By Sarah E L Stricker
From the ‘Dealing with the Refugee Crisis: Europe and Britain’ talk held 26 November 2015.
Interviewers: Alexandra Heaven (AH), Louis Goddard-Stark (LG)
Interviewee: Baroness Sarah Ludford (BSL)
LG – I first want to talk about refugees, the EU’s response to the situation, and how international human rights law is interacting with refugees through the EU. There has been a debate in academic circles over international human rights law and its applicability to refugees due to their non-national status. How much of an issue is applying international human right laws to refugees and how serious of an issue is it, given human rights law is sometimes ineffective due to a lack of enforcement?
BSL – This sounds like a legal dispute I am not privy to. My simple understanding is that both through the Geneva Convention and through EU law, it is absolutely clear, that EU obligations towards toward asylum seekers and refugees are, in the legal sense, in conformity with international refugee law and international human rights obligations as well as the EU convention of human rights. Now obviously compliance in practice is regularly tested. I think under the Geneva Convention, a refugee is someone who is outside their country and in need of protection – obviously I summarise that – but technically they don’t have to go through an asylum qualification practice to qualify under the Geneva Convention. But of course in practice you have to have, as EU law provides, a distinction if you like, between an asylum seeker, recognised refugees and someone who needs some other form of humanitarian protection. So you do need to have some sort of determination assessment or procedure. I’ve not seen it, I apologise if it’s my simple ignorance, a suggestion that the EU law as such is not compliant with the Geneva Convention. I mean, we know there are lots of problems, not least at the moment in implementation.
AH – Non-compliance can stem from a range of factors, some based on a state’s perspective of whether they should or not comply, but others’ reasons are based on whether they actually have the capacity to accept and comply.
BSL – Yes, that’s obviously one of the major issues. It has long been around, the debate, and certainly when I was in the EU Parliament – the balance between solidarity and responsibility of the individual member states. How far you should take collective responsibility and how far should the country of first arrival under the Dublin regulation take responsibility? It has to be said that long pre-dating the current strains on Italy and especially Greece, they have never properly implemented EU law on the reception directive, the asylum procedure directives, the qualification directive. And for some years now, I think the UK actually stopped sending people back to Greece under the Dublin regulation. Even before they were in court in about 2011. I think there was one in Strasbourg court and the Luxembourg court because Greece was not coping. How much they ever tried to cope, is a genuine question, but now of course, everyone has to recognise that whether they tried or not, they are not coping.
AH – Do you see a role for external organisation such as UNHCR or other international organisations to act above the EU on this issue?
BSL – No, I mean, UNHCR has always worked in partnership with the EU. I think the EU is the biggest funder to the UNHCR. UNHCR plays sort of a practical and a moral role as a guardian of the Geneva Convention system and we regularly used to meet UN representatives in the EU parliament and regard them as a bit of a touchstone for when the EU was getting it right and they (UNHCR) were often critical of EU measures. I think it was in September that – I think it was UNHCR – was highly critical of the lack of capacity in Greece in basic procedures to cope with the influx. You know, just having personnel there to register people and receive people and to do the paper work.
AH – Which is a legitimate criticism and I wonder whether UNHCR or some other body has a role to help Greece.
BSL – Well, I think all member states do. As I understand it, with Greece and Italy, there is this hotspots idea, and member states aren’t stepping up to the plate. And that is where the UK, I think, is one of the ones who has. But not very much. They have sent a handful of officials, I don’t know the exact details, but I think some of that (support) is direct bilaterally to Greece and some to the EU asylum support office (EASO). Which I think, with the idea of these hotspots, you’d have EASO, Europol and Frontex there on the ground. Partly to try and tackle traffickers, and I suppose the possibility of the few terrorist suspects getting through as well. But the main function is to boost the processing capacity that is not being provided, particularly in Greece. I think that there is not enough; I think the commission is complaining, certainly from something I saw earlier in September, only 6 member states have sent anyone to man these hotspots. Either directly or through EASO, after all, the UNHCR is needed more in Jordan and Lebanon and every other refugee situation in the world, so the EU should be able to provide its own personnel, it shouldn’t have to rely on UNHCR in Europe. The UNHCR has a policy and guidance role in Europe.
LG – You are seeing a lot of issues with regard to the EU failing on its obligation and part of its purpose, to protect refugees. Would you see this as an opportunity to come out as a more refined and tempered organisation with regard to refugees or could this possible spell the end for EU refugee considerations?
BSL – Well it is probably a defining moment, obviously I hope the former. Because, you know, it is part of our mission statement if you like; the EU is an organisation that is supposed to act in accordance with international law and the convention on human rights and the EU’s own charter on human rights all of which bind proper treatment of refugees. And if Europe cannot meet this challenge, then you know God help the rest of the world. But it’s not looking great at the moment. You know, what doesn’t kill you makes you stronger – well I hope it doesn’t kill us. We are seeing fracturing pressures, pressure to reinstitute national border controls, especially after Paris. This was happening before – the breakdown of Schengen, the rise of populist and racist parties. I saw that the French National Front has the lead in an opinion poll before the French regional elections. They were in the lead with 27%, and of course Marine Le Pen Is expected to be a presidential candidate 2017. It’s all very worrying. And now you’ve got this intermixing of migration and terrorism.
