The second item on the agenda is a discussion with officials from the Department of Justice, Equality and Law Reform and a representative of the Irish Human Rights Commission on the proposal to establish a European agency for fundamental rights, COM (2005) 280. Mr. Frank Boughton, principal officer, and Mr. Michael Kelly, assistant principal officer, from the Department of Justice, Equality and Law Reform are joined by Dr. Maurice Manning, president of the Irish Human Rights Commission. The format is simple. I will ask everybody to make a short presentation and then open the discussion to members.
Proposed European Agency for Fundamental Rights: Presentation.
Mr. Frank Boughton
I thank the joint committee for the invitation to discuss the EU proposal for a Council regulation establishing a EU agency for fundamental rights and the accompanying proposal for a Council decision allowing the agency for fundamental rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union. In view of the short time available, the best course is to give the joint committee a brief overview of the background to the proposal, outline the progress achieved to date in the negotiations at Council working party level in Brussels and then outline the key articles in the proposed Council regulation.
The objective of the proposals in the Council regulation and decision is to extend the mandate of the EU Monitoring Centre on Racism and Xenophobia and to establish an EU agency for fundamental rights. In other words, the aim is to increase its area of activity, remit and scope. It is intended that the new agency will be a centre of expertise on fundamental rights issues at the EU level and that it will make the Charter of Fundamental Rights more tangible, with the close relationship with that charter being reflected in the agency's name.
The monitoring centre, based in Vienna, was originally established by Council Regulation (EC) 1035/97 of 2 June 1997 and the Commission had already presented limited proposals to develop the monitoring centre, principally with a view to ensuring its sustainability and proper functioning, as well as sharpening its focus, but steering clear of radical reform. The centre's primary role is to collect and analyse data on racism, xenophobia and anti-Semitism and to study the causes of such behaviour in order to assist the Union and the member states in policy formation on these issues.
The origin of the fundamental rights agency proposal dates back to the 1999 Cologne European Council. It has progressed right through to the Hague programme on strengthening freedom, security and justice in the EU in November 2004. Following a consultation process conducted by the European Commission in early 2005, the formal proposals before the committee were published on 30 June 2005.
Since the Commission published its proposals, the draft regulation has been discussed on five occasions by the working party on fundamental rights and citizenship under the auspices of the UK Presidency of the Council, namely, on 7 July, 11 October, 6 and 24 November and 6 December 2005. The main issues that emerged at an early stage are: the remit of the agency with respect to third countries and how to avoid overburdening the new body in the early stages after establishment; the areas of activity of the agency and the Commission's role in formulating the proposed five-year multi-annual framework programme of work; the agency's relationship with bodies such as the Council of Europe and the United Nations and how to avoid duplicating the activities of these bodies; and the structure and management of the agency and how to ensure its independence. This point is of particular concern to the European group of national human rights institutions, which has adopted a common position on the proposal.
The first detailed reading of the regulation began on 6 November last. The meeting on 24 November was entirely given over to discussions on the proposed legal basis in the treaties for the Commission's proposals. At the request of the working party, the Council legal service was asked for its opinion on this issue. It queried the Commission's thinking and suggested that further legal bases might need to be added in the light of the proposed functions of the agency. These discussions are ongoing.
The views of the Office of the Attorney General on the legal base issue have been requested in the light of the significant differences between the Commission and the Council legal services. Ireland has a general scrutiny reservation on the proposed regulation, pending receipt of the advice of the Office of the Attorney General.
At the most recent meeting on 6 December, discussions returned to a detailed reading of the proposed Council regulation, which at the end of the UK Presidency has yet to be completed. In summary, discussions are still at an early stage, with member states outlining their initial reactions to the Commission's proposals. As previously indicated, while Ireland broadly welcomes the Commission's proposals, they are the subject of ongoing examination in the context of the working party discussions to assess the implications for Ireland. It is anticipated that the first meeting of the working party under the Austrian Presidency will take place towards the end of January 2006.
The draft regulation has 35 articles and is divided into seven chapters. The draft Council decision which allows the agency to pursue its activities in specific areas referred to in Title VI of the Treaty on European Union, namely, police and judicial co-operation, contains three articles.
