PART 5 CONCLUSIONS AND RECOMMENDATIONS
170. The Committee
welcomes the Government's commitment to openness and transparency
in the Third Pillar and commends the progress that has been made
at and since Amsterdam.
171. We note the
Minister's statement that there are "issues of principle"
which determine whether an issue should be dealt with in the First
or Third Pillar. We would welcome clarification as to what these
"issues of principle" are. The choice of First or Third
Pillar will, no doubt, affect future United Kingdom decisions
on opting in or opting out.
172. We are concerned
to ensure that the UK opt-out from Title IV of the EC Treaty does
not undermine the principle of legal certainty in relation to
asylum and immigration policy. This principle is of paramount
importance in areas affecting fundamental rights and freedoms
of individuals. We urge the Government to clarify how UK policy
on asylum and immigration will develop outside the new framework
established by the Amsterdam Treaty.
173. The Committee
agree with the Minister on the need for the Government to develop
a coherent approach to opting in. We are concerned that, by virtue
of our opt-out, the United Kingdom may be unable to influence
and shape future European policy in such critical areas as asylum
and immigration, and may find itself having to adopt in due course
rules agreed by others.
174. The Committee
would welcome clarification of the grounds justifying the insistence
of all EU Member States that new members of the Union should,
unlike the United Kingdom and Ireland, apply a Schengen border
control regime, irrespective of their particular geographical
situation or their links with ethnic minorities in non-EU countries.
175. In the Committee's
view, what is clear is that incorporation of the Schengen acquis
will significantly increase the scope for EU co-operation (with
or without the United Kingdom) on such matters as visa and border
policies, asylum and immigration, policing, and the exchange of
data. All these will impinge directly on the rights of individuals.
176. The Committee
commends the Government for their efforts in providing Parliament
with Schengen documents, and welcomes the opportunity to offer
preliminary comments on the draft Decisions. We regret, however,
the paucity of information accompanying the draft Decisions. In
particular, we are astonished that national ratification of the
Amsterdam Treaty will have been completed in most, if not all,
Member States before a definitive list of the Schengen acquis
has been established and made available to national Parliaments
in their own languages.[102]
177. The Committee
considers the presentation of the draft Decisions and accompanying
Explanatory Memorandum inadequate. Columns of numbers listed without
descriptions or explanations are as unhelpful a way of providing
information as we can think of. In order to make any sense of
the draft Decisions as presented to Parliament it is necessary
to have open the Decisions themselves, the EC Treaty, the Treaty
on European Union, the Schengen Protocol and the Schengen Convention.
One way to help to close the democratic deficit is to provide
comprehensible information to Parliament, and the public. We encourage
the Government to follow up their commitment to provide information
by ensuring that that information is presented in a meaningful
and useful form. We strongly urge the Government to produce a
more accessible document which breaks down the elements of the
acquis and sets out in clear terms what, in their view,
incorporation into the EC Treaty or Treaty on European Union will
mean for future Government policy on such issues as asylum, immigration,
data protection and cross-border police co-operation.
178. We commend
the Government for undertaking to involve the European Parliament
but we do not consider that the European Parliament can be kept
adequately informed if it has not been sent the relevant documentation.
179. The Committee
draws attention again to the fact that national procedures for
approving the Amsterdam Treaty incorporating the acquis
will have been completed in many if not all EU countries before
a definitive list of the provisions of the acquis has been
made available. The Committee is concerned at Governments signing,
and bringing into force, a set of arrangements to incorporate
the acquis without first being clear what that acquis
comprises.
180. The Committee
considers that there is an urgent need for clarification and consolidation
of the acquis now, before it is brought within the European
Union framework. The onus must, in this respect, rest on the Council
which has the responsibility under the Schengen Protocol for agreeing
what constitutes the acquis and how it is to be allocated
to legal bases in the EU Treaties. As the European Parliament
has no formal role in the process of incorporation, we do not
see how it could undertake this task. It is by no means clear
to the Committee that Governments (let alone Parliaments
or European citizens) understand the implications of the incorporation
of the acquis. We have attempted to explain some of the
implications here; but the need for clear, simple explanation
by the Council is both urgent and acute.
