Select Committee on European Communities Second Report


37.  INCORPORATION OF, AND UK PARTICIPATION IN, THE SCHENGEN ACQUIS

Letter from Lord Tordoff, Chairman of the Committee to Kate Hoey MP, Parliamentary Under-Secretary of State, Home Office

  Sub-Committee F (Social Affairs, Education and Home Affairs) has considered the Association Agreement between the 13 EU members of Schengen and Norway and Iceland (Schengen 26 Add 1 Rev 1), the Decision establishing the EU's internal rules for the operation of the Association Agreement (Schengen 17 Rev 2), and the Decision concerning the Joint Supervisory Authority (Schengen 23 Rev 1).

  The Committee is grateful for the opportunity to examine these documents although we understand that the Association Agreement was signed on 18 May and that the other two documents were also adopted in May. The Committee notes that the arrangements for determining the areas of Schengen-derived co-operation with which Iceland and Norway may be associated will have important implications for the UK's future participation in parts of the Schengen acquis. In particular, the areas identified in Article 1 (G)-(I) of the Decision establishing procedures for applying the Association Agreement correspond to the areas described in the UK's application to participate in the Schengen acquis.

  The Committee would welcome clarification of one point arising from the Association Agreement. Article 7 requires the 13 EU Schengen States and Iceland and Norway to agree criteria and mechanisms for establishing the State responsible for an asylum application lodged in any one of the Member States, Iceland or Norway. This would appear to be a development of the Dublin Convention rather than a development of the Schengen acquis. Article 6(1) of the Schengen Protocol, which provides the legal basis for the Agreement, only refers to the association of Iceland and Norway with the " implementation of the Schengen acquis and its further development". Can you explain how Article 17 relates to the Schengen acquis?

  The Committee would be grateful for copies of the final versions of Schengen Decisions and related documents adopted by the Council since 1 May.

24 June 1999

Letter from Kate Hoey MP, Parliamentary Under-Secretary of State, Home Office to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 24 June following the consideration by Sub-Committee F of various documents relating to the incorporation of the Schengen acquis. You asked for clarification of a point concerning Article 7 of the Association Agreement between the 13 members of Schengen and Norway and Iceland (Schengen 26).

  You questioned why Article 7 should deal with a matter (establishing the State responsible for an asylum application) which is apparently a development of the Dublin Convention and not of the Schengen acquis. This provision is included in the Association Agreement with Norway and Iceland by virtue of Article 6(1) of the Schengen Protocol, which states that Norway and Iceland are to be associated with the Schengen acquis and its further development on the basis of the 1996 Luxembourg Agreement.

  The Luxembourg Agreement provides for the association of Norway and Iceland not only with the Schengen acquis but also with EC and EU measures which have replaced the Schengen acquis. Thus, the association of Norway and Iceland on the basis of Article 6 of the Protocol covers non-schengen measures such as the Dublin Convention.

  I hope this clarifies the point. I will ask officials to ensure that the Committee has copies of the final versions of all the Schengen documents we have submitted for scrutiny.

8 July 1999

Letter from Lord Tordoff, Chairman of the Committee to Kate Hoey MP, Parliamentary Under Secretary of State, Home Office

  Sub-Committee F (Social Affairs, Education and Home Affairs) considered the Agreement between Ireland and the UK, on the one hand, and Iceland and Norway on the other, at its meeting on 30 June. The Sub-Committee also had before it the Presidency Note on the UK's application to participate in certain provisions of the Schengen acquis.

  The Sub-Committee noted the reasons for the late deposit of the text of the Agreement and is grateful for your explanation. Notwithstanding, the Sub-Committee wishes to express its strong disappointment at Member States' apparent disregard for the spirit of the Protocol on the Role of National Parliaments. The desire of the German Presidency to secure agreement before the end of its term of office does not seem a sufficient reason to override the six week scrutiny period, particularly given this Committee's interest in the incorporation of the acquis. The value of the Protocol will be greatly reduced if Member States are not willing to resist the inevitable eleventh hour pressures of an outgoing Presidency.

