Examination of Witnesses (Questions 340-359)
JOAN RYAN
MP, MR PETER
STORR, MR
CHRISTOPHE PRINCE
AND MS
EMMA GIBBONS
20 FEBRUARY 2007
Q340 Chairman: Is this just sheer
bloody mindedness on the part of the Schengen-based members of
Frontex of refusing to exclude our ports and their ports, for
example, or our coastal waters from Frontex operations? You might
not want to put it like that.
Joan Ryan: The focus Frontex has
got in terms of where it locates its activities at the moment
is the right one. I am not convinced that we would be seeking
to take any action on our ports and on UK territory, so that is
not so much an issue for us at the moment, but we strongly dispute
the link to a Schengen-building measure.
Q341 Mr Clappison: I am heartened
to hear you say that you want to evaluate Frontex on the basis
of what it actually does and achieves and the outcomes you desire
rather than merely on the fact of it having established itself
as an organisation, which I think is the gist of what you said.
Can I ask you what specific policies the UK wants to see included
in the EU strategy on illegal migration which are not there already?
Joan Ryan: The approach we have
been taking in terms of illegal migration is very much that we
want to see a continuation of the practical co-operation and in
fact across much of what we are doing in justice and home affairs,
we have very much been pushing, we have enough legislation and
we want to see implementation, practical co-operation and evaluation.
In terms of illegal migration, it is a very live issue at the
Council, I think it is true to say, and obviously those countries
which are particularly under pressure on their borders, especially
in relation to the issues we have just been discussing in the
Mediterranean, they are very, very concerned about what will happen
as we move towards the summer influx period, so I think there
are two things really; we are looking for the improved and greater
practical co-operation, but there are also discussions around
what is called `circular migration' and partnership agreements.
It is quite early days, I think, in this discussion and there
is even some debate as to whether everybody has got exactly the
same understanding of what circular migration is, but I think
it is an important way forward for us to explore, although of
course we are developing the points-based system and that will
be coming on stream, so we are kind of feeding in information
about that at the moment as well.
Q342 Mr Clappison: Well, I note what
you say about co-operation. We visited Brussels and we took evidence
there from the Commission and, speaking for myself, I was struck
by some of the organisational ambitions which the Commission had
in this regard, particularly the expansion of legal competence
and changing the legal arrangements which are presently in place
for dealing with legal and illegal migration which you mentioned.
At the moment, there is a firm distinction between legal and illegal
migration—
Joan Ryan: Indeed.
Q343 Mr Clappison:— but, speaking
again for myself, I was concerned to hear, I think it was, Jonathan
Faull, who is Director General of Freedom, Security and Justice
at the Commission, try and make a linkage between the two so as
to justify a competence shift, bringing the two under the same
arrangements on the basis that legal migration and illegal migration
were linked. Do you share his view that they are linked or do
you think that the two of them should be kept separate? He put
to us the view that legal migration could be used to address illegal
migration as a way of incentivisation.
Joan Ryan: I think he makes a
point that we should discuss and explore, but I have no inclination,
and I do not think the Government has, to move legal migration
from one pillar to another or vice versa, though that is even
less likely, is it not? I think that they sit in their appropriate
places. We have of course the ability to opt into illegal migration
measures and we make our own policy on legal migration, and I
think it is worth having the discussion around issues like partnership
agreements and circular migration and what beneficial arrangements
we can arrive at there, but, as I say, that is about practical
co-operation as opposed to changing the structures, constitutions
and legal base within which we work.
Mr Prince: There have been a number
of Member States who argue that there are clear linkages between
illegal and legal migration and some Member States have sought
to use those trade-offs with countries in order to manage migration
into their countries. That is an issue that is a live debate in
the Council at the moment as part of the global approach.
Q344 Mr Clappison: Where do we stand
on that?
Mr Prince: It is not something
that we ourselves have done to date and it is something we will
continue to look at.
Q345 Mr Benyon: The Government's
position is that we cannot have access to the Article 96 elements
of Schengen unless we opt into the Treaty completely in terms
of its borders and immigration policy. Have you tested this because
we opt into other elements of Schengen relatively happily without
signing up to the agreement? ACPO have told us that they want
to have access to the data provisions in Article 96 and you have
said you cannot do that because it would require us to sign up
to it. Have you tested this out to the ultimate extreme?