Regarding the draft regulation, Chapter 1, Articles 1 to 5, provides for the subject matter, objective, scope, tasks and the areas of activity of the agency. These are the key articles in the regulation. Article 1 provides for the establishment of the agency. Article 2 sets out the objective which in the main is to provide assistance and expertise for member states and the institutions, bodies, offices and agencies of the Union. Article 3 limits the scope of the agency's tasks to the competencies of the Union, laid down in the treaty establishing the European Community, and identifies fundamental rights as defined in Article 6(2) of the Treaty on European Union and in the Charter of Fundamental Rights of the European Union as the agency's reference point for the purpose of its tasks.
While it is made clear that the agency's focus will be on fundamental rights in the EU, it can, when requested by the Commission, provide information and analysis on third countries. Some member states have expressed concern that this latter provision will place too great a burden on the agency in the early days after its establishment.
Article 4 defines the tasks of the agency. These are, in the main, technical in nature and directed towards the collection, recording, analysis and dissemination of information and data, developing methods to improve comparability, objectivity and reliability of data, carrying out and encouraging research and surveys, preparatory studies and feasibility studies, raising awareness, formulating conclusions and opinions on general subjects and making technical expertise available to the Council.
One particular aspect of the tasks proposed for the agency that will be closely monitored by member states is Article 4(1)(e). This relates to the role proposed for the new agency on the provisions of Article 7 of the Treaty on European Union. The intention is that the Council may request the expertise of the agency if it finds it useful when acting on a proposal made by one third of the member states, by the European Parliament or by the Commission during the procedure under Article 7, which concerns a member state being in serious breach of the principles mentioned in Article 6(1). These principles relate to liberty, democracy, respect for human rights and fundamental freedoms and the rule of law.
This proposal would seem to be acceptable because the involvement of the agency is dependent on a formal request being forthcoming from the Council. Nonetheless, the principles involved are broader than the issue of fundamental rights and, accordingly, some member states, including Ireland, have queried the proposed involvement of the agency in this area.
Article 5 provides that the thematic areas of activity for the agency will be set out in a multi-annual framework that will be adopted by the Commission. The details of this multi-annual framework are set out and provision is made for the agency to prepare an annual work programme. The requirement that the Commission adopt the multi-annual framework has been criticised by some member states who see it as giving too much control to the Commission and undermining the independence of the agency.
Chapter 2, Articles 6 to 9, provides for the agency's working methods and the arrangements as regards co-operation with other bodies and do not call for special comment.
Chapter 3, Articles 10 to 14, provides for the organisational structure of the bodies of the agency, namely a management board, an executive board, a director and a fundamental rights forum of non-governmental organisations. With regard to member states' appointees to the management board, the aim will be to attract persons with high level responsibilities in the management of national human rights institutions or those with thorough expertise in the field of fundamental rights. The management board will be responsible for ensuring that the agency performs the tasks assigned to it and will be its planning and monitoring body. Details of the administrative, financial and staffing responsibilities of the board, arrangements for the holding of meetings and the taking of decisions are also set out in this article.
Some member states have expressed dissatisfaction with these proposals because they consider that member states' appointees might not be independent and they are seeking some other formula for addressing that. Provision is also made for the submission of the agency's annual reports to the European Parliament, the Council, the Commission, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions and for the Director of the European Institute for Gender Equality to attend meetings of the management board as an observer.
Chapter 4, Articles 15 to 18, deals with the agency's independence and other matters relating to access to documents, data protection and administrative review. Chapters 5, 6 and 7 contain mainly technical provisions relating to the operation of the agency following its establishment.
For legal reasons, the Commission has proposed two separate legal instruments concerning the establishment of the agency. One relates to the regulation I have just described under the treaty establishing the European Community, while the second relates to a decision under the treaty on European Union to allow the agency to pursue its activities as set out in the regulation in areas referred to in Title VI of the treaty. In the latter regard, the proposal for a Council decision contains three articles, the purpose of which is to give effect to that by applying Articles 2 to 32 of the regulation to the Title VI area.
The Commission's aim is for the new agency to become operational on 1 January 2007. With regard to its budget, the Commission has indicated that, historically, the establishment of an agency takes between two and three years. The Commission, therefore, proposes to have a growing budget for the period 2007-13 in order to take account of the transition period. Indicative financial planning is for initial funding of €16 million in 2007, rising incrementally to €29 million in that period.