  The Sub-Committee has noted your intention to implement the Agreement by means of an Order under section 1(3) of the European Communities Act 1972. The Decisions incorporating the Schengen acquis have allocated a number of provisions to legal bases in the Third Pillar (Title VI). I would therefore welcome an explanation of your reasons for considering that implementation of the Agreement by means of an Order is appropriate.

  The Sub-Committee is content to clear from scrutiny the Presidency Note detailing the legislative and operational changes which will be required to permit UK participation in parts of the acquis covered by its application. The Sub-Committee wishes to be informed of developments and, in particular, to have early sight of the Commission's opinion.

1 July 1999

  Letter from Kate Hoey MP, Parliamentary Under Secretary of State, Home Office to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 1 July following Sub-Committee F's initial consideration of the Agreement establishing rights and obligations between the UK and Ireland on the one hand and Norway and Iceland on the other, concerning the latters' association with the implementation and further development of the Schengen acquis.

  I have noted your comments about the absence of a proper scrutiny period for this Agreement. This arose because of the nature and circumstances of the Agreement's conclusion and I should like to reassure you that the Government remains fully committed to the observance of proper scrutiny procedures.

  The Sub-Committee asks why we consider that implementation of the Agreement by means of an Order under section 1 (3) of the 1972 Act is appropriate given that the decisions incorporating the Schengen acquis have allocated a number of provisions to legal bases in the Third Pillar.

  The need for a section 1 (3) Order arises from the fact that the United Kingdom will need to be able to implement, as Community obligations, provisions of the Schengen acquis, or measures building on or developing that acquis, which are given a First Pillar legal basis, to the extent that they bind Norway and Iceland by virtue of the Article 6 Agreements and to the extent that the United Kingdom accepts them. With a section 1 (3) Order specifying the Agreements as Community Treaties the United Kingdom will be able to implement those obligations by regulations under section 2 (2) of the 1971 Act. Moreover, some of those obligations may have direct effect and apply directly by virtue of Section 2 (1) of the 1972 Act.

  As regards Schengen obligations which have a Third Pillar legal basis (which are likely to be the majority as far as the United Kingdom is concerned), to the extent our law needs amending to give effect to those obligations, it seems probable that primary legislation would be necessary because of the need to give effect to those obligations vis a vis other member states. I say "probable" because there might be cases where it would be proper to use section 2 (2) regulations "for the purpose of dealing with matters arising out of or related to any [Community] obligation" of the United Kingdom (section 2 (2) (b)). But that would of course depend on the relationship between the Third Pillar obligation and the First Pillar obligation in question. In most cases, it seems likely that primary legislation would be needed.

  I could add that the vast majority of section 1 (3) Orders specify mixed agreements and that in substance both Article 6 Agreements will be mixed agreements.

  I have noted the Sub-Committee's continuing interest in the UK's application to participate in the Schengen acquis, and will ensure that they receive an early copy of the Commission's Opinion once this is available.

23 July 1999

Letter from Lord Tordoff, Chairman of the Committee to Barbara Roche MP, Minister of State, Home Office

  I understand that the Council Decision concerning the UK request to take part in certain provisions of the Schengen acquis was substantially agreed during December, a part from the question of territorial application to Gibraltar. As you know, this Committee has taken a keen interest in the incorporation of the acquis within the European Union and its proposed extension, at least in part, to the UK. Sub-Committee F heard evidence from your officials on the UK application on 24 November and since had the opportunity to consider a revised draft Council Decision and your response to various questions raised by our sister Committee in the Commons. While the Committee would welcome clarification of a number of points arising from these documents, it also recognises that your officials are unlikely to be able to provide a full response in the short time available. It is content, therefore, to clear the draft Council Decision from scrutiny pending your reply to the points set out below. Once the precise terms of the UK's application have been agreed, the Committee intends to publish the relevant documents and evidence in a short Report to the House.

