Select Committee on European Communities Minutes of Evidence

Examination of Witnesses (Questions 144 - 159)




  144.  Welcome. You know us well and we know you well. I think you are fairly up to date with what we are planning in this enquiry. Is there anything you would like to say by way of introduction?
  (Mr Bunyan)  Maybe two or three points if it is worthwhile. I have been reading through some of the evidence you have received so far and maybe one or two broad points would help. I think the first thing to understand is that whether or not we join the Schengen Agreement is only part of what is happening within the EU and, therefore, for example, if one discusses joining the Schengen Information System one has to put that in the context also of the Europol system, the Customs Information System, the planned Eurodac system and the planned DNA database. One has to look at a complex of different systems, some of which are in Schengen and some of which are in the EU, to which the United Kingdom is subscribing. I think the other important thing to remember is that the issue of border controls which now arises here in relation to the United Kingdom joining the Schengen Agreement, or part of it, is of course a long standing question, it goes back to the old Article 7a and then 8a which is a Community question, the issue of free movement. It arises here in Schengen because it was the Schengen Agreement which sought to advance that particular aspect of European development. I think we should remember the issue of border control. When I read the discussions now on the United Kingdom they are very familiar ones if you were following the European debate back in the late 1980s when a very, very similar debate was being put forward: we are an island nation, we have got a natural barrier, if we let this down we will let in the criminals and the illegal immigrants and we do not really trust the other European Union countries. It is almost word for word, the same arguments that were being put forward by the United Kingdom actually to the Commission in those days rather than to the debate over Schengen. Those are just two broad points one would like to say in terms of this discussion.

  145.  I think what we would like to get a sense of from you, as you have been following Schengen very closely, as the Treaty of Amsterdam is about to be ratified, is what does it mean to the way in which Schengen operates? As far as you can see does it mean that in effect Schengen is swallowed up by the European Community for all practical purposes?
  (Mr Bunyan)  Steve can help but I think you can say that Schengen both disappears yet it continues, it lives and it can grow, if I can put it that way. In other words, Schengen does disappear as Schengen but it does become incorporated with the Schengen Information System going into the First Pillar and into the Third Pillar. There is provision, as you will know, within the Treaty for the Schengen acquis which will be inherited under the Treaty of Amsterdam for that acquis to grow within the acquis communitaire on justice and home affairs. We should not see it as the end of Schengen in a sense but Schengen is changing its form in a way and coming inside and provision is made for it to grow as Schengen as distinct from the acquis communitaire in justice and home affairs. The broader point is when you look at the annual reports from the Schengen Executive Committee they clearly feel that they have now reached a certain stage. The Schengen Information System is up and running, the SIRENE Bureaux are used quite extensively by national police forces for urgent communications between one another. They have got a whole number of bilateral agreements between Schengen Member States for cross-border co-operation. Between France and Germany they have joint patrols, mixed patrols. They are not just mixed France and Germany but mixed in terms of skills so that you have police officers, immigration officials and customs officials in teams. They have all kinds of agreements about sending people back to other Schengen countries. One would be surprised at the number of people in a year who are refugees in orbit, as it were, between Schengen countries. It is not something one sees much attention paid to but some 40,000 to 50,000 people are shifted between the Netherlands and Germany or France and Germany or Germany and France depending on where they were adjudged to have entered Schengen. I think from their point of view they see that stage one is there. Stage two will be the incorporation and inclusion of the Scandinavian countries in the Schengen Information System. Stage three, which is known as Schengen Information System II—it is I, Ia and II—will be the incorporation and the opening up of the Schengen Information System, the SIRENE Bureaux and all these bilateral co-operations to the accession countries. I think they would see this as a process which has achieved a lot from their perspective and one which will continue within and after Amsterdam.
  (Dr Peers)  If I could just add to that a more legal response. The way I always describe the effect of Schengen incorporation is that of two separate lumps of sugar being dissolved in two separate cups of tea. You are taking half of it and absorbing it within the Community legal system and then another half, or perhaps a portion of it, is absorbed within the Third Pillar, the Union system, and in that sense you do not have anything left that is distinct and independent from the Community or Union legal system but what you do have, of course, which then still exists is still a body of legal rules, it has just taken a different form. By and large it then forms part of the environment around it, whether that is Community law or Third Pillar law, but it does have certain distinct characteristics, for example—it does not affect the United Kingdom—Denmark is normally going to participate in measures building on the Schengen acquis but is normally going to opt-out of anything else in Title IV and almost everything else in Title VI of the EC Treaties. There were certain important distinctions like that and certain issues on which courts and tribunals can refer questions on the Schengen Protocol and the decisions based on it that may or may not be separate questions from interpreting Title IV and Title VI of the EC/EU Treaties. There remain certain legal differences but they are relatively minimal. That is a legal view.