It seems the proposals under scrutiny by the committee are still in the initial stages of discussion. It might be useful, therefore if, as I indicated today, following completion of the proceedings, the committee decides to revisit them at a later stage when we will have a clearer picture of what the final form of the proposals might be. If members have any questions, I will be delighted to answer them.
Dr. Maurice Manning
I thank the Chairman for the invitation to come before the committee and for the opportunity to put forward the views of the Irish Human Rights Commission on this matter. As Mr. Boughton mentioned, the European group of national human rights institutions has examined the proposals in detail. I made copies of its observations available to members. In principle, the European group of human rights institutions welcomes the proposal to create an agency to be a focal point for all human rights work within the European Union, which is seriously lacking at present. That is as far as its welcome goes because the group has serious misgivings and a sense of a lost opportunity.
The European group and the Irish Human Rights Commission, which had an input and endorsed the view, are extremely conscious of the genesis of the new body, coming as it does from the European Monitoring Centre on Racism and Xenophobia. That body did some useful work in the past but it was an advisory and research board. It had no independent powers. We feel that this is a weak basis on which to build the new entity. The proposed new body will only be able to fulfil its expanded mission and be effective if it is seen to be legitimate, credible and, most of all, independent. It is extremely difficult to have a human rights watchdog if it is not independent — and seen to be so — of the Commission and national governments.
This lack of independence can be seen in the proposed structure of the new agency. There is no major problem with the management board, although we share some of the concerns Mr. Boughton mentioned. The management board will include an independent person appointed by each member state, an independent person appointed by the European Parliament, an independent person appointed by the Council of Europe and two independent people appointed by the Commission. This board will be cumbersome and will only meet once a year. Perhaps that meeting will last a few days but it will only take place once a year.
The real work of the new agency will be done by the executive board, which will have only four members. Two members, in other words the number required for a veto, will be representatives of the European Commission. The Commission, which discusses independence, will be in a position to block decision's being taken. The director of the agency will be appointed by the management board, based on a list of candidates proposed by the European Commission. While the principle of independence is mentioned as a guiding principle in the regulation proposal, it is not reflected in either the composition of the agency's bodies or the appointment process of its members. This lack, or perceived lack, of effective independence embodied in the executive board is already seriously damaging the credibility of the board. The perception of independence is considered essential.
The agency's range of activities will be limited by the multi-annual framework determined by the European Commission. Mr. Boughton referred to some of the difficulties arising from that. We point out in our paper that the agency is excluded from taking a position on the compliance of the Commission's proposals for Council legislation and their compliance with the fundamental rights of the EU. An extremely large part of the legislation that is drafted and finds its way into national parliaments is not subject to any type of fundamental rights or international rights analysis. This means that problem will not be addressed or remedied. From the point of view of all parliaments, this is a serious difficulty and we feel it needs to be addressed.
We also have reservations about the exclusion of non-governmental bodies and civil society in the proposals. If the new agency is to play a significant role in the protection of human rights in member states when implementing community law, it must have strong links with national human rights bodies and NGOs. The agency is in danger of being perceived as an additional bureaucratic body. To be effective, it must be in a position to add value and to play a role in co-ordination.
The members of European national human rights institutions have strong reservations. My view and that of many of my colleagues in the Irish Human Rights Commission is stronger than that. We feel a strong case exists for a European human rights agency. I use the term "human rights" because I believe it includes fundamental rights but goes much further. Fundamental rights exclude many rights that people regard as human rights and narrowing the title is significant in itself. Members of the committee will appreciate that the failure to test EU legislation incorporated into national law against EU and other internationally accepted rights is obvious. By the time EU law reaches national parliaments, it is invariably too late to do anything about it. Members may have found some of the recent EU directives disturbing in terms of human rights.
We believe that a human rights agency is necessary to ensure that legislative proposals emanating from the EU are human rights compliant and, if they are not, that at least a warning bell will be sounded. We believe it is necessary to have a powerful body within the EU with a mandate to give leadership and advice on human rights issues. The Council of Europe has a much better record than the European Union in giving leadership on human rights issues. This may be of special importance, given the questionable human rights record, history and culture of some of the recent member and applicant states. There is also a need to ensure that EU overseas aid, like our development aid, brings with it a commitment to governance and training and implementation of human rights. These are some of the reasons we could give in favour of a strong human rights agency.
