Select Committee on European Communities Minutes of Evidence

Examination of Witnesses (Questions 181 - 199)


Dr Richard Plender qc, Mr Nicholas Blake qc, Professor Eileen Denza cmg and MS MADELEINE COLVIN


  181.  Thank you for coming. It is good to see you again. I would like to thank you for this extremely valuable memorandum which we have all seen in advance. I do not know whether you would like to say anything in addition by way of opening statement. We know you well. We were saying before you came in that several of us used to be in deep awe of Eileen Denza many years ago, and some of us still remain in awe of Eileen Denza. Who would like to start?
  (Ms Colvin)  As Legal Policy Director at Justice and perhaps I could make some introductory remarks. I do not perhaps need to introduce anyone individually, but just to say that we are all members of Justice's expert panel on human rights in the European Union. From our written submission I would like to make three short points. The first is that the UK's retention of border controls as allowed under the Amsterdam Protocol does not in fact preclude it from participating in the new Title IV on legal grounds, although there may be political reasons. We take the view that it is possible to separate the protocol from the question of the UK's opt in or opt out of Title IV. The first section in our paper covers that point. The next point to make is that on balance in terms of protecting human rights, Justice takes the position it is better for the UK to opt in to EU-wide policy on immigration and asylum under the new Title IV. This is so for a number of reasons, including the reason that it is important for the UK to be in there formulating policies in these sensitive areas, and in particular, influencing an agenda which introduces positive rights for free movement. The third point is that to stay out of the new Title IV areas such as immigration and asylum will result in a legal maze of great complexity. If the UK stays outside, it will nevertheless be bound to retain the third pillar agreement it has already signed up to in the area of immigration and asylum These would be on a bilateral basis with each other Member State, and may well have to include new bilateral agreements to cover developments in Title IV. This creates the potential, not just for a very complex system of layer upon layer of legal considerations, but also gives rise to potential differentiation in the substance of the law itself, especiaaly in terms of the individual rights and safeguards. Our paper also includes a section on the Schengen Information System, but I will not say more on that at this stage.

Chairman:  Thank you. Lord Lester?

Lord Lester of Herne Hill:  I simply wanted to make it clear for the record that I am on the advisory council and a member of the executive committee of Justice and all four of the witnesses are friends, all learned, some learned in a particular legal sense. I will now ask the first question. I was looking at paragraph 1.9 of the Justice report which as I read it is really opposed to the introduction of identity cards. Is that really a firm Justice position?
  (Ms Colvin)  It is the Justice position that we took when we wrote our report in 1995 with the Institute of Public Policy Research, copies of which I have brought for members of the Committee. We looked at the proposed grounds on which identity cards were to benefit either crime or immigration control. We came to the conclusion that any gains arising from a mandatory system of ID cards was outweighed by the costs, both the administrative costs and the costs in terms of community relations. That is still our policy and it is set out in the report.

  182.  Suppose that the Government came to the view that they did want to opt in but that the price would be more effective scrutiny and control within, and on the lines of what happened in some of the other Member States therefore they would introduce identity cards. Would your position then be in that case stay out, or would you then accept that it was a price worth paying?
  (Ms Colvin)  I think that is a difficult question to answer. We start from the basis that there needs to be evidence to justify the use of identity cards as internal controls in the first place. We are not convinced that they are needed, in terms of immigration reasons there are many considerations that have to be taken into account to see whether or not it will actually be effective to have an ID card system. As you know, the other European Union Member States all have variations of ID card systems. They are not all mandatory, and they do not have to carry them at all times. Of course, the question of how effective they are is proportionate to what powers are given to the police on checking identification cards particularly on the street. And that is where the real danger lies.

  183.  Would you agree though that one of the benefits of an ID card would be that where people are stopped on the streets and they are in possession of an ID card, it enables them there and then without any further complication to explain who they are and what they are doing, as it were, and therefore might actually in that sense be beneficial rather than detrimental to good community relations?
  (Ms Colvin)  One of the interesting points is that the ID card itself may identify a person but it does not necessarily tell you what their immigration status is. In order to do that, you will need to have a much more complex system, includinga data base which enters everyone's immigration status. We do not have this at the moment. It would also be necessary to have different kinds of identity cards allocated to the different statuses. So, for example, there would be different colours of identity cards for different people with different immigration status. The danger of this is, of course, that if a person is assumed to be foreign they may well be subject to harassment because of the colour of their card or the fact that they do not have a card. So again there is no simple answer and shows that, it is a very complex issue.

