§ 4.30 p.m.
§ Lord Slynn of Hadley rose to move, That this House takes note of the Report of the European Communities Committee on Visas and Control of External Borders of the Member States (14th Report, HL Paper 78).
§ The noble and learned Lord said: My Lords, the report referred to in the Motion has one unusual feature. Your Lordships are well aware that the European Union now has what are appropriately, or otherwise, called three pillars. The first of those pillars consists of measures adopted by the Council and the Commission of the Community broadly as has been done until now. The second and third of those pillars are very different. They involve agreement by member states dealing with foreign affairs and security matters on the one hand and on the other hand home affairs and justice.
§ In the report we are concerned with a proposed draft regulation under the Community pillar dealing with visas and a proposal for a convention to be adopted by member states on persons who cross the external frontiers of the Community. That proposed convention is not made under the Community pillar but under Article K.3(2) (c) of the justice and home affairs pillar. This is the first time that the Select Committee has had to consider a proposal under the home affairs and justice pillar.
§ Our inquiry has shown that there can be difficulties in the overlap between proposals in a related area which comes under the two pillars. I am not sure whether "under" is the right word; there should perhaps be some other word as it is "pillar" and not "pillow". However, I shall use the phrase "under the pillar" in the hope that your Lordships will understand what I mean.
§ Our inquiry revealed even more a matter which the Select Committee has stressed throughout; namely, that the committee should be able to scrutinise a proposed draft text at an early stage rather than that the committee should be confined to considering proposals at a late stage when the United Kingdom is considering ratifying the conventions. To comment at that stage may well be to whistle in the wind or may lead to the whole process beginning again in a very unsatisfactory way.1035
§ Perhaps I may deal, first, with the draft external frontiers convention. It has had a somewhat curious history. Its negotiation began in 1991, but it ran into difficulties because Spain and the United Kingdom were not able to agree about the position of Gibraltar. After the Treaty of Union, it was realised that some of the matters in the proposed convention would have to be transferred to the regulation under the Community pillar.
§ The basic object of the convention is to lay down rules which will apply to persons who are not Union citizens and who are not, broadly speaking, nationals of a member state who want to cross the external frontiers of the Community. It is broadly agreed that there must be rules based on common criteria to cover such persons and rules which will involve close co-operation among the member states. The target is to strike a balance between eliminating threats to public security and public safety in the member states and at the same time preserving such openness for the rest of the world as is possible.
§ There are many detailed rules in the draft convention about the establishment of crossing points, the surveillance of frontiers, residence permits and visas. I propose to say nothing about them because I think that it would be wrong to detain your Lordships with a discussion of that kind of detail. Perhaps I may mention just four matters which seem to me to be issues of principle and issues of considerable importance.
§ One element of the convention, and an important part of it, is the preparation of a joint list for all member states of persons whom all the member states must refuse entry if they seek to come into the Community. That joint list is to consist of names which are notified by the member states and the decision as to whether a person shall be placed on the list is to be based on the threat which that person may represent to the public policy or national security of the member states. The decision to put forward a name is to be taken in accordance with national procedures on account of a number of factors, such as that the person in question has served a custodial sentence of more than one year.
§ It is obvious that, even now, before the convention is adopted, member states may under their own rules refuse entry to undesirable third-country persons who wish to come into their states. The difference in the new proposal is that, if someone is put on the list, he must be refused entry to all member states. If a businessman now wants to come to Paris and he is on the French exclusion list, he can presumably go to Brussels and his clients will go there to see him. Under the new proposed convention, he would not be able to go anywhere into the Community if he had got on to the list. There is no doubt that, in the view of the committee, the provision of a list is justified when the right people find themselves on the list.
§ However, the categories of persons who may be put on the list include two matters which gave us concern. The first is where there is information to the effect that the person concerned has committed a serious crime—that is, not a conviction but merely information to the effect that the person has committed a serious crime; and, perhaps even more general, where there are serious 1036 grounds for believing that a person is planning to commit a serious crime or that he represents a threat to the public security of a state.
§ It is idle to pretend that, in the process of people being nominated and their names then being notified to the central list, mistakes could not happen. It cannot be ruled out that names will be put forward by other individuals, even maliciously, with the result that someone may get on to the list who really should not be there at all. A number of our witnesses expressed very serious concern about that possibility. As a result, we think that it is essential that an effective remedy must be provided to give protection against unfair, improper exclusion from the Community and that, at the very least, a person should know which state has put him on the central list.
§ It is our view that there should also be a remedy in national courts against such wrongful inclusion on the list and against the withdrawal of a residence permit. We do not believe that that should be left to chance. We think that it should either be in the convention or that it should be included in measures adopted to give effect to the convention. It is our recommendation that one of those two courses should be followed.
§ The second item is very different. Article 6 of the convention provides that, where a passenger comes into Community territory by air from a third state and is going to transfer at the airport where he lands to an aeroplane to take him to another state, he should be subject to entry conditions and entry control at the airport where he first lands. Therefore, if someone comes to London who is going to Paris, the proposal is that he should be controlled in London and if someone is going to Paris and then on to Berlin he should be controlled in Paris.
§ That may work where infra-Community state flights are treated as domestic flights. It may not work in countries like the United Kingdom, Ireland or Denmark where they are not so treated. But it seems to the committee that this does not in any view take account of the special position of a hub airport like London where passengers frequently land from all parts of the world in order to transfer to other flights and where they are kept on the air side of immigration controls without any check on their immigration status, and where they are not treated as having entered the United Kingdom.
§ The committee considers that this proposal needs radical reconsideration by the Council. It ought to be looked at again in view of the special status of London Airport. It may not be unique, but it is the most striking example of this kind of problem. But even if the proposal is to be maintained, the committee recommends that adequate time should be given for the very substantial restructuring and changes in the infrastructure which may have to be adopted at the airport. The proposal at the moment gives far too little notice to the airport authorities.
§ Thirdly—I can take this more shortly—Article 14 of the convention deals with the responsibility of carriers who bring persons into the United Kingdom or into the Community when they do not have either the necessary travel documents or the necessary visas. The convention proposes to impose penalties upon such carriers even 1037 where there is not negligence, and penalties which go beyond the responsibility simply to take them back or to pay for their accommodation in the meantime. It seems to the committee that that is in conflict with Article 9 of the Chicago Convention which imposes liability only where the carrier has been negligent.
§ The committee takes the view that the same should be the position in this draft convention and, moreover, that it is particularly important that airport officials, airline officials and immigration officers should be aware of responsibilities under the European Convention on Human Rights and under the Geneva Convention relating to refugees to ensure that people are not sent back when they are quite genuinely asking to be admitted to a member state because of a well founded fear of persecution for political reasons. What we propose in this area, on the basis of very serious and impressive evidence given to us, was that the appropriate officials and administrators should be made very aware of the dangers which this kind of provision can open up.
§ Finally, as far as the convention is concerned, I come to a different topic and one of general importance. Because this is a treaty between the member states and not a Community measure, the European Court of Justice does not automatically have jurisdiction to deal with disputes about the interpretation of the convention or disputes which may arise out of its administration. However, there is provision in the treaty for the European Court to be given jurisdiction to interpret and to rule on disputes regarding the application. When this convention was first proposed, there was no proposal to include jurisdiction for the European Court, but the Commission has come to the view that it would be appropriate to provide for a limited jurisdiction; for the power of a national judge, who is dealing with a contention that the convention has been violated if the convention is part of domestic law, to refer that question of interpretation to the European Court, and for both the Commission and member states to take proceedings against other member states in the Community.
