Select Committee on European Communities Minutes of Evidence

Examination of Witnesses (Questions 200 - 212)


Dr Richard Plender qc, Mr Nicholas Blake qc, Professor Eileen Denza cmg and MS MADELEINE COLVIN

Lord Pilkington of Oxenford

  200.  Really Lord Lester has in fact taken the question I was going to ask and you have answered very clearly, but I would like to put what I said before: that I think the general opinion of this Committee, jumping ahead, would be that we would like to relax things and we are very conscious of human rights and I am very conscious of this issue of particular functions to protect human rights, but, as you know, there is an enormous fear, not only in Great Britain, but in Europe, at the pressure from immigration. I am neither black nor young, but in fact I pretty well have had my clothes taken off by the French police at the frontier and there are very rigid controls at the frontier between France and Spain. Now, what I would like you to say is bearing in mind our dilemma, and to some extent you have answered this, but bearing in mind our dilemma that to make a report presentable to Parliament, we have to bear in mind these two things of human rights and fears of immigration, and you have to some extent said how an identity card could be used, could you say how Justice would support something without infringing human rights and expand on what you have said which we could put in a report which would not just take the negative side of protecting human rights, but would give some controls which would meet fears?
  (Ms Colvin)  I wonder if I could duck that one at this stage and say Justice will undertake to write to the Committee expanding our views. At this stage we have put our concerns to the Committee, and if we are to answer that specific question we would prefer to consider it in more detail and give a written response.

Lord Pilkington of Oxenford:  I think it would be very helpful, and I am sure my colleagues would agree, if you put something like that in writing.


  201.  The Home Office position is that the maintenance of border controls enables this country to have much lighter internal controls than others. If one accepts that position, then clearly certain things follow. If that position seems to you, and to some other experts, to be less evident than the current Government assumptions suggests, then we come to other conclusions. How important do you think border controls themselves are in apprehending asylum seekers, undesirables and others, as opposed to all the other things we are told of, prior intelligence, surveillance, et cetera?
  (Mr Blake)  I am sure it is the latter in terms of effective policing of abuse. Indeed one of the practical arguments I recall in Justice's report against identity cards, just to touch lightly on that, is if you have one single means of access to the whole system, once you get a good forgery to forge that means of access, hey presto, you are in. A forged Danish passport will do wonders for that mechanism if there is no information given across border controls. So it would probably be based on information and intelligence and policing of that sort rather than the border control itself. I think the numbers argument, the numbers who lawfully cross and the traffic, and what can be done in a very light check is limited, but again it is a question of external controls to check a visa has been issued and check the visa is a visa and check the person's documentation and then any internal measures which are completely different. What you are asking a border control to do is define that first, before you look at the other things.

Lord Lester of Herne Hill

  202.  I do not know whether it is premature but question 9 in your list deals with the Schengen Information System and, without becoming too technical, if one looks at section 4 of the Justice submission it raises a number of, I think, very important questions. Could I, as it were, shorten it by summarising it a bit and putting a couple of questions? It is self-evident that the Schengen Information System has enormous advantages and great disadvantages. As you rightly point out one of the disadvantages is effective judicial control of the misuse of the system, and when you come to paragraph 4.11 and following you focus on what looks like a technicality to a non-lawyer but which is I think very important. You first of all explain that it is not clear which legal base will be allocated to the SIS and you explain why that is very important. I understand but I would like you for the benefit of the Committee, not all of whom are lawyers, to explain why in practice that is a very important issue and then tell us what on earth can be done about it?
  (Ms Colvin)  The distinction between the first and the third pillars is, of course, the jurisdiction of the European Court of Justice. This distinction is retained in the Amsterdam Treaty, although it gives more jurisdiction to the Court under the third pillar—so long as the Member State opts for that extra jurisdiction. For the Schengen Information System we make the point that it is important if even part of it is to be in the third pillar that there is consistent, uniform interpretation of the system. We believe that that can only happen if full jurisdiction is given to the European Court of Justice. That raises the UK's position, we understand that this Government takes the same position as the previous Government. For example, during the recent negotiations on the Eurodac Convention it still took the position that, although the UK accepted other Member States having an option within that Convention to opt into the jurisdiction of the Court, it would not be taking up that option itself. They still have objections to the court having jurisdiction over third pillar matters. I think that is a major point that needs to be considered and the question is still why the Government takes this stance. From Justice's point of view, we say that it is necessary to take a principled decision on the jurisdiction of the Court not a political one. And the principled one is based on the need to provide a uniform and consistent legal structure to what are supranational provisions and conventions.

