Yesterday the House of Commons held a debate on several EU’s human rights documents, particularly a draft Council Decision appointing the European Union Special Representative for Human Rights, and the EU Action Plan on Human Rights and Democracy. During the debate Bill Cash made the following speech and interventions:
The Minister for Europe (Mr David Lidington): I beg to move,
That this House takes note of European Union Documents No. 18635/11, relating to the Joint Communication to the European Parliament and the Council on Human rights and democracy at the heart of EU external action-towards a more effective approach, together with an unnumbered Explanatory Memorandum dated 7 June 2012, submitted by the Foreign and Commonwealth Office, relating to a draft Council Decision appointing the European Union Special Representative for Human Rights, and the EU Action Plan on Human Rights and Democracy, and No. 8905/12 and Addenda 1 and 2, a Commission Report to the European Parliament and the Council, the European Economic and Social Committee and the Committee of the Regions on the Application of the EU Charter of Fundamental Rights; notes the Commission document on the Progress on Equality Between Women and Men in 2011; endorses the Government’s intention to support the draft Decision on the EU Special Representative for Human Rights; and welcomes the Government’s work to provide for enhanced Member State oversight of the Special Representative’s activities in Articles 10 and 11 of the draft mandate.
The motion deals with a number of European Union documents. As the House will appreciate, the Foreign and Commonwealth Office is responsible for those documents dealing with the EU’s human rights strategy and the proposed appointment of a human rights special representative. The Ministry of Justice is responsible for other documents included in the bundle, and I acknowledge the presence of the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), in that connection.
Two years ago, almost to the day, the House debated the creation of the European External Action Service, an institution set up by the Lisbon treaty. The Government took the view that, whatever opinions the two parties in the coalition had about the creation of the EAS, now that it existed as the creation of the Lisbon treaty, we wanted the new institutional arrangement to complement our own strong commitment to an active British foreign policy and to use the EAS to help to deliver the diplomatic objectives of the United Kingdom. Our judgment is that the EU’s new human rights strategy is an example of how the EAS can be used to complement and amplify the UK’s own human rights policy.
This afternoon, I want to address some of the concerns expressed by the European Scrutiny Committee and others about the implications of the measures before us. I have singled out three matters in particular.
Oliver Heald (North East Hertfordshire) (Con): My right hon. Friend is absolutely right to address the concerns of the Scrutiny Committee, but does he accept that there is some concern in the Council of Europe Parliamentary Assembly, particularly about how the two jurisdictions of the special representative and the human rights commissioner of the Council of Europe will overlap and interweave, whether this will be duplication or a takeover, and whether it all makes sense?
Mr Lidington: I completely understand my hon. Friend’s point. I said that I wanted to address the concerns expressed by the European Scrutiny Committee and others.
The three issues I have in mind are: first, the need to maintain the rights of member states to determine their foreign policies and to avoid any scope for competence creep towards the EU institutions; secondly, concerns about the balance of responsibilities between the EU institutions themselves and, in particular, the role of the European Parliament; and thirdly—this goes straight to my hon. Friend’s point—the relationship between the EU special representative on human rights and the work of the Council of Europe, particularly its human rights commissioner.
Let me deal first with the question of competence and the rights of member states to determine their foreign policy. Democratic freedoms, universal human rights and respect for the rule of law are at the heart of British diplomacy and policy. I believe that the new EU human rights strategy and in particular the EU special representative on human rights will help us to deliver our national foreign policy objectives better through the EU, by providing a strong and visible face for its external action on human rights. The EU’s external human rights policy flows from the common defence and security policy, which will provide the operating framework for the special representative. Declaration 13, annexed to the treaties, provides confirmation that the CFSP does
“not affect the responsibilities of the Member States… for the formulation and conduct of their foreign policy”.
Therefore, the new human rights package will not affect our ability to formulate and conduct our own national foreign policy. Furthermore, decisions at European level on CFSP require unanimous approval by the Council, with agreement by every member state. No EU position on external human rights policy or any other aspect of common foreign and security policy can be agreed without the approval of the British Minister or other representative in the room, and of course the same right of veto applies to every other member state. There is no suggestion in these documents or elsewhere that there should be any change to those arrangements.
The Government’s view remains firmly that the EU must act only where it has the competence to do so under the European Union treaties. We will remain vigilant against any threat of competence creep through the actions of the External Action Service. It is essential that the EAS continues to complement and support, not replace, national diplomatic services. That is why, for example, we have been so resolute on the principle that the EAS should have no front-line role in consular services, which would go beyond the supporting role for member states provided for in the treaties.
