Select Committee on European Scrutiny Twenty-Fourth Report



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: Minister's letter of 21 March 2002
Previous Committee Report: HC 152-xx (2001-02), paragraph 9 (6 March 2002)
To be discussed in Council: Date not set
Committee's assessment:Politically important
Committee's decision:Not cleared; further information requested


  6.1  This document proposes amendments to Article 40 of the Schengen Convention designed to extend the scope of cross-border surveillance.

  6.2  This is the third time we have considered the proposal. On the last occasion, in March, we raised further concerns with the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth).

The Minister's letter

  6.3  The Minister has responded promptly. In response to our request for clarification about his earlier statement that "we are now clear that all cross­border surveillance must be authorised", he explains:

    "Although the Government understands and supports the operational argument for extending the categories of people who may be subject to surveillance, it will not accept any lessening of standards in the application of human rights tests when considering requests for authorisation. Under Article 40, Schengen colleagues will be obliged to make contact with the UK either in advance, or in the case of urgent requests, immediately upon crossing the border. All requests for cross-border surveillance, including urgent requests, will have to be made to the appropriate national authority in the first instance, in our case the National Criminal Intelligence Service (NCIS). It is our intention to apply at the point at which the request is received the UK standards encompassed in RIPA [Regulation of Investigatory Powers Act 2000], including that of proportionality, which would meet our obligations under Article 8 of the ECHR[9]. The UK has the right to refuse a request for a surveillance operation to proceed if it is not content that an acceptable case has been made.

    "I should also emphasise the initiative under consideration ... only proposes the extension of the categories of people who may be the subject of advance requests for cross-border surveillance under Article 40(1). Urgent requests for cross-border surveillance would continue to be limited to persons presumed to have committed any of the serious criminal offences set out in paragraph 7 of Article 40. Foreign officers who find themselves in the position where the subject of their surveillance unexpectedly crosses the border into the UK will be obliged to notify the appropriate authority the moment the border is crossed. It is at this point the UK would apply the appropriate tests under UK law to determine whether to authorise the surveillance to proceed in the UK or [to] request that the surveillance cease. To approve a request in these circumstances any serious offence(s) named in support of the request will have to have an equivalent in UK law before authorisation will be considered."

  6.4  The Minister tells us that the Government is still considering what administrative/legislative provisions will be necessary for implementing Article 40, and exactly how requests will be handled. He undertakes to write to us again on this matter, once the principles have been agreed with law enforcement and other key officials.


  6.5  We thank the Minister for his letter, which clarifies the Government's approach to this proposal.

  6.6  The Minister's undertaking to write to us about the way in which the Government will implement Article 40 is welcome, and we will keep the document under scrutiny until we receive his letter. We note that he has not responded to our concern that Member States may interpret the legislation in very different ways. When he writes to us about the implementation of Article 40, we ask him also to tell us whether he foresees any problems about the way that this proposal might impact on UK citizens subject to cross-border surveillance in other Member States.

9   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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Prepared 26 April 2002