House of Lords - European Union

Select Committee on European Union Fifth Report

FIFTH REPORT

15 FEBRUARY 2000

By the Select Committee appointed to consider European Union documents and other matters relating to the European Union.

ORDERED TO REPORT

UK PARTICIPATION IN THE SCHENGEN ACQUIS

PART 1: INTRODUCTION: PURPOSE OF THE INQUIRY

1. This short Report is the fourth by the Committee to be concerned with the Schengen free movement area. In each Report, we have sought to make available information on a subject which has excited little public attention but has potentially far-reaching implications for the fundamental rights and freedoms of EU citizens.

2. The "Schengen acquis" is the collective term for an intricate body of rules establishing an area free of internal frontier controls. The UK and Ireland are the only two EU Member States to have remained outside the Schengen free movement area. Although the Amsterdam Treaty 1997 brought the Schengen acquis within the framework of the European Union, the UK (and Ireland) secured an opt-out while retaining the possibility, subject to the agreement of the other Member States, of opting in to some or all of the provisions comprising the acquis[1].

3. In its first Report, Defining the Schengen Acquis[2], the Committee discovered just how complex the preliminary task of identifying the acquis was proving to be. The second Report, Incorporating the Schengen Acquis into the European Union[3], looked at the proposed allocation of the acquis to legal bases in the EC Treaty and the Treaty on European Union. The focus of the Committee's third Report, Schengen and the United Kingdom's Border Controls[4], was the practical question of the costs and benefits of the UK's opt-out of the Schengen system and the Government's policy of maintaining frontier controls. Our conclusion was that "in the three main areas of Schengen - border controls, police co-operation (Schengen Information System) and visa/asylum/immigration policy - there is a strong case for full United Kingdom participation". We expressed the concern that British influence over a broad range of Justice and Home Affairs matters might be seriously diminished if the UK remained outside Schengen. The Committee feared that "weaker UK influence over the development of European policies will mean that such policies will reflect the preferences of others and fail to take into account particular UK concerns"[5].

4. Since publishing these Reports, the UK has exercised its right to ask to take part in certain provisions of the acquis. The principal purpose of this Report is to publish various documents relevant to the UK Application and, in so doing, to expose some of the implications, legal and political, of UK participation.

5. Sub-Committee F (Social Affairs, Education and Home Affairs), whose members are listed in Appendix 1, invited officials from the Home Office and Foreign & Commonwealth Office to give evidence on the state of progress of the UK Application. The officials who attended are listed in Appendix 2 and their oral evidence is printed with the Report. Various documents relating to the UK Application are reproduced in Appendix 3. The Committee's correspondence with the Government on aspects of the UK Application is in Appendix 4.

6. Part 2 of the Report sketches the background to the UK request to participate in certain aspects of the Schengen acquis and summarises key points in the UK Application and Commission Opinion[6]. Part 3 includes a description of the general scheme of the draft Council Decision, the main points of interest noted by the Committee, and the issues raised with officials in oral evidence.

PART 2: BACKGROUND TO THE UK APPLICATION

7. The Schengen Agreement, signed by France, Germany and the Benelux countries (Belgium, Luxembourg and the Netherlands) in 1985, set as an objective the "gradual abolition of controls at the common frontiers". It provided no more than a skeletal framework for realising this goal. Five years later, in 1990, the Schengen Implementing Convention ("the 1990 Convention") established both an institutional structure and instruments for the removal of internal border controls and the strengthening of those at the external Schengen border. The Schengen States had their own executive body, the Executive Committee, to give effect to the many and varied measures set out in the 1990 Convention. These measures included enhanced co-operation in areas directly linked to free movement, such as asylum, visa and immigration policy. But they also included wider "flanking" measures on police and judicial co-operation and the establishment of a Schengen-wide database, the Schengen Information System (SIS).

