Examination of Witnesses (Questions 340
WEDNESDAY 10 FEBRUARY 1999
SMITH and MR
Lord Lester of Herne Hill
340. The Minister very properly expressed
reservations about identity cards on civil libertarian grounds,
which I understand, although as a rights person myself I, in the
end, have come to the firm conclusion that we could devise a system
which would respect civil liberties and at the same time promote
the interests of the country as a whole. Now, those concerns about
identity cards and civil liberties apply with even greater force
to the Schengen Information System. This is because what are called
data protection problems really mean that if citizen X is moving
from Greece through the European Union and police give politically
motivated false information about that person, saying that he
or she is a human rights lawyer who is a subversive enemy of the
state, against that particular state, if that piece of information
is then transmitted to another state and it is half true, should
not be there at all and is half incorrect, the problem with Schengen
is that there are no effective safeguards against abuse of a judicial
kind. The position at the moment is that under Article 111 there
is a right to go to your national court where the wrong was committed,
but the national court may be lacking in effective judicial independence.
The remedy may be impossible to obtain. And, anyhow, the damage
may be done in another country, the country you are trying to
get into. Now when one says, "We must not be pernickety,
we must not look at microscopic detail, if the overwhelming advantage
is to go into Schengen," my concern is that although I understand
the thinking, by going in late we will have little bargaining
power to deal with these kinds of issues. What will then happen
is that there will be much greater and more effective state controls
which in many ways I welcome in combating terrorism and organised
crime, but much weaker safeguards for individual liberty against
the misuse of state power. This will not be answered by placing
the matter directly under the European Court of Justice because
the European Court of Justice will always operate at second level.
It will always be for the national court in the first instance.
So responding to the Minister's challenge earlier to deal with
this issue I would like, if I may, to ask the Minister whether
the kinds of concerns that I have will sufficiently trouble the
Government for the Government not to go into Schengen, unless
satisfied that there are effective judicial controls and effective
judicial protection at national and European level against the
possible abuse of power of the kind I have been summarising.
(Kate Hoey) If I could say, Lord Lester, when
you mentioned with not looking at detail in the context of pernickety,
I was not saying that. What I was saying was that in seeking participation
to the existing Schengen co-operation we have to acknowledge the
overall structure and the coherence of it. Therefore, it is sensible
to look at it in areas rather than bits of areas. I do not think
our partners would be very happy if we were pernickety in the
sense I meant, that we just picked little bits which very much
suited us. Obviously everything we want to sign up to has to be
in our interests, but it is being realistic about bits that fit
together and the coherence of it that is important. Now I have
forgotten the rest of your question.
341. It is the effective national and European
judicial protection against the misuse of Schengen information.
(Kate Hoey) It gets back to Baroness Turner's
question again on the safeguards to do with data protection. Clearly
other Member States have these concerns as well. Although we have
not had any live examples of problems, at the moment, involving
United Kingdom citizens who have been reported abroad with SIS,
it is importantand other Member States have been looking
at arrangementsto try to avoid the kinds of problems that
you have suggested; where mistaken identity has meant that wrong
information has been sent round and totally innocent people have
been stopped at borders. We will have an input into those issues
whether we join or not. Clearly, if we were a member, then our
input in terms of being more influential would be a stronger input.
However, I think we would still have great concern, even if we
were not opting into the SIS, that our citizens are going to be
affected by it anyway when they are not in this country.
(Mr Boys Smith) If I may just add one point. John
Warne may wish to follow me on particular points of the SIS. I
will pick up the phrase: "opting in late." It is worth
bearing in mind that the Treaty is not in force yet.
(Kate Hoey) We are not late yet.
(Mr Boys Smith) It will be a few months before
it is. As the Minister indicated, I think the word was "shortly"
in relation to the decision and announcement. Once the Treaty
is in force, any development of the whole of that area of business
will be something on which we automatically participate, in the
sense that we will be there in the discussions. We may decide
not to pursue something and there will not be voting upon it but
we will be involved in all the discussions.
