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4.52 p.m.

Baroness Park of Monmouth: My Lords, I have read the committee's admirable report with great interest. Members of the committee are best placed to make informed comment, and I feel rather shy about speaking so early in the debate. However, I wish to make two or three points.

First, I strongly support the last conclusion in paragraph 121 of the report on the question of the negative visa list. The inclusion of Commonwealth countries such as Barbados, Belize, India, Pakistan, the Solomons, Botswana and Zambia, to name only a few, among the countries requiring visas for entry would be deeply damaging to our interests and would be taken as further proof by the Commonwealth that our European dimension is paramount and our Commonwealth membership unimportant. It is also simply not sensible, since so many of our visitors are Commonwealth visitors.

I agree with many of the arguments put forward by the JCWI and the ILPA. The distinctions made between Commonwealth countries seem both invidious and mysterious. It is still more mysterious that, as they point out, no countries in Latin America appear on the list despite their drug culture in some cases (Colombia, for instance) and their abuse of human rights (Guatemala).

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In the debate on the European Communities (Amendment) Bill in June 1993 I warned that Article 100c and Articles K.1, K.3 and K.9 would have serious implications for our independence of action. I believe that I was right. I was concerned then about our Commonwealth relationships and about the threat to our national security which the greatly extended powers of the Commission to initiate further action under qualified majority voting after 1996 would pose. I still feel that Article 100c(5), which pays lip service to the need for member states to be able to safeguard internal security, is negated by Article 100c(6) which allows Article 100c to apply to other areas under Article K.9.

I also strongly support paragraphs 109 and 110 of the conclusions. I find it amazing that in the climate of today's Europe, with the spreading activity of, for instance, the Russian mafia and international drug rings, and given the porous and inadequately policed external frontiers in many cases, there should be any serious intention to abolish controls at internal borders, especially in the case of the UK which has no system of internal identity cards, and given the fact that even in 1991, as I said in the 1993 debate, there was and is a thriving trade in the forging of EC passports. Of 591 persons refused entry at one English port alone in 1991 because of forged documents, 524 had forged EC documents.

I agree with the committee that it will still be necessary to control the movement of people across internal frontiers where a member state deems it right to do so. I wish they all did. Equally, I strongly support the recommendation in paragraph 110 that the conventions recommended by the Council:


    "should reflect the nature of these conventions as international agreements which individual Member States may choose whether to ratify or not".

Two tendencies have become manifest in the Commission's conduct of affairs, and indeed to some extent that of the Council of member states. The first has been a lack of transparency. For instance, as the committee says in paragraph 74, the inter-governmental negotiations leading to the political agreement of June 1991 on the external frontiers convention took place in secret and the text agreed, which was of obvious importance for European integration, was not laid before the UK Parliament for a further year. The other tendency is towards a creeping assumption of even more powers.

The proposals are now out in the open, and that is good, but we now need to have the political will and the good sense to say in good time whether we agree to what is proposed. Qualified majority voting does not make it easier, but we should retain unequivocally our right not to ratify if necessary. Moreover, we must allow no precedents to be set for this pillar which could have an adverse impact on the 1996 discussions on the defence, security and foreign affairs pillars. Reminding the Commission that we retain our right to ratify and to enter into inter-governmental treaties can only be beneficial. Also, we must not allow the aim of harmonisation to override the individual needs and

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duties of member countries and the propriety of inter-governmental rather than supragovernmental policies.

4.57 p.m.

Lord Archer of Sandwell: My Lords, I venture to intervene to emphasise one subject about which concern was expressed by the noble and learned Lord, Lord Slynn. I do so lest it be thought that, if no other member of Sub-Committee E were to intervene, we thought of the matter lightly. The fact that I do not echo all that the noble and learned Lord said about the other matters of concern does not entail that we thought lightly about those.

The matter about which I want to express concern and to echo the concern of the noble and learned Lord is the joint list. As I may have mentioned in your Lordships' House previously, I have supported closer integration in Europe for many years —since before the idea was as widely accepted as it is now. I can claim to have been a Christian before Constantine. Therefore, I have no difficulty in supporting the concept of the free movement of persons, although I fully take the point of the noble Baroness, Lady Park, that there are some matters about which we need to exercise control at internal frontiers. If we are to have the free movement of persons, I accept that a necessary consequence is that there should be co-ordination in the control of external borders. But it is simply stating the obvious to point out that the greater the area and the population over which an authority exercises control, the greater the power of that authority over individuals, and the greater the degree to which individuals are at its mercy. It is not simply that an authority exercises power over more individuals; its power over each individual is so much the greater.