8. Co-operation between Schengen States to establish an area of free movement developed initially outside the framework of the EU Treaties. As the number of EU Member States participating in Schengen has grown, from five in 1985 to 13 in 1996[7], so the pressure has mounted for Schengen co-operation to be brought within the European Union. Incorporation of the Schengen acquis presented particular difficulties for the UK. Successive Governments have pursued a policy of maintaining border controls on all persons seeking entry to the UK. The exception to this policy is the passport-free Common Travel Area in operation in Ireland and the UK.

9. The Amsterdam Treaty 1997 brought the Schengen bodies and acquis within the framework of the European Union. The approach was one of "flexible" incorporation. A Protocol[8] annexed to the EU Treaties makes clear that the acquis as incorporated only applies to the 13 EU Member States that are parties to the 1990 Convention. A further Protocol[9] specifically provides for Ireland and the UK to continue to exercise border controls on entrants from other Member States. Neither is bound by the Schengen acquis but each is entitled, at any time, to request to participate in some or all of the acquis.

10. At the same time as deciding to incorporate the Schengen acquis, the European Union set itself the objective of developing "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"[10]. There is a clear overlap between the measures required to achieve this objective and the provisions of the Schengen acquis incorporated by the Amsterdam Treaty. The question of UK participation in parts of that acquis will thus have a material impact on UK involvement in measures developing the area of freedom, security and justice and, in particular, its ability to shape proposals and influence policy.

11. There have been two important developments since the Committee last reported on the incorporation of the acquis. First, the Home Secretary announced at the Justice and Home Affairs Council on 12 March 1999 that the Government was

Our intention to maintain our frontier controls has implications for our participation in the direct operation of external frontier controls. For similar reasons, enhanced visa co-operation raises difficulties for us. But within this constraint, we shall seek discussions with EU colleagues to maximise the scope for mutual operational co-operation in combating illegal immigration, without prejudice to the maintenance of our national immigration controls. We shall also look to participate in immigration policy where it does not conflict with our frontiers-based system of control".

12. The Irish Government announced at the same meeting that, subject to Ireland's constitutional arrangements, it would seek to participate in parts of the acquis similar to those indicated by the UK.

13. The second significant development was the convening of a Special European Council at Tampere, in October 1999, to agree "milestones" for the creation of an area of freedom, security and justice[12]. Heads of State and Government concluded that this area "should be based on the principles of transparency and democratic control" and "an open dialogue with civil society" in order to strengthen citizens' "acceptance and support". The Tampere Conclusions contain political guidelines and concrete objectives for the development of a common EU asylum and immigration policy, a European Area of Justice to facilitate access to justice, and EU-wide measures to combat crime.

14. The experience already gained by the Schengen States in such matters as cross-border police co-operation and mutual assistance in criminal matters seems likely to provide a foundation for implementing a number of the measures envisaged in the Tampere Conclusions. There is an additional advantage in basing future EU initiatives on existing provisions of the Schengen acquis. Iceland and Norway, although not members of the EU, will be able to participate in measures derived from Schengen under the terms of an Association Agreement[13].

15. Schengen's most prized asset, for law enforcement purposes, is the Schengen Information System (SIS), a computerised database established by the 1990 Convention "to maintain public policy and security, including national security"[14]. Much of the information contained in the SIS is intended to assist immigration authorities and concerns the entry of third country nationals into, and movement within, the Schengen area. But the SIS also includes information relevant to policing (data on persons or vehicles for the purpose of "discreet surveillance or specific checks") and cross-border co-operation in criminal matters (data on persons wanted for arrest for extradition, on persons or objects in connection with criminal proceedings, missing persons).

The UK application

16. Following the Home Secretary's announcement at the March 1999 Justice and Home Affairs, the UK's formal request to participate in certain aspects of the Schengen acquis was submitted on 20 May 1999.

17. The Application divides the Articles of the 1990 Convention and supplementary acquis into five broad categories:

- police co-operation

- mutual assistance in criminal matters

- narcotic drugs

- the Schengen Information System

- data protection.

