Examination of Witnesses (Questions 160
WEDNESDAY 13 JANUARY 1999
BUNYAN and DR
160. Mr Bunyan is asking another question.
(Mr Bunyan) Yes. To pick up your point, you mentioned
terrorism and organised crime but Schengen is not just about terrorism
and organised crime. Again, you cannot pick and mix this package.
You cannot say "I just want to take part in that aspect of
it" because the Schengen Information System and the SIRENE
Bureaux are dealing with everything. They have got millions of
stolen cars on them, Germany has lots of cars stolen and there
are lots of those on the Schengen Information System. It does
deal with people who are suspected of being a danger to public
order and national security. It does deal with people who are
wanted for extradition. It does deal with migrants who may be
breaking leave to stay. We cannot just have a bit of the system,
we have got to have the whole system. I think we should be clear
what we are getting. If there is an intention to join the Schengen
Information System, which I am sure this Government wants to do,
it is a question of it is going to have to join the whole of that
but it cannot just join the whole Schengen Information System
it is going to have to join these other aspects as well, I suspect,
or there will be a big battle over "you want to have the
information but you do not want to have border co-operation".
161. Could I just interrupt for a second.
What I am getting at is if you want to make the sort of improvement
that Statewatch stands for about transparency, remedies, civil
liberty protectionthis is not entirely a political questionwhat
is the best means in your view of going about it? Are we able
to achieve those objectives effectively by our present posture
or would it be better arguing from within?
(Dr Peers) That in a sense presupposes that the
Home Office shares those objectives.
162. I am not asking about the Home Office,
I am asking about Statewatch.
(Mr Bunyan) I think that is the point. Whether
the United Kingdom joins or not I think is immaterial to the question
of whether under the Amsterdam Treaty what is being inherited
is an acquis which we have pointed out is still growing,
which has not been subject to any open democratic debate, which
has not been open to transparency, which has not been open to
judicial control and will not be open to proper judicial control,
as Steve pointed out, even when it is within Amsterdam. Will Britain's
joining make a difference? The answer to that one must be only
if the United Kingdom were to take a position which was seeking
to remedy those complaints about the Schengen acquis incorporation.
In other words, it would have to be really heading for making
the Joint Supervisory Body, which is there in the centre, an open
and public body.
163. So is your position that we should
only go in if we can have that basic minimum condition satisfied
of the kind you have outlined about transparency, legal certainty,
judicial remedies and so on? Is that what you are saying?
(Mr Bunyan) I am saying that because the debate
tends to centre on do we want to join the Schengen Information
System, what is the benefit to the Government or to the state,
but on the other hand what the citizen may be saying and what
civil liberties groups are saying is that is all very well but
there are other issues involved in joining Schengen, it is not
just about getting information for police or immigration purposes,
it is about what kind of system are we joining. To answer your
point, whether the United Kingdom in its minority position can
say "yes, we want to join and by the way we want this to
become a more democratic beast", which obviously if one is
going to do that one would like to see being argued, it is going
to be a doubly difficult position but one would hope that the
Government would do that, that it would say "If you want
us in", and they do want Britain in, it makes sense to have
Britain in with the other Schengen Member States, "we also
want to see improvements in this, this and this aspect".
At the moment the United Kingdom is going to be in a funny position.
Just reading the latest report on the incorporation of the structure,
the United Kingdom is in this bizarre position when it comes down
to working parties. Even though the United Kingdom is not part
of Schengen and will not participate at the level of Schengen
on the Council level, when it comes down to the K4 Committee and
the working party levels it will fully participate. This paragraph
says: "If Ireland, the UK and Denmark are entitled to participate
fully in the discussions at all levels within the Council, this
implies that delegations of these Member States can also fulfil
the function of presidency of the Council." That is to be
chair of those working parties or committees. "However, they
may, when the case presents itself, wish to yield the presidency
to the delegation which will hold the next presidency." So
we have here this bizarre situation where the United Kingdom is
chairing a working party concerned with Schengen but actually
it may decide at that level not to chair it but to hand it over
to a Schengen Member State who is holding the next presidency.
It is a bizarre idea. "The fact of having opted out of the
areas covered by the new Title IV TEC, includes giving up the
right of the Member States concerned to present any legislative
initiatives...." This is interesting. So the United Kingdom
can participate, it strongly hints it should hand over the chair
of the working party to a Schengen Member State, and it cannot
initiate at the moment new measures but it can decide to opt in
or out of measures being proposed by Schengen Member States. I
know it is confusing but that is where they are presently at in
a paper dated November. That does bear on your point if the United
Kingdom is to have any influence.