  146.  Do you, as a lawyer, see particular difficulties in a system which is going to incorporate Schengen into the Treaties where, as you rightly point out, there is the British and Irish opt-out, the Danish insistence on it being under international law not Community Law, and Norway and Iceland inside? Is this field day for lawyers likely to be an excuse for an absolute lack of transparency or is it manageable?
  (Dr Peers)  I think those are two separate questions. Transparency is a political will question rather more than a legal question. It seems to me the legal regime governing transparency is that the previous Schengen acquis is all now going to be Council measures, whether it is amendments to what was the Schengen Convention or what was Executive Committee decisions or what would have been Executive Committee decisions. They are all now Council measures and therefore the transparency rules apply to them. It is now a question of how those transparency rules, as amended after Amsterdam, are going to apply to Council decision making within this Schengen field. That is transparency in the more technical sense. I think transparency in the broader sense of can you understand this, someone picking it up can they understand it, even specialists have difficulty drafting all the fine points and certainly as someone who has to explain it to students it is not an enjoyable task, even over-simplifying it for students.
  (Mr Bunyan)  I think it is important to put on record, of course, that while there has been a battle over transparency in terms of the Justice and Home Affairs Council in which Steve and I have played some part in trying to make it more open, as far as the Schengen Executive Committee is concerned, in the central group of the Schengen Committee there has been total secrecy, there is no public right of access to those documents. Documents have slowly become available via national parliaments but there is not a public code of access to Schengen. We should remember that the Schengen Executive Committee is still making decisions which will become incorporated. I have got here the agenda from September and they are discussing what would seem to me to be important questions to us being added to this acquis at this moment. We have got things on transmitting the Schengen acquis to EU applicant states, the possibility of involving Switzerland in Schengen incorporation and illegal immigration to the Schengen area. These seem to be pretty substantial issues. What does hit you, and we must remember this when talking about Schengen, is that it is not just a question of policy making now, remember it has been in operation since March 1995. We are talking not just about a policy making body, we are talking about a body of on the ground with practices which has been in place now for coming up to four years. It is a little bit different from the measures within the EU which have only just started to come on line like Europol or the Customs Information System.

  147.  The thrust of this enquiry is on the British opt-out and its costs and benefits. I summarise how I interpret the evidence we have received so far. The general thrust of the British position is that we would like to hold on to our border checks or controls, if you prefer the word, but opt in to as much as possible of everything else in Schengen. Do you anticipate that position is going to cause real difficulties for us or for managing British participation in part of Schengen?
  (Mr Bunyan)  I think the United Kingdom would definitely like to join the Schengen Information System and the SIRENE Bureau. That is partly about immigration but also about police co-operation and deals with matters on extradition so it is quite valuable for the United Kingdom to be part of that information system and the SIRENE Bureau. I think if you talk to people in the Schengen countries they are going to say "hang about". It is not just these information systems that are important, it is also all the other aspects which move into place in terms of bilateral co-operation, agreements over re-admission or non-admission from countries, a whole range of issues which have been put in place now over at least the last four years but even prior to that they were putting in bilateral agreements between different countries about whether or not and how far you could have hot pursuit, whether you could have covert surveillance in a certain area in another Member State. There is a whole wedge, if you like, of secondary legislation and practice in place. If the United Kingdom says we want to join just this little bit because that is the bit we like I have a feeling some Member States are going to say "hang about" but we do not know. This is being discussed. The issue of the United Kingdom and our joining Schengen was certainly on the agenda of the Schengen Working Group in November. It is being discussed although we have not yet learned where it is going. I suspect there would be some resistance from some Member States to pick and mix as it were.

