Select Committee on European Scrutiny Thirty-Sixth 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


Home Office

Basis of consideration:

Minister's letter of 20 June 2002

Previous Committee Report:

HC 152-xxiv (2001-02), paragraph 6 (17 April 2002)

To be discussed in Council:

Date not set

Committee's assessment:

Politically important

Committee's decision:




    1. This document proposes amendments to Article 40 of the Schengen Convention designed to extend the scope of cross-border surveillance.
    2. When we last considered this proposal, in April, we decided to keep it under scrutiny until the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) provided information about the way the Government intended to implement Article 40. We also asked him whether he foresaw any problems about the way that this proposal might impact on UK citizens subject to cross-border surveillance in other Member States.
    3. The Minister's letter

    4. The Minister has now provided a full explanation of the way in which the UK intends to implement Article 40. In a useful summary, he states:
    5. "Article 40 provides that police officers keeping a person under surveillance in their own country, because he is suspected of having committed an extraditable offence, may require Schengen countries to assist in keeping the person under surveillance if he crosses the border into their territory. In general, the assistance would be requested in advance. Our own officers would take over the surveillance of a person entering the UK, with the foreign officers acting as our advisers in the surveillance operation. The foreign officers would not be armed. They would have no executive powers, such as powers of arrest or entry into private premises, while in the UK.

      "This general case where the surveillance is requested in advance will be covered in the usual way by the Regulation of Investigatory Powers Act 2000 (RIPA).

      "In a case of urgency, where it is not possible to submit a request in advance, Article 40 would still require Member States, for a limited range of serious extraditable offences, to ensure that the foreign officers could continue to keep a person under surveillance after crossing a border, subject to the laws of the State in whose territory they will be operating. The surveillance would be allowed to continue: for a period of up to five hours; until they could hand over the surveillance to UK officers; or, until they are requested to cease the operation. Further consideration of the handling of urgent cases has indicated that primary legislation, consistent with the requirements of RIPA, will be required. We will also need to extend the provisions in the Police Reform Bill on liabilities concerning foreign officers. Corresponding amending legislation will be needed for Scotland and Northern Ireland.

      "Article 40 does not prevent us maintaining our present policy of not allowing armed surveillance by foreign officers."

    6. The Minister supplements this summary with details about situations which will need automatic authorisation to ensure that urgent surveillance operations are "in accordance with the law" in the UK as required by Article 8 of the European Convention of Human Rights[53]. He outlines the preconditions for automatic authorisation which the Government plans to set, and tells us that it will also seek to ensure that individuals subject to such surveillance are entitled to challenge it before the Investigatory Powers Tribunal in respect of whether these conditions have been met. He explains that UK officers consider that they might need to continue a surveillance in another Schengen country for up to five hours. Unless the UK has established reciprocal arrangements, our Schengen partners might be unwilling to co-operate.
    7. The Minister also tells us about the oversight of both advance and urgent requests by Surveillance Commissioners. He explains that the Government will explore how its contribution to the Schengen Handbook (the reference manual for law enforcement authorities in the Schengen States) can best reflect the UK's requirements, especially with regard to automatic authorisation.
    8. The Minister then turns to our question about the way in which this proposal might impact on UK citizens subject to cross-border surveillance in other Member States, saying:
    9. "Those UK citizens resident in, or travelling through, another Schengen State who become the subject of a surveillance operation in that State, will be subject to the laws of that State including those governing surveillance operations. As I pointed out in an earlier submission to the Committee, all the Schengen States have ratified the European Convention on Human Rights and their laws will reflect their obligation to Article 8 and the right to privacy."


    10. We thank the Minister for his full explanation of the way in which the Government plans to implement Article 40. We now clear the document.


53  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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