Examination of Witness (Questions 240
WEDNESDAY 27 JANUARY 1999
240. Would you feel that if Great Britain
joined, with our island situation and our extensive frontiers
A. You would
be a candidate for support in that sense?
A. I think I
will duck that question. I have no doubts about the length of
the United Kingdom's maritime frontier. I have some doubts about
whether it is the most convenient place to row ashore if you are
coming from Algeria.
242. A comment was made to us by one witness
that the SIS, as the Union gets larger, is going to need a new
computer in a few years. This is going to be very expensive and
they might therefore welcome our participation in that as a paying
member to help to pay for the new computer.
A. I can imagine
that that consideration would point possibly in that direction,
but I do not think it will be the only consideration when they
come to look at whether or not they wish the United Kingdom to
join. I have no reason to say that if the United Kingdom tomorrow
were to apply to join Schengen in the full sense there would be
anything except consensus that they should, but it cannot be taken
for granted because, as you know, this was a subject that led
to some discussion after the Amsterdam Treaty had been theoretically
finalised in Amsterdam. This was the one loose end, should there
be any wish by the United Kingdom or Ireland to join Schengen,
should the decision be taken by unanimity or by qualified majority,
and after some discussion they agreed that it was by unanimity,
so unanimity is what it is.
243. And you do not have to have a reason
to say no? You just say no?
A. Best endeavours
to say yes, I think is what the declaration says. You can say
244. My understanding is that once the Amsterdam
Treaty is ratified Schengen is incorporated. Therefore, as a separate
entity with separate meetings, Schengen in effect ceases to exist
and the meetings thereupon take place as part of the normal Council/Commission
set of procedures. Does this mean that British representatives
will attend all of these meetings, even if they are primarily
discussing Schengen business? Does it mean that in attending these
meetings, even if Her Majesty's Government has opted out of item
3, item 5 and item 6 on the agenda, it participates fully throughout,
or does it have to withdraw and stand in the corridor, or does
it have any observer status? Is there clarity on this issue or
are we talking about something which might be very complex to
operate in practice?
A. I think we
are talking about something which might be very complex. The reinforced
co-operation as set out in Article 11 of the Treaty is not unlike
what they did for other areas before this. They allow a certain
limited group of countries to borrow the Community institutions
to help with their work. That implies that if they were talking
about exclusively Schengen matters and the United Kingdom were
still outside Schengen, I would read it that the United Kingdom
would be present but would not be able to vote. The members of
Schengen would be borrowing the institutions. That is how I would
read it. You have described a scenario in which some items might
come in one category and some items on the agenda in another.
I would have thought that they would try and organise their agenda
245. But you do anticipate a rather complex
process in which there will be a succession of decisions about
the status under which the UK and Ireland participate in a range
of meetings; is that correct?
A. The UK and
Ireland would participate in so far as the subject matter went
beyond strictly Schengen constraints. That is how I read it. As
you know, every time an area currently covered by Schengen is
overtaken by similar legislation adopted at the level of the Union,
the Schengen provisions fall away and the Union provisions take
over. Once that has happened of course the United Kingdom and
Ireland would be fully involved.
246. I am afraid I am rather new to this
inquiry and possibly fellow members of the Committee know the
answer to this. You were speaking about the importance of the
Schengen Convention countries having confidence in the external
frontier which surrounded the group of countries in the Schengen
Convention. How much detail has been agreed between the Convention
countries and what are the standards that should be required of
the external frontier?
A. A lot is the
answer. It takes concrete form in a document which is not publicly
available called the Schengen Manual for the External Frontier
or something like that. It is as if the immigration officers all
round the external frontier were operating from the same list
of instructions as they would be if they were operating round
the external frontier of, for example, France. They have worked
out what their standards have to be and how the officers at the
frontier should conduct themselves. I cannot tell you with any
detail what is in that but it has been taken far enough to have
an agreed manual of that which will be applied by everybody exercising
their responsibilities round the external frontier of Schengen.
