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Human Rights at the Heart of Europe


The British may be about as sceptical about Europe as they were about human rights. However, we are slowly advancing a human rights culture. Our membership of Europe - tendentious and contentious as it is - should assist in this process.

Roger Smith, director of JUSTICE, discusses the importance of human rights within the European Union.

The Government lists a number of benefits from continuing membership of the European Union in its White Paper on the EU's new proposed constitution. Most of these are the usual litany of wealth creation, jobs etc. Even 'a better deal on holidays' gets a mention. But, of human rights, not a word. Yet, the EU has already had a major influence in the development of a human rights culture both within the UK and Europe. New developments, like the proposed constitution and new EU rules on minimum standards in criminal justice, should increase that effect still further.

Such a silence reflects the difficulty that British politicians have in coming to terms with the EU. It took an Irishman to rebuke Gordon Brown for his recent thundering attack on the alleged ambitions of the European Union. Pat Cox, President of the European Parliament, accused him of 'domestic chauvinsim' and marginalising Britain by pandering to Euro-scepticism. Lawyers can be equally grudging over matters like the European Charter of Fundamental Rights. Even the Law Society opposes it becoming legally binding, as proposed in the new EU constitution. Keith Vaz MP, then Minister of Europe, said it was of no more value than the Beano or The Sun.

Equalities law
From a human rights perspective, much of this negativity is unfair. The European Union has been a driving force behind the removal of discrimination in employment and, more recently, the delivery of goods and services. The latest EU directives require the government to increase protection in relation to sexual orientation, religion and age. In response, the DTI proposes a programme of implementation that will extend to December 2006.

The EU has forced the pace of development in the UK, not only through requiring direct legislation but also by setting the context for the government to move further than it otherwise would. The EU directives on equality spurred the government to propose the logical step in broadening its anti-discrimination legislation of bringing together the three existing equalities bodies into one. Otherwise, it was faced with how it would balance the 'new strands' with the established ones - gender, race and disability. A DTI consultation paper indicated somewhat a reluctance to linking this initiative to anything to do with human rights. The question was covered in all of seven rather uninformative paragraphs ending with the assertion that 'the government will continue to give consideration to these issues'.

The very dismissiveness of this approach precipitated a lively debate among the existing commissions and those concerned with human rights. There was general agreement that the two were integrally linked. As a result, Patricia Hewitt announced at the end of October the establishment of a task force to work up the idea of creating a mixed Commission for Equality and Human Rights 'to promote a culture of respect for human rights, particularly in the delivery of public services'. This is likely to lack enforcement mechanisms in human rights comparable to those that exist for equalities. Nevertheless, it represents a major step forward in institutional support for human rights at a national level. A white paper is planned for the spring of next year hts by the European Union has actually run ahead of that provided by the European Convention of Human Rights. As originally drafted, the convention provided only for non-discrimination in relation to the application of it the EU's Charter of Fundamental Rights is worded pretty comprehensively:
Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

The Charter
The Charter of Fundamental Rights is a major EU development in the publicising of human rights. It was approved by the Nice Council in 2001 as non-binding but the proposed new constitution, if it survives, will give it more force.
The government's position on the Charter is somewhat disdainful. As it reported in its White Paper on the constitution: 'We supported the Charter of Rights at Nice nearly three years ago as a political declaration, but it was not clear enough for legal use'. This judgement has proved not entirely true.

The Charter has increasingly been referred to in proceedings before the European courts.


Both Messers Justice Maurice Kay and Munby have referred to the Charter in domestic decisions where they repeated that, though it was not a source of law 'in the strict sense', it could, as the latter put it, 'properly be consulted insofar as [it] proclaim[s], reaffirm[s] or elucidate[s] the content of those human rights that are ... guaranteed by the European Convention.


A number of measures should assist in construction of the Charter if the constitution is approved in the draft currently being discussed by the Inter-Governmental Conference. First, the Union will have legal status and is required to seek accession to the European Convention whose principles 'shall constitute general principles' of EU law' and 'the meaning and scope' shall be the same where the Charter reflects the Convention. The preamble to the Charter contains a reference to its meaning being considered in the light of 'the explanations'. These indicate the source of each right with the intent of reining in too freewheeling an interpretation. Second, the Charter applies only to the institutions of the Union and national governments when 'implementing Union law'. So, it expressly creates no new competences. Third, the constitution distinguishes between 'rights' and 'principles'. The latter are 'judicially cognisable' only in relation to implementation by a Member State and do not create any new rights.

Lawyers will divide over the Charter. Its value is that it is written in simple language, stating principles that would, for example, be completely accessible to a school citizenship class. It covers economic, social and cultural rights as well as the civil and political. Its breadth and accessibility, others will contend, is precisely the problem - the Charter is not that helpful in guiding its application to complicated situations. The government publicly takes a cautious line, promising to make 'a final decision on incorporation' of the Charter into the constitution only 'in the light of the overall picture of the IGC'. The Conservative party is, of course, implacably opposed though its website does speculate that there might be a closer relationship between the EU and the European Convention.

Domestic scepticism is overdone. The Charter represents an effort by the Union to bring an ind perspective. The Charter is loosely drafted in a very un-British way but the safeguards are probably enough to make it workable.

Advancing Convention rights
Whatever the fate of the Charter, the EU has undoubtedly added force to the existing European Convention on Human Rights. It has required Accession States to ensure that they are in compliance with the convention. Thus, countries like Lithuania, which will be admitted in 2004, and Bulgaria, which hopes to be in a second wave, have been reviewing their compliance and both, for example, have consequently begun work on improving their legal aid schemes.

The pressure to comply with the Convention has been increased, paradoxically, by the coercive measure of the European Arrest Warrant. Progress on this was accelerated as part of the Union's response to the events of the 11th September 2001. The warrant will be implemented in the UK by the Extradition Act 2003. This cuts ministers out of the extradition process and leaves courts to make the decisions alone. It was rushed through without discussion of safeguards although the UK legislation specifically states that it must be applied in accordance with the Human Rights Act.

The European Commission is proceeding with a number of consultations designed to deliver minimum safeguards in relation to, for example, provisions on double jeopardy, bail, translation, legal aid etc. All EU countries have a potential interest in the safeguards that may apply to their own nationals in other countries. Power to establish them applies constitutionally only to defendants in cross-border crimes. However, it will become difficult for states to apply a higher set of standards to this group of defendants rather than others. The warrant, thus, gives a specific impetus to practical implementation of greater human rights protection.

Conclusion

The British may be about as sceptical about Europe as they were about human rights. However, we are slowly advancing a human rights culture. Our membership of Europe - tendentious and contentious as it is - should assist in this process.




   
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