Examination of Witnesses (Questions 100-113)
MR TIMOTHY
KIRKHOPE, MR
MICHAEL CASHMAN,
MR GRAHAM
WATSON AND
MS JEAN
LAMBERT
28 NOVEMBER 2006
Q100 Mrs Cryer: I was going to go
through a number of Mr Watson's submissions but he is here so
he can explain them himself. I have two questions and they are
both based on Mr Watson's written submissions to us. There have
been a number of initiatives, such as Europol and Eurojust, to
aid cross-border co-operation in areas where practical policing
and judicial co-operation are vital. Do any of you feel these
practical co-operation measures are sufficient to tackle the challenge
of cross-border crime, and in which areas is binding legislation
more desirable and why?
Mr Watson: In which areas is it
more desirable? I think the difficulty with binding legislation
is that it has not been achievable. One of the greatest frustrations
of having seen through the process from Tampere to Tampere, as
it were, from the start of the European Union having powers in
these areas through the Amsterdam Treaty, which came in essentially
at the Tampere Council in 1999, to the Tampere meeting under the
Finnish Presidency, is that the process has not really worked.
It has become almost impossible to set binding legislation. Why
has it become impossible? Essentially for two reasons. The first
is that it is very difficult to get agreement among 25 Member
States on a piece of legislation in criminal law. There is always
somebody who will have a problem, which means that after seven
years very few pieces of legislation have actually gone through.
The second is to do with the Treaty of Amsterdam and the way it
was framed. In the Third Pillar initiatives can be advanced not
simply by the European Commission, as is the case in the First
Pillar in most of European legislation, but also can be advanced
by individual Member States or groups of Member States working
together, and so what has tended to happen is that two or three
Member States have come together with a particular bugbear, have
proposed a piece of European-level criminal legislation to deal
with it, and it has gone into the system. At the same time another
two or three Member States have come together with something similar
and so you have had huge amounts of legislation fed in leading
to effective gridlock. That is why I say in my evidence, Chairman,
as the critic once said of Samuel Beckett's play Waiting for
Godot, "It has been a two-act play in which nothing happens
twice". The real difficulty has been the inability of the
Union, thanks to the use of the Third Pillar, to frame legislation.
There are many areas. Jean mentioned trafficking in people, which
has been a serious concern of ours over those seven years. There
are other forms of cross-border crime. We have in today's world
a situation where, effectively, to paraphrase Mark Twain, a criminal
can be halfway across Europe before the policeman has his boots
on. We have created a border-free Europe for criminals without
creating a border-free Europe for protection of the citizen.
Q101 Mrs Cryer: Is your opinion that
nothing happens twice due to enlargement, would you say?
Mr Watson: No, I do not think
it is due to enlargement because I am not sure it would have been
very much easier with 15 countries. I think it is more to do with
the way in which the Third Pillar concept was designed.
Mr Kirkhope: Can I just add to
this point? Eurojust and Europol, of course, were set up with
very specific and quite restricted terms of reference. In order
to understand this legislative side of things we have to underline
the fact that we all have different interests in what we are trying
to do in the European context. The Commission are very keen indeed
to get their way, as it were, sometimes with very much limiting
the involvement of politicians, whether it be in the European
Parliament or, through the Council, international parliaments.
Think there are examples of just recently, and you will have been
looking at some of them, I am sure. One is the pursuance of the
passerelle, which I and my colleagues are very much opposed
to, as a device in order to achieve something which is basically
not achievable, an attempt to find a fiction in order to try and
move something forward and thereby, if you like, extend the legislative
capacity which comes from the Commission. That is one thing. The
second thing is the setting up of this new Fundamental Rights
Agency which is being pursued and is about to come to effect in
January next year, I believe. It is a Fundamental Rights Agency
based on a flawed argument, fundamental rights which were contained
in the draft constitution, a draft constitution which is going
nowhere, hopefully. My colleagues will not agree with this, of
course, but I hope not.
Mr Cashman: Oh, no?
Mr Kirkhope: Oh, well, all right,
speak for yourself then. The point is that we now have a situation
where we have a Fundamental Rights Agency being born as a result
of Commission pressure out of an agency which failed badly, an
agency dealing with xenophobia and racism issues which failed
its task. It did not have sufficient resources, and they are now
trying to make the personnel in that agency develop into a much
wider agency in order to achieve something which has not been
approved, a constitution which is not in effect and yet ways are
found by the Commission. The simple fact is that in legislative
terms we have to all of us be on our guard, both the European
Parliament in terms of its ability to be involved in the legislative
process and national parliaments, who in my view still should
take most of the detailed decisions following the directives that
are the lion's share of what comes out of Brussels, and that is
why I feel we have to be very careful here and all of us have
to protect our interests in our own way, even though those interests
might be slightly different.
