House of COMMONS
MINUTES OF EVIDENCE
HOME AFFAIRS COMMITTEE
European Parliament, Brussels
Tuesday 28 November 2006
MR JONATHAN FAULL and MR LUIGI SORECA
MR GRAHAM WATSON and MS JEAN LAMBERT
USE OF THE TRANSCRIPT
Taken before the Home Affairs Committee
on Tuesday 28 November 2006
Mr John Denham, in the Chair
Mr Richard Benyon
Mr James Clappison
Mrs Ann Cryer
Mrs Janet Dean
Witnesses: Mr Jonathan Faull, Director-General, and Mr Luigi Soreca, Head of Unit Strategic Policy, Evaluation and Institutional Affairs, DG Freedom, Security and Justice, European Commission, gave evidence.
Q64 Chairman: Good afternoon, gentlemen. Thank you very much indeed for coming. It is something of a record, I suspect, to give evidence to two parliamentary select committees in the same day, Mr Faull, but thank you very much indeed for coming. This is, as you know, a formal evidence session though we have had an extremely good two days in Brussels meeting colleagues of yours and Members of the European Parliament and some of the NGOs. You probably know that this is the first time the Home Affairs Select Committee rather than one of the European scrutiny committees has looked at the influence of the EU on home affairs policy, and indeed everyone is saying to us that this is a good time to do so and it certainly strikes us that European Union influence is growing considerably, whatever the decision-making procedures, so hopefully our final report will be of use to the Parliament in the UK. I wonder if I could ask each of you to introduce yourselves for the record and then I will open up the questioning.
Mr Faull: Thank you. Good afternoon. Jonathan Faull, Director-General of Justice, Freedom and Security at the European Commission.
Mr Soreca: Good afternoon. I am Luigi Soreca, Head of the Unit in the same Directorate-General.
Q65 Chairman: Thank you very much indeed. What we would like to start by doing is exploring some of the background to the proposals that the Commission has made in changing decision-making structures on justice and home affairs, particularly criminal justice issues. Is there a case for saying that there is undue emphasis placed at the moment by the Commission on the adoption of legislation rather than the development of practical co-operation in policing and judicial co-operation? Can you highlight areas where in your view we simply cannot move forward effectively just by practical co-operation and must have legislation?
Mr Faull: There is certainly a considerable place for practical co-operation and a lot of that goes on. Where we do believe that legislation is necessary is where across 25 (very soon 27) countries there needs to be a common set of rules so that people know precisely what they have to do so that citizens know what the law is. We do not have a vast body of legislation, for two reasons, first because this is still a relatively new area of the Union's activity, and, secondly, because it is not an area where legislation is the only answer. We do not legislate for the sake of legislating. We propose legislation, or Member States indeed in this area may also propose legislation, where it seems to be the best response.
Q66 Chairman: Could you be a bit more specific about the areas where you think that is most pressing?
Mr Faull: To give an example of what has been done, the European arrest warrant was considered to be something necessary. It could really only be done properly by legislation. It is not something that can be done by informal co-operation, obviously, between police forces across Europe. It is also necessary to bear in mind the need for the balance which has to be struck at all times between law enforcement measures and the necessary protection of the rights of the individuals concerned, and that sometimes has to be done by legislation as well. Another example from a more recent period is data retention for telecommunications and computer information. If we want our police forces across Europe to have access to or at least to know that there is available information to which they may need access in carrying out their investigations into terrorism or other forms of serious crime, that cannot be done by informal operational co-operation. It requires some rules and we have the mechanisms in the European Community in that case to lay down those rules for all the Member States.
Q67 Chairman: Whenever we have asked the same question about legislation, everyone at least starts by talking about the European arrest warrant. The European arrest warrant is there, it is in place, it is working and it was done in the existing system of legislation within the European Union. I think the Commission was very positive about the Finnish Presidency proposing the use of the passerelle to bring some of these matters into the First Pillar. Why, given that something as big and as important as the European arrest warrant is in place and through our existing procedures, has the Commission wanted to push towards this more streamlined system of decision-making?
Mr Faull: Frankly, without drawing simplistic inferences from timing, it is no coincidence that the European arrest warrant was adopted very shortly after the terrorist attacks in Washington and New York on September 11 2001. It is the only example, frankly, of legislation of that importance which was enacted relatively quickly and a lot of people believed that without 9/11 it would not have been adopted that quickly. Some cynics have gone so far as to say that we might still be talking about it today. One important contrast, to illustrate my point, is that with a similar piece of legislation concerning something called the European evidence warrant, which provides for the transmission of evidence from one jurisdiction to another in cases of investigation of terrorism or other serious cross-border crimes from one Member State to another in the European Union. We had always considered that to be the inseparable accompaniment to the European arrest warrant. You surrender people from one place to another. You should also, without much more difficulty, put in place, we thought, a system for the surrender of evidence, the transmission of evidence from one place to another so that the law enforcement and judicial mechanisms that we all have can work properly. I have to say that the European evidence warrant took years to enact and when it was finally enacted earlier this year it was legislation with many extremely welcome principles but accompanied by many exceptions, exemptions and derogations for Member States to keep their own particular procedures in place at the same time. It is therefore legislation of less good quality, it is more difficult to apply for judges, for practitioners, and we think it is less effective than it could be and that it should be. Those examples I think show that without the pressure of external events which concentrate minds, including the minds of the legislators, but with the rather cumbersome system of law-making that we have at the moment for Third Pillar issues, we end up with legislation which is slow to enact, laborious and sometimes of less good quality than it should be.
Q68 Chairman: I will come to the issue of effectiveness in a moment, if I may, but the implication of what you say is that if the decisions were taken in the First Pillar you would get better quality legislation but possibly a considerable number of countries would have to go without the various qualifications and reservations that they have got into the European evidence warrant at the moment. Could you explain, because I am still a bit of a beginner in this, first, why you believe that changing the decision-making procedure to QMV would produce better quality legislation, and, secondly, what are the sorts of things that national parliaments and national governments would have to give up and why you feel that the Member States would feel happier with the outcome? The implication is that at the moment everyone has got the bit that they wanted to protect, in the future they will not have the bit that they want to protect but everybody should be happier about it. It is not obvious why that should be the outcome.
Mr Faull: No, people would not necessarily have to give up things they hold dear. They would have to make perhaps a greater effort to persuade the others why it is necessary to do so, but one should not necessarily be defensive about these things. If there are good reasons why something which has worked well at national level should be preserved, or indeed even extended to the others, I think a self-confident negotiator should be able to bring that about. Even with the unanimity system we have at the moment it is rare, very rare in fact, for one Member State alone to be isolated on a particular issue. Among 27 countries we have a very wide variety of views, but the move from the Third Pillar to the First Pillar would not entail only getting rid of unanimity, getting rid of the veto. It would also bring the European Parliament more into the picture, which would not necessarily, by the way, speed things up because I am not saying that the First Pillar process is necessarily terribly quick. Complex legislation involving 27 countries and several European institutions is bound to take time, but the scrutiny that the European Parliament brings to bear on the issues before it, the debates between Member States in the Council, the accountability that ministers representing their states in the Council have to you in national parliaments, all of that should produce, it seems to us, a better mix of effectiveness and accountability than the one we have now.
Q69 Chairman: It might be invidious to ask you to name countries in your position, but you must have had in mind that certain countries have put certain reservations into the European evidence warrant which complicate the system and make it more difficult to operate. Can you at least give examples to us, so that we understand the process, of the sorts of reservations that countries have got into the final version of the European evidence warrant that really you think in operational and legal terms we would be better to have done without?
Mr Faull: One of the big issues in this area of policy generally is the question of dual criminality: should a particular offence be characterised as a crime in both countries for something to happen between them, for the person to be surrendered under the arrest warrant or the evidence under the evidence warrant? The way we have tackled it, and it is very difficult because we do not want to set about harmonising criminal law, I do not think you would want us to do that and, whatever people believe, we do not want to do that because we would be doing it for centuries and failing no doubt, is that we take each national criminal law system as it is but we have to face the problem that people define even crimes with similar names and similar characteristics differently. Murder in one place is not exactly the same as murder in another, so what do you do? What we have done is draw up a catalogue of certain agreed very serious crimes, and Member States agree that for those crimes, whatever the differences between their national legal systems, they will surrender people under the arrest warrant. When it came to the evidence warrant we had enormous difficulty with one Member State, a rather large Member State, and I am not going to name names exactly, which wanted to retain a certain element of dual criminality by saying, "I will not surrender evidence regarding an alleged crime to another Member State unless the facts give rise to a crime in my legal system as well", and we had to give way and compromise in order to get that Member State to agree, when everybody else had agreed at the end of the day to the evidence warrant, for the thing to go forward. Another issue which is terribly important and raises an issue at the heart of the whole European endeavour in this field is where there is a certain lack of trust between Member States which causes one or more of them to insist on a final fundamental rights-based check on what is asked of it by another Member State so that, instead of an automatic surrender of evidence to another Member State, the country asked to provide the evidence would look at the facts of the case and carry out a human rights check essentially. We have a case of that too written into the legislation for one country only.
Q70 Chairman: Can I move on to the question of effectiveness? The extent to which the type of example that you have given is a practical problem is surely only where, as a result, crimes go uninvestigated and unpunished and criminals go free. It is not clear, reading the Commission's evaluation of the Hague Programme documents generally that the Commission is able to evaluate what is actually happening on the ground in terms of our overall effectiveness in bringing criminals to justice as opposed to evaluating how well this or that piece of legislation has been transposed into national law. Do you think that when the Commission is looking at policy in this area it has a sufficient grip on the real world problems that lie behind the whole debate or is there a danger that it takes too formal and legalistic approach in trying to have common approaches across the Union?
Mr Faull: We are conscious of that perception and perhaps of that danger and we do everything we can to make sure that we have as many facts and as much analysis as we can available to us before embarking upon the road to legislation. We do not propose legislation unless and until we have carried out a full impact assessment. That impact assessment requires detailed contact with the Member States, with practitioners, with all sorts of organisations active in whatever the field may be and it is not until we have persuaded ourselves and others within the Commission system that this is the path we need to follow that we propose legislation. Is it always absolutely perfect? There are different views on that. All I can say is that, knowing the complexity of the area across 25 (soon 27) countries, we make every possible effort to do that. The next stage, of course, is making sure that what we have put in place once the Council has enacted legislation is being implemented effectively on the ground, and that is why we attach considerable importance to evaluation. We do not have in the Third Pillar field the normal enforcement tools at our disposal of infringement proceedings, let alone the best possible enforcement tool of creating rules which individuals then go out and have enforced themselves in the courts, but we are very attached to evaluation of what we have done to see whether it has worked, whether it was cast in the right way, whether it needs to be changed in any way, and you will have seen in our papers that we are setting up a rather comprehensive evaluation system on all that we have done so far in the Third Pillar to check that it is working properly.
