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Select Committee on European Communities Minutes of Evidence

Examination of Witnesses (Questions 160 - 180)



  160.  Mr Bunyan is asking another question.
  (Mr Bunyan)  Yes. To pick up your point, you mentioned terrorism and organised crime but Schengen is not just about terrorism and organised crime. Again, you cannot pick and mix this package. You cannot say "I just want to take part in that aspect of it" because the Schengen Information System and the SIRENE Bureaux are dealing with everything. They have got millions of stolen cars on them, Germany has lots of cars stolen and there are lots of those on the Schengen Information System. It does deal with people who are suspected of being a danger to public order and national security. It does deal with people who are wanted for extradition. It does deal with migrants who may be breaking leave to stay. We cannot just have a bit of the system, we have got to have the whole system. I think we should be clear what we are getting. If there is an intention to join the Schengen Information System, which I am sure this Government wants to do, it is a question of it is going to have to join the whole of that but it cannot just join the whole Schengen Information System it is going to have to join these other aspects as well, I suspect, or there will be a big battle over "you want to have the information but you do not want to have border co-operation".

  161.  Could I just interrupt for a second. What I am getting at is if you want to make the sort of improvement that Statewatch stands for about transparency, remedies, civil liberty protection—this is not entirely a political question—what is the best means in your view of going about it? Are we able to achieve those objectives effectively by our present posture or would it be better arguing from within?
  (Dr Peers)  That in a sense presupposes that the Home Office shares those objectives.

  162.  I am not asking about the Home Office, I am asking about Statewatch.
  (Mr Bunyan)  I think that is the point. Whether the United Kingdom joins or not I think is immaterial to the question of whether under the Amsterdam Treaty what is being inherited is an acquis which we have pointed out is still growing, which has not been subject to any open democratic debate, which has not been open to transparency, which has not been open to judicial control and will not be open to proper judicial control, as Steve pointed out, even when it is within Amsterdam. Will Britain's joining make a difference? The answer to that one must be only if the United Kingdom were to take a position which was seeking to remedy those complaints about the Schengen acquis incorporation. In other words, it would have to be really heading for making the Joint Supervisory Body, which is there in the centre, an open and public body.

  163.  So is your position that we should only go in if we can have that basic minimum condition satisfied of the kind you have outlined about transparency, legal certainty, judicial remedies and so on? Is that what you are saying?
  (Mr Bunyan)  I am saying that because the debate tends to centre on do we want to join the Schengen Information System, what is the benefit to the Government or to the state, but on the other hand what the citizen may be saying and what civil liberties groups are saying is that is all very well but there are other issues involved in joining Schengen, it is not just about getting information for police or immigration purposes, it is about what kind of system are we joining. To answer your point, whether the United Kingdom in its minority position can say "yes, we want to join and by the way we want this to become a more democratic beast", which obviously if one is going to do that one would like to see being argued, it is going to be a doubly difficult position but one would hope that the Government would do that, that it would say "If you want us in", and they do want Britain in, it makes sense to have Britain in with the other Schengen Member States, "we also want to see improvements in this, this and this aspect". At the moment the United Kingdom is going to be in a funny position. Just reading the latest report on the incorporation of the structure, the United Kingdom is in this bizarre position when it comes down to working parties. Even though the United Kingdom is not part of Schengen and will not participate at the level of Schengen on the Council level, when it comes down to the K4 Committee and the working party levels it will fully participate. This paragraph says: "If Ireland, the UK and Denmark are entitled to participate fully in the discussions at all levels within the Council, this implies that delegations of these Member States can also fulfil the function of presidency of the Council." That is to be chair of those working parties or committees. "However, they may, when the case presents itself, wish to yield the presidency to the delegation which will hold the next presidency." So we have here this bizarre situation where the United Kingdom is chairing a working party concerned with Schengen but actually it may decide at that level not to chair it but to hand it over to a Schengen Member State who is holding the next presidency. It is a bizarre idea. "The fact of having opted out of the areas covered by the new Title IV TEC, includes giving up the right of the Member States concerned to present any legislative initiatives...." This is interesting. So the United Kingdom can participate, it strongly hints it should hand over the chair of the working party to a Schengen Member State, and it cannot initiate at the moment new measures but it can decide to opt in or out of measures being proposed by Schengen Member States. I know it is confusing but that is where they are presently at in a paper dated November. That does bear on your point if the United Kingdom is to have any influence.

