Examination of Witnesses (Questions 1
TUESDAY 30 MARCH 1999
and MS JENNY
1. Minister, welcome to the European Scrutiny
Committee. I think this will be your first appearance in front
of our Committee. We are delighted to have you. It is somewhat
surprising to have you on this subject because in the past we
have never detected any great enthusiasm of the Government to
look at Schengen, so I would like to invite you to answer the
questions, given that the House was not expecting a statement
of this kind. Can you explain why it was decided to make the announcement
at this particular Council?
(Kate Hoey) First of all, thank you for your welcome.
It is very nice to appear at a Committee that I seem to correspond
with very regularly indeed and I hope very efficiently. We are
trying to improve our whole scrutiny arrangements to make them
better for communication between the Committee and the Home Office.
I think that has got better. The reasons for making our decision
and announcement on Schengen at the last JHA Council are very
simple. The Amsterdam Treaty is likely to be coming into effect
around 1 May. Our decision as to whether we would choose to opt
into any of the Schengen arrangements has been under consideration
for some time. It seemed the appropriate time, at that JHA, so
that not only could we discuss it here in Parliament but so our
other European partners could look at our position, and hopefully
make their views known, so that we would be in a position, as
soon as the Amsterdam Treaty comes into effect, to move ahead
with the opt-ins that we want. The Home Secretary made clear at
the JHA Council the Government's commitment to active and effective
cooperation on international crime and in the field of justice
and home affairs generally. Our starting point for future cooperation
is the protocol on frontier controls which was agreed by all Member
States at Amsterdam on which we would have an opt-out. I want
to start by confirming very clearly to this Committee that the
Government's intention is to maintain its frontier controls in
line with that agreement. Apart from that aspect, we are approaching
all other aspects of Schengen very positively and the Home Secretary's
announcement was to indicate our intention to seek participation
in those areas covering law enforcement and criminal judicial
cooperation, including the Schengen Information System. We obviously
wish to develop cooperation as well at the EU level on asylum
and immigration matters and civil judicial cooperation which comes
under the Lord Chancellor's Department. Both of these issues are
now contained in the free movement chapter where, in accordance
with a further protocol, we may choose to opt in. We see this
as a very positive move to strengthening our cooperation with
our other European partners in areas that really can make a difference
to our agencies fighting crime across borders. It is the right
time to move forward on this and we had to make the announcement
somewhere. The JHA on 12 March seemed to be the appropriate and
best time for the Home Secretary to do that.
2. Minister, the Chairman did indicate that
there was some measure of surprise about the Home Secretary's
statement at this particular point in time. You have given the
reason why you thought it necessary in view of Amsterdam coming
into effect fairly soon but, given the Government's general, overall
scepticism towards Schengen and our protocol on retaining frontier
controls, why participate at all?
(Kate Hoey) Before I answer that, I was remiss
at the beginning in not introducing my two very important colleagues.
On my left is Jenny Rumble, who is the Head of the International
Section, Policing Organised Crime Unit. On my right is Lesley
Pallett, who is the director of European policy, Immigration and
Nationality Directorate. We all have very grand titles. They obviously
will come in if there is anything I feel I would like them to
expand on. Yes, there is a very clear commitment to maintaining
our frontier controls. You are absolutely right. Within Schengen,
there are other aspects which are not incompatible with us maintaining
our frontier controls and which can make the work against organised
crime more effective and enhance cooperation that is more and
more needed on judicial matters to do with criminal law throughout
the European Union, so that we can hopefully make an improvement
to what is already happening. Our work in Europol is already proving
to be a very effective way of improving cooperation and making
a difference to combating organised crime, drug trafficking and
organised illegal immigration. There are aspects of Schengen that
we believe will make the job of police, Customs officials and
immigration officials much easier, therefore with a greater possibility
of catching criminals. The Government's approach generally to
matters to do with the European Union is that we want to be constructive
partners within Europe but of course our national interest has
to come first. In this case, our national interest is to maintain
our frontier controls. The Prime Minister very sensibly went for
the opt-out at Amsterdam which we got and we are now exercising
our right, when the Amsterdam Treaty comes in, to opt into those
bits that we feel would be in our interests. That is why we announced
it and we will be shortly putting forward a formal application
to participate in certain aspects of the Schengen acquis
and a decision will then be taken. It has to be a unanimous decision
by all 13 Schengen States. We hope that, in discussions with our
European partners, we will get support for our opt-in to the areas
that we are seeking to participate in.
