controversial from the point of view of human rights, such as justice and home affairs, remain outside the ambit of EU law.

Even more worrying, the Government, also in its response to the European Commission, suggests using the Charter of Fundamental Rights as a starting point. This purposefully wide-reaching and flexible document contains a statement of rights that touch every area of society. Indeed, the Commission itself stated that "a reference to the Charter would give the Agency an extremely broad field of action" . However, it is not this extensive reach that would be given to the Agency were the Charter included that concerns the Opposition most at this early stage of debate. It is the fact that any reference to the Charter in the establishment of a European Fundamental Rights Agency would effectively introduce an enforcement procedure for the Charter by the back door, undermining the referendum that the Government has promised us, albeit belatedly.

The Opposition is not alone with these concerns. In the European Scrutiny Committee's 1st Report of 1 December 2004, it stated "we are also concerned about the ambiguous references to the Charter of Fundamental Human Rights, and we doubt that it should be used in the way suggested to determine the competence of the Agency unless and until it comes into legal force". The UK Joint Committee on Human Rights went further in its response to the European Commission, concluding that the unclear status of the Charter should perhaps prohibit the very creation of the Agency. Referring to the legal status of the Charter and the possible accession of the Union to the European Convention of Human Rights, the Committee stated that "there is a case for the establishment of an Agency, and consideration of its precise functions and powers, to be postponed until these matters have been clarified or decided."

The Conservative Opposition believes that consideration of the Fundamental Rights Agency is premature, not least because it undermines the British people's right to vote on the European Constitution in the upcoming referendum. When the Charter was first drafted in 2000, the Government promised that it would not become legally binding. It then promised the British public that it would not affect national laws. Now, not only do we face the possibility of it entering the statute books through the constitution, but, without even the option for the British public to vote, the Government is suggesting that it may take effect by the back door in the guise of this Fundamental Rights Agency. This is typical of the Government's empty promises, underhand back tracking and lack of respect for the British people and the constitution of our country.

It is for these reasons that the official Opposition does not support the creation of a European Fundamental Rights Agency. If an Agency must go ahead, and we must choose the lesser of two evils, the Opposition would only support an Agency with the narrowest remit, acting exclusively within the ambit of the internal work of the European institutions.

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