Chairman:  The comment was made "just like the Social Chapter all over again".

Baroness Turner of Camden:  Who is in and not in.

Lord Inglewood

  164.  I want to just raise with you a question on a point that you threw in in your opening remarks and it is, I think, in a sense a political one. I am interested nevertheless to hear your views. I think you quite rightly, although I had not thought about it in those terms, said that the political arguments that we are currently hearing about whether or not we join Schengen are a re-run of the arguments that we heard in the late 1980s. In what particular respect do you think the argument has changed since then or the balance of advantage has changed over that period? Are we living in a world which is an exactly similar world for the purposes of these kinds of issues as we were in the late 1980s or do you think certain things have changed which mean that the value of the arguments made in turn have changed?
  (Mr Bunyan)  Obviously things have changed from the late 1980s when the Commission was always banging on the door, not just of the United Kingdom but other Member States, saying "look, we have got to have free movement". What has changed in justice and home affairs is a whole number of other agencies and initiatives are either in place or about to come into place in which the United Kingdom is fully participating.

  165.  Perhaps I failed to express myself properly. In terms of the fundamental points such as "we are an island", and this is a point that both governments have emphasised, that this is a matter of enormous significance, do you for example think that argument is as strong now as it was then or is it stronger? Essentially, regardless of whether or not you subscribe to it, do you think that the nature of the argument has shifted in the meantime?
  (Mr Bunyan)  I suppose I never agreed with the argument in the first place. This is a personal point of view. I did not believe in our border control. I have never believed in this island mentality. It was an island argument but it was also an island mentality which was a very nationalistic argument which as an internationalist and a European I find myself opposed to. I was as opposed to it in 1985 as I would be now. I think one has to say that the argument that somehow the United Kingdom authorities do not trust the other Member States is one that probably has changed. Countries like Germany, France and Italy have not created Schengen and been running it now for three or four years without putting in place compensatory measures which are quite extensive as I tried to explain in terms of the practice. In other words, the idea that somehow the last bastion is the Channel and that those other 13 Schengen Member States are really leaky—every Member State is leaky in some respects—is less and less true. As always the argument that you have got to have border checks to open people's bags and things, I really do not think that the German police or the French police would argue that they are any less efficient now at combatting organised crime or drugs than they were when they had border checks. In some ways they would say they are in a better position.

Lord Bridges

  166.  You would say the argument was weak and has got weaker?
  (Mr Bunyan)  Yes.

Lord Inglewood

  167.  Is it also true to say, using a kind of vulgar Sun language, that it could be described as "the continental system for administering justice is a lot of dodgy foreigners and if we share information with them the whole lot will be all over the place before you know where you are" is completely discredited?
  (Mr Bunyan)  I think so. I think any system, however good it is, has leaks. We have had leaks from the Police National Computer here and we have had people taken to court. Any system which has widespread access potentially is going to leak. You can never be one hundred per cent secure. What I am saying is that I think a lot has changed in the last ten years in terms of the co-operation of the Schengen countries. It may be one of which I am highly critical in terms of its lack of democratic accountability and judicial review but there is no doubt as far as they are concerned they are over the first hurdle and they are going into the next hurdle now and they are very involved in enlargement.

Lord Lester of Herne Hill:  Has there not also been this change, following Lord Inglewood's question, that the previous government when we were signing up to the Europol Convention for ideological reasons was opposed to giving the European Court of Justice the task of providing uniform effective remedies against the misuse of the Europol Information System and there was a great argument about it, I remember it in Sub-Committee E for example, and votes upon it and so on, but the present Government, unless I am much mistaken, seems to have more confidence in supra national judicial protection? I suppose one symptom of that is incorporating the European Convention on Human Rights into domestic law linking more closely with Strasbourg. Is it the case—Statewatch probably knows from its dealings with Government agencies—that there is more sympathy now for European judicial protection of civil liberties than there was before? I do not know the answer to that.

