Council of Europe (UK Chairmanship)

Robert Walter Excerpts

Thursday 27th October 2011 Commons Chamber

[Mr Lidington]

Ambitions must sometimes be tempered by the need to obtain the necessary consensus. In the context of getting 46 other countries to agree, the freeze that I talked about is a pretty good outcome. Further encouragement is that the combination of the freeze in the Council of Europe’s budget and the recalculation of the relative contributions of member states to that budget means that the United Kingdom will pay a smaller proportion in 2012 than we did in 2011. That is a good outcome of our negotiations.

[Mr Robert Walter (North Dorset) (Con)]

Discussions on the budget take place in Strasbourg, and 27 of the 47 member states are members of the European Union. Those 27 member states are sitting idly by while the Fundamental Rights Agency, which was established in Vienna and has some spurious objectives, increases its budget for allegedly doing a human rights job on behalf of the 27 states.

[Mr Lidington]

My hon. Friend, who is the leader of the United Kingdom delegation to the Parliamentary Assembly of the Council of Europe, makes his point cogently. He tempts me on to a much bigger debate about European Union expenditure, but I will confine myself to the matter before us.

The Government take the need for budgetary control over European Union agencies very seriously indeed. The growth of such expenditure and the proliferation of agencies within the European Union have been overlooked for too long. We have been making strong representations to the Commission about that, and have sought to build alliances with other EU member states to secure the sort of reform and budgetary discipline that my hon. Friend rightly wants.

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[Mr Robert Walter (North Dorset) (Con)]

As the Minister for Europe said in his opening remarks, this is an interesting week in the House of Commons when we have two debates on Europe. If I may say so, it is good that we are debating Europe, and not necessarily the European Union, today, although I will touch on the relationship between the Council of Europe and the European Union.

As we have already heard, the Council of Europe dates back to 1949 and is very much dedicated to democracy, human rights and the rule of law. We can be proud to have been one of its founding fathers. It now runs to 47 member states across the continent of Europe. The only states that are not members are Belarus, Kosovo and Vatican City—which I understand is not yet a democracy.

[Mr Leigh]

Nor should it ever be. [Laughter.]

[Mr Walter]

As the hon. Member for Wolverhampton North East (Emma Reynolds) pointed out, the fact that there are 47 member states means that it will be 23 years before we get the chairmanship of the Committee of Ministers again. It is therefore very important that we make good use of our six months in the chairmanship that starts in a week or so.

This House, as has been pointed out, is represented in the Parliamentary Assembly of the Council of Europe. Eighteen Members from both Houses of Parliament serve as full members of the Parliamentary Assembly and a further 18 stand ready as substitutes.

[Jim Sheridan]

Notwithstanding the hon. Gentleman’s enthusiasm for Europe, does he accept that his party’s delegation is not made up of the most enthusiastic people on European matters? Hopefully, after the British chairmanship, we will have a more enlightened delegation of Government Members to the Council of Europe.

[Mr Walter]

I thank the hon. Gentleman for his intervention, but I think he will find that more members of the delegation are present on my side of the House than on his, where there are only four. The delegates from my party play an active role in the proceedings of the Parliamentary Assembly, not least my hon. Friend the Member for Christchurch (Mr Chope), who chairs the committee on migration, refugees and population.

One of the powers of the Parliamentary Assembly is to elect judges to the European Court of Human Rights. I have often heard statements in the British press, and occasionally from colleagues, that we should not be subject to the judgments of unelected and unaccountable judges. Well, we do not have any elected judges in this country, but we do have an elected British judge who serves on the European Court of Human Rights.

Perhaps I may correct one other myth. Often we are told that Europe has acquired a flag and an anthem. Those are not the flag and the anthem of the European Union. They were adopted as far back as 1955 by the Council of Europe. Just like Liverpool football club, which also has a flag and an anthem, the Council of Europe has not yet become a nation state.

I want to deal with the United Kingdom agenda and one important aspect of it in particular. During our chairmanship of the Committee of Ministers, an important ongoing issue that may make some progress is the accession of the European Union to the European convention on human rights. The question of European Union accession engenders mixed responses. Among the non-EU members of the Council of Europe, it is considered to be a good thing. They wonder why the institutions of the European Union should not be covered by the European convention on human rights and why the European Court of Human Rights should not have jurisdiction over its institutions. In that spirit, I believe that we should take this matter forward. My concern is about the manner of the participation of the European Union.