It may be that the proposed agency will become such a body. It may involve foresight on an aspect that can be transformed in the coming years into a strong, effective human rights agency. We have our doubts. A frank recognition of the need for a strong human rights body within the European Union would be better, along with a focused approach to the creation of such a body rather than attempting to transform a body that came into being for different reasons into something that it appears will be extremely bureaucratic and singularly ineffective and narrow-ranging in its powers and activities.
I will paraphrase Dr. Manning. He stated that a human rights agency is necessary and that what has been proposed is an add-on to the existing group and does not go far enough.
Dr. Manning
If there was recognition of the need for such an agency, and I believe the case for a strong human rights agency exists, it would be better to attempt to construct such an agency rather than take an existing body and try to adapt and add to it.
In regard to legislation, Dr. Manning has said he does not feel the necessary scrutiny is being carried out and that by the time anything comes from the European Union the damage is done and it is too late to do anything about it. Apart from what we are discussing, that must be of concern to the commission. Will Dr. Manning give the committee an example?
Dr. Manning
This is of major concern to the commission. One of its main functions is to examine and test proposed legislation as far as human rights are concerned, against either the Constitution or the international agreements to which Ireland is party, and then to report to the Minister and the Houses as to whether the legislation is human rights compliant. In the case of a great deal of European law, by the time it arrives here it is a done deal. Although Ministers frequently say they would like to change it, it is a European directive that is being transposed into Irish law and it is too late to change it.
Can Dr. Manning give us an example?
Dr. Manning
Not at the moment. This is a problem for human rights commissions across Europe. It is a problem for all parliaments, not only the Irish Parliament, very much so in the case of security legislation.
I have a final question for Mr. Boughton. May I take it from the Department's position paper that there is a fear of duplication with regard to other international agencies?
Mr. Boughton
That view has been expressed, particularly at the Council of Europe which has the main watchdog role in the European theatre. It is a point that has been articulated in the working group discussions and we would go along with it to a certain extent. However, there are probably sufficient safeguards and we will work towards adoption of the document and changing it in that respect.
I wish to comment on some of the points made by Dr. Manning. My comments may help set his mind at rest, as well as those of committee members or, perhaps, put further fears into their minds.
On the question of the independence of the agency in determining its own work programme, the independence of any human rights agency is key. As Dr. Manning mentioned, in its proposals to establish the Human Rights Commission, the Department decided to release the heads of the Bill at an early stage for public discussion, rather than publishing the Bill as a fait accompli. That was the first time that was done. Six months of public discussion resulted in a betterment of the proposals which emanated in the Bill as published. One of the key issues is the independence of the Human Rights Commission or any national human rights institution. That applies with equal force to any body set up at supra-national level within the European Union.
During the discussions within the working group it emerged that a number of member states had difficulties with the proposed structure, in particular, the composition of the executive board, the regularity of meetings and the implications of all of these matters for the agency's independence. On the issue of independence, it must be taken into account that the objective of the agency is to provide the relevant Community institutions, bodies, offices, agencies and member states when implementing Community law, with the systems and expertise relating to fundamental rights that will support them when they take measures or formulate courses of action within their respective spheres of competence. The thematic areas of activity of the agency will be defined through this multi-annual framework. This involves politically accountable Community institutions. That of itself sets limits for the agency's work. Overall, this is in the interests of efficiency and takes into account the strict limits of the discretion enjoyed by the Community agencies which are to perform technical tasks, not set their own political agendas.
Dr. Manning also referred to transparency, the involvement of civil society and non-governmental organisations, and the deficiencies of using a forum only approach. Again, within the areas of work proposed by the agency, it will in complete independence collect and assess data on the practical impact of EU measures on fundamental rights and good practices in respecting and promoting fundamental rights, express opinion on fundamental rights policy developments, raise public awareness, and — something I want to highlight — promote dialogue with civil society and co-ordinate and network with various actors in the field of fundamental rights. The agency will not be a shrinking violet. It will have available to it other mechanisms for engaging with civil society in the member states and NGOs operating in the field of fundamental rights.
On the issue of definitions, it is always problematic in a human rights context to talk about human rights, fundamental rights, civil rights, economic, social and cultural rights because they all tend to be compartmentalised. For us, there are important nuances in the differences between fundamental rights and economic and social-cultural rights. The reason the body is referred to as the fundamental rights agency is that it will take its lead from the charter which certainly encompasses much more than human rights. It contains a broad spectrum of rights. The agency is supposed to be linked with it and there would probably be a difficulty in trying to change this. When we will see the charter is an open question because matters are parked for the moment, to say the least.