We have an example of that. Article 7 of the draft convention provides that a person may be denied entry to the territories of member states if he represents a threat to the public policy, national security or international relations of member states. Article 10 provides for the making of a list of persons who are thought to pose such a threat. It is to be a joint list, and each member state may require that the names of specific persons shall be included in the list. The criteria for including a name on the list are set out in the draft article, Article 7, but the decision whether a particular person falls within those criteria is entirely within the judgment of each member state.

When Mr. de Lobkowicz, head of the unit dealing with the subject in the European Commission, gave evidence to the sub-committee—his evidence is set out at page 61 and the following pages of the minutes of evidence—he made it clear that such a decision was seen as falling within the principle of subsidiarity. Each state would provide such safeguards as it thinks fit against the wrongful inclusion of a person on the list, but if a state submits a name there is no further sieve, and there is no further safeguard.

In effect, the list will be an amalgam of all the national lists. It will represent the exercise of power over more individuals than any national list. But, more

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importantly, the consequences for any individual will be so much the greater. He will be precluded from entering any of the member states. If France requires an individual to be added to the list, not only will he be precluded from entering France, he will be precluded from entering the United Kingdom or any of the other member states.

Admittedly, there is a proposed exception in relation to visas, as the noble and learned Lord pointed out. If a specific country is persuaded that it is important that an individual on the list should visit its territory for one of the purposes specified, it may issue a visa limited to that territory. But the individual must find means to activate a specific exception, and it is clearly a narrow list of exceptions.

I was surprised to learn that the safeguards against the wrongful inclusion of someone's name are regarded as wholly a matter for the member state which submits the name. It was said to fall within the principle of subsidiarity. It seems a curious application of subsidiarity that France may preclude a United Kingdom national from entering Germany.

The effect of what is proposed is that the authority which exercises that wide power over so many individuals is not the Commission, nor the Council. It is not an authority of the Union at all. If it were, we could address the safeguards which may be required to ensure accountability. I make no secret of the fact that I should like to see the European institutions made more accountable. Because there are those who would like to see the nation states of Europe have more power, and the Union less power, we have arrived at a compromise which probably represents the worst of all worlds. We have institutions which exercise wide powers but have a reluctance to entrust the European Parliament and the European Court with the power to control them.

The question of the jurisdiction of the European Court was referred to by the noble and learned Lord, Lord Slynn. I respectfully agree with what he said. But that is not the problem in the case that we are discussing. The authority which exercises such wide power over so many individuals is in fact each nation state. I suspect that that may represent a pattern which we may find in the future in third pillar conventions.

In paragraph 83 of our report, we say that we are concerned at the imprecision of the grounds on which a member state may add a name to the list. I refer in particular to the two grounds mentioned by the noble and learned Lord, Lord Slynn. One ground is,


    "information to the effect that the person concerned has committed a serious crime".

t does not even need to be reliable information. There is nothing in the draft convention to indicate that an individual whose name is on the list should be told that his name is on the list. If he applies for a visa, and is refused, he will know that he has been refused a visa. But he may not require a visa to make the journey that he has in mind. He may arrive at Heathrow at 8.30 for an important meeting in central London at 10.30 and either may be held for two hours while being interrogated or, more probably, simply sent back on the

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next aircraft. The potential unfairness is exacerbated if the individual is not told what is happening until it is too late to make alternative arrangements.

I understand, as we state in the report, that an individual will be protected by Article 20 of the Convention on the European Information System. However, that leaves him largely at the mercy of the member state, "before which he invokes" his right of access to the information. That may not even be his own state, because the right to be exercised is,


    "in accordance with the law of the member state".

For the reasons set out in paragraph 85 of the report, I believe that there is a need for some safeguards within the convention or elsewhere. An individual refused entry because his name is on the list should have a right to be told which member state has required his inclusion and be accorded a right judicially to challenge his inclusion.

These are worrying matters for anyone who cares for civil liberties. But they are particularly worrying as an example of what I believe we may expect from third pillar conventions. There may be a need for co-ordination in a particular area of activity, but it cannot be addressed unless every nation state is carried along, and safeguards for individuals may be the negotiable trade off. What emerges may represent the lowest common denominator among the member states.

I hope that I may transpire to be unduly pessimistic. But so often, it is when I am most pessimistic that I transpire to be right.


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