[Mr James Clappison (Hertsmere) (Con)]

I pay tribute to my hon. Friend for the conscientious and diligent way in which he has led the British delegation to the Council of Europe. I agree with the remarks with which he has prefaced his comments on the accession of the European Union. Does he agree, none the less, that we would all be the losers, in particular the non-EU member states in the Council of Europe, if the accession of the EU resulted in it appearing that there were two classes of members in the Council of Europe: EU member states and non-EU member states?

[Mr Walter]

I agree entirely with my hon. Friend. I will come on to say why I believe that there could be dangerous developments on this issue, particularly in relation to the Committee of Ministers, of which the United Kingdom is about to take the chair, and its voting procedures when European Union matters are under consideration. At the Dispatch Box earlier today, my right hon. Friend the Chancellor of the Exchequer said, in relation to the eurozone countries, that it was against his basic view that there should be any form of caucusing within the Council of Ministers. I think that that is absolutely right.

I remind my right hon. Friend the Minister for Europe that when he issued his statement yesterday on the UK agenda for the Council of Europe, he also issued a written ministerial statement on voting by European Union member states in multilateral organisations. The EU, of course, is not a member of the Council of Europe at the moment, but it aspires to be one. I therefore raise a concern that has been raised not only by EU member states, but more particularly by non-EU member states. If there was a judgment in the European Court of Human Rights against an EU member state, would the EU member states in the Committee of Ministers, when it came to enforcing that judgment, vote as a bloc or would they do what they do today, which is to decide individually how the judgment is to be implemented?

[Sandra Osborne]

I, too, pay tribute to the fantastic job that the hon. Gentleman does as the leader of the delegation. Does he agree that unless the EU is subject to the same rules as the countries, some non-EU member states may use that as an excuse not to carry out their obligations?

[Mr Walter]

I think that the hon. Lady is right. She is making the point for me that we must be seen to be fair and even-handed in the way we enforce judgments. That might become even more of a problem.

This issue is already taken account of in the draft of the accession of the EU. I am afraid that the Lisbon treaty is quoted in aid on this matter. If there was a judgment against an institution of the European Union, such as the Commission, the European Court of Justice or the European Central Bank, the 27 EU member states—or 28 as there will be by the time this is implemented, with the accession of Croatia—would be obliged under the Lisbon treaty to vote as a bloc. That brings into question the whole history of fairness and even-handedness in the Committee of Ministers.

The reason given for that is that if there was a judgment against the EU, it would be up to the 27 EU member states to implement that judgment. They therefore have to act as one and as a party. That is fine, but it sounds rather like they will be judge, jury and executioner. We have to question seriously how we will take that matter forward. I would be interested to hear the Minister’s response to that in his summing up.

The next point may sound rather technical, but it goes back to my right hon. Friend the Chancellor’s comment earlier that we are developing a situation in which there will be European Union mechanisms and institutions such as the European financial stability facility and the European Central Bank that involves not all 27 member states but only the 17 eurozone members, If there was a judgment against one of those entities in the European Court of Human Rights, would we vote as 27 member states or would the 17 vote together? Would the 10 non-eurozone members be let off the obligation in the Lisbon treaty to vote as one? I would again be interested to hear the Minister’s response on that.

[Mr Gale]

It gets a bit worse than that. There is a thing called the transfrontier broadcasting directive, which is a European Union instrument. There is also a thing called the transfrontier broadcasting convention, which is a Council of Europe convention that preceded the directive. The convention needs updating and the Council of Europe was in the process of doing so intelligently and in line with technical developments. The European Commissioner responsible for broadcasting has told the Council of Europe and its 47 members, many of which are not members of the European Union, as my hon. Friend has pointed out, that we cannot discuss the matter. What right does the European Union have to say to the Council of Europe—the greater body—that it can or cannot discuss something?

[Mr Walter]

My hon. Friend makes a very significant point about the sovereignty of member states, whether they be members of the European Union or of the Council of Europe. I believe that the sovereignty of the 47 member states of the Council of Europe should be absolute in the case of a Council of Europe convention.

