Select Committee on European Communities Report


85.  INCORPORATING THE SCHENGEN ACQUIS INTO THE EUROPEAN UNION (31ST REPORT SESSION 1997-98)

Memorandum submitted by the Home Office

  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.

  1.  The Government is grateful to the Committee for its recognition of the Government's commitment to openness and transparency in the Third Pillar. The Government sees a need for a continuing effort to ensure that JHA activities are made more transparent to the citizen, building on the effective implementation of the Council conclusions agreed during the UK presidency at the JHA Council on 19 March 1998.

  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.

  2.  It is ultimately a matter of law as to whether the subject matter of a particular item of the Schengen acquis more properly has a base in the First or Third Pillar. The Government considers that that allocation has to reflect fully and correctly the decision taken at Amsterdam to create the Free Movement Chapter in the EC Treaty. According to well-established legal principles, the choice of legal base is determined objectively by reference to the substance of the measure. Any incorrect allocation could ultimately be challenged in the European Court of Justice.

  3.  The allocation of the Schengen acquis to the First or Third Pillar will, of course, be one of the factors likely to influence the Government's participation in particular measures, as this will determine the applicable institutional regime within which co-operation will take place. The Government has however made clear that it will participate in First Pillar activities on immigration and asylum where it is in the national interest to do so; it has also undertaken to ensure that Parliamentary scrutiny arrangements enable Parliament to be kept informed of and give its opinion on that process.

  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.

  4.  The Government considers that there will be no change in legal certainty in relation to immigration and asylum policy as a result of the United Kingdom's position on Title IV of the EC Treaty. The Government will continue to define its national policy on immigration and asylum (as it has done recently by publication of its White Paper Fairer, Faster and Firmer—a modern approach to immigration and asylum). It will, further, co-operate at EU level with other Member States where it considers that there is advantage in doing so. The Protocol on the position of the United Kingdom and Ireland enables that participation to take place at any time. While recognising the Committee's concern about possible implications for UK influence at EU level in this area, the Government would note that the nature of the United Kingdom's immigration control is in many respects different from that of its continental neighbours and that differences can be justified on the grounds of our island geography. The unique immigration control requirements of the UK (and Ireland) and the retention of our internal frontier controls have been formally recognised at EU level in a dedicated Protocol to the Treaty of Amsterdam.

  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.

  5.  This requirement is a legal obligation arising from Article 8 of the Schengen Protocol annexed to the Treaty of Amsterdam. The Schengen Member States regard the Schengen acquis as a single body of law which must be accepted in full by all States wishing to join the Schengen area. The justification is that, before any opening of internal frontiers between new and existing Member States, the applicants for EU membership should be able to demonstrate that they can fully meet the requirements of providing a strong external frontier and effective internal security measures such as police and judicial co-operation to counter organised crime and illegal immigration. As part of the price for the agreement of the United Kingdom and Irish Governments to the incorporation of Schengen into the European Union, the Schengen Member States agreed that the UK and Ireland could participate in some but not all of the Schengen acquis but at the same time, it was agreed in a separate Protocol on Article 7A that the UK and Ireland would maintain their internal frontier controls with the rest of the EU. However, for States which join the EU in future, and thereby join the Schengen area, the normal rule will apply so that they will be required to accept the Schengen acquis in its entirety.

  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.

  6.  The Government agrees that the incorporation of the Schengen acquis will increase the EU acquis significantly in a single exercise and that the further development of this acquis within the Union is likely to affect the rights of individuals. That is why the Government is concerned to ensure that the correct legal base is selected for each provision of the acquis and that full compliance with data protection requirements is secured.

  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.

  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.

  7.  The Government is grateful to the Committee for its comments on our efforts to provide Parliament with Schengen documents. These represent the vast bulk of the Schengen acquis. The Government will continue to ensure that relevant documents are made available to Parliament. The ongoing work to allocate a legal base within the EU framework to the Schengen acquis enables all Member States to consider case-by-case the implications of incorporation. With the exception of Ireland, all our partners' national parliaments had an earlier chance to scrutinise the Schengen acquis during ratification of the original Schengen Convention. Any eventual decision by the UK to opt in to parts of the Schengen acquis will be covered by a Council Decision which will be subject to normal Parliamentary scrutiny procedures.

