Bring on the Constitution

Despite Government reticence and Tory dismissal, the European Constitution should be welcomed here, if only for the sake of human rights, writes Roger Smith
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The Independent Online

Last week, Oliver Letwin MP made a splash with his "far, far away" speech, proposing that asylum-seekers be sent to a distant place to await their fate. But in the same speech the shadow Home Secretary also revealed another of his controversial views: that he wants to throw out the whole proposed European Constitution, including the Charter of Fundamental Rights; the European Convention on Human Rights (at least, as far as it concerns asylum-seekers); and the Geneva Convention on Refugees.

Keith Vaz, when Labour's Minister for Europe, famously argued that the Charter is about as useful "as The Beano". The Government's negotiating position on the constitution, revealed in a recent White Paper, is more diplomatic but remains silent or begrudging on the commendable attempt to bed human rights at the centre of the new constitution. Whatever the macro-politics of the European project, we should surely be more welcoming to this element.

The fundamental document of human rights in Europe is, of course, the European Convention, drafted just after the Second World War, not by the Union but by the Council of Europe. Ironically, this was largely drafted by a team of UK lawyers. Its provisions were only incorporated into our domestic law by the Human Rights Act 1998, and its effects are slowly working their way through our political and legal culture. Peter Hain, Keith Vaz's more thoughtful successor, listed human rights as among the Government's key areas of achievement in a recent Today interview. And rightly so. Yet, there remains an air of unease among ministers about what they have done. Tony Blair even prefigured Letwin by speculating on Breakfast with Frost that we might want to pull out of the Convention's provisions that prevent us sending someone to a country where they may be tortured.

Such sniping against the Convention is unworthy. Furthermore, the EU itself should sign up to the Convention in order to bind itself to the Convention's human-rights principles - as is proposed in the draft constitution. Even Tory proposals for an alternative EU constitution go so far as to call for the European Court of Justice to "respect" the European Convention. Oddly enough, the Government's White Paper is silent on the issue. Yet, consistency is manifestly desirable between the two European Courts - the EU's Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg.

New initiatives such as the European Arrest Warrant mean that we have a direct interest in all EU countries actually implementing Convention standards in practice, and not just uttering pious words. EU ministers, proudly led by ours, rushed through a series of measures to assist in the fight against terrorism. These included simplified procedures for such a warrant - to be implemented in the UK by an Extradition Bill still in the House of Lords. However, ministers agreed the coercive procedures but delayed discussion of the necessary balancing safeguards. As a result, the Union is belatedly dealing with a welter of initiatives on matters such as bail, double jeopardy and legal aid, which should have been dealt with at the same time as the warrant itself, to avoid unnecessary suspicion of the new procedures.

The UK's failure to champion human rights is all the more odd because we actually have rather a good domestic record. The Government wants the EU to set only "light minimum standards" where the new constitution envisages rules for such important issues as the mutual admissibility of evidence and the rights of defendants and of victims. Why set the bar so low? British defendants in other EU countries deserve as high standards as they would get in courts here.

The main human-rights issue raised by the draft constitution relates to the European Charter of Fundamental Rights. It is embedded deep in the new constitution - forming the second of its four parts. The charter is the sort of document that strikes fear into the heart of any English common lawyer. It simplifies the hallowed words of the European Convention, thereby - they argue - sowing confusion. Not content with that, it contains rights taken from other international covenants and articulated as the sort of comprehensible principles that lay people appreciate and lawyers don't - "Academic freedom shall be protected", for example. Worse, of course, some of the provisions are not only distressingly clear; they are, to many politicians of most UK parties, plain distressing - most notably, the protection of the right "to take collective action to defend ... interests, including strike action".

Yet, those drafting the constitution fell over backwards to meet UK objections: the Charter is binding only on EU issues; a distinction is helpfully drawn between provisions that amount to guiding "principles", only to be relied upon when implemented, as against those that are directly enforceable "rights"; the constitution reasserts, for the avoidance of doubt, that the existence of the charter does not add anything to the powers of the Union. Anyone who dislikes the idea of such a charter should read it. It is actually a pretty good statement of values for a civilised Europe.

Our government wants to keep holding all the cards. The White Paper indicates that we like the idea of a charter as "a political declaration", but do not regard it as "clear enough for legal use". Yet, the Government is manifestly positioning itself to dump its objections and agree. Maybe it sees this as a possible bargaining-chip. Domestically, it may not want to be seen as soft on rights and the causes of rights - especially if the source is Europe.

Our human rights have gained enormously from our membership of the EU, which has, for example, extended domestic initiatives to remove discrimination, and has already pushed us well beyond the limited civil and political rights of the European Convention. The Constitution could deliver us one step further towards entrenching a human-rights culture both at the heart of Europe and of our domestic political culture.

Roger Smith is the director of Justice, the all-party law reform and human rights organisation