Lord Pilkington of Oxenford

  184.  Going on from where Lord Lester has finished, you understand the dilemma this Committee is in, namely we are treading a tightrope between human rights and the strong public perception of wanting to control illegal immigration. Evidence that we have taken, particularly from a senior French civil servant, suggests that some of your worries about identity cards are not necessarily correct. I am saying this by way of introduction, if you will forgive me, but I think it is necessary you know this. Evidence suggests there is always trouble with the policing of the least affluent areas of societies, particularly ethnic minorities, and this is something of course we all need to give attention to and we accept that. But if I can put the question more starkly, and you may not be able to answer, as far as popular perception is concerned it may come to a choice between keeping frontier controls or having identity cards. This is the impression we got, possibly wrongly, from the senior civil servants of our persuasion and I think, although I belong to the other party, it is the political perception of the Government. Now, if this stark reality is put to you, could you not sort of swallow the toad, claws and all, and have identity cards?
  (Ms Colvin)  At the risk of repeating myself, Justice is not in the position of being convinced of the need for internal controls by way of identity cards, but perhaps Nick Blake might wish to comment.

  185.  Could I just put a subsidiary point which is that it seems to work in France and France has not conspicuously worse relations with its ethnic minorities than we have, it is six and two threes, I would agree with you, but comparing it, say, to France which is the area we are taking evidence from.
  (Mr Blake)  Could I just add to that that I do think it is a nicer and more balanced question than a sweeping statement of principle and I think that Justice's earlier report and Madeleine's answer demonstrate that one does have to look at the whole package. In many respects of course, those who do not have the right of abode have a system of quasi-identity control at the moment, they have the alien registration office, they have an identity document when they claim asylum, their immigration status is checked when they claim education, health, housing, social security benefits, and I take Lord Lester's point that a convenient means of proof of who you are and that you are entitled to access to benefit is maybe a positive advantage and I think that is a factor which needs to be borne in mind. I think the crunch comes if the price of identify cards is itself that it is a criminal offence failing to carry one or co-operate with the police, and that, I think, is when the balance goes the wrong way and there I think you do get not just resistance from, as it were, the ethnic minorities or the migrant communities, but equally I think the rest of the population balancing up whether the price is worthwhile and saying, "Hang on a minute, we didn't join this wonderful new Europe to be policed in a more Draconian, centralised-state way than in the first place", so I think it will be there that the crunch comes rather than the carrying of the card itself.

Baroness Turner of Camden:  We have just heard Lord Pilkington who, as you see, is in favour of ID cards—

Lord Pilkington of Oxenford:  I am seeking the truth.

Baroness Turner of Camden

  186.  —as far as I can see, but not everybody on the Committee feels that way and I personally am rather opposed to it. I am interested in what you say in section 1.6 of your document about the whole issue of border controls generally because you say, "We acknowledge that there are arguments in favour of the UK taking advantage of its island status in this respect". I had the impression that our present Government may still feel that there is advantage in maintaining that position. You then go on to say that you would like to see a dispassionate examination of the likely consequences, but in the opening statement that you made, I got the impression that you were in favour of our opting in.
  (Ms Colvin)  That is to Title IV. We make a very clear separation between maintaining our border controls and opting in to Title IV measures on immigration and asylum.

  187.  So you still have an open mind perhaps upon opting in to Schengen generally?
  (Ms Colvin)  We would prefer to see the UK opt in to the new Title IV which is the Schengen acquis on immigration and asylum being incorporated into Title IV. What we have not taken a policy decision on is whether the UK is right to maintain border controls, as such. Our position is that if the UK keeps border controls, this does not stop it from opting in to the other measures which we think it should.

Lord Bridges

  188.  If I could come back to the opening remarks which Ms Colvin made, I think she said that it is better to opt in to a system of human rights and if we opted out, we would find ourselves in a legal maze, and I read with some interest the passage in paragraph 2.2 of your report on this subject which would seem to me to say that there is actually a legal maze whichever route you follow. Personally, I would like to see us adopting a European system, but if you try to define in an international agreement who is a political refugee, you are not going to end up with a definition which is particularly clear, translated into a dozen European languages, and it seems to me that if we do opt in on the question of political refugees, we will have cases coming before our courts which will be appealed to the European Court and that is the way in which you will finally come to what is understood to be the meaning of a political refugee. So the legal maze, I fear, is not to be avoided and we will end up with a terrible legal argument which will go for a long time, but if we have a European system, we can hopefully arrive at some final definition, though whether it will be agreeable to all Member States is another matter.
  (Dr Plender)  We have of course had litigation on the question whether a person comes within the Geneva Convention for a number of years. One of the great advantages that I see, and I think other members of Justice see, in our opting in to the present parts of the Schengen Agreement dealing with the external border is that we may harmonise our approaches to this area which theoretically ought to be the same, but, in practice, are not the same. We find, for example, that German courts do not regard a person as a refugee where the body from which he fears persecution is not the state, but is some other body. Now, that is not the approach which English courts have taken or those of most other West European states. Why is it important that we should have the same approach? I think it is important because the policies applied in any one country affect not only individuals, but also migratory flows in other states. There are nowadays extremely sophisticated means of dissemination of information about policies. One country adopts a more restrictive view of a common instrument and the migratory flow is directed to other countries. I see this as being one of the areas in which a common policy observed and enforced so far as possible by a single court would be very much to our advantage.

