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Evidence heard in Public Questions 51 - 89


1. This is an uncorrected and unpublished transcript of evidence taken in public and reported to the House.

2. The transcript is not yet an approved formal record of these proceedings. Any public use of, or reference to, the contents should make clear that neither Members nor witnesses have had the opportunity to correct the record. If in doubt as to the propriety of using the transcript, please contact the Clerk to the Committee.

3. Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Clerk to the Committee.

4. Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

WEDNESDAY 9 FEBRUARY 2005 ________________

Present Clinton-Davis, L Denham, L Lester of Herne Hill, L Neill of Bladen, L Scott of Foscote, L (Chairman) Thomson of Monifieth, L ________________

Memorandum submitted by Baroness Ashton of Upholland Examination of Witness Witness: Baroness Ashton of Upholland, a Member of the House, Parliamentary Under Secretary of State, Department for Constitutional Affairs, examined.

Q51 Chairman: Thank you for coming to help us not simply with one set of questions but with two. We thought we would start with The Hague Programme questions. I know that you have had a copy of the questions in advance in broad outline that we are proposing to ask, but of course there may be some supplementary questions. We will take those as they come.

If I may start with the Hague Programme questions, there is the proposal for the creation of a fundamental Human Rights Agency. I wondered if you could indicate to what extent the Government supports that and whether the Government takes the viewthat the Paris Principles, about independence of the Agency’s membership and proper funding in particular, will apply to any such agency that may be created.

Baroness Ashworth of Upholland: First, may I thank you very much for inviting me to come along. I have not appeared before this committee before, and so it is a very new experience for me. We do welcome the creation of the Agency, but on the basis that its role will be to gather information and to provide advice in the context of the European Union legal framework and not about individual Member States. In that context, the Paris Principles would apply to it, but, as I say, not on the basis that it would be either looking at the work of third parties or indeed of individual Member States.

Q52 Chairman: It would simply be information collection?

Baroness Ashworth of Upholland: It would be information collection and advice, I think, because what we do not have, where we have a gap, is that there is not any institution that advises the EU itself on what it is doing.

Q53 Chairman: Who would the Agency be advising– the EU institutions?

Baroness Ashworth of Upholland: The EU and its institutions, indeed.

Q54 Chairman: But not the Member States?

Baroness Ashworth of Upholland: No, I think Member States need to cater for that within themselves. I think that is our view. I think there is a gap in terms of the EU per se.

Q55 Lord Lester of Herne Hill: I have some quite serious problems about the proposal, even though of course I am concerned about the protection of human rights across Europe.

I wonder if I could share a couple of concerns with you. Some of them were raised by Kevin McNamara in the Westminster Hall debate on 2 February. You probably have not had a chance to see that when Mr Lammy was replying. Essentially, like him, I am worried about wasteful duplication and overlap as between the Council of Europe and the European Union.

My particular concern is that we now have an officer called the European Human Rights Commissioner, at the moment Gil-Robles, and he has the function of advising the Council of Europe institutions on human rights protection. My worry, and I wonder whether it is the Government’s concern, is not just about competence – that does not worry me – but about this problem of wasteful duplication and whether the European Convention system, the Council of Europe system, will remain paramount and why we need yet another human rights agency when we have the Council of Europe one which will perfectly well be advising the EU as well as the Council of Europe. That is certainly what Kevin McNamara was asking about and he was also asking about the complete lack of definition of functions in the proposal so far.

Baroness Ashton of Upholland: There are no doubt gaps in the proposals, and indeed, as I am sure you have, if you look at how other Member States have responded, there were a variety of views about how this might go forward. I think where we are is that we think that there could be a good, well-developed role that would fill the gap. One needs to think about how it is going to work alongside other areas, and indeed the European Court. My view is that other Member States also need to get to that point. We have seen some movement of late. I was in Luxembourg the weekend before last. We seem to be moving much more in that direction. I agree there is a lot more to do on the detail. One of our ambitions for the presidency perhaps is to look at this more fully, but in principle, on the basis that I have suggested, there is scope to have such an agency, as long as it is properly founded. I agree that we should not look for any kinds of waste or duplication; that would be pointless.

Q56 Lord Lester of Herne Hill: As a supplementary, one concrete function that occurs to me this could perform would be to have the right to intervene in proceedings before the European Court of Justice affecting human rights as a third party intervener able to help the Luxembourg court to deal with those questions. Could the Government give consideration to that idea because it would give it a slightly sharper focus? I am not suggesting it should investigate states but simply that it should be a friend of the court able to bring submissions to the court’s attention in the way that English courts now allow third parties to intervene.

Baroness Ashton of Upholland: I am very happy to look at that. The question will come around to our interpretation of the word “intervene”. Having said “intervene”, you then qualified what you meant, to be the friend of the court. I will have to look at that. What I would be reluctant to see is it playing any kind of intervention role when Member States and the court are interacting appropriately, because that takes us into a place that is inappropriate for it. Certainly, we could look at what its relationship would be to the court. That would be a fundamental part of this because it must not be a second court, and therefore it needs to have a proper and full relationship.