Chairman: The comment
was made "just like the Social Chapter all over again".
Baroness Turner of Camden: Who
is in and not in.
164. I want to just raise with you a question
on a point that you threw in in your opening remarks and it is,
I think, in a sense a political one. I am interested nevertheless
to hear your views. I think you quite rightly, although I had
not thought about it in those terms, said that the political arguments
that we are currently hearing about whether or not we join Schengen
are a re-run of the arguments that we heard in the late 1980s.
In what particular respect do you think the argument has changed
since then or the balance of advantage has changed over that period?
Are we living in a world which is an exactly similar world for
the purposes of these kinds of issues as we were in the late 1980s
or do you think certain things have changed which mean that the
value of the arguments made in turn have changed?
(Mr Bunyan) Obviously things have changed from
the late 1980s when the Commission was always banging on the door,
not just of the United Kingdom but other Member States, saying
"look, we have got to have free movement". What has
changed in justice and home affairs is a whole number of other
agencies and initiatives are either in place or about to come
into place in which the United Kingdom is fully participating.
165. Perhaps I failed to express myself
properly. In terms of the fundamental points such as "we
are an island", and this is a point that both governments
have emphasised, that this is a matter of enormous significance,
do you for example think that argument is as strong now as it
was then or is it stronger? Essentially, regardless of whether
or not you subscribe to it, do you think that the nature of the
argument has shifted in the meantime?
(Mr Bunyan) I suppose I never agreed with the
argument in the first place. This is a personal point of view.
I did not believe in our border control. I have never believed
in this island mentality. It was an island argument but it was
also an island mentality which was a very nationalistic argument
which as an internationalist and a European I find myself opposed
to. I was as opposed to it in 1985 as I would be now. I think
one has to say that the argument that somehow the United Kingdom
authorities do not trust the other Member States is one that probably
has changed. Countries like Germany, France and Italy have not
created Schengen and been running it now for three or four years
without putting in place compensatory measures which are quite
extensive as I tried to explain in terms of the practice. In other
words, the idea that somehow the last bastion is the Channel and
that those other 13 Schengen Member States are really leakyevery
Member State is leaky in some respectsis less and less
true. As always the argument that you have got to have border
checks to open people's bags and things, I really do not think
that the German police or the French police would argue that they
are any less efficient now at combatting organised crime or drugs
than they were when they had border checks. In some ways they
would say they are in a better position.
166. You would say the argument was weak
and has got weaker?
(Mr Bunyan) Yes.
167. Is it also true to say, using a kind
of vulgar Sun language, that it could be described as "the
continental system for administering justice is a lot of dodgy
foreigners and if we share information with them the whole lot
will be all over the place before you know where you are"
is completely discredited?
(Mr Bunyan) I think so. I think any system, however
good it is, has leaks. We have had leaks from the Police National
Computer here and we have had people taken to court. Any system
which has widespread access potentially is going to leak. You
can never be one hundred per cent secure. What I am saying is
that I think a lot has changed in the last ten years in terms
of the co-operation of the Schengen countries. It may be one of
which I am highly critical in terms of its lack of democratic
accountability and judicial review but there is no doubt as far
as they are concerned they are over the first hurdle and they
are going into the next hurdle now and they are very involved
Lord Lester of Herne Hill: Has
there not also been this change, following Lord Inglewood's question,
that the previous government when we were signing up to the Europol
Convention for ideological reasons was opposed to giving the European
Court of Justice the task of providing uniform effective remedies
against the misuse of the Europol Information System and there
was a great argument about it, I remember it in Sub-Committee
E for example, and votes upon it and so on, but the present Government,
unless I am much mistaken, seems to have more confidence in supra
national judicial protection? I suppose one symptom of that is
incorporating the European Convention on Human Rights into domestic
law linking more closely with Strasbourg. Is it the caseStatewatch
probably knows from its dealings with Government agenciesthat
there is more sympathy now for European judicial protection of
civil liberties than there was before? I do not know the answer
168. Can I go back to an answer that you
gave just now. If I understood you correctly you said that in
some ways the Schengen Convention countries are in a better position
and I understood you to be referring to border control. In what
way are they in a better position?
