EU Charter of Fundamental Human Rights

David Lidington Excerpts

Thursday 12th July 2012 Commons Chamber

[The Minister for Europe (Mr David Lidington)]

I beg to move,

That this House takes note of European Union Documents No. 18635/11, relating to the Joint Communication to the European Parliament and the Council on Human rights and democracy at the heart of EU external action-towards a more effective approach, together with an unnumbered Explanatory Memorandum dated 7 June 2012, submitted by the Foreign and Commonwealth Office, relating to a draft Council Decision appointing the European Union Special Representative for Human Rights, and the EU Action Plan on Human Rights and Democracy, and No. 8905/12 and Addenda 1 and 2, a Commission Report to the European Parliament and the Council, the European Economic and Social Committee and the Committee of the Regions on the Application of the EU Charter of Fundamental Rights; notes the Commission document on the Progress on Equality Between Women and Men in 2011; endorses the Government’s intention to support the draft Decision on the EU Special Representative for Human Rights; and welcomes the Government’s work to provide for enhanced Member State oversight of the Special Representative’s activities in Articles 10 and 11 of the draft mandate.

The motion deals with a number of European Union documents. As the House will appreciate, the Foreign and Commonwealth Office is responsible for those documents dealing with the EU’s human rights strategy and the proposed appointment of a human rights special representative. The Ministry of Justice is responsible for other documents included in the bundle, and I acknowledge the presence of the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), in that connection.

Two years ago, almost to the day, the House debated the creation of the European External Action Service, an institution set up by the Lisbon treaty. The Government took the view that, whatever opinions the two parties in the coalition had about the creation of the EAS, now that it existed as the creation of the Lisbon treaty, we wanted the new institutional arrangement to complement our own strong commitment to an active British foreign policy and to use the EAS to help to deliver the diplomatic objectives of the United Kingdom. Our judgment is that the EU’s new human rights strategy is an example of how the EAS can be used to complement and amplify the UK’s own human rights policy.

This afternoon, I want to address some of the concerns expressed by the European Scrutiny Committee and others about the implications of the measures before us. I have singled out three matters in particular.

[Oliver Heald (North East Hertfordshire) (Con)]

My right hon. Friend is absolutely right to address the concerns of the Scrutiny Committee, but does he accept that there is some concern in the Council of Europe Parliamentary Assembly, particularly about how the two jurisdictions of the special representative and the human rights commissioner of the Council of Europe will overlap and interweave, whether this will be duplication or a takeover, and whether it all makes sense?

[Mr Lidington]

I completely understand my hon. Friend’s point. I said that I wanted to address the concerns expressed by the European Scrutiny Committee and others.

The three issues I have in mind are: first, the need to maintain the rights of member states to determine their foreign policies and to avoid any scope for competence creep towards the EU institutions; secondly, concerns about the balance of responsibilities between the EU institutions themselves and, in particular, the role of the European Parliament; and thirdly—this goes straight to my hon. Friend’s point—the relationship between the EU special representative on human rights and the work of the Council of Europe, particularly its human rights commissioner.

Let me deal first with the question of competence and the rights of member states to determine their foreign policy. Democratic freedoms, universal human rights and respect for the rule of law are at the heart of British diplomacy and policy. I believe that the new EU human rights strategy and in particular the EU special representative on human rights will help us to deliver our national foreign policy objectives better through the EU, by providing a strong and visible face for its external action on human rights.

The EU’s external human rights policy flows from the common defence and security policy, which will provide the operating framework for the special representative. Declaration 13, annexed to the treaties, provides confirmation that the CFSP does

“not affect the responsibilities of the Member States… for the formulation and conduct of their foreign policy”.

Therefore, the new human rights package will not affect our ability to formulate and conduct our own national foreign policy. Furthermore, decisions at European level on CFSP require unanimous approval by the Council, with agreement by every member state. No EU position on external human rights policy or any other aspect of common foreign and security policy can be agreed without the approval of the British Minister or other representative in the room, and of course the same right of veto applies to every other member state. There is no suggestion in these documents or elsewhere that there should be any change to those arrangements.

