Examination of Witnesses (Questions 40
WEDNESDAY 18 NOVEMBER 1998
and MR R PENROSE
Lord Lester of Herne Hill
40. Can I just follow up Lord Inglewood's
question and ask what are the measurable criteria by which you
test his question? Does one do it by measuring imported crime,
drugs and so on, on a comparative basis? I do not know how your
conclusion would be reached.
(Mr Warne) I think you would say, for example,
on compensatory measures like the Schengen Information System
and the ability to stop people and obtain information about perhaps
their involvement in criminality of a kind that hitherto might
have been available only by a border check, is that working, is
it working well, what is the perception of the police about the
operation of these systems compared with the existing systems?
I think you could do it. Are the compensatory measures actually
compensating for the removal of this check? You could envisage
a situation in which in some countries they could operate rather
better because the border is not significant for their purposes.
I think the difficulty is, as I mentioned earlier, that you cannot
do that single analysis in relation to all countries involved.
41. And also you have got the ID checks
available in those countries and always have done.
(Mr Abbott) If I may just contribute briefly to
that. I think the bad news is that criminals are constantly changing
their tactics and probing and looking for new ways of operating.
Invariably the compensatory measures are behind the times. The
really important thing in my view, and I would say this because
I come from the National Criminal Intelligence Service, is that
you actually invest in intelligence to help you predict what is
going to be coming along. From a purely law enforcement perspective
I still think that some of the weaknesses that exist relate to
some of the differences in practical policing measures and judicial
measures that exist between countries. It is not possible to conduct,
and I am stepping on to Mr Penrose's territory here, controlled
deliveries or to undertake undercover operations consistently
across the whole of the European Union. From a law enforcement
perspective that is clearly unfortunate.
(Mr Penrose) My Lord Chairman, if I can endorse
that. That is certainly the position in one major European Union
country. Although there is attempted to be a pragmatic approach
on a law enforcement basis all of us need to operate within the
law and therefore there is some difficulty. May I just add to
say that we need to throw into the consideration pot the sort
of documentation that people have and we are aware of a significant
trade in forged passports and documents, not only in Europe but
without Europe. Therefore, the ability to inspect those documents
seems a really useful way of trying to determine whether the document
purports to be the genuine article or whether in fact it is a
42. Can I ask you how clear a distinction
there is between the maintenance of full border controls and the
maintenance of occasional border checks? Mr Warne has said that
the French maintain occasional border checks within Schengen and
we formally maintain full border controls, although as a frequent
traveller on Eurostar it looks to me rather more like occasional
(Mr Warne) I think I would revert to my earlier
point that we are maintaining an immigration control system through
which everyone must pass if they wish to be admitted to this country,
with a light touch or a heavy touch but it is a control, it is
a method of entry. Police checks or Customs checks can be conducted
in a different way, that is to say they are selective. You may
have a police presence at a port sometimes, you may not, but you
do not have to pass through the police control or the Customs
control to gain entry. Immigration in the way we have maintained
it is a primary control system quite different from occasional
43. If we understand you correctly then
the justification for staying out of Schengen and indeed the chief
benefit of staying out of Schengen for Britain is the maintenance
of immigration controls, not the other dimensions, and we should
therefore focus in terms of benefits on that. Before we break
may I ask a little more about opting in to all the other areas
given what the protocols say. Do you anticipate any difficulties,
obstacles, in the British Government saying that it wishes to
exercise its opt in to as many of the other areas of Schengen
(Mr Warne) I think the unknown factor there is
the attitude of other Member States. I think some might feel that
we have exercised an option and therefore we have no great entitlement
to opt in. That may be an understandable argument but the fact
of the matter is that we are able to opt in by agreement and there
is a sort of a best endeavours clause designed to protect us against
obstructive attitudes towards a United Kingdom request for participation.
I think at governmental level certainly any such requests will
be treated very seriously. I think there might be resistance if
we did genuinely try to go what I might call la carte,
in other words picking individual menu items from within set dishes.
If you take a set dish of law enforcement or judicial co-operation
that seems reasonable but if you say "we only want a few
bits from here or there" then Member States would be more
resistant to United Kingdom participation. That is why I think
we have got to complete the analysis of what participation in
these chunks would mean and then the Government will be able to
express its wishes and will be able to get into discussions with
other Member States on the basis of those clearly expressed wishes.
On the whole I think there would be a reasonably positive attitude
to limited forms of United Kingdom participation provided we did
not try to delineate them in unreasonable ways. In other words,
we have to look at packages.
44. When the Treaty is fully ratified and
implemented and the Schengen acquis has been allocated
between the First and Third Pillars and in effect much of Schengen
is then absorbed into normal EU practices, do you think that will
cause additional difficulties for the British in being in for
items 1, 2 and 3 on the agenda but out for item 4B, or do you
think it is all manageable?
(Mr Warne) I think it is all manageable, my Lord
Chairman. I think we have to remember that under the Treaty Schengen
becomes part of the European Union framework and United Kingdom
Ministers will be full members of the Council and the Council
will be the decision-making body for the really big issues.
45. You have been extremely helpful. We
have kept you a long time. We have learned a lot. Thank you very
much for being so helpful and forthcoming.
(Mr Warne) Thank you very much indeed.