(Mr Bunyan) I think it was always a debate, for
example, about how effective border controls were at combatting
terrorism and organised crime. Some borders are very long with
other means of communication, other means of transport. I think
you would find that certainly the BKA in Germany would argue that
now by not having formal border controls but having the form of
bilateral co-operation they have got not just between their immediate
border Member States but other Member States and with their 20
mile kilometre patrols they are probably more efficient at combatting
terrorism and organised crime and drugs than they were under the
old fixed point static system. This is partly because they are
employing new techniques. They are employing covert surveillance,
the placing of informers, surveillance, putting bugs on the underneath
of cars and lorries. So it is technology partly and new legal
powers, or in some cases new legal powers sometimes they have
got and sometimes they have not gotan area which is to
expand under Amsterdam. Both these areas of cross-border pursuit
and of covert operations, control delivery, are in the Amsterdam
Treaty. I think they would argue that things have changed. The
old idea that everything happens at the border and that is how
you stop everything is an old-fashioned idea even in policing
Baroness Turner of Camden
169. You said something earlier on which
interested me. You talked about the amount of information that
was available through the SIS with millions of records and so
on. We spent some time in this House quite recently discussing
data protection and data protection legislation which is now on
the statute book. Is there any possibility here of problems of
a civil liberties nature in relation to data protection with all
that volume of material stored under SIS arrangements?
(Mr Bunyan) There are always at least two problems.
One problem is where information is leaked out. The other problem,
which in a sense is more common, is where information is wrongly
recorded. There have been one or two instances where Mr Smith
of Manchester has not been the same Mr Smith they have pulled
off the plane and sent back. There have been other instances of
car numbers where somebody has sold a car to somebody else last
week and three months later the car is picked up because it used
to belong to somebody suspected of being a friend of a friend
of a terrorist but now it belongs to somebody completely innocent.
That completely innocent person could be picked up in another
country if it is on the system and held and questioned. That happened
in France, for example. There are two kinds of dangers. One is
the leaking and the other danger is the wrong information and
in the middle is the wrong application of the information. The
Joint Supervisory Body of Schengen has had some difficulties establishing
its note. In the first year it certainly had some difficulty.
The difficulty it had in the first year was when it went to Strasbourg
and was there inspecting the Schengen Information System when
some high top official arrived in the middle of their visit and
kicked them out. The supervisory body was kicked out of the Schengen
Information System for doing its job. Things have slightly improved
since but certainly looking at their annual report it has got
a number of worrying instances. It is a thick annual report. It
has taken two years for that body to start to do its job and put
its foot down a bit but it would not say it is happy at the moment
with the way Schengen is operating because it is not always getting
the information it needs. Imagine having 14 million records, 45,000
access points and a small body of 13 data protection people trying
to keep on top of it with a very small staff. It is an enormous
job. There is a problem there and the same problem will arise
obviously for Europol: will that supervisory body be able to do
its job properly and will it have the staff to enable it to do
the job properly? We do not know but that is an issue. Often with
these bodies it is not the power that they have got it is actually
whether they have got the back-up staff to enable the full-time
commissioners to do their work properly.
170. I appreciate your interest in these
things is not one necessarily which is where the priority is and
the efficacy of policing. You were commenting about border controls
and you have clearly looked at these issues over a long-ish period.
Could your remarks be interpreted as being to the effect that
in your view there is a reasonable argument for saying a form
of policing which is based on border controls is sub-optimal when
compared to a form of policing which involves what one might call
the Schengen approach?
(Mr Bunyan) Is what?
171. Sub-optimal in contrast to a Schengen
approach to policing. You may say you do not feel qualified to
(Mr Bunyan) My view is unimportant but I think
that would be the view of a lot of police officers, that border
control is one element but nowadays there are a lot of other techniques
they have available of which border control is only one aspect.
The idea that somehow border control is the primary way of controlling
crime and drugs and terrorism I do not think is the predominant
view amongst police forces in the European Union now.
172. May I just follow that up. One may
concede that on crime, terrorism and drugs but not on immigration
for a number of reasons. This seems to me to be the sticking point
of the British argument. To put it in Daily Mail terms
"it is all very well for them, it is just one of the things,
but the Slovak gypsies still turn up at Dover and if they are
managing to get through three countries on the way between Slovakia
and Dover there is still something wrong and we need our own immigration
controls there to hold the line". What would be your answer
to that argument?