An accompanying Explanatory Memorandum identifies provisions of the acquis likely to require primary legislation (and hence a transition period). These include "hot pursuit" and the related question of gun controls (Article 41 of the Convention), rules on the status and liability of officers from one Schengen State operating in another (Articles 42 and 43), extradition (Articles 64 and 66), and the transfer and enforcement of criminal judgements (Articles 67-69). Changes may also be required to UK data protection laws. The Application indicates which provisions of the acquis should apply to Gibraltar and states that arrangements for the participation of the Channel Islands and the Isle of Man in some areas of Schengen co-operation will be taken forward separately.

18. The Application has been supplemented by two further requests, in letters dated 9 July and 6 October 1999, seeking UK participation in additional provisions of the acquis.

19. Contrary to expectations, the Irish Government has not yet submitted a parallel application to participate in any aspect of the Schengen acquis. Home Office officials have emphasised that the UK Application is self-standing and should proceed on its own merits. The inclusion of provisions on "hot pursuit" nevertheless reflected an assumption that Ireland would also wish to apply this part of the Schengen Convention. The Home Secretary indicated last May that bilateral discussions on the "difficult and sensitive issues of cross-border surveillance and hot pursuit" were underway.

20. The UK Application, the Government's commentary on the implications for the UK of implementing the acquis and its Explanatory Memorandum are reproduced in Appendix 3. The Committee's own list of the provisions of the 1990 Schengen Convention and related acquis included in the UK Application is also printed there.

Commission Opinion

21. The Commission may, under the terms of a Declaration agreed at Amsterdam, submit an Opinion on a request by Ireland or the UK to take part in provisions of the Schengen acquis. The tone of its Opinion on the UK Application is broadly positive. The Commission urges the Council "in principle, to view the UK's request favourably" but also draws attention to a number of potential problems. Foremost amongst these is the question of UK participation in the SIS. Such participation "should be restricted to data pertinent to the provisions of the Schengen acquis covered by the request". The Government has stated in its Application that "the UK does not intend to access or enter information on the SIS relating to the movement of persons". The Commission believes, however, that an in-depth study will be needed to consider the technical feasibility of limiting UK participation in the SIS without undermining the integrity of the system for the existing Schengen States.

22. The Commission urges the UK to consider enlarging its participation in Schengen to include provisions allowing third country nationals legally resident in a Member State to travel freely for up to three months within the Schengen area[15]. Granting a right to travel would not, it suggests, prevent the UK from exercising its own border controls.

23. On the sensitive issues of cross-border surveillance and "hot pursuit", the Commission foresees difficulties in applying the acquis, particularly as regards the carrying of handguns. It seeks much more information on how the UK proposes to implement the acquis on mutual assistance in criminal matters. On the question of the territorial scope of the UK application, the Commission accepts that the UK has provided an objective justification for the proposed exclusion of Gibraltar from certain areas of the acquis, such as cross-border surveillance and hot pursuit, mutual assistance in criminal matters and extradition.

24. The Commission Opinion and the Government's Explanatory Memorandum are reproduced in Appendix 3.

PART 3: THE DRAFT COUNCIL DECISION

25. The draft Council Decision, which must be approved by the 13 EU Schengen States and the UK meeting in Council[16], is a critical step in securing UK participation in Schengen.

The general scheme of the draft Decision[17]

26. Article 1 sets out the provisions of the 1990 Convention and the decisions and declarations of the Schengen Executive Committee which will bind the UK if its Application is agreed. A number of States have acceded to the Convention since its conclusion. To recognise that UK participation in the acquis will create obligations between these States and the UK, Article 1 also includes some provisions of the Accession Agreements.

27. Article 2(1) designates the officers (police and customs) who, having initiated a surveillance operation in the UK, may continue that surveillance in the territory of another State. Article 2(2) provides for foreign officers wishing to continue a surveillance operation within the UK to obtain the prior authorisation of the National Criminal Intelligence Service (NCIS). Cross-border surveillance without prior authorisation is permitted under the Convention "for particularly urgent reasons" but there would still be an obligation to notify NCIS.