[Sir Alan Meale]

Like the hon. Gentleman’s colleagues, I pay tribute to him for his work at the Council of Europe over many years. Members of all parties will agree that he does a fine job. I apologise, but I will have to leave the debate shortly to chair the sitting in Westminster Hall.

On the hon. Gentleman’s point about the sovereignty of nations, what about Turkey? It has refused to accept the outcome of the Louzides case on the confiscation of property—it has paid up, but it has never accepted it. What about its current threat that if Cyprus is given the presidency of the Council of Ministers, it will leave the Council of Europe and not pursue any path towards entry into the European Union?

[Mr Walter]

I think the hon. Gentleman knows that I am an avowed supporter of Turkish membership of the European Union, but that does not mean that I will in any way make excuses for the Turkish Government’s non-compliance with their international obligations. I also regret the Turkish Prime Minister’s statement that Turkey would not participate in any discussions with the EU should Cyprus take on the presidency of the Council of Ministers. That is a wrong decision, as I have said to many Turkish colleagues.

To return to the question of EU accession, I wish to refer for a moment to the role of the European Parliament. It has been conceded that when it comes to the question of the election of judges, the European Parliament will have the same rights as the largest member states. We are one of those five largest member states. However, the draft arrangements go on to give the European Parliament special treatment, which I think is unjustified. It will have an ex officio place on the sub-committee that interviews the candidates for the post of judge in the European Court of Human Rights. As the leader of one of the other large delegations, I ask why I cannot appoint an ex officio member to that sub-committee on the basis that I should have the same voting rights as the European Parliament.

Under its internal mechanisms, the European Parliament will have the power to veto the three candidates who are on the shortlist. No other Parliament has that power. It will also have the power to be on the sub-committee that interviews the candidates. I contend that that will create an uneven playing field, and I hope we will resist it when we come to debate EU accession.

[Oliver Heald]

Does my hon. Friend agree that one thing that is quite hard to understand for people who are not on the Council, or regularly attending it, is that some of the largest member countries are not in the EU? They are proud countries, and sadly often ones that are on the receiving end of judgments of the Court. If the arrangements that are made do not seem to be fair and equal right across the Council of Europe area, it affects how they look at the Council and its judgments. It also affects whether those judgments are enforceable and will stick.

[Mr Walter]

I thank my hon. Friend for that point, because it sums up the fact that what I have described will bring into question the legitimacy of the decisions of the Committee of Ministers when it comes to enforcing judgments that have been handed down by the Court.

I want to move on to one aspect of the United Kingdom’s agenda for our chairmanship, with which the Minister also dealt at length. It is the reform of the European Court of Human Rights, which not only we in this country but many member states across Europe welcome.

There seems to be some dispute about what the backlog of cases in the Court is at the moment. The last figure that I heard, which was at the beginning of this month from the secretary-general of the Council of Europe, was 162,000 cases, and growing at the rate of 2,000 a month. I therefore welcome the approach that we are taking as the new chair of the Committee of Ministers.

[Mr Brian Binley (Northampton South) (Con)]

Is my hon. Friend concerned that most of us sitting in the Chamber today might not be here when the end of that list is reached? Does that bother him?

[Mr Walter]

I thank my hon. Friend for making that point, which brings me neatly to the next one that I wanted to make.

I welcome the work of the commission on a Bill of Rights under the chairmanship of Sir Leigh Lewis. It was set up to advise on a British Bill of Rights, but at the request of the Prime Minister the first document that it published was advice to the Government on the reform of the European Court of Human Rights. It has expressed a view on that question, and I shall come to that in a moment. I also welcome the interest taken by the Joint Committee on Human Rights, which I know has been to Strasbourg and met the Court and is considering that very important issue.

I wish to deal with four issues related to the reform of the Court. The first, to which a number of Members have alluded, is the quality of the judges. Under the existing procedure, each member state puts forward three nominees when there is a vacancy for a judge of that nationality. Under the new procedures, those candidates are to be interviewed by the Committee of Ministers and by a sub-committee of the Parliamentary Assembly set up specifically for the purpose of making recommendations on which of the three judges is probably the best candidate. It then comes down to the Parliamentary Assembly to vote on those judges.