Mr Cashman: Just by way of correction,
of course, the Fundamental Rights Agency can only be set up if
it is agreed unanimously by the Council, and, interestingly, the
Commission did not have to do this but it decided to engage Parliament
in this and not just in a consultative manner. I am sure you as
directly elected politicians would welcome the engagement of directly
elected politicians in such a debate, and, after all, the Charter
of Fundamental Rights is based upon, but not exclusively, our
commitments under European Conventions, not least the European
Convention on Human Rights. In answer to Mrs Cryer's question
I think binding legislation is only part of the issue. Europol,
Eurojust, the European Borders Agency are, I think, part of an
arsenal. I worked very closely on the Data Retention Directive
where Member States have to retain data, mobile data, data on
the internet for a certain period of time. We argued that what
we needed were common minimum standards across the whole of the
EU, but, more importantly, properly enforced and implemented common
standards, and this is where the Commission's role is vital, because
often laws are not properly transposed and then not properly implemented.
That is why I say that I believe binding legislation is only a
small part of the equation. I would argue that what we need to
do is go back, and with enlargement any multinational will do
this, and say, "We have now enlarged. Let us do an internal
audit of what we have agreed to do, see if we are doing it and
see what we need to add on in order to deliver". The big
issue with a single market without borders means that crime equally
is without borders. One of the biggest issues that we deal with
is people trafficking, as Jean referred to, the trafficking of
children. Yesterday we were discussing in a decision which is
now before our committee on whether it is right on travel documents
to ask children as young as six to give their fingerprints, and,
of course, the association of fingerprints with criminality immediately
springs to mind, but how else do we use a mechanism that makes
absolutely certain that that travel document is issued for that
holder and that that parent is the real parent? We have to make
sure we have mechanisms which hold up across the 25 Member States.
Ms Lambert: One of the issues
about organisations such as Europol and Eurojust has been that
in many ways they were also set up not just for practical purposes
but also partly as confidence building so that Member States could
get used to working with each other without feeling that their
own territory was being stepped upon. Of course, you have a mismatch
then with the time that it may take to do that and the timescale
that you may then want to introduce legislation, so that you do
not necessarily have a fully functioning body at the point at
which you need it in terms of legislation if you want to introduce
that. That is one of the issues. There has also been an issue
for some of us about the oversight of those bodies, and this is
one of the areas where I part company with my party in terms of
the Constitutional Treaty where I think that certain of the powers
being given to national parliaments, for example, in relation
to Europol could have been extremely useful in terms of looking
at how that was functioning from a more national perspective.
I think that would have been extremely useful. In terms of binding
legislation, yes, there will be a problem there, not least because
of this plurality of where legislation can come at you from. We
have found ourselves at times with almost competing legislative
proposals from particular Member States who sometimes you feel
want a bit of trophy legislation they can wave to show they are
active on a particular issue. That also has not helped, and indeed
on occasion Parliament has rejected certain of those proposals
because we felt that they had been poorly thought through. Enlargement
within that has also not helped, not necessarily because of who
the states are but simply because there are more, and again if
you are trying to do confidence building work and then you have
new people coming in, it does not matter who they are. Again,
you are going to have to take a step back before you move forward.
Those are certain of the issues which have arisen there. I will
leave the debate on the Charter of Fundamental Rights for another
time perhaps.
Q102 Mrs Cryer: Following Michael's
comments about fingerprinting, I would just love to ask you about
the niqab and veil but I will not because it will just take too
long. There have been objections raised about moving national
areas of criminal law and justice to the Community method. What
is your assessment of the implications of a move to the Community
method for the UK's legal and justice systems?
Mr Cashman: Can I be quite simple
and say that the UK, Ireland and Denmark are, of course, in a
very special position in that they have the opt-in into police
and judicial co-operation in criminal matters. I believe we should
look at it on a case-by-case basis, and if it is in our interests
to opt in then we can do so, but I would feel perhaps rather queasy
about ceding powers in this area at the moment. Arguably we are
not ceding them because we would have to opt in, but I think the
debate in the House of Commons should inform the decision that
is taken. The UK, like other Member States, has its veto in this
area, but then perhaps we come to a position whereby, if those
Member States that do not have the opt-in wish to shift from the
Third Pillar to the First Pillar, does the UK veto that? I think
it is a very big question which will have to be taken, I think,
in full awareness of the tabloid hysteria that would follow any
such decision.
Mr Kirkhope: This is where we
get into some very interesting areas indeed. I am a lawyer by
profession, apart from having been, like you, Chairman, a Home
Office minister, and I do feel very strongly about this point.