3. I have two short questions, one conjectural
and the other one quite specific. Do you think our European Union
partners will allow us to pick and choose in the way that you
have indicated? Secondly, has the jurisdiction of the European
Court over Title IV measures now ceased to be a stumbling block
for the United Kingdom?
(Kate Hoey) We have done some preparatory work
but we really did not know until we publicly announced our position
what the reaction would be from some of our European partners.
The reaction was generally very positive. The German Presidency
in particular welcomed our decision immediately from the chair.
We had support from France and at the same time, just after the
Home Secretary made his announcement, an announcement from the
Irish Minister that they also wished to exercise their opt-in
ability and that they were welcoming what we were doing and would
be working with us very closely. Most of our European colleagues
recognise our position on frontier controls. There will be probably
some difficulties particularly with Spain over questions to do
with Gibraltar but none of the problems is insurmountable. The
feeling is that we will get support for this from our partners.
We cannot not go forward with something we think is in the country's
interests just because we think there might be difficulties in
getting people to accept it. We do not think those difficulties
are as great now as perhaps they would have been a couple of years
4. The European Court?
(Kate Hoey) The ECJ jurisdiction? In terms of,
say, our work with immigration and asylum, it is very important
that the ECJ is not used as a way of slowing up some of our problems
and difficulties that we have with immigration appeals. It is
important that the ECJ is involved where it has to be. All of
the immigration, asylum and free movement chapter is coming under
the first pillar under Amsterdam and is likely to be subject to
the qualified majority voting aspects of the First Pillar. Those
things are still up for discussion. The Treaty of Amsterdam provides
an extensive ECJ jurisdiction regime in the Third Pillar over
such matters as disputes between Member States and illegality
of Council measures. However, as far as preliminary references
from Member States are concerned, the Treaty provides that Member
States may make a declaration agreeing to accept such jurisdiction
over all future instruments, regardless of their scope or content.
As you mentioned at the beginning, we would regard that as unacceptable.
We would not want to be tied into that very strict control from
the beginning. It would be a form of giving a blank cheque and
we would not be prepared to do that. I hope that helps to answer
5. I think there is a very broad political
consensus behind the Government's decision not to give up the
national immigration control. Just to play devil's advocate for
a moment, how convinced are we that it actually does any good?
Is it the case that there are significant numbers of people attempting
to come to Britain from within the European Union who we would
like to stop, or are there other examples of areas in which this
quite expensive apparatus is helping us achieve national objectives?
(Kate Hoey) As an island nation, with the particular
benefits that that gives us, we feel it is important to be able
to exploit the advantages of the island geography. Checks at airports
and ports where traffic comes through are the most effective way
of controlling immigration and to prevent drug trafficking or
other forms of organised international crime. It is not just about
stopping illegal immigration; a lot of it is to do with being
able to prevent organised crime and use the information and intelligence
we have to stop people coming in or leaving if they are wanted
for criminal activity. I think it is effective and it does work.
Clearly, the Schengen external frontiers are working quite well
for most of those countries and there are no problems, but we
would not feel at this stage, or even in the foreseeable future
as we have said to Lord Tordoff's Committee, that the subject
of frontier controls is up for any kind of discussion whatsoever.
It is working. We want to be able to use new technology and help
to speed up generally the movement of people but the way to do
that is not by getting rid of our frontier controls but to make
them work better.
6. Giving up frontier controls does not
preclude arresting the sort of people that you have just referred
to, criminals and wanted drug runners. I do not see that there
is necessarily a correlation there. In other words, all the other
countries that have signed up to Schengen would have no powers
of restraining these criminals. The other thing is of course it
is operated in a very discriminatory way. There are no frontier
controls in practice between Northern Ireland and the Irish Republic.
My experience, as a British citizen, when you talk about the British
national interest, is that it works against British citizens in
that we and other EU citizens come in quite freely to Heathrow
Airport through the blue channel, but whenever we travel to another
European Union country we are made to stand in a very long and
exhausting queue because we have not signed up to Schengen. That
is an example of how our current stance works against the British
national interest, surely.
(Kate Hoey) The position between Northern Ireland
and the Republic of Ireland is a separate issue. There is a clear
free movement area there. The two things are not really relevant.
They opted out as we did and they are very likely to work with
us very closely. There is a problem that we would have to face
up to if we were even considering looking at our frontier controls.