There has been phenomenal criticism in the Parliamentary Assembly that the judges nominated are not up to the quality that one expects in such an important court, which deals with human rights across the continent. Some of the judges are academics, and some are only what I would call administrative lawyers, but I believe that judges should have experience of sitting as court judges, preferably in the supreme court of their member state. They should not be people who have applied because they have been teaching a nice academic course specialising in human rights at a university for the past few years and thought, “Why not go to Strasbourg for a few years?” That is not the right way to select candidates.

The Parliamentary Assembly is considering another matter of some concern. If one of those judges drops out and is unable to perform his or her duties, the member state in question can nominate ad hoc judges to sit in their place in the Court. In the past four years, 77 ad hoc judges appointed to sit in for judges who were unable to be in Strasbourg were involved in 516 judgments. I am not sure, and there is some doubt, whether those ad hoc judges are of the same quality, because they do not go through the same selection procedure. They are not nominated, they are not interviewed either by the committee of Ministers or by the sub-committee of the Parliamentary Assembly, and they are certainly not voted for by the Parliamentary Assembly. I am not sure that the spirit of the convention is being implemented if we allow those 77 ad hoc judges to sit in judgment.

The second and most important point raised by my right hon. Friend the Minister for Europe was on subsidiarity and the filtering of cases, causing the backlog. Is the ECHR the final court of appeal for the 800 million people who live on the continent of Europe? I contend that it is not. I believe that it exists to act in partnership with our national supreme courts and that it should not be used as the final court of appeal. A number of members of the delegation met the secretary-general of the Council of Europe on Tuesday to discuss that. He said that—this is even worse—the majority of the cases before the Court involve people using it not as their final court of appeal, but their court of first instance. In the majority of cases, people are disgruntled by something that has happened in their locality—a remote part of Russia or wherever—and they do not use the Russian legal system first and foremost, but go straight to Strasbourg. We must stop that from happening.

People who appeal to the Supreme Court in this country, or even to the Court of Appeal on their way up to the Supreme Court, must seek leave to do so. We must create a situation like that. Requiring people to seek leave to appeal would mean that a judge in this country or another member state would determine whether such a case is admissible, or whether it should be heard by a national supreme court and whether that should be the end of the road.

[Mr Leigh]

The European Court often gets blamed unfairly for judicial activism, but the real judicial activism is happening in our own courts, because the convention is incorporated in our law. That was the big mistake, and I am constantly referring to it, which is why I intervened earlier. In a sense, the focus of the debate is wrong. We cannot focus only on the Court in Strasbourg; we must also focus on our own courts.

[Mr Walter]

My hon. Friend is absolutely right. That is why the Government were right to set up the commission on a Bill of Rights, which will consider whether the Human Rights Act 1998 should be replaced by a British Bill of Rights that better reflects the sentiments he expresses.

[Oliver Heald]

By way of a rider to my hon. Friend’s point on seeking leave to appeal on a point of law, which I basically agree with, occasionally, a court in a country refuses leave in circumstances that do not hold water legally. Should there not at that point be a possibility of applying for leave to appeal directly to the Court in Strasbourg?

[Mr Walter]

My hon. Friend is right to raise that point. We must strike the right balance—strike out spurious claims but not genuine ones. In some cases, those making genuine claims could be refused leave to appeal for, if I may say, political reasons, when their case should go to the Strasbourg Court. In this country, I have every confidence that the Supreme Court or any other lower court would act in the interests of the law and equity, but I might question the courts in a number of other member states—I will not name them in the Chamber.

My third point concerns the competence of the Court and its relationship with national Parliaments and sovereign member states. That the House debated and voted overwhelmingly against prisoner voting rights showed that we in this country feel that somebody committed to jail for an indictable offence should have their voting rights taken away while in prison. That is at variance with the judgment of the Court. I am not a lawyer, but in my view it is absolutely right that a court can sentence somebody to prison and so deny their liberty in several areas. In sentencing them to prison, we are not infringing most of their convention rights—for example, we are not infringing their right to life or imposing on them inhuman and degrading treatment. Instead, we are deciding to deny them certain liberties—for example, by not allowing them to go home to their family every night, we are denying them the right to a family life.

[Mr Binley]

Do the people sent to prison not have the choice about whether they go to prison, and should that not be a major consideration? Furthermore, is this not a constitutional right, rather than a human right? I know that that takes us on to aspects of law, but these are the things that make people very angry.