Lord Hacking

  168.  Can I go back to an answer that you gave just now. If I understood you correctly you said that in some ways the Schengen Convention countries are in a better position and I understood you to be referring to border control. In what way are they in a better position?
  (Mr Bunyan)  I think it was always a debate, for example, about how effective border controls were at combatting terrorism and organised crime. Some borders are very long with other means of communication, other means of transport. I think you would find that certainly the BKA in Germany would argue that now by not having formal border controls but having the form of bilateral co-operation they have got not just between their immediate border Member States but other Member States and with their 20 mile kilometre patrols they are probably more efficient at combatting terrorism and organised crime and drugs than they were under the old fixed point static system. This is partly because they are employing new techniques. They are employing covert surveillance, the placing of informers, surveillance, putting bugs on the underneath of cars and lorries. So it is technology partly and new legal powers, or in some cases new legal powers sometimes they have got and sometimes they have not got—an area which is to expand under Amsterdam. Both these areas of cross-border pursuit and of covert operations, control delivery, are in the Amsterdam Treaty. I think they would argue that things have changed. The old idea that everything happens at the border and that is how you stop everything is an old-fashioned idea even in policing terms.

Baroness Turner of Camden

  169.  You said something earlier on which interested me. You talked about the amount of information that was available through the SIS with millions of records and so on. We spent some time in this House quite recently discussing data protection and data protection legislation which is now on the statute book. Is there any possibility here of problems of a civil liberties nature in relation to data protection with all that volume of material stored under SIS arrangements?
  (Mr Bunyan)  There are always at least two problems. One problem is where information is leaked out. The other problem, which in a sense is more common, is where information is wrongly recorded. There have been one or two instances where Mr Smith of Manchester has not been the same Mr Smith they have pulled off the plane and sent back. There have been other instances of car numbers where somebody has sold a car to somebody else last week and three months later the car is picked up because it used to belong to somebody suspected of being a friend of a friend of a terrorist but now it belongs to somebody completely innocent. That completely innocent person could be picked up in another country if it is on the system and held and questioned. That happened in France, for example. There are two kinds of dangers. One is the leaking and the other danger is the wrong information and in the middle is the wrong application of the information. The Joint Supervisory Body of Schengen has had some difficulties establishing its note. In the first year it certainly had some difficulty. The difficulty it had in the first year was when it went to Strasbourg and was there inspecting the Schengen Information System when some high top official arrived in the middle of their visit and kicked them out. The supervisory body was kicked out of the Schengen Information System for doing its job. Things have slightly improved since but certainly looking at their annual report it has got a number of worrying instances. It is a thick annual report. It has taken two years for that body to start to do its job and put its foot down a bit but it would not say it is happy at the moment with the way Schengen is operating because it is not always getting the information it needs. Imagine having 14 million records, 45,000 access points and a small body of 13 data protection people trying to keep on top of it with a very small staff. It is an enormous job. There is a problem there and the same problem will arise obviously for Europol: will that supervisory body be able to do its job properly and will it have the staff to enable it to do the job properly? We do not know but that is an issue. Often with these bodies it is not the power that they have got it is actually whether they have got the back-up staff to enable the full-time commissioners to do their work properly.

Lord Inglewood

  170.  I appreciate your interest in these things is not one necessarily which is where the priority is and the efficacy of policing. You were commenting about border controls and you have clearly looked at these issues over a long-ish period. Could your remarks be interpreted as being to the effect that in your view there is a reasonable argument for saying a form of policing which is based on border controls is sub-optimal when compared to a form of policing which involves what one might call the Schengen approach?
  (Mr Bunyan)  Is what?

  171.  Sub-optimal in contrast to a Schengen approach to policing. You may say you do not feel qualified to answer that.
  (Mr Bunyan)  My view is unimportant but I think that would be the view of a lot of police officers, that border control is one element but nowadays there are a lot of other techniques they have available of which border control is only one aspect. The idea that somehow border control is the primary way of controlling crime and drugs and terrorism I do not think is the predominant view amongst police forces in the European Union now.