So far the EAS has delivered best when it has worked closely with member states and capitalised on the resources of member states and EU institutions. I will quickly highlight what I think are a number of genuine achievements from the past year where the EAS has worked well and, in doing so, has helped to deliver important British foreign policy objectives.
First, there was the review of the European neighbourhood policy, which has produced an ambitious framework for the EU’s approach to the emerging democracies of north Africa and the middle east. That is now starting to have a practical impact through structures such as the EU-Tunisia taskforce.
Secondly, the EAS and Baroness Ashton personally have worked closely with the E3 plus 3 to engage Iran over its nuclear programme, and the EU recently agreed to the most far-reaching sanctions ever imposed on any other country, working in that case closely and efficiently with the Governments of the individual member states. Thirdly, the sanctions already in place against the Syrian regime—16 rounds already agreed—are still under consideration and may be strengthened further.
The proposed EU special representative will allow us to deliver more such examples of successful EU external action. The role is granted in article 33 of the treaty on European Union, which provides:
“The Council may, on a proposal from the High Representative …appoint a special representative with a mandate in relation to particular policy issues.”
The way in which the mandate is implemented will be critical, and I am glad that the European Scrutiny Committee noted the United Kingdom’s successful efforts to secure an additional layer of member state oversight of the special representative’s activities, in order to guard against any unwelcome or unwarranted expansion of their responsibilities. Article 11 of the mandate provides that
“the EUSR shall work in coordination with the Member states.”
Article 10 requires that he or she “shall also report to the competent Council working parties”, and article 4 states that the Council’s
“Political and Security Committee shall maintain a privileged link with the EUSR”.
The last provision is common to all EUSR mandates. In practice, that “privileged link” means that the special representative will be able to communicate directly with the Council, bringing together the representatives of the 27 member states, rather than having to go through the High Representative or through other structures. The mandate also ensures that the Political and Security Committee will
“provide the EU special representative with strategic guidance and political direction.”
Given those safeguards, I am confident that the United Kingdom is well placed to play a leading part in giving that direction and guidance to the EUSR and in holding the special representative to account for his or her actions.
The appointment of a special representative will in no way affect the United Kingdom’s ability to speak, as now, on its own behalf in international organisations, including the Human Rights Council of the United Nations. As is the case now, the European Union may speak on our behalf only if there is a shared position to which the United Kingdom has signed up, and which requires unanimity. On the basis of those safeguards, I seek the House’s approval for the establishment of the role.
(…)
Mr Cash: It is also true that the Minister is at the Dispatch Box and has a responsibility to answer these questions. There are four pages under the headings of outcome, action, timing and responsibility. Is he seriously suggesting that in every single respect, given the general nature of all these things and the fact that the legal consequences will ultimately end up in some court or other, he is right in making such a general assertion?
Mr Lidington: Yes, of course the action plan is expressed in general terms, because the intention is that those general principles should be applied to the European Union’s human rights activity across the range of EU dossiers and areas of external policy action.
On the common foreign and security policy—CFSP—the freedom of the EU special representative or the High Representative to express a view and develop a policy on behalf of the EU collectively will depend on whether a CFSP position has been unanimously agreed for a particular country, region or crisis. The action plan describes in general terms how the EU and its High Representative and special representative should determine their priorities for action, but we cannot sit down in
July 2012 and write down in detail which countries and crises will be involved and in what manner such work should be undertaken. Foreign Ministers in the Foreign Affairs Council and national representatives in the Political and Security Committee will consider these matters case by case.
The European Parliament saw a role for itself on the CFSP following the Lisbon treaty, and we were equally clear that the CFSP would remain intergovernmental. The High Representative has made a gesture to the Parliament in a non-binding declaration on political accountability, which says that she will seek the views—nothing more than that—of the European Parliament on CFSP matters. As one would expect, the European Parliament has taken a keen interest in the new human rights package. In accordance with article 36 of the treaty on the European Union, the mandate for the special representative provides that he or she
“may be involved in briefing the European Parliament.”
However, such briefings may take place only in a committee or sub-committee configuration and never in plenary debates, in which only the High Representative may participate. This reflects the arrangement, which we firmly support and uphold, that on issues pertaining to the CFSP the High Representative may be replaced in plenary only by a Minister of a member state.