Lord Lester of Herne Hill
247. Why is it secret?
A. I honestly
do not know. "Secret" is a difficult word.
248. Why is it confidential?
because it contains mechanisms involved in the Schengen information
system. It is not a question that I can answer. It has come up
in the context of the enlargement process where, not surprisingly,
the candidate countries would be quite keen to know exactly what
they are taking on. I would prefer that question to be addressed
to a Schengen representative rather than myself.
249. It was just that Lord Hacking having
asked the important question about what has been agreed and we
having as it were to advise the House here, it would be helpful
ti know anything in there which does not affect national security
or matters of that kind, but if it is secret or confidential or
not published it is a bit of a handicap since I for my part have
great difficulty understanding the wadges of Schengen material.
If there were a manual which we could have access it would certainly
simplify our task. That is not possible if they are not members
of the shared systems?
A. It is certainly
not in my gift. I ask myself the question: is every instruction
given to every immigration officer around the United Kingdom frontier
in the public domain? I do not know the answer to that. Lord Lester
of Herne Hill:I think the answer to that is very much more than
was the case until this Government. They have released much more
Lord Pilkington of Oxenford
250. Do you know if, among members of the
Schengen agreement, national parliaments have access or is it
kept from national parliaments, this list of instructions?
A. I do not know;
I am sorry.
251. I would like to go back to something
we talked about earlier. There is a tendency in this country,
when talking about our relationship with what in the broadest
sense one might describe as the Schengen developments and the
Amsterdam Treaty, to take a rather lofty Anglo-Saxon attitude
about the whole thing and say if we want to opt in to this and
stay out of that and tweak this and tweak that, we would be terribly
pleased if it was absolutely straightforward. Do you think the
politics of this are more complicated? Do you think that in reality
if in this country we start trying to pick and mix we are going
to find the other Member States saying, "Oi: you cannot do
it that way"?
A. I suppose
if I were still a United Kingdom civil servant I would hesitate
to speculate on politics, but maybe I am allowed to do so because
I am no longer here. I can see three kinds of politics in this,
one of which is the internal United Kingdom politics.
252. I am not asking about that.
A. The second
category is the politics of other Member States' likely attitudes,
and the third dimension of politics might be the Commission's
likely attitude where politics could come in too, I suppose. I
start from the point of view that the Treaty is relatively clear.
Picking and choosing may not sound a very attractive way of conducting
yourself, but I do not see what in the Treaty prevents it happening,
at least in the area covered by the new Title IV which to my reading
is clear. The United Kingdom may decide that there is a proposal
on the table in which it wishes to take part. It may even decide
after the proposal has been adopted that it wishes to join in.
There are two openings. What it cannot do is to propose; it can
only take a decision once someone else has proposed. Secondly,
it would probably be ill received if the United Kingdom were to
say, "We wish to take part", negotiate downwards if
you like, and then at the end of the process say, "We do
not want to take part after all." Politics could come in
if that sort of thing were to happen. One area where politics
could play a part, which we have not touched on, and if you will
forgive me Lord Chairman I think it deserves a mention, is the
Danish opt-out which is different in nature from the United Kingdom's
opt-out. The Danes as you know also have a problem with the communitarisation
of some areas and found a system which involves an opt-out, but
they too, like the United Kingdom and Ireland, may well wish to
participate in some way or other as these areas develop. They
cannot opt in in the way the United Kingdom and Ireland can, but
can if the area concerned is regarded as a development of Schengen.
You could therefore have a situation where, from the United Kingdom's
point of view, they would wish to opt in and are entitled to do
so because the Treaty says so. The Danes would not be able to
do so but they would be able to if it was a development of Schengen,
so the same subject could play differently according to which
country you are in. I can see a situation in which someone would
have to take a view on whether or not something was part of a
Schengen development or not. There I think political consideration
might come in. As I say, these are untravelled waters. I am told
that the Danish protocol was negotiated very late in the night
in Amsterdam. I have yet to find someone who can actually explain
to me exactly how it would work. I can see a possible conflict
between that protocol and the United Kingdom and Ireland.