Q57 Chairman: Minister, may I now ask you a question or two about paragraph 3.2 of the Presidency conclusions of 25/26 March last year? Some of the language in this paragraph I find very difficult to get my mind around and to try and envisage what is actually being proposed. The paragraph says: “In order to facilitate full implementation of the principle of mutual recognition, a system providing for objective and impartial evaluation of the implementation of EU policies in the field of justice, while fully respecting the independence of the judiciary and consistent with all the exiting European mechanisms, must be established.” What does that mean? What is being envisaged: what sort of organisation and what sort of functions?

Baroness Ashton of Upholland: The principle behind what is in that paragraph, and I agree sometimes the language takes a while to understand, particularly if, like me, you are not a lawyer – I always think lawyers have a better shot at it than I do – and what I see as the thrust of that is looking to reinforce the principle of mutual recognition, which is the cornerstone really of our view of what we ought to be considering, but not to get us into, for example, the inspection of the judiciary or anything of that nature. In other words, what we are looking for are ways in which to ensure that the legal framework within a Member State is respected for itself, but that where you have either cross-border disputes or citizens moving, the citizen has an understanding of the legal framework that means there is a mutual recognition between those different frameworks.

Q58 Chairman: Can you shed a little more light on the objective and impartial evaluation of the implementation of policies in the field of justice? Is this some organisation that is going to be set up with the role of carrying out some sort of objective and impartial evaluation?

Baroness Ashton of Upholland: I do not think an organisation will be, but one of the things that we are very keen on is making sure that we spend more time evaluating the success of what is happening across Europe. That will be increasingly important with 25 Member States to make sure that it is working properly. What that leads to, as I understand it, is to say that what one needs to have is a guarantee that we look across at how laws are operating, how institutions are operating, but we evaluate the effectiveness and that we do so with a view to better regulation to make sure the laws are working for the citizen at the end of the day in the best possible way that they can and to do that in an impartial and objective way. That is my interpretation of it. I do not see it as being a new institution being set up; I see it as being something positive but within and reflecting mutual recognition as being the cornerstone.

Q59 Chairman: You have not any insight as to what practical steps are envisaged?

Baroness Ashton of Upholland: I think the Commission and European institutions are looking more fully at how they might do it. I do not think I have a plan that I can give you that would indicate precisely how that would be done. I think we are at the stage of understanding what needs to be done and we need to think more carefully, and of course some of the directives of European law require that as part of the way they were set up, but more generally to make sure that their laws are functioning effectively.

Q60 Lord Thomson of Monifieth: May I pursue this point a little? I am afraid I marked down at that paragraph “Whew!” I did not understand how the various contradictory considerations were to be reconciled. The paragraph begins by saying that “Judicial cooperation …. could be further enhanced by strengthening mutual trust and by progressive development of a European judicial culture based on diversity of the legal systems of the Member States and unity through European law.” Is that not a classic example of Eurospeak, of which I used to have some experience and of trying to have it both ways?

Baroness Ashton of Upholland: I interpret it to be a classic example of where you try and devise words that actually mean mutual recognition; that is what you end up with. In other words, what we are looking for is an understanding of individual states’ legal systems, a respect for those, trust and a recognition of the kind of culture that goes alongside that, and European law to play its role within that. I appreciate – and I did not write this, I hasten to add – that one is very conscious that nowadays the documents that are written are being translated I think into 19 languages. It is always, in a sense, the finesse that one would wish to put on it that might make it easier to understand. As I see it, it is about saying there is mutual recognition; we need to build trust and confidence in systems. I agree with that. We are not in any way moving beyond that.

Q61 Lord Thomson of Monifieth: To pursue this one step further to the point you were addressing, Chairman, this is reference to a system providing for objective and impartial evaluation. Now, a system providing objective and impartial evaluation is an institution, a proposal, and there must be something in place to do that. Is this not an example of Quis custodiet ipsos custodes?

Baroness Ashton of Upholland: One could interpret it that way certainly, but I think at the moment we see that as a real recognition that we need to evaluate impartially how effective the mechanisms and the laws are. I do not think I have seen any firm proposals on precisely how that might be done. Indeed, as you said Lord Thomson, it will be a question of how that will be done. They have indicated that it needs to be impartial, and that is important. Quite who will be guarding the guardians, I am not sure.

Q62 Lord Neill of Bladen: May I follow in the same interesting area as to what meaning we can attach to this, picking up the Lord Chairman’s question to you? Supposing there was a complaint arising in a Member State called Ruritania that they were not really implementing particular EU policies in the field of justice and in fact the record of half a dozen recent decisions in that Member State had been retrograde in the eyes of many, how does this system move into operation in an objective and impartial way while fully respecting the independence of the judiciary? Presumably the judiciary would be under attack for not upholding and applying the appropriate EU principles?

Baroness Ashton of Upholland: If the Member State has signed up to those principles and is therefore part of working across the EU to respect and uphold them, then the EU would have, you are quite right, a role in asking for explanations as to why that was not being done.

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