§ We of course understand that this is to be an international treaty and not a Community measure. We also recognise, because of the variety of views on our committee, that there can be different attitudes to this particular question. But after very considerable discussion, we came to the conclusion that this is the sort of measure in which the European Court of Justice could play a valuable role. All our witnesses took the view that it was desirable that the European Court should have this kind of jurisdiction. Their evidence, I suggest, is not to be disregarded. We were not persuaded—I certainly was not persuaded—by Home Office arguments that the convention is largely Executive and administrative in character and that disputes can be resolved by officials or by the Council of the member states.
§ As I see it, the European Court is the one way—the best possible way—in which this convention can be most effectively applied uniformly in the Community. This is not to be seen as a way of interfering here; it is to be seen, I submit, as a way of ensuring that all the 1038 member states carry out their obligations under the convention in the same way. Without some form of central ruling on interpretation or on disputes, I fail to see how that can happen. It was of notable interest that the witness from the European Parliament was wholly in favour of this proposal and thought it quite absurd that the member states should have to go to the International Court of Justice at the Hague if there was a dispute of that kind. We therefore recommend that the European Court of Justice should have jurisdiction as proposed by the Commission.
§ Finally, I turn to the regulation which I can deal with much more briefly. There are two important issues of competence and two short matters of practical application. Article 100c of the treaty deals with the approximation of laws, and it provides very specifically that the Council shall determine the third countries whose nationals must be in possession of a visa when they cross one of the external frontiers of the Community.
On the other hand Article K deals generally with asylum policy, the crossing of external borders and with policy dealing with nationals of third countries including conditions of entry and residence. Article 1(1) of the regulation clearly falls inside Article 100c. It provides a list of those third countries whose nationals must have a visa. There can be no challenge, I suspect, to that. Article 1(2), however, gives the Council power to list countries whose nationals are exempted from the need to have visas. In common sense it might be said that the second is a corollary of the first, and if the Council may make a list of those who need visas, it may make a list of those who do not need visas. However, we came to the conclusion that if this had been intended in Article 100c of the treaty, the article would have followed the draft provision in the pre-existing proposed convention where the words were,
the arrangement shall determine whether or not
a visa is required by the nationals of a particular member state.
§ Had that change not taken place, I, for my part, would have accepted that the one was the corollary of the other. But in the light of the change in the language from the earlier convention the committee came to the conclusion that this was a very specific provision and that if states are to be exempted, this must be put into the convention and not into the regulation.
§ The other point which I wish to make, and which I believe is of some importance, concerns Article 2. Article 2 provides that member states shall not be entitled to require a visa of a person who seeks to cross their external frontiers and who already holds a visa issued by another member state, if that visa is valid throughout the Community. Therefore, in the United Kingdom we could not refuse entry to someone who had a visa from Germany or Greece if that visa was valid throughout the Community.
§ We came to the conclusion that that does not fall within the limited words of Article 100c. That provision was itself a compromise between those who wanted these matters to be under the Community pillar and those who wanted it to be under the home affairs and justice pillar. We do not find it possible to construe 1039 Article 100c as allowing Article 2 of the regulation to stand. It may well be a desirable provision, but it should go into the convention.
§ On that basis, we have come to the view that both those provisions in Article 1(2) and in Article 2 of the proposed regulation are not within the competence of the Community and that they should be put into the convention.
§ The proposed regulation covers transit visas. We consider that to be wholly inappropriate. We think that the list which has been drawn up of countries whose nationals must have visas is inordinately long. Too much should not be attached to that. There is nothing sinister about it. It was a Commission proposal which was intended to initiate discussion, even though it is somewhat extensive. In the view of the committee there is no doubt that it should be shortened. There seems to be no justification for the inclusion of some Commonwealth countries on the list as countries whose nationals must have visas if they come to the Community, especially as other Commonwealth countries are not on the list.
§ I am sorry that I have taken some time. However, this is a matter of considerable importance in the Community. My colleagues in Sub-Committee E who conducted the inquiry and I are greatly indebted to our legal adviser, Mrs. Eileen Denza, for her work and guidance in preparing our report, and to our Clerk, Mr. Michael Pownall, and those who gave evidence to us. For many of them it involved considerable time and effort, on what are important questions. I beg to move.
§ Moved, That this House takes note of the report of the European Communities Committee on Visas and Control of External Borders of the Member States (14th Report, H.L. Paper 78).—(Lord Slynn of Hadley.)
§ 4.52 p.m.
§ Baroness Park of Monmouth
My Lords, I have read the committee's admirable report with great interest. Members of the committee are best placed to make informed comment, and I feel rather shy about speaking so early in the debate. However, I wish to make two or three points.
First, I strongly support the last conclusion in paragraph 121 of the report on the question of the negative visa list. The inclusion of Commonwealth countries such as Barbados, Belize, India, Pakistan, the Solomons, Botswana and Zambia, to name only a few, among the countries requiring visas for entry would be deeply damaging to our interests and would be taken as further proof by the Commonwealth that our European dimension is paramount and our Commonwealth membership unimportant. It is also simply not sensible, since so many of our visitors are Commonwealth visitors.
I agree with many of the arguments put forward by the JCWI and the ILPA. The distinctions made between Commonwealth countries seem both invidious and mysterious. It is still more mysterious that, as they point out, no countries in Latin America appear on the list despite their drug culture in some cases (Colombia, for instance) and their abuse of human rights (Guatemala).
1040 In the debate on the European Communities (Amendment) Bill in June 1993 I warned that Article 100c and Articles K.1, K.3 and K.9 would have serious implications for our independence of action. I believe that I was right. I was concerned then about our Commonwealth relationships and about the threat to our national security which the greatly extended powers of the Commission to initiate further action under qualified majority voting after 1996 would pose. I still feel that Article 100c(5), which pays lip service to the need for member states to be able to safeguard internal security, is negated by Article 100c(6) which allows Article 100c to apply to other areas under Article K.9.
I also strongly support paragraphs 109 and 110 of the conclusions. I find it amazing that in the climate of today's Europe, with the spreading activity of, for instance, the Russian mafia and international drug rings, and given the porous and inadequately policed external frontiers in many cases, there should be any serious intention to abolish controls at internal borders, especially in the case of the UK which has no system of internal identity cards, and given the fact that even in 1991, as I said in the 1993 debate, there was and is a thriving trade in the forging of EC passports. Of 591 persons refused entry at one English port alone in 1991 because of forged documents, 524 had forged EC documents.
I agree with the committee that it will still be necessary to control the movement of people across internal frontiers where a member state deems it right to do so. I wish they all did. Equally, I strongly support the recommendation in paragraph 110 that the conventions recommended by the Council:should reflect the nature of these conventions as international agreements which individual Member States may choose whether to ratify or not".Two tendencies have become manifest in the Commission's conduct of affairs, and indeed to some extent that of the Council of member states. The first has been a lack of transparency. For instance, as the committee says in paragraph 74, the inter-governmental negotiations leading to the political agreement of June 1991 on the external frontiers convention took place in secret and the text agreed, which was of obvious importance for European integration, was not laid before the UK Parliament for a further year. The other tendency is towards a creeping assumption of even more powers.