It was raised in the context of are we going to move from having
essentially national approaches, historic approaches, for dealing
with civil and criminal law, to, if you like, we can call it the
Community method or we can call it whatever? The truth of the
matter is that it seems to me that some people have this dream
but it seems to me to be a totally impracticable and impossible
dream if that is the case. It is a bit of a nightmare, in fact.
You just have to look at some of the legislation which we have
passed through the House of Commons in areas such as company law,
property law, even family law, and the great controversy that
we have had in trying to pass these things, and we have to look
at the compatibility between the English and the Scottish systems
for a start. If you start doing this on a European-wide basis
you immediately come into conflict with at least three or even
four basic different legal systems, historic systems, and I just
think that this is one of those impossible situations. We should
do more, Chairman, to try and get recognition of each other's
decisions and judgments, particularly in civil law. I think that
is important, and obviously more and more as we see commercial
developments we have to have compatibility in accounting standards,
we have to have compatibility in a lot of the things which are
in Europe, for our single market, for instance, in those sorts
of terms. If you take this further into the whole field of civil
law, if you take it into the field of criminal law, then I think
you are entering into territory which really is—and the
reason why we would like to maintain the Third Pillar so much
is that we are then dealing in areas which are essentially areas
of competence for national legislatures. I think the British Government
has a very similar view to that, I think there is a lot of agreement
in Britain on that fact, but I think that we have to make sure
we do not waste too much time and too many resources on moving
along impossible routes because of some kind of philosophical
or dream-like approach. It is not sensible. We are in the business
of pragmatism here, most of us, regardless of our parties, but
this is one step too far in my view.
Mr Watson: Chairman, your colleague
and my compatriot Michael Connarty carried out through the European
Scrutiny Committee an examination of this issue, as you will be
aware. Their conclusions essentially were two-fold, first that
national sovereignty in these matters or over matters of what
constitutes a crime, what sanctions there should be for offences,
procedural rights and so on, was essential, and their second conclusion
was that one should not allow the European Parliament to have
the right of co-decision on measures of police and judicial co-operation
because most of its Members do not represent and are not answerable
to the United Kingdom. I would disagree with them on two issues,
first because I believe that the concept of national sovereignty
no longer has the same meaning today when so many people are moving
all of the time, when crime is moving across borders with horrific
speed and implications, and it seems to me that if one insists
on the argument of national sovereignty one is saying that we
are happy for UK citizens, who, for example, live in Spain for
half of the year, not to have the same procedural rights as they
might have in the UK in criminal matters. We are saying, for example,
that effectively we would renounce the right to protest if our
constituents in Greece receive longer sentences for an offence
than they would in the UK. I think there is a genuine interest
for the United Kingdom, a country which has a higher percentage
of its citizens living and working abroad, to seek to defend those
citizens better by going for a more common approach to procedural
rights. I will not raise the case of David Irving being prosecuted
in Austria for denial of the Holocaust but it seems to me that
there is an argument there where national sovereignty perhaps
no longer has quite the same sense that it used to have when it
comes to matters of procedural rights, sanctions and so on. On
the question of whether the majority of the Members of the European
Parliament represent and are not answerable to the electorate
in the UK, my response to your European Scrutiny Committee would
be, well, nor are the majority of members of the Council responsible
to or answerable to the UK, but where it strikes me as different,
and I think probably all of us would have the experience of working
on the committee here, is the suggestion that somehow members
of the European Parliament from other countries do not share our
basic values when it comes to upholding the law. My experience
is certainly that they do. Members do not vote along national
lines when we have votes on these issues. If they divide they
tend to be along party lines rather than along national lines.
If we are concerned about civil liberties, if we are concerned
about longer sentences, we need to recognise that the approach
taken by other countries is not fundamentally different from that
taken by the United Kingdom, and therefore I would argue that
we should be perhaps a little more relaxed about these things
than we have been able to be in the past.
Ms Lambert: I think that that
movement is potentially quite profound for the legal and justice
system in the UK. I think it is profound for many of the Member
States and in many respects that is often not really taken into
full consideration. I think that we have seen measures to try
and gain a unanimity of approach, whether that is the arrest warrant
or whatever, where the full implications were not really thought
through and it has created a considerable number of problems.