  172.  May I just follow that up. One may concede that on crime, terrorism and drugs but not on immigration for a number of reasons. This seems to me to be the sticking point of the British argument. To put it in Daily Mail terms "it is all very well for them, it is just one of the things, but the Slovak gypsies still turn up at Dover and if they are managing to get through three countries on the way between Slovakia and Dover there is still something wrong and we need our own immigration controls there to hold the line". What would be your answer to that argument?
  (Mr Bunyan)  This is the debate which fuels the border control argument, which fuels racism within the EU. We have been getting daily reports from people in Dover about people arriving and what has been happening to them and the way the Dover press has been reporting it. You may get 70 Roma people arriving in Britain—gypsies, travellers—and this is blown out of all proportion. It is maybe 70 people arriving out of how many million travellers visiting the United Kingdom every year, 26 million odd, and how many asylum applications do we get, 50,000 to 60,000. We are talking about a tiny number here. The debate then does become racist, not about whether they have got a legitimate case, it becomes "what would happen if we had no border controls?" The Schengen people would say within their system "you stop them at the border but of course we have got our patrols going up and down, of course we have got our checks, we also discover people who are Roma from other countries, your problem is no different from our problem but do not pretend that you are more efficient than we are at stopping whatever this perceived threat is". This is what the debate is about. The problem here—this is why I think it is a question of border controls—it is an argument about nationalism, it is about racism. If the United Kingdom Government were to say "we are going to have free movement, we are going to take down the border controls, they are shown to be unnecessary, 13 other Member States have not got them any more", we can suspect the kind of debate that would happen in Britain. We can suspect that it would actually take on a very nasty racist turn.
  (Dr Peers)  That is really more of a Dublin Convention problem anyway than a Schengen problem. The problem is not so much that they were not stopped in the first place, the problem is that they were non-visa nationals in each of the continental Member States that they crossed and then until recently non-visa nationals here in which case we are then the competent state for determining their asylum claim. The solution to that is to impose visa requirements across the European Union on Slovak Nationals in which case it is the first state which they try and enter on an external border that can prevent them from entering. In a way perhaps in the Daily Mail context that point is not understood, it is not exactly a border control problem in some ways.

  173.  The argument is that is fine but then the compensatory measures, to quote the Treaty, which we have are also not entirely pleasant. If I understood what Dr Peers has just said, he is in favour of stricter visa controls on Slovaks trying to enter the Schengen area but there are those who argue against adding to the long list of countries in which one has to have visas. Compensatory measures in other countries, as Mr Bunyan has made quite clear, include mixed patrols, covert surveillance, identity cards, a set of issues which in the British perception we do not have and we do not have to have. Do you accept that if we do away with border controls we would then have to move into compensatory measures of that sort?
  (Mr Bunyan)  I think one should hit on the head the idea that you have got to have ID cards if you join the Schengen Agreement, this is nowhere in the Schengen Agreement.

Lord Hacking

  174.  How many Convention countries of the Schengen Agreement carry ID Cards?
  (Mr Bunyan)  The basic point I am trying to make is the idea of identity cards is nowhere in the Schengen Agreement, it is nowhere part of the Schengen system.

  175.  How many Convention countries?
  (Mr Bunyan)  You are right but, having said that, we must not mix it up with being a Schengen measure. Identity cards is not a Schengen measure, it is not a requirement if you join the Schengen Agreement to introduce identity cards. Within the Schengen Agreement there is a measure about hotel registrations but that is a little bit different from ID cards for the whole population. What you have got within the 13 Member States is many of them have ID cards, in some it is compulsory to carry them and in others it is not compulsory to carry them. There is not a uniform system. You can join the Schengen Agreement in very simple terms without having to produce ID cards, it is not a requirement. Whether the Schengen system requires other controls, yes it does to a degree but not much more in advance of what is happening at the moment.

Chairman:  I promised that we would finish by half past five. But we have two urgent interventions, so may we take those and then we will finish.

Lord Lester of Herne Hill

  176.  Thank you, my Lord Chairman. I should declare an interest because I am on the board of the European Roma Rights Centre in Budapest and since you have raised the question about the Roma I think it is important that we deal with it properly. My understanding is that there are about ten million Roma across the whole of Europe. They are very vulnerable and much discriminated against in many countries and, therefore, the pressure for them to escape and seek asylum elsewhere is very strong. They are the most discriminated against minority across Europe. That is my understanding of the material I have looked at. If that is right, and I would be grateful to know whether that accords with Statewatch's information, what I do not understand is how the choice of border control or not in this country compared with the rest of the European Union is really significant since all Members of the European Union Member States are confronting the same pan-European problem of how to tackle the underlying causes of Roma movement on a common and individual basis. Could you address that view?
  (Mr Bunyan)  You are absolutely accurate, it is a common problem to all 15 EU Member States and it is a problem for the applicant Member States as well. The Roma are a stateless people, as are the Kurdish people a stateless people. They are two groups of people who are very often singled out because they are two peoples without states who in some countries are a significant or a small minority and in some states are singled out for persecution. Those people, therefore, present a "problem" for all members of the European Union. It is not primarily a problem for the United Kingdom.