  148.  I think it might help several Members of this Committee, including myself, if you would detail as much as you can about exactly what the SIRENE Bureau does.
  (Mr Bunyan)  The SIRENE Bureau in very simple terms is everything that is in the Schengen Information System. There was nothing in the Schengen Information System until Schengen Member States put information in from their national databases. France and Germany particularly led the way in putting in data from their police and criminal intelligence databases. It went into the Schengen Information System in Strasbourg. When that was there that in its totality, just from those two Member States, constituted the Schengen Information System database at that point in time. Slowly other Member States have been putting in their data. It only contains the data put in by the Member States, it does not have an added value at that point. The SIRENE Bureau is what is called the supplementary system beneath the Schengen Information System which in our case, if we were in, would be our National Criminal Intelligence Service—NCIS. This is where having made, if you like, the initial enquiry of the Schengen Information System in Strasbourg, in very simple terms having got the first page of information that this person may be of interest for whatever reason, they then say "we want to add more about this person" and then bilateral contact is made. The initial information is gained on line from Strasbourg. If that particular person who you are holding, say, at a border point is of "interest" and has been thrown up by the system you then make bilateral contact with the Member State that put that information in in the first place when you will then get in effect the dossier on that person. Of course, the information in some cases is for information and in other cases it is in a sense binding. One must understand this. There has recently been the case of a New Zealand woman who flew from London to Amsterdam, a Greenpeace worker, who was thrown up on the Schengen Information System at Schipol Airport which said she was to be excluded from the Schengen area because she was a potential threat to public security. That information was put in by the French. The Dutch, of course, were in an extremely embarrassing situation because they would not necessarily have wanted to exclude this particular person because she had protested against the French atomic nuclear tests in the Pacific and that was why she was on the system. But, because of the Schengen arrangement, they had to exclude her from the Schengen area and had to put her on the plane back to London. One has to look at these instances where there is a certain binding effect once that information comes through on a participating Member State. Obviously in that case they would have asked for supplementary information from the SIRENE Bureau. Also the SIRENE Bureau is used bilaterally for urgent questions: urgent alerts, extradition requests, people wanted by the police which may or may not be put separately on the Schengen Information System in Strasbourg and will be used bilaterally in the case of urgently wanting to track somebody down or to apprehend somebody. In a sense the SIRENE Bureaux are the operating side, if you like, of the database in Schengen.

Lord Lester of Herne Hill

  149.  I do not know whether Mr Bunyan has seen the evidence yet that we were given on 16 December by Professor Groenendijk, Mr Andrew Nicol and Ms Elspeth Guild?
  (Mr Bunyan)  I have not seen it.

  150.  They gave evidence explaining their concerns that Schengen was such an opaque system that it did not satisfy legal certainty, as it were, and one could not read the text of it in a way that the ordinary man or woman possibly had reasonable access to and there was a lack of judicial protection, whether in the European Court of Justice or otherwise, for example to abuses of the Schengen Information System and generally a lack of transparency as well as effective legal remedies. I hope I have fairly summarised some of the points they were making. Are they matters with which Statewatch would agree, that those are concerns about the system?
  (Mr Bunyan)  I think we certainly would. I have mentioned already the issue of transparency, the fact that decisions are not open to the public, there is no judicial review laid down in the Schengen Agreement, there is not proper parliamentary oversight laid down in the Schengen Agreement, and in the case of somebody like this particular person I mentioned in this instance there was no option on that occasion but for the Dutch to return her to the country from whence she came, which was back to London in this particular case.