However, there is also within this the argument, is it then right
for it simply to be a decision of Council which then belongs to
no parliament, and national parliaments do not really have oversight
except in one or two Member States which mandate their governments,
and it does not fully belong in the European Parliament either,
particularly in terms of follow-up and viewing how these particular
decisions are implemented? Those are the things that we are trying
to balance up with it. Where is the democratic oversight of the
decision-making? What is the most democratic way to make those
decisions? Is that simply between governments? Is it to involve
a parliament, in which case this is a parliament which obviously
has an interest because it is international, and certainly my
political group supports the European method, as it were, for
decisions that are being made at the European level as a sort
of a logical conclusion to that. However, we are also very clear
that before we go far on this we really need to be clear about
what the core standards are that we want to see implemented across
the European Union because from the citizen's perspective what
many of us find is that our constituents expect the same laws
to apply elsewhere in the European Union when they are in trouble,
no matter how they may vote otherwise; that is what they expect,
that things will operate as they do at home, and are often profoundly
shocked to discover that that is not the case, even if it is in
terms of access to legal aid or whatever it may be, and that for
us any further steps in this direction have to come with those
core standards, those very clear rights so that our citizens do
know what applies to them across the European Union if we are
doing joint legislation. For us that is an absolute sine qua
non and at the moment we feel that we are moving very much
in terms of pan-European legislation without the issues of redress
being clear in that at all and we are looking at prosecution rights
but we are not looking at defence rights and this is something
which, if we are moving further on the Community method, whether
through the Constitutional Treaty or passerelle or whatever
it is, for us has to be absolutely part of the contract, as it
were, with our citizens.
Chairman: Thank you very much. For the
record I will read what the European Scrutiny Committee concluded
on the point though I will not enter the debate about the interpretation
of it: "Moreover, there is the question [of] whether it would
be acceptable for the European Parliament to have the right of
co-decision on measures about police and judicial cooperation
in criminal matters when the most of its Members do not represent
and are not answerable to the electorate of the UK". That
is, as it were, from the report directly.
Q103 Mrs Dean: Do any of you believe
that implementing the passerelle could lead to better quality
decisions and would these decisions lead to more real action by
Member States?
Mr Cashman: Again, it depends
on that which is proposed. I suppose I differ from what both Graham
and Jean have said in that I think most citizens look to their
Member States, the place that they live, as the enforcer of the
laws and the upholding of the rights and the principles. Where
we get a European dimension is that we do not have the same laws
but we have different laws which enshrine the same rights and
the same principles, and so therefore we have to have mechanisms
by which we can enforce and ensure that what we have agreed at
EU level is, as I said earlier, properly transposed and implemented.
Let us deal with something that we have had, the Data Retention
Directive. It could actually have been proposed under the Third
Pillar but they decided in Council that they would propose it
under the First Pillar, so we had co-decision. Let us say that
it was under the First Pillar. If each Member State says, "Yes,
we have absolutely something to gain by ceding our sovereignty
on this particular issue of data retention and data storage",
then the arguments can be made and the case can be put to each
Member State's citizens, and this is where I come back to what
I think is the central issue and it has informed part of the debate
this afternoon. If we want to bridge the democratic deficit in
these measures we can do it quite simply by having the Council
of Ministers meeting, deliberating and voting in public, and that
is crucial if they are then held accountable for the decisions
that they have taken in the Council and they are held accountable
to their national parliament. Once we begin to bridge that democratic
deficit we can see where we will need to act, because often what
is done is that deals are done in Council and the next thing we
know is that a directive has come through, it has come through
under the First Pillar rather than the Third Pillar, no explanation
why, no transparency, no accountability. We need to look at the
transparency and the accountability, and once we get those I think
we will probably find that we will not have so much need for the
passerelle because the debates will be much more honestly
informed and will be held accountable.
Mr Kirkhope: It is a device, as
I said before, and "passerelle", of course, means
bridge.
Mr Cashman: Gangplank, actually.
Mr Kirkhope: A gangplank—it
can be, yes, in certain terms that is right, it has a sort of
nautical meaning too, I believe.
Mr Cashman: Let us walk the gangplank.
Mr Kirkhope: The thing is that
I think it is becoming a bit of an obsession, this thing. I do
not wish in any way to diminish the importance of it. It is vitally
important to talk about it. It is not of terribly great interest
to our constituents. My constituents in Yorkshire for a start
are not terribly interested in the passerelle, I do not
think, and indeed I am very disappointed, Chairman, that Mr Connarty—actually,
having now heard the official report, Mr Connarty has not said
quite what I think Mr Watson suggested, that we were basically
a waste of space, but I do think there is an issue here regarding—
Q104 Chairman: That is why I thought
I would read it into the record.
Mr Kirkhope: That was very helpful;
thank you, Chairman. I think there is an issue here about the
question of the democratic accountability. The greatest thing
we could have done for us, as Michael has said, is to have the
Council really being transparent and meeting in public, which
we were promised. I got the promise myself out of the Prime Minister
in the British Presidency. I was very disappointed that the Foreign
Secretary went back on that arrangement.
Mr Cashman: And then she went
back on going back.
