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Baroness Williams of Crosby: I am grateful to the noble Lord. I simply wish to clarify that when I use the phrase "sucked in" I mean sucked in essentially by the circumstances of organised crime and the movement of immigrants and refugees, not by some conspiracy.

Lord Moynihan: I had hoped that we had moved on from a clear explanation of the hole-in-the-corner affair to look at areas of the Schengen acquis where the noble

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Baroness's point is well made. I refer not only to the potential for being sucked in in the future. Already, in Foreign Office memoranda, there are clearly stated areas where today it might be in the interests of the Government to pursue closer involvement with Schengen, not least, as the areas that the noble Baroness mentioned, in the fight against crime and drugs.

It may well be that the Foreign Secretary has secured the declaration of the whole Council which sets out that admission to the Schengen acquis would be on the basis of an opinion of the Commission. I wish to know from the Minister whether the declaration is legally binding in the same way as an amendment to the treaty.

I say that it is not the view of the Foreign Office that the opt-in is a technical point. It clearly is not. Nor is it the view of the Labour MP for Thurrock who has said that future UK governments may wish to opt in, that Article 4 substantially disadvantages Gibraltar for the future and that it puts a powerful tool at the disposal of the Spanish foreign ministry. He too wanted an explanation and he, too, as another Labour Member of Parliament, agreed that the episode illustrated how not to conduct negotiations.

But even if this lapse does not have serious consequences--and we on these Benches very much hope that it does not--it does not lessen the fact that the Foreign Secretary's negotiation being negligent the matter should be brought before this Committee and answers sought from Ministers. Without clarification one is left with lingering doubts about the Government's competence in negotiation, their ability to protect and enhance British interests in all future negotiations, and, frankly, a suspicion of gross dereliction of duty.

Was this what the Foreign Secretary had in mind when he spoke of Britain's "transformed" relations with our European partners? I sincerely hope that the episode is not an example of Britain being respected as a constructive partner with which the other countries of Europe can do business; that it is not an example of the Government getting a better deal for Britain as a result of their new co-operative approach. I hope it is not an example of how the Government intend to make Britain's voice heard in Europe. Rather, it makes a mockery of the Government's claims that their approach to negotiating in Europe is successful.

I have gone into the incident in some detail. I do so not just to highlight incompetence in negotiation. I do so first and foremost because every member of Gibraltar's government, everyone within Gibraltar, and many people in both Houses are very concerned about the implications of this late-night slip-up, whichever of the four different interpretations one may care to believe. Maybe we shall have a fifth tonight; I hope not. I hope we shall have clarification of exactly what happened. The people of Gibraltar should know. That is why I believe that it is important that the Committee has the opportunity to consider Amendment No. 45.

Lord McIntosh of Haringey: It may be helpful if, first, we are clear in our minds which amendments we are talking about. The amendment moved was Amendment No. 14 which would exempt the whole of

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Title IIIa, new Title IV, from the treaty. We follow with Amendment No. 15, which is concerned with Article 73j on border checks and visas; Amendment No. 16, concerned with Article 73k on asylum, refugees and immigration policy; Amendment No. 17, concerned with Article 73m on judicial co-operation in civil matters having cross-border implications; and Amendment No. 18, concerned with Article 73o, which, in turn, is concerned with the decision-making process and the review, which is referred to in the treaty, of the unanimity requirement.

Amendment No. 51 deals with Protocols 2 and 4 which in turn deal with the integration of the Schengen acquis and the UK and Ireland position in Protocol 4. Finally, Amendment No. 45, which has understandably taken up a good deal of time, is particularly concerned with Gibraltar.

Let me acknowledge right from the beginning that the free movement, Title IIIa, and the relationship which the United Kingdom and Ireland will have with the title is probably the most complicated part of the treaty. I say that with due deference to my noble friend Lord Whitty who understands complications which I do not even start to comprehend.

It was a basic negotiating objective for the United Kingdom that a way be found at Amsterdam to give the United Kingdom an explicit assurance of its right to keep internal frontier controls and to retain national control of the sensitive area of immigration and asylum. Equally, however, a way had to be found to accommodate the majority who wanted to use the EU treaties to create an area of passport-free travel within the EU in which policies on immigration, asylum and other related matters would be closely harmonised. The result was an elaborate system of overlapping text, including the various articles under Title IIIa, the two protocols to which I referred and declarations (in particular Declaration 45 which is concerned with Gibraltar), plus a range of opt-in and flexibility provisions. On top of that, we have the text of the Schengen acquis itself and the various decisions which have been taken subsequent to the adoption of the Schengen acquis.

Let me set out briefly what the implications of this package will be to this country. Under the treaty our legal right to maintain frontier controls is explicitly enshrined in EC law. It is important to say that because this is the first time it has happened. That alone is a substantial achievement for the United Kingdom and, judging from the speeches which have been made, one which is welcome in this Chamber. A protocol to the treaty integrates the Schengen agreements and existing Schengen measures--the subsequent documents to which I referred--into the framework of the European Union and sets out procedures for future UK and Irish participation in Schengen measures to the extent that our two countries wish to be involved.

In relation to the free movement, Title IIIa, we will not be bound by any measure adopted under it except where we so choose. However, arrangements are set out in Protocol 4 by which the United Kingdom and Ireland can participate in measures adopted under this title. That

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means that we will be able to decide whether we want to take part in individual measures adopted under the title. That is quite different from the situation before, where we only had the choice of being wholly in or wholly out of these arrangements. Our main consideration will be whether participation would make us better able to implement UK immigration and asylum policies and safeguard harmonious race relations. Where civil judicial co-operation is concerned, we will similarly want to take a pragmatic decision on participation which will depend on the nature of the measure.