The proposals are now out in the open, and that is good, but we now need to have the political will and the good sense to say in good time whether we agree to what is proposed. Qualified majority voting does not make it easier, but we should retain unequivocally our right not to ratify if necessary. Moreover, we must allow no precedents to be set for this pillar which could have an adverse impact on the 1996 discussions on the defence, security and foreign affairs pillars. Reminding the Commission that we retain our right to ratify and to enter into inter-governmental treaties can only be beneficial. Also, we must not allow the aim of harmonisation to override the individual needs and 1041 duties of member countries and the propriety of inter-governmental rather than supragovernmental policies.
§ 4.57 p.m.
§ Lord Archer of Sandwell
My Lords, I venture to intervene to emphasise one subject about which concern was expressed by the noble and learned Lord, Lord Slynn. I do so lest it be thought that, if no other member of Sub-Committee E were to intervene, we thought of the matter lightly. The fact that I do not echo all that the noble and learned Lord said about the other matters of concern does not entail that we thought lightly about those.
The matter about which I want to express concern and to echo the concern of the noble and learned Lord is the joint list. As I may have mentioned in your Lordships' House previously, I have supported closer integration in Europe for many years —since before the idea was as widely accepted as it is now. I can claim to have been a Christian before Constantine. Therefore, I have no difficulty in supporting the concept of the free movement of persons, although I fully take the point of the noble Baroness, Lady Park, that there are some matters about which we need to exercise control at internal frontiers. If we are to have the free movement of persons, I accept that a necessary consequence is that there should be co-ordination in the control of external borders. But it is simply stating the obvious to point out that the greater the area and the population over which an authority exercises control, the greater the power of that authority over individuals, and the greater the degree to which individuals are at its mercy. It is not simply that an authority exercises power over more individuals; its power over each individual is so much the greater.
We have an example of that. Article 7 of the draft convention provides that a person may be denied entry to the territories of member states if he represents a threat to the public policy, national security or international relations of member states. Article 10 provides for the making of a list of persons who are thought to pose such a threat. It is to be a joint list, and each member state may require that the names of specific persons shall be included in the list. The criteria for including a name on the list are set out in the draft article, Article 7, but the decision whether a particular person falls within those criteria is entirely within the judgment of each member state.
When Mr. de Lobkowicz, head of the unit dealing with the subject in the European Commission, gave evidence to the sub-committee—his evidence is set out at page 61 and the following pages of the minutes of evidence—he made it clear that such a decision was seen as falling within the principle of subsidiarity. Each state would provide such safeguards as it thinks fit against the wrongful inclusion of a person on the list, but if a state submits a name there is no further sieve, and there is no further safeguard.
In effect, the list will be an amalgam of all the national lists. It will represent the exercise of power over more individuals than any national list. But, more 1042 importantly, the consequences for any individual will be so much the greater. He will be precluded from entering any of the member states. If France requires an individual to be added to the list, not only will he be precluded from entering France, he will be precluded from entering the United Kingdom or any of the other member states.
Admittedly, there is a proposed exception in relation to visas, as the noble and learned Lord pointed out. If a specific country is persuaded that it is important that an individual on the list should visit its territory for one of the purposes specified, it may issue a visa limited to that territory. But the individual must find means to activate a specific exception, and it is clearly a narrow list of exceptions.
I was surprised to learn that the safeguards against the wrongful inclusion of someone's name are regarded as wholly a matter for the member state which submits the name. It was said to fall within the principle of subsidiarity. It seems a curious application of subsidiarity that France may preclude a United Kingdom national from entering Germany.
The effect of what is proposed is that the authority which exercises that wide power over so many individuals is not the Commission, nor the Council. It is not an authority of the Union at all. If it were, we could address the safeguards which may be required to ensure accountability. I make no secret of the fact that I should like to see the European institutions made more accountable. Because there are those who would like to see the nation states of Europe have more power, and the Union less power, we have arrived at a compromise which probably represents the worst of all worlds. We have institutions which exercise wide powers but have a reluctance to entrust the European Parliament and the European Court with the power to control them.
The question of the jurisdiction of the European Court was referred to by the noble and learned Lord, Lord Slynn. I respectfully agree with what he said. But that is not the problem in the case that we are discussing. The authority which exercises such wide power over so many individuals is in fact each nation state. I suspect that that may represent a pattern which we may find in the future in third pillar conventions.
In paragraph 83 of our report, we say that we are concerned at the imprecision of the grounds on which a member state may add a name to the list. I refer in particular to the two grounds mentioned by the noble and learned Lord, Lord Slynn. One ground is,information to the effect that the person concerned has committed a serious crime".It does not even need to be reliable information. There is nothing in the draft convention to indicate that an individual whose name is on the list should be told that his name is on the list. If he applies for a visa, and is refused, he will know that he has been refused a visa. But he may not require a visa to make the journey that he has in mind. He may arrive at Heathrow at 8.30 for an important meeting in central London at 10.30 and either may be held for two hours while being interrogated or, more probably, simply sent back on the 1043 next aircraft. The potential unfairness is exacerbated if the individual is not told what is happening until it is too late to make alternative arrangements.
I understand, as we state in the report, that an individual will be protected by Article 20 of the Convention on the European Information System. However, that leaves him largely at the mercy of the member state, "before which he invokes" his right of access to the information. That may not even be his own state, because the right to be exercised is,in accordance with the law of the member state".For the reasons set out in paragraph 85 of the report, I believe that there is a need for some safeguards within the convention or elsewhere. An individual refused entry because his name is on the list should have a right to be told which member state has required his inclusion and be accorded a right judicially to challenge his inclusion.
These are worrying matters for anyone who cares for civil liberties. But they are particularly worrying as an example of what I believe we may expect from third pillar conventions. There may be a need for co-ordination in a particular area of activity, but it cannot be addressed unless every nation state is carried along, and safeguards for individuals may be the negotiable trade off. What emerges may represent the lowest common denominator among the member states.
I hope that I may transpire to be unduly pessimistic. But so often, it is when I am most pessimistic that I transpire to be right.
§ 5.8 p.m.
§ Lord Rennell
My Lords, I should like to speak on the issue of short stay visas for non-member nationals visiting the UK. At the moment, a citizen of Tashkent in Uzbekistan who wants to visit the United Kingdom has to apply to Moscow for his visa, with all the appropriate documents. In addition, he is then required to visit the British Embassy in Moscow for an interview. That is a round trip to a foreign country of more than 4,000 miles. It is expensive and time consuming. The United States, France, Germany, and Israel, and other major and minor trading companies have visa issuing facilities in Tashkent. UK companies are at a disadvantage, in particular at a time when trade with Uzbekistan and other Russian and CIS countries is growing quickly.
We have a reputation to uphold. Our embassies and consular offices are a haven for our citizens worldwide. I believe that our foreign friends also have their perception of help and friendliness when they visit our offices abroad. My reason for speaking today is to ask my noble and learned friend on the Front Bench for his consideration that, in addition to the report that we are discussing today, Her Majesty's Government will not forget the high reputation for fairness and efficiency which our diplomatic representatives have. I ask that the Government ensure that our consular visa services retain that reputation.
I should like to give an example of my concern. A British company with offices in Moscow and Tashkent wanted to bring a young Uzbek trainee employee to the UK for basic training and a short English course. Having 1044 submitted all the necessary application forms, he visited the consular section of the British Embassy in Moscow—a round trip, as I said before, of 4,000 miles—and was sent back without a visa because, although he had his Russian passport, he did not have his local internal passport. He was given a second appointment a month later. At that stage, three weeks before his next interview, a comprehensive letter was written to the consular section in Moscow by the sponsoring British company stating the full reasons for the visa application, giving the reference number of the application and enclosing a copy of a letter from the English school where the trainee would be studying.