The Government’s view remains firmly that the EU must act only where it has the competence to do so under the European Union treaties. We will remain vigilant against any threat of competence creep through the actions of the External Action Service. It is essential that the EAS continues to complement and support, not replace, national diplomatic services. That is why, for example, we have been so resolute on the principle that the EAS should have no front-line role in consular services, which would go beyond the supporting role for member states provided for in the treaties.

So far the EAS has delivered best when it has worked closely with member states and capitalised on the resources of member states and EU institutions. I will quickly highlight what I think are a number of genuine achievements from the past year where the EAS has worked well and, in doing so, has helped to deliver important British foreign policy objectives. First, there was the review of the European neighbourhood policy, which has produced an ambitious framework for the EU’s approach to the emerging democracies of north Africa and the middle east. That is now starting to have a practical impact through structures such as the EU-Tunisia taskforce.

Secondly, the EAS and Baroness Ashton personally have worked closely with the E3 plus 3 to engage Iran over its nuclear programme, and the EU recently agreed to the most far-reaching sanctions ever imposed on any other country, working in that case closely and efficiently with the Governments of the individual member states. Thirdly, the sanctions already in place against the Syrian regime—16 rounds already agreed—are still under consideration and may be strengthened further.

The proposed EU special representative will allow us to deliver more such examples of successful EU external action. The role is granted in article 33 of the treaty on European Union, which provides:

“The Council may, on a proposal from the High Representative …appoint a special representative with a mandate in relation to particular policy issues.”

The way in which the mandate is implemented will be critical, and I am glad that the European Scrutiny Committee noted the United Kingdom’s successful efforts to secure an additional layer of member state oversight of the special representative’s activities, in order to guard against any unwelcome or unwarranted expansion of their responsibilities. Article 11 of the mandate provides that

“the EUSR shall work in coordination with the Member states.”

Article 10 requires that he or she

“shall also report to the competent Council working parties”,

and article 4 states that the Council’s

“Political and Security Committee shall maintain a privileged link with the EUSR”.

The last provision is common to all EUSR mandates. In practice, that “privileged link” means that the special representative will be able to communicate directly with the Council, bringing together the representatives of the 27 member states, rather than having to go through the High Representative or through other structures. The mandate also ensures that the Political and Security Committee will

“provide the EU special representative with strategic guidance and political direction.”

Given those safeguards, I am confident that the United Kingdom is well placed to play a leading part in giving that direction and guidance to the EUSR and in holding the special representative to account for his or her actions.

The appointment of a special representative will in no way affect the United Kingdom’s ability to speak, as now, on its own behalf in international organisations, including the Human Rights Council of the United Nations. As is the case now, the European Union may speak on our behalf only if there is a shared position to which the United Kingdom has signed up, and which requires unanimity. On the basis of those safeguards, I seek the House’s approval for the establishment of the role.

[Jeremy Corbyn (Islington North) (Lab)]

Having attended many meetings of the UN Human Rights Council, I was consistently disappointed when the member state representative said nothing and left it all to the EU representative. I am pleased that increasingly the UK representative speaks independently, particularly about the death penalty, but can the Minister assure the House that we will continue to have an independent voice at the UN Human Rights Council and will resort to the EU representative to speak on our behalf only in a case of absolute unanimity?

--- Later in debate ---

[Mr Lidington]

I can give the hon. Gentleman two assurances. We are members of the UN Human Rights Council in our own right. When there is no unanimously agreed common foreign and security policy position, the United Kingdom’s representative will speak on behalf of the United Kingdom Government’s position. When there is a unanimously agreed CFSP position, normally that will be represented by the European Union’s representative, but member states do speak—particularly if the occasion is sufficiently important—in support of the EU representative’s view, giving extra weight to the views expressed on behalf of all 27 members. It is best left to judge on a case-by-case basis exactly what tactic will be the most effective in delivering the outcome we want, but I take to heart the hon. Gentleman’s point about wanting to hear the vigorous expression of British policy objectives, whether on our own or in support of a unanimously agreed EU position.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I am extremely grateful to my right hon. Friend for giving way in a second debate this afternoon.