Joan Ryan: There are certain aspects
of that information that we would like to have access to and we
are pressing our case at the Council, with the Commission and
with the Council for Legal Services. We accept that we are not
going to, as I say, become a Schengen state, we are not going
to drop our borders, we are not going to participate in it and,
therefore, although we can access law enforcement information,
immigration information is part of what we call `Schengen integral
measures'. I think the one area where we might have concerns,
and I am sure Christophe will listen carefully to what I am saying
here, is for those third-country nationals who have been refused
entry into Schengen states so that immigration information is
in that database and refused perhaps on the grounds of threat
or risk that they pose, that we consider to be law enforcement
information and we think we should be able to share that information.
Q346 Mr Benyon: You say you are pressing
them, but this is really important because ACPO gave us evidence
and said that they did not feel able to protect the public because
they did not have access to the Article 96 data. What I want to
know for the purposes of our inquiry is whether the Government's
lawyers have looked at this as closely as it is possible to be
looked at to see whether we should have access to that data without,
as the Government states, being required to implement the full
immigration and borders aspects of the Schengen Agreement.
Joan Ryan: We do have information,
as you say, to part of the Schengen information system, we do
have access to that, to five different types of alerts that law
enforcement officers can access. For the majority of the information
in terms of immigration, it is appropriate that we do not have
access because some of that is to do with Schengen building and
we have our own borders and we would have to drop our borders
to have access, so we accept some of that ruling on the basis
that we opt out and do not opt in and we make a deliberate choice
there. However, where there is information that impacts upon law
enforcement issues, then we should have access to that and yes,
we are pressing the point very hard. I have a number of bilateral
meetings on a very regular basis and it is rare that I would not
raise these issues, and we press through obviously our officials
as well as through political channels to ensure that we keep making
our case, that we think we should have this access. I do not know
if Mr Prince wants to add anything to that.
Mr Prince: I have very little
to add to that other than, as the Minister has stated, because
we do not participate in those border elements of Schengen, the
decision was taken not to apply to the data which was related
to the border part of Article 96, but, as the Minister has said,
there are certain elements of that data which relate to national
security exclusions or law enforcement grounds for refusal of
entry which, we have argued, would be of benefit for us to share
with EU partners and for them to share likewise. The question
of whether we should be able to share data on refusal of entry
on immigration grounds is one that arises in the margins, but
it is not one which we have been pressing at this stage.
Joan Ryan: We do not have a lot
of support for our argument, I have to say.
Q347 Mr Benyon: It leads on to the
whole question of our relationship with other countries in this
respect. In Brussels in December, I got the very distinct impression
that there was a degree of exasperation in the Commission and
amongst some Member States and some parliamentarians there that
the UK's `pick-and-mix' attitude towards Schengen and other issues
is becoming, and I use the word, frustrated, but I happen to think
that it is absolutely right and I think the Government is to be
applauded for this approach, but do you think, in the context
of Schengen and other agreements, that this is a tenable position
and that the Government and future governments can continue this
approach? The Chairman has used the attitude to Frontex, the bloody-minded
approach of some other countries in preventing Britain from benefiting
from certain aspects of Frontex. How do you sense the feel with
your fellow ministers when you go to the Justice and Home Affairs
Council?
Joan Ryan: Well, I think we have
very good relationships in actual fact. Certainly when other Member
States talk to me about our Presidency, they are very, very positive
about the way we conducted that Presidency and the gains which
were acquired from it. I do think there undoubtedly are times
when they would prefer that we signed up to everything that any
particular country wanted just like, as I have said to you today,
we would prefer it if Poland signed up to the Prisoner Transfer
Agreement when that point comes without the five-year derogation.
We would prefer that, but Poland has made very clear its issue
about needing to upgrade its prisons and these kinds of issues,
and we have to ultimately accept that and go forward and make
progress. I suppose you could look at the European evidence warrant
and Germany having the six types of crime out of the list of 32
on which they will still insist on dual criminality. You could
look across the board at any number of the major and minor players
and see that for all of them, including ourselves, there are individual
circumstances, individual legal systems and individual policies
and politics that mean that we cannot, and will not, sign up to
everything across the board. I think that is just part of the
nature of the agreement we have in the European Union across the
27 countries. I think we have to have the approach that we will
work together for the good of our citizens and the good of the
European Union as co-operatively as we can on all issues, but
there will be issues where we do not feel certain measures actually
enhance arrangements that we have, so we do not always opt into
all the issues around, for instance, dealing with third countries
in terms of illegal migration issues around agreements around
returns or readmissions if we feel we have got a better agreement.
I just think that is part of the normal working with the European
Union, it is part of what happens when you go to the Council,
it is part of what happens between officials and experts and,
if we want the European Union to remain in the balance that it
is in in relation to its member and nation states, then that is
part and parcel of the relationship.