181. The Committee
regrets that the acquis will be formally published in the
Official Journal only after it has been incorporated and taken
effect within the framework of the EU Treaties. This is contrary
to the usual practice of publishing binding legal instruments
before they enter into force. We believe that the spirit, if not
the letter, of the rules agreed at Amsterdam on publication in
the Official Journal should apply to the existing as well as future
acquis.
182. Legal certainty
should be the guiding principle for incorporation of the Schengen
acquis. The process of incorporation should be transparent
and the laws resulting from it should be accessible to citizens.
We are concerned that the grounds on which Schengen States may
classify documents as confidential go beyond the narrow exception
we have suggested (see paragraph 117). We believe that the basis
for non-disclosure of classified Schengen documents which concern
matters within Community competence should be clarified before
agreeing to their incorporation. There should, at least, be a
summary of the confidential documents sufficient to identify their
subject matter and to ensure that the correct allocation of legal
base is made.
183. The Committee
believes that the allocation of a legal base to the constituent
parts of the acquis and the grounds for any exclusions
must be transparent and fully reasoned. The Committee is not satisfied
that a proper evaluation of the allocation can be made on the
basis of the information contained in the two draft Decisions.
184. The failure
to incorporate Article 28 of the Schengen Convention which reaffirms
Member States' obligations under international laws for the protection
of refugees is of particular concern to the Committee. We consider
such protection to be an essential element in an area of freedom,
security and justice. We believe that Article 135 of the Convention
should be allocated to a legal base in the EC Treaty. A Declaration
does not have the same force as a legally binding Treaty Article.
185. The Schengen
Protocol clearly expresses Member States' desire to incorporate
the Schengen acquis into the EU framework. The Committee
believes that the process of incorporation must ensure that individuals
and Member States are able to identify the source of their rights
and obligations. There is a risk both that the integrity of the
acquis itself and legal certainty will be undermined if
some of its provisions apply independently of the EU Treaties.
186. The Committee
considers it to be essential that a clear route is marked for
individuals seeking access to data held on them in the SIS. If
allocation to a dual legal base in the First and Third Pillars
is unavoidable, there should be an equivalent level of data protection
in each Pillar and coherent and complementary rules for individuals
to exercise rights of access and obtain legal remedies if data
held on the SIS is incorrect or has been mis-used. Data protection
requirements should be at the forefront of any other options under
consideration.
187. The Committee
welcomes the commitment to prohibiting racial discrimination that
is demonstrated in the new Treaty provisions. We fear, however,
that the role of the Court in ensuring a just and even application
of the principle of non-discrimination will be undermined if the
SIS is allocated to a legal base in the Third Pillar. We regret
that the Government seem set on continuing the policy of denying
courts in the United Kingdom the possibility of obtaining rulings
on any Third Pillar matters, including those seeking to eradicate
racism.
188. The interaction
between Treaty provisions on Schengen and Europol raises particular
issues for the United Kingdom. The Committee would wish to be
informed of any proposal for Europol to involve itself in areas
of police co-operation arising from provisions of the Schengen
acquis. This is particularly the case if links are to be
established between Europol's central data bank and the Schengen
Information System.[103]
RECOMMENDATION
189. The Committee
believes that the matters considered in this Report raise important
questions to which the attention of the House should be drawn,
and we make this Report to the House for debate.
102 See the Committee's Report, Enhancing Parliamentary
Scrutiny of the Third Pillar (6th Report, 1997-98, HL Paper 25),
which calls for any acquis texts which the UK intends to
adopt to be deposited in Parliament in time to allow proper scrutiny
before the adoption takes place (para 121). Back
103
See also the Committee's Report Europol: Third Country Rules
(29th Report, session 1997-98, HL Paper 135). Back
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