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Lord McIntosh of Haringey: My Lords, I am happy to join with all other noble Lords who expressed their gratitude to the noble and learned Lord, Lord Slynn, and his colleagues for this report on a most important subject. I confess that as a non-lawyer I found a good deal of the argument difficult to follow. I tried to leave aside those parts of the legal argument which did not seem to me to be important or essential for the political and social decisions which arise from the issues. Noble Lords who are legally qualified will therefore forgive me if some of my comments appear to be somewhat simplistic.
The most important thing about the report is the extent to which it is an innovation in the consideration of European draft legislation and conventions. The ability given under Article K for us to consider these conventions in draft and the way in which Article K, and in particular Article K.3, enables them to be dealt with by proposals from the Commission to the Council and by consideration then by the Council, and for the views of the European Parliament to be taken into account, are clearly important for the future of national scrutiny of European directives and legislation. If the advantage which the sub-committee had in dealing with the matter before the text and details are finalised is to be followed in the future, the work of our European Communities Committee will be immensely strengthened.
In this case, however, we obtain little advantage from it because the convention which we are considering this afternoon and which the sub-committee considered is in itself a recycling of a 1991 convention which was arrived at in accordance with the old secretive rules which my noble friend Lord Dubs rightly criticised. It is only before us because of the outstanding disagreement between Spain and the United Kingdom about Gibraltar. Otherwise, as my noble friend said, it would already have been enacted and we would not have been able to say anything at all about it. But the implication that it is a recycled convention, using the new ability of the Commission to raise matters itself when they appear to be in deadlock, means that there has been a self-denying ordinance on the part of almost everybody except the European Parliament and your Lordships' sub-committee to proposing significant changes to the convention. The likelihood is that significant changes will not be made to the conventions. In theory, the way in which we have been able to consider the conventions is hopeful for the future; in practice, the limitations on these particular conventions are rather severe.
I should like to make my comments in the order in which the summary and conclusions in paragraphs 109 to 121 have been presented by the sub-committee. That does not mean that I need comment on all of them but I want to comment on the most important ones. Paragraph 109 refers to internal border controls and
Paragraph 110 deals with the status of the conventions and brings out the difference between the Home Office view, which is that this is an international agreement which members may sign or not, and the view of the Commission, the wording of which I do not pretend to understand in detail. It may not matter very much except for the fact that the Commission's viewthe Article K procedure to which I have already referredinvolves a degree of consultation between the Commission, the Council and the European Parliament before a text is finalised. My noble friend Lord Dubs drew attention to the value of that process which would not be available from an international agreement, which needs to be ratified by individual states, produced in the older way.
A further consideration which leads me to greater sympathy with the Commission's view than the sub-committee had is that essentially an agreement of this kind has to be implemented with unanimity. One cannot have an agreement which is ratified by a number of member states but perhaps by not all of them and implemented in different ways. I appreciate that the status of the regulations is quite powerful. Even so, I believe that we have to go into this with a degree of unanimity about both what the conventions contain and the way in which they are to be implemented, even if that means, as was pointed out in evidence to the sub-committee, that very often the result is a compromise which satisfies no one completely.
Paragraph 111 refers to airports. Here I think a little common sense rather than legal argument is called for. It seems to me common sense that the British provision for transit passengers to be treated as airsidein other words, not to go through procedures as they arrive at, in particular, London Airport, but also other airports within the European Unionshould be preserved. Noble Lords may know of the procedures facing anyone who enters the United States and wishes to move onto a connecting flight. One goes through immigration procedures in, for example, Seattle before catching a flight to San Francisco, or even worse, one undergoes immigration procedures in San Francisco, where one can wait for two hours before catching a connecting flight to somewhere else. The airside provision for transit passengers, whereby one knows what one's minimum connect time is and that one can catch one's flight and that it is only at one's last destination where one is not catching another flight that one has to go through immigration procedures of perhaps unpredictable length, will recognise that our system is much better. I hope that all effort will be made by the Government to support that view.
On the other issue of the difference between domestic and international flights, with the extension of domestic flights to include inter-European flights, I think that the airports and the airlines are going a little over the top. After all, Heathrow Airport already has two terminalsTerminal 1 and Terminal 2which are largely for domestic and European flights and two terminalsTerminal 3 and Terminal 4which are largely for international flights. Given enough time, I agree, it is not a great problem to redefine domestic flights to include European flights and to make provision for immigration and Customs facilities accordingly. It may be awkward for individual airlines to do both, but it is not a problem of the greatest significance. The worst solution would be if the nine Schengen states were to go ahead with abolishing internal controls and the UK, Ireland and Denmark were to be left on one side. Then we really would be pariahs in Europe.
The most important issue of the joint list has been dealt with by many noble Lords and for very good reason. Inherently, a joint list which is created by bringing together the names of those whom any member state wants to put on but yet which requires the agreement of a large number of member states to get them off will be the lowest common denominator of common sense. It will be the easiest list to get on to and the most difficult list to get off. It does not seem to me that the remedies proposed are adequate for the purpose. The sub-committee uses the phrase "judicial remedy in that state". As has been pointed out, after the Asylum and Immigration Appeals Act 1993, the United Kingdom does not have adequate remedies because we have deliberately abolished them. But I am sure that that is true in other states as well. Surely what we need is not judicial remedy in individual states but common measures accepted throughout the European Union to resolve disputes and appeals.
Exactly the same goes for paragraph 113, which deals with residence permits. The problem is that if a single member state removes the residence permit of an individual the individual cannot get into any of the 12, soon to be 15, member states. That seems to be going over the top. Again, the same principles of common measures to resolve disputes apply.
Paragraph 114 is wholly welcome. It deals with the need for an explicit link with the European information system. This is linked very much into the ability of individuals to appeal against their inclusion on a joint list. I would suggest that it would be desirable to include reference to the European Convention on Data Protection, which deals with the quite sensitive issues of the need to inform individuals about what information is on a listit will, after all, be a computerised listwithout at the same time making information about them available to those who might wish to damage their interests, in particular those in other countries who would wish to persecute them.
The issue of carriers' liability has been a matter of concern to your Lordships over many years. I know that there have been heated debates on the subject. That has been true because the United Kingdom takes perhaps a more extreme view about carriers' liability than almost
We do not make any provision for the recommendations of the sub-committee made by a number of noble Lords that carriers should be liable only if it can be shown that they have been negligent in their procedures. The implications of carriers' liability go far beyond the interests of the individual airlines. They extend to the core of the issue of refugees and asylum seekers, as the noble Lord, Lord Dubs, and others have rightly said. If we are to act in accordance with Article 9 of the Chicago Convention, we shall have to do something about the problem that refugees and asylum seekers have rights only when they are in the country. But they cannot get into the country at all in order to claim those rights if the regulations about carriers' liability go over the top and exclude all those who may, for perfectly understandable and good reasons, be fleeing from persecution in their own country.
I shall deal very briefly with paragraph 116 on the jurisdiction of the European Court of Justice. Without in any way suggesting to the noble Lord, Lord Lester, that I agree with his views about the incorporation of the jurisdiction of the European Court of Justice in United Kingdom law, in general I certainly agree with all that has been said about the jurisdiction of that court as regards the matters concerned with these conventions.
Paragraph 117, 118 and 121 have been very adequately dealt with. They concern visas and the positive and negative lists of countries. I do not remember which film musical it was, but I believe the line is "Accentuate the positive and eliminate the negative".
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