I want to move on to the possible overlap with the Council of Europe, which concerns several Members. I start by acknowledging the important work that right hon. and hon. Members in all parts of the House play as Members of the Parliamentary Assembly of the Council of Europe. I recall the very pleasurable visits that I made to the Parliamentary Assembly during the United Kingdom’s six-month presidency of the Council of Europe. It is clearly important that there be effective, mutually trusting co-ordination between the Council of Europe, particularly its human rights commissioner, and the EU’s new special representative on human rights. That is reflected in the wording of the mandate, which I will describe shortly.
I note that the two roles have distinct responsibilities. The Council of Europe’s human rights commissioner is mandated to promote awareness of and respect for human rights within the member states of the Council of Europe. The EU special representative’s role is different; it is to promote human rights globally as part of the EU’s unanimously agreed CFSP. Both office holders will be involved in work on promoting respect for human rights in states of the Council of Europe that are not EU member states. To avoid any risk of unhelpful overlap and duplication, article 11(3) of the EUSR’s mandate expressly requires him or her to
“liaise and seek complementarity and synergies with other international and regional actors”.
To turn that jargon into English, it means that the special representative should maintain a regular dialogue with the commissioner to avoid duplication. The secretariat of the Council of Europe has expressed no concern to us about the creation of this role. Indeed, subject to proper co-ordination, it welcomes an increased focus on human rights within the EU’s external action.
During the UK’s presidency, I discussed with Secretary-General Jagland the relationship between the Council of Europe and the European Union. I was pleased to learn from him and other senior officials in the Council of Europe that, over the past year or so, there had been a distinct improvement in the quality of liaison and co-operation between the two organisations. There was a feeling, certainly among the secretariat, that there was no longer the pressure from the EU that there had been for its institutions to take over the work of the Council of Europe; rather, efforts were being made on both sides to agree the areas where each was likely to be the most effective actor.
(…)
Mr Cash: Is the hon. Lady aware of the enormous majority that the President, Prime Minister and Government of Hungary have as a result of free and proper elections? Does she think it the right and duty of the EU or the Venice Commission to tell a member state how it should behave, when it has such a massive democratic mandate? This is a very serious question.
Emma Reynolds: I agree only that it is a very serious question. The EU must promote and protect human rights within its member states, regardless of the majority that a President or Government have received from the electorate. We should not tolerate the judiciary, the media or other such institutions being under the control of whatever Government in whatever member state. Labour Members are proud of our record on human rights while in government. We passed the Human Rights Act and prioritised the promotion of human rights in our external policies, particularly our development policy. Further back in history, the UK was one of the leading architects of the European convention on human rights. We remain proud that the UK is a signatory to that convention, and we are a full and active member of the Council of Europe.
Although we welcome the Government’s position on the documents before the House, it seems that the Government are not always entirely consistent in their commitment to human rights. The Minister has said positive things today, but his Conservative MEPs in Brussels say and vote entirely differently. Regrettably, they sit with a rag-bag of anti-Semites, holocaust deniers and homophobes.
Mark Reckless (Rochester and Strood) (Con): Rubbish!
(…)
Mr William Cash (Stone) (Con): I have listened to the hon. Member for Wolverhampton North East (Emma Reynolds), and my concern about this whole debate is that it seems that, somehow or other, there is a universality about human rights, without reference to democracy in individual countries. The question I have to ask is: how do we define what a human right is?
It is not so simple. I believe in human rights; I believe in the manner in which we legislate. However, we are already having a massive debate in the House of Commons about the Human Rights Act 1998, and also about the commission that has been set up as a result of the coalition agreement. There are also massive questions being raised about the manner in which our judiciary is interpreting human rights—in relation to extradition, deportation, Abu Qatada, and so on. I have even noticed some Opposition Members showing an increased interest in whether human rights can be regarded as entirely generic and universal, when it is actually up to individual member states and individual Parliaments, based on the votes cast in general elections, to decide whether a particular human right is or has been contravened.
Jo Swinson (East Dunbartonshire) (LD) rose —
Mr Cash: I will happily give way to the hon. Lady, because I am getting increasingly fed up with these people who continually assert, with their political correctness, that they know what a human right is. It is down to Parliament, based on what is decided by the voters in general elections, to determine those questions. It is a matter of law, not just some generic universality. I will be the first to fight for habeas corpus or trial by jury. What worries me is all these generic expressions—I will come to that in the middle of my speech—and this whole concept, which is promoting more and more generic human rights creep.
