Examination of Witnesses (Quesitons 200-211)
Mr Peter Hustinx, Mr H Hijmans and Mrs A C Lacoste
2 APRIL 2008
Q200 Lord Marlesford: But would the court then be able to require the EU to change the criteria for risk assessment?
Mr Hustinx: In essence, yes, but the story is, of course, a bit more complicated. It would be a case involving a Member State and the Member State is implementing European rules. In future under the Lisbon Treaty the EU will be party to the Convention so the story is a bit more complicated. Again, the German Constitutional Court has in some cases found EU instruments lacking. The arrest warrant was an example, and it happens that international documents under various human rights perspectives are lacking in quality, so it may happen and it will then involve in such a case perhaps a revision of the other rules. That is a scenario that if it is good enough for a majority in Council and Parliament then it could still be subject to such importance. Now we are looking into the future, if the decision of the court affected the European Framework Decision. It could be an issue at the national level as well and that would involve only a change of the law in that particular Member State. All that is possible. The impact this proposal is likely to have makes it, I would predict, quite probable that this will happen sooner or later, that there will be a case in Strasbourg testing these e-border kinds of policies, because that is what they are. So far, remarkably, we have not had cases dealing with PNR, but if this is to proceed on the scale that has been planned then at that stage I expect that will be the test of whether it is an appropriate scheme or not.
Q201 Chairman: I wonder whether you have consulted the Information Commissioner's Office on the data protection aspects of the United Kingdom's e-Borders project, and what lessons do you think can be learned from the UK project with regard to the wider European Union PNR project?
Mr Hustinx: We have good relations with the Information Commissioner's Office and the Information Commissioner personally. This was not the subject of consultation but quite recently we have been in touch with them and our impression is that there have been some contacts but they were not of the kind from which we could draw any conclusions. It was just satisfactory to know that they were involved but I do not have any detailed information on their input. There is not a document we are aware of on their website and so forth, so it is quite informal.
Chairman: I wonder if any of my colleagues have any further or final questions or points to put.
Q202 Lord Dear: If we have time I would like to ask one question. You will have to help me with this because I remain a little confused. We all agree, I think, that we should focus on terrorism and serious and organised crime only and not drift down into the lower reaches. We have made that point and others have made it to us. I think we also all agree that the people in that band are in business to make life difficult for the enforcing authorities, in other words, they do not want to draw attention to themselves. If I understand your position correctly, you are very unhappy about the use of data and data profiling in the way in which it is being suggested, and I respect that view. You are also not at all happy with the use of what you call "nose" or hunch or gut feeling.
Mr Hustinx: Yes.
Q203 Lord Dear: If you exclude nose and hunch because it can lead to prejudice and you do not want data profiling, have you any advice that you would give as to how one protects one's borders?
Mr Hustinx: I have dealt with cases in which you have to compromise some of the principles and compensate for them by other measures, and if you have to accept more collection then you can compensate it by more selection and shorter retention and so on, and there are different ways to do this, but it all starts with clear information on what it is we were talking about. We have not had access to the evidence. It has not been mentioned by the Commission, so I have to fantasise, make it up, and that is very difficult. I can imagine the criteria but it is difficult to do it here, and it would certainly require clear recourse, et cetera, and short deadlines, and that is another point of criticism—13 years.
Q204 Chairman: I wonder if I could put a final question, which stems from the very first answer you gave to me when I asked you about that phrase, "leave room for discussion". You said you thought that was—
Mr Hustinx: An understatement.
Q205 Chairman:— very much of an understatement. This whole project—do you think it is a runner? You have pulled it to pieces pretty effectively for reasons I am not going to argue with, but do you think it can proceed?
Mr Hustinx: Maybe not.
Q206 Chairman: You have put in your Opinion right at the end that provided you can square the thing with Article 8 of the Charter of Fundamental Rights of the Union and various matters are looked at it might go, but it seems to me that one of the messages you are quietly putting to us is that the whole thing is dead in the water. Is that a wrong conclusion or a right conclusion?
Mr Hustinx: It may be true at the end. Let me explain. There is also another scenario and I will try to explain that as well. Putting this very clearly in the Opinion and showing the deficiencies of the proposal helps Council and Member States' delegations and Members of Parliament in their analysis and in some cases it also helps to develop improvements, and if the evidence is presented and it is convincing and Council and Parliament decide in the end to accept this with sufficient precision, safeguards, et cetera, all the clarification needed, I think my Opinion and other criticism will have had an effect. That is one scenario. The other is that I know that thinking about e-borders is not just something of an incident, and there is a tendency about this, but there has been a great increase and a speeding up of everything after 9/11, and some of the things which have happened since 9/11 are starting to produce second thoughts around the world, in the US and other countries, second thoughts, re-thinks, "Haven't we gone too far?". If this is an example of things which need to be re-thought maybe we should do so. If e-borders is so important, and I am referring to this generically although I know it is also the UK term, maybe we should be more careful in putting this together and bring in the detail and the safeguards to make it happen. What we found worrying (another worry) was that this proposal was in early November, but in February already Vice-President Frattini published his vision for the period up to 2015 and it seemed to involve more of this, bigger, larger, and again these documents about the border strategy, the border package, involved a lot of ICT, a lot of monitoring and a lot of analysis, but we have not found the way forward yet, and there is a risk of overdrive with these things so let us slow it down. It is serious business so we should do it seriously and slow down and avoid overdrive and easy conclusions and anecdotal evidence. Is this really what we want? Is it manageable? That is not the first but a very important question. If it is not manageable, if we do not know what the risk assessment is, how are we going to do it right? There are so many questions.
Q207 Lord Mawson: That sounds fine in a really balanced world until the next serious terrorist incident when to our politicians the general public will say, "What are you doing about it?".
Mr Hustinx: That is exactly my worry and we are here in a reflective mood, I think, but this is not the kind of proposal you do because, by God, you need to do something. That reason was not mentioned. Some things have been done because you need to do something, but now we are starting to realise that not only does everything need to be legitimate for its own sake but the combined effect of all these measures has started to produce an environment we do not want to be in perhaps, and we certainly do not want to extrapolate in automatic shift.
Q208 Lord Marlesford: Forgive me for being ignorant, but does your position give you any locus to comment on national schemes?
Mr Hustinx: I have not been doing this today.
Q209 Lord Marlesford: No, but does it?
Mr Hustinx: No. My competence is to supervise compliance at a European level and I advise on proposals for legislation. Some of this, of course, has an impact at a national level. I have been pleased by invitations from your side and similar invitations have come from other Member States and I do not shy away from them, but I am very careful not to comment on national measures and I hope my comments are helpful for you, nevertheless.
Q210 Lord Marlesford: The reason I was asking you was because, of course, for a lot of the things we have been discussing in relation to the EU scheme the same questions could be asked in relation to the UK e-Borders scheme.
Mr Hustinx: I imagine that is the case.
Q211 Chairman: Thank you very much. You have answered all our questions and you have put a whole lot of question marks into our minds. Thank you for coming and thank you to your colleagues also for coming. I am sorry they have not had a chance to make a contribution.
Mr Hijmans: Next time we will.
Mr Hustinx: I can tell you a lot of moral and other support was put into this document.
Chairman: It is very kind of you to spend the time with us and we shall find it very valuable. Thank you very much.
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