  203.  I think this is a very important matter. As I understand it, the same view arose in respect of the Europol Convention with the previous Government, leading to a position where we did not accept the European Court of Justice should have any jurisdiction to ensure effective Europe-wide protection of basic rights and freedoms. Would your position be that unless the European Court of Justice is given the power to protect basic human rights and freedoms against abuse under the Information System, it would be wrong for us to join, because it would lead to a fragmented system in which the only effective judicial protection might depend upon a domestic court in a somewhat dodgy jurisdiction? Would that be your position? It is very important for us. It may be we will decide to look at the SIS as part of a separate enquiry rather than now, if we find it sufficiently important to do so, but it is part of the present enquiry and it is very important to know whether you regard effective judicial control as so important and give us an example, if you could, of why it is so important?
  (Ms Colvin)  To go back to your first question, I think there are a number of considerations. You have to look at current practice, which is that we are exchanging information on formal systems and informal systems. I know you have had evidence about the informal systems. The dangers in the informal systems are obvious: they are unregulated and unaccountable. So Justice's first position is that we would prefer to see any exchange of information, particularly the sensitive information of criminal intelligence data, only taking place under regulated, formal systems. Of course, the SIS is meant to be a formal system and therefore could replace the present informal systems. Having said that, if the UK is to opt into the SIS, we would ideally like it to negotiate certain changes. One would be that it changes its position on the European Court of Justice. We think that is essential. The other changes we would like to see relate to some of the internal provisions around the SIS, particularly in terms of the adequacy of data protection and controls. This is obviously a very detailed subject and it is a matter we will be including in the report that Justice is doing on the SIS which we hope to publish in April.

  204.  In paragraph 4.12 you express concern about an exception clause which was put into the Treaty of Amsterdam, which is to deprive the European Court of Justice of the power to review the validity or proportionality of policing operations in the Member States. I do not share that concern, so may I therefore ask you whether you agree with this: it seems to me that this is simply subsidiarity, it is seeking to ensure that questions of the allocation of priorities for the police and law enforcement agencies of a Member State are matters for the Member State—how many police you deploy to cope with demonstrators; to take a case I was once in, the export of goods to the rest of the European Union. It is a matter for the Member State. However, it is not saying, is it, that the European Court of Justice has no jurisdiction to review the validity or proportionality of these operations in relation to fundamental human rights and freedoms and surely, and really I think Dr Plender would be particularly astute to be concerned about this, surely that has to be read subject to the importance of the Treaty of Amsterdam, the Treaty of the European Union, of the protection of human rights and, therefore, the European Court surely could say, "If police powers are misused in breach of fundamental human rights and freedoms, say, under the European Human Rights Convention, we of course have the jurisdiction to tackle that problem"?
  (Dr Plender)  The question is put with my name and I can well imagine that I shall want to contend just that, but in the hope that nobody here would be a member of the court before which I would have to contend it, may I say that it is not certain that one would be successful in so contending. The question is not whether an individual's human rights have been infringed, which would be argued, but whether the Court of Justice has jurisdiction to enquire into that matter given the wording of the provision here cited. Now, one would bear in mind that one of the fundamental principles of Community law is the principle of effective judicial review, but it might be said, "Oh well, you have had your effective judicial review before the Bundesverfassungesgericht ", or wherever it was, "and that is your remedy and your remedy is not here", so there is, in my view, a danger here, a danger which one might be able to overcome in the way in which Lord Lester suggests, I hope one could, but I am not certain one could.
  (Ms Colvin)  I think there is a distinction between policing operations on the domestic level of the Member State. Increasingly there are policing operations, including surveillance operations which are co-operative amongst Member States. I know that this Committee has the Convention of Mutual Assistance on criminal matters under scrutiny, and is aware of the amount of surveillance that is to be permitted under that convention. This will involve organisations such as Europol and the Schengen Information System, on an international level. The question therefore is: does this international policing fall within this provision of the Amsterdam Treaty or is the exception really only about the domestic level of policing operations? I think that is the real danger, that it may exempt some of the international policing co-operation from the Court?s remit.

