Select Committee on European Communities Minutes of Evidence

Examination of Witness (Questions 240 - 259)



  240.  Would you feel that if Great Britain joined, with our island situation and our extensive frontiers—

  A.  You would be a candidate for support in that sense?

  241.  Yes.

  A.  I think I will duck that question. I have no doubts about the length of the United Kingdom's maritime frontier. I have some doubts about whether it is the most convenient place to row ashore if you are coming from Algeria.

Lord Bridges

  242.  A comment was made to us by one witness that the SIS, as the Union gets larger, is going to need a new computer in a few years. This is going to be very expensive and they might therefore welcome our participation in that as a paying member to help to pay for the new computer.

  A.  I can imagine that that consideration would point possibly in that direction, but I do not think it will be the only consideration when they come to look at whether or not they wish the United Kingdom to join. I have no reason to say that if the United Kingdom tomorrow were to apply to join Schengen in the full sense there would be anything except consensus that they should, but it cannot be taken for granted because, as you know, this was a subject that led to some discussion after the Amsterdam Treaty had been theoretically finalised in Amsterdam. This was the one loose end, should there be any wish by the United Kingdom or Ireland to join Schengen, should the decision be taken by unanimity or by qualified majority, and after some discussion they agreed that it was by unanimity, so unanimity is what it is.

  243.  And you do not have to have a reason to say no? You just say no?

  A.  Best endeavours to say yes, I think is what the declaration says. You can say no.


  244.  My understanding is that once the Amsterdam Treaty is ratified Schengen is incorporated. Therefore, as a separate entity with separate meetings, Schengen in effect ceases to exist and the meetings thereupon take place as part of the normal Council/Commission set of procedures. Does this mean that British representatives will attend all of these meetings, even if they are primarily discussing Schengen business? Does it mean that in attending these meetings, even if Her Majesty's Government has opted out of item 3, item 5 and item 6 on the agenda, it participates fully throughout, or does it have to withdraw and stand in the corridor, or does it have any observer status? Is there clarity on this issue or are we talking about something which might be very complex to operate in practice?

  A.  I think we are talking about something which might be very complex. The reinforced co-operation as set out in Article 11 of the Treaty is not unlike what they did for other areas before this. They allow a certain limited group of countries to borrow the Community institutions to help with their work. That implies that if they were talking about exclusively Schengen matters and the United Kingdom were still outside Schengen, I would read it that the United Kingdom would be present but would not be able to vote. The members of Schengen would be borrowing the institutions. That is how I would read it. You have described a scenario in which some items might come in one category and some items on the agenda in another. I would have thought that they would try and organise their agenda appropriately.

  245.  But you do anticipate a rather complex process in which there will be a succession of decisions about the status under which the UK and Ireland participate in a range of meetings; is that correct?

  A.  The UK and Ireland would participate in so far as the subject matter went beyond strictly Schengen constraints. That is how I read it. As you know, every time an area currently covered by Schengen is overtaken by similar legislation adopted at the level of the Union, the Schengen provisions fall away and the Union provisions take over. Once that has happened of course the United Kingdom and Ireland would be fully involved.

Lord Hacking

  246.  I am afraid I am rather new to this inquiry and possibly fellow members of the Committee know the answer to this. You were speaking about the importance of the Schengen Convention countries having confidence in the external frontier which surrounded the group of countries in the Schengen Convention. How much detail has been agreed between the Convention countries and what are the standards that should be required of the external frontier?

  A.  A lot is the answer. It takes concrete form in a document which is not publicly available called the Schengen Manual for the External Frontier or something like that. It is as if the immigration officers all round the external frontier were operating from the same list of instructions as they would be if they were operating round the external frontier of, for example, France. They have worked out what their standards have to be and how the officers at the frontier should conduct themselves. I cannot tell you with any detail what is in that but it has been taken far enough to have an agreed manual of that which will be applied by everybody exercising their responsibilities round the external frontier of Schengen.

Lord Lester of Herne Hill

  247.  Why is it secret?

  A.  I honestly do not know. "Secret" is a difficult word.

  248.  Why is it confidential?

  A.  Presumably because it contains mechanisms involved in the Schengen information system. It is not a question that I can answer. It has come up in the context of the enlargement process where, not surprisingly, the candidate countries would be quite keen to know exactly what they are taking on. I would prefer that question to be addressed to a Schengen representative rather than myself.

  249.  It was just that Lord Hacking having asked the important question about what has been agreed and we having as it were to advise the House here, it would be helpful ti know anything in there which does not affect national security or matters of that kind, but if it is secret or confidential or not published it is a bit of a handicap since I for my part have great difficulty understanding the wadges of Schengen material. If there were a manual which we could have access it would certainly simplify our task. That is not possible if they are not members of the shared systems?

  A.  It is certainly not in my gift. I ask myself the question: is every instruction given to every immigration officer around the United Kingdom frontier in the public domain? I do not know the answer to that. Lord Lester of Herne Hill:I think the answer to that is very much more than was the case until this Government. They have released much more information.

Lord Pilkington of Oxenford

  250.  Do you know if, among members of the Schengen agreement, national parliaments have access or is it kept from national parliaments, this list of instructions?

  A.  I do not know; I am sorry.

Lord Inglewood

  251.  I would like to go back to something we talked about earlier. There is a tendency in this country, when talking about our relationship with what in the broadest sense one might describe as the Schengen developments and the Amsterdam Treaty, to take a rather lofty Anglo-Saxon attitude about the whole thing and say if we want to opt in to this and stay out of that and tweak this and tweak that, we would be terribly pleased if it was absolutely straightforward. Do you think the politics of this are more complicated? Do you think that in reality if in this country we start trying to pick and mix we are going to find the other Member States saying, "Oi: you cannot do it that way"?