  151.  Formally may I ask you, within the next two to three months the Amsterdam Treaty will be ratified and that incorporates the Schengen acquis, when they have discovered what it is, into the Treaty. At that point does not judicial oversight and European parliamentary oversight then come into effect over Schengen operations?
  (Dr Peers)  There are two separate questions there. On the Court of Justice point, it is clear from the Schengen Protocol that the Court of Justice will then have its ordinary powers depending on which provisions of the EC or EU Treaty the Schengen acquis has been allocated to, if it is allocated properly. I think there are still some fundamental legal remedies problems in even getting a question before a national court or tribunal, especially an SIS type of dispute in which you may not have information on why your name has been added and it may be very difficult to lodge a challenge to the original Member State given that the structure of the system is such that if you try and get information on whether your name is on there, like the other EU information systems, you can be denied on extremely broad grounds access to information on whether your name is on the system. There is that fundamental problem of judicial remedies which has not been solved even though there is the welcome reference to potential references to jurisdiction of the Court of Justice. Then, of course, it is only going to be top courts which can refer to the Court of Justice under Title IV and it is only going to be some Member States which will allow some courts, maybe just the top courts, under Title VI of the EU Treaty. It is not the full jurisdiction of the court anyway. On the second point, the parliamentary control point, essentially the way that the Schengen Protocol is structured it effectively delegates powers to the Council to act in place of the previous Schengen Executive Committee. It is a type of comitology. Rather than the normal delegation to the Commission it is a delegation to the Council. There were great problems in parliamentary oversight, as you will know, of Commission comitology and that may also prove to be the case in oversight of Council comitology, especially in this area which is politically sensitive and where there is a long history of the Council resisting transparency of justice and home affairs operations and we can confidently expect that to continue when looking at the Council now operating as a comitology, referring powers back to itself, delegating powers to itself, to implement the Schengen acquis. I think there is going to be that continuing problem. They do not need to consult the European Parliament on measures implementing the Schengen acquis and it is going to be very difficult to follow.

Lord Rix

  152.  First I apologise for being late but I was chairing a meeting across the corridor which over-ran. I see there are two questions down here, of which you may have been given advance notice, which I would wish to ask. How much practical police co-operation is there, involving United Kingdom police, outside the Schengen framework? Also, how strong is the pressure to rationalise the various computerised information and intelligence gathering databases and how might this develop if the United Kingdom remains outside Schengen and the SIS? Those are two questions which I formulated as I was listening to you and then found that they were actually printed here in front of me.
  (Mr Bunyan)  One can only answer these in very broad terms. As far as what co-operation the United Kingdom takes part in, the United Kingdom obviously is part of the Europol Drugs Unit structure and as part of that it may supply liaison officers outside of the EU to other countries. When you actually look at the justice and home affairs area, one of the big growth areas has been the external relations in justice and home affairs. I think probably the pertinent question to ask is not just what police co-operation there is but what police or Home Office official co-operation is outside of the EU. Obviously there is a growing number of areas of co-operation with the United States, with Canada, with Central and Eastern Europe, with Russia and with Asia. There is a whole number of bodies. We counted up 25 or 30 bodies and the list grows as we find new documents. It is a very big growth area. In a sense one must see the United Kingdom in the context of the EU.

  153.  Mainly connected with drugs and/or terrorism?
  (Mr Bunyan)  It covers the whole gamut but it would be drugs and organised crime and also to some extent illegal immigration networks as well that fall within that remit. One has a global picture on this issue, of which the United Kingdom is part of the EU, where the FBI has set about in the last few years creating liaison offices in virtually every country in the world. The EU is only just a bit behind it in planning to have liaison offices in other countries of the world. One is beginning to see that construction of which the United Kingdom is only a part but it is certainly an EU initiative. Of course they are there for the reasons which you suggest in the main. They are there for liaison over terrorism, organised crime, drugs, illegal immigration questions. It would be hard without doing a particular study to know precisely what the United Kingdom participation is in that and the degree of it.