CROSS-BORDER SURVEILLANCE

  Your letter of 18 November encloses a detailed paper setting out proposed arrangements for cross-border surveillance under Article 40 of the Schengen Convention. Paragraph 11 of the paper explains that a UK team would take over a surveillance initiated in another Schengen State if the target moves onto UK territory. Officers from that State would, however, join the UK team as advisors. Such officers, you suggest, "would not be acting in an operational police capacity as envisaged by the Schengen provisions, in the particular circumstances of these operations". If your assumption is correct, Articles 42 and 43 of the Schengen Convention would seem not to apply. These provisions ensure that officers operating on foreign territory are treated, in terms of their status and liability, as if they were officers of the State in which they are operating. Under Article 43(2), the UK authorities would be required to repair damage arising from a surveillance operation carried out on UK territory, notwithstanding that the damage was caused by an officer from another Schengen State. This should make it easier for a UK citizen to obtain speedy compensation.

  The Committee would be grateful if you could explain in what formal capacity, if any, officers from another Schengen State performing an advisory function in the UK would be acting. Would such officers be amenable to the jurisdiction of UK courts for any damage caused by them to the person or property of an individual in the UK. Would it be possible for the injured individual to seek redress from the local police authority in respect of such damage, as would seem to be envisaged by Article 43(2) of the Convention?

HOT PURSUIT

  The Committee notes the reasons given for excluding Article 41 of the Convention on "hot pursuit" from the UK application. In particular, you suggest that this provision only applies to land borders at which controls have been removed. Although the general purpose of the Convention is the removal of internal border controls, Article 41 does not expressly require the lifting of such controls as a pre-requisite to "hot pursuit". If such a requirement is to be inferred from the general purpose of the Convention, would it apply equally to cross-border surveillance under Article 40 which also involves the crossing of a border? The Committee would welcome your views.

SCHENGEN INFORMATION SYSTEM

  The Committee notes that Article 5(b) of the draft Decision would permit UK authorities to use SIS data to refuse entry to, or to expel from, UK territory non-EU nationals who present "an imminent serious threat to public policy" or "for reasons of State security or for the purpose of preventing a serious offence". Would you accept that, to this limited extent, UK participation in the SIS might have some impact on UK immigration control?

CONFIDENTIALITY

  The Committee is concerned at the justification advanced by the Council Legal Service (and apparently endorsed by the Government) for the exclusion of two Schengen Executive Committee decisions, (93) 22 and (98) 17, from the draft Council decision, notwithstanding that these decisions are already in the public domain and will bind the UK. The two decisions merely identify certain documents which, for operational reasons, are to be treated as confidential. They appear on the face of the Council Decisions, adopted last May, defining the acquis to be incorporated within the European Union and allocating it to a legal base in the EU Treaties. The decisions form part of the acquis deposited in Parliament. The Committee commented, at paragraph 127 of its Report, Incorporating the Schengen Acquis into the EU (1997-98, 31st Report, HL Paper 139), that "there is a crucial distinction between laws regulating matters considered confidential for security or other reasons and the operational rules to implement them. While there may be circumstances in which non-disclosure of the latter may be justified, the laws on which they are based should be subject to public and parliamentary scrutiny". The Committee can see no reason for excluding the two Executive Committee decisions from the draft Council Decision on the UK application and would welcome a more detailed explanation.

TERRITORIAL SCOPE

  The Committee notes that the territorial scope of the UK application remains unresolved. The Committee wishes to be informed of the outcome of the bilateral negotiations between the UK and Spain on the extension of parts of the acquis to Gibraltar. It would also welcome a clearer indication of the Government's intentions with regard to the Channel Islands and the Isle of Man.