Q348 Chairman: Minister, nobody on
this Committee, I think, would argue that we should not share
data internationally in the fight against terrorism, but there
have been two major developments in the last few years where vast
quantities of personal data of EU and UK citizens have been made
available to the United States of America without any solid data
protection arrangements in place. The first was when the EU wrongly
negotiated, in legal terms, the Passenger Name Record Agreement
with the United States of America and the second is the SWIFT
case where the banking information was shared with the USA and
where, as far as I know, the EU was powerless to stop personal
data of UK citizens being handed over to the American authorities.
What can we do, firstly, not to stop information being shared
if it is relevant in fighting terrorism, but either at a UK level
to protect our own citizens against their data being shared in
an unjustified way or, secondly, at an EU level to make sure that
EU systems are much more robust and careful about data-sharing
than was the case with the passenger name records and more effective
than the case with the banking data?
Joan Ryan: I think there are a
number of things. First of all, it comes into the very drive that
we push about evaluating and having good evaluation and how that
will feed into future plans, and I think future plans are very
important in terms of what I have said about looking ahead to
the agenda after Hague and the working group and feeding into
that because I think these issues are going to become more, not
less, important. I think the data protection framework decision,
of which the German Presidency is working on a redraft at the
moment, the third pillar issues, that is very important and we
need that to come forward in the same way we have the Directive
for the first pillar issues. Of course every policy that comes
forward has within it its own data protection procedures, agreements
or whatever, but I think that signals the importance of having
the framework decision, so we can, as policies develop, horizontally
apply data protection rather than having to negotiate it in each
single, individual way forward, and I think it would be much stronger
to have the framework decision in place. You raised two examples
there and with the passenger name records, of course the issue
there is that they were using the wrong legal base and the European
Court of Justice ruled that the agreement had been made on the
wrong legal base, so a new, albeit temporary, arrangement was
put in place, so a different legal base, and that will expire
at the end of July 2007 and a new legal base is now being agreed,
so I think that is a very important point. I think that is an
area that the European Union should hopefully be able to avoid,
but the exchange of passenger name records is very important and
we too are developing that ourselves and it will be integral to
developing e.Board, and Project Semaphore at the moment is the
same as exchanging passenger name records in advance of a flight
arriving at its destination and we do have proper results from
that which we could make available.
Q349 Chairman: Would you not agree
that the history of these two cases, on the one hand, shows perhaps
a level of casualness by the EU as an institution in the way in
which it negotiated over the sharing of personal data with the
United States of America which surprised quite a lot of EU citizens
and, secondly, with the banking data it indicated a level of ineffectiveness
by the EU in that a Belgian-based organisation could provide masses
of information to the USA on the back of a subpoena without even
needing to tell anybody in the European Union or the Member States
that this was happening? Neither can be an acceptable situation.
Joan Ryan: I do not know that
I would call it `casualness', Chairman, but I think it does flag
up issues that need to be addressed and I think it is important
that they are addressed. In this country with, for instance, the
Data Protection Act, we have a very high standard of protection
for our citizens and I think that they should be able to expect
that we maintain that standard with their data across the European
Union.
Q350 Chairman: So getting a powerful
EU framework in place—
Joan Ryan: I think it is important.
Q351 Chairman: —is essential
to blocking either private sector organisations or EU organisations
sharing information with a country that is not able to match our
standards of data protection or is not willing to enter into an
agreement to do so?
Joan Ryan: I think it is crucial
in ensuring that the data that is exchanged is properly used and
that the people to whom that data relates can be confident that
they are protected.
Q352 Mr Winnick: The European Parliament,
Minister, passed a resolution last week opposing the facilities
available, air flight facilities, of Member States whereby the
United States are able to transport prisoners or terror suspects
from one country to another. What is the UK's position on that?
Joan Ryan: I am not really in
a position to comment on that at the moment, but I will certainly
endeavour to come back to the hon. gentleman on that matter.
Q353 Mr Winnick: Minister, you say
you will come back and we would appreciate, as I am sure the Chairman
would agree, any additional comments you want to make to follow
that up, but do you have discussions in your role with your counterparts
in Europe over the concerns, certainly the concerns which exist
in this country, over facilities being available to the United
States in the way that I have described?
Joan Ryan: They are not discussions
that I have had in my role at the European Union, although I should
imagine others have had those discussions, but they do not come
into my particular role.
Q354 Mr Winnick: Has it been the
subject of discussion between your colleagues in the Foreign Office
and their counterparts? You say you yourself have not been involved.