Q71 Chairman: On the European arrest warrant, it has been put to us by several people that possibly no country has exactly put the European arrest warrant into national legislation in the way that was implied by the directive. However, it is easier to find out, as far as I can see, the Commission's view on whether countries have put it into international law correctly or whether they have had unwelcome reservations and exclusions and so on than whether there is a major problem of significant numbers of people avoiding extradition because of the different quirks of national legislation. In the evaluation you are going to do are you going to give us more of that latter type of hard number counting information as opposed to legal analysis?
Mr Faull: Absolutely as much as we can but we are at the mercy of the Member States who have to give us this information. I say "have to". There is no legal obligation to do so. We depend on their goodwill, and indeed the legal professions insofar as they can, in letting us know precisely what is happening on the ground. We want to know that and whatever we can find out we will divulge more generally. It is very much in our interests to do so. Whoever said that it has not been implemented properly anywhere sounds a little harsh.
Q72 Chairman: Or "absolutely fully", I think it was.
Mr Faull: Okay, "absolutely fully". Perhaps "absolutely fully" is a hard test to meet, but we already know of some very significant cases in which it has worked and it has been used and it has brought extradition times, to use the old -----
Q73 Chairman: If I can just interrupt, that is my point in a sense. It appears to be working even though a purist might say, "It has not been implemented in the most efficient manner because there are countries that have got different exclusions and will not allow their citizens to be extradited for this or that purpose". It does not look in practice as though those anomalies create a major problem for the European Union's aim of freedom, security and justice.
Mr Faull: We know what has happened. We do not necessarily know, and this sounds a bit Rumsfeldian, what has not happened. We do not know what we do not know, and these are early days. It is quite true that in many countries the previous constitutional bar on extraditing one's own nationals was a very serious problem, and we have seen litigation and we are now seeing constitutional amendments in countries in order to be able to implement the framework decision properly because, let us face it, it was finally adopted in rather a hurry after 9/11, even though it had been in gestation for some time. To repeat, we will publish all the information we can possibly get We have something called the "scoreboard plus" which is essentially naming and not necessarily blaming; it might be naming and praising, but we will name Member States showing precisely what has happened. To illustrate and to answer your question more clearly, if it is difficult for a Member State still, because it has not completed internal constitutional changes, to extradite its own nationals then, if the early cases that we can point to as successes concerned non-nationals, so much the better. What we do not know yet is how many cases are being delayed or have gone wrong because of the difficulties. So far the story is a reasonably positive one, much better than it would be without the framework decision at all.
Q74 Mrs Dean: Can I turn to police co-operation? There are a significant number of EU bodies which now exist to facilitate practical co-operation between Member States' police forces. What types of crime are they unable to tackle effectively at the moment and do you think there are areas which require harmonisation rather than practical co-operation?
Mr Faull: There are areas where we think that some legislation is needed. For example, we believe that Europol, the European police organisation, could be more efficient, could be more effective, if the current system on which it is based, a series of conventions requiring ratification, were replaced by a fully fledged legislative system. We are proposing that that be done, and again we believe that it would be done more effectively, more accountably, better in short, if it were done on the traditional European Community basis of qualified majority voting in the Council, involvement of the Parliament and adjudication by the Court. There are other items of legislation, and I will choose two categories, one already in the system but going through slowly, and the second still to be introduced. We have legislation, for example, within the Council system but, frankly, bogged down there on racism and xenophobia and on minimum procedural guarantees for suspects and defendants. We believe that both of those issues are important. We believe they are important not because there are Member States which do not take racism and xenophobia seriously or do not take defendant or suspects' rights seriously, but because we believe that the European interest would be served and European law would be better enforced if there were a common minimum set of rules across all Member States. That would enhance the confidence that European citizens should feel in their different legal systems. Then, looking ahead, we have agreed at the highest level, at the European Council level in the EU, adopted something called the principle of availability which means that information held in one Member State to which the law enforcement authorities in that Member State would have access should be made available to the law enforcement authorities in other Member States on the same terms as the national law enforcement authorities would have to satisfy to have access. That is easy enough to say is a principle; it is hard to work out in practice. What do you do about DNA databases? What do you do about other forms of database, of which there are very many now being collected all over Europe? All of that needs to be worked out in practice. It is very important. The law enforcement people all tell us how important it is for their work in investigating serious crimes and their work in investigating terrorism, not only in Europe but we hear from our American friends and others further abroad that they would love to be in on any advances we make in these areas as well. It is not easy. There are very important data protection issues to be sorted out in each case. Again, it would be better if we could embark upon those legislative projects on the basis of qualified majority voting, involvement of the European Parliament and adjudication by the Court of Justice at the end of the day.
Q75 Mrs Dean: Could you describe to us the difference between Europol and Interpol and what is the potential for co-operation between the two bodies?
Mr Faull: Interpol is a universal international organisation. It does extremely useful work and we and Europol itself have good, close co-operation with it as users of its various systems. For example, Interpol has a very important database, to which we have contributed, of lost and stolen passports. It is very important that immigration officials, when presented with a passport, can very quickly check that it really is the one which was issued to the person before the immigration official. That is something which we are all very happy to do through Interpol, and we and the Americans, in fact, together took the initiative to make sure that everybody pours in their lost and stolen passport information to that database. Another very important illustration of Interpol's work is in tracing child pornography websites. Interpol again has a very large database of offenders, of images, enabling it to determine fairly accurately where filming, kidnapping or whatever lay behind the dreadful images which are made available, took place. They can, for example, look at a wall like that - they gave us a very useful presentation once - and find somewhere, the electricity point which is in the corner there, and tell you what country it is from. That is all very useful. That is Interpol work, not Europol work, and we fund that, by the way, we, the European Union. Europol is a much more focused and, if you like, intimate organisation based on the need for the European Union itself with a fairly open, large territory to co-ordinate its own police work across that territory, knowing that the police forces, of course, are operating at national and local level everywhere. Europol is designed to co-ordinate, and perhaps one day actually to run, investigations itself in a way which Interpol is not designed to do at all. Interpol is not a police force in any way. It is a relatively loose international organisation co-ordinating work all across the world.
Q76 Mrs Dean: How effective has the Schengen Information System been in tackling cross-border crime? What major developments are envisaged in the second generation system?
Mr Faull: I think it has been very effective. When you consider all that has happened in the world since the Schengen area was created, the fact is that it has proved remarkably robust. We have kept borders open with the exception of very short closures for large international events, sports tournaments, even European summits, from time to time. On the whole we now have a whole generation of Europeans perfectly used to moving around freely between most of the Member States of the European Union plus Norway, Iceland and very soon Switzerland. That is only possible because of what is going on behind the scenes, because of the co-operation that was already in place, of course, but no doubt is seen by the general public to have taken the place of what used to happen at the border. It is much more complicated than that because the borders were already losing their significance as intelligence-led police work became more and more important, but today among nearly all Europeans, not you and not Ireland, of course, the borders have disappeared internally, which means in turn that the external borders are run collectively and that there is a sophisticated system of co-operation behind the scenes, the Schengen Information System first generation being the system in place still today. What will happen in the second generation is that first of all the capacity will be considerably expanded because the Union has expanded and more Member States will join, and we have technological and other political developments to take account of in the intervening years, the advent of biometrics and the further work, again among the Schengen countries, on a common visa policy. All of those new developments will be integrated into the second generation system.
Q77 Mrs Cryer: It has been said that mutual recognition of decisions taken by national judges is set to become the cornerstone of judicial co-operation on criminal matters. I know that you have already said that making information available state-to-state is going to be extremely important in all of this. The Commission has stated apparently that "the functioning of the European judicial area could be undermined by differences between national criminal legislation", and that approximation of legislation is needed to avoid criminals being able to choose the jurisdiction under which they are tried. Therefore, how far has the functioning of the European judicial area been undermined in practice by differences in Member States and how significant is the issue of criminals choosing to be tried in different jurisdictions?
Mr Faull: First, we do believe that mutual recognition is at the heat of what we are trying to do and we look forward to a Europe in which a judgment given in one country will without further ado be recognised and enforced in all the others. We are not there yet. One of the reasons we are not there in some cases is that differences between the legal systems pose obstacles. There are two reasons why mutual recognition is still an aspiration rather than a reality. One is relevant differences (and only relevant ones), and, secondly, there is still a lot of mutual trust to be built up between legal practitioners, between judges, between lawyers, and above all between the publics of our Member States so that they feel that they get as fair a trial abroad as they do at home. We are, frankly, a long way from that. Most Europeans stubbornly believe that their national system is the best. Some even more stubbornly believe it is the only fair one there is. They cannot all be right, obviously, but that is a popular view which is out there and is sometimes an obstacle to the simple position that what happens in one country should be followed easily in the others. Mutual recognition is at the heart of it but there is some need for common ground on some of the issues that we are talking about. For example, there are considerable differences in laws in the European Union regarding expressions of racist and xenophobic views. It is a matter of considerable controversy in most of our countries and, for quite obvious historical reasons that I do not think I need to go into, some countries treat racism and xenophobia more harshly than others, some believing that freedom of expression is the paramount value and that we have to put up with unpleasant, offensive language, others believing that some language is so offensive or so redolent of horrors in that country's history that freedom of expression should give way to a certain extent. Those are in a nutshell some of the differences we have to deal with. It is not difficult to exploit those differences by publishing material or by publishing a website in the country where the regime is most favourable, and that happens. Another example, not necessarily exploited by criminals but one which goes to the heart of the question of mutual confidence which I think is the necessary prerequisite for mutual recognition, is the question of minimum procedural guarantees. We are, and I will be very frank with you, having great difficulty in persuading the Council of Ministers that robust legislation is needed to create a minimum set of common procedural guarantees for suspects and defendants across the European Union. The answer we are sometimes given by those who do not see the need for such legislation is, "But we all have the European Convention on Human Rights. We all have the European Union's Charter of Fundamental Rights. We have a lot of common rules already. We are all democracies, after all, and we all respect the rule of law. What more could you possibly want?", the answer to which is that we do not have some of the more detailed rules which would go a long way towards reassuring people. It is nowhere written down that Europeans have the right to a translator to explain what is going on when arrested in a foreign country. Normally it happens. Again, most of our countries provide this and we are all democracies, it is true, but it is not written down anywhere and it would, it seems to us, be a considerable factor of reassurance for European citizens, all of us, to know that certain minimum rights are guaranteed across the European Union, whatever Member State we find ourselves in, those rights being written down in a form which everybody can read and understand in their own language.
