Examination of Witness (Questions 260
WEDNESDAY 27 JANUARY 1999
260. Would that safeguard be exercised unilaterally
or does it require some joint agreement?
A. It requires
machinery which I have not got in my head, but it is not totally
unilateral. There has to be information of the other Schengen
states as far as I remember, and an indication of how long the
crisis might last. I have the Article in my papers if you wish
me to read it to you. Lord Bridges: You have explained
it adequately. Thank you very much.
261. In terms of the opting in process,
to explore practicalities and complexities, how easy do you think
it is going to be for a British Government to say we would want
to opt into this but we would not want to opt into that? How much
flexibility is there going to be there, or is it going to have
to be a question of major decisions to opt into this entire dimension
of justice and home affairs and opt out of the other?
A. If I read
the protocol correctly, it is more a question of proposal by proposal,.
If any Member State or the Commission tables a proposal, the United
Kingdom or Irish Government looks at that proposal and takes the
view that if that were to be in place, or something like it, it
would bring benefit to the United Kingdom or Ireland, despite
the fact that the frontier control remains, they can state that
they wish to opt in. I do not think they need to make a general
categorisation, "We want to opt in to X as a general category."
They may wish to but I do not think they need to.
262. We have heard a story that we would
want to opt in to everything to do with police co-operation while
remaining opted out of border control. That is a manageable way
forward, is it?
A. There you
are crossing Pillars, if I may say to. If you are opting in to
police co-operation different sets of rules apply.
263. I would like just to push a little
more on the whole question of controls on people coming in from
Britain. We have talked a little about the problem of third country
nationals from Britain moving elsewhere in the Community. What
must we expect in terms of continued border controls on people
domiciled in Britain or with a right of residency in Britain as
they move into the Schengen area? May we have to anticipate that
border controls are imposed on our citizens and on our third country
nationals. I assume that is correct.
A. To the extent
that anyone travelling from the United Kingdom into the Schengen
area is crossing the external frontier of Schengen, the countries
will impose border controls and it is their perfect right to do
so within limits. One very important limit of course is the rule
of non-discrimination. It would be wrong, for example, for the
Belgians for people arriving in Belgium from the United Kingdom
to make it easier for a Schengen citizen than for a United Kingdom
citizen to enter. They cannot discriminate in that way; but if
they choose to impose the most rigorous and difficult controls
for non Schengen Community Citizens they would have to apply it
to Schengen citizens as well. It is not the nationality, but the
point of departure that matters.
264. While maintaining national border controls
is it possible to move towards a common visa regime? One of the
points that has been made to us on several occasions is that third
country nationals in Britain because they have separate visas,
do find it very difficult to move between Britain and the Schengen
area even if they the right of domicile or residency here.
A. I think there
are two issues there. There is, as you know, under Maastricht
under the First Pillar a first step towards a common visa policy
in which the United Kingdom was fully involved. It was not a complete
common visa policy; Amsterdam provides the possibility to go further.
It comes in Title IV of the new Treaty and therefore is covered
by the opt-in. The United Kingdom would have to decide whether
it wishes to opt into further development of the visa policy.
I imagine that many considerations would apply there and I have
no idea what decision they would take. Incidentally, unlike Denmark
which has decided to remain in the visa part of the First Pillar,
the United Kingdom and Ireland have decided they wish to regard
visa policy, as I understand it, as covered by their opt in. They
can do it or not do it and they have not given any indications
of which way they wish to go down. There is the separate question
which was covered, if you remember, by the proposal on the Council
table sometimes known as the Monti package. I do not know if you
are familiar with that but the proposal was that any third country
national resident legally inside any Member State of the European
Union should be able to travel to any other state of the European
Union on the basis of his or her residence permit without having
to seek a further visa. That proposal was never adopted because
it got caught up in the Amsterdam negotiations and went into abeyance
while Amsterdam was being negotiated. There is no reason why it
should not be resuscitated. If it were to be adopted I personally
think it would represent a great improvement for third country
nationals legally resident in one Member State or another. And
incidentally, again I am expressing a personal view, presumably
it would mean less work for visa issuing officials because if
somebody has gone to all the trouble to see that a third country
national is issued with a residence permit has probably examined
that person's situation more deeply than for a short- term visa.
That proposal is not adopted but I think it is a good proposal
and I hope it is adopted.
265. That is very helpful. Does all this
depend upon the Irish Government and British Government continuing
to remain agreed to maintain the same positions in terms of their
relationship with the other 13? What happens if Irish and British
policies begin to diverge?