342. But have I accurately identified a
real problem, which needs to be addressed, about the weakness
in the system? The lack of effective judicial protection. Do you
accept that this is a major significant problem which must be
(Kate Hoey) May I make a point on that. The preliminary
response I would make is that it is an impossible question to
answer, whether we should stay out on the grounds that the system
is not correct.
343. That was not my question. My question
was: have I identified a problem about Schengen that needs to
(Mr Warne) I think there is an issue about the
appropriate control mechanisms in relation to data systems constructed
on a European basis. But I think they can be dealt with in different
ways according to their purpose. For example, Europol, which will
be handling some of the most sensitive information, intelligence,
has a lot in its Convention about data. We have a Joint Supervisory
Board and mechanisms for addressing those issues with accountability,
of course, to the Council and back to national Parliaments. We
have always taken the view that if the Metropolitan Police or
Greater Manchester Policeto take an example somewhere away
from Londonwere to act on Europol information inadvisedly
and take down the wrong front door on a drugs raid, Greater Manchester
cannot say it is all down to Europol who gave them that information.
There will some obligation on them to make an assessment on that
information, to consider it against the data they had. So I think
there are issues here but you have to look at both ends. That
is to say, whether the controls and access to justice and remedies
for the citizen are sufficient in each Member State or not. I
think in a number of cases they are. I am not ruling out the need
for other control mechanisms but I do not think it follows that
one has to create a European judicial authority to manage all
these systems. The important thing is to have proper accountability
and proper access to justice to remedy any wrongdoings.
344. Which take us back to the great argument
that there was between this Committee and Committee E and the
former Home Secretary on Europol, as to the role for the ECJ in
dealing with those sorts of matters. In the end, we did not exactly
agree to disagree but we certainly did disagree. So what I would
like to know now is where the present Government stands in relation
to the ECJ and its jurisdiction over matters such as the SISand
if you could extend it to Europol it would not be a bad idea either.
I did pick up a slight resonance from what you were saying: that
you were talking about these things coming into the Council and
then going out of the national states. Is there no understanding
that if these things are going to move into the First Pillar,
then the ECJ presumably will have jurisdiction over a number of
them. How far is that going to inhibit you from opting into these
various bits of Schengen if you think it is going to pass into
the ECJ and out of the ultimate control in the British courts?
(Kate Hoey) As you know, under the Treaty the
ECJ will have extensive jurisdiction over immigration and asylum
matters, which will go into the First Pillar. Indeed, everything
automatically will come under the ECJ in the First Pillar. Article
68 provides for some modification of the normal arrangements.
The Government's principle concern in the asylum area would be
the practical one of delay, which we have probably discussed here
before, the delay with dealing with individual cases while references
were being considered by the court. This could arise not just
with regard to cases coming from the United Kingdom courts, but
also from other Member States where a question of common concern
is being considered. There may be positive benefits in some areas
from having an authoritative interpretation of instruments to
resolve difficulties. The ECJ jurisdiction will just be one of
the many considerations in our decision whether to participate
in individual measures. We will be balancing the implications
of jurisdiction against the overall question of participation
in each measure. So on SIS that will be balanced.
345. But would you see that as a positive
or negative manifestation? Will it encourage you to go further
into Schengen or hold it back?
(Kate Hoey) Quite substantial parts of Schengen,
in terms of the free movement elements, are going to be part of
the First Pillar anyway. On the other Third Pillar aspects my
present expectation is that the Government will not wish to make
a declaration. This is because the position under the Treaty is
that Member States no longer have the option of agreeing to such
jurisdiction on an instrument by instrument basis but instead
if they wish to accept such jurisdiction we have to declare it.
This would be binding in respect of all future instruments. As
I have said, we do not expect that the Government would wish to
make a declaration.
Lord Tordoff: That
does rather leave us in air, does it not?
346. It was really coming on from this,
if I might clarify what the Government's position is. My understanding
of it was that the last Government had serious reservations about
allowing matters to be dealt with by the ECJ for a sort of constitutional
reason. As a matter of principle it objected to that. Have I understood
your reply to the question from Lord Tordoff to be that this Government
does not have any particular objection in principle to matters
being dealt with by the ECJ? Is that an unfair gloss?