Mr Kirkhope: I think there is
a little bit of movement of the caravan going on then. As far
as I am concerned I think this is very important, it is the most
important thing. The passerelle issue is, I think, a bit
confusing but at the bottom of it all it moves us away from intergovernmental
co-operation to increased harmonisation. It moves us away from
being able to pursue our own traditions into other people's generalised
traditions which does not please anybody at all. The interesting
thing is that in those areas of justice and home affairs where
we have moved to qualified majority voting experience has not
shown that it necessarily means a more effective decision-making
process or a better one. I do believe it is something we should
not be pursuing. The Germans are very keen not to activate the
passerelle because they want to put all their efforts into
getting the constitution back. That is what I understand the position
to be, so it will not happen in any event here for some time,
but I think we should reflect in the time we have available and
we should really come to a conclusion that the passerelle
is not something that we ought to run with.
Q105 Chairman: Is there a dissenting
view or can we move on to the next issue?
Mr Watson: Chairman, the point
of my written evidence is to argue that the passerelle
is needed. It is needed because the European Union is failing
to protect its citizens from the effects of cross-border crime
and it is failing to guarantee its citizens the kinds of rights
they ought to enjoy under the law. My argument for the passerelle
is because I do not believe it likely that the European Constitution
will come into force in the near future. We do not need it to
come into force in order to achieve these objectives of protection
of our citizens because we have the option by unanimity in Council
of a move to the passerelle under the Amsterdam Treaty
and, whereas the European Scrutiny Committee argued that we would
see the present certainty about our ability to protect Britain's
interests in justice matters replaced with uncertainty, I believe
that in fact that would not be the case because I believe that
decision-making at European level has generally worked well. If
I might just give two very brief examples, I had the honour when
I was Chairman of the Committee on Justice and Home Affairs here
in 2001 of taking through the House the European Arrest Warrant.
It was a response to 9/11, it was a very effective tool not only
in the fight against terrorism but in the fight against serious
crime more generally. The European Arrest Warrant needed to be
accompanied by a directive on minimum procedural guarantees for
those accused in criminal proceedings. That measure on procedural
rights that was put forward by the Commission very shortly thereafter
has been stuck at the bottom of the Council's in-tray ever since,
with the effect that somebody accused in another Member State
of the Union does not even have the right to an interpreter, because
we have not managed to put that into law. These are the kinds
of things, bread and butter issues, that we could be sorting out.
Michael Cashman mentioned the Data Retention Act. Again, Charles
Clarke took an issue which had been stuck in Council for five
years and managed to get it through in six months because he decided
to use a First Pillar legislative procedure rather than a Third
Pillar legislative procedure, and that I think is the proof of
the pudding.
Q106 Mrs Dean: What difficulties
do you as MEPs face in assessing the impact of EU policies on
the ground, rather than where there is legal consistency across
the EU, an assessment of actually how EU policies were working
in practice? Are you able to assess those as MEPs?
Mr Cashman: Janet, if I may I
will respond to that and if I am way off the mark tell me. The
approach that I and others take, and I will give you an example,
is that when we have a piece of co-decision, and I worked on what
is called the Schengen Borders Code, which is the conditions for
entry into and exit from the Schengen area, and the conditions
upon which Member States who have agreed to be part of the Schengen
area will re-impose their borders. When we got the proposal from
the Commission the first thing we did was to go and talk to the
people who enforce the code. We went to the borders and talked
to various officials about the problems. Of course, whilst you
are there you see the way people are treated, you see the effect
of certain controls on them, sometimes the effect on their dignity,
sometimes when you see a woman in a glass booth with her child
awaiting return to an African country you wonder about how she
will be treated during her period there. On the basis of the experience,
and talking to the people who have to implement the law, we then
brought forward our recommendations, and those recommendations
were accepted unanimously by the committee and by the Parliament
and, interestingly, for the first time ever in a piece of legislation
which is not to do with non-discrimination, it has non-discrimination
measures within it. I think it is absolutely essential that when
we approach any of these matters, which have a direct impact on
citizens and law enforcement agencies and enforcement agencies,
it is vital that they are engaged in the pre-legislative process.
Q107 Mrs Dean: Does anybody want
to add to that?
Ms Lambert: Yes, I do think there
are difficulties in some respects. The process that Michael has
outlined, when we can do it I think it is extremely useful and
it works; it is very powerful. We have been doing that not least
with conditions in some of the reception areas at EU borders,
and again that has been extremely informative. There are issues
within it structurally in terms of coming back to assess how things
have been implemented once it has happened, partly in terms of
the workload of the committee in that I think that many of us
would feel that we do not actually have the time to do the depth
of scrutiny that we would want to do, and we need to look at how
we manage that, but quite often your initial point of report is
the Commission, that of course is working a lot of the time with
what Member States tell it and what we are more interested in
almost is what Member States do not tell it, so therefore we are
heavily reliant, as many parliaments are, on professional bodies,
NGOs, and doing our own fact-finding on it. The other element
that comes into it at times as well is budget. We are limited
as a committee in the number of fact-finding missions, delegations
visits, whatever you want to call them, that we can do. Again,
that is a problem at times. There are things that you want to
do and cannot do, and we have only recently—and I may be
corrected on this by colleagues—been allowed to set foot
outside the European Union to look at the effect of certain of
the visa procedures and so on that we are putting into action.