When the unfortunate Mr. Khafizov, who spoke little or no English and had probably never been out of his country before, arrived for the second time in front of the firm but fair immigration officer, he must have had a very hard time. The report of the interview reads as follows:Your original application and invitation to the UK"—this was for a one-month visa—was for a business visit, it was changed to short term studies only after you had been invited for a further interview. You state that you do not know why the sponsoring company has invited you to study English, the only reason you could give was that maybe the president of the company just liked you. Furthermore you can not explain why you need to study English or why you specifically need to study in the UK other than that you like English. There is no indication that English is necessary for your employment, in fact quite the contrary as you state that your employer is not sending you to the UK and not sponsoring the studies. I also have to take into account the fact that you have not yet applied for leave from your employment to cover the period of your studies. I note that you state that you have no plans for after these studies which indicates to me that you do not intend to return to your current employment, this is further indicated by your statement that you may work for the sponsoring company but you are unable to provide a written offer of employment. Taking account of all the above I am not satisfied that you are a genuine student who will leave the UK after the 1 month period stated.I am therefore not satisfied that you are genuinely seeking entry for the purpose and for the period as stated by you.I therefore refuse your application".At the bottom the gentleman has signed the document, which states that the contents have also been explained to him in Russian.
I was rather shocked to read what seemed to me a rather bullying sort of interview. Here was a person who could not speak English; he was not accompanied by a friend or by his own interpreter; and he was probably unaware of the interpretations of the questions that were put to him. One can also only presume that the explanatory letter from the sponsoring company had been mislaid and that it was certainly not read by the interviewing officer.
I am of course aware that it is all too easy to find faults. There is no doubt that the visa office in Moscow is under great pressure. It may be no great consolation to know that we are not alone in this problem. The United States Ambassador in Moscow recently defended his embassy against Russian accusations of rudeness. Nonetheless, he promised to increase personnel and space in order to speed up the visa issuing process. In the Soviet era, the US embassy dealt with 3,000 to 4,000 visa applications a year. Today, more than 130,000 1045 applications are filed annually. I have no doubt that our Moscow embassy is faced with a similar huge explosion of applications.
I was very pleased to read in a Written Answer from my noble friend Lady Chalker of Wallasey that there are plans to commence visa services in Uzebekistan soon—indeed, it is hoped no later than the first quarter of 1995. Those plans, together with further visa issuing facilities in Belarus and other CIS countries, will help enormously in relieving the strain on Moscow's resources.
Finally, I ask my noble and learned friend Lord Rodger of Earlsferry to ensure that during the careful study of the report that is in front of us today we do not lose sight of the importance of the United Kingdom's good reputation for providing an expanding, efficient and friendly visa issuing facility.
§ 5.15 p.m.
§ Lord Dubs
My Lords, this report is very useful, and it throws light on an area of policy which is not generally all that well understood. It incidentally also throws light on European decision-making processes. I have long argued that some areas of policy that have hitherto been very much within the national domain are increasingly being determined by Brussels. I refer, for example, to policy on asylum seekers and refugees.
Perhaps I may turn to a number of concerns that are highlighted by this report, and first, the secrecy with which these decisions are made or approached in Brussels. Although today we have a chance to talk about the convention, had it not been for the issue of Gibraltar which gave rise to its delay, it might well have been implemented, signed, sealed and settled before we had had a chance to consider some of the details. The secrecy that surrounds some decision-making by the Council of Ministers is undesirable. It lacks accountability and is essentially undemocratic. We ought to encourage more openness and transparency. Even if we look at measures which I have found undesirable, such as the Asylum and Immigration Appeals Act, at least that had the benefit of procedures which were open, which could be understood and on which every individual citizen of this country could Make his or her views known to politicians.
In contrast, the lack of transparency that emanates from Brussels precludes this type of approach. In the past we have had interesting leaks. The Guardian occasionally carries very interesting stories about matters which are being kept secret. But surely we should not have to rely on leaks in order to keep ourselves informed as to what is under discussion.
I know that the official answer is that the Government never reveal the details of negotiations concerning international treaties. But I would argue that when we deal with matters which have large elements of human rights in them and which are in effect being dealt with in Brussels instead of being initiated here, then the argument that international treaties should not be, as it were, open to scrutiny, falls down. I suggest that it should not be applied in instances such as this.
1046 Not only is there secrecy and a lack of openness and transparency; the report also makes it clear that some of the procedures are complicated and that indeed there is uncertainty in respect of some of the procedures. Some of the witnesses disagreed with each other about their interpretation of some procedures—they disagreed, for example, on whether it was a treaty or a convention. The report makes clear that there must be doubts about the links between the Dublin Convention, the Schengen Agreement, to which Britain is not a party, the new convention which may or may not be implemented, depending upon the Gibraltar issue, and indeed other matters of policy which European countries have decided, some of which have been implemented through national parliaments.
I would argue that, even if the future course is for the Council of Ministers to play the same part that it does now—whether that should be the case is a subject for a different debate—I would urge that the Council of Ministers should make itself more open to scrutiny and that it should make its proceedings known to a wider public. I believe that when Denmark took the presidency after the United Kingdom, the Danish Government were quite sympathetic to the idea of more openness, but other countries did not like that idea too much.
I now turn to two specific issues which have already been mentioned in the course of this debate. The first is the joint list. I very much agree with the criticisms that were made of it by my noble and learned friend Lord Archer. Perhaps I may raise one or two further issues in relation to that list. I welcome the fact that the report says that if a person is on the list, he or she will be entitled to speedy judicial remedy in the state which put him or her on the list. It follows that it must be made known to that person which was the state which did so.
But let us consider the United Kingdom. We do not have any remedy. Other countries may be better than we are. My understanding is that we do not have any remedy at all. The last remedy that existed was appeal against a refusal of a visa for visitors or students. That was taken away by the Asylum and Immigration Appeals Act. So we do not have any remedy. The undertaking is rather hollow so far as this country is concerned, even if it is a valid undertaking with regard to other countries of the European Union.
But the criticism goes further than that. If an individual is refused—the previous speaker gave a dramatic instance of such a refusal—he may be refused even if he is not on the stop list but simply because immigration officials have decided that it is not appropriate for him to come to this country. So there is a wider list of people who are refused than the stop list itself. Does such a refusal mean that an individual will automatically be put on the Europe-wide stop list? There is a certain logic which says that that should be the case, but I hope that the answer is otherwise.
In any case, we know very little about our own stop list. I tried to find out about it. I visited Heathrow Airport years ago and was shown round by immigration officials. I saw the black book but I was not allowed to get within three or four feet of it or even allowed to know how many names it contained. But someone told me—I picked it up somewhere —that there are about 1047 6,000 names on our stop list. No doubt the Minister will neither confirm nor deny it. It is a difficult area and one which I believe poses a threat to civil liberties.
I turn to the carriers' liability Act and fines on passengers who arrive without proper documentation. The report says—I welcome it—that primacy should be given to the European Convention on Human Rights and to the refugee convention. But that might be difficult to achieve in practice. I am rather more familiar with the refugee convention. If an individual is living in a country where the government is persecuting him, it is extremely difficult for him to apply for a passport from that government. One only has to think of an Iraqi Kurd applying for a visa to the regime in Baghdad. It is absurd. Many people who are persecuted simply cannot get passports. Even if they happen to have a passport in the first place, it is very difficult when facing persecution or in fear for one's safety to hang about waiting for some other country to issue a visa.