(Mr Bunyan) This is the debate which fuels the
border control argument, which fuels racism within the EU. We
have been getting daily reports from people in Dover about people
arriving and what has been happening to them and the way the Dover
press has been reporting it. You may get 70 Roma people arriving
in Britaingypsies, travellersand this is blown out
of all proportion. It is maybe 70 people arriving out of how many
million travellers visiting the United Kingdom every year, 26
million odd, and how many asylum applications do we get, 50,000
to 60,000. We are talking about a tiny number here. The debate
then does become racist, not about whether they have got a legitimate
case, it becomes "what would happen if we had no border controls?"
The Schengen people would say within their system "you stop
them at the border but of course we have got our patrols going
up and down, of course we have got our checks, we also discover
people who are Roma from other countries, your problem is no different
from our problem but do not pretend that you are more efficient
than we are at stopping whatever this perceived threat is".
This is what the debate is about. The problem herethis
is why I think it is a question of border controlsit is
an argument about nationalism, it is about racism. If the United
Kingdom Government were to say "we are going to have free
movement, we are going to take down the border controls, they
are shown to be unnecessary, 13 other Member States have not got
them any more", we can suspect the kind of debate that would
happen in Britain. We can suspect that it would actually take
on a very nasty racist turn.
(Dr Peers) That is really more of a Dublin Convention
problem anyway than a Schengen problem. The problem is not so
much that they were not stopped in the first place, the problem
is that they were non-visa nationals in each of the continental
Member States that they crossed and then until recently non-visa
nationals here in which case we are then the competent state for
determining their asylum claim. The solution to that is to impose
visa requirements across the European Union on Slovak Nationals
in which case it is the first state which they try and enter on
an external border that can prevent them from entering. In a way
perhaps in the Daily Mail context that point is not understood,
it is not exactly a border control problem in some ways.
173. The argument is that is fine but then
the compensatory measures, to quote the Treaty, which we have
are also not entirely pleasant. If I understood what Dr Peers
has just said, he is in favour of stricter visa controls on Slovaks
trying to enter the Schengen area but there are those who argue
against adding to the long list of countries in which one has
to have visas. Compensatory measures in other countries, as Mr
Bunyan has made quite clear, include mixed patrols, covert surveillance,
identity cards, a set of issues which in the British perception
we do not have and we do not have to have. Do you accept that
if we do away with border controls we would then have to move
into compensatory measures of that sort?
(Mr Bunyan) I think one should hit on the head
the idea that you have got to have ID cards if you join the Schengen
Agreement, this is nowhere in the Schengen Agreement.
174. How many Convention countries of the
Schengen Agreement carry ID Cards?
(Mr Bunyan) The basic point I am trying to make
is the idea of identity cards is nowhere in the Schengen Agreement,
it is nowhere part of the Schengen system.
175. How many Convention countries?
(Mr Bunyan) You are right but, having said that,
we must not mix it up with being a Schengen measure. Identity
cards is not a Schengen measure, it is not a requirement if you
join the Schengen Agreement to introduce identity cards. Within
the Schengen Agreement there is a measure about hotel registrations
but that is a little bit different from ID cards for the whole
population. What you have got within the 13 Member States is many
of them have ID cards, in some it is compulsory to carry them
and in others it is not compulsory to carry them. There is not
a uniform system. You can join the Schengen Agreement in very
simple terms without having to produce ID cards, it is not a requirement.
Whether the Schengen system requires other controls, yes it does
to a degree but not much more in advance of what is happening
at the moment.
Chairman: I promised
that we would finish by half past five. But we have two urgent
interventions, so may we take those and then we will finish.
Lord Lester of Herne Hill
176. Thank you, my Lord Chairman. I should
declare an interest because I am on the board of the European
Roma Rights Centre in Budapest and since you have raised the question
about the Roma I think it is important that we deal with it properly.
My understanding is that there are about ten million Roma across
the whole of Europe. They are very vulnerable and much discriminated
against in many countries and, therefore, the pressure for them
to escape and seek asylum elsewhere is very strong. They are the
most discriminated against minority across Europe. That is my
understanding of the material I have looked at. If that is right,
and I would be grateful to know whether that accords with Statewatch's
information, what I do not understand is how the choice of border
control or not in this country compared with the rest of the European
Union is really significant since all Members of the European
Union Member States are confronting the same pan-European problem
of how to tackle the underlying causes of Roma movement on a common
and individual basis. Could you address that view?