Q78 Mrs Cryer: Can we go on to the drawing up of proposals? How much does the Commission draw on the practical experiences of Member States as opposed to matters of principle such as democratic control?
Mr Faull: We draw enormously on the experience of Member States. We are very conscious of the fact that we are sitting here in Brussels, a long way from the sharp end of criminal law enforcement in our Member States, and therefore, before putting pen to paper, we think many times about the need to do so and we collect as much factual evidence as we can from those who practise law, who are responsible for criminal justice, whether in parliaments, in ministries or in private practice as lawyers, in the Member States. We do not start from positions of general principle other than, of course, always to have in our mind - and you mentioned the principle of democratic control; that is obviously very important and we are not about to forget it - the fact that we have to prove in every case that European action is needed, there are many people who need to be persuaded of that and we have a considerable to discharge which can only be discharged properly by amassing facts and explaining why there is a problem that needs to be solved.
Q79 Mrs Cryer: What is the extent in the Commission's view of the competence of the European Community to adopt criminal law into its First Pillar?
Mr Faull: That depends on a reading of one paragraph of one judgment of the Court of Justice at the moment. No doubt anything that happens will be challenged and litigated and will give rise to further judgments, so I will be cautious in my answer. In our view, where there is an important policy objective laid down in the European Community Treaty and it is necessary, in order to give effect to that important policy objective, to create in Community law a prohibition, and in turn it is important to provide a proper enforcement of that prohibition, then the European Community may (and it is the Council, of course, not the Commission) or the Council and Parliament may require that certain minimum criminal sanctions be applied.
Q80 Chairman: Mr Faull, you have spoken as though approximation of legislation is a sort of one-way journey towards greater public acceptance or mutual recognition. Do you accept that there could be circumstances in which, at least in some individual countries, it could damage public acceptance of the idea of mutual recognition and co-operation within the EU?
Mr Faull: Yes, if done wrongly or insensitively, I suppose it could. We are at all times aware of and sensitive to the legal traditions and principles which differ from one country to another and we respect them, we do not seek in any way to change them, which means that when we embark upon the necessary but exceptional approximation of substantive notions of criminal law we do so in a way which respects and preserves national traditions. If we do all that right we, the Commission, in making an initial proposal and then the Parliament and the Council coming together to legislate, if we are in the First Pillar, or the Council alone in the Third, then I do not think we should produce the negative result that you refer to.
Q81 Chairman: Can I ask you how you might approach one of the particular topics that you mentioned earlier, which is xenophobia? As you will know, in our Parliament there has been a furious debate over five or six years now about the possibility of outlawing some form of crime of religious offence or hatred or whatever which Parliament has been reluctant to approve. As it happens I am one of those who has been in favour of it but I have been in a minority in Parliament on that issue. We have recently had a case under which a far right leader has been able to be acquitted under the existing state of the law because his offensive remarks were limited to religion rather than to race. If our Parliament were to adjust our laws, and it is a moot point as to whether they will, so that those sorts of remarks would be caught in the future, I can see that that would be seen by the public in the UK as a democratic national decision. If changes to our law in this sensitive area were introduced as a result of qualified majority voting, or indeed any type of European process on which we had to confer, it might actually create a situation where we were making a problem worse rather than better. How do you go about, in these very sensitive areas where national traditions, as you say, are very different, avoiding simply inflaming a problem in a particular country?
Mr Faull: With enormous caution. I do not think that the European Union should be responsible for settling controversial debates of national policy or national law in that way. I do not think that is what the European Union is for and I do not think it serves the European Union well to put it in that position, so I would do everything I could to avoid that being the outcome of the proposal, and when considering what definition might be acceptable across all Member States for xenophobia, say, we would certainly bear in mind the state of national law and debate in each country before doing so, and it may be that we just fail to make any progress, which frankly is the position at the moment. I do not suggest that with qualified majority voting we would necessarily have got a framework decision or a directive on racism and xenophobia on the statute books already. I do not know whether that would have been possible. For a long time it was apparently the case that one country alone was blocking progress but we have rather suspected all along that others were keeping quiet and hiding behind that Member State (not the United Kingdom, by the way) and, lo and behold, when after a change of government in that country its position changed, we found various other countries with similar difficulties. It may be that some subjects are just too hard and that the state of national debate in various countries across the Union is so different that a common view is impossible to find. That is a pity because the necessary confidence which any criminal law system needs as a basis is how to find in Europe if there are too many cases of that sort, but this is a hard subject. It is a relatively new subject for the European Union's activity. It is therefore, I think, right and proper that we should proceed modestly and humbly in the way we operate. Can I make another point which is important in this respect and relates specifically to the British position in respect of the bridging clause? I see you sometimes refer to it as "gangplank", which sounds rather sinister. I shall say "bridging clause" if I may. "Gangplank" makes one think of walking it. The United Kingdom has an opt-in system, of course, and one of the results of use of the bridging clause by moving subjects from the Third to the First Pillar would mean that those subjects would no longer be subject to the unanimity rule but would be subject to the United Kingdom's opt-in rule, and that is a feature, I think, of the rather complex legal arrangements that we are talking about which are sometimes forgotten but would be worthy of some attention.
Q82 Mr Benyon: Can I come back to the point that John Denham was making earlier? It has been put to us that the reason many of these proposals have hit the buffers is precisely because the Commission was too ambitious in the first place. You seem to be saying that you come at this in a very humble way and with an understanding of the sensitivities in different states, but there is a belief amongst some Member States that actually it was precisely the reverse. You completely refute that?
Mr Faull: I am not saying we are perfect and maybe we get some things wrong so I am not saying I totally refute it. I think on the whole we have made reasonable proposals. I notice that most of the time a considerable majority of Member States agrees with what we are doing. I notice also that, since in the Third Pillar at the moment Member States also have a right of initiative, where Member States have made proposals they do not seem to fare much better than ours, some make it, some do not, and therefore I am not saying that we are not at all responsible for the current difficulties but I do not think an over-ambitious Commission is really the main reason.
Q83 Mr Benyon: Can I ask you a quick question about Eurojust and the European Judicial Network? What challenges, in terms of judicial co-operation, does the EU face which you feel Eurojust and the European Judicial Network are unable to address and are there any particular crimes or cases which cause difficulties in this area?
Mr Faull: First of all, the judicial co-operation network on the whole we are satisfied with. It works well. It brings the people who need to talk to each other together. It has a website which spreads information around fairly satisfactorily. It is a complicated area because case law needs to be translated and explained from one place to another. As for Eurojust as an institution, as a body, I think it has done a fairly good job. I think it has potential. I think in some big cross-border prosecutions, for example, taking our own business, a set of cases of fraud against the European Union itself, the co-ordination that Eurojust is able to carry out among national prosecutors is very helpful, but it is only that. It is co-ordinating national prosecution efforts. It cannot bring them together in one prosecution effort. Okay, it is not a European prosecutor, that is a path which has not been followed yet, and the various procedural and substantive difficulties where various national legal systems are being used to prosecute the same set of facts are there whatever Eurojust does, but Eurojust enables them to be identified and to share information about them. That is true also of international trafficking, in women and children mainly, and in child pornography, in all of which Eurojust has played a very important role in co-ordinating prosecutions across a number of Member States. It is doing a very important job.
Q84 Mr Benyon: In the next few questions many of the areas have already been covered; they are concerning the European arrest warrant and the European evidence warrant. Related to that, on mutual recognition, I sense that you feel that mutual recognition still represents the best basis for policing and judicial co-operation. Can you think of areas where it has unsuccessfully addressed real problems in tackling crime and areas where it has been particularly successful? Give us an idea of where you think it is working well and where it is working badly.
Mr Faull: I will come back to examples already given, and I do that because there is not a vast body of legislative proposals out there. We do not see this as an area where there are going to be hundreds of directives or hundreds of framework decisions. We have, frankly, a limited set of ambitions. The evidence warrant should be, and is to a certain extent because the way it came out is not perfect but it is worth having, a very important instrument for mutual recognition whereby a judge in one country says, "I am investigating a particular case. There is an item of evidence which is of importance for my case. It happens to be located somewhere else. I want it", it should be as easy as we can possibly make it for the legal system at the other end to provide that evidence and send it back. If we have to go through, as has been the case hitherto under traditional mechanisms of international law and practical co-operation, a whole process which can or cannot be politicised in some way, which can involve judges only but not necessarily, for determination of whether it is appropriate for the country receiving the request to provide the evidence to the country which made it, that is going to take a long time and is going to undermine the very notion of a common area of justice which the European Union is supposed to represent. The evidence warrant is an example of an imperfect mutual recognition device where things are easier than they used to be. They are still not as easy as we would like them to be but it is worth having. Among the 32 crimes listed in the European arrest warrant drug trafficking is the one in which the warrant has so far proved most successful in dealing with drug traffickers and there are already - and we will give the figures in our next report - a number of cases of surrender of alleged drug traffickers from one jurisdiction to another to face trial.
Q85 Mr Benyon: What effects could legislating for minimum standards on defence rights have on Member States' authority to decide issues such as pre-charge detention? You will be aware of the contentious issue that that was last year in the UK. In such sensitive areas how strong is the operational justification for pursuing a path of approximation or minimum standards in this area of law?
Mr Faull: I think there is a strong general case for minimum standards and I think there is scope for very lively argument about which particular issues should be subject to minimum common standards. Are we talking about the right to have a translator, the right to a place to call to your embassy or consulate, the right to a statement of your rights in your own language? Are we talking about more sensitive subjects, such as the number of days you can be kept in prison without charge, knowing that, particularly in the recent period, that has been a particularly controversial subject affecting a number of Member States, and also a subject which reflects very different legal traditions across the Union. We are well aware of that and it seems to me that our humility and modesty principles apply to our approach to such issues.
Q86 Mr Clappison: On the same theme of further areas of decision-making for the Commission and the Council of Ministers, Commissioner Frattini has stated that "the question of migration must be considered in a new perspective". What plans and aspirations does he have in the field of migration and illegal working?