Lord Inglewood

  205.  I would like to ask a more general question which is really derived from the points being discussed and it may well be that Justice has a firm opinion on this which it has already expressed and I am afraid I just do not know it, and that is that in the real world, the fact that the Third Pillar is outside ECJ jurisdiction, has that, in your view, led to oppression and abuse of human rights or do you believe that the citizen, if I can put it that way, is in fact adequately protected by the judicial arrangements that affect it?
  (Mr Blake)  Can I answer in respect of the Dublin Convention which is one of those measures which was heralded in 1990 that it was going to be a solution to the problem as to which country is going to receive asylum seekers. It was under the Third Pillar and it was only finally signed up to by all the Member States quite recently, so it has had a long half-life of quasi-legality. Now, British lawyers promptly went along to the courts here and said, "Well, look, we have signed it. It must mean something. The Minister's discretion should be regulated by international obligation". "Oh no", said the courts, "It is not binding upon us. It is not part of Community law, but it is just another public obligation on the state when it comes into force, if at all", which it did a couple of years ago for the first time, "so, therefore, don't cite it in front of us. Go away". The next case comes along and the Government say, "Well, accordingly, the principles we have been adjusting are according to our obligations under the Dublin Convention". "Oh yes", said the courts, "very wise and clever of you to rely on that", so it was relevant to the Government to use it in the exercise of discretion, but it was not enforceable by individuals. Equally, at the moment the Government are finding that it is not even enforceable between governments in the problems of last summer with Romanian asylum seekers coming through Germany, France and by ferry to the United Kingdom where France were saying, "We won't take them back", and the ferry companies were having to pay for the flights back from London to Bratislava. Now, that cost the ferry companies, industry and the Government in their detention as well as the individual quite a lot of money because there was no enforceability, so I do feel that that has been a pretty unsavoury example of what happens when you have an intergovernmental treaty when no one has any enforcement mechanisms. Anyone can argue what it means and what it does not mean, but no court is quite clear whether they have jurisdiction to do so or simply say, "Well, it is up to the Secretary of State to apply it if he wishes to", but is not a satisfactory state of affairs and it led to chaos last summer and I think that is an example of why clarity, certainty and enforceability not just between individual states, but in between states is important, and the ECJ should be the common link at the end, at the top of the judicial tree.

Baroness Turner of Camden

  206.  I was going to ask Justice whether you have any concerns about the SIS system. I see from your paper that an enormous number of people seem to have access and then you say that in the Netherlands 7,000 people have access and that is just the Netherlands. You can have information held about you and you would not know it was held and it could be inaccurate and it might be used very much to your disadvantage. Are you concerned about the data protection implications of that and what do you think about it?
  (Ms Colvin)  We have a number of concerns and I think I have implied that they are quite lengthy concerns. We have concerns obviously about the other system which runs alongside the SIS, the SIRENE system, which is a supplementary system for providing documentation and additional information That is where the sensitive information is exchanged and at the moment is unregulated other than by a confidential manual. In terms of data protection, there are inadequacies at every level. There is for example the lack of power of the Joint Supervisory Board to protect individual rights. There are also the broad exemptions to deny subject access. And then there are of course the risks of unauthorised access and unlawful disclosure of information from the fact that so many people have access to the system and that number of people who can put in and take out information.

