Select Committee on European Communities 31st Report


  170.    The Committee welcomes the Government's commitment to openness and transparency in the Third Pillar and commends the progress that has been made at and since Amsterdam.

  171.    We note the Minister's statement that there are "issues of principle" which determine whether an issue should be dealt with in the First or Third Pillar. We would welcome clarification as to what these "issues of principle" are. The choice of First or Third Pillar will, no doubt, affect future United Kingdom decisions on opting in or opting out.

  172.    We are concerned to ensure that the UK opt-out from Title IV of the EC Treaty does not undermine the principle of legal certainty in relation to asylum and immigration policy. This principle is of paramount importance in areas affecting fundamental rights and freedoms of individuals. We urge the Government to clarify how UK policy on asylum and immigration will develop outside the new framework established by the Amsterdam Treaty.

  173.    The Committee agree with the Minister on the need for the Government to develop a coherent approach to opting in. We are concerned that, by virtue of our opt-out, the United Kingdom may be unable to influence and shape future European policy in such critical areas as asylum and immigration, and may find itself having to adopt in due course rules agreed by others.

  174.    The Committee would welcome clarification of the grounds justifying the insistence of all EU Member States that new members of the Union should, unlike the United Kingdom and Ireland, apply a Schengen border control regime, irrespective of their particular geographical situation or their links with ethnic minorities in non-EU countries.

  175.    In the Committee's view, what is clear is that incorporation of the Schengen acquis will significantly increase the scope for EU co-operation (with or without the United Kingdom) on such matters as visa and border policies, asylum and immigration, policing, and the exchange of data. All these will impinge directly on the rights of individuals.

  176.    The Committee commends the Government for their efforts in providing Parliament with Schengen documents, and welcomes the opportunity to offer preliminary comments on the draft Decisions. We regret, however, the paucity of information accompanying the draft Decisions. In particular, we are astonished that national ratification of the Amsterdam Treaty will have been completed in most, if not all, Member States before a definitive list of the Schengen acquis has been established and made available to national Parliaments in their own languages.[102]

  177.     The Committee considers the presentation of the draft Decisions and accompanying Explanatory Memorandum inadequate. Columns of numbers listed without descriptions or explanations are as unhelpful a way of providing information as we can think of. In order to make any sense of the draft Decisions as presented to Parliament it is necessary to have open the Decisions themselves, the EC Treaty, the Treaty on European Union, the Schengen Protocol and the Schengen Convention. One way to help to close the democratic deficit is to provide comprehensible information to Parliament, and the public. We encourage the Government to follow up their commitment to provide information by ensuring that that information is presented in a meaningful and useful form. We strongly urge the Government to produce a more accessible document which breaks down the elements of the acquis and sets out in clear terms what, in their view, incorporation into the EC Treaty or Treaty on European Union will mean for future Government policy on such issues as asylum, immigration, data protection and cross-border police co-operation.

  178.    We commend the Government for undertaking to involve the European Parliament but we do not consider that the European Parliament can be kept adequately informed if it has not been sent the relevant documentation.

  179.    The Committee draws attention again to the fact that national procedures for approving the Amsterdam Treaty incorporating the acquis will have been completed in many if not all EU countries before a definitive list of the provisions of the acquis has been made available. The Committee is concerned at Governments signing, and bringing into force, a set of arrangements to incorporate the acquis without first being clear what that acquis comprises.

  180.    The Committee considers that there is an urgent need for clarification and consolidation of the acquis now, before it is brought within the European Union framework. The onus must, in this respect, rest on the Council which has the responsibility under the Schengen Protocol for agreeing what constitutes the acquis and how it is to be allocated to legal bases in the EU Treaties. As the European Parliament has no formal role in the process of incorporation, we do not see how it could undertake this task. It is by no means clear to the Committee that Governments (let alone Parliaments or European citizens) understand the implications of the incorporation of the acquis. We have attempted to explain some of the implications here; but the need for clear, simple explanation by the Council is both urgent and acute.

  181.    The Committee regrets that the acquis will be formally published in the Official Journal only after it has been incorporated and taken effect within the framework of the EU Treaties. This is contrary to the usual practice of publishing binding legal instruments before they enter into force. We believe that the spirit, if not the letter, of the rules agreed at Amsterdam on publication in the Official Journal should apply to the existing as well as future acquis.

  182.    Legal certainty should be the guiding principle for incorporation of the Schengen acquis. The process of incorporation should be transparent and the laws resulting from it should be accessible to citizens. We are concerned that the grounds on which Schengen States may classify documents as confidential go beyond the narrow exception we have suggested (see paragraph 117). We believe that the basis for non-disclosure of classified Schengen documents which concern matters within Community competence should be clarified before agreeing to their incorporation. There should, at least, be a summary of the confidential documents sufficient to identify their subject matter and to ensure that the correct allocation of legal base is made.

  183.    The Committee believes that the allocation of a legal base to the constituent parts of the acquis and the grounds for any exclusions must be transparent and fully reasoned. The Committee is not satisfied that a proper evaluation of the allocation can be made on the basis of the information contained in the two draft Decisions.

  184.    The failure to incorporate Article 28 of the Schengen Convention which reaffirms Member States' obligations under international laws for the protection of refugees is of particular concern to the Committee. We consider such protection to be an essential element in an area of freedom, security and justice. We believe that Article 135 of the Convention should be allocated to a legal base in the EC Treaty. A Declaration does not have the same force as a legally binding Treaty Article.

  185.    The Schengen Protocol clearly expresses Member States' desire to incorporate the Schengen acquis into the EU framework. The Committee believes that the process of incorporation must ensure that individuals and Member States are able to identify the source of their rights and obligations. There is a risk both that the integrity of the acquis itself and legal certainty will be undermined if some of its provisions apply independently of the EU Treaties.

  186.    The Committee considers it to be essential that a clear route is marked for individuals seeking access to data held on them in the SIS. If allocation to a dual legal base in the First and Third Pillars is unavoidable, there should be an equivalent level of data protection in each Pillar and coherent and complementary rules for individuals to exercise rights of access and obtain legal remedies if data held on the SIS is incorrect or has been mis-used. Data protection requirements should be at the forefront of any other options under consideration.

  187.    The Committee welcomes the commitment to prohibiting racial discrimination that is demonstrated in the new Treaty provisions. We fear, however, that the role of the Court in ensuring a just and even application of the principle of non-discrimination will be undermined if the SIS is allocated to a legal base in the Third Pillar. We regret that the Government seem set on continuing the policy of denying courts in the United Kingdom the possibility of obtaining rulings on any Third Pillar matters, including those seeking to eradicate racism.

  188.    The interaction between Treaty provisions on Schengen and Europol raises particular issues for the United Kingdom. The Committee would wish to be informed of any proposal for Europol to involve itself in areas of police co-operation arising from provisions of the Schengen acquis. This is particularly the case if links are to be established between Europol's central data bank and the Schengen Information System.[103]


  189.    The Committee believes that the matters considered in this Report raise important questions to which the attention of the House should be drawn, and we make this Report to the House for debate.

102  See the Committee's Report, Enhancing Parliamentary Scrutiny of the Third Pillar (6th Report, 1997-98, HL Paper 25), which calls for any acquis texts which the UK intends to adopt to be deposited in Parliament in time to allow proper scrutiny before the adoption takes place (para 121). Back
103   See also the Committee's Report Europol: Third Country Rules (29th Report, session 1997-98, HL Paper 135). Back

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