That would be the question of identity cards. Whilst it may not
be compulsory in all other European countries, there is very clearly
an expectation that people can be stopped at any time and asked
to show an identity card. That is an issue that goes beyond the
pure European dimension. There is a civil liberties issue; there
is an issue of discrimination. That is a bigger and wider debate
than just relates to this particular area. There is no doubt about
it that, if we were to consider getting rid of our frontier controls,
we would have to bring into play some kind of internal ability
to stop and identify people. On the numbers of people we find
coming in, Lesley?
(Mrs Pallett) The point about criminals and being
able to arrest those at the frontier is that the frontier acts
as a natural funnel for identifying people so that facilitates
finding people. You made the point about the blue channel coming
into Heathrow, for example, which is a channel used by all EU
nationals, not just British nationals because we are all exercising
either our rights to re-enter as a British citizen or rights under
Community law as Community nationals. The same rules apply when
we go to other Member States. The fact that we are not members
of Schengen does not mean that we have different standards of
control. Community laws still apply but obviously the way in which
they channel people may be different and that is simply something
that we do at our main airports to try to help people pass through
the control more quickly.
7. We are not channelled through their equivalent
of blue channels. When we fly to Frankfurt or Rome, we are channelled
through generallyand this has happened to me very oftenwith
non-EU citizens. It has been told to me repeatedly the reason
for this is we have not signed up to Schengen. I have been made
to stand in queues for a very long time behind Americans, Africans
and Asians because of Schengen. What you say is happening in practice
is not happening in practice.
(Mrs Pallett) I cannot comment on your particular
experience obviously, but if I were to look, for example, at Brussels,
where I go very often, they do have special EU channels there.
They also have mixed channels that anybody can go through. If
you are behind a large group of people who are subject to immigration
control, then you are right; you do risk being delayed.
8. On the question of the relationship between
the United Kingdom and Ireland, the briefing notes I have seen
say that because of the consequence of the passport free relationship
we are tied in together. Is there any indication that there might
be circumstances where Ireland might find it is in its interests
to sign up fully to Schengen and leave us in the situation where
we have to sort out our relationship with the passport free zone
that we have created? It seems a position where possibly strains
could exist. Are there any indications that there are separate
discussions going on with Ireland?
(Kate Hoey) No. Relations between the ministers
from Ireland and the ministers from the United Kingdom are extremely
good. There were pre-discussions obviously between the Home Secretary
and the Minister for Justice in Ireland on this. They were very
clear on our views and we were very clear on their views. There
has never been any hint that they would in any way want to disrupt
what is an extremely good working relationship, not just on the
whole question of Schengen but particularly on the cooperation
between the Garda and the Royal Ulster Constabulary that has been
extremely good in combating terrorism activities. I really do
not think that is going to happen. It helps us as well in terms
of getting the support of the other European countries for our
bids to opt in to certain aspects of Schengen because Ireland
is doing it at the same time. It is going to be quite difficult,
for example, for Spain to argue a logical argument opposing us
going in, using Gibraltar if, at the same time, they are going
to support Ireland. I do not think any sensible European colleague
from other countries would see that as something that was rational.
That does not mean to say it will not happen, but it is certainly
not a rational position. I would hope that our close working relationship
9. Some of these questions we are going
to be following up as a Committee in written form
but can you tell us, in general and in practice, how easy you
think it is going to be to distinguish between those measures
agreed under the Schengen acquis and the new measures that
you are talking about?
(Kate Hoey) The Schengen Information System is
something that we are very keen to work with and get into as soon
as practically possible, because that is going to make a real
difference to the way our agencies can work and speeding up the
exchange of information. At the moment, when we want to get information
on something, because we cannot use the Schengen Information System,
we have to go through Interpol or Europol and then it feeds back
through. Having direct access will make a great deal of difference.
Anything new that is now negotiated, once it is part of the Amsterdam
Treaty, we will be able to be involved in that. We are still members
of the Council; we are still able to be there and discuss everything
that is happening and make our views on it. We cannot clearly,
in the parts that we have not joined up to, vote but it does not
mean to say that we have no influence on those particular areas,
although I appreciate that if you are not actually voting you
may well be seen to have less influence. But certainly we will
be playing our full part in all aspects of Schengen at the Council
meetings and in anything new that is being discussed in terms
of judicial cooperation and mutual legal assistance. We will be
in there from the beginning.