If there is not a unanimously agreed position, can the EU representative speak at all, or do they have to remain silent?

[Mr Lidington]

If there is no unanimously agreed position, there is no locus for the EU representative to speak at all; they have a right to express a view only when there is an agreed European Union position. As hon. Members on both sides will probably recall, there have been occasions when, regrettably, European Union member states have split two or three different ways on a particular issue before the Human Rights Council.

[Jacob Rees-Mogg]

Does that apply to the noble Baroness Ashton as well? Can she speak on foreign policy matters only with the consent of the British Government?

[Mr Lidington]

Baroness Ashton is an office holder, in accordance with the treaties, as both vice-president of the Commission and High Representative of the European Union. She can speak out on foreign policy issues in that capacity; what she cannot legitimately do is express a view purporting to be the commonly agreed policy of the European Union, and therefore on behalf of all 27 member states, unless the decision to adopt a common position has been taken by those member states.

In practice, what happens is that a common foreign and security policy position is adopted. An incident may then occur—another outrage in Syria, for example. Nobody quarrels with the idea that Baroness Ashton would comment on that, just as my right hon. Friend the Foreign Secretary would; the test is whether the statements are in line with the foreign policy position that has been unanimously agreed. In my experience, Baroness Ashton has observed very well the requirements of the treaty and the importance of unanimity for a commonly agreed position.

[Mr Edward Leigh (Gainsborough) (Con)]

Is the Minister aware of the widespread concern among Members of the Parliamentary Assembly of the Council of Europe? We already have a perfectly good commissioner for human rights. Given that the Government’s rhetoric is all about avoiding competence creep by the EU and that we already have a perfectly good person doing a perfectly good job on behalf of nation states throughout Europe, we cannot understand why we are going along with the measure. The Minister has to reassure us further that in no way will it go against British national policy.

[Mr Lidington]

I have explained why the measure does not cut across British national policy, but I will come in greater detail to the relationship between the EU special representative and the Council of Europe.

I turn to the action plan. The European Scrutiny Committee noted that it is a comprehensive text and suggested that it constitutes a departure from the approach outlined in the previous joint communication. The High Representative has described human rights as

“a silver thread that runs through everything that we do in external relations.”

That is very much how the Government see human rights, too. In 2010, early in the Government’s life, my right hon. Friend the Foreign Secretary said that

“values are part of our national DNA and will be woven deeply into the decision-making processes of our foreign policy at every stage.”

The action plan is comprehensive, because integrating a human rights perspective across all areas of the EU’s external action is the best way to ensure that the European Union maximises its influence on these issues.

We did not just agree to the action plan on the nod. We conducted a line-by-line assessment of the items, and we are content that what is proposed is in line with our policy objectives and does not pose a risk of competence creep. In addition, the Council has formally agreed that the action plan will fully respect the existing division of competencies. Although it is a comprehensive document, it both builds on the original joint communication and has been examined closely by the Government on precisely the question of competence that concerns my hon. Friend.

[Mr William Cash (Stone) (Con)]

rose—

[Mr Lidington]

I will give way, but I am very conscious that a lot of hon. Members wish to speak.

[Mr Cash]

It is also true that the Minister is at the Dispatch Box and has a responsibility to answer these questions. There are four pages under the headings of outcome, action, timing and responsibility. Is he seriously suggesting that in every single respect, given the general nature of all these things and the fact that the legal consequences will ultimately end up in some court or other, he is right in making such a general assertion?

[Mr Lidington]

Yes, of course the action plan is expressed in general terms, because the intention is that those general principles should be applied to the European Union’s human rights activity across the range of EU dossiers and areas of external policy action.