In that situation, individuals do what any Member of this House would do. Let us be honest—if our lives were in peril, we would get forged documents, would we not? Yet, preventing the owner of such a document boarding a plane is precisely what the carriers' liability Act is meant to do. So there is the paradoxical situation that the only way of escape for an individual may be a forged document or a forged visa; but here is legislation intended to stop anyone boarding a plane with such a document. I suggest that there is a Catch-22 situation, and it is hard to argue for the primacy of the refugee convention. I fear that this type of legislation makes it very difficult for people in countries where there is a great deal of persecution to escape and find safety elsewhere.
I conclude by welcoming the Select Committee's proposals with regard to the European Court of Justice. It seems to me that if there is to be secrecy, lack of openness and lack of transparency, then at the very least there should be certain safeguards. There may be other models for safeguards, but I believe that the European Court of Justice represents, in the arguments of the Select Committee, a welcome safeguard. I hope that that is a message that will go from this House to the Government. It is a desirable step forward.
§ 5.26 p.m.
§ Lord Lester of Herne Hill
My Lords, the Select Committee deserves our gratitude for having produced such a cogent and compelling report. It raises a number of important issues which merit careful consideration. They have been fairly and carefully considered in this concise and well focused debate. There seems to be a wide consensus of view, to which I shall add in my remarks.
The noble and learned Lord, Lord Slynn of Hadley, observed at the outset that this is the first time that the Select Committee has examined a proposal for an international convention under negotiation within the justice and home affairs pillar of the Europeart, Union. Previous negotiations regarding external frontiers took place in secret. By contrast, these proposals of the Commission are open to scrutiny by national parliaments and anyone else who is interested. I am sure 1048 that all noble Lords will agree that that is a most welcome development—a more open approach to democratic parliamentary scrutiny of the decision-making process. It originated with the Commission and is a much more open approach than has traditionally been permitted to citizens of this country by successive governments when negotiating treaties in the exercise of their prerogative powers.
The problem of secrecy, to which the noble Lord, Lord Dubs, referred, is surely important. But it is not the fault of the Brussels Commission. It is the responsibility of governments. I am slightly torn on this issue. Much as I press for greater parliamentary scrutiny of the treaty-making power of government, I am reminded that it was Senator Bricker of the United States, whose notorious amendment has led to an extremely insular and reactionary approach in which Congress frequently overscrutinises what the Executive branch does in that area, in a way that liberals like myself deplore. Having said that, I am undoubtedly on the side of those who wish for effective parliamentary scrutiny.
There are obviously many hurdles to clear before either of the measures under discussion comes into force. But the Select Committee's report makes a real and significant contribution to the development of Community policy in an area which affects the basic rights and freedoms of third country nationals seeking to enter the European Union.
The closer integration of Europe will inevitably lead to much greater movement across borders and it will become necessary to have co-ordinated control of the external borders of the member states, as the noble Baroness, Lady Park, emphasised. The Maastricht Treaty created new opportunities for making progress in this area but it is important to ensure that progress is made in the right direction, with adequate safeguards against the misuse of necessary powers exercised by the public authorities of the member states.
Like the noble and learned Lord, Lord Slynn, I want quickly to refer to four of the important issues raised in the report and in this debate: the proposals for a joint list of undesirable immigrants; carriers' liability; the jurisdiction of the European Court of Justice in this area; and the negative list. I shall not comment on the individual case mentioned by the noble Lord, Lord Rennell, about the issuing of student visas in Moscow for Uzbek applicants.
Let me speak first about the joint list. As the noble and learned Lord, Lord Archer of Sandwell, pointed out, the proposed joint list is an amalgam of 12 national lists of undesirable immigrants seeking entry from third states. An individual who has the great misfortune to be on the joint list will be excluded from all 12 member states. A placing on the list is to be based on a decision taken purely in accordance with the national laws of the member states, in accordance with a curious use of the principle of subsidiarity.
The committee expressed concerns about the proposal for a joint list, concerns which I, like the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Dubs, entirely share. Some of the grounds set out in Article 10 for a national decision to place a 1049 person on the joint list are vague and imprecise. There is a real and substantial risk that entries may be made by mistake, or through spite or ill will.
To relieve the possibility of error and serious injustice there must be effective safeguards and affordable remedies for those excluded because their names wrongly appear on the joint list. As suggested by the committee, some protection may be provided by the draft convention on the European information system. But that does not amount to sufficient protection. Under the draft convention, the individual's right of access to personal data held on the European information system is to be exercised in accordance with the law of the member state before which the individual invokes that right. For example, at present the protection of personal privacy in the United Kingdom is mainly contained in the Data Protection Act 1984.
The 1984 Act provides a legal framework for the processing of personal data. But the Act is concerned only with computerised or computer-usable information. It gives no right of access to paper files contained in manual systems. Therefore, any paper records relating to a placing on the joint list will be inaccessible and the denial of such information will severely hamper any appeal which may be made against the decision, if any appeal were allowed. As the noble Lord, Lord Dubs, pointed out, the judicial and other remedies in this country are otherwise extremely limited.
I agree with the committee that there is a need for a separate resolution or amendment to the European information system convention to ensure that member states have in place effective data protection mechanisms which will enable individuals placed on the joint list to access all data relevant to the decision to place them on the list, whether computerised or otherwise. In particular, the committee recommends—and I agree—that the individual refused entry in consequence of inclusion on the joint list should be told which member state placed him on the list and the nature of any allegation said to justify exclusion. The convention should include the requirement of appeals at national level against the decision to place a person on the joint list. Such appeals should take place as quickly as possible. It goes without saying that the list should be regularly updated to remove names no longer relevant or which were placed on the list in error.
I turn briefly to carriers' liability. The imposition of "appropriate penalties" on carriers, as the noble Lord, Lord Dubs, emphasised, is capable of interfering with the ability of asylum seekers to escape from countries where they had a fear of persecution. It would be a grave mistake if carriers were to refuse to carry asylum seekers for fear of penalty under the national legislation. I agree with the committee's recommendation that Article 14 of the draft convention should be modified to conform with Annex 9 to the Chicago Convention and permit the imposition of fines on carriers only where a carrier is negligent. There is also a need for legislation to make clear to carriers their overriding duty not to frustrate the right to seek asylum.
1050 In an effort to avoid penalty, airlines will undoubtedly tighten their procedures. Decisions on immigration control will be delegated to airline staff who are obviously not qualified to take into account the human rights obligations of the member states, both under the Geneva Convention relating to the status of refugees (and protocol) and under the European Convention on Human Rights. As the committee recommends, it would be beneficial if immigration officers and airline staff received instruction so as to ensure full compliance with the UK's obligations under the European convention and the refugee convention, even though, as the noble Lord, Lord Dubs, explained, the safeguards provided by those conventions in that area are only of limited value.
I turn to the jurisdiction of the European Court of Justice. Again, I agree with the committee which supports the European Commission's proposal to confer on the European Court of Justice jurisdiction to give preliminary rulings concerning the interpretation of the convention and jurisdiction in disputes concerning the implementation of the convention. In my view it involves no violation of pure jurisprudential doctrine that that should be done, even though, as we heard, the convention is an international treaty.