Mr Faull: First of all, just to link the two subjects, we are in the rather odd position at the moment that most of illegal immigration and asylum issues are dealt with under the First Pillar while legal migration, economic migration issues are dealt with under unanimity rules. That for a start strikes us as rather odd, dealing with two facets of the same phenomenon in such different ways. It does not strike everyone as odd, obviously, but we do feel rather hamstrung in our ability to deal with migration as an international phenomenon given that legal dichotomy. What are his aspirations? I think his aspiration, and this is no doubt a very long term one, is that the drama and tragedy of illegal immigration into the European Union, most recently mainly across the southern Mediterranean border but in recent memory as well across the eastern land borders, should stop. At the moment every summer, as soon as the weather is reasonably good in the Mediterranean, there is a constant flow of fairly shaky vessels setting out from the coast of north and recently west Africa to reach the shores of Italy, the Canary Islands and Spain as well, leaving hundreds of people dead every summer in the Mediterranean attempting to get across, leaving thousands stranded in the transit countries of north Africa not able to leave to get across to our borders where mostly they would be illegal migrants, and leaving Malta, Italy and Spain in particular with the enormous burden of coping with illegal immigrants, not necessarily all illegal but certainly immigrants through irregular channels, arriving in their territory, some with asylum claims to make, some with papers, some without papers, and all in all a considerable burden upon those countries, knowing all the time that the intention of the people concerned was not necessarily to settle in those countries at all but to break out and move further north if conditions were possible. Mr Frattini would like that to stop. He does not believe it is in our interests, he does not believe it is in Africa's interests and it is certainly not in the interests of the people concerned. The long term solution to that problem is economic development in Africa. People most of the time are happy to stay at home if conditions at home are conducive to a normal decent life.
Q87 Mr Clappison: That is a big ambition though.
Mr Faull: It is a huge ambition. It should not be forgotten but it does not solve this summer's problem or next summer's problem. We are well aware of that. The global approach to migration, which involves at the highest level the United Nations but at a region-to-region level a very serious dialogue between Europe and Africa, is extremely important and that must go on in parallel while at the same time we deal with the symptoms of the problem as they are felt daily here in the European Union. What can we do about it? First of all we can help the Maltese, the Italians, the Spaniards and to a certain extent the Greeks and the Cypriots as well patrol their borders, patrol the Mediterranean. We can help them with equipment, we can help them with people, we can help them with techniques, we can share the burden, we can help them with money. The European solidarity is not just a buzzword in this area. It is an important principle and one that requires working out in practice. These are our borders, and I say "our" meaning all of us, Schengen or not. They are doing our job, they are protecting our external borders, we should help them do so and we do help them do so. We have, albeit with limited resources, an External Borders Agency now up and running in Warsaw to which Member States are all contributing and a great deal of effort is being made to help the southern Member States, and to a certain extent the eastern ones as well, discharge their burden of operating in the common interest of their borders. We also have to be aware of the fact that we exercise a considerable pull factor for illegal immigration by providing employment, often illegal employment, for illegal immigrants and if we are serious about stopping not only push from there but also pull from here Mr Frattini also believes that we should crack down together on illegal employment. It is a crime in most Member States, enforced in varying degrees in all Member States, in fact, and we will be considering in 2007 whether a proposal for a Europe-wide initiative, perhaps even Europe-wide criminal sanctions, should be set in place in order to crack down on illegal employment.
Q88 Mr Clappison: Thank you very much for that very wide-ranging answer which was very helpful, but can I tentatively suggest to you that there is a distinction as far as Europe is concerned between legal and illegal migration because, by its very nature, each of the members of the Community has it in common that the immigration is illegal. It is not to say that people have done anything wrong; they just do not have a legal right to enter the countries. We have that in common throughout the Union and, as you say, there are lots of ways in which the Member States can help one another, particularly on the southern border and also possibly, which is slightly more contentious, on the whole dialogue about international migration with the United Nations and developing countries. On the question of legal migration can I suggest to you that it should be for the individual Member State to decide who they wish to have legally migrate into their country, taking into account, for example, economic needs, and this is the direction in which the British Government seems to be travelling at the moment particularly? Is it not for each country to reach an assessment of the economic and other factors peculiar to those countries which they want to take into account in determining the extent of migration, and also recognising the fact that there are attractions? Some countries are frankly much more likely to have mass migration than others in the Union.
Mr Faull: That is indeed the situation as it stands today and I expressed some regret about it for several reasons, one, because it means that when the Union collectively talks to its neighbouring regions, which are the main sources of migration, we talk collectively about one side of the picture and then, as 27 different people, about the other side of the picture, which is the number of people we welcome to join us legally. I am not suggesting that there will ever be a European immigration policy where somebody in Brussels will decide, "We will have 100,000 of this and 150,000 of that". What I do think would be useful, and I speak from practical experience, is that when we talk, for example, to foreign countries about re-admission agreements, we negotiate on behalf of the Community readmission agreements whereby the country on the other side undertakes to take back illegal entrants to our territory from its territory, whether they be nationals of the country concerned or even third country nationals who transited through its territory.
Q89 Mr Clappison: That is going back to the point about illegal migration and I am with you on that point, but not on the legal point because that should be for countries to decide themselves, taking into account their individual circumstances, should it not? In Britain's case we have quite a lot of circumstances to take into account which are particular to us.
Mr Faull: I understand that, but when negotiating such agreements on the illegal side of the fence with foreign countries we are severely handicapped by not being able to talk about what they want to talk about, which is, "How many legal migrants from our territory have you taken, will you take, are you going to take?". We can tot up, in so far as Member States actually have reliable figures, what each individual Member State does and say, "This is what happened last year and what we think might happen next year", but we have no possibility of arriving at a common view on that, and I think sometimes it would be in our interests to do so. Secondly, we have free movement of labour among nearly all our Member States, and pretty soon, I hope, among all of them, including those about to join us. In an area in which people are moving around freely, in an area in which for most of us Schengen makes that moving around freely even easier, in an area in which decisions to regularise (to use a Gallicism), to give papers to undocumented workers in considerable numbers, those decisions are taken in individual countries, all those things have an obvious impact on all the others. However, because there is no Community policy on legal migration, nobody needs to tell anybody else about it or conceive of any common policy in that regard, we are frankly in a very weakened position to move together in these important policy areas, handicapping us, therefore, in our international relations (and migration is an international issue), and, secondly, making it very difficult to avoid the decisions which one country takes causing immediate repercussions and a great deal of resentment in most of the others.
Q90 Mr Clappison: Just on the first of those points, and I take the point you make about the bargaining which goes on on the readmission, allowing more legal migration is not a solution to illegal migration in the countries in question because there is literally an unlimited number of people who want to come to Europe in those countries. You could allow a few more people in legally and you would still have an equal number of people wanting to come illegally because there is such a huge pressure to come.
Mr Faull: There are some successful examples of national practice in this area. The Italians, for example, concluded agreements with Albania in the north and Tunisia in the south whereby they said, "We will take a certain number" - a quota in effect - "of Albanian and Tunisian legal migrants respectively in return for a real concerted effort on your part", they said to Tunis and to Tirana, "to stop in excess of those numbers any illegal migration", and from what I understand of the Italian experience that largely worked because they were honest about it, they knew that, for all sorts of demographic and other reasons, they would not mind the arrival of certain numbers of regulated economic migrants, but they wanted to stop illegal migration. I am not saying we can replicate that necessarily but a policy which deals with illegal immigration as a collective issue and legal immigration as 27 different national ones is a considerably handicapped one.
Q91 Mr Clappison: We understand the Commission is proposing framework European directives for specific types of migrant workers. As you may know, the UK Government has its own proposals on the table for what it calls a points-based system for migration. What implications are there for that points-based system in the UK from your framework directive?
Mr Faull: We have not finalised it yet. We are watching with great interest the UK's ideas and experience and the UK's ideas in turn were inspired by other systems around the world which we are looking at as well. We will not propose something which would radically change systems put in place by Member States.
Q92 Mr Clappison: In the Commission's view what are the current challenges for EU border management and how do you view the future role of FRONTEX?
Mr Faull: The challenges are quite enormous. We have extremely long land borders, we have complex sea borders and we have a lot of international airports, so we have a bit of everything. To run all of those borders under the same rules, procedures and systems, which is true for the Schengen area, is a challenge in itself but one that we have been meeting already for some time. The European Union is expanding. There will be two more countries in a few weeks' time and the external border will therefore be moving outwards, but at the same time on the internal borders there is a good prospect of the border controls being lifted soon which will release people and equipment to move them further out, so there are great challenges. FRONTEX has really been in existence only for a very short period of time and is still a rather small and under-staffed organisation. I think it has a considerable role to play in risk analysis and in operational co-ordination of the national border guards so that they can more effectively help each other in times of difficulty.
Q93 Mr Clappison: What progress has been made on the rapid reaction teams and what is their envisaged role on external borders?
Mr Faull: As their name suggests, and the legislation is before the Council, under discussion, not adopted yet therefore, the idea is that there would be teams available for rapid intervention in times of crisis at one of our external borders. It could be at sea, it could be on land. The eastern borders have been relatively quiet in recent years, the focus being on the Mediterranean, but we have no illusions: that can change, depending on events in our immediate neighbourhood, and we have challenging neighbourhoods around the place. The idea is that we would therefore formalise what already happens to a certain extent, which is operational co-ordination between national border guards lending people and equipment from one place to another.
Q94 Mr Benyon: I want to come back on something you were saying earlier. We are having a debate in the UK at the moment about migration and my party is putting forward a proposal to have a sort of rolling allocation of the number of migrants we would be prepared to accept. It is going to be a very complicated process and I think it probably could work, but the idea that this could somehow be dealt with at an EU level seems to me fantastical. I take your point that it will give you the ability to talk to neighbours, but I simply do not see that it can be done in a way that is (a) effective externally but (b) satisfies Member States internally.
Mr Faull: I certainly have no comment to make on the internal British debates on this issue. All we would want to be in a position to do would be to say that the Member States of the European Union collectively take a certain view about their economic migration intentions or needs. It might be no more than adding up what each individual country plans to do, because one way or another, whether specifically laid down with targets or not, Member States do take a view looking ahead, or they should be taking the view looking ahead, about the needs of their labour market and how they intend to supply the needs of their labour market. That involves thinking about future migration trends and that is happening. It is happening at the moment in isolation in 27 different ways and every country is having the same sort of difficult debate within and between political parties as you are. That in a European Union within which there is free movement of workers, imperfectly but it is coming, among nearly all of whose Member States the Schengen system is in operation, strikes us as being an inadequate response to a common challenge.
