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Lord Henley: My Lords, I am afraid that I cannot agree with the noble Lord. The noble Lord will have to accept that I think that the £200 million or £300 million to which the noble Lord referred is a significant sum, as is £1 billion. I shall be delighted if the noble Lord wishes to debate the issue of own resources. There will be ample opportunity to do that in due course. I believe that the decision made in Edinburgh was good. That has kept down the increases and the noble Lord should be grateful for that. Perhaps he will remember that the Commission was seeking something like £1.37 billion; but, as a result of the negotiations of my right honourable friend the Prime Minister, that was kept down to £1.27 billion. That was a decision which was generally welcomed by all sides of both Houses and, for all I know, by the noble Lord himself.

Lord Skelmersdale: My Lords, does my noble friend recall that yesterday my noble friend Lord Trefgarne introduced a debate in your Lordships' House on the subject of small and medium-sized businesses, with special reference to the manufacturing sector? In the course of that debate, my noble friend Lord Ferrers was asked to pass on to my right honourable friend the Chancellor of the Exchequer the view that it would be disastrous for the Government to take the easy option of increasing VAT by 0.5 per cent. across the board. Therefore, the Government are to be congratulated for not taking that easy option.

Secondly, does my noble friend recall that when VAT on domestic fuel and power was originally suggested and introduced at the rate of 8 per cent., part of the rationale for that was that it was a carbon tax? Does my noble friend consider that VAT on domestic fuel and

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power at 8 per cent. plus the additional taxes on road fuel will be a suitable equivalent to the proposed EC carbon tax?

Lord Henley: My Lords, with regard to the first point raised by my noble friend, I can confirm that my right honourable friend the Chancellor of the Exchequer always takes considerable note of what is said in debates in this House. I am sure that he noted the comments to which my noble friend referred in the debate introduced yesterday by my noble friend Lord Trefgarne.

In relation to his second point, even with the increases now of only 8 per cent. in VAT on fuel, prices for both electricity and gas have come down over the past few years in real terms, even after taking into account that 8 per cent.

Visas and Border Controls: ECC Report

4.30 p.m.

Lord Slynn of Hadley rose to move, That this House takes note of the Report of the European Communities Committee on Visas and Control of External Borders of the Member States (14th Report, HL Paper 78).

The noble and learned Lord said: My Lords, the report referred to in the Motion has one unusual feature. Your Lordships are well aware that the European Union now has what are appropriately, or otherwise, called three pillars. The first of those pillars consists of measures adopted by the Council and the Commission of the Community broadly as has been done until now. The second and third of those pillars are very different. They involve agreement by member states dealing with foreign affairs and security matters on the one hand and on the other hand home affairs and justice.

In the report we are concerned with a proposed draft regulation under the Community pillar dealing with visas and a proposal for a convention to be adopted by member states on persons who cross the external frontiers of the Community. That proposed convention is not made under the Community pillar but under Article K.3(2) (c) of the justice and home affairs pillar. This is the first time that the Select Committee has had to consider a proposal under the home affairs and justice pillar.

Our inquiry has shown that there can be difficulties in the overlap between proposals in a related area which comes under the two pillars. I am not sure whether "under" is the right word; there should perhaps be some other word as it is "pillar" and not "pillow". However, I shall use the phrase "under the pillar" in the hope that your Lordships will understand what I mean.

Our inquiry revealed even more a matter which the Select Committee has stressed throughout; namely, that the committee should be able to scrutinise a proposed draft text at an early stage rather than that the committee should be confined to considering proposals at a late stage when the United Kingdom is considering ratifying the conventions. To comment at that stage may well be to whistle in the wind or may lead to the whole process beginning again in a very unsatisfactory way.

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Perhaps I may deal, first, with the draft external frontiers convention. It has had a somewhat curious history. Its negotiation began in 1991, but it ran into difficulties because Spain and the United Kingdom were not able to agree about the position of Gibraltar. After the Treaty of Union, it was realised that some of the matters in the proposed convention would have to be transferred to the regulation under the Community pillar.

The basic object of the convention is to lay down rules which will apply to persons who are not Union citizens and who are not, broadly speaking, nationals of a member state who want to cross the external frontiers of the Community. It is broadly agreed that there must be rules based on common criteria to cover such persons and rules which will involve close co-operation among the member states. The target is to strike a balance between eliminating threats to public security and public safety in the member states and at the same time preserving such openness for the rest of the world as is possible.

There are many detailed rules in the draft convention about the establishment of crossing points, the surveillance of frontiers, residence permits and visas. I propose to say nothing about them because I think that it would be wrong to detain your Lordships with a discussion of that kind of detail. Perhaps I may mention just four matters which seem to me to be issues of principle and issues of considerable importance.