ARTICLE 5(1) OF THE SCHENGEN PROTOCOL

  Article 10(2) of the draft Decision provides for the UK to play a full part in the discussion and adoption of proposals and initiatives building on the acquis in which it has chosen to participate. The UK would not, therefore, be required to give a separate notification in relation to each such proposal, as is envisaged under Article 5(1) of the Schengen Protocol. It seems that the Government would prefer to make a declaration to this effect. Other Member States consider that it should remain within the body of the draft Decision, not least for reasons of openness and legal certainty. The Committee would welcome a fuller explanation of your reasons for preferring a declaration.

DIRECT APPLICABILITY OF THE ACQUIS

  The Committee notes that, under Article 8(4) of the draft Decision, Article 75 of the Convention and an implementing Decision adopted by the former Executive Committee shall be directly applicable within the UK. Both of these provisions have been incorporated into the EU but the Schengen acquis as a whole has not yet, to our knowledge, been published in the Official Journal. Does the Government consider that EU law would permit such provisions to be directly applicable before their publication?

  The Committee looks forward to receiving your reply to the points raised above and a copy of the final Decision once it has been agreed in Council.

10 January 2000

Letter from Barbara Roche MP, Minister of State, Home Office to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 10 January, in which you sought clarification of a number of points arising from the draft Council Decision on the UK's application to participate in provisions of the Schengen acquis.

  I have set out below a response to your questions, which I hope will be helpful. I am also enclosing a copy of the latest version of the draft Council Decision (Schengen 74 Rev 4) for the Committee's information. I will ensure that the Committee receives the final version in accordance with scrutiny procedures.

CROSS-BORDER SURVEILLANCE

  I can confirm that the cross-border surveillance arrangements which we plan to put in place envisage that officers from another Member State attached to a UK team would play a formal role in acting as advisers in a surveillance operation. This would entail them making recommendations as to the direction the operation should take, suggesting courses of action based on their knowledge of the case and remaining in touch with their command centre so as to provide valuable intelligence to their UK colleagues who would have taken over control of the operation.

  Given the limited part in the operation which, as advisers, officers from another Member State would play, and given the conditions laid down in Article 40(3), it is unlikely that the question of damages would arise. However, in the event that it did so, we can confirm that the officers would be subject to the jurisdiction of the UK courts, and to the extent that they would be engaged in a surveillance operation, albeit alongside their UK counterparts, Articles 42 and 43 SIC would apply, so that the arrangements governing compensation set out in Article 43 would apply to officers from another Member State in these circumstances. I should also draw the Committee's attention to Declaration No 3, which it is proposed the United Kingdom should make, on adoption of the Decision, with reference to our implementation of Article 40.

HOT PURSUIT

  As you say, one of the underlying principles of the Schengen Convention is to provide for the free movement of persons across borders. It follows that the provisions of both Articles 40 and 41 exist in order to provide compensatory measures for the removal of physical border controls. As a result, surveillance operations and incidents which involve a hot pursuit across a land border are permitted under Articles 40 and 41 as the withdrawal of resources at the border necessarily means there is no opportunity for the Member State into which the surveillance or pursuit enters to control that situation. The significant point in terms of their application to the UK is that Article 41 applies expressly only to land borders, whereas Article 40 is applicable across all borders. Thus we were able to accept that hot pursuit as envisaged by the Schengen Convention could not take place between the UK and other Schengen states, whereas cross-border surveillance might occur by air or sea.

SIS

  The provisions relating to our partial participation in the SIS, contained in Article 5 of Schengen 74 Rev 2, do not appear in the latest version of that document. This is because it has been agreed that the legal and technical modalities of our partial participation in the SIS will be the subject of further discussion by the Schengen Acquis Working Group following adoption of the Council Decision. However, the provision in question was originally included in the draft Council Decision in recognition of the derogation contained in Article 102(3) of the Schengen Convention enabling Member States to switch data from one category to another where justified by the need to prevent an imminent serious threat to public policy and safety, for serious reasons of State security or for the purposes of preventing a serious offence. As we will not be participating in Article 96 it is not envisaged that our Immigration Service (IS) will have direct access to the SIS. But we would not rule out, exceptionally, the possibility of information being passed to the IS where the conditions of Article 102(3) are met.