10. The reason for asking this question
is that the legal basis of the two ways is clearly different and
the obligations are different. How easy is it going to be to differentiate
between what are new measures, where Britain will be able to exercise
a veto presumably, and those which are built upon the existing
acquis, where Britain's rights are going to be substantially
(Kate Hoey) None of the final legal base for any
of this has been or will be finalised until after Amsterdam comes
into being. Then we will finally decide whether it is in the First
Pillar or the Third Pillar. The immigration and external frontier
controls, the free movement aspects, will definitely be moving
into the First Pillar. There has still not been any final decision
on all the other bits. The answer apparently is it is not tremendously
easy. This is a good reason for being in on the relevant parts.
That is absolutely true. EU lawand I speak as a non-lawyeris
not the easiest of things for even the most avid readers of EU
treaties and conventions. It is very technical and there will
be a lot of discussion but if we are there we will be able to
have our voice heard and make our views known. There is nothing
definitive yet. We have not actually lost out on anything by not
being in there at the moment because no decisions have been taken.
11. I wonder whether you can tell me whether
a cost compliance assessment has been done of the British position
and, if one has not been done, are you thinking of doing one?
(Kate Hoey) No. We do not feel that a cost benefit
analysis is necessary in terms of looking particularly at the
frontier controls aspect. We have made this quite clear. It was
suggested that this might be something that should be done. It
did not seem to us and to the Home Secretary that the costs of
doing that, in terms of what we could get out of it in relation
to our position on our frontier controls, would be worth doing
or make any difference.
12. Do we know whether the European countries,
before or after Schengen, have done a fiche d'impact as to the
benefits resulting from the frontier changes?
(Kate Hoey) In terms of whether it is working
13. Yes, and in what way.
(Kate Hoey) I can write to you with a definite
answer on that. I have not seen any detailed analysis of how it
is working for other countries.
(Mrs Pallett) I do not think there has been any
(Kate Hoey) No one wants to spend the money on
doing it, I think.
14. That follows on from the question as
to whether there are any benefits.
(Kate Hoey) In joining Schengen?
(Kate Hoey) The very clear benefit to me, coming
in new to it and seeing it genuinely objectively, is certainly
I think we are missing out by not being able to be members of
the Schengen Information System. A great deal of useful information
can come from that. In terms of the work on cooperation against
organised crime, drug trafficking and illegal immigration, it
almost follows on from being part of the Schengen Information
System that we can then use that more effectively. Some of the
cooperation that is going on at the moment between, for example,
us and France on the Eurostar is happening because we have made
agreements between the two of us. Obviously, there are certain
things that would be even better if we were tied into the Schengen
Information System. On the free movement chapter and those aspects
that are more delicate because of our frontier controls, there
might well be some aspects on asylum that we would want to cooperate
with, particularly to do with minimum standards of how asylum
seekers are treated in countries, so that we do not have one country
because of its particular regime, either very good or very bad,
acting as a kind of pull factor to asylum seekers. There is a
much greater awareness now in the European Union, particularly
because of our working with accession countries, that we have
to try and cooperate as much as possible. I am not talking about
burden sharing; I am just talking about things that we can agree
are the basic minimum requirements so that no one country is seen
as a real pull country for asylum seekers coming from wherever.
I think there are advantages.
16. My question is about the government's
attitude again to Pillar I and Pillar III. It arises following
a response from the Home Secretary to the Chairman. The Home Secretary
was endorsing police, Customs and judicial movements, which are
all Pillar III matters. Do you agree that the United Kingdom's
position is that it is more willing to participate in those Schengen
provisions which follow Pillar III, rather than the free movement
aspects of Pillar I?
(Kate Hoey) The free movement Chapter is affected
generally by our political decision on frontier controls. Clearly
the Third Pillar does give the advantage that, where it is intergovernmental
cooperation rather than First Pillar Commission-led cooperation,
that you get, in my view, a very practical approach to cooperation
because countries have decided, "This is what we want to
cooperate about", rather than somebody up there saying, "This
is what you are going to cooperate about." Maintaining co-operation
in the Third Pillar allows countries to instigate things themselves
rather than in the First Pillar where it has to be Commission
led, although in the area of free movement that is going into
the First Pillar, for the first five years of that, there will
still be a need for unanimity and there will also still be a joint
right of initiative. The right of countries to initiate things
are very important. Unanimity means that, if something is agreed
and everyone has wanted it to happen, hopefully it will be carried
out by everybody, rather than passed but not necessarily carried
out. There is a difference between Third Pillar and First Pillar
and, on the whole, the Third Pillar is going to be easier for
us to work with cooperatively.