  207.  Do you think it would be possible to institute a system of greater surveillance, so to speak, for the people concerned who have access, or greater accountability?
  (Ms Colvin)  Again there are broader considerations relating to data protection in Third Pillar conventions. At the moment the data protection regulations, which include security matters, are decided on an ad hoc basis in each individual convention. This is a question which is being looked into at the moment by the Commission, whether to have some consistency of data protection controls which apply to all Third Pillar agreements. This was the original intention when the European Union Directive on Data Protection was being negotiated. It was intended that there would be a subsequent resolution agreed by all the EU Member States applying the same provisions of the Directive to Third Pillar agreements. This is an issue that Justice would like to see pursued so that there is some consistency and uniformity in the data protection provisions.


  208.  We are considering whether we need to have a separate inquiry which would really be on the subject that you raised in 4.14 to look at all of these overlapping informal and formal data exchanges. Could I just check what I think I understood Ms Colvin to be saying, that the British argument of five to ten years ago, which was that civil liberties would be better protected by British courts than by international courts and, therefore, we should maintain a pillar system rather than putting all of these areas of co-operation by the police, the immigration service and others under the Community proper, no longer holds because of the degree of overlap between national police and other services and that it is now the view of Justice that in many areas British civil liberties are better protected through the European Court and the European law?
  (Ms Colvin)  They need the additional protection of the jurisdiction of the European Court.

Lord Lester of Herne Hill:  In partnership with national courts?
  (Ms Colvin)  Yes.

Lord Inglewood

  209.  Following on from that, the way the Lord Chairman put the question was that he was implying that if things were being done intergovernmentally they were going to be outside the ECJ system, but were the intergovernmental decisions to be brought beneath the umbrella of the ECJ, forgetting about the detailed way the decisions were taken, would the effect of those decisions in the wider world be equally well secured if it went that way rather than bringing the whole process under the Community system?
  (Dr Plender)  One of the principal changes, if not the principal change, in bringing the matter into the first pillar is that the rules cease to be intergovernmental, that is to say binding between governments, but according to their terms they are binding as between individual and government or individual and individual. It is precisely that change which is far from technical which may make a massive difference. Lord Lester earlier asked for an example and one came to mind of which this Committee has already heard, although I could give others, and that is of a New Zealand national arriving in the Netherlands refused admission as a result of information supplied by the French authorities because she as a New Zealander had been involved with Greenpeace; an embarrassment to the Netherlands and a matter for which at present there is no recourse, precisely because the obligations as between the Netherlands and France are intergovernmental. If one translates that into a system which gives rise to rights and duties to an individual and state, it is practically inevitable to give the aggrieved individual an opportunity to challenge the decision taken. There may be limits upon what information can be disclosed, but that is a problem that every court faces when difficult policing decisions are made on the basis of intelligence. There may be those limits but subject to those limits there is an important change in the position of the individual.

Lord Lester of Herne Hill

  210.  Is not one other aspect of that important change that if it comes under the first pillar the well-known partnership between the national courts and the European Court of Justice then is triggered, so you can go to your national court and where necessary get issues decided by the European Court, whereas if it is dealt with as an international convention and then the European Court were given ad hoc jurisdiction just for that convention in a special way, one might have to work out a different procedure and relationship between the national court and the European Court?
  (Dr Plender)  That is true, and even where a court has intergovernmental jurisdiction, it has to be remembered that there is a variety of factors which will affect a state's decision to refer a matter to the court and it may well be dissuaded from doing so because of an entirely extraneous policy consideration. I have to add, however, that in this particular case two important constraints have been imposed upon the practice of national courts to refer. First, that under these particular arrangements it will only be the court of last instance which can do so, which may in the long-term prove very regrettable from the point of view of government as well as the individual. Secondly, there is a new and enigmatic limitation on the Court's jurisdiction to review matters affecting security.
  (Professor Denza)  There is a slight complication with the Europol Convention. It does not have this let out for public order and national security and all the Member States, except the UK, have said they will refer any court. I do not believe, as a matter of treaty law, that these rights to refer from the other 14 Member States can be curtailed, I think they will subsist, which adds to the confusion.