[Mr Walter]

Of course, my hon. Friend is absolutely right. This is the point that we are making. We could have a wider debate about why people commit crimes and why they go to prison, but my specific point is about the denial of liberty and what convention rights that denial of liberty impinges on. It is accepted that some rights in the convention can legitimately be denied. I am interested that Mr Hirst, when he went to Strasbourg, did not say that he was being denied the right to a family life by being in prison and ask why he could not have his wife and children there. He picked on one emotive issue—his voting and democratic rights—but I think that it is absolutely right that this Parliament decide the voting rights of prisoners, and if it decides that prisoners should not have a vote, so be it. That is part of our national sovereignty. It is a matter for national legislatures, not the Court.

My fourth point concerns the backlog. As I mentioned, the figure that I have is 162,000 cases, growing by 2,000 a month. I commend the commission on a Bill of Rights and its advice on this matter: it expressed concern that, whatever reforms we came up with for the Court, they would not deal with the cases currently in the system, and it recommended that we find a way to clear the backlog. One of the commission’s proposals, which is worth taking forward, is that across Europe are retired judges experienced in human rights law who might be brought out of retirement on, say, a one-year contract, subject to their being vetted, interviewed and so on, and that they be given responsibility solely for going through the list of 162,000 cases, deciding which are admissible and, if necessary, immediately sending them to the Court for judgment.

[Bob Stewart (Beckenham) (Con)]

Did the commission not also recommend that the judges be able to dismiss cases, in order to reduce their number, saying, “We cannot deal with this anymore”? The figure of 162,000 is ginormous. We would never get through them.

[Mr Walter]

My hon. Friend is absolutely right. Of course, we cannot get through them. We know that about 97% of those cases are inadmissible and could be got rid of straightaway, but we need somebody to sit down, go through the paperwork and say that they are inadmissible. If that were done, we might be able immediately to bring before the Court the few thousand cases that lie in the balance, or use this coterie of retired judges to sit in judgment if there are points of law involved that the Court has already been determined in previous cases and so no new judgments to be made.

It is not all as simple as that, though, because there are other constitutional issues. Many of the cases in Strasbourg get there because, as I understand it, there is no supreme court in the Russian Federation to adjudicate on them. They come straight to Strasbourg from the provincial courts, so we might have to persuade the Russian Federation to have a look at its court procedures—after it has got through its elections, of course.

I welcome the United Kingdom chairmanship. I know from colleagues in the Chamber that we are willing and ready to help the Minister and the Government to take forward our agenda, particularly on reform of the Court. The Interlaken process set in train some years ago was followed by a high-level conference under the Turkish presidency in Izmir, in which my right hon. and learned Friend the Lord Chancellor participated on behalf of this country. I hope that we come up with concrete proposals in our six months to ensure that reform of the Court is not only an agenda item, but a reality.

I wish my right hon. Friend the Minister for Europe well. I commend him and his deputy in Strasbourg, our excellent ambassador, Mrs Eleanor Fuller, who has done tremendous work. Thorbjørn Jagland, the former Norwegian Prime Minister, is an excellent secretary-general—one of the best the Council of Europe has had for a number of years—and is also very much in tune with the United Kingdom agenda.

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[John Mann]

The hon. Gentleman is a very good parliamentarian and he used to be my MP, but he sometimes gets over-excited. I am not criticising the COE. I am proposing a cut in its budget, and in the budgets of other international institutions. That is not a criticism of the COE; rather, it is to do with the economic realities. If the hon. Gentleman and his colleagues wish to prioritise certain areas of expenditure, such as by red-circling overseas aid, they are perfectly entitled to do so. What I am saying is that the Government should use their chairmanship of the COE to implement a small cut in its budget—and that the budgets of other EU and international bodies should also be cut.

[Mr Walter]

I want to give the hon. Gentleman some reassurance. The delegation from this place to the COE has had its budget cut, as have the delegations to other international bodies. It was cut by 10% this year, and it will be affected by the overall House of Commons budget cut of 17% in this Parliament.

[John Mann]

I thank the hon. Gentleman for that information, and let me stress that I do not celebrate such cuts, but they are, perhaps, inevitable. I have only been to Strasbourg once—it was many years ago and it was not a trip to the Council of Europe—but it is certainly an opulent place. The following question should certainly be asked: do we need European parliamentary institutions in Strasbourg as well as Brussels?