CONFIDENTIALITY

  The Government has accepted the exclusion of the two Schengen Executive Committee Decisions on confidentiality from the Council Decision because we agreed with Council Legal Service advice that their inclusion was not necessary. The Decisions, which are not themselves confidential, purely establish the confidentiality of certain Schengen documents. Following the incorporation of the Schengen acquis into the Treaty on European Union, these two Decisions became Decisions of the Council relating to the confidentiality of Council documents. As members of the Council, the United Kingdom is automatically bound by decisions on the confidentiality of Council documents. We therefore accepted that to list these two Decisions among the acquis in which the United Kingdom is seeking to participate would imply that the United Kingdom was not already bound by the Council rules on confidentiality. This would be misleading.

TERRITORIAL SCOPE

  Discussions continue with Spain and the Government of Gibraltar on issues relating to the UK application. The article of the draft Council decision relating to Gibraltar's participation therefore still remains open. We will ensure that the Committee is informed as soon as the matter is resolved.

  On Channel Islands and Isle of Man, the Government has proposed, in addition to Article 5(1) of Schengen 74 Rev 4, a declaration which would read as follows:

    "Any future request pursuant to Article 7(1) of this Decision concerning the application to the Channel Islands and Isle of Man of provisions of the Schengen acquis mentioned in Article 1 will ensure coherence in the application of the Schengen acquis in the United Kingdom, Gibraltar and the Channel Islands and Isle of Man, consistent with their respective status under the Treaties. In this regard, the United Kingdom will ensure that any request covers all appropriate provisions of the acquis mentioned in Article 1 of this Decision, taking into account the status of the Channel Islands and Isle of Man under the Treaties".

  This test has not yet been unanimously agreed and may be subject to further amendment. However, it indicates our intention to ensure that the Islands participate as fully as possible in the Schengen provisions, within the terms of the UK's application and of the constitutional position of the Islands. We are still discussing with the Islands the exact terms of their participation which are dependent in part on the final form of our own application.

ARTICLE 5(1) OF THE SCHENGEN PROTOCOL

  The Government's decision to propose a declaration by the UK on the matter dealt with by Article 10(2) of the draft Council Decision (Article 8(2) of Schengen 74 Rev 4) was prompted by concern about the original drafting of this Article, which seemed to us to be inconsistent with the terms of the Schengen Protocol. A declaration was, in our view, justified by the fact that it deal with a matter which concerned the exercise of our discretion under Article 5 of the Schengen Protocol. However, we were able to secure amendments to the Article which brought it into line with the wording of the Schengen Protocol and on that basis were able to accept the inclusion of this provision in the text of the Decision.

DIRECT APPLICABILITY OF THE ACQUIS

  Publication of the Schengen acquis in the Official Journal did not take place on entry into force of the Amsterdam Treaty because the acquis had not at that stage been translated into all Community languages. The full acquis will be published in the Official Journal as soon as the translation process has been completed, which is expected to be in April.

  As the Committee has noted, Article 8(4) of the draft Decision provides for Article 75 of the Schengen Convention together with Decision SCH/COM-ex (94) 28 rev to be directly applicable in the United Kingdom. However, these provisions of the acquis will not enter into force for the United Kingdom on adoption of the draft Decision. In accordance with Article 8(1) of the draft Decision, the acquis will be put into effect for the United Kingdom on a date to be decided by the Council following the adoption by the UK Government of the legislation necessary to implement the acquis in the United Kingdom. Until this date, noquestion of direct applicability can arise. Given the need to adopt primary legislation to implement certain parts of the acquis, there is likely to be a gap of some months before the Council decides to put the acquis into effect for the United Kingdom. It is therefore highly likely that the acquis will have been published in the Official Journal before Article 75 and Decision SCH/Com-ex (94) 28 rev become directly applicable in the United Kingdom.

31 January 2000


 
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