Select Committee on European Scrutiny Twelfth Report


EXTENDING THE SCOPE OF CROSS-BORDER SURVEILLANCE


(a)
(22830)
11488/01




(b)
(22855)
11896/01
— 

Initiative of the Kingdom of Belgium, the Kingdom of Spain and the French
Republic with a view to the adoption by the Council of a draft Decision
amending Article 40(1) and (7) of the 19.6.1990 Convention implementing the
Schengen Agreement of 14.6.1985 on the gradual abolition of checks at the
common borders.


Initiative of the Kingdom of Belgium, the Kingdom of Spain and the French
Republic with a view to the adoption by the Council of a draft Decision
amending Article 40(1) and (7) of the Convention implementing the Schengen
Agreement of 14 June 1985 on the gradual abolition of checks at the common
borders.


Legal base:Articles 32 and 34 (2) (c) EU; consultation; unanimity
Deposited in Parliament: 4 December 2001
Department:Home Office
Basis of consideration: EM of 12 December 2001
Previous Committee Report: None; but see (21619) 11356/00: HC 28-i (2000-01), paragraph 11 ( 13 December 2000)
To be discussed in Council: No date set
Committee's assessment:Politically important
Committee's decision:Not cleared; further information requested


Background

  9.1  In December 2000, the previous Committee considered an initiative from the French Presidency which proposed amendments to Article 40 of the Schengen Convention[25] designed to extend the scope of cross-border surveillance. The Committee cleared the document, since it was not a proposal for legislation, but stated its intention of scrutinising any related draft measures closely.

The draft Decision

  9.2  The current documents are not amended versions of the French Presidency proposal, but versions of a new initiative by the French, Belgian and Spanish Governments. Document (b) is a later version of the text than document (a); the only difference is that document (b) provides for the Decision to take effect on the date of its publication in the Official Journal.

  9.3  The draft Decision proposes amending Article 40 (1) to allow cross-border surveillance, not only of the person suspected of having taken part in an extraditable offence, but also of other persons covered by the investigation. The proposed wording is as follows:

    "Officers of a Member State who are keeping a person under surveillance in their country as part of a judicial investigation into an extraditable criminal offence may continue their surveillance in the territory of another Member State where the latter State has authorised cross-border surveillance in response to a request for judicial assistance made in advance and duly substantiated."

  9.4  This differs from the proposed wording in the earlier French Presidency text which referred to surveillance of "any person whose surveillance is considered necessary to the investigation".

  9.5  The proposed amendment of Article 40 (7) adds to the list of crimes for which applications may be made for emergency surveillance (surveillance in which permission to proceed may be sought after the crossing of a national border). The proposed additions are:

    —  organised fraud;

    —  smuggling of illegal immigrants;

    —  laundering of the proceeds from organised crime;

    —  illicit trafficking in nuclear and radioactive substances.

  9.6  In addition, "forgery of money" is replaced by "counterfeiting and forgery of means of payment". The Accompanying Memorandum to the new proposal explains that the amendments reflect developments in organised crime.

The Government's view

  9.7  The Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth ) tells us:

    "Criminal investigations in Europe benefit greatly from continued surveillance of individuals at national level across borders. Surveillance of abettors, associates and relatives can make it possible to discover evidence, for example locations and instruments used in the crime, to aid legal classification of the offence involved."

  9.8  He continues:

    "The Government has accepted the principles of cross-border surveillance as part of its participation in many of the provisions of the Schengen Convention. Once the UK has implemented these cross-boarder surveillance provisions, officers of other Member States of the EU (and also those of Norway and Iceland) will be allowed to continue surveillance operations within the UK. Prior authorisation must be received from the UK's central authority (National Criminal Intelligence Service), however in urgent cases surveillance may proceed without authorisation although this must then be received for the surveillance to continue. Whilst carrying out surveillance foreign officers will be required to operate under the laws of the state in which they are operating. Similarly UK officers will be able to carry out surveillance in the territory of the other participating states under their laws. Through the implementation of those provisions necessary changes in law and policy will be made. Detailed consideration will be given to any specific measures that emerge from these Council Decisions, and the Parliamentary Scrutiny Committees will be given as much time as possible to scrutinise such proposals."

  9.9  The Minister says that the UK wishes to implement Article 40 as soon as possible in order to demonstrate its commitment to those Schengen provisions in which it has opted to participate. He explains that the proposed amendments were due to be discussed in the appropriate working group in October but were removed from the agenda. As a result, the documents themselves were not formally issued until the end of November.

Conclusion

  9.10  When the previous Committee considered the earlier French Presidency text, it drew attention to the human rights issues raised by the extension of cross-border surveillance to people not directly suspected of criminal activity. We consider that the new proposal runs even more risk of conflict with Article 8 of the European Convention of Human Rights[26] since the changed wording no longer refers to the surveillance, having to be 'necessary' to the investigation, with the result that one of the tests under Article 8(2) ECHR for justifying an interference has been lost. We ask the Minister whether he shares our concern, and whether it is the Home Office position that any domestic implementation must be compatible with the Human Rights Act 1998.

  9.11  The previous Committee considered that the new offences to be added to Article 40 (7) would need more precise definition. The list has changed somewhat; however, we consider that the term "organised fraud", in particular, lacks the necessary clarity. We ask the Minister's view.

  9.12  Finally, we ask the Minister to explain his comment: "Detailed consideration will be given to any specific measures that emerge from these Council Decisions, and the Parliamentary Scrutiny Committees will be given as much time as possible to scrutinise such proposals." Is he suggesting that more specific measures than those contained in the draft Decision (itself a legislative proposal) will be brought forward in the future? Or is he referring to domestic legislation (in which case, of course, the Scrutiny Committees will have no role)? We will hold the documents under scrutiny until we have his response.



25  (21619) 11356/00:see headnote to this paragraph. Back

26  Article 8 ECHR confers a right to respect for a person's private and family life, his home and correspondence. An interference with this right may be justified under Article 8(2) ECHR if it is in accordance with the law and 'is necessary in a democratic society, ..... for the prevention of disorder or crime.' Back


 
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