One element of the convention, and an important part of it, is the preparation of a joint list for all member states of persons whom all the member states must refuse entry if they seek to come into the Community. That joint list is to consist of names which are notified by the member states and the decision as to whether a person shall be placed on the list is to be based on the threat which that person may represent to the public policy or national security of the member states. The decision to put forward a name is to be taken in accordance with national procedures on account of a number of factors, such as that the person in question has served a custodial sentence of more than one year.

It is obvious that, even now, before the convention is adopted, member states may under their own rules refuse entry to undesirable third-country persons who wish to come into their states. The difference in the new proposal is that, if someone is put on the list, he must be refused entry to all member states. If a businessman now wants to come to Paris and he is on the French exclusion list, he can presumably go to Brussels and his clients will go there to see him. Under the new proposed convention, he would not be able to go anywhere into the Community if he had got on to the list. There is no doubt that, in the view of the committee, the provision of a list is justified when the right people find themselves on the list.

However, the categories of persons who may be put on the list include two matters which gave us concern. The first is where there is information to the effect that the person concerned has committed a serious crime—that is, not a conviction but merely information to the effect that the person has committed a serious crime; and, perhaps even more general, where there are serious

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grounds for believing that a person is planning to commit a serious crime or that he represents a threat to the public security of a state.

It is idle to pretend that, in the process of people being nominated and their names then being notified to the central list, mistakes could not happen. It cannot be ruled out that names will be put forward by other individuals, even maliciously, with the result that someone may get on to the list who really should not be there at all. A number of our witnesses expressed very serious concern about that possibility. As a result, we think that it is essential that an effective remedy must be provided to give protection against unfair, improper exclusion from the Community and that, at the very least, a person should know which state has put him on the central list.

It is our view that there should also be a remedy in national courts against such wrongful inclusion on the list and against the withdrawal of a residence permit. We do not believe that that should be left to chance. We think that it should either be in the convention or that it should be included in measures adopted to give effect to the convention. It is our recommendation that one of those two courses should be followed.

The second item is very different. Article 6 of the convention provides that, where a passenger comes into Community territory by air from a third state and is going to transfer at the airport where he lands to an aeroplane to take him to another state, he should be subject to entry conditions and entry control at the airport where he first lands. Therefore, if someone comes to London who is going to Paris, the proposal is that he should be controlled in London and if someone is going to Paris and then on to Berlin he should be controlled in Paris.

That may work where intra-Community state flights are treated as domestic flights. It may not work in countries like the United Kingdom, Ireland or Denmark where they are not so treated. But it seems to the committee that this does not in any view take account of the special position of a hub airport like London where passengers frequently land from all parts of the world in order to transfer to other flights and where they are kept on the air side of immigration controls without any check on their immigration status, and where they are not treated as having entered the United Kingdom.

The committee considers that this proposal needs radical reconsideration by the Council. It ought to be looked at again in view of the special status of London Airport. It may not be unique, but it is the most striking example of this kind of problem. But even if the proposal is to be maintained, the committee recommends that adequate time should be given for the very substantial restructuring and changes in the infrastructure which may have to be adopted at the airport. The proposal at the moment gives far too little notice to the airport authorities.

Thirdly—I can take this more shortly—Article 14 of the convention deals with the responsibility of carriers who bring persons into the United Kingdom or into the Community when they do not have either the necessary travel documents or the necessary visas. The convention proposes to impose penalties upon such carriers even

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where there is not negligence, and penalties which go beyond the responsibility simply to take them back or to pay for their accommodation in the meantime. It seems to the committee that that is in conflict with Article 9 of the Chicago Convention which imposes liability only where the carrier has been negligent.

The committee takes the view that the same should be the position in this draft convention and, moreover, that it is particularly important that airport officials, airline officials and immigration officers should be aware of responsibilities under the European Convention on Human Rights and under the Geneva Convention relating to refugees to ensure that people are not sent back when they are quite genuinely asking to be admitted to a member state because of a well founded fear of persecution for political reasons. What we propose in this area, on the basis of very serious and impressive evidence given to us, was that the appropriate officials and administrators should be made very aware of the dangers which this kind of provision can open up.

Finally, as far as the convention is concerned, I come to a different topic and one of general importance. Because this is a treaty between the member states and not a Community measure, the European Court of Justice does not automatically have jurisdiction to deal with disputes about the interpretation of the convention or disputes which may arise out of its administration. However, there is provision in the treaty for the European Court to be given jurisdiction to interpret and to rule on disputes regarding the application. When this convention was first proposed, there was no proposal to include jurisdiction for the European Court, but the Commission has come to the view that it would be appropriate to provide for a limited jurisdiction; for the power of a national judge, who is dealing with a contention that the convention has been violated if the convention is part of domestic law, to refer that question of interpretation to the European Court, and for both the Commission and member states to take proceedings against other member states in the Community.