253. The terms under which the Norwegians
and the Icelanders would sit in is also, if I understand it correctly,
not entirely decided at the moment. Is that right?
A. It is more
or less decided in the sense that the negotiations have been conducted
and completed, there has been a formal initialling. It cannot
come into force yet since, like the Schengen ventilation exercise,
it is linked to the entry into force of Amsterdam. The terms of
it are, however, more or less decided now.
254. We have had as you know evidence from
Justice which interpreted the Treaty as suggesting that the British
Government would be entitled to opt in to pretty much the whole
of Title IV while maintaining border controls, although a close
reading of the British and Irish protocols would allow that, so
the only question we need to discuss if that is the case is the
question of a maintenance of border controls. Is that how you
think the Commission will interpret the Treaty?
A. I think that
is the gist of what I have been suggesting to you, my Lord Chairman,
making the distinction between the opt-out and the opt-in as being
two different exercises. The opt-out remains; the opt-in is there
too. There is, as I say, the extra dimension that is something
the United Kingdom might be wishing to opt in to, would be considered
by some to be so Schengen-related that other considerations apply.
255. If I could take you back to an answer
you gave to Lord Pilkington some time ago when you were discussing
the celebrated case of the Kurdish refugees arriving off the coast
of Italy, and you pointed out that it was open to the other Member
States to exercise a fallback position in which they would effectively
exclude somebody who was manifestly not meeting the requirements
from the right to free entry from their territory, that would
certainly be workable in the case of Italy because there is a
common frontier with Austria and with France. There would not
be in the case of Greece. If the other Member States who joined
Schengen lost confidence in the way the Greeks were operating
their external frontiers, I do not see how they could exercise
a fallback position unless it applied to every aeroplane or ship
coming from Greece on to their territory.
A. I wonder if
used the word "fallback". I think "safeguard"
is the expression I meant to use. In the Schengen system even
at the point where they have gone the whole way and have agreed
their frontier controls will come down, there is a provision which
allows them to re-establish them in certain circumstances. I do
not think that happened in the case I discussed, that no other
Member State of Schengen re-established frontier controls against
Italy in that crisis. It passed.
256. But it might have happened.
A. It might have
happened. It can happen. The Schengen provisions allow for that.
They are on the whole time limited. In theory it is not an indefinite
safeguard, but if there is a set of circumstances where one Member
State of Schengen regards some kind of a threat posed to it by
continuing free access across its frontier with another Member
State, there is a provision which allows it to re-introduce frontier
controls. It is more a safeguard than a fallback. If I used the
word "fallback" I did not mean to.
257. But do you think that is a practical
alternative in the case of Greece? How would you do it? If the
other Member States, the original founders of Schengen, decided
that the Greeks were making an awful mess of their frontier controls
and that boats from Volos were full of terrorists from the Arab
countries, what would they actually do? What is the safeguard?
A. I am not sure
if I understand the difference between Italy and Greece in these
circumstances. Some would argue that it might even be easier for
Greece because travellers from Greece to the rest of the Schengen
area have to go through a choke point of some kind because they
come in either by plane or by boat. The frontier which is most
permeable, I suppose, is a land frontier.
Lord Pilkington of Oxenford
258. Of Germany.
A. Or of anywhere
259. So if Arab planes are arriving at Schipol
from Athens, all the passengers would have to go into the non-Schengen
A. If, after
Greece fully joined the system, the safeguard clause were to be
applied, yes, the Schengen free access would be stopped and a
flight from Athens would have to be regarded as a flight crossing
the external frontier of Schengen, but it would require the application
of this safeguard clause with the conditions that are attached