Q95 Chairman: Mr Faull, you have been very generous with your time. Just to close, can I assume, given the lack of success in the Finnish Presidency, that we will not hear any more about the passerelle proposal?
Mr Faull: No.
Q96 Chairman: When do you expect us to hear about it next?
Mr Faull: Next week probably. There is a Justice and Home Affairs Council next week, and then there is a European Council. Frankly, I do not expect an enormous breakthrough at either of those meetings. There will then be six months of German Presidency of the Union and we will see what happens during that Presidency to wider institutional issues which may or may not be debated. By next summer we may have a better view of where the Union is going more generally, and then it may or may not be necessary to come back to the bridging clause issue.
Chairman: Thank you very much indeed for your time.
Witnesses: Mr Timothy Kirkhope, a Member of the European Parliament (European People's Party-European Democrats), Mr Michael Cashman, a Member of the European Parliament (Party of European Socialists), Mr Graham Watson, a Member of the European Parliament (Alliance of Liberals and Democrats for Europe), and Ms Jean Lambert, a Member of the European Parliament (European Greens-European Free Alliance), gave evidence.
Q97 Chairman: Could I thank you all for agreeing to come here this afternoon, which I think is probably an unusual event for Members of the European Parliament, to give formal evidence to a Select Committee, but there is no reason why we should not do it and I think it is going to be very interesting for us. Quickly by way of background, as you will probably be aware more than most, although our Parliament has a number of committees that specialise in scrutinising European Union affairs, our committee, the Home Affairs Committee, has not ever, as far as we can establish, undertaken a broad-ranging inquiry looking at the influence of the EU on justice and home affairs issues and we have decided to do it for the obvious reason that the EU is becoming more and more significant in setting our own domestic agenda, whatever we think is happening at an EU level. The visit here, the informal meetings as well as the formal sessions, are part of an inquiry which will last for about four months to try to give us some strategic sense of what is going on across the whole range of justice and home affairs issues. We are interested in learning from you as British Members of the European Parliament your perspectives on policy-related issues as well as the institutional scrutiny issues that you are involved in. A number of respondents to the inquiry, including some of you who have given us written evidence, have mentioned public security as one of the aims of the Union. Mr Watson, you said that the domain of public security is probably the one where the gap between what the public expects and what the Union provides is widest. Could I ask each of you briefly to give us an example of an area where you think the Union is failing in the area of public security, and others may disagree that this is a problem? Perhaps I can start with you, Mr Watson.
Mr Watson: I am not sure, Chairman, how widely you would wish to define public security, and this is not terrorism related, but perhaps I could give you an example from my own constituency, in fact, one of Don Foster's constituents. The gentleman was married to a Spanish lady. They had a child. The marriage broke up. The Spanish lady took the child back to Spain. The gentleman has no rights of access to his child, has not seen the child for two years, all kinds of problems arise. I am sure your Member have these kinds of issues in their constituency mailbags all the time. It is the failure of the Union to deliver on issues like this which deeply frustrate my constituents in the south west of England and Gibraltar because they believe that the Union should be capable of acting. It is patently not capable of acting because it does not have either the legal powers to do so or the mechanisms which allow it to act effectively. I take that as a simple example.
Q98 Chairman: Thank you. Would anybody else like to suggest where there is a gap or to argue that there is not a gap?
Mr Kirkhope: Chairman, I did not put in, I do not think, any such remark. I think this comes back to the crunch point all the time as to what should be the competences of the EU. Graham has just underlined a very critical matter and that is that where the EU should be working, ie, in a co-operative effort between the nation states and their various agencies, it fails almost every time to do so. I do not want to bang any drums but I had a report, Joint Investigation Teams. It went through not only this place but was then adopted by Council. It went through your party's Queen's Speech, which is from my point of view a slight embarrassment but it did, and it should therefore have resulted in there being a close co-operation dealing with major crimes and terrorist issues where joint teams could be set up between law enforcement agencies across Europe. It did not happen - or at least it happened, I think, on one or two cases because I questioned recently the officials here. The reason it has not happened properly is that people are not prepared to co-operate to the extent necessary to make it work, so I am not so concerned as Graham. My concerns are that in the areas of co-operation we are not seeing the level of co-operative effort between the nation states that we should rightly expect and which the public should rightly expect.
Ms Lambert: Again, I think part of this is going to depend on what we mean by public security.
Q99 Chairman: Let me say that in Mr Watson's evidence, and I do not want to say that other people should say the same thing, he talked amongst other things of trans-border organised crime, illegal immigration or terrorism. He obviously has taken it into an area of civil law but it is perhaps in those major issues of crime, terrorism and immigration.
Ms Lambert: One of those I would have some particular concerns about would be questions on trafficking, and obviously there are particular areas where the UK does not necessarily join in with the European continent in terms of issues about the 30-day residents' permit, et cetera, but I do think that there are a lot of ways in which we could be developing far more in terms of evidence coming about how we could disrupt trafficking rings, how we could deal with and imprison traffickers, where again the areas of co-operation that Timothy has indicated are not there. They are certainly not as well developed as they might be, not least because I think we are looking at a single source of information almost coming via the police rather than other areas on the employment side, et cetera, where we could draw information, so that we have a lot of things which look very good on paper but, again, you really feel that the background work is not being done to tackle as appropriately as it might be.
Mr Cashman: I welcome Tim's gesture towards greater co-operation between Member States, and long may it be so. On the area where I believe we are failing, there are two areas. One is a lack of uniformity of approach, and on that I give the example of the need in some Member States to carry identification papers, whether it is an ID card or something you got from your local quartier here in Belgium, and so citizens are acting in a kind of vacuum. A British citizen could be stopped in one of the Member States, their ID is demanded, they do not have it. Arguably in some Member States they could be taken off to the nearest police station. That kind of lack of uniformity causes problems for the citizen. Where I think we cause problems for one another, and I give the example of the European External Borders Agency, FRONTEX, is that we set up these organisations and then we fail to give them the resources, either the personnel or the financial resources, or certain Member States, and I cite Poland in this example, make it very difficult for that agency to carry out the work that it is mandated to do. That arguably in the EU is one of the most important jobs, which is our new external borders and the protection of those. I cite those as my two examples.
Q100 Mrs Cryer: I was going to go through a number of Mr Watson's submissions but he is here so he can explain them himself. I have two questions and they are both based on Mr Watson's written submissions to us. There have been a number of initiatives, such as Europol and Eurojust, to aid cross-border co-operation in areas where practical policing and judicial co-operation are vital. Do any of you feel these practical co-operation measures are sufficient to tackle the challenge of cross-border crime, and in which areas is binding legislation more desirable and why?
Mr Watson: In which areas is it more desirable? I think the difficulty with binding legislation is that it has not been achievable. One of the greatest frustrations of having seen through the process from Tampere to Tampere, as it were, from the start of the European Union having powers in these areas through the Amsterdam Treaty, which came in essentially at the Tampere Council in 1999, to the Tampere meeting under the Finnish Presidency, is that the process has not really worked. It has become almost impossible to set binding legislation. Why has it become impossible? Essentially for two reasons. The first is that it is very difficult to get agreement among 25 Member States on a piece of legislation in criminal law. There is always somebody who will have a problem, which means that after seven years very few pieces of legislation have actually gone through. The second is to do with the Treaty of Amsterdam and the way it was framed. In the Third Pillar initiatives can be advanced not simply by the European Commission, as is the case in the First Pillar in most of European legislation, but also can be advanced by individual Member States or groups of Member States working together, and so what has tended to happen is that two or three Member States have come together with a particular bugbear, have proposed a piece of European-level criminal legislation to deal with it, and it has gone into the system. At the same time another two or three Member States have come together with something similar and so you have had huge amounts of legislation fed in leading to effective gridlock. That is why I say in my evidence, Chairman, as the critic once said of Samuel Beckett's play Waiting for Godot, "It has been a two-act play in which nothing happens twice". The real difficulty has been the inability of the Union, thanks to the use of the Third Pillar, to frame legislation. There are many areas. Jean mentioned trafficking in people, which has been a serious concern of ours over those seven years. There are other forms of cross-border crime. We have in today's world a situation where, effectively, to paraphrase Mark Twain, a criminal can be halfway across Europe before the policeman has his boots on. We have created a border-free Europe for criminals without creating a border-free Europe for protection of the citizen.
Q101 Mrs Cryer: Is your opinion that nothing happens twice due to enlargement, would you say?
Mr Watson: No, I do not think it is due to enlargement because I am not sure it would have been very much easier with 15 countries. I think it is more to do with the way in which the Third Pillar concept was designed.
Mr Kirkhope: Can I just add to this point? Eurojust and Europol, of course, were set up with very specific and quite restricted terms of reference. In order to understand this legislative side of things we have to underline the fact that we all have different interests in what we are trying to do in the European context. The Commission are very keen indeed to get their way, as it were, sometimes with very much limiting the involvement of politicians, whether it be in the European Parliament or, through the Council, international parliaments. Think there are examples of just recently, and you will have been looking at some of them, I am sure. One is the pursuance of the passerelle, which I and my colleagues are very much opposed to, as a device in order to achieve something which is basically not achievable, an attempt to find a fiction in order to try and move something forward and thereby, if you like, extend the legislative capacity which comes from the Commission. That is one thing. The second thing is the setting up of this new Fundamental Rights Agency which is being pursued and is about to come to effect in January next year, I believe. It is a Fundamental Rights Agency based on a flawed argument, fundamental rights which were contained in the draft constitution, a draft constitution which is going nowhere, hopefully. My colleagues will not agree with this, of course, but I hope not.
Mr Cashman: Oh, no.
Mr Kirkhope: Oh, well, all right, speak for yourself then. The point is that we now have a situation where we have a Fundamental Rights Agency being born as a result of Commission pressure out of an agency which failed badly, an agency dealing with xenophobia and racism issues which failed its task. It did not have sufficient resources, and they are now trying to make the personnel in that agency develop into a much wider agency in order to achieve something which has not been approved, a constitution which is not in effect and yet ways are found by the Commission. The simple fact is that in legislative terms we have to all of us be on our guard, both the European Parliament in terms of its ability to be involved in the legislative process and national parliaments, who in my view still should take most of the detailed decisions following the directives that are the lion's share of what comes out of Brussels, and that is why I feel we have to be very careful here and all of us have to protect our interests in our own way, even though those interests might be slightly different.