Lord Dholakia

  189.  One of the political considerations that, by opting out, the United Kingdom can maintain is primary immigration control. The fallacy of this argument is that the primary control is exercised very much by the visa regimes abroad and not at the points of entry here. Would it be, therefore, better to be very clear that it is not the immigration control that we are talking about, but what the Government intends to do, which has been clearly indicated in the White Paper which has recently been published for fair and fast immigration and asylum policies, is to have further controls by immigration officers in being able to detect alien immigrants, more power to the police officers and immigration officers, and the issue of the identity cards, et cetera, that you talked about, so what is coming through in all of these things is very much a confusion about talking about primary controls which are not primary controls but which are simply more powers to the institutions in this country. Would you subscribe to this argument?
  (Dr Plender)  I respectfully agree with what you have just said, and that highlights what is, to my mind, another advantage of our participating with other European states in the visa system under Schengen. This is a matter for balanced judgment because there are certainly some disadvantages in participating with other states. It means subscribing to the common list and we may not be able to persuade our partners to exclude some countries that we would want to exclude or include some countries that we may want to include, and the former of those may be harder than the latter, so there is a price to be paid. That said, if we co-ordinate our policies in respect of visas, this harmonises to a substantial degree the principal control which is external. This does not preclude the possibility for the Government to maintain its present policy of internal control of movement from other Member States if it wishes to do so and it may well wish to do so for a while to see what progress is made, for example, with the Italians in policing their south-eastern frontier and to review the matter in due course.


  190.  May I ask some related questions on 1.6 and 1.7 which seem to me to be a very important part of your memorandum. First, your statement, which is fascinating at the outset, that your reading of the Treaty and its Protocols is that the maintenance of British border controls for immigration purposes, which is the basis on which the British Government has secured an opt-out for the whole of this system, does not necessarily require us to opt out of the rest. Are you confident that lawyers advising other member governments would take the same interpretation of the Treaty as you have just taken?
  (Ms Colvin)  I do not think I would be able to comment on that, my Lord.
  (Professor Denza)  I do not think the treaty suggests that there is any difficulty about the split. I think if other Member States were going to make difficulties about a selective opt in, it might be against their long-term self-interest, which I would suggest may be one of seeing these rather unsatisfactory arrangements essentially as interim. They do not want to be unkind to the United Kingdom, they want gradually to lure it into a system of co-operation and feelings of confidence. There may be particular political obstacles at different times but I would not think legally there is any reason for other countries to say that it is all or nothing, you must take it whole.

  191.  If that is correct, that simplifies the task of this Committee enormously because all the other evidence we have had is that British government agencies would like to opt into everything else except for border controls. If we can narrow it down to border controls, that makes it simpler, if that is the correct interpretation.
  (Professor Denza)  Following on what you said, my Lord Chairman, Ireland specifically makes clear in the declaration to the treaty that its only reason for opting out is the common travel area and it intends to opt into the flanking measures almost entirely. No one objected to that declaration, and if there was a legal problem about what the treaty as a whole was intended to mean that would have been the point to take the exception.