Joan Ryan: That is why I would
need to come back to the hon gentleman on exactly what details
are available there and what discussions have taken place. I am
afraid I am not able to answer that.
Chairman: Thank you, Minister, that would
be helpful if you could do that. [1]
Q355 Mr Winnick: Could we have that within
the next week?
Joan Ryan: I will do my very best.
I do not think the answer will be coming from me, so I am loth
to commit others to a timetable I have not consulted them on.
Mr Winnick: We would not like a three-month
delay!
Q356 Chairman: Obviously as soon
as this session is over, which is the last one, we are beginning
to draft our report, so any of the promised information today
will be welcome sooner rather than later.
Joan Ryan: Absolutely, and I will
do my very best.
Q357 Chairman: Could we move on now
into the final section of questioning which is about the institutional
processes in the EU and how we take co-operation in the EU further
forward. The Government has pursued for a number of years now
the approach of saying, "Let's have practical co-operation
measures backed by mutual recognition of our different legal justice
systems and so on". We have obviously had some witnesses
who have supported that and some who have argued that that has
now gone as far as it can. Is it the Government's position that
practical co-operation and mutual recognition are still the sound
basis for the great majority of European Union co-operation in
this area beyond the Hague Programme, perhaps for the next five-year
programme and beyond that?
Joan Ryan: When we look at what
has been achieved through practical co-operation, I think we are
very encouraged and, if we look at some of the things that have
been achieved, the European arrest warrant, the open evidence
warrant, the counter-terrorism strategy and obviously there are
many others, I think what we would say is that, for instance,
on these issues within the third pillar, unanimity is not actually
a bar or it is not necessarily a bar to getting good policies
agreed, but we have a whole range of good policies, many of which
still need further co-operation and implementation. Yes, I think
looking ahead, although, other than agreeing this working group
approach, there has been no discussion yet about the agenda 2010,
but I think that is going to be very important and undoubtedly
these matters you refer to will figure there, but I think that
is why the things your Committee is asking for as well in terms
of evidence and evaluation, they are going to be part of the basis
on which we decide what the way forward will be for what will
be the key elements of a 2010 agenda.
Q358 Chairman: Can I put though to
you the different version of that history which, for example,
was put to us by the Commission when we were in Brussels. They
said that yes, you sort of get there in the end. We have got the
European arrest warrant and it has been patchily implemented and
we only got that frankly because of 9/11 and the sort of need
to do something, the European arrest warrant has been a very painful,
watered-down process and we have not got there on data protection,
we have had a long wrangle about the Poles objecting to the prisoner
returns, and there are issues that have come up this morning.
Not just the Commission, but a number of witnesses have said to
us, "Look, the problem is that decision-making is just becoming
more and more difficult within the EU and we have to find a better
way forward, otherwise we can't deliver it through practical co-operation
and unanimity in decision-making". There is a case, is there
not, that, as the EU gets bigger, it just becomes harder, harder
and harder to deliver agreement where you require unanimity to
make things happen?
Joan Ryan: Well, I think it is
always the right thing to do and I think we were right in our
approach to Article 42, the passerelle, we were right to say that
we will have the discussion because the discussion is about how
we get better-quality and quicker decision-making. Some of the
issues we have discussed this morning, like counter-terrorism
measures, like strategies around illegal migration and like organised
crime, those areas are not going to hang about, so to speak, nor
can we afford to, so it is always important to have that debate.
All we were saying around that discussion was that we did not
see that unanimity had to be a bar to achieving good policies
and practical co-operation. I still do not see that that is the
case and I still think it is possible to have areas agreed through
unanimity and some of the areas we are talking about are very
crucial areas and have a very distinct national interest in them
and I do not think we can have a way forward that would ride on
some of these issues that does not have buy-in from all 27. If
you go to QMV for some of these issues, qualified majority voting,
and some countries feel that they are being ridden roughshod over,
I think that would be very damaging to the European Union, so
I think it is a very difficult debate to have, but within the
European Justice and Home Affairs Council, for instance, we have
lots of bilateral meetings, we have the G6, for instance, where,
with the other five major EU countries, we meet and discuss common
agendas, we have the common law club and we have lots of organisations
within—
Q359 Chairman: We will come back
perhaps to the fragmentation of decision-making, Minister, in
just a moment, but perhaps I can put one other question to you.
Not so long ago the current Government in this country was advocating
the Constitutional Treaty as the way forward for the European
Union in which of course was built in qualified majority voting
in all of these areas.
Joan Ryan: Yes.
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