(Kate Hoey) No. We have said that in some areas
there can be positive benefits in the ECJ having this authoritative
role in interpreting instruments, where there are difficulties
and countries are interpreting them differently. But, as I said,
the impact of the ECJ is likely to take different formsnot
all of which can be regarded by us as negativebut there
will be some areas where we would probably consider that it would
be negative. So, in a sense we are again using the opportunity
that we have to opt into the areas which are in this country's
interests; and the areas which we do not feel are, and we will
have the right to decide not to make a declaration.
347. That is clear. If I might be allowed
to follow it up with one further simple question which is: what
are the criteria which determine, as far as this particular issue
is concerned, whether the ECJ is a benign influence on proceedings
or is a malign one? Do you feel I have phrased it unfairly?
(Kate Hoey) I would have thought we would have
to look at individual and particular circumstances.
Lord Lester of Herne Hill
348. Can you give us an example then of
where it might be against the interests of this country to confer
jurisdiction on the ECJ.
(Kate Hoey) I would have to write to you on that.
Perhaps my colleagues might identify something.
(Mr Boys Smith) I think asylum would be an area.
I realise not yet the subject of any formal acquis, but
asylum would be an example where it could create considerable
difficulties. This is a view that I suspect all member countries
would share. Indeed, the White Paper and legislation recognised
the dangers and are predicated on the desirability of quick decisions.
If there were a class of case, perhaps originating not in the
United Kingdom but in another country which were, in effect, undecidable,
because a case was having to proceed through the ECJ, that could
create very major problems and have major public expenditure implications.
If decisions could not be taken and support and benefit were being
provided to a significant number of people, that would be an example
where it would be very difficult but it is an area where other
countries, I understand and I know, are anxious to avoid that
kind of situation arising, if they could formulate a provision
which would minimise, if not wholly exclude, that risk.
349. I would like to ask a general question
about a rather different aspect: that is, what in shorthand terms
one might call cherry-picking. It would appear from what you have
all been saying that the only part of the existing Schengen acquis
which really interests you is the SISor that is the main
part. Perhaps that is the wrong impression but that is what I
am left with. I just wonder how negotiable it would be if we went
to the partners and said, "Okay, we have thought about all
this and this is bit we really want to join." When we had
a French witness before us a few weeks ago he left us with a very
clear impression that this would be completely unacceptable.
(Kate Hoey) I am aware of his evidence. I think
other European countries may not like our position but they understand
our position, particularly on frontier controls. When I was talking
earlier, when I used the word pernickety, perhaps cherry-picking
would have been a very good word to have used instead. We are
trying to be sensible about how we approach identifying those
areas of Schengen that we really do feel that we want to participate
in and are a real benefit to this country. That is why I think
our European partners will be very pleasedI hope they will
be very pleasedif we decide to go further in those areas
I have already mentioned, not just SIS but the judicial co-operation
and law enforcement side. There are many areas there that we can
co-operate on. But I think some may feel that we are cherry-picking.
That is precisely why we took the decision in the negotiations
over Amsterdam to have that opportunity to opt-in. We decidedand
I think the people of this country probably think that it was
the right thing to dothat we should take our time and decide
what was going to be in the interests of this country.
350. I quite understand that we are taking
a very pragmatic level headed approach to this whole affair. It
makes sense for us to do that. That is the way we are brought
up to think. It is part of our political environment. But may
I suggest to you, with all deference, that the political environment
of the partners may be quite different. They may be fed up with
our saying, "We will have this little bit and that little
bit. We have a right to come in if we want that, and we are trying
to do that." But they may not be happy with that very selective
approach. Just a political arrière pensée
I would like to leave with you.
(Kate Hoey) I appreciate that. As I have said,
I have not been yet to too many yet European Justice and Home
Affairs meetings but I do not think there has been one yet where
other countries, in particular on some areas, where France has
simply said, "We are not having this." There is always
this idea that somehow remember we are the only country within
the European Community who does not automatically go along with
things. It does mean, however, that when we do go along with things,
and if we do make these decisions to involve ourselves, we will
be involving ourselves on the basis of really having thought it
through and decided that it is in the interests of our country.