On the common foreign and security policy—CFSP—the freedom of the EU special representative or the High Representative to express a view and develop a policy on behalf of the EU collectively will depend on whether a CFSP position has been unanimously agreed for a particular country, region or crisis. The action plan describes in general terms how the EU and its High Representative and special representative should determine their priorities for action, but we cannot sit down in July 2012 and write down in detail which countries and crises will be involved and in what manner such work should be undertaken. Foreign Ministers in the Foreign Affairs Council and national representatives in the Political and Security Committee will consider these matters case by case.

The European Parliament saw a role for itself on the CFSP following the Lisbon treaty, and we were equally clear that the CFSP would remain intergovernmental. The High Representative has made a gesture to the Parliament in a non-binding declaration on political accountability, which says that she will seek the views—nothing more than that—of the European Parliament on CFSP matters. As one would expect, the European Parliament has taken a keen interest in the new human rights package. In accordance with article 36 of the treaty on the European Union, the mandate for the special representative provides that he or she

“may be involved in briefing the European Parliament.”

However, such briefings may take place only in a committee or sub-committee configuration and never in plenary debates, in which only the High Representative may participate. This reflects the arrangement, which we firmly support and uphold, that on issues pertaining to the CFSP the High Representative may be replaced in plenary only by a Minister of a member state.

I want to move on to the possible overlap with the Council of Europe, which concerns several Members. I start by acknowledging the important work that right hon. and hon. Members in all parts of the House play as Members of the Parliamentary Assembly of the Council of Europe. I recall the very pleasurable visits that I made to the Parliamentary Assembly during the United Kingdom’s six-month presidency of the Council of Europe. It is clearly important that there be effective, mutually trusting co-ordination between the Council of Europe, particularly its human rights commissioner, and the EU’s new special representative on human rights. That is reflected in the wording of the mandate, which I will describe shortly.

I note that the two roles have distinct responsibilities. The Council of Europe’s human rights commissioner is mandated to promote awareness of and respect for human rights within the member states of the Council of Europe. The EU special representative’s role is different; it is to promote human rights globally as part of the EU’s unanimously agreed CFSP. Both office holders will be involved in work on promoting respect for human rights in states of the Council of Europe that are not EU member states. To avoid any risk of unhelpful overlap and duplication, article 11(3) of the EUSR’s mandate expressly requires him or her to

“liaise and seek complementarity and synergies with other international and regional actors”.

To turn that jargon into English, it means that the special representative should maintain a regular dialogue with the commissioner to avoid duplication. The secretariat of the Council of Europe has expressed no concern to us about the creation of this role. Indeed, subject to proper co-ordination, it welcomes an increased focus on human rights within the EU’s external action.

During the UK’s presidency, I discussed with Secretary-General Jagland the relationship between the Council of Europe and the European Union. I was pleased to learn from him and other senior officials in the Council of Europe that, over the past year or so, there had been a distinct improvement in the quality of liaison and co-operation between the two organisations. There was a feeling, certainly among the secretariat, that there was no longer the pressure from the EU that there had been for its institutions to take over the work of the Council of Europe; rather, efforts were being made on both sides to agree the areas where each was likely to be the most effective actor.

[Mr Christopher Chope (Christchurch) (Con)]

That may be the view of officials at the Council of Europe, but it is certainly not the view of the members of the Parliamentary Assembly. In a debate at the last part-session, members from all political parties and from right across the 47 member states expressed grave concern about the duplication and the additional cost involved in this project. Why are we spending money on this project in an age of austerity?

[Mr Lidington]

The budget for the special representative and his or her office and team has to be found from within the existing budget of the External Action Service. It will therefore have to be found at the expense of other potential items of expenditure. I have no doubt that some people will argue that, given the creation of the role, a bigger budget is needed, as with any EU special representative role, but we do not accept that. We continually resist calls for increases in annual and multi-annual budgets and seek to bear down on the costs of, and to secure better value for money in, individual special representatives’ missions and common security and defence missions more generally. I do not want my hon. Friend to think that this will lead to a vast new bill.