That has been quite a revolution, I think, being allowed to step
outside to see what is happening. Those are some of the other
factors that certainly mean that you do not always get the depth
of that you would like to have, particularly looking at the implementation
two or three years down the road, the review side of it.
Mr Kirkhope: Chairman, this is
a question that I think Members of Parliament can also ask themselves
and consider. We have got impact assessment in quite a lot of
the things now. The trouble is that the impact assessment that
I want to see is the impact on my constituents. That is the difficulty
about the job we do, and we do get remarks made about us: we are
so remote, we are over here and we are not over there, whatever
it is, and yet we are the first place, the first location, for
legislative proposals, whether those are proposals come out of
the Commission or whether they are proposals that are arising
out of Council debate. We are often the first place and therefore
in many ways the decisions we take, and REACH was a good example
of this, the chemicals directive, are extremely difficult to handle
because, of course, REACH has impact right down to our constituents
who are commercial chemical companies and individuals and a lot
of NGOs. Incidentally, we do have an enormous amount of feedback
in this Parliament from NGOs and organisations, probably, may
I suggest, more than Westminster does, because often that is the
point at which they need to get at legislators of one kind or
another. In terms of the knowledge of the effects, and I do not
know whether I am getting close to where this question is from
but my view is that it is extremely difficult and one of the best
ways of doing it is for us to work more closely with other legislators.
I think we have always had this discussion but I repeat it today:
it is vitally important that MEPs are able to work even more closely
with MPs to see the process from start to finish and then we can
perhaps together monitor how the effects are felt by the public.
That is to my mind the big missing thing in my life, that I would
love to see this happen and I do not think we have ever quite
made it.
Q108 Mr Benyon: We have had conflicting
evidence on this whole area of scrutiny. One group of people,
Open Europe, who came to see us last week, said, "If the
passerelle clause is used it would mean that for the first
time in the UK's history criminal laws would be passed through
parliament as secondary legislation, and would not receive full
parliamentary scrutiny, as they will be implementing EU legislation".
In Mr Watson's evidence he has suggested that the role of national
parliaments in scrutinising government decisions is greater under
the Third Pillar procedure. How would the role of national parliaments
in scrutinising EU legislation change under the First Pillar and
would a more transparent process enable national parliaments to
be involved earlier in the process, rather as you were suggesting?
Mr Watson: I am very much in favour
of more transparency and I think the progress that we have made
in opening up the Council of Ministers to scrutiny when it has
legislated has been tremendously helpful in this. I am not sure
that in reality it would reduce the role of national parliaments
in scrutiny. What I think it does is that it perhaps changes the
way we do it. One of the biggest advances we have made in recent
years, and it has been a process in which your Chairman has been
involved because he has chaired some of the sessions, is now on
a regular basis, twice or maybe three times a year, national parliaments
from Member States and the European Parliament come together by
sectoral policy area and look at how legislation is working. Your
Chairman chaired recently a session which looked at the European
Arrest Warrant and two other pieces of major legislation. It seems
to me that that is the most effective way of scrutiny today because
we are looking at how things are working in different countries
and we are looking also at the challenges facing the Union as
a whole. It seems to me that many of the challenges today are
supranational and therefore the most effective responses are also
supranational responses. However, I am worried and I share your
concern about the extent to which parliaments are currently able
to scrutinise what has been done at European Union level. If you
take, for example, some of the agreements we are reaching with
the United States on anti-terrorism agreements, on air passenger
data and so on, these are not scrutinised by national parliaments
because they are treaties signed by the European Union with a
third party rather than by a Member State with a third party,
but nor are they scrutinised by the European Parliament because
they are Third Pillar issues. One of my arguments in favour of
the passerelle is that you are going to get greater parliamentary
scrutiny all told if you use that particular clause within the
treaty.
Mr Kirkhope: One of the big problems
about these sorts of discussions, and the passerelle is
a good example, is that you tend to get exaggeration by those
who are arguing in one direction or the other. I therefore to
some extent share Graham's view about the effects in terms of
parliamentary scrutiny. I think the big problem we have, as he
suggests, is that there is not enough parliamentary scrutiny per
se in national terms. It is not so much a question that the passerelle
would then render this an impossible situation. I think that we
already have that in place as a problem which needs to be sorted
out anyway. I am opposed to the passerelle because I think
it would certainly as a device affect our rights, not necessarily
in the scrutiny area but in determining the matters which I think
are very much national matters to be determined.