LG – This issue linkage of migration and terrorism, whilst it is putting greater strain on Schengen and bringing Britain into this, it is starting to become a far more prominent part of the referendum debate. For the referendum debate and also Schengen, what would you see as the way forward to deal with the issue linkages that populist parties, right wing parties and sometimes the media are raising between refugees, Schengen and security threats?
BSL – There is obviously no immediate prospect of the UK joining Schengen, I might say not in a million years. As the PM says, “like the Euro – it’s a never”. Well I certainly hope that neither is a never for the UK, but it is certainly not practical politics in the near future. But my, and I think my party’s, attitude is firstly that you have to have a European solution to both of these challenges. And that Britain has to take a leading part in them, whether in Schengen or not. Personally one of the things I criticise is the UK ‘s semi-detached attitude and their half-hearted participation on asylum, migration, justice and home affairs. We have this opt-in arrangement, we don’t have to participate. So we have participated in some of the asylum measures, but none of the migration measures. One of the big gaps is the lack of an EU legal migration policy, there have been little stabs at it, but the member states haven’t been willing to have a sane, legal migration policy – they have got all these measures on asylum, some of which are better than others. The UK only takes part in some of them. So we sort of hold ourselves aloof. But my response is to say; we can’t run away. We can’t take our bat home on either of these issues. Whether we are in or out of the EU we still have to have some kind of joint response to both of these issues. And you cannot, you cannot seal yourself off. We are supposed to be an open country – you can’t become a police state that totally hunkers down. Of course, that will be the reaction, unfortunately, of the people. That is the concern of the referendum campaign because the images on the screen from summer and autumn have been, in many people’s minds, and unfortunately will be that we want nothing to do with that and they will want to draw up the drawbridge. My reaction is to say that that will never succeed. You can’t do that, you do have to cooperate, you have to have cooperation on migration and asylum and you also have to have cooperation with policing.
LG – Obviously at the moment the media and public are saturated with why it is a bad to engage in Europe, why we need to draw up the draw bridge. I’d like to give voice just for the sake of equity, to your point of view in that we must engage in Europe, establish burden sharing, and ask you to lay out what the benefits are for the UK to engage in Europe on burden sharing and engage with Europe more broadly.
BSL – You know it’s very difficult to bring it down to a quantified exercise, but you don’t necessarily gain in the same area that you engage in. We have a broad interest in being part of the single market, for the free flow of goods, services and people. We need to cooperate on things like climate change, pollution, on trade with the rest of the world; you know, we would have much more clout to get free trade agreements with the US, China, Japan which are all in the possible pipeline with obviously the US one being in the forefront. We are a country which has traditionally engaged, and we would be the poorer in all kinds of way – cultural, economic, diplomatic. We are the international country by par excellence, a member of the Security council, we have the Commonwealth network. We are at the overlap of so many networks, so to think of the UK of cutting itself off as cutting itself off from the world by cutting itself off from its immediate neighbours. I mean, you can leave the EU but you can never leave Europe. So we are destined to be here geographically – and even the Euroskeptics say they want a free trade agreement with Europe, but you don’t have any say if you are just a dependant rule taker like Norway. So you know there is a whole range of issues on which we need allies and alliances and you can never quite tell whether because you put in here you got out of a pot over there. But on the whole the UK does very well negotiating in Brussels.
The Prime Minister says one of his four renegotiation aims is to make the EU focus more on jobs, growth, competitiveness, smart regulation, and cutting red tape. There is hardly anything for him to say there, because so much of it is now being done. Officials in Brussels say it is all being done, what we want to happen is already being done – some of it unpublicised. The Franco-British defence Corporation, to a considerable degree, which was initiated actually by Tony Blair, you don’t hear much about that. The Daily Mail would go apoplectic if they knew how much cooperation there was. So you can’t always tell exactly what you are getting out of the bargain but if you engage across a whole range of fronts. You can do a sort of balance –and indeed the last government did – a balance of competencies review. The Tories expected that to come out saying “oh we must repatriate all these policies from Brussels to Westminster”. And in fact that is not what business or civil society said, they did have a few grumbles, but they did say that on the whole it was about right, what the EU does. And we are reasonably happy with the British role in the EU and our gains and advantages from it.
LG – One of the key criticisms from UKIP for example is that the UK lacks some influence in EU negotiations and lacks control on many issues.
BSL – Of course because you don’t have a veto, what those guys seem to want, they want 100% control. It’s never going to happen. They have never heard the word compromise. You can’t win them all. It’s now a qualified majority voting scenario and the UK does not have a veto. So of course, you can’t. From that stable comes the absurd idea that you can get EU law decided between the Council and the EU parliament and when it comes back to the implementing in the UK, Westminster can have a veto. That’s not compatible with EU member law, however it is being decided. You can’t have a national parliament veto with 28 member states. It’s incompatible with the EU system. But they seem to think that sovereignty, this pure idea of parliamentary sovereignty, I mean a lot of those guys, UKIP and the Tory Eurosketpics they don’t like judges of any kind, domestic as well and European judges because they think that no one should call them, as MPs to account. They take the idea of parliamentary sovereignty to such a large extent.
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