Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  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.

Mr Marshall

  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 ago.

  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 your question.

Dr Palmer

  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.

Mr Bradshaw

  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 generally—and this has happened to me very often—with 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.

Mr Connarty

  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 will continue.

Mr Rammell

  9.  Some of these questions we are going to be following up as a Committee in written form[1] 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.

Mr Marshall

  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 less?
  (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 law—and I speak as a non-lawyer—is 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.

Mr Steen

  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 for them?

  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 such analysis.
  (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?

  15.  Yes.
  (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.

Mr Dobbin

  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.

Mr Marshall

  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 immigration—certainly the organised crime side—are 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 to join.

Mr Connarty

  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 measures?
  (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.

Mr Dobbin

  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

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