[Michael Connarty (Linlithgow and East Falkirk) (Lab)]

Some members of the Parliamentary Assembly of the Council of Europe have a different view from the hon. Member for Christchurch (Mr Chope). Some of us hope that the fundamental focus of the Council of Europe on human rights might reinfect the body politic of the European Union and add human rights to some of the agreed trade policies that have ignored human rights.

[Mr Lidington]

The hon. Gentleman has made his point for the record.

[Oliver Heald]

My concern is that the Council of Europe includes large and important countries such as Russia and Turkey. At the moment, those countries seem to be taking a constructive approach to the implementation of court judgments, criticisms and so on. There seems to be an improving picture. The Russians recently gave evidence to the committee on legal affairs and human rights about what they are doing. There is a great difference between being criticised and having a constructive approach within an organisation that one is part of and having another organisation that one is not part of shouting from the sidelines. Does my right hon. Friend understand that the 27 lecturing the others is not going to work and that we must avoid it?

[Mr Lidington]

If this is going to work to the benefit of the EU and its member states, it is important that it does not turn into the EU lecturing other countries, as my hon. Friend describes it. However, let us consider the situation in countries that are in the Council of Europe and not the EU. I repeat that a great deal is going on in EU relations with countries beyond Europe that are important but do not touch on the Council of Europe’s responsibilities.

For instance, let us take Ukraine. The problems of human rights there are quite properly being dealt with through Council of Europe mechanisms. In particular, individuals can take specific grievances about alleged abuses of human rights to the European Court of Human Rights and have them tested by judges. However, the European Union has important relationships with Ukraine in its own right. Ukraine is part of the EU’s eastern partnership and has been negotiating with the EU an association agreement and a deepened comprehensive free trade agreement, which include clauses on human rights and political reform.

The special representative for human rights can add value by giving extra coherence and force to aspects of specifically EU external policy that touch upon human rights matters. It is important that the two organisations respect each other’s important and complementary roles. I would be concerned if I thought that the EU had an appetite to take over what the Council of Europe was properly doing, but all I can say is that that is not what I am hearing from senior officials at the Council of Europe or from the High Representative and her senior team.

I turn briefly to the other documents in the bundle, although they are not the direct responsibility of the Foreign and Commonwealth Office. The first is the Commission’s 2011 report on the application of the European Union charter of fundamental rights. The European Scrutiny Committee questioned whether the annual report served as a tool effectively and systematically to monitor the implementation of the charter and how the effective implementation of the charter by member states would be measured in future.

It is important to note that the report is not an enforcement tool. It sets out a number of mechanisms that the EU institutions are developing to review EU legislation as it is drafted, to ensure that the rights and principles listed in the charter are respected. Although the charter is primarily directed at EU institutions and at member states only when they are implementing European law, the Government will consider any Commission proposal on how the actions of member states in that area might also be assessed.

The final text before us is the Commission’s report on progress on equality between women and men. This is the first time that the document has been included with the report on the application of the charter, and the Government consider that the two reports sit well together. The Government believe that the UK has a good story to tell on gender equality. Our priority is to support women in employment, whether through the provision of quality, affordable child care or by providing mentors for aspiring business women. The Commission’s report rightly reflects the fact that progress is being made but warns us against being at all complacent about gender equality.

In working with our EU partners on human rights issues, our objective throughout is to ensure that the EU institutions act to advance the prosperity, security and values of the UK by complementing and supplementing, not replacing, the work of the Foreign and Commonwealth Office and other arms of the UK Government. We consider that a new EU special representative for human rights will help us deliver our national diplomatic objectives through the EU by providing a strong, visible face for European external action on human rights. I therefore seek the House’s approval for the establishment of that role and commend the motion to the House.

[Several hon. Members]

rose—

--- Later in debate ---

[Mr Lidington]

May I first thank all hon. Members who have contributed to the debate? I say to the hon. Member for Linlithgow and East Falkirk (Michael Connarty) that the action plan clearly sets out the fact that part of the special representative’s role will be to act as an advocate for human rights concerns with both the Council, representing the member states, and the EU institutions because, as he will know, the Commission in particular will have a leading role in trade negotiations, for example. The purpose of the framework, with the strategy, the action plan and the special representative, is to ensure that human rights concerns cannot be overlooked or dismissed in any area of the EU’s external activity.