17. Clearly, the Home Secretary has given
a decision in principle to participate but will the final decisions
be determined by how the Schengen acquis is actually distributed
between the two pillars? If our partners decide to shove it all
into Pillar I, then I presume even Jack Straw could be extremely
reluctant to go along with his statement of 12 March. Perhaps
you could just elaborate on how you see that?
(Kate Hoey) We and the Home Secretary have expressed
a willingness to engage positively now in looking at those areas
that we feel we can opt into when the Amsterdam Treaty comes into
effect. Yes, there are still a lot of technical details to be
worked out about which pillar elements are in. I think it is pretty
definite that those aspects to do with organised crime, drug trafficking
and illegal immigrationcertainly the organised crime sideare
going to be in the Third Pillar. Where there is still a dispute
over what the final legal base will be, yes, it could make a difference
but I do not think at this stage there is actually going to be
much new to come in that we had not already considered when we
made the decision to go ahead with formally making our application
18. In particular, the Home Secretary mentioned
participation in the Schengen Information System and you have
remarked on it yourself earlier. I understand that this is still
not allocated to a specific pillar. Can you briefly tell us why
you think it is important for the United Kingdom to participate
in the system and will the final allocation in any way affect
the United Kingdom's willingness to participate? Do you think
other Member States will allow us full access to the system since
we are unwilling to fully participate in the related immigration
(Kate Hoey) On your last point, other countries
are very keen to have us in the Schengen Information System. We
are working with all those countries in Europol and indeed we
were instrumental in getting Europol established, a lot of the
preliminary work was done by this country on Europol. There is
a lot of sharing and cooperation between countries, police forces
and other agencies. They would be pleased to see us in. They know
we have a certain expertise, a certain way of doing things and
I think genuinely there is a willingness for us to get into the
Schengen Information System. In terms of the acquis, Lesley?
(Mrs Pallett) It has not yet been decided. If
you look at the SIS strictly legally and technically it would
divide between the two pillars because there is police cooperation
there but there are also issues to do with crossing external frontiers
which are obviously in the free movement chapter. The Schengen
states see this very much as a vehicle of police cooperation and
what they want to ensure above all is that, by allocating a legal
base, they do not make it pretty impossible to run managerially.
Clearly, if we fail to agree that by the time Amsterdam comes
into force, there is a failsafe provision in the Schengen protocol
that everything will revert to the Third Pillar while a final
decision is made.
(Kate Hoey) It is pretty likely that it would
be in the Third Pillar for some time anyway but it stores a lot
of data on stolen vehicles, documents, missing and wanted persons,
all of those useful things that our police, Customs and other
agencies will be able to tap into. It would help to make our extradition
procedures faster on wanted persons. It is a very useful tool
generally to combat cross-border criminality and that is why the
police service particularly would like to be able to get into
it. If I were to choose any of it, that is the bit where I can
see a real advantage for the country.
19. This question is on immigration and
asylum measures. In a recent letter to the Chairman on the Eurodac
Convention, you talked about future decisions on the principle
of the United Kingdom's participation in asylum and immigration
issues. Are you able at this stage to tell us more about the principles
on which participation will be based?
(Kate Hoey) Eurodac, as you have seen from the
response to Mr Hood in Hansard, we have got to a stage where we
are fairly near agreement. The text itself now has been frozen,
again until we await Amsterdam and find out exactly in which legal
form it will be re-presented. We still have parliamentary scrutiny
on it and there are one or two other countries that still have
that. We will have to be clear that, when we do get involved with
it, all the problems relating to data protection are satisfied.
This is an area where people are worried that we are not signing
up to something that is going to be a threat to civil liberties,
although you have to balance that against the positive effects
it has. It is going to be particularly helpful in dealing with
asylum seekers and illegal immigration because it will enable
fingerprints to be compared so that we will be able to see, for
example, if someone has been an asylum seeker somewhere else,
in another part of Europe, first and then has come in as an illegal
immigrant in this country. Again, there are very practical, useful
things with Eurodac coming into operation and again the agencies
are looking forward to that helping.
(Mrs Pallett) Indeed, helping in the operation
of the Dublin Convention.
(Kate Hoey) Which is not working very well.
1 See Appendix on p. 11. Back