Some of my questions and doubts have been addressed. However, I still have many questions, the first of which is whether we need this body. It strikes me that there are differences of opinion in the two presentations. Perhaps there is a need to further analyse the whole concept. We are discussing fundamental rights versus fundamental rights. Once doubts are planted we must ask whether we have done enough homework. I advocate going back to the drawing board and re-examining the issue. I am not convinced this agency will be powerful enough in highlighting the points outlined by Dr. Manning. In the light of this I am not yet fully convinced as to the direction we should take. Perhaps Dr. Manning would comment on this.
Dr. Manning
I will allow Mr. Boughton to intervene.
Mr. Boughton
The view within the working group is that the reference to fundamental rights or a fundamental rights agency is probably broad enough to cover what most people want. We would have difficulty in defining it. Coming from an Interior Ministry, our motives in defining such an all-embracing term would immediately be suspect. We have a scrutiny reservation on the whole document. I am happy enough with the term "fundamental rights". While I might be in a minority in the Department in that respect, I see no problem with it. Members might be aware that the Dutch Parliament expressed very strong reservations about the need for the agency. We certainly have not picked this up as a serious issue within the working group. It has not been raised by the Dutch delegation.
What is the Dutch reservation?
Mr. Boughton
The Dutch Senate has a very jaundiced view of the need for the agency.
It has not been replicated on the working group.
Mr. Boughton
It has not. The net point is that it sees the possibility of duplication with the Council of Europe, the premier group in this area. The Council of Europe oversees implementation by signatory states of the European Convention on Human Rights and Fundamental Freedoms. It also steers through, with all the aggressiveness of a rottweiler, the Convention Against Torture in the member states. There are very high level visits by the European Committee for the Prevention of Torture to all member states and it goes through systems with a fine-tooth comb. The issue is whether the agency will interfere with the Council of Europe or impede its work in any way but we are sure that it will not.
I understand from the working group meetings that the Dutch Senate has called on its own government to prevent the establishment of the agency. That is strong, particularly given that the Council of Europe will be represented on the agency. The Parliamentary Assembly of the Council of Europe, in a resolution and a committee of Ministers, did not recommend that the establishment of the agency be abandoned. While concerns were expressed by the Parliamentary Assembly about the potential for duplication of effort — the key issue — the committee of Ministers also agreed. The assembly considered that "the creation of a fundamental rights agency within the EU could make a helpful contribution, provided that a useful role and field of action is defined for it and that the agency, therefore, genuinely fills a gap and gives added value and complementarity in promoting respect for human rights". The assembly added: "Bearing in mind, on the one hand, the significant development and substantial expansion of the legal order of the EU and, on the other hand, the broad arsenal of human rights mechanisms of the Council of Europe and the need to avoid overlap between their roles and competencies, the Assembly takes the view that the role of the agency should be that of an independent institution for the promotion and protection of fundamental rights within the legal order of the EU along the lines of similar national institutions that exist in several Member States". The intention behind the regulation, the draft of which will be fine-tuned in the discussions, is clear. Therefore, we do not have a problem with it.
Dr. Manning
We welcome the establishment of the agency and hope it will develop into a strong, independent protector and champion of human rights in Europe. However, we have concerns about its independence and relationship to other bodies and so on. We are also concerned that in a Europe where human rights are under threat because of terrorism and other reasons, the agency will not be as strong and independent as we would like. I am reassured, to some extent, by Mr. Boughton's comment that many of the issues have not been decided but I would like Ireland to play a much greater part in ensuring the strongest body emerges.
I thank the delegates for their presentations. I am not sure how national organisations such as Dr. Manning's and the proposed body which may provide for a scrutiny function at European level will fit together. Dr. Manning has suggested that, unless one gets into the scrutiny process at an early stage, national legislatures will be presented with a fait accompli. Decisions cannot be changed because directives are enacted by the institutions of the European Union and the European Parliament. The role of scrutiny of European legislation is no different from the role of scrutiny of national legislation. It is up to the elected members to scrutinise and the template against which European Parliament Members scrutinise proposals for legislation will be the fundamental charter, if the European constitutional treaty is ratified. If the charter was in place, a proposal for enactment would follow the normal path. It would then be up to the parliamentarians, using their collective expertise and specialist knowledge, to scrutinise the legislation, as we do in the Oireachtas.