As the committee rightly stated, the European court would ensure broad uniformity of standards of control and help to give effect to obligations under the European Convention on Human Rights. There would be great benefit in drawing upon the experience of the European court and its power to interpret and apply general principles of law, not yet fully recognised by the courts of this country, such as the principle of proportionality, so as to ensure, for example, that the penalties required by the external frontiers convention are not disproportionate and do not vary dramatically between member states and so distort control of the external frontiers.
Finally, I come to the negative list. It is a list of countries whose nationals would require visas to enter the territory of the member states. It would impose a visa requirement on a further 45 countries in addition to those the UK requires at present. The noble Baroness, Lady Park of Monmouth, gave powerful reinforcement to the committee's conclusion that the list is inordinately long and would be damaging to the interests of the UK and its visitors. The list should be shortened to remove a number of Commonwealth countries and the 12 member states should seek to formulate coherent criteria common to all.
The Refugee Council was right to point out in the Select Committee hearings that most people fleeing from persecution find it almost impossible to obtain a visa. By imposing the visa requirement so widely, the European Union would be shutting out potential asylum seekers from a large number of countries.
It gives me great pleasure to support the Motion of the noble and learned Lord, Lord Slynn of Hadley, to take note of this admirable report. It is a particular personal pleasure because I have long sat at the noble and learned Lord's feet. When I was an undergraduate at Cambridge I learnt the history of the law of assumpsit from him sitting, as I recall, with Sir Leon Brittan on the end of Queen Victoria's bed in the judges' lodgings 1051 at Trinity College, Cambridge. And I have been learning from him ever since. We are fortunate indeed to have such a distinguished former member of the European Court of Justice and serving Law Lord as a main architect of this admirable document.
§ 5.37 p.m.
§ Lord McIntosh of Haringey
My Lords, I am happy to join with all other noble Lords who expressed their gratitude to the noble and learned Lord, Lord Slynn, and his colleagues for this report on a most important subject. I confess that as a non-lawyer I found a good deal of the argument difficult to follow. I tried to leave aside those parts of the legal argument which did not seem to me to be important or essential for the political and social decisions which arise from the issues. Noble Lords who are legally qualified will therefore forgive me if some of my comments appear to be somewhat simplistic.
The most important thing about the report is the extent to which it is an innovation in the consideration of European draft legislation and conventions. The ability given under Article K for us to consider these conventions in draft and the way in which Article K, and in particular Article K.3, enables them to be dealt with by proposals from the Commission to the Council and by consideration then by the Council, and for the views of the European Parliament to be taken into account, are clearly important for the future of national scrutiny of European directives and legislation. If the advantage which the sub-committee had in dealing with the matter before the text and details are finalised is to be followed in the future, the work of our European Communities Committee will be immensely strengthened.
In this case, however, we obtain little advantage from it because the convention which we are considering this afternoon and which the sub-committee considered is in itself a recycling of a 1991 convention which was arrived at in accordance with the old secretive rules which my noble friend Lord Dubs rightly criticised. It is only before us because of the outstanding disagreement between Spain and the United Kingdom about Gibraltar. Otherwise, as my noble friend said, it would already have been enacted and we would not have been able to say anything at all about it. But the implication that it is a recycled convention, using the new ability of the Commission to raise matters itself when they appear to be in deadlock, means that there has been a self-denying ordinance on the part of almost everybody except the European Parliament and your Lordships' sub-committee to proposing significant changes to the convention. The likelihood is that significant changes will not be made to the conventions. In theory, the way in which we have been able to consider the conventions is hopeful for the future; in practice, the limitations on these particular conventions are rather severe.
I should like to make my comments in the order in which the summary and conclusions in paragraphs 109 to 121 have been presented by the sub-committee. That does not mean that I need comment on all of them but I want to comment on the most important ones. Paragraph 109 refers to internal border controls and 1052 expresses the view of the sub-committee, as of previous sub-committees, that it should not be obligatory on the United Kingdom to demolish internal border controls between the United Kingdom and other member states. I do not have very much sympathy with that view, but I do not think it is a matter on which we should excite ourselves too much as the European Court of Justice will be issuing a ruling in the fairly early part of next year. The implications of that ruling, particularly if it is ruled that inter-member state movements cannot be subject to border controls, are very significant indeed.
Paragraph 110 deals with the status of the conventions and brings out the difference between the Home Office view, which is that this is an international agreement which members may sign or not, and the view of the Commission, the wording of which I do not pretend to understand in detail. It may not matter very much except for the fact that the Commission's view—the Article K procedure to which I have already referred—involves a degree of consultation between the Commission, the Council and the European Parliament before a text is finalised. My noble friend Lord Dubs drew attention to the value of that process which would not be available from an international agreement, which needs to be ratified by individual states, produced in the older way.
A further consideration which leads me to greater sympathy with the Commission's view than the sub-committee had is that essentially an agreement of this kind has to be implemented with unanimity. One cannot have an agreement which is ratified by a number of member states but perhaps by not all of them and implemented in different ways. I appreciate that the status of the regulations is quite powerful. Even so, I believe that we have to go into this with a degree of unanimity about both what the conventions contain and the way in which they are to be implemented, even if that means, as was pointed out in evidence to the sub-committee, that very often the result is a compromise which satisfies no one completely.
Paragraph 111 refers to airports. Here I think a little common sense rather than legal argument is called for. It seems to me common sense that the British provision for transit passengers to be treated as airside—in other words, not to go through procedures as they arrive at, in particular, London Airport, but also other airports within the European Union—should be preserved. Noble Lords may know of the procedures facing anyone who enters the United States and wishes to move onto a connecting flight. One goes through immigration procedures in, for example, Seattle before catching a flight to San Francisco, or even worse, one undergoes immigration procedures in San Francisco, where one can wait for two hours before catching a connecting flight to somewhere else. The airside provision for transit passengers, whereby one knows what one's minimum connect time is and that one can catch one's flight and that it is only at one's last destination where one is not catching another flight that one has to go through immigration procedures of perhaps unpredictable length, will recognise that our system is much better. I hope that all effort will he made by the Government to support that view.
1053 On the other issue of the difference between domestic and international flights, with the extension of domestic flights to include inter-European flights, I think that the airports and the airlines are going a little over the top. After all, Heathrow Airport already has two terminals—Terminal 1 and Terminal 2—which are largely for domestic and European flights and two terminals—Terminal 3 and Terminal 4—which are largely for international flights. Given enough time, I agree, it is not a great problem to redefine domestic flights to include European flights and to make provision for immigration and Customs facilities accordingly. It may be awkward for individual airlines to do both, but it is not a problem of the greatest significance. The worst solution would be if the nine Schengen states were to go ahead with abolishing internal controls and the UK, Ireland and Denmark were to be left on one side. Then we really would be pariahs in Europe.
The most important issue of the joint list has been dealt with by many noble Lords and for very good reason. Inherently, a joint list which is created by bringing together the names of those whom any member state wants to put on but yet which requires the agreement of a large number of member states to get them off will be the lowest common denominator of common sense. It will be the easiest list to get on to and the most difficult list to get off. It does not seem to me that the remedies proposed are adequate for the purpose. The sub-committee uses the phrase "judicial remedy in that state". As has been pointed out, after the Asylum and Immigration Appeals Act 1993, the United Kingdom does not have adequate remedies because we have deliberately abolished them. But I am sure that that is true in other states as well. Surely what we need is not judicial remedy in individual states but common measures accepted throughout the European Union to resolve disputes and appeals.
