Select Committee on European Communities Minutes of Evidence

Examination of Witnesses (Questions 340 - 359)



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 important—and other Member States have been looking at arrangements—to 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 addressed?
  (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 be addressed?
  (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 Police—to take an example somewhere away from London—were 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.

Lord Tordoff

  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 SIS—and 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?

Lord Inglewood

  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 forms—not all of which can be regarded by us as negative—but 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.

Lord Bridges

  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 SIS—or 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 pleased—I hope they will be very pleased—if 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 decided—and I think the people of this country probably think that it was the right thing to do—that 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.

Lord Tordoff

  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 in—even leaving the United Kingdom's view right out of it—until 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 as Greece?
  (Kate Hoey)  I have not visited Greece.

Lord Bridges

  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 fault—not very often, usually it is the fault of somewhere else outside the Home Office—but 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 rapid question.

Lord Hacking

  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?

  357.  Yes.
  (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.

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