Jo Swinson: I sometimes wonder whether it is better not to encourage the hon. Gentleman, but I want to challenge him on universality, because I believe, as do many others, in the universality of human rights, as have been signed up to by our Government through the United Nations conventions.
Does he really think that we in this country have no role in arguing and campaigning for changes abroad, and that if, for example, even a democratic country elsewhere in the world decided that it would persecute Christians—torturing them, and so on—just because of their beliefs, that should be of no concern to us whatever and that we should not try to change minds or persuade others to take action to change it?
Mr Cash: No, I do not. As a matter of fact, I have been very much personally involved in the Jubilee campaign, standing up for the rights of people in other countries who are being persecuted. Indeed, as the hon. Lady will know, I have also promoted the issue by forming the all-party group on water and sanitation in the third world. I stand absolutely 100% behind people’s rights in that regard. What worries me is when the whole thing is codified—as it is in the papers before us and the strategic plan—and interwoven with the universality matrix, and then buttressed by legal requirements. Therefore, when I hear the Minister saying, “Well, we will exercise the veto as and when it is appropriate”—if I can put it in generic terms—I simply do not believe that to be a realistic way of dealing with the issue.
This is another example of the European Union engaging in European creep on a monumental scale. I am not against the individual defence of people in relation to human rights questions, and there are many things that crop up in the European strategic framework and action plan that I would strongly support in an individual context. What worries me is the universality, not only because of the panoramic view that is taken of all these matters, but because of the panoramic way in which it will be applied in practice, headed by the European representative. This is essentially a practical question.
Dr Julian Lewis (New Forest East) (Con): Is it my hon. Friend’s assertion that, while he has no objection to a democratic country expressing strong views about abuses of human rights in other countries, democracies or otherwise, his real objection is that the European Union is seeking to take on this role without constituting a democracy in its own right?
Mr Cash: That is exactly the point. This is almost a jurisprudential question. It is not about fancy philosophy; it is about how we make decisions relating to individual, practical instances. My hon. Friend is entirely right to make that point. It is difficult to imagine that we will be able to make a choice, once the machinery is moving forwards. I shall give the House an instance from among the wide range of activities in the many pages of the strategic framework and action plan that has been adopted by the EU Council. By engaging in this proposal, we are effectively endorsing European creep. I know that my right hon. Friend the Minister says that that will not happen, and that we will have the opportunity to exercise the veto, but I just do not see this as a practical way of working.
The Council has adopted the measure, and we have demanded this debate on the matter for very good reasons. We want to examine exactly what the measure contains. There simply is not enough time, in the one and a half hours allotted to us, to go through the incredibly complex questions that arise from the matter or to deal with the interaction of the decisions and the impact that they will have on human rights law in this country or in others.
I shall give the House a flavour of what I am talking about. Anyone listening to or reading the debate might like to look at the range of matters in the action plan. I mentioned that it is divided into outcomes, actions, timings and responsibilities. It is divided into seven chapters, and it sets out a variety of external policy activities. This has been agreed by all member states.
Seven headings cover 36 policy areas and 97 potential actions, and that deals with the matter only in the generic sense. When we reduce this to individual cases, we are effectively saying that the EU will have a supervisory responsibility, subject only to the caveat that we will be able to exercise the veto, as my right hon. Friend the Minister said. I do not see that happening, however, once the machinery has been set up.
This is very much like the External Action Service. Indeed, it is very much like the EU itself. I said in 1992, or whenever it was—it seems a very long time ago now—that once the Maastricht treaty had gone through, once the European governmental system had been created with all the qualified majority voting that went with it, once we had created the mechanism and endowed it with resources, and once we had increased and implemented its legislative capacities and functions, we would have constructed an enormous creature that was incapable of being restrained. That is exactly what has happened, with disastrous consequences.
To come back to the main issue, let me provide a few examples. In the first place, the action plan refers to
“Human rights and democracy throughout EU policy”.
For those who are interested, this is taken from a Library note dated 9 July. It is also is referred to in the papers before us and it has been looked at by the European Scrutiny Committee. The plan refers to the need to “Incorporate human rights in all Impact Assessment”,
and to
.“Insert human rights in Impact Assessment, as and when it is carried out for legislative and non-legislative proposals, implementing measures and trade agreements that have significant economic, social and environmental impacts, or define future policies.”
I would like to know what is not included in that, and what the opportunity would be for any restraint on the use of such provisions in the strategic plan.