Exactly the same goes for paragraph 113, which deals with residence permits. The problem is that if a single member state removes the residence permit of an individual the individual cannot get into any of the 12, soon to be 15, member states. That seems to be going over the top. Again, the same principles of common measures to resolve disputes apply.
Paragraph 114 is wholly welcome. It deals with the need for an explicit link with the European information system. This is linked very much into the ability of individuals to appeal against their inclusion on a joint list. I would suggest that it would be desirable to include reference to the European Convention on Data Protection, which deals with the quite sensitive issues of the need to inform individuals about what information is on a list—it will, after all, be a computerised list—without at the same time making information about them available to those who might wish to damage their interests, in particular those in other countries who would wish to persecute them.
The issue of carriers' liability has been a matter of concern to your Lordships over many years. I know that there have been heated debates on the subject. That has been true because the United Kingdom takes perhaps a more extreme view about carriers' liability than almost 1054 anyone else. We insist not only on repatriation at the carrier's expense but also on very severe financial penalties, many of which some airlines are still not paying. A considerable amount of money is still outstanding.
We do not make any provision for the recommendations of the sub-committee made by a number of noble Lords that carriers should be liable only if it can be shown that they have been negligent in their procedures. The implications of carriers' liability go far beyond the interests of the individual airlines. They extend to the core of the issue of refugees and asylum seekers, as the noble Lord, Lord Dubs, and others have rightly said. If we are to act in accordance with Article 9 of the Chicago Convention, we shall have to do something about the problem that refugees and asylum seekers have rights only when they are in the country. But they cannot get into the country at all in order to claim those rights if the regulations about carriers' liability go over the top and exclude all those who may, for perfectly understandable and good reasons, be fleeing from persecution in their own country.
I shall deal very briefly with paragraph 116 on the jurisdiction of the European Court of Justice. Without in any way suggesting to the noble Lord, Lord Lester, that I agree with his views about the incorporation of the jurisdiction of the European Court of Justice in United Kingdom law, in general I certainly agree with all that has been said about the jurisdiction of that court as regards the matters concerned with these conventions.
Paragraph 117, 118 and 121 have been very adequately dealt with. They concern visas and the positive and negative lists of countries. I do not remember which film musical it was, but I believe the line is "Accentuate the positive and eliminate the negative".
§ Lord McIntosh of Haringey
I have no doubt that the noble Baroness is better informed on these matters than I am. I am sure that she can correct me afterwards if I get it wrong.
§ Lord McIntosh of Haringey
My Lords, it is important to minimise in particular the grey list which is going to cause confusion for everybody. As the noble Baroness, Lady Park, said, it is true that the actual lists are crazy. That has implications for asylum and for conformity with the Geneva Convention of 1951.
Finally, and very briefly, I agree very much with what has been said, particularly by the noble Lord, Lord Rennell, about short-term visas. It seems to me that a three-month period for a short-term visa is quite inadequate for the United Kingdom for two reasons—the educational reason which he cites and because as an ex-colonial power we have a very large number of people in this country with families in other parts of the Commonwealth and the former Empire. It is entirely proper that they should wish to be reunited with their 1055 families for a period longer than six months. It should not be a complicated matter of getting a European uniform visa and getting a national visa afterwards. We are asking for trouble if we get into that kind of complication. I cannot see what possible damage it can do to the other countries in the European Union if we insist on that point.
I apologise for racing through. The issues raised by this report are of considerable importance. The committee, the chairman and the advisers to the committee are to be congratulated on the way in which they have brought these matters forward, even if they have been unable to penetrate my thick, non-lawyer's skull in many respects.
§ 5.54 p.m.
§ The Lord Advocate (Lord Rodger of Earlsferry)
My Lords, in common with almost everyone who has spoken, I begin by thanking the committee for the work which it has done. I add my thanks to the noble and learned Lord, Lord Slynn, for instigating the debate which we have had this afternoon. I believe that everyone will agree that it has been extremely enlightening. It is one of the hallmarks of a report of this kind that it sheds light on something which can appear to be extremely complex. Sometimes it is very difficult to see the realities which lie behind it. The sub-committee's report and the evidence which was taken by it have done very much to inform your Lordships' House and many beyond it, of the important issues which are involved.
Many of your Lordships have drawn attention to the importance of this report as giving a chance to this House and Parliament to comment on the possible European legislation before it comes into effect. I believe that the noble and learned Lord, Lord Slynn, pointed out that this was in fact the first time that a question of a draft convention of this kind has been subject to a report by the sub-committee. The value of it has been proved.
I noted what was said not only by the noble and learned Lord, Lord Slynn, but by a number of other noble Lords, about the perhaps rather late stage in the proceedings at which this particular remedy of examination by the committee took place. I accept that to some extent it was the hazard of the failure to agree about Gibraltar which allowed that to happen in this case. I believe that the Government will have noted the points which were made in that connection.
Perhaps in addressing some of the topics which have been raised, I can to some extent give your Lordships some information about the events which have happened since the report of the committee in July. Before doing so, I mention one particular matter raised by my noble friend Lord Rennell in connection with visas. Of course I accept that it is a very important function of the Foreign Office that the visa service should be satisfactory. The consular section of the embassy in Moscow has recently been strengthened.
My noble friend drew attention to a particular problem. At present there are no plans to extend consular representation throughout the former Soviet Union. Nonetheless, in the case of Tashkent it is 1056 intended that a consular office will be opened there sometime next year as soon as suitable accommodation can be found. My noble friend made an important point and I shall pass it on to Foreign Office Ministers.
Like the noble Lord, Lord McIntosh, I cannot think of a more logical way of dealing with the matter than by going through some of the paragraphs in the same order as they occur in the report. I welcome paragraph 109 where the committee returns to Article 7a which it had dealt with before. It reaffirms its view that no legal obligation is imposed by that article on member states to abolish controls on people at internal community borders. As many noble Lords will know, that has long been the view of the United Kingdom Government. In that connection, as the noble Lord, Lord McIntosh, indicated, it may be—although not necessarily the case—the subject of a ruling by the European Court in connection with the action which the European Parliament has brought against the European Commission for its alleged failure to ensure the complete abolition of frontier controls. The United Kingdom has taken the opportunity of intervening in the case to set out its interpretation of Article 7a. Contrary to what the noble Lord, Lord McIntosh, indicated, our latest information is that the case is unlikely to be heard until the middle of 1995 at the earliest.
In paragraph 110 the committee made a recommendation in connection with the form of the convention. Although it seems a technicality in some ways, this is a matter to which the Government have attached great importance for the kinds of reasons to which the committee referred. I am pleased to be able to tell your Lordships that earlier this year the Council agreed that a final Act drawing up a convention under Title VI should recommend its adoption by member states in accordance with their respective constitutional requirements. Therefore, the convention will be signed by representatives of the heads of government of member states as is consistent with the principles of international law, with the signatures taking place on the same day as that on which the text is formally drawn up. The Government are participating in negotiations on the draft convention with the aim of arriving at a text which has the full character of an international agreement.