  192.  You say in 1.6 that the UK is the only EU Member State that appears to require a double line of protection over border controls. One of the problems, it seems to us, having worked this through and talked to those concerned with British border controls, is that we do not have the concept of the difference between border controls on arrivals from outside the EU and arrivals from inside the EU, thus we do not have in immigration practice a concept of an external border. What would be the view of Justice of moving rather more explicitly towards a system in which arrivals in the United Kingdom from outside the EU and the Schengen area were treated differently at UK airports, for example, from those who arrived from inside the EU area?
  (Professor Denza)  I think there is a little bit of a difference in that there is a separate channel. There is a much laxer approach and certainly the European passport is verified to check it is not a forgery but that being so, without the whole business of reconstructing airports, certainly the level of control is a very light one where you are dealing with EU citizens. Indeed there was a judgment in the Times this morning suggesting where you are dealing with children who may have been brought in in an attempt to adopt them under false pretences that if anything it may be rather too slack. So there is in some sense factually a different level of control. One's European colleagues say it is now really very light under the European channel.
  (Mr Blake)  In principle it must be right. The conundrum in these questions is always knowing whether you are looking at an argument of principle or an argument of practice. The case for retaining border controls is that the UK Government is not sure the existing principles of an external frontier are being adhered to. If they can be assured about that, I think the case for retention of border controls or other than a very light check considerably diminishes. Equally, one has to look at what ought to be happening and that people who have been landed lawfully inside the Community without a forged document ought to be able to move without the merest form of verification of their entitlement. These two concepts, free movement of those who have entitlement (whether they are EU residents or being lawfully resident in the EU and have given the appropriate documentation) and then checks that they are not simply falling through a second line of defence because of what the Italians failed to do or what someone else has failed to do at some other external frontier, is where the argument gets confused. We need to sort out in principle what it is there for and we also need to balance, if there is to be a case for retaining border controls, a greater input into a positive programme of giving free movement rights to all third country nationals lawfully settled in the EU to everybody; the positive side of free movement. Because I certainly think for everyone in this country the 1993 common borders actually saw a much greater tightening up of movement of, say, Jamaicans resident here into France or vice-versa.

Lord Bridges

  193.  When we put this very question to the Home Office at a recent meeting they were extremely reluctant to accept the notion there could be a common travel area in Europe. "No", they said, "This is not the way we do it, we want to look at a man's passport to see who he is rather than where he comes from", and that was their very firm position.
  (Mr Blake)  That would become increasingly difficult, if not technically unlawful, if measures were adopted which give residents rights of transfer within the European Union. It is now a developing problem for families, for businesses employing these nationals, and it is not appropriate for these complicated questions to be determined by immigration officers with a lengthy line of people behind them at an airport. They are just getting it wrong and they are creating real problems for businesses.

Chairman:  Does anyone else want to come in on this specific point, the question of whether third country nationals resident in Britain have freedom of movement across the EU or not, which they do not at the moment, and whether that is contained within the current opt-in?

Lord Inglewood

  194.  Lord Chairman, I have a point on what has come out of what Mr Blake said, although it is not quite going in the direction you are going. I was thinking about the distinction you make, which I entirely understand, between controls and checks. It seems to me in bar exam terms that it depends really on the mens rea of the person carrying out the physical activity and its main practice, which would be rather more difficult to distinguish than it is in theory to draw the distinction between what is happening. I would like to get your comments on that.
  (Dr Plender)  I think it depends not on the mind of the inspector but on the frequency and duration of the checks. There is even case law on the point. I understand checks to be those which are taken occasionally, very often on the basis of intelligence and not those which are imposed systematically as you walk across a point. I myself would be sorry to be drawn too much on the question of the maintenance of internal controls, because the principal point made by Justice is one rather for the incorporation of those measures which apply at the external border. May I, however, revert to a point made about a third country's nationals? It is more than 25 years now since the United Nations High Commissioner for Refugees proposed, and the European Commission announced, a proposal for a refugee recognised as such in any Member State to be granted freedom of movement to other Member States. The basis of the declaration is that one who has been accorded the right of permanent residence in one Member State should be treated equally with a national of that state when travelling for temporary purposes to another. I do not see that as being something which should not be feasible, but it is something which requires the application of common policies, as in the question of refugees there should be.


  195.  May I pursue a little further Lord Inglewood's question on 1.7, which is again an issue with which we have struggled? I did check informally with the Home Office what distinction they made between controls and checks and the answer was precisely the one you have just given, which is that controls provide a system of checking which applies to everybody, checks a system of checking which applies just to some people who come in, and that as a matter of principle Her Majesty's Government wants at least to look at the document of everyone entering this country. I think some of us would argue that the problem of moving from there to selective checks is that one then gets into all sorts of problems. As Lord Dholakia would say, his wife goes through easily, but he is the one who is stopped, and we are familiar with the problems of those sorts of selective checks. Is that the clear understanding of the distinction and that there are problems of moving towards selective checks even with the most experienced immigration officers?
  (Dr Plender)  As a matter of law, I repeat, I do understand that is correct. As a matter of practice, again I do think that there are problems in moving to selective checks. It is part of my personal objection to the use of identity cards, as Lord Lester suggested, at least where identity cards are to be carried by the person in the street and are to be subject to occasional checks, and it might be less if they were regularly and systematically used for limited purposes. I do see a difficulty with the selective check, whether it be on immigration status or on the card.