Lord Bridges

  177.  I wonder if I could come back to a matter you did discuss earlier on. I am not quite sure that I understood what you said. This is the access which we would have if we joined Schengen to the Central Information System and how it compares with what goes on now. The impression I have is that collaboration between police forces is traditionally quite strong in this country, it is pursued seriously and it is built up very often on the basis of personal relationships between two people. As you rightly said there are individual agreements about crown affairs which give us a constitutional buttress to what goes on. It does seem to me that as Schengen is incorporated and it gets locked into the Community and is better organised this will tend to focus the exchanges on this organised centre. I wonder how available these other sources of information, informal ones which go on at the moment, would be once this tightly organised central system is up and running? In other words, if we wanted to continue getting a great run of information from police forces we would probably have to join, we would not be able to continue indefinitely the informal arrangements that we have at the present. Do you think that is reasonable?
  (Mr Bunyan)  I think one must distinguish. Informal means bilateral contact between one policeman in one country and one in another country. The problem with that, as we know in some cases, is that one can also say it is not only informal but it is unregulated. There is no regulation covering that exchange of data. That can happen in the Europol Drugs Unit at the moment in the Hague where we are told stories of the informal exchange of data with somebody taking their portable home at night and coming back with the answer the next morning. These stories are already coming out of the Hague with the informal exchange. What it does mean is that if the United Kingdom were in the Schengen Agreement NCIS would be the equivalent SIRENE Bureau, it would be putting in data from the United Kingdom and it would mean that every police force in the United Kingdom would have terminals, every major police station would have terminals, every immigration point would have terminals, every customs point would have terminals. I do not know how many terminals we would need for the United Kingdom but we can guess it would be several hundred, if not a few thousand. The difference is every police officer, every customs official, every immigration official would be able to have access to what is in Strasbourg on the one hand and on the other hand the continuation of the informal contact between a small number of police officers. There is a big difference, if you like, a quantitative difference.


  178.  Can I summarise what I think has been your evidence and encourage you to summarise as well. I think you have been saying that from Statewatch's perspective of costs and benefits of the British opt-out the benefits of yielding on opt-out and joining Schengen fully are much higher than the costs but if the political decision is made to hold to our border controls that should be the only part of Schengen on which we opt-out. Is that the general thrust of what you have said?
  (Mr Bunyan)  Say the last bit again.

  179.  If there were a political decision that we wished to maintain our border controls, nevertheless the benefits of opting in to as much as possible are greater than the costs?
  (Mr Bunyan)  Yes. That, I suspect, is the United Kingdom Government's point of view. I suspect the United Kingdom Government's point of view is we do want to maintain our border controls, we are not prepared to risk whatever may come out of a backlash about removing border controls, but on the other hand we want to join as much as possible and we particularly want to join the Schengen Information System and particularly areas of police co-operation and anti-terrorist co-operation. The price of that may be that the Schengen countries say "you have also got to do x, y and z as well" and I think that is where the debate will happen. I think that is the Government's point of view, whether or not they are saying it openly but I am sure that is where they are going and what they want to do.

Lord Bridges

  180.  It is probably not negotiable on that basis.
  (Mr Bunyan)  It depends. There is a very big difference between Schengen negotiating when it was only five Member States, which it was at one stage, then it was nine Member States and now it is 13 Member States. It is in a stronger position so one does not know whether a French or Spanish objection to the United Kingdom picking and mixing will be the same now as when it was more vulnerable when there were only five Member States, that is a question of politics. It is a question of who is going to say "no, you cannot join anything without joining everything" which is where they are going to start from, they are going to start from that position. It depends whether there is any leeway to negotiate in between and it depends, as was raised earlier by Lord Lester, whether the United Kingdom Government is prepared to enter those negotiations and raise some important questions over accountability and transparency within the United Kingdom negotiating position.

Chairman:  Thank you very much indeed. We have kept you for a little longer than we intended. It has been a helpful evidence session. We will no doubt see you again.

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