The hon. Member for Wolverhampton North East (Emma Reynolds) asked about Hungary. Our general approach to the Hungarian legal changes has been to support the European Commission in its approach to the Hungarian Government. As she acknowledged, the Hungarian Government altered their proposed media law after conversations with the Commission, and the same was true of their proposed changes to the governance of the Hungarian central bank, which were later amended. I have had a number of conversations about these issues with my Hungarian opposite number over the past 18 months. I will write to the hon. Lady with a little more detail on the matters she raised.

The hon. Member for Islington North (Jeremy Corbyn) asked about the scope of the action plan and the special representative’s role. Article 20 of the action plan relates to gender-based violence, article 14 deals with action against human trafficking, and article 9 covers trade agreements, so these generic issues are within scope. The particular issue of migration that he talked about can be covered in the action plan’s reference to the EU’s development instruments. My one word of caution is that this particular set of documents comes within the framework of the common foreign and security policy, whereas some of the questions he asked are really about the treatment by EU member states of migrant and minority populations within their own borders, and that is outwith the scope of the special representative, whose responsibilities pertain to the EU’s external policy only. It is probably best if I do not talk about the Russian cases he mentioned, because I have not read the judgments or been able to take a considered view on them. His point about human rights defenders was well made. Again, standing up for human rights defenders is listed explicitly as one of the items in the action programme.

I will write to my hon. Friend the Member for East Dunbartonshire (Jo Swinson) on some of the detailed points she made, particularly those about the death penalty. As she said, the two issues that concern her—women’s rights and freedom of religion—form an important part of the action plan and will be within the scope of the special representative’s work. With regard to the arms trade treaty, the United Kingdom remains firmly of the view that we want an ATT that contains strong human rights and international humanitarian law provisions, and that is what British Ministers and officials will be pressing for in the forthcoming round of negotiations.

My hon. Friend the Member for Stone (Mr Cash) raised the serious question of how we get the balance right between an acceptance that people everywhere are entitled to respect, dignity and what we would term human rights and the right of electors in a democracy to express their will and have it carried into effect by those whom they choose to govern them. That takes us a long way beyond the scope of the motion before us, but they are very important and profound questions with which countries throughout the world are grappling, and we accept that in the national sphere there should be constraints, legislative or constitutional, on the untrammelled freedom of a majority to act, which may be temporary, when that action might unfairly or unreasonably damage the interests of minorities.

The debate to which my hon. Friend was contributing was about the extent to which that principle should be adopted internationally, too, and I would just say this with regard to the EU. The EU is not just an economic club; it has always been a club for democracies. Spain could not get in until it established democracy, and the EU accession process is the most important driver of democratic, political and rule of law reform in eastern and central Europe today. I ask that the House support the motion before us.

Question put and agreed to.

Resolved,

That this House takes note of European Union Documents No. 18635/11, relating to the Joint Communication to the European Parliament and the Council on Human rights and democracy at the heart of EU external action-towards a more effective approach, together with an unnumbered Explanatory Memorandum dated 7 June 2012, submitted by the Foreign and Commonwealth Office, relating to a draft Council Decision appointing the European Union Special Representative for Human Rights, and the EU Action Plan on Human Rights and Democracy, and No. 8905/12 and Addenda 1 and 2, a Commission Report to the European Parliament and the Council, the European Economic and Social Committee and the Committee of the Regions on the Application of the EU Charter of Fundamental Rights; notes the Commission document on the Progress on Equality Between Women and Men in 2011; endorses the Government’s intention to support the draft Decision on the EU Special Representative for Human Rights; and welcomes the Government’s work to provide for enhanced Member State oversight of the Special Representative’s activities in Articles 10 and 11 of the draft mandate.