  154.  So you cannot say how much we get back by way of information although we are not in Schengen? Is it freely given or frankly do we have to wring it out of them?
  (Mr Bunyan)  There are formal and informal agreements. Take the Europol Drugs Unit, obviously we get information via the Europol Drugs Unit in the Hague. Obviously Britain is a fully participating member of that and once Europol is fully on line, which will not be until some time this year, then the United Kingdom will benefit from it from the point of view of putting in intelligence and getting out intelligence, there is no doubt about that. The question is that Europol is there for what one might call high level organised crime whereas the Schengen Information System will cover a much wider remit of crime. The Schengen Information System already holds millions of records whereas Europol is probably going to hold thousands of records. One must distinguish that in a sense Europol is going to be complementary to the Schengen Information System, not in contradiction to it, one will supplement the other.

  155.  That Schengen information would be of great use to us, but we cannot get hold of it at the moment?
  (Mr Bunyan)  We do not have access to it.

  156.  Yes.
  (Mr Bunyan)  One must understand the degree of access in the Schengen countries. We did a review recently of the number of access points in the nine Schengen Member States who are operating the system and when you add them all up, and there are only nine of the 13 Schengen Member States, there are over 44,000 access points. This is because not just the police and immigrations and customs but every border official has access. This throws up the other side where we would come in and say one does begin to get some concerns about widespread access. It did happen last year in Belgium where a SIRENE Bureau official absconded with a great mass of information which was being passed on and sold on for gain to organised criminals. There is that problem when you get big systems like this and such a massive number of access points, that it could be misused. On your broader point about is there a plan to bring it altogether, I do not think they would want to bring all the systems into one system, they have all got their own histories. What the High Level Group on Organised Crime recommended in its report of April 1996 was that all these things should be in the same room at least in a Member State. In other words if you have the Interpol computer, the Europol computer, the SIS computer, the Eurodac computer when it is up and running on fingerprinting, all in the same room so there can be proper liaison. That is their language. From another, civil libertarian, perspective one might question what controls will exist if they are all in the same room and what informal exchanges may take place. That is another question. There is not the intention to make them all one system but there is the intention to centrally locate them, if possible, within Member States.
  (Dr Peers)  There would also be a lot of legal problems trying to bring them into one system because Eurodac will be purely in the First Pillar, CIS and Europol will stay clearly in the Third, and the SIS is in both. Conceptually that is a legal problem. Also, not only does who has access differ hugely between the systems but what information is included differs hugely between the systems. With Europol, of course, you have an inner level of information, the people dealing with analysis files, which is not reproduced in any way in the other two systems. So what you may have is both that liaison and a link. For instance, at some point there is likely to be a protocol for the CIS Convention, letting Europol have CIS information which is not quite the same thing as merging all the systems. There will be a gradual co-operation but I cannot see it surmounting these fundamental problems and actually merging the systems.

Lord Rix:  Thank you very much.

Lord Lester of Herne Hill

  157.  I wonder if I could just ask a wood for the trees question. Leaving on one side the details about the SIS, which this Sub-Committee may or may not want to look at separately at a later stage, whether we go in or out the inhabitants of this country are willy nilly affected by what is happening in relation to Schengen both as regards their freedom of movement and the combatting of crime, police co-operation, mutual assistance and all the rest of it. It is clear from the evidence we have received from a lot of different sources that Schengen needs to be improved in various ways that you have described yourselves. What I am trying to work out is what kind of strategy it is sensible to pursue as a nation that has not opted in. If your objects are broadly speaking to combat terrorism and organised crime effectively without prejudicing civil liberties unnecessarily and to promote the free movement of peoples and all the other objectives while maintaining effective borders, if we are seeking to pursue all of those objectives are we more effectively doing so by going in or staying outside? How does one address that kind of wood for the trees question?
  (Mr Bunyan)  I think in part it is a political question.

  158.  Although it is a political question it does not mean that one cannot ask or answer it.
  (Mr Bunyan)  No, I am just putting that caveat, it is not a factual question of the study of the system.

  159.  It is a question of judgment.
  (Mr Bunyan)  It is a judgment. It is a question of why does the United Kingdom want to maintain its border control which ties Ireland into the same position. Are the arguments that may have been valid in the mid-1980s still valid now, particularly now that Schengen is going to cover 13 of the 15 Member States?

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