  211.  You have been looking at the issue in a sense understandably from the perspective of lawyers looking at the rights conferred by the particular decision-making process. The way I have recently been looking at these matters has been from the perspective of governments or administrators taking decisions and it seems to me that we are seeing a change in the nature of intergovernmentalism as it is brought underneath the European Union umbrella. One of the things that has been exercising my mind is that I can see why in certain circumstances governments may not want the European Parliament's involvement to be in the form that it is under the Community Pillar and/or the Commission's and so that for them administratively doing certain activities intergovernmentally is attractive because it helps them take the decisions they want to take. You are saying, and I understand that, that the effect of taking decisions in this way is that certain rights are not conferred. The idea I am toying with is could you secure citizens' rights in an effective manner by simply putting decisions which are taken intergovernmentally firmly under the ECJ umbrella which would mean that from the point of view of governments, a lot of the difficulties they face in working out decisions collectively under the Community system would be avoided, but at the same time the advantages of being underneath the rule of law, which was described earlier as having ECJ at its apex, would in fact be there for everybody once those decisions have been made?
  (Professor Denza)  I think there are certain differences which go beyond the question of ECJ jurisdiction between whether you do things internationally or whether you do them at the Community level, and one of them is the question of direct effect which Dr Plender has already alluded to. Another really important distinction from the point of view of a number of Member States, and here one may look at Denmark who has got a very clear hang-up on this point, is the retention of national autonomy. Once you go into the First Pillar, the general rules of Community law, which preclude even parallel action which has the same objective of the legislative nature, come into play and these rules do not come into play internationally. There are also general rules of interpretation as the rules of international law are in some respects a little bit different from those of Community law, so there is really a raft of factors which we set out in detail in the memorandum, of which we think the most important is judicial control, but I think it is wider than that.
  (Mr Blake)  I would have thought that your suggestion may be better than nothing in the sense that it would at least permit governments amongst themselves to refer questions of dispute as to the meaning of the document or the action, whatever it may be, to the ECJ, so there would be some possibility of harmonising interpretation if the government want to know what the answer is, but that is a big "if". Secondly, if we are looking at it just from the point of view of the third party to this, the individual whose rights are affected, I think it would be quite difficult to see how the ECJ would operate as a first instance court of determination of the meaning in a particular case and the applicability of a particular decision rather than interpreting the broad powers. I could also imagine (a) how would the individual get to the ECJ if it was purely an intergovernmental relationship, and (b) would the ECJ be able to devote its resources to a queue of litigants who presumably could not get to Luxembourg anyway because they had been excluded from the Community except in exceptional exceptions? So the idea of the national courts being fact-finding, the first port of call, so to speak, would tend to be in the traditional way of enforcing a judicial remedy and I think enforcement of remedies is a crucial principle. It is no good having wonderful sounding texts or preambles about the European Convention of Human Rights and think that will, therefore, take care of itself, as Dr Plender indicated earlier, and even on questions in which one would have thought there can be no room for debate, the European Convention on Human Rights Article 3, there are still major differences between governments and legal systems and what it means, and we have Strasbourg judgments around and the German courts, for example, take a different view and that creates a problem, so you really do need judicial enforcement and access to these remedies, an effective ability to get someone, a lawyer, a representative, a body to say, "Look, there is a problem here. Please sort this out". That is what is needed if there is to be a mutual confidence in the European project, mutual confidence that our governments are playing their part and there are no leaks in the system and mutual confidence that the project is worth getting to with the goal of security on the one hand and the individual rights on the other.

  212.  And the shortcomings are pretty extensive at the moment.
  (Mr Blake)  I think so.Chairman:  I think we had better stop there. I had promised the Committee we would not go beyond quarter to six. I would like to thank you very much for an extremely helpful tutorial. I feel with another dozen of these, I could pass the exam! I would like to say two things in closing: first, I would be very interested if you still have spare copies of the 1995 paper with the IPPR to receive one, and if there are additional copies, excellent, other Members of the Committee would also like, I suspect, to have them; and, secondly, we are extremely grateful for the support and advice we do get from Justice, and I suspect we will wish to ask you to give evidence again in our next two or three inquiries. Thank you very much.

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