We of course understand that this is to be an international treaty and not a Community measure. We also recognise, because of the variety of views on our committee, that there can be different attitudes to this particular question. But after very considerable discussion, we came to the conclusion that this is the sort of measure in which the European Court of Justice could play a valuable role. All our witnesses took the view that it was desirable that the European Court should have this kind of jurisdiction. Their evidence, I suggest, is not to be disregarded. We were not persuaded—I certainly was not persuaded—by Home Office arguments that the convention is largely Executive and administrative in character and that disputes can be resolved by officials or by the Council of the member states.

As I see it, the European Court is the one way—the best possible way—in which this convention can be most effectively applied uniformly in the Community. This is not to be seen as a way of interfering here; it is to be seen, I submit, as a way of ensuring that all the

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member states carry out their obligations under the convention in the same way. Without some form of central ruling on interpretation or on disputes, I fail to see how that can happen. It was of notable interest that the witness from the European Parliament was wholly in favour of this proposal and thought it quite absurd that the member states should have to go to the International Court of Justice at the Hague if there was a dispute of that kind. We therefore recommend that the European Court of Justice should have jurisdiction as proposed by the Commission.

Finally, I turn to the regulation which I can deal with much more briefly. There are two important issues of competence and two short matters of practical application. Article 100c of the treaty deals with the approximation of laws, and it provides very specifically that the Council shall determine the third countries whose nationals must be in possession of a visa when they cross one of the external frontiers of the Community.

On the other hand Article K deals generally with asylum policy, the crossing of external borders and with policy dealing with nationals of third countries including conditions of entry and residence. Article 1(1) of the regulation clearly falls inside Article 100c. It provides a list of those third countries whose nationals must have a visa. There can be no challenge, I suspect, to that. Article 1(2), however, gives the Council power to list countries whose nationals are exempted from the need to have visas. In common sense it might be said that the second is a corollary of the first, and if the Council may make a list of those who need visas, it may make a list of those who do not need visas. However, we came to the conclusion that if this had been intended in Article 100c of the treaty, the article would have followed the draft provision in the pre-existing proposed convention where the words were,


    "the arrangement shall determine whether or not"

visa is required by the nationals of a particular member state.

Had that change not taken place, I, for my part, would have accepted that the one was the corollary of the other. But in the light of the change in the language from the earlier convention the committee came to the conclusion that this was a very specific provision and that if states are to be exempted, this must be put into the convention and not into the regulation.

The other point which I wish to make, and which I believe is of some importance, concerns Article 2. Article 2 provides that member states shall not be entitled to require a visa of a person who seeks to cross their external frontiers and who already holds a visa issued by another member state, if that visa is valid throughout the Community. Therefore, in the United Kingdom we could not refuse entry to someone who had a visa from Germany or Greece if that visa was valid throughout the Community.

We came to the conclusion that that does not fall within the limited words of Article 100c. That provision was itself a compromise between those who wanted these matters to be under the Community pillar and those who wanted it to be under the home affairs and justice pillar. We do not find it possible to construe

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Article 100c as allowing Article 2 of the regulation to stand. It may well be a desirable provision, but it should go into the convention.

On that basis, we have come to the view that both those provisions in Article 1(2) and in Article 2 of the proposed regulation are not within the competence of the Community and that they should be put into the convention.

The proposed regulation covers transit visas. We consider that to be wholly inappropriate. We think that the list which has been drawn up of countries whose nationals must have visas is inordinately long. Too much should not be attached to that. There is nothing sinister about it. It was a Commission proposal which was intended to initiate discussion, even though it is somewhat extensive. In the view of the committee there is no doubt that it should be shortened. There seems to be no justification for the inclusion of some Commonwealth countries on the list as countries whose nationals must have visas if they come to the Community, especially as other Commonwealth countries are not on the list.

I am sorry that I have taken some time. However, this is a matter of considerable importance in the Community. My colleagues in Sub-Committee E who conducted the inquiry and I are greatly indebted to our legal adviser, Mrs. Eileen Denza, for her work and guidance in preparing our report, and to our Clerk, Mr. Michael Pownall, and those who gave evidence to us. For many of them it involved considerable time and effort, on what are important questions. I beg to move.

Moved, That this House takes note of the report of the European Communities Committee on Visas and Control of External Borders of the Member States (14th Report, H.L. Paper 78).—(Lord Slynn of Hadley.)


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