Mr Cashman: First of all, I do
think that there is a greater role for national parliaments to
engage in the scrutiny process at an earlier opportunity. One
of the very good ideas contained within the constitution was the
obligation on national parliaments to debate the Commission's
annual work programme, and the more debate we have, interestingly,
the easier our jobs will become because its connection back to
the Member State will be obvious. My belief is that use of the
passerelle going from Third Pillar to First Pillar would
mean that any decisions taken within the Council would have to
be referred back to the Member State. Whether it is merely for
endorsement or whether it is possible for the Member State to
reject, I will be honest with you, I do not know, but, of course,
where a supposed new power comes in is the power of the European
Court of Justice to intervene in these matters, and at the moment
in this area the Court of Justice does not have that remit.
Q109 Mr Benyon: You have powers of
scrutiny and co-decision that traditionally belonged to UK MPs.
In fact, most of our constituents still think to an extent that
we still have those powers. How effective are you at scrutinising
EU initiatives on behalf of the UK, and I will widen that? Would
your and our constituents feel that a better job was being done
if you scrutinised from a UK perspective rather than in your own
political groupings or across all Member States, and there was
a more structured approach to really feeling that the impact on
the British electorate was being addressed more directly?
Ms Lambert: I may part company
with others here but I always have problems with this concept
of the British interest because I am never entirely sure quite
whose interests we are talking about, whether it is the government
of the day or whether it is other institutions. I think that probably
the electorate would think that the job is best done at Westminster
because that would be where it is reported; therefore they will
be aware that there is a job being done. Quite often at the European
Parliament level a lot of people do not know that there is a job
being done despite the best efforts of many of us to get that
information out there. I think this is where what other colleagues
have been saying about the involvement of the scrutiny procedure
in the British Parliament becomes very important as part and parcel
of this. To scrutinise it from a British perspective, whatever
we may mean by that, is the job of the national parliament. Our
job is to look at how this works not just for the UK but also
for elsewhere and that there is a balance sometimes to be found
in that. Sometimes we will consider that we do want to defend
a British interest. At other times maybe there are other things
that we think outweigh that, so this is the issue when we are
looking at things, particularly in a co-decision procedure, that
the involvement of our national parliaments at that point, further
upstream, is really important, not when we have made the decision
and you are then implementing it. It is what the framework of
the decision is and that is where that input will be particularly
valuable.
Mr Kirkhope: We do work in an
extra dimension to national parliaments and that dimension is
in our national interests, so I disagree with this point that
is being made. I can think of a whole lot of instances where my
colleagues and I have worked with other major political parties
in the UK on something that is patently in the interests of Britain
and we do it, so we obviously are in our groupings on the left
or the right or whatever it may be and in general we are pursuing
matters because we are pursuing them as politicians on the right
or the left, but then there are definitely matters—and I
am trying to think of some; you can probably think of some, Michael—where
we will work in the British interests as one of our priorities,
our party interest and the national interest. Those are the things
I regard as the two priorities here, and I think it does happen
and I think it is right that it should happen as well. After all,
we are elected from a particular country rather than just in an
amorphous European way.
Mr Cashman: Of course there has
to be a British perspective; otherwise there is no common interest.
There is a French perspective and we come together and we try
and work out something that probably satisfies everyone but the
French and then we have got the right deal—and that was
a joke, for the record! In a way I think there is a bit of a con
that has gone on, that we have taken these powers of scrutiny.
In some areas, yes, where we have co-decision, and that has increased
under the various treaties from Maastricht onwards, but of course
some powers have been ceded only to Council, those government
ministers acting in Council and then deliberating and voting in
secret, and that does not get reported back, their position and
how they voted. I wrote the law—and it is law—across
the whole of the EU on public access to all the documents held,
received or produced by the three institutions, and the definition
of "document" was extremely wide, believe me. This was
a method by which citizens could hold the various institutions
accountable and there has still been resistance within the Council
for this transparency. Where we have real scrutiny and we can
bring forward legislative change we operate absolutely at full
throttle and with all due regard to the people who have elected
us, but where we do not we give our opinion, and if the opinion
is disliked it is merely put into the filing cabinet called the
waste paper basket. That is why the more co-decision we have the
more effective we are as scrutineers and as legislators, but I
would say to all of those Member States and those politicians
who believe that we have become the scrutineers, you must scrutinise
the scrutineers.
Q110 Mr Clappison: Can I turn to
the Schengen Agreement which you touched on a moment ago? Could
I perhaps ask a broader question on that, how you view the advantages
and disadvantages of the UK being outside the Schengen Agreement?