Lord Rix

  196.  Originally, Mr Blake said that it would possibly be a criminal offence not to carry an identity card. Following on from your question, would that be the case? Would it necessarily be a criminal offence or would it be rather like producing motor documents where you have to go to the police station within five days or whatever it is?
  (Ms Colvin)  It depends entirely what the law says.

  197.  Exactly. In other words, it would not be enforced on us if we were in Schengen? Not carrying identity cards would not necessarily become a criminal offence?
  (Ms Colvin)  No, it would not be because Member States, as I said before, have very varied provisions on this But, as I said before, the effectiveness of ID cards as seen from the experience of other Member States does to a certain extent depend on whether or not people have to carry them and whether or not the police have the powers to demand them on the street. There is a direct correlation between powers and effectiveness and, therefore, that is a debate that would have to take place before introducing any system of ID cards.

Lord Lester of Herne Hill

  198.  I was going to ask about the information system, but could we just finish on the identity cards first. Following up Lord Rix's question, would it not be the case, as with motor vehicle documents, that it would be perfectly possible to enact a law which made it a requirement to possess an identity card and to show it where it was necessary to do so, but to have leeway to be able to obtain one from your home, as happens with motor insurance and other documents? If that is right, of course it can always be abused by a racist police officer just as motor insurance document requirements can be and no doubt are abused by some racist police officers who stop a black person and demand documents in a way that they would not stop a white person, and I am speaking hypothetically. That is true, is it not, of any system using documents as a means of establishing identity of insurance or a motor vehicle or of a person and, therefore, the vice does not consist in requiring identification documents, but it is in the abuse of them improperly by public officers acting beyond their lawful powers?
  (Dr Plender)  First, of course one could have a law as Lord Lester proposes, and indeed Germany has just such a law. Second, as to what is the vice, my view there is that a vice in law which provides for the enforcement of immigration control by checks on cards required for production at the discretion of an officer either because of the officer's actual bad faith or because of a perception of bad faith, there is bound to be damage done when those entrusted with the observance of the law look for those who appear as if they would require immigration permission, seize upon them and not on those who do not look as if they require it and demand production of a card. There would be less damage if a card were required to be produced by everybody upon certain events, for every social security claim, for every change of employment, for every purchase of a house. If this were done systematically, there would be much less risk of real or perceived discrimination, but in order to be effective, those systematic checks would have to be imposed upon a considerable number of transactions.


  199.  You have made this distinction between controls and selective checks on the borders. To your knowledge, do other members of Schengen still maintain selective checks at the border and is that acceptable to other members of Schengen?
  (Professor Denza)  I believe they are entitled for certain purposes, not so much immigration, but other aspects like drugs and terrorism.
  (Mr Blake)  There is a certain amount again of practice and reality. I know that at the French border between France and Spain, you can whiz through the frontier, oh yes, no checks here, but 100 yards down the motorway the police are there and everyone who looks like they are black or comes from Morocco or something of that sort would be asked questions about customs and other questions of that sort, so there may be plenty of scope for these practices, undesirable practices or necessary practices depending on which way one looks at it, to be in existence and I think that devices such as, "Oh, well, it is not a border check, it is something else" are in existence and can be still in existence in certain border controls, but I think that the question of principle is: what are the criteria for intervention and when should any person be required to produce documents? There is of course a case, therefore, that people who are crossing frontiers in pursuance of rights should have some material to demonstrate that they have a right to do so at some point, but the other question is simply: under what circumstances can someone challenge the existence of that right and what is the penal regime? I do not think I was intending to say earlier that once you have identity cards, you must have a system of penal control, but what I was hoping to say was that the vice of identity cards depends upon the accompanying scheme of penal sanctions and if you go all the way for a regime, that becomes ineffective and disproportionate. I think if an identity card is a means of proving a right and if that right needs to be proved at certain regulated and proper moments of interface between the citizen and the state and if there is a proper ground or a reasonable cause which is not based upon racial discrimination or upon racial identity of some person or other to say, "Can you demonstrate that you do have that right?" then I think you have a system of transparency, clarity, legality and effectiveness, which are the lawyer's principles for struggling with it after and it becomes quite difficult to pursue where the principles go in this debate, but it is shifting sands and it is pros and cons.

Chairman:  That is precisely it, that we are struggling to see how far we are talking about a difference of principle or a difference of practice or a difference of semantics on the question of border controls, selective checks, et cetera.

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