Therefore, it is more likely that it will work than if we had
simply gone in to be with the flow at the time.
Lord Bridges: I understand
your attitude but I fear it may not look that way on the other
side of the Channel.
351. Do we ever take decisions on the basis
that this might be good for Europe as a whole?
(Kate Hoey) It depends how you define what is
good for Europe as a whole.
352. On that question, is the British Government
happy with the negotiating position that allows us to maintain
frontier controls, but requires those countries currently negotiating
for membership of the European Community to accept the entire
Schengen Agreement, including the abolition of frontier controls?
(Kate Hoey) Those countries would not have a chance
of being admitted unless they have satisfied the rest of Europe
that they have border controls and ways of administering their
border controls which are going to be satisfactory. I recently
visited Hungary, and saw how concerned they are about wanting
to be a member. But if you talk to Austrians about the danger
and problems they have; they are very clear about all the accession
countries, how much they would like them to be in and how quickly
they would like them to be in, but it is not going to be acceptable
for them come ineven leaving the United Kingdom's view
right out of ituntil they get those kinds of things up
to a standard which is considered to be acceptable. So I suppose
the answer to your question is yes, we do.
Lord Pilkington of Oxenford
353. Is the standard going to be as good
(Kate Hoey) I have not visited Greece.
354. 15 years ago I took part in a hectic
Whitehall debate over the subject of the common format European
passport. It is no secret that the then Prime Minister was bitterly
opposed to this. She was finally persuaded to agree to it on the
grounds that the new common format passport would be machine readable.
Have we now got a machine which can read passports?
(Mr Boys Smith) Indeed, our information system
which is available at the ports reads the passport. Yes, it is
swiped through. Not the old blue one, but the modern one.
(Kate Hoey) I am travelling on the old-fashioned
blue one. It has another three years to run, I think.
355. You have been extremely patient and
we have kept you a long time.
(Kate Hoey) May I say one thing. I have written
to you often and to Lord Tordoff. As you know, we exchange a lot
of letters. Because we do very sincerely want to improve the mechanism
of scrutiny, we are trying hard to get right some of the things
that have perhaps gone wrong in terms of communications that have
led to delays. Sometimes it is our faultnot very often,
usually it is the fault of somewhere else outside the Home Officebut
I can assure you that we do want to try and speed up our correspondence
in terms of dealing with your Committee.
Lord Tordoff: May
I say, on the record, that I am grateful for that from the point
of view of the Select Committee as a whole. I am also particularly
grateful that the Minister took the opportunity to come and see
me to talk informally about those sorts of things. I was grateful
she took that interest.
Chairman: A last
356. You were talking about the timetable.
We have also got a timetable for producing our report. Is the
Government prepared to wait for our report and consider our report
before it makes a decision over SIS or, indeed, before it makes
an absolute decision on the Schengen Convention as a whole?
(Kate Hoey) Am I the last witness? Is this the
end of your taking evidence?
(Kate Hoey) Genuinely it would be very nice to
see your report. I have no idea how long it is going to take you
to get your report ready.
Lord Lester of Herne Hill
358. Very shortly.
(Kate Hoey) Clearly we want to have made our decisions
on this before the Amsterdam Treaty comes into operation. At the
moment it is looking like May or June. There is a Justice and
Home Affairs Council in Brussels on 12 March. There are some other
dates which obviously, depending on how things are going, we would
want to try to fit in with. Certainly it would be very nice if
we could have your report beforehand because, as I said earlier,
there is an enormous amount of expertise here. We are very happy
to read it.
359. We will complete it and publish it
as soon as possible. I think you will gather from what quite a
lot of us have said, Minister, that we have been impressed with
many of our witnesses. I have taken the point that British participation
in this rapidly expanding range of committees and discussions
is often very valuable, particularly the practical experience
of British representatives on these committees. We are still concerned
that British participation without a vote, which is British participation
while being an outsider, may marginalise the useful experience
and influence which the British Government has to bear. However,
I would like to thank you for coming and I hope you will like
our report when it is published.
(Kate Hoey) Thank you very much.