The draft budget for the agency is €29 million. The Maastricht and Amsterdam treaties recognised the constitutional role of European political parties in contributing to the integration of the European project. The budget agreed by the European Parliament and the Commission in this regard is €8.4 million. In other words, the Liberal, Socialist and Christian Democrat group, as well as four others, must divide the €8.4 million to run the political party campaign, as distinct from the parliamentary group campaign. Potentially, €29 million is available for the agency if it adopts a scrutinising role.
That would be only one task of a European human rights commission. If the template of measurement and the standard are set out in the fundamental charter which is in limbo — even limbo has been abolished — I suspect, following a period of reflection, it will be given a status of substance other than it has and will be seen as a reference point. Our task and that of our colleagues in the European Parliament and other national legislatures will be to analyse draft proposals with appropriate resources and briefings. If, however, the task of the agency was to investigate and monitor the implementation of legislation and the conduct of member states, it should act within the framework of the European Union, as opposed to the Council of Europe, with appropriate independence and a set of investigatory powers because we have an uneven set of standards. Slovakia, for example, only barely qualified to accede to the Union under the heading of civil and human rights because of the abuses of power under the Meciar regime which was only recently defeated. In the famous words of Gerry Adams, "they haven't gone away".
I do not know what the role of the agency will be. Will it be a proactive agency monitoring abuses and reporting independently on what is happening on the ground, thereby acting as a safeguard and setting high standards? It could duplicate the role of the Council of Europe's human rights remit. Mr. Boughton used torture as an example of an issue that is well catered for. There is, therefore, a danger of duplication if the agency is put in place. Dr. Manning is a former legislator and will appreciate that the scrutiny of legislation to ensure the best standards is primarily a function of national legislatures and the European Parliament and that the role of the agency is not comparable with this. If we fail to do our job, we will be fired. If the European human rights commission fails to do its job, it will not.
What role will the agency perform that is not being performed now? What has gone so horribly wrong that it is needed? Mr. Boughton mentioned the monitoring centre. Will he flesh out what is not happening?
Mr. Boughton
The monitoring centre has been in existence since 1997 and its reconstitution came as a surprise. I do not want to speculate on this because I do not know for sure. On the basis of decisions taken by the European Council, the Commission combined what one agency was doing, albeit in a limited way, with calls at various Council meetings for the establishment of a human rights agency. The particular reason behind the call for the establishment of a human rights agency was to do with the growth and complexity in the number of rules, for the want of a better word, emanating from within the EU. They felt that there was a need for this central body to keep a check.
It will not have, as Deputy Quinn stated, this scrutinising role. Material legislation coming through the mechanisms of the EU is initiated by the Commission and is dealt with at working group level. It will have passed through the Council legal services, which will have applied all the checks and balances to it. It will then pass into a Council area where, again, there will be working groups from the member states examining it, together with reference back by those officials to their own national legal and constitutional agencies. There is an ongoing system of constitutional and legal checks and balances within these proposals as they develop and these hold sway right through to the stage of being adopted in the form of regulation, directive or decision. The scrutiny role is not intended to apply to this agency and we would not have any difficulty with that.
I was trying to think of a fairly concise way of explaining the purpose of this agency. In that context, I would return to the explanatory memorandum that accompanied the proposal when it came out first.
Mr. Boughton's original answer was that this came from a growth in rules and regulations.
Mr. Boughton
Yes.
With the growth of rules and regulation, by definition is there a proportional risk that people's fundamental rights are being trodden on?
Mr. Boughton
That is exactly it. One area to which I would refer would be the growth and complexity in the area of, for example, people's privacy. I can put it succinctly. On the objective of the agency, the analogy would be that it is a tool to be used by the relevant institutions, bodies, offices and agencies of the Union and the member states when implementing Union law. The purpose of this tool is to give them assistance and expertise in respect of fundamental rights in order to help them when they put these measures into action. That is the basic line I can give the committee on it. The explanatory memorandum is somewhat more verbose. It states that the objective of the agency is to provide the relevant institutions, bodies, offices and agencies of the Union and its member states when implementing Union law with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights.
The agency is not like a human rights institution, which would be proactive in consulting with the public and in accepting and acting on complaints. This agency is aimed more at providing information on how matters are working out and how member states are failing, perhaps, or acting correctly when implementing these decisions in the area of fundamental rights.