From that somewhat esoteric matter, I turn to the reconfiguration of the airport and to the position under the recommendation in paragraph 111. This is a matter of considerable importance. We are all aware of the role of Heathrow and Gatwick airports as hub airports. It is apparent that any change in the present arrangements for routeing airside transit passengers raises important questions about the necessary infrastructure changes and the inconvenience to both carriers and passengers. As your Lordships will appreciate, this matter has been the subject of negotiation. Most of your Lordships do not find the provisions particularly attractive. My understanding is that there is no current intention that those provisions in the convention should be amended. Nonetheless, it is correct to have regard to the cost consequences of the changes. Our understanding is that if those convention provisions were to go through, the cost of the necessary adjustments to the infrastructure of 1057 the airports would amount to up to £450 million, so it is no small matter. Obviously, if that is to happen, it is important that adequate time should be allowed for the implementation of the changes. The Government will bear that matter fully in mind when negotiating a date for the implementation of the convention. At the moment, officials are liaising with representatives of the industry to arrive at a solution that will, as far as possible, minimise any possible disruption to the airports and their passengers.
It is fair to say that paragraph 112 was of concern to almost all noble Lords who have spoken. It was plainly of great concern to the committee. As I understand it, everybody accepted the basic principle behind the idea of an external frontiers convention and its consequence, having a common list. However, I believe that all noble Lords had apprehensions about the way in which the criteria had been laid down and on the question of appeals.
On the question of exactly what the criteria will be and how they will be put into legislation, the Government cannot at this stage give any indication of our final view. That is because of the provision in Article 10. As some of your Lordships mentioned, although the criteria are set out, the detailed rules have to be determined by measures that are provided for in order to give effect to the convention. Those measures might well require legislation in this country. The final details have not yet been worked out.
In that connection, it is the Government's view at this stage—this goes along with much that has been said by your Lordships—that once a person learns that his name is on the list, he should be informed which country put his name on the list. That is for the obvious reason that unless he is told that, he will have no access to a system whereby he might have some form of redress. As to the form of that redress, the Government do not anticipate that this country will provide for an appeal if somebody's name has been included on the list. Noble Lords may not care for it, but it corresponds to the position that was taken in the 1993 Act. However, that does not mean that those whose names are included on the list are without all judicial remedy because if the inclusion of a name is for some reason unlawful, the person concerned would have a right of judicial review, as in other cases.
On the matter of the European information systems convention, like the committee, the Government fully accept that it would be proper to make a formal link between the convention and the information systems convention.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for allowing me to ask a question on that point before he moves on to the next subject. So that I can understand the way in which a judicial review would work, can we assume, so as not to offend any existing member state, that a state called Ruritania becomes a member state of the Union and considers that there are serious grounds for thinking that someone from outside is a threat to Ruritania's public policy on national security? The person is told that it is Ruritania 1058 that has put him on the black list. If Ruritania has the kind of limited judicial review that we have in this country, the person concerned will have very little opportunity of obtaining redress in either that country or this country. I wonder, therefore, whether the Minister can indicate a way in which judicial protection can be real rather than symbolic in this area.
§ Lord Rodger of Earlsferry
My Lords, if Ruritania had the same kind of judicial review as we do, presumably the person would have the same access to remedy in Ruritania as in this country. I am thinking, for example, of a case where the decision to include a person's name on the list was unreasonable, based on a mistake or made on the basis of insufficient evidence. The noble Lord is familiar with such categories. The person concerned would have that kind of remedy. He would not have the remedy of an appeal, as I have made clear.
The matter of carriers' liability has occupied your Lordships on previous occasions also, and some of the points that have been made today can be made in respect of carriers' liability in any context. In this context, we have made it clear that we have invoked the provisions of Annex 9 of the Chicago Convention which allows governments to register a difference between their legislation and that provided for by the convention. We see no conflict with the convention. Indeed, I do not think that such a conflict was suggested.
The carriers' liability legislation is a form of legislation which has been introduced by many countries to meet what is perceived as being a problem with forged and other unsatisfactory documents. The Government have done a great deal to train people at home and abroad in all aspects of the legislation and in detecting forgeries. As I understand it, over 320 training visits have been made to locations in 79 different countries. The programme is continuing. In addition, the Immigration Service is available to give advice on a 24-hour basis. In that way, we hope that the staff involved will have a full understanding of the legislation which they have to implement.
As the noble and learned Lord Lord Slynn recognised, the role of the European Court of Justice is a matter upon which views may be divided. Most noble Lords who spoke were in favour of the ECJ having a role. Despite that recommendation, the Government are opposed to the court having jurisdiction over the interpretation and implementation of this convention. As your Lordships know, Title VI of the treaty does not confer jurisdiction unless the member states agree. In this case the Government consider that jurisdiction should be a matter for national courts.
Much evidence on that matter was laid before the committee. While the Government take the view that it is inappropriate, as this is a third pillar subject, it is fair to say that even some of the witnesses who were broadly in favour of the ECJ could see practical difficulties which, to some extent, are reflected in the committee's recommendations regarding the ECJ's role in taking references on this matter.
1059 Perhaps I may cover the last provisions quickly. We accept fully what the committee said on the competency issues raised under recommendations 117 and 118. They correspond fully with our view.
Finally, the common visa list raises an issue which, again, is of importance to many noble Lords who have noted the extent of the positive list. It is a strange positive list, because it has a negative effect. None the less, your Lordships have noticed that it seems to be extremely long. The Government's position is that it is too long, and that it contains many countries from whose nationals we do not require visas. The system works well without them. We hope that the list can be cut down during the course of negotiations. Of course we are in favour of having a common visa list, because it seems to be a way of minimising variations in national practice and is therefore something which, in general terms, the Community feels is desirable. While, as I say, we are in favour of the idea, we are not happy with the extent of the list at present and hope that when it is finalised it will be shorter.
I have been able to touch on only some of the issues. The debate has raised issues of great importance. It has been a worthwhile debate. I have no doubt that it will be the precursor of many future similar debates.
§ 6.15 p.m.
§ Lord Slynn of Hadley
My Lords, I thank the Minister for his comprehensive consideration of the most important topics which arise in the report. I thank also other noble Lords who have taken part in the debate. I thank, in particular, the noble Lord, Lord Lester, for his kind personal words. I hope that he remembers more of the history of assumpsit than I do.
This has been an important debate. Your Lordships have made clear how much importance should be attached to the review not just of Community measures but of proposals being discussed by member states under the second and third pillars. Your Lordships made clear too how important it is to protect those who seek asylum and those who may find their names wrongly on a list. I hope that the Government will continue to consider whether there should not be some unified appeal system throughout the Community, if, with experience, they find that persons are being put on the list and are not obtaining an adequate remedy. It is plain that there should be some form of sufficient protection for people who find their names on the list.
I attach great importance to the points made by the noble Baroness, Lady Park of Monmouth, about the difficulty of ensuring that there are to be controls at the external frontiers, even though the committee, as the Minister said, considers that internal border controls do not have to be abolished as a result of the Single European Act.
I have to say—your Lordships will not be surprised about this—that I am disappointed by the Minister's answer as to the role of the ECJ. He will not be offended if I say that I hope that that will not be the Government's standard reaction to proposals under the second and third pillars. We had a witness from a government department on another inquiry last week. We asked, "Should there not here be a role for the European 1060 Court?". "No, no, no", came the answer, "The Government do not like this sort of thing going to the European Court of Justice". I ask the Minister to bear in mind that all our witnesses were in favour; the European Parliament is in favour; and all noble Lords who have spoken tonight were in favour.
I am grateful to noble Lords for the attention given to this important topic. Once the regulation and convention are in force, that will lead to some interesting problems.
§ On Question, Motion agreed to.