A. There is nothing
which says that they have to go hand in hand and indeed I think
there is even a difference in the Protocol. I think the Irish
have stated more clearly than the United Kingdom has that they
may wish to think about this again earlier. There is a nuance
in the Protocol, if I remember correctly. Where I think there
would perhaps be a different consideration would be if the Irish
were to decide they wanted to exercise their right to join Schengen
fully and become part of the Schengen free travel area rather
than remain part of the United Kingdom/Ireland free travel area.
If they were to do that I suppose it would have consequences for
movement between the United Kingdom and Ireland. My understanding
is that far more people in Ireland visit the United Kingdom than
visit the rest of the European Continent. That might be a consideration.
But, if for example there were to be a detailed asylum policy
proposal on the table, the United Kingdom could decide not to
opt in and the Irish would decide they do want to opt in. There
is nothing inherent in the Treaty which would prevent that.
Lord Lester of Herne Hill
266. Mr Fortescue has answered all our questions
with most impressive clarity, if I may say so, but I find myself
at the end of the evidence more confused than at the beginning
because he has led us with such clarity through the maze that
I now am not clear as to the overall benefits and burdens of the
United Kingdom maintaining its current opt-out policy. Could I
ask this question and hope it is not too difficult a question
to answer. If Mr Fortescue were asked within the Commission in
broad terms to sum up in an independent and dispassionate way
what were the main benefits to the United Kingdom and the main
burdens upon the United Kingdom in continuing its current opt-out,
how would he answer that question? How would he sum up overall
the benefits and burdens?
A. Let me first
apologise if I have led to confusion where there was clarity before!
That was not my intention.
267. I mean the opposite, the problem is
in the maze not in the guide through the maze.
A. Can I answer
that question on two levels. I think it must be the starting point
for the European Commission that the 15 Member States should as
far as possible move towards the same objectives at more or less
the same speed. That is what the European Commission's starting
point on all matters would be. Therefore in the most general sense
the Commission would be more than happy to see the non-application
of the opt-out. That has been the general demarche of the Commission
from the Treaty of Rome, through the Single European Act and the
Maastricht Treaty up to Amsterdam. Seen from the Commission' point
of view I see nothing but advantage in the United Kingdom not
exercising its opt-out. The Commission is however guardian of
the Treaty and the Treaty says that the United Kingdom may exercise
its opt-out and it is not for us to contradict the Treaty. Your
question related to what, as seen from the United Kingdom's point
of view, they would be gaining and what they would be losing.
It is a question I have no doubt you have put to people whose
job it is to advice the Government and it is not my job to do
so. I would simply make one very general comment, if I may. In
my previous and my present experience, I have lived quite a number
of years now watching developments advance in the European Community
and subsequently in the European Union and I have never yet seen
an example where the United Kingdom's position was easier by joining
in later. Chairman: That is a good answer.
Earl of Dundee
268. On a point of motion, if we have already
learned that Norway and Iceland are part of a dialogue, which
further countries, if any, is it proposed by those who work things
out for Schengen to next come in on the scene?
A. Norway and
Iceland had a very particular position, as you know. Forgive me
if I am going over very familiar ground, but when Denmark, Finland
and Sweden decided that they wanted to join the Schengen system
the one thing that they all agreed they did not want to do was
to re-establish a frontier control with the other two members
of the Nordic Union, Norway and Iceland. You can see why; it would
be madness to create a frontier control up that spine of mountains
which separate Sweden from Norway. It could not be done and it
would be totally impractical. So their starting point was yes
we want to join Schengen but we do not want to re-establish a
frontier control in a free travel area that has worked very well
since the 1950s. On that point incidentally, history seems to
show that once you get rid of frontier controls, on the whole
the population does not wish to reinstate them, but I say that
in parenthesis. So the Norway and Iceland problem had to be settled
otherwise you could not settle the Sweden/Finland/Denmark problem.
The rules of Schengen are clear, you have to be a member of the
European Union to join Schengen with this particular exception
of Norway and Iceland. The only other countries on the list now
are the candidate countries for membership of the European Union.
Every single one of them knows in advance if they join the European
Union they have to join Schengen too. That is stated in the Treaty.
But, for example, a non-member of the Union would not apply to
join Schengen and the Schengen countries are not looking for non-members
of the Union to join their club.
269. In your last round of comments to Lord
Lester you saidand I hope I am glossing it correctlythat
the Commission would like to see Schengen subsumed into the Union
and would like to see the thing applied equally across the Union.
Of course, within the Union and within the way in which Schengen
is coming into the Union you have got some things dealt with under
the First Pillar and other things dealt with under the Third Pillar.