  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 policy co-operation.

  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.

  8.  The Government regrets that the Committee has found the presentation of the two draft Decisions inadequate. The Government is committed to depositing for scrutiny the Council documents which are under consideration; these documents represent the results of complex negotiations in which all 15 Member States have an equal say. The form of the Decisions is therefore not entirely within the control of the UK. The Government shares the Committee's concern that the two draft Decisions should contain sufficient information to allow Parliament and the public to understand fully the decisions on allocation of legal base. Already, in respect of the decisions of the Schengen Executive Committee, the draft Decision on definition (SCHENGEN 14) contains a brief explanation of the substance of each decision. The Government will, however, seek to ensure that the subject of accessibility remains a key element of the EU negotiations, and domestically will endeavour to ensure that any future Explanatory Notes on this difficult subject are as helpful as possible to Parliament.

  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.

  9.  The Government fully accepts that, although the Schengen Protocol gives the European Parliament no formal locus in the process of incorporation, for consultation to be meaningful, the fullest documentation should be submitted as early as possible. The Government undertakes to raise this with other Member States.

  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.

  10.  The Government sympathises with the Committee's desire to promote public access to the acquis. The Government fully supports the Amsterdam Treaty's emphasis on decision-making which is both as open as possible and as close as possible to the citizen. But the new arrangements have not yet entered into force, and current rules on publication in the Official Journal relate only to acts which have been adopted. The Schengen acquis cannot be adopted in the EU until the Amsterdam Treaty enters into force, because the legal base for the necessary Decisions (Article 2(1) of the Schengen Protocol) will only then become valid. More importantly, legally the Schengen acquis will be formally defined only at the point at which the Decisions are made: it would therefore appear premature to publish a series of texts purporting to form the Schengen acquis before these legal decisions have been made and there is clearly no precedent for doing so. Finally, the Government considers the analogy drawn with the usual practice of publishing binding instruments before they enter into force somewhat inappropriate: the Schengen acquis is already in force and operating within the Schengen Member States.

  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.

  11.  The Government shares the Committee's concern to ensure the maximum possible transparency. The Government does not control decisions on disclosure by Schengen states. The Government notes the Committee's proposals for a limited disclosure of at least the subject matter of classified documents and, if full disclosure is not agreed, will explore this possibility and report back to the Committee.

  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.

  12.  It was not considered necessary to give a legal base to Article 28 since Articles 28-38 have been overtaken by the Dublin Convention. The Member States' commitment to respect the Geneva Convention and its protocol is already provided for in the European Union Treaties (Article 63(1) Treaty establishing the EC). Consideration is currently being given to including a declaration, based on Article 135 of the Schengen Implementing Convention, in the Council Decision.

  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.

  13.  The Government agrees with the Committee that the source of rights and obligations should be clear. The Government is satisfied that the text in French to which the Committee refers (paragraph 138) is not designed to give an independent existence outside of the EU Treaties to any item of the Schengen acquis but rather to confirm the continuing legal validity of past activity.

  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 misused. 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.

  14.  The Government is committed to ensuring full data protection rights to the SIS, should it decide to participate in the System. It is inevitable that the Schengen Information System will be based at least in part on a Third Pillar legal base, since police co-operation remains a matter for intergovernmental co-operation under the Amsterdam Treaty. The question of whether provisions allocated a legal base in the Third Pillar should be subject to European Court of Justice jurisdiction will therefore arise, and if so the UK would need to decide whether, and in which forms, it could agree to accept such jurisdiction. Such decisions are taken on their merits.

  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.

  15.  Europol's remit covers a number of issues, such as trafficking in stolen vehicles, which also feature in the Schengen Convention and related co-operation arrangements. The Schengen Information System contains data which may be relevant to Europol's work. The Europol Convention (Article 6.2), however, precludes direct links between the two databases. For information to be exchanged directly between the two systems would therefore require an amendment to Article 6 of the Convention which would have to be agreed by all Member States and ratified in accordance with their respective constitutional arrangements.

2 November 1998


 
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