The plan also refers to
“Genuine partnership with civil society”,
and that
“Heads of EU Delegations, Heads of Mission of EU Member States, heads of civilian missions and operation commanders shall work closely with human rights NGOs active in the countries of their posting.”
I would be the first to support NGOs in their individual activities, but this is a mandatory requirement, going beyond what I would describe as voluntary activity. Then there is the need to
“Present EU performance in meeting the objectives of its human rights strategy in the annual report on human rights and democracy in the world.”
I would be on the side of all those campaigners when it comes to individual human rights matters. I see in his place the hon. Member for Islington North (Jeremy Corbyn), who knows that I campaigned with him on issues relating to the Chagos islanders. Going further back, I was also involved with the issue of aboriginal rights in Canada. I could provide a whole list to show that I have been as much at the forefront as anyone else when it comes to campaigning against abuses of human rights. Where I differ, and why I object to these arrangements, is in respect of this overarching determination to get away from specific campaigns into this idea of universality, whereby I think we miss the wood for the trees.
Jeremy Corbyn: I acknowledge the hon. Gentleman’s genuine support for human rights issues in many parts of the world and the fact that he campaigns on them. Does he agree with me, however, that the issue of the Chagos islanders is now before the European Court of Human Rights and that it will take a decision? Both the hon. Gentleman and I want it to go in the same direction. Is this not one possible way of bringing about justice for the people who were treated so abominably in 1982?
Mr Cash: I would rather have the hon. Gentleman leading the campaign for the Chagos islanders than the EU representative who is being appointed under these documents. It is the individual commitment that counts. If I may say so, it is rather like John Bright, who campaigned for people’s rights throughout the world—in our colonies and our empire—in the 19th century. It is the individual passion and determination to stand up for people that I look towards. That is what Wilberforce was all about. I doubt whether William Wilberforce would have been deeply impressed by the manner in which this is being done. I really have to ask that question, because in my judgment, it is not desirable to end up creating this universal approach.
The second chapter is “Promoting the universality of human rights”.
With the outcome of “universal adherence”, it specifies the action: “Intensify the promotion of ratification and effective implementation of key international human rights treaties, including regional human rights instruments”—
and so it goes on and on, page after page, and I am reading from a tightly compressed printed version. In an intervention, I think I mentioned four pages, but there are seven pages of this. All I need to say is this: is this really the right way to go? Baroness Ashton and the entire External Action Service are, I believe, simply another manifestation of the problem. On the very day we have been told that we are to examine all the workings of the European Union in relation to the United Kingdom —all its competences—the central question is being lost, and a globalising, universal approach is being taken to something that will have to form part of the review announced by the Foreign Secretary.
On the very day we have advocated an analysis of the manner in which the European Union functions, we seem to be effectively endorsing a strategy that goes in exactly the opposite direction to the views of all those Members who support not only the review, but the repatriation of powers and the resolution of the human rights questions that are so bedevilling the relationship between Parliament and the judiciary and the whole question of extradition, the whole question of immigration policy, and the whole question of the application of law in this country on matters pertaining to human rights.
I view this development with grave concern. I do not refer to its individual application to individual cases; I refer to the attempt, through what I consider to be European federalisation or European creep, to convey the concept of a European Union that is acting on behalf of all of us. If a country such as Hungary has made a decision in its own Parliament, I think that that should be respected. Through their electors, through general elections and the democratic will of their own people, individual nation states, or member states, should be allowed to decide these matters, rather than having their decisions overridden by universality of the kind that these documents represent.
(…)
Question put and agreed to.
Resolved,
That this House takes note of European Union Documents No. 18635/11, relating to the Joint Communication to the European Parliament and the Council on Human rights and democracy at the heart of EU external action-towards a more effective approach, together with an unnumbered Explanatory Memorandum dated 7 June 2012, submitted by the Foreign and Commonwealth Office, relating to a draft Council Decision appointing the European Union Special Representative for Human Rights, and the EU Action Plan on Human Rights and Democracy, and No. 8905/12 and Addenda 1 and 2, a Commission Report to the European Parliament and the Council, the European Economic and Social Committee and the Committee of the Regions on the Application of the EU Charter of Fundamental Rights; notes the Commission document on the Progress on Equality Between Women and Men in 2011; endorses the Government’s intention to support the draft Decision on the EU Special Representative for Human Rights; and welcomes the Government’s work to provide for enhanced Member State oversight of the Special Representative’s activities in Articles 10 and 11 of the draft mandate.