I return to the incorporation into the EU framework of the measures agreed among themselves by the Schengen member states. The arrangements I described are rather different where a measure forms part of the Schengen acquis; in other words, where a measure is part of that package of measures agreed unanimously among the Schengen states in the context of the Schengen agreement--a treaty aimed at the removal of frontier controls between its party states and to which we are not a party and (I emphasise this) have no intention of becoming a party.

Even in that area we have the right, under Amsterdam, to participate in individual measures should we wish to do so and should the others agree. Where the UK and Ireland wanted to take part in a Schengen measure, the Commission would be asked to deliver an opinion. In practice, we have no intention of signing up to the Schengen acquis in full. That would be inconsistent with our determination to maintain frontier controls. Many of the existing Schengen measures are aimed at creating a system able to dispense with internal frontier controls and are therefore unlikely to be of operational value to the United Kingdom. I need only to point to the well-known differences of geography--the absence of land frontiers.

However, we may want to take part in some of those measures; for example, in so far as they relate to drugs or crime. We know that our partners are keen for the United Kingdom to play a full role in helping to keep Europe safe for our citizens. They have all signed up to a declaration making clear that they will use their best efforts to enable us to do so where we wish. That is Declaration 45, to which I have already referred. Where a new measure is being developed which builds on the Schengen acquis, the United Kingdom and Ireland may participate as of right, whether the measure is being developed under the new free movement Title IIIa or the revised third pillar. The agreement of the others is not required in that regard.

Clearly, I shall come on in some detail to the issue of Gibraltar, to which the noble Lord, Lord Moynihan, referred. However, before I set out the Government's position on that, perhaps I might deal with the individual points made by Members of the Committee in the debate.

My noble friend Lord Stoddart asked how European Union citizens could be kept out of the United Kingdom. As he is well aware, it is not just European Union citizens; it is the citizens of the European free trade area, an organisation to which I know he attaches credit.

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European Union and EFTA citizens already have a right to enter the United Kingdom; that is fundamental to the principle of free movement. We have a right to ensure that someone who claims to be an EU citizen possesses documentation that proves that to be the case. In direct answer to my noble friend, therefore, if there is any doubt about a person's citizenship, officials can examine documentation and exercise powers to search belongings and so forth. I can assure my noble friend that that situation is not changed by anything in the Amsterdam Treaty.

My noble friend went on to ask whether legislation would be needed if the United Kingdom wanted to join the Schengen acquis. If we wanted to joint the Schengen acquis in total and we wanted to participate solely in the zone of free movement by changing the EC treaty-- I have already made it clear that that is not our intention--for example, by removing the United Kingdom borders opt-out, Parliament would need to be consulted because a Bill would be required. Therefore, there would be full parliamentary scrutiny. If we wanted to opt in only to a limited part of the Schengen acquis--for example, matters relating to police co-operation--the normal parliamentary arrangements for European Union measures would apply. In other words, it would be available, after sifting, for scrutiny by our own European Communities Committee and there would be opportunities for debate, which I and my noble friends on the Front Bench have already explained to the Committee. The Home Secretary has given an assurance to a committee in the other place that if the United Kingdom wants to participate in aspects of the Schengen acquis, that will be subject to parliamentary scrutiny. However, the need for legislation would depend on whether existing United Kingdom law required amendment in order to implement the measures in question.

The noble Baroness, Lady Williams, asked me about the three-month period which is referred to on a number of occasions in Title IIIa. The three-month period is the period for the short-term visa for which there is to be, and is and will be, a uniform Schengen visa. Longer visits or settlement--this would include visits to this country for lengthy periods of study--are not covered by Schengen. Visas for such purposes are a matter for individual states and will remain a matter for individual states. The fact that we are opting out of Schengen in any case means that we do not have to operate the Schengen short-term visa unless we choose to do so.

The noble Baronesses, Lady Williams and Lady Park, asked whether we will work with our partners to give preference to Commonwealth citizens. We will need to consider how far we want to co-operate with our partners in visa arrangements. As the noble Baroness, Lady Williams, will know, visa co-operation, even under Maastricht, is a matter for qualified majority voting. We already have agreement with our partners on the European Union common visa list, which sets out certain countries for which all European Union member states must have a visa regime. That seems sensible. Clearly, under QMV it will be difficult to guarantee special arrangements relating to Commonwealth

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citizens. Although we are part of the EU common visa list, what Amsterdam provides is a choice as to whether we take part in any future arrangements. We are not bound by the Schengen visa list, which is more extensive than the EU common visa list.

I turn now to the issue of asylum, which was referred to particularly by my noble friend Lord Stoddart and the noble Baroness, Lady Williams of Crosby. The UK does and will retain its right to deal with asylum applications under the 1951 Geneva UN Convention on Refugees. Even the most recent asylum and immigration legislation of the previous Conservative Government started off with a declaration that anything that was done would be in accordance with the 1951 convention. The noble Baroness asked me about the Dublin convention, which relates to the member state in which an asylum application should be made. As she will know, the Dublin convention only came into force with the last signatories in December of last year. The arrangements under the Dublin convention will remain in force under the Amsterdam Treaty. If the Schengen members decide, once Amsterdam is in force, to agree further measures dealing with asylum, the UK will have the option of joining in, or not, as it chooses, but if we do not opt in we will not be bound by any such measures and our existing rights of asylum will not be changed.

In taking asylum generally, we co-operate with our partners on some aspects of asylum policy, but always in the context of our obligations under the 1951 convention. It is that convention which is the foundation of our national asylum policy. The fact that there have been difficulties with people coming over in the past few months is evidenced by the fact that the Dublin convention came into force only in December of last year and, clearly, it still needs time to settle down. But I am confident that it will be possible to do that.

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