  A.  I suppose if I were still a United Kingdom civil servant I would hesitate to speculate on politics, but maybe I am allowed to do so because I am no longer here. I can see three kinds of politics in this, one of which is the internal United Kingdom politics.

  252.  I am not asking about that.

  A.  The second category is the politics of other Member States' likely attitudes, and the third dimension of politics might be the Commission's likely attitude where politics could come in too, I suppose. I start from the point of view that the Treaty is relatively clear. Picking and choosing may not sound a very attractive way of conducting yourself, but I do not see what in the Treaty prevents it happening, at least in the area covered by the new Title IV which to my reading is clear. The United Kingdom may decide that there is a proposal on the table in which it wishes to take part. It may even decide after the proposal has been adopted that it wishes to join in. There are two openings. What it cannot do is to propose; it can only take a decision once someone else has proposed. Secondly, it would probably be ill received if the United Kingdom were to say, "We wish to take part", negotiate downwards if you like, and then at the end of the process say, "We do not want to take part after all." Politics could come in if that sort of thing were to happen. One area where politics could play a part, which we have not touched on, and if you will forgive me Lord Chairman I think it deserves a mention, is the Danish opt-out which is different in nature from the United Kingdom's opt-out. The Danes as you know also have a problem with the communitarisation of some areas and found a system which involves an opt-out, but they too, like the United Kingdom and Ireland, may well wish to participate in some way or other as these areas develop. They cannot opt in in the way the United Kingdom and Ireland can, but can if the area concerned is regarded as a development of Schengen. You could therefore have a situation where, from the United Kingdom's point of view, they would wish to opt in and are entitled to do so because the Treaty says so. The Danes would not be able to do so but they would be able to if it was a development of Schengen, so the same subject could play differently according to which country you are in. I can see a situation in which someone would have to take a view on whether or not something was part of a Schengen development or not. There I think political consideration might come in. As I say, these are untravelled waters. I am told that the Danish protocol was negotiated very late in the night in Amsterdam. I have yet to find someone who can actually explain to me exactly how it would work. I can see a possible conflict between that protocol and the United Kingdom and Ireland.


  253.  The terms under which the Norwegians and the Icelanders would sit in is also, if I understand it correctly, not entirely decided at the moment. Is that right?

  A.  It is more or less decided in the sense that the negotiations have been conducted and completed, there has been a formal initialling. It cannot come into force yet since, like the Schengen ventilation exercise, it is linked to the entry into force of Amsterdam. The terms of it are, however, more or less decided now.

  254.  We have had as you know evidence from Justice which interpreted the Treaty as suggesting that the British Government would be entitled to opt in to pretty much the whole of Title IV while maintaining border controls, although a close reading of the British and Irish protocols would allow that, so the only question we need to discuss if that is the case is the question of a maintenance of border controls. Is that how you think the Commission will interpret the Treaty?

  A.  I think that is the gist of what I have been suggesting to you, my Lord Chairman, making the distinction between the opt-out and the opt-in as being two different exercises. The opt-out remains; the opt-in is there too. There is, as I say, the extra dimension that is something the United Kingdom might be wishing to opt in to, would be considered by some to be so Schengen-related that other considerations apply.

Lord Bridges

  255.  If I could take you back to an answer you gave to Lord Pilkington some time ago when you were discussing the celebrated case of the Kurdish refugees arriving off the coast of Italy, and you pointed out that it was open to the other Member States to exercise a fallback position in which they would effectively exclude somebody who was manifestly not meeting the requirements from the right to free entry from their territory, that would certainly be workable in the case of Italy because there is a common frontier with Austria and with France. There would not be in the case of Greece. If the other Member States who joined Schengen lost confidence in the way the Greeks were operating their external frontiers, I do not see how they could exercise a fallback position unless it applied to every aeroplane or ship coming from Greece on to their territory.

  A.  I wonder if used the word "fallback". I think "safeguard" is the expression I meant to use. In the Schengen system even at the point where they have gone the whole way and have agreed their frontier controls will come down, there is a provision which allows them to re-establish them in certain circumstances. I do not think that happened in the case I discussed, that no other Member State of Schengen re-established frontier controls against Italy in that crisis. It passed.

  256.  But it might have happened.

  A.  It might have happened. It can happen. The Schengen provisions allow for that. They are on the whole time limited. In theory it is not an indefinite safeguard, but if there is a set of circumstances where one Member State of Schengen regards some kind of a threat posed to it by continuing free access across its frontier with another Member State, there is a provision which allows it to re-introduce frontier controls. It is more a safeguard than a fallback. If I used the word "fallback" I did not mean to.

  257.  But do you think that is a practical alternative in the case of Greece? How would you do it? If the other Member States, the original founders of Schengen, decided that the Greeks were making an awful mess of their frontier controls and that boats from Volos were full of terrorists from the Arab countries, what would they actually do? What is the safeguard?

  A.  I am not sure if I understand the difference between Italy and Greece in these circumstances. Some would argue that it might even be easier for Greece because travellers from Greece to the rest of the Schengen area have to go through a choke point of some kind because they come in either by plane or by boat. The frontier which is most permeable, I suppose, is a land frontier.

Lord Pilkington of Oxenford

  258.  Of Germany.

  A.  Or of anywhere else.

Lord Bridges

  259.  So if Arab planes are arriving at Schipol from Athens, all the passengers would have to go into the non-Schengen channel?

  A.  If, after Greece fully joined the system, the safeguard clause were to be applied, yes, the Schengen free access would be stopped and a flight from Athens would have to be regarded as a flight crossing the external frontier of Schengen, but it would require the application of this safeguard clause with the conditions that are attached to it.

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