Mr Cashman: Just by way of correction, of course, the Fundamental Rights Agency can only be set up if it is agreed unanimously by the Council, and, interestingly, the Commission did not have to do this but it decided to engage Parliament in this and not just in a consultative manner. I am sure you as directly elected politicians would welcome the engagement of directly elected politicians in such a debate, and, after all, the Charter of Fundamental Rights is based upon, but not exclusively, two commitments under the European Convention, not least the European Convention on Human Rights. In answer to Mrs Cryer's question I think binding legislation is only part of the issue. Europol, Eurojust, the European Borders Agency are, I think, part of an arsenal. I worked very closely on the Data Retention Directive where Member States have to retain data, mobile data, data on the internet for a certain period of time. We argued that what we needed were common minimum standards across the whole of the EU, but, more importantly, properly enforced and implemented common standards, and this is where the Commission's role is vital, because often laws are not properly transposed and then not properly implemented. That is why I say that I believe binding legislation is only a small part of the equation. I would argue that what we need to do is go back, and with enlargement any multinational will do this, and say, "We have now enlarged. Let us do an internal audit of what we have agreed to do, see if we are doing it and see what we need to add on in order to deliver". The big issue with a single market without borders means that crime equally is without borders. One of the biggest issues that we deal with is people trafficking, as Jean referred to, the trafficking of children. Yesterday we were discussing in a decision which is now before our committee on whether it is right on travel documents to ask children as young as six to give their fingerprints, and, of course, the association of fingerprints with criminality immediately springs to mind, but how else do we use a mechanism that makes absolutely certain that that travel document is issued for that holder and that that parent is the real parent? We have to make sure we have mechanisms which hold up across the 25 Member States.
Ms Lambert: One of the issues about organisations such as Europol and Eurojust has been that in many ways they were also set up not just for practical purposes but also partly as confidence building so that Member States could get used to working with each other without feeling that their own territory was being stepped upon. Of course, you have a mismatch then with the time that it may take to do that and the timescale that you may then want to introduce legislation, so that you do not necessarily have a fully functioning body at the point at which you need it in terms of legislation if you want to introduce that. That is one of the issues. There has also been an issue for some of us about the oversight of those bodies, and this is one of the areas where I part company with my party in terms of the Constitutional Treaty where I think that certain of the powers being given to national parliaments, for example, in relation to Europol could have been extremely useful in terms of looking at how that was functioning from a more national perspective. I think that would have been extremely useful. In terms of binding legislation, yes, there will be a problem there, not least because of this plurality of where legislation can come at you from. We have found ourselves at times with almost competing legislative proposals from particular Member States who sometimes you feel want a bit of trophy legislation they can wave to show they are active on a particular issue. That also has not helped, and indeed on occasion Parliament has rejected certain of those proposals because we felt that they had been poorly thought through. Enlargement within that has also not helped, not necessarily because of who the states are but simply because there are more, and again if you are trying to do confidence building work and then you have new people coming in, it does not matter who they are. Again, you are going to have to take a step back before you move forward. Those are certain of the issues which have arisen there. I will leave the debate on the Charter of Fundamental Rights for another time perhaps.
Q102 Mrs Cryer: Following Michael's comments about fingerprinting, I would just love to ask you about the niqab and veil but I will not because it will just take too long. There have been objections raised about moving national areas of criminal law and justice to the Community method. What is your assessment of the implications of a move to the Community method for the UK's legal and justice systems?
Mr Cashman: Can I be quite simple and say that the UK, Ireland and Denmark are, of course, in a very special position in that they have the opt-in into police and judicial co-operation in criminal matters. I believe we should look at it on a case-by-case basis, and if it is in our interests to opt in then we can do so, but I would feel perhaps rather queasy about ceding powers in this area at the moment. Arguably we are not ceding them because we would have to opt in, but I think the debate in the House of Commons should inform the decision that is taken. The UK, like other Member States, has its veto in this area, but then perhaps we come to a position whereby, if those Member States that do not have the opt-in wish to shift from the Third Pillar to the First Pillar, does the UK veto that? I think it is a very big question which will have to be taken, I think, in full awareness of the tabloid hysteria that any such decision would follow.
Mr Kirkhope: This is where we get into some very interesting areas indeed. I am a lawyer by profession, apart from having been, like you, Chairman, a Home Office minister, and I do feel very strongly about this point. It was raised in the context of are we going to move from having essentially national approaches, historic approaches, for dealing with civil and criminal law, to, if you like, we can call it the Community method or we can call it whatever? The truth of the matter is that it seems to me that some people have this dream but it seems to me to be a totally impracticable and impossible dream if that is the case. It is a bit of a nightmare, in fact. You just have to look at some of the legislation which we have passed through the House of Commons in areas such as company law, property law, even family law, and the great controversy that we have had in trying to pass these things, and we have to look at the compatibility between the English and the Scottish systems for a start. If you start doing this on a European-wide basis you immediately come into conflict with at least three or even four basic different legal systems, historic systems, and I just think that this is one of those impossible situations. We should do more, Chairman, to try and get recognition of each other's decisions and judgments, particularly in civil law. I think that is important, and obviously more and more as we see commercial developments we have to have compatibility in accounting standards, we have to have compatibility in a lot of the things which are in Europe, for our single market, for instance, in those sorts of terms. If you take this further into the whole field of civil law, if you take it into the field of criminal law, then I think you are entering into territory which really is --- and the reason why we would like to maintain the Third Pillar so much is that we are then dealing in areas which are essentially areas of competence for national legislatures. I think the British Government has a very similar view to that, I think there is a lot of agreement in Britain on that fact, but I think that we have to make sure we do not waste too much time and too many resources on moving along impossible routes because of some kind of philosophical or dream-like approach. It is not sensible. We are in the business of pragmatism here, most of us, regardless of our parties, but this is one step too far in my view.
Mr Watson: Chairman, your colleague and my compatriot Michael Connarty carried out through the European Scrutiny Committee an examination of this issue, as you will be aware. Their conclusions essentially were two-fold, first that national sovereignty in these matters or over matters of what constitutes a crime, what sanctions there should be for offences, procedural rights and so on, was essential, and their second conclusion was that one should not allow the European Parliament to have the right of co-decision on measures of police and judicial co-operation because most of its Members do not represent and are not answerable to the United Kingdom. I would disagree with them on two issues, first because I believe that the concept of national sovereignty no longer has the same meaning today when so many people are moving all of the time, when crime is moving across borders with horrific speed and implications, and it seems to me that if one insists on the argument of national sovereignty one is saying that we are happy for UK citizens, who, for example, live in Spain for half of the year, not to have the same procedural rights as they might have in the UK in criminal matters. We are saying, for example, that effectively we would renounce the right to protest if our constituents in Greece receive longer sentences for an offence than they would in the UK. I think there is a genuine interest for the United Kingdom, a country which has a higher percentage of its citizens living and working abroad, to seek to defend those citizens better by going for a more common approach to procedural rights. I will not raise the case of David Irving being prosecuted in Austria for denial of the Holocaust but it seems to me that there is an argument there where national sovereignty perhaps no longer has quite the same sense that it used to have when it comes to matters of procedural rights, sanctions and so on. On the question of whether the majority of the Members of the European Parliament represent and are not answerable to the electorate in the UK, my response to your European Scrutiny Committee would be, well, nor are the majority of members of the Council responsible to or answerable to the UK, but where it strikes me as different, and I think probably all of us would have the experience of working on the committee here, is the suggestion that somehow members of the European Parliament from other countries do not share our basic values when it comes to upholding the law. My experience is certainly that they do. Members do not vote along national lines when we have votes on these issues. If they divide they tend to be along party lines rather than along national lines. If we are concerned about civil liberties, if we are concerned about longer sentences, we need to recognise that the approach taken by other countries is not fundamentally different from that taken by the United Kingdom, and therefore I would argue that we should be perhaps a little more relaxed about these things than we have been able to be in the past.
Ms Lambert: I think that that movement is potentially quite profound for the legal and justice system in the UK. I think it is profound for many of the Member States and in many respects that is often not really taken into full consideration. I think that we have seen measures to try and gain a unanimity of approach, whether that is the arrest warrant or whatever, where the full implications were not really thought through and it has created a considerable number of problems. However, there is also within this the argument, is it then right for it simply to be a decision of Council which then belongs to no parliament, and national parliaments do not really have oversight except in one or two Member States which mandate their governments, and it does not fully belong in the European Parliament either, particularly in terms of follow-up and viewing how these particular decisions are implemented? Those are the things that we are trying to balance up with it. Where is the democratic oversight of the decision-making? What is the most democratic way to make those decisions? Is that simply between governments? Is it to involve a parliament, in which case this is a parliament which obviously has an interest because it is international, and certainly my political group supports the European method, as it were, for decisions that are being made at the European level as a sort of a logical conclusion to that. However, we are also very clear that before we go far on this we really need to be clear about what the core standards are that we want to see implemented across the European Union because from the citizen's perspective what many of us find is that our constituents expect the same laws to apply elsewhere in the European Union when they are in trouble, no matter how they may vote otherwise; that is what they expect, that things will operate as they do at home, and are often profoundly shocked to discover that that is not the case, even if it is in terms of access to legal aid or whatever it may be, and that for us any further steps in this direction have to come with those core standards, those very clear rights so that our citizens do know what applies to them across the European Union if we are doing joint legislation. For us that is an absolute sine qua non and at the moment we feel that we are moving very much in terms of pan-European legislation without the issues of redress being clear in that at all and we are looking at prosecution rights but we are not looking at defence rights and this is something which, if we are moving further on the Community method, whether through the Constitutional Treaty or passerelle or whatever it is, for us has to be absolutely part of the contract, as it were, with our citizens.
Chairman: Thank you very much. For the record I will read what the European Scrutiny Committee concluded on the point though I will not enter the debate about the interpretation of it: "Moreover, there is the question [of] whether it would be acceptable for the European Parliament to have the right of co-decision on measures about police and judicial cooperation in criminal matters when the most of its Members do not represent and are not answerable to the electorate of the UK". That is, as it were, from the report directly.
Q103 Mrs Dean: Do any of you believe that implementing the passerelle could lead to better quality decisions and would these decisions lead to more real action by Member States?
