Select Committee on European Scrutiny First Report





Presidency proposal concerning the extension of cross-border
surveillance (Article 40 of the Schengen Convention).

Presidency proposal relating to the amendment of Article 40 of the
Schengen Convention concerning the right of cross-border

German note concerning the initiative of the French Presidency on
extending the scope of cross-border surveillance pursuant to Article
40 of the Schengen Convention.

Legal base:
Document originated: (a) 25 July 2000
(b) and (c) 4 October 2000
Deposited in Parliament: (a) 25 July 2000
(b) and (c) 4 October 2000
Department: Home Office
Basis of consideration: (a) EM of 15 September 2000
(b) and (c) EM of 18 October 2000
Previous Committee Report: None
To be discussed in Council: No date set
Committee's assessment: Politically important
Committee's decision: (All) Cleared


  11.1  Article 40 of the Schengen Convention sets out the provisions under which officers from a Schengen state may apply to the competent authority in another Schengen state for permission to enter its territory in order to continue surveillance of a suspect. The French Presidency is proposing that these provisions be amended in order to widen the circumstances in which cross-border surveillance may take place.

Documents (a) and (b)

  11.2  Document (a) is the first version of the Presidency proposal; document (b) is a more developed version, which includes specific drafting amendments in the two areas where extension of the provisions is sought.

  11.3  The first area concerns the category of people involved. Currently, the application of cross-border surveillance is limited to people presumed to have been involved in an extraditable criminal offence. The proposal is to widen this to include "any person the surveillance of whom is necessary for the investigation". The intention is that this wording should encompass associates and family of the suspect, as well as victims.

  11.4  The second area concerns the offences for which applications for emergency surveillance (surveillance in which permission to proceed may be sought after the crossing of a national border) may be made. The proposal is to add the following to the existing list in Article 40 (7): counterfeiting of means of payment; laundering of monies obtained from the offences in the list; organised fraud; aggravated assault.

Document (c)

  11.5  Document (c) is a note from the German delegation to the Police Co-operation Working Party, supporting the French proposal and supplying a number of examples in which the extension of Article 40 would have assisted an investigation. In one instance, German police wanted to continue the surveillance of a courier believed to be carrying the proceeds of extortion when he crossed into France. The application was refused, as the courier was not suspected of the extraditable offence.

The Government's view

  11.6  In her Explanatory Memorandum of 15 September, the Minister of State at the Home Office (Mrs Barbara Roche) explained that, as the UK had no actual experience of Schengen police co-operation requests, it had asked the Presidency to provide examples of the difficulties encountered with Article 40. It had also requested a draft of the proposed amendments. (Documents (b) and (c) appear to meet these requests.)

  11.7  In her second Explanatory Memorandum, the Minister says:

    "The Government has accepted the principle of cross border surveillance as part of its application to participate in the Schengen acquis and will bring forward any changes in law or practice necessary as part of the Schengen implementation process. The French proposal is thus receiving detailed consideration. Any further changes, which may be required in the light of any measure to emerge, will receive detailed consideration and the Parliamentary Committees will be kept informed accordingly."

  11.8  The Minister tells us that the Government will need to consider the compatibility of the proposed amendments with the UK's new Regulation of Investigatory Powers Act. She also says that there will be a resource implication for police forces generally, but that no assessment is possible at this stage.

  11.9  The Minister points out that none of the current documents are proposals for legislation. If a measure were to be developed, the legal basis would be Articles 32 and 34 EU.


  11.10  The extension of cross-border surveillance to people not directly implicated in criminal activity clearly raises human rights issues, and will need careful consideration. In addition, the new offences to be included in Article 40 (7) will need to be defined more precisely in any measure to emerge from these proposals.

  11.11  Given that these documents are not proposals for legislation, we are content to clear them. However, we shall subject any draft measure to close scrutiny in relation to the points raised above.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2000
Prepared 29 December 2000