Obviously under the First Pillar you have got the control of the
ECJ which in certain circumstances will after Amsterdam have some
standing in respect of third pillar activities. Does the Commission
have a view in general terms about the form and the system of
judicial control there should be over the ex-Schengen areas of
A. Yes but I
think you have answered your own question, if I may say so. The
rules of the subject matter which has moved to the First Pillar
are the normal rules of the European Community which are set out
in the articles going back to the Treaty of Rome. The rules which
will cover those bits which move to Title VI, the residual Third
Pillar if you like, are new but they are different and fall short
of those Treaty of Rome rules but represent an advance over what
is in Maastricht. If you remember, Maastricht made it an option
and that led to all sorts of difficulties. Amsterdam has the merit
of being clearer in not talking about options. Depending on the
outcome of the ventilation exercise or anything that follows that,
you just have to look up the Article in the Treaty and that tells
you what rules govern the ECJ role.
270. Perhaps I can try and lead you on a
bit further. Given the inter-governmental nature of much of the
Third Pillar and things that flow from that in terms of individual
rights and also enforcement mechanisms and so on, is that type
of relationship, in the Commission's opinion, a satisfactory state
of affairs for dealing with what are, by any standards, rather
A. I think that
the Commission would certainly have welcomed it if the provisions
on the Court of Justice had gone further in the Amsterdam negotiations
than they did, but I do not think it is the Commission's job to
try and rewrite history. It is our job to make sure that the Treaty
is respected. If we do not do that perhaps we are not doing our
job properly. I do not think I would wish to try and re-open those
questions unless there is another Inter Governmental Conference
and these questions are asked again. As of today one might wish
that certain things had come out differently, and indeed the Commission
took positions which were perfectly well known publicly seeking
to go further in a number of areas including this one, but the
Treaty says what it says. Lord Inglewood:In other words, I should
ask you the same question if and when negotiations on a further
IGC take place?
271. Two final questions, if I may. First,
we are considering for our next inquiry that we ought to be looking
at the proliferating computer networks which operate in this field,
the Europol network, the Customs Information System and the Schengen
Information System. I understand Britain is going to be fully
part of the Europol system, will not formally have access to the
Schengen Information System and is a full member of the Customs
Information System. Do you see that creating particular problems
as we move forward if Britain remains opted out of the Schengen
Information System but is in the others? Is it correct that the
Commission is going to act as the agent for the Schengen Information
A. No, that proposition
is not on the table. It is on the table with regard to a system
which does not yet exist, the Eurodac system, but there is no
such proposal for the Schengen Information System. The Schengen
Information System is probably the most difficult bit of unfinished
business in this ventilation exercise, as you know. One proposal
on the table which was a Commission proposal is that management
of the system, in order to avoid the pillar problem, should be
entrusted to an agency set up for that purpose; but there was
no suggestion that the Commission itself should manage it.
272. Right. Do you see particular problems
for the British in being in some of these networks and out of
A. It depends
on the information that the system contains, which may or may
not be useful to the United Kingdom. I think for the Europol system
obviously they are part of it and there is no doubt about that.
The judgement they will have to make isand I submit it
is for them to answer this questiondoes the information
held in the Schengen Information System add a value to the information
they already hold independently for the purposes for which the
Schengen Information System was created? That system covers more
than one area, as you know, but quite a large proportion of the
information held by the Schengen system, as I understand it, is
immigration related. It helps the Schengen countries cope with
people crossing the external frontiers of Schengen. The United
Kingdom may conclude that it has enough information on its national
database to do that job properly considering it is maintaining
control of every bit of its frontier; but it may equally conclude
that there could be material in the Schengen Information System
which would improve their own database. I suggest that may be
the way they would wish to look at it but, again, it is for them
not me to answer that question.
273. My last question simply is are you
confident when the Treaty of Amsterdam is ratified relatively
shortly now that the Commission will be fully up to speed and
staffed to cope with the outcome of the ventilation exercise?
A. That is a
very leading question, My Lord Chairman! If the Amsterdam Treaty
comes into force at the pace it seems to be moving now we will
be stretched to handle our new responsibilities as we are currently
structured, that is for sure, but that is true of any area which
is new in the Community's activities. My hope obviously and my
expectation is that the Commission will wish to structure itself
in a way which enables it to carry out the quite wide range of
new responsibilities the Treaty gives us, but I cannot pretend
that my small team can cope with that alone at the moment.
274. Thank you very much. That was an intentionally
leading question, as indeed was Lord Lester's. Thank you very
much indeed. You have been most helpful.
A. Thank you
very much for inviting me.