Mr Cashman: Again, it depends on that which is proposed. I suppose I differ from what both Graham and Jean have said in that I think most citizens look to their Member States, the place that they live, as the enforcer of the laws and the upholding of the rights and the principles. Where we get a European dimension is that we do not have the same laws but we have different laws which enshrine the same rights and the same principles, and so therefore we have to have mechanisms by which we can enforce and ensure that what we have agreed at EU level is, as I said earlier, properly transposed and implemented. Let us deal with something that we have had, the Data Retention Directive. It could actually have been proposed under the Third Pillar but they decided in Council that they would propose it under the First Pillar, so we had co-decision. Let us say that it was under the First Pillar. If each Member State says, "Yes, we have absolutely something to gain by ceding our sovereignty on this particular issue of data retention and data storage", then the arguments can be made and the case can be put to each Member State's citizens, and this is where I come back to what I think is the central issue and it has informed part of the debate this afternoon. If we want to bridge the democratic deficit in these measures we can do it quite simply by having the Council of Ministers meeting, deliberating and voting in public, and that is crucial if they are then held accountable for the decisions that they have taken in the Council and they are held accountable to their national parliament. Once we begin to bridge that democratic deficit we can see where we will need to act, because often what is done is that deals are done in Council and the next thing we know is that a directive has come through, it has come through under the First Pillar rather than the Third Pillar, no explanation why, no transparency, no accountability. We need to look at the transparency and the accountability, and once we get those I think we will probably find that we will not have so much need for the passerelle because the debates will be much more honestly informed and will be held accountable.
Mr Kirkhope: It is a device, as I said before, and "passerelle", of course, means bridge.
Mr Cashman: Gangplank, actually.
Mr Kirkhope: A gangplank - it can be, yes, in certain terms that is right, it has a sort of nautical meaning too, I believe.
Mr Cashman: Let us walk the gangplank.
Mr Kirkhope: The thing is that I think it is becoming a bit of an obsession, this thing. I do not wish in any way to diminish the importance of it. It is vitally important to talk about it. It is not of terribly great interest to our constituents. My constituents in Yorkshire for a start are not terribly interested in the passerelle, I do not think, and indeed I am very disappointed, Chairman, that Mr Connarty --- actually, having now heard the official report, Mr Connarty has not said quite what I think Mr Watson suggested, that we were basically a waste of space, but I do think there is an issue here regarding -----
Q104 Chairman: That is why I thought I would read it into the record.
Mr Kirkhope: That was very helpful; thank you, Chairman. I think there is an issue here about the question of the democratic accountability. The greatest thing we could have done for us, as Michael has said, is to have the Council really being transparent and meeting in public, which we were promised. I got the promise myself out of the Prime Minister in the British Presidency. I was very disappointed that the Foreign Secretary went back on that arrangement.
Mr Cashman: And then she went back on going back.
Mr Kirkhope: I think there is a little bit of movement of the caravan going on then. As far as I am concerned I think this is very important, it is the most important thing. The passerelle issue is, I think, a bit confusing but at the bottom of it all it moves us away from intergovernmental co-operation to increased harmonisation. It moves us away from being able to pursue our own traditions into other people's generalised traditions which does not please anybody at all. The interesting thing is that in those areas of justice and home affairs where we have moved to qualified majority voting experience has not shown that it necessarily means a more effective decision-making process or a better one. I do believe it is something we should not be pursuing. The Germans are very keen not to activate the passerelle because they want to put all their efforts into getting the constitution back. That is what I understand the position to be, so it will not happen in any event here for some time, but I think we should reflect in the time we have available and we should really come to a conclusion that the passerelle is not something that we ought to run with.
Q105 Chairman: Is there a dissenting view or can we move on to the next issue?
Mr Watson: Chairman, the point of my written evidence is to argue that the passerelle is needed. It is needed because the European Union is failing to protect its citizens from the effects of cross-border crime and it is failing to guarantee its citizens the kinds of rights they ought to enjoy under the law. My argument for the passerelle is because I do not believe it likely that the European Constitution will come into force in the near future. We do not need it to come into force in order to achieve these objectives of protection of our citizens because we have the option by unanimity in Council of a move to the passerelle under the Amsterdam Treaty and, whereas the European Scrutiny Committee argued that we would see the present certainty about our ability to protect Britain's interests in justice matters replaced with uncertainty, I believe that in fact that would not be the case because I believe that decision-making at European level has generally worked well. If I might just give two very brief examples, I had the honour when I was Chairman of the Committee on Justice and Home Affairs here in 2001 of taking through the House the European arrest warrant. It was a response to 9/11, it was a very effective tool not only in the fight against terrorism but in the fight against serious crime more generally. The European arrest warrant needed to be accompanied by a directive on minimum procedural guarantees for those accused in criminal proceedings. That measure on procedural rights that was put forward by the Commission very shortly thereafter has been stuck at the bottom of the Council's in-tray ever since, with the effect that somebody accused in another Member State of the Union does not even have the right to an interpreter, because we have not managed to put that into law. These are the kinds of things, bread and butter issues, that we could be sorting out. Michael Cashman mentioned the Data Retention Act. Again, Charles Clarke took an issue which had been stuck in Council for five years and managed to get it through in six months because he decided to use a First Pillar legislative procedure rather than a Third Pillar legislative procedure, and that I think is the proof of the pudding.
Q106 Mrs Dean: What difficulties do you as MEPs face in assessing the impact of EU policies on the ground, rather than where there is legal consistency across the EU, an assessment of actually how EU policies were working in practice? Are you able to assess those as MEPs?
Mr Cashman: Janet, if I may I will respond to that and if I am way off the mark tell me. The approach that I and others take, and I will give you an example, is that when we have a piece of co-decision, and I worked on what is called the Schengen Borders Code, which is the conditions for entry into and exit from the Schengen area, and the conditions upon which Member States who have agreed to go to the Schengen area will re-impose their borders. When we got the proposal from the Commission the first thing we did was to go and talk to the people who enforce the code. We went to the borders and talked to various officials about the problems. Of course, whilst you are there you see the way people are treated, you see the effect of certain controls on them, sometimes the effect on their dignity, sometimes when you see a woman in a glass booth with her child awaiting return to an African country you wonder about how she will be treated during her period there. On the basis of the experience, and talking to the people who have to implement the law, we then brought forward our recommendations, and those recommendations were accepted unanimously by the committee and by the Parliament and, interestingly, for the first time ever in a piece of legislation which is not to do with non-discrimination, it has non-discrimination measures within it. I think it is absolutely essential that when we approach any of these matters, which have a direct impact on citizens and law enforcement agencies and enforcement agencies, it is vital that they are engaged in the pre-legislative process.
Q107 Mrs Dean: Does anybody want to add to that?
Ms Lambert: Yes, I do think there are difficulties in some respects. The process that Michael has outlined, when we can do it I think it is extremely useful and it works; it is very powerful. We have been doing that not least with conditions in some of the reception areas at EU borders, and again that has been extremely informative. There are issues within it structurally in terms of coming back to assess how things have been implemented once it has happened, partly in terms of the workload of the committee in that I think that many of us would feel that we do not actually have the time to do the depth of scrutiny that we would want to do, and we need to look at how we manage that, but quite often your initial point of report is the Commission, that of course is working a lot of the time with what Member States tell it and what we are more interested in almost is what Member States do not tell it, so therefore we are heavily reliant, as many parliaments are, on professional bodies, NGOs, and doing our own fact-finding on it. The other element that comes into it at times as well is budget. We are limited as a committee in the number of fact-finding missions, delegations visits, whatever you want to call them, that we can do. Again, that is a problem at times. There are things that you want to do and cannot do, and we have only recently - and I may be corrected on this by colleagues - been allowed to set foot outside the European Union to look at the effect of certain of the visa procedures and so on that we are putting into action. That has been quite a revolution, I think, being allowed to step outside to see what is happening. Those are some of the other factors that certainly mean that you do not always get the depth of that you would like to have, particularly looking at the implementation two or three years down the road, the review side of it.
Mr Kirkhope: Chairman, this is a question that I think Members of Parliament can also ask themselves and consider. We have got impact assessment in quite a lot of the things now. The trouble is that the impact assessment that I want to see is the impact on my constituents. That is the difficulty about the job we do, and we do get remarks made about us: we are so remote, we are over here and we are not over there, whatever it is, and yet we are the first place, the first location, for legislative proposals, whether those are proposals come out of the Commission or whether they are proposals that are arising out of Council debate. We are often the first place and therefore in many ways the decisions we take, and REACH was a good example of this, the chemicals directive, are extremely difficult to handle because, of course, REACH has impact right down to our constituents who are commercial chemical companies and individuals and a lot of NGOs. Incidentally, we do have an enormous amount of feedback in this Parliament from NGOs and organisations, probably, may I suggest, more than Westminster does, because often that is the point at which they need to get at legislators of one kind or another. In terms of the knowledge of the effects, and I do not know whether I am getting close to where this question is from but my view is that it is extremely difficult and one of the best ways of doing it is for us to work more closely with other legislators. I think we have always had this discussion but I repeat it today: it is vitally important that MEPs are able to work even more closely with MPs to see the process from start to finish and then we can perhaps together monitor how the effects are felt by the public. That is to my mind the big missing thing in my life, that I would love to see this happen and I do not think we have ever quite made it.
Q108 Mr Benyon: We have had conflicting evidence on this whole area of scrutiny. One group of people, Open Europe, who came to see us last week, said, "If the passerelle clause is used it would mean that for the first time in the UK's history criminal laws would be passed through parliament as secondary legislation, and would not receive full parliamentary scrutiny, as they will be implementing EU legislation". In Mr Watson's evidence he has suggested that the role of national parliaments in scrutinising government decisions is greater under the Third Pillar procedure. How would the role of national parliaments in scrutinising EU legislation change under the First Pillar and would a more transparent process enable national parliaments to be involved earlier in the process, rather as you were suggesting?
