Select Committee on European Communities Seventh Report



1.  The free movement of people is one of the four basic freedoms set out in the 1957 Treaty of Rome ("the EC Treaty")[1]. Article 3(c) lists among the Community's activities "the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital". The Treaty on European Union, agreed in Maastricht in 1992, amended that provision to include a reference to the internal market and stated, in Article 7a, that " the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty". Citizens of the Union enjoy "the right to move and reside freely within the territory of the Member States" under Article 8a of the EC Treaty, but this right is "subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect".

2.  The 1997 Treaty of Amsterdam expressly recognises the UK's right to maintain controls at its frontiers with other Member States while also preserving its Common Travel Area with Ireland. This right is set out in a Protocol on Article 7a[2]. Under its terms, the other Member States may maintain their frontier controls "on persons seeking entry to their territory from the UK . . . or from Ireland".

3.  A key objective of the European Union, once the Amsterdam Treaty enters into force, will be "to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime"[3]. There is a new Title IV in the EC Treaty on visas, asylum, immigration and other policies related to the free movement of persons. Title VI of the Treaty on European Union covers police and judicial co-operation in criminal matters. The incorporation of the Schengen agreements through a Protocol attached to the Treaty is a major element in implementing the area of freedom, security and justice[4]. All existing Schengen measures, referred to collectively as the "Schengen acquis", must be allocated to a legal base in the Community (First) or intergovernmental (Third) Pillar. The UK has an opt-out of all existing Schengen measures[5]. If it wishes to participate in any of this acquis, it must gain the approval of the 13 EU Schengen States. A further Protocol states that the UK and Ireland shall not take part in or be bound by decisions under the new Title IV of the EC Treaty, but there is provision to enable either country to opt in to future Title IV measures before or after their adoption[6].

4.  The Schengen Agreement and Convention have as their aim the creation of an area without internal border controls, with compensatory measures to increase security at the external frontier and supporting measures to fight illegal immigration and increase co-operation between police forces.

5.  Thirteen out of the fifteen EU Member States have chosen to join the Schengen system, with only the United Kingdom and Ireland remaining outside. In addition, two non-EU countries, Iceland and Norway have agreed to formal co-operation with the Schengen countries.

6.  The Schengen Protocol requires separate agreements between Iceland, Norway and the thirteen EU members within the system, and between these two states and the United Kingdom and Ireland, to cover the different patterns of reciprocal rights and obligations which flow from the British and Irish opt-outs. In 1998, this Committee reported on Incorporating the Schengen Acquis into the European Union[7]. That report examined the technical question of how the Schengen acquis[8] could be brought within the European Union framework with different measures divided appropriately between the Community "first pillar" and the inter-governmental "third pillar". In the present report, we turn to the practical question of the costs and benefits of the United Kingdom's opt-out from the Schengen system. In particular, we examine the consequences of the United Kingdom's opt-out for its future role in the development of "an area of freedom, security and justice".

7.  The enquiry was carried out by Sub-Committee F (Social Affairs, Education and Home Affairs) whose members are listed in Appendix 1. The Sub-Committee received the written and oral evidence from the witnesses listed in Appendix 2, to whom they express their thanks. The Specialist Adviser was Professor Malcolm Anderson, formerly Professor of Politics and Director of the International Social Sciences Institute at the University of Edinburgh.


8.  The remainder of this report is structured as follows. In Part 2 we describe the main features of the Schengen system, the United Kingdom's policy on frontier controls, and our approach to this enquiry. In Part 3, we present the arguments advanced by our witnesses for maintaining the status quo, or for opting-in to all or part of the Schengen arrangements. Part 4 contains the opinion of the Committee.

1   Historically, nationals of a Member State had the right to move freely within the territory of other Member States for purposes of employment, for the pursuit of activities as self-employed persons, and for the provision of services. Back

2   Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community to the United Kingdom and Ireland. Back

3   Article 2 of the Treaty on European Union, as amended by the Amsterdam Treaty. Back

4   Protocol integrating the Schengen acquis into the framework of the European Union. Back

5   This opt-out is stated in the Protocol integrating the Schengen acquis within the European Union.  Back

6   Protocol on the position of the United Kingdom and Ireland. The opt-in rights are, however, stated to be without prejudice to the Protocol integrating the Schengen acquisBack

7   31st Report, Session 1997-98. Back

8   An Annex to the Protocol integrating Schengen within the European Union defines the Schengen acquis as the 1985 Schengen Agreement, the 1990 Implementing Convention, the eight Accession Protocols and Agreements, the decisions and declarations of the Schengen Executive Committee and the acts of its subordinate bodies. Back

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