Mr Cashman: The UK, of course,
has, like Ireland and Denmark, an opt-in to Schengen. Interestingly,
I think it is Norway and Iceland and Switzerland who have opted
into Schengen. Of course, if you look at Ireland and you look
at us, we have very different needs. We have a border that is
solely our own. It is not, unless you look at Northern Ireland,
shared with another country and therefore we have very special
needs, so therefore I think it is right that we have decided to
opt out. However, there are problems affecting people who want
to travel without restriction, and indeed some people do find
problems when they come from other parts of Europe into places
like Gare du Midi (Brussels' main train station) and they have
not brought any ID or a passport, going back to Janet's question
about the effects on some of our citizens.
Q111 Mr Clappison: But broadly you
are happy to keep the present arrangement?
Mr Cashman: Yes. I would be happy
to keep the present arrangement. Let me say the Schengen Borders
Code is not just a piece of law. Out of that came a manual that
will be used by all of the border guards, so it is another example
of laws having direct effects on citizens and on the people who
are actually implementing it.
Mr Watson: My take will be a slightly
different one. I think that remaining out of the Schengen convention
assumes that we take the responsibility to police our own borders.
I would be rather more convinced of that if it were not that every
government for the last 12 years has cut the number of Customs
officers employed in the UK. Frankly, I see some gains in us joining
Schengen because I think it would help us in achieving some of
the things we wish to achieve in the protection of UK citizens
against cross-border crime and so on. However, I choose another
argument as my main argument against Schengen: the cost to British
businessmen.
Q112 Mr Clappison: Against the opt-out
from Schengen?
Mr Watson: Against the opt-out.
It is the cost to British businessmen of having to queue at foreign
airports, or railway stations if it is the Eurostar into Paris,
compared to their continental competitors is huge, an absolutely
massive disruption to their lives. I think we would be far more
successful economically if we did not have to put our own citizens
through those hoops.
Mr Kirkhope: I am very happy that
we should maintain our position, were that the case, of course,
because over the last few years the Government has been, as we
know, opting into parts of Schengen, certainly the co-operation
areas of Schengen, and my worry slightly is that we will suddenly
wake up one morning and find that we have opted into the last
bit of it, which I would be very unhappy about. I think it is
quite unnecessary and I think actually we are right to maintain
our position because it also then spreads over into areas such
as immigration, which we have not discussed, I know, Chairman,
today but which used to be my brief at the Home Office, and although
we did have some changes and redeployments of our border controls,
Graham, I think it is only in recent years that we have seen the
complete removal of the outward checks, which I think was one
of the causes of our misfortunes at this time in terms of immigration
matters. I am sorry to mention that but it is true, I think. I
am very concerned about this whole issue of Schengen. Of course,
the new enlargement states are obliged to comply with the Schengen
acquis by, I think, 2009. At the moment this is proving
an extremely difficult thing, and whilst I want us to be out I
am really very happy that they should be in, or that at least
that there is some clear policy for the external borders of the
EU because we are obviously concerned that those borders are properly
maintained, albeit we are not in Schengen. We should do far more
as a country in my view to try and give assistance where we can
to ensure that the Schengen acquis is complied with by
those states which are obliged to comply with it, if you know
what I mean. I think that would be in our interests in the same
way as, although we do not want to be members of the euro, we
do at least want the currency itself to be stable. It is in our
interests as a country. Therefore, I think we should take that
view, that we retain our position and we look at our immigration
process more carefully but also that we do give aid to the accomplishment
of the acquis for the enlargement states, which really
has to be achieved by 2009, but the way things are going, Chairman,
it looks as if it is not going to be complied with or achieved.
Ms Lambert: I think this almost
pick-and-mix attitude towards Schengen becomes increasingly untenable.
There is a whole set of information exchange that goes with it
which occasionally affects our citizens, not least if they are
travelling for what might be seen as political purposes but they
do not get the benefits of open borders either. There is an increasing
desire coming through to be treated on the same basis as other
EU citizens and we have that freedom of movement.
Mr Cashman: Just so that we are
absolutely clear, of course, the UK has opted into information
sharing and it is vital that we are aware of who is coming into
our country or leaving it and that we work with others to track
those who need to be tracked. I just want to say that because
there is the Schengen area it must be realised that Member States
still police their borders. They still have Customs operations
in those areas. They just have the abolition of border checks.
Q113 Chairman: Can I thank you all
very much indeed for giving evidence. I probably should not say
this on the record but I will. The idea of inviting you as colleagues
to come and give evidence to us was cooked up by your colleague
Den Dover and myself in the margins of a Lords and Commons cricket
game in north London in early September, but I have to say from
a personal point of view that I think it has been an extremely
useful session and it does seem to me—and you have said
very similar things—that we should perhaps look at occasional
opportunities for members of your committee and members of our
committee to meet together, perhaps on occasion for more informal
but substantive discussions on some of the policy issues that
come up.
Mr Kirkhope: Thank you very much
for the opportunity.
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