Mr Watson: I am very much in favour of more transparency and I think the progress that we have made in opening up the Council of Ministers to scrutiny when it has legislated has been tremendously helpful in this. I am not sure that in reality it would reduce the role of national parliaments in scrutiny. What I think it does is that it perhaps changes the way we do it. One of the biggest advances we have made in recent years, and it has been a process in which your Chairman has been involved because he has chaired some of the sessions, is now on a regular basis, twice or maybe three times a year, national parliaments from Member States and the European Parliament come together by sectoral policy area and look at how legislation is working. Your Chairman chaired recently a session which looked at the European arrest warrant and two other pieces of major legislation. It seems to me that that is the most effective way of scrutiny today because we are looking at how things are working in different countries and we are looking also at the challenges facing the Union as a whole. It seems to me that many of the challenges today are supranational and therefore the most effective responses are also supranational responses. However, I am worried and I share your concern about the extent to which parliaments are currently able to scrutinise what has been done at European Union level. If you take, for example, some of the agreements we are reaching with the United States on anti-terrorism agreements, on air passenger details and so on, these are not scrutinised by national parliaments because they are treaties signed by the European Union with a third party rather than by a Member State with a third party, but nor are they scrutinised by the European Parliament because they are Third Pillar issues. One of my arguments in favour of the passerelle is that you are going to get greater parliamentary scrutiny all told if you use that particular clause within the treaty.
Mr Kirkhope: One of the big problems about these sorts of discussions, and the passerelle is a good example, is that you tend to get exaggeration by those who are arguing in one direction or the other. I therefore to some extent share Graham's view about the effects in terms of parliamentary scrutiny. I think the big problem we have, as he suggests, is that there is not enough parliamentary scrutiny per se in national terms. It is not so much a question that the passerelle would then render this an impossible situation. I think that we already have that in place as a problem which needs to be sorted out anyway. I am opposed to the passerelle because I think it would certainly as a device affect our rights, not necessarily in the scrutiny area but in determining the matters which I think are very much national matters to be determined.
Mr Cashman: First of all, I do think that there is a greater role for national parliaments to engage in the scrutiny process at an earlier opportunity. One of the very good ideas contained within the constitution was the obligation on national parliaments to debate the Commission's annual work programme, and the more debate we have, interestingly, the easier our jobs will become because its connection back to the Member State will be obvious. My belief is that use of the passerelle going from Third Pillar to First Pillar would mean that any decisions taken within the Council would have to be referred back to the Member State. Whether it is merely for endorsement or whether it is possible for the Member State to reject, I will be honest with you, I do not know, but, of course, where a supposed new power comes in is the power of the European Court of Justice to intervene in these matters, and at the moment in this area the Court of Justice does not have that remit.
Q109 Mr Benyon: You have powers of scrutiny and co-decision that traditionally belonged to UK MPs. In fact, most of our constituents still think to an extent that we still have those powers. How effective are you at scrutinising EU initiatives on behalf of the UK, and I will widen that? Would your and our constituents feel that a better job was being done if you scrutinised from a UK perspective rather than in your own political groupings or across all Member States, and there was a more structured approach to really feeling that the impact on the British electorate was being addressed more directly?
Ms Lambert: I may part company with others here but I always have problems with this concept of the British interest because I am never entirely sure quite whose interests we are talking about, whether it is the government of the day or whether it is other institutions. I think that probably the electorate would think that the job is best done at Westminster because that would be where it is reported; therefore they will be aware that there is a job being done. Quite often at the European Parliament level a lot of people do not know that there is a job being done despite the best efforts of many of us to get that information out there. I think this is where what other colleagues have been saying about the involvement of the scrutiny procedure in the British Parliament becomes very important as part and parcel of this. To scrutinise it from a British perspective, whatever we may mean by that, is the job of the national parliament. Our job is to look at how this works not just for the UK but also for elsewhere and that there is a balance sometimes to be found in that. Sometimes we will consider that we do want to defend a British interest. At other times maybe there are other things that we think outweigh that, so this is the issue when we are looking at things, particularly in a co-decision procedure, that the involvement of our national parliaments at that point, further upstream, is really important, not when we have made the decision and you are then implementing it. It is what the framework of the decision is and that is where that input will be particularly valuable.
Mr Kirkhope: We do work in an extra dimension to national parliaments and that dimension is in our national interests, so I disagree with this point that is being made. I can think of a whole lot of instances where my colleagues and I have worked with other major political parties in the UK on something that is patently in the interests of Britain and we do it, so we obviously are in our groupings on the left or the right or whatever it may be and in general we are pursuing matters because we are pursuing them as politicians on the right or the left, but then there are definitely matters - and I am trying to think of some; you can probably think of some, Michael - where we will work in the British interests as one of our priorities, our party interest and the national interest. Those are the things I regard as the two priorities here, and I think it does happen and I think it is right that it should happen as well. After all, we are elected from a particular country rather than just in an amorphous European way.
Mr Cashman: Of course there has to be a British perspective; otherwise there is no common interest. There is a French perspective and we come together and we try and work out something that probably satisfies everyone but the French and then we have got the right deal - and that was a joke, for the record! In a way I think there is a bit of a con that has gone on, that we have taken these powers of scrutiny. In some areas, yes, where we have co-decision, and that has increased under the various treaties from Maastricht onwards, but of course some powers have been ceded only to Council, those government ministers acting in Council and then deliberating and voting in secret, and that does not get reported back, their position and how they voted. I wrote the law - and it is law - across the whole of the EU on public access to all the documents held, received or produced by the three institutions, and the definition of "document" was extremely wide, believe me. This was a method by which citizens could hold the various institutions accountable and there has still been resistance within the Council for this transparency. Where we have real scrutiny and we can bring forward legislative change we operate absolutely at full throttle and with all due regard to the people who have elected us, but where we do not we give our opinion, and if the opinion is disliked it is merely put into the filing cabinet called the waste paper basket. That is why the more co-decision we have the more effective we are as scrutineers and as legislators, buy I would say to all of those Member States and those politicians who believe that we have become the scrutineers, you must scrutinise the scrutineers.
Q110 Mr Clappison: Can I turn to the Schengen Agreement which you touched on a moment ago? Could I perhaps ask a broader question on that, how you view the advantages and disadvantages of the UK being outside the Schengen Agreement?
Mr Cashman: The UK, of course, has, like Ireland and Denmark, an opt-in to Schengen. Interestingly, I think it is Norway and Iceland and Switzerland who have opted into Schengen. Of course, if you look at Ireland and you look at us, we have very different needs. We have a border that is solely our own. It is not, unless you look at Northern Ireland, shared with another country and therefore we have very special needs, so therefore I think it is right that we have decided to opt out. However, there are problems affecting people who want to travel without restriction, and indeed some people do find problems when they come from other parts of Europe into places like Gardamadi(?) and they have not brought any ID or a passport, going back to Janet's question about the effects on some of our citizens.
Q111 Mr Clappison: But broadly you are happy to keep the present arrangement?
Mr Cashman: Yes. I would be happy to keep the present arrangement. Let me say the Schengen Borders Code as not just a piece of law. Out of that came a manual that will be used by all of the border guards, so it is another example of laws having direct effects on citizens and on the people who are actually implementing it.
Mr Watson: My take will be a slightly different one. I think that remaining out of the Schengen convention assumes that we take the responsibility to police our own borders. I would be rather more convinced of that if it were not that every government for the last 12 years has cut the number of Customs officers employed in the UK. Frankly, I see some gains in us joining Schengen because I think it would help us in achieving some of the things we wish to achieve in the protection of UK citizens against cross-border crime and so on. However, I choose another argument as my main argument against Schengen: the cost to British businessmen.
Q112 Mr Clappison: Against the opt-out from Schengen?
Mr Watson: Against the opt-out. It is the cost to British businessmen of having to queue at foreign airports, or railway stations if it is the Eurostar into Paris, compared to their continental competitors is huge, an absolutely massive disruption to their lives. I think we would be far more successful economically if we did not have to put our own citizens through those hoops.
Mr Kirkhope: I am very happy that we should maintain our position, were that the case, of course, because over the last few years the Government has been, as we know, opting into parts of Schengen, certainly the co-operation areas of Schengen, and my worry slightly is that we will suddenly wake up one morning and find that we have opted into the last bit of it, which I would be very unhappy about. I think it is quite unnecessary and I think actually we are right to maintain our position because it also then spreads over into areas such as immigration, which we have not discussed, I know, Chairman, today but which used to be my brief at the Home Office, and although we did have some changes and redeployments of our border controls, Graham, I think it is only in recent years that we have seen the complete removal of the outward checks, which I think was one of the causes of our misfortunes at this time in terms of immigration matters. I am sorry to mention that but it is true, I think. I am very concerned about this whole issue of Schengen. Of course, the new enlargement states are obliged to comply with the Schengen acquis by, I think, 2009. At the moment this is proving an extremely difficult thing, and whilst I want us to be out I am really very happy that they should be in, or that at least that there is some clear policy for the external borders of the EU because we are obviously concerned that those borders are properly maintained, albeit we are not in Schengen. We should do far more as a country in my view to try and give assistance where we can to ensure that the Schengen acquis is complied with by those states which are obliged to comply with it, if you know what I mean. I think that would be in our interests in the same way as, although we do not want to be members of the euro, we do at least want the currency itself to be stable. It is in our interests as a country. Therefore, I think we should take that view, that we retain our position and we look at our immigration process more carefully but also that we do give aid to the accomplishment of the acquis for the enlargement states, which really has to be achieved by 2009, but the way things are going, Chairman, it looks as if it is not going to be complied with or achieved.
Ms Lambert: I think this almost pick-and-mix attitude towards Schengen becomes increasingly untenable. There is a whole set of information exchange that goes with it which occasionally affects our citizens, not least if they are travelling for what might be seen as political purposes but they do not get the benefits of open borders either. There is an increasing desire coming through to be treated on the same basis as other EU citizens and we have that freedom of movement.
Mr Cashman: Just so that we are absolutely clear, of course, the UK has opted into information sharing and it is vital that we are aware of who is coming into our country or leaving it and that we work with others to track those who need to be tracked. I just want to say that because there is the Schengen area it must be realised that Member States still police their borders. They still have Customs operations in those areas. They just have the abolition of border checks.
Q113 Chairman: Can I thank you all very much indeed for giving evidence. I probably should not say this on the record but I will. The idea of inviting you as colleagues to come and give evidence to us was cooked up by your colleague Den Dover and myself in the margins of a Lords and Commons cricket game in north London in early September, but I have to say from a personal point of view that I think it has been an extremely useful session and it does seem to me - and you have said very similar things - that we should perhaps look at occasional opportunities for members of your committee and members of our committee to meet together, perhaps on occasion for more informal but substantive discussions on some of the policy issues that come up.
Mr Kirkhope: Thank you very much for the opportunity.