To some extent, we are talking in a slight vacuum here because the rights with which this agency will be totally involved are those not so much within the treaties but those in the context of the charter. The charter is, as yet, unknown territory. We know what it states but we do not actually know what it means in many areas. This is the key basis for this agency. We are looking ahead. Even in establishing the agency on 1 January 2007, the charter may not be a legal instrument by that time because it is tied in with the entire constitutional question.
Mr. Boughton stated, "It is intended that the new agency will be a centre of expertise on fundamental rights issues at the EU level and that it will make the charter of fundamental rights more tangible ...". Who will decide on the definition of the charter, the issue of signing off on the charter and the production of the final template for the charter? Will the new agency decide or will it be a matter of drawing on best practice from various areas?
The area of the fundamental rights of the individual is what we are discussing. Will Mr.Boughton give a few examples of the areas involved and where institutions and states, whether Ireland, the UK, the Netherlands or wherever, can sin in the case of the individual resident?
Mr. Boughton
I will deal with those two points separately. The final template of the charter is already in existence. The charter has been agreed and published as a declaration by the Heads of Government. Its text is already available and this body will not have any function in amending it, adding to it or anything else. It is a substantive item of work in its own right. It just does not have what may be termed full legal effect. While it has been used increasingly in some member states on the Continent in legal arguments, it does not have any legal effect as yet but its text is fixed in stone.
I suppose I should have thought about good examples before coming before the committee. I can give the Deputy one that is not so good. I will not name the country in question. Supposing a country is adopting a particular practice that it feels is fully compliant with its national law and with Union law, for example, on refugees who are, under the laws, found not to be refugees within the legal definitions and all the international treaties that apply, and peremptorily sends them back to the country of origin without any regard for their welfare, that would be an issue that would come under scrutiny.
Does the text of the charterof fundamental rights adequately cover thatcircumstance?
Mr. Boughton
Yes, the charter would do so. However, existing conventions in that area would probably cover it better.
Taking that good example, would Dr. Manning agree that in every country there is a body similar to the IHRC?
Dr. Manning
No. In the EU there are approximately seven or eight such bodies.
If what Mr. Boughton stated occurred in this country, Dr. Manning would be the first to state, as happened in the past, that this is offside and a yellow card would by issued from an independent body, which would be respected and to which we, as parliamentarians, could refer. If it occurred in a country where a body such as the IHRC does not exist and where there was no one to shout stop, is Mr. Boughton stating that it could conceivably be the function of this new agency to do so at that level?
Mr. Boughton
Yes, but I need to qualify that. The agency would not act unilaterally. The Union rules would need to come into play in circumstances where member states would make a complaint against a particular member state.
Could an ad hoc citizens’ group or the refugees in question appeal to this agency?
Mr. Boughton
No, it would be done at a much higher level.
I welcome both gentlemen and thank them for the presentation. Sometimes when one is trying to do right, one may end up doing wrong. I have one question for Dr. Manning. Are concerns being expressed in other EU states similar to the ones he expressed with regard to the setting up of the fundamental rights agency?
Dr. Manning
There are concerns but most people would hope that the agency, as it develops over time, may well transform itself into a true human rights agency rather than the half-way house it is at present. In fairness, many of these concerns such as those expressed in other national parliaments are being listened to. We have found that what we have been saying has got through. It is too early to say whether it will change matters but there are concerns.
Mr. Boughton stated that this was a work in progress and that nothing definite has yet emerged. Perhaps an approach would be to keep the committee informed, by way of a note from time to time, as he has these meetings. It was Deputy Mulcahy who initially asked that we hold this hearing. Unfortunately, he is not present today. At the very least, we would appreciate the approach I outlined.
Mr. Boughton
I will certainly do that. I have given the same commitment previously. This is our second appearance in the Oireachtas, as we were before the Joint Committee on Justice, Equality, Defence and Women's Rights in October. This being three meetings later, the committee has received a more up-to-date position on the discussions.
Does Dr. Manning wish to say anything further?
Dr. Manning
No, except to thank the committee for inviting me to come before it.
I thank all those who came before the committee today.
The joint committee went into private session at 3.30 p.m. and adjourned at 3.35 p.m. until 2 p.m. on Tuesday, 25 January 2006.