(Mr Bunyan) You are absolutely accurate, it is
a common problem to all 15 EU Member States and it is a problem
for the applicant Member States as well. The Roma are a stateless
people, as are the Kurdish people a stateless people. They are
two groups of people who are very often singled out because they
are two peoples without states who in some countries are a significant
or a small minority and in some states are singled out for persecution.
Those people, therefore, present a "problem" for all
members of the European Union. It is not primarily a problem for
the United Kingdom.
177. I wonder if I could come back to a
matter you did discuss earlier on. I am not quite sure that I
understood what you said. This is the access which we would have
if we joined Schengen to the Central Information System and how
it compares with what goes on now. The impression I have is that
collaboration between police forces is traditionally quite strong
in this country, it is pursued seriously and it is built up very
often on the basis of personal relationships between two people.
As you rightly said there are individual agreements about crown
affairs which give us a constitutional buttress to what goes on.
It does seem to me that as Schengen is incorporated and it gets
locked into the Community and is better organised this will tend
to focus the exchanges on this organised centre. I wonder how
available these other sources of information, informal ones which
go on at the moment, would be once this tightly organised central
system is up and running? In other words, if we wanted to continue
getting a great run of information from police forces we would
probably have to join, we would not be able to continue indefinitely
the informal arrangements that we have at the present. Do you
think that is reasonable?
(Mr Bunyan) I think one must distinguish. Informal
means bilateral contact between one policeman in one country and
one in another country. The problem with that, as we know in some
cases, is that one can also say it is not only informal but it
is unregulated. There is no regulation covering that exchange
of data. That can happen in the Europol Drugs Unit at the moment
in the Hague where we are told stories of the informal exchange
of data with somebody taking their portable home at night and
coming back with the answer the next morning. These stories are
already coming out of the Hague with the informal exchange. What
it does mean is that if the United Kingdom were in the Schengen
Agreement NCIS would be the equivalent SIRENE Bureau, it would
be putting in data from the United Kingdom and it would mean that
every police force in the United Kingdom would have terminals,
every major police station would have terminals, every immigration
point would have terminals, every customs point would have terminals.
I do not know how many terminals we would need for the United
Kingdom but we can guess it would be several hundred, if not a
few thousand. The difference is every police officer, every customs
official, every immigration official would be able to have access
to what is in Strasbourg on the one hand and on the other hand
the continuation of the informal contact between a small number
of police officers. There is a big difference, if you like, a
178. Can I summarise what I think has been
your evidence and encourage you to summarise as well. I think
you have been saying that from Statewatch's perspective of costs
and benefits of the British opt-out the benefits of yielding on
opt-out and joining Schengen fully are much higher than the costs
but if the political decision is made to hold to our border controls
that should be the only part of Schengen on which we opt-out.
Is that the general thrust of what you have said?
(Mr Bunyan) Say the last bit again.
179. If there were a political decision
that we wished to maintain our border controls, nevertheless the
benefits of opting in to as much as possible are greater than
(Mr Bunyan) Yes. That, I suspect, is the United
Kingdom Government's point of view. I suspect the United Kingdom
Government's point of view is we do want to maintain our border
controls, we are not prepared to risk whatever may come out of
a backlash about removing border controls, but on the other hand
we want to join as much as possible and we particularly want to
join the Schengen Information System and particularly areas of
police co-operation and anti-terrorist co-operation. The price
of that may be that the Schengen countries say "you have
also got to do x, y and z as well" and I think that is where
the debate will happen. I think that is the Government's point
of view, whether or not they are saying it openly but I am sure
that is where they are going and what they want to do.
180. It is probably not negotiable on that
(Mr Bunyan) It depends. There is a very big difference
between Schengen negotiating when it was only five Member States,
which it was at one stage, then it was nine Member States and
now it is 13 Member States. It is in a stronger position so one
does not know whether a French or Spanish objection to the United
Kingdom picking and mixing will be the same now as when it was
more vulnerable when there were only five Member States, that
is a question of politics. It is a question of who is going to
say "no, you cannot join anything without joining everything"
which is where they are going to start from, they are going to
start from that position. It depends whether there is any leeway
to negotiate in between and it depends, as was raised earlier
by Lord Lester, whether the United Kingdom Government is prepared
to enter those negotiations and raise some important questions
over accountability and transparency within the United Kingdom
Chairman: Thank you
very much indeed. We have kept you for a little longer than we
intended. It has been a helpful evidence session. We will no doubt
see you again.