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Lord Lester of Herne Hill: My Lords, the Select Committee deserves our gratitude for having produced such a cogent and compelling report. It raises a number of important issues which merit careful consideration. They have been fairly and carefully considered in this concise and well focused debate. There seems to be a wide consensus of view, to which I shall add in my remarks.
The noble and learned Lord, Lord Slynn of Hadley, observed at the outset that this is the first time that the Select Committee has examined a proposal for an international convention under negotiation within the justice and home affairs pillar of the European Union. Previous negotiations regarding external frontiers took place in secret. By contrast, these proposals of the Commission are open to scrutiny by national parliaments and anyone else who is interested. I am sure
The problem of secrecy, to which the noble Lord, Lord Dubs, referred, is surely important. But it is not the fault of the Brussels Commission. It is the responsibility of governments. I am slightly torn on this issue. Much as I press for greater parliamentary scrutiny of the treaty-making power of government, I am reminded that it was Senator Bricker of the United States, whose notorious amendment has led to an extremely insular and reactionary approach in which Congress frequently overscrutinises what the Executive branch does in that area, in a way that liberals like myself deplore. Having said that, I am undoubtedly on the side of those who wish for effective parliamentary scrutiny.
There are obviously many hurdles to clear before either of the measures under discussion comes into force. But the Select Committee's report makes a real and significant contribution to the development of Community policy in an area which affects the basic rights and freedoms of third country nationals seeking to enter the European Union.
The closer integration of Europe will inevitably lead to much greater movement across borders and it will become necessary to have co-ordinated control of the external borders of the member states, as the noble Baroness, Lady Park, emphasised. The Maastricht Treaty created new opportunities for making progress in this area but it is important to ensure that progress is made in the right direction, with adequate safeguards against the misuse of necessary powers exercised by the public authorities of the member states.
Like the noble and learned Lord, Lord Slynn, I want quickly to refer to four of the important issues raised in the report and in this debate: the proposals for a joint list of undesirable immigrants; carriers' liability; the jurisdiction of the European Court of Justice in this area; and the negative list. I shall not comment on the individual case mentioned by the noble Lord, Lord Rennell, about the issuing of student visas in Moscow for Uzbek applicants.
Let me speak first about the joint list. As the noble and learned Lord, Lord Archer of Sandwell, pointed out, the proposed joint list is an amalgam of 12 national lists of undesirable immigrants seeking entry from third states. An individual who has the great misfortune to be on the joint list will be excluded from all 12 member states. A placing on the list is to be based on a decision taken purely in accordance with the national laws of the member states, in accordance with a curious use of the principle of subsidiarity.
The committee expressed concerns about the proposal for a joint list, concerns which I, like the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Dubs, entirely share. Some of the grounds set out in Article 10 for a national decision to place a
To relieve the possibility of error and serious injustice there must be effective safeguards and affordable remedies for those excluded because their names wrongly appear on the joint list. As suggested by the committee, some protection may be provided by the draft convention on the European information system. But that does not amount to sufficient protection. Under the draft convention, the individual's right of access to personal data held on the European information system is to be exercised in accordance with the law of the member state before which the individual invokes that right. For example, at present the protection of personal privacy in the United Kingdom is mainly contained in the Data Protection Act 1984.
The 1984 Act provides a legal framework for the processing of personal data. But the Act is concerned only with computerised or computer-usable information. It gives no right of access to paper files contained in manual systems. Therefore, any paper records relating to a placing on the joint list will be inaccessible and the denial of such information will severely hamper any appeal which may be made against the decision, if any appeal were allowed. As the noble Lord, Lord Dubs, pointed out, the judicial and other remedies in this country are otherwise extremely limited.
I agree with the committee that there is a need for a separate resolution or amendment to the European information system convention to ensure that member states have in place effective data protection mechanisms which will enable individuals placed on the joint list to access all data relevant to the decision to place them on the list, whether computerised or otherwise. In particular, the committee recommendsand I agreethat the individual refused entry in consequence of inclusion on the joint list should be told which member state placed him on the list and the nature of any allegation said to justify exclusion. The convention should include the requirement of appeals at national level against the decision to place a person on the joint list. Such appeals should take place as quickly as possible. It goes without saying that the list should be regularly updated to remove names no longer relevant or which were placed on the list in error.
I turn briefly to carriers' liability. The imposition of "appropriate penalties" on carriers, as the noble Lord, Lord Dubs, emphasised, is capable of interfering with the ability of asylum seekers to escape from countries where they had a fear of persecution. It would be a grave mistake if carriers were to refuse to carry asylum seekers for fear of penalty under the national legislation. I agree with the committee's recommendation that Article 14 of the draft convention should be modified to conform with Annex 9 to the Chicago Convention and permit the imposition of fines on carriers only where a carrier is negligent. There is also a need for legislation to make clear to carriers their overriding duty not to frustrate the right to seek asylum.
In an effort to avoid penalty, airlines will undoubtedly tighten their procedures. Decisions on immigration control will be delegated to airline staff who are obviously not qualified to take into account the human rights obligations of the member states, both under the Geneva Convention relating to the status of refugees (and protocol) and under the European Convention on Human Rights. As the committee recommends, it would be beneficial if immigration officers and airline staff received instruction so as to ensure full compliance with the UK's obligations under the European convention and the refugee convention, even though, as the noble Lord, Lord Dubs, explained, the safeguards provided by those conventions in that area are only of limited value.
I turn to the jurisdiction of the European Court of Justice. Again, I agree with the committee which supports the European Commission's proposal to confer on the European Court of Justice jurisdiction to give preliminary rulings concerning the interpretation of the convention and jurisdiction in disputes concerning the implementation of the convention. In my view it involves no violation of pure jurisprudential doctrine that that should be done, even though, as we heard, the convention is an international treaty.
As the committee rightly stated, the European court would ensure broad uniformity of standards of control and help to give effect to obligations under the European Convention on Human Rights. There would be great benefit in drawing upon the experience of the European court and its power to interpret and apply general principles of law, not yet fully recognised by the courts of this country, such as the principle of proportionality, so as to ensure, for example, that the penalties required by the external frontiers convention are not disproportionate and do not vary dramatically between member states and so distort control of the external frontiers.
Finally, I come to the negative list. It is a list of countries whose nationals would require visas to enter the territory of the member states. It would impose a visa requirement on a further 45 countries in addition to those the UK requires at present. The noble Baroness, Lady Park of Monmouth, gave powerful reinforcement to the committee's conclusion that the list is inordinately long and would be damaging to the interests of the UK and its visitors. The list should be shortened to remove a number of Commonwealth countries and the 12 member states should seek to formulate coherent criteria common to all.
The Refugee Council was right to point out in the Select Committee hearings that most people fleeing from persecution find it almost impossible to obtain a visa. By imposing the visa requirement so widely, the European Union would be shutting out potential asylum seekers from a large number of countries.
It gives me great pleasure to support the Motion of the noble and learned Lord, Lord Slynn of Hadley, to take note of this admirable report. It is a particular personal pleasure because I have long sat at the noble and learned Lord's feet. When I was an undergraduate at Cambridge I learnt the history of the law of assumpsit from him sitting, as I recall, with Sir Leon Brittan on the end of Queen Victoria's bed in the judges' lodgings
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