28. Article 3 designates the Home Office as the competent authority to receive requests for extradition.

29. Article 4 concerns UK representation on the Joint Supervisory Authority. The Authority oversees the technical support function of the SIS and is responsible for ensuring that the data protection provisions of the Convention are properly implemented. Article 4 stipulates that the UK representative to the Joint Authority (the Data Protection Registrar) may only vote on matters relating to provisions of the acquis in which the UK is participating.

30. Article 5(1) anticipates the possible extension of some areas of Schengen co-operation to the Channel Islands and Isle of Man. This is to be dealt with in a separate application. The text in Article 5(2), stipulating which parts of the acquis should apply to Gibraltar, is in brackets. The question of the territorial scope of the UK Application, specifically with regard to Gibraltar, remains contentious and is the subject of bilateral discussions between the UK and Spain.

31. Article 6 sets out a two-stage process involving, first, acceptance of the UK Application to take part in aspects of the acquis and, secondly, the implementation and application of that acquis between the UK and the other States. Adoption of the present draft Decision will complete the first stage. A further Decision will have to be adopted to complete the second stage. Before then, the Council will have to work out the legal and technical modalities permitting the UK's partial participation in the SIS.

32. Article 7 concerns the budgetary implications of UK participation in the SIS. The UK will have to bear the full costs of adjusting the technical support function to ensure an appropriate separation of immigration data from the other categories of SIS data to which the UK will have a right of access[18].

33. Article 8 dispenses with the requirement, set out in Article 5 of the Protocol Integrating the Schengen Acquis into the Framework of the European Union, for the UK to notify the President of the Council if it wishes to take part in measures building on the Schengen acquis. The UK will be "deemed" to have given such notice, but only in relation to proposals or initiatives building on the acquis set out in Article 1 of the draft Decision.

34. The latest draft of the Decision supplied to the Committee, and the Government's Explanatory Memorandum, are reproduced in Appendix 3.

Points of interest

35. The Committee noted some apparent anomalies between the original UK Application and the terms of the draft Decision. One example concerns the 1990 Convention provisions on carrier's liability and penalties for assisting in an unlawful entry[19]. These are included in the draft Decision[20], notwithstanding that such matters relate primarily to free movement and immigration control and so were not in the UK Application. By contrast, the draft Decision omits a provision, included in the UK Application, which would require, wherever possible, in-country rather than border checks on legal trade in narcotic drugs and psychotropic substances[21].

36. The most significant changes, however, concern the extent of UK participation in the Schengen Information System (SIS) and in the provisions of the 1990 Convention permitting "hot pursuit" across national frontiers. The UK Application requested participation in all the Convention Articles relating to the SIS while stating that "the UK does not intend to access or enter information on the SIS relating to the movement of persons". One category of data to be entered into the SIS, under Article 96 of the Convention, concerns third country (non-EU) nationals who are to be refused entry. Access to such data is essentially limited to immigration authorities[22]. The draft Decision[23] specifically precludes UK participation in Article 96 or any other provisions concerning the SIS to the extent that they relate, implicitly or explicitly, to Article 96.

37. Potentially, the most controversial aspect of the UK Application concerns the provisions of the 1990 Convention on "hot pursuit" and cross-border surveillance which provide for the carriage of firearms by police officers on foreign soil. The UK requested participation in the relevant Articles[24] but the draft Decision[25] only includes the Article regulating cross-border surveillance. The Government has provided a detailed paper setting out proposed arrangements for cross-border surveillance (p 20). The main point of interest is that police officers from one State continuing a surveillance operation initiated in that State within the UK will be required to surrender their service weapons on entering UK territory. As regards "hot pursuit", the Government has explained that this would only apply at the border between the UK and Ireland. As Ireland has not yet applied to participate in any aspects of the Schengen acquis, this provision of the Convention has been dropped from the UK Application. It could be revived in a subsequent application if Ireland were to seek participation in the acquis.

38. The Committee's questioning of officials from the Home Office and Foreign & Commonwealth Office concentrated on a number of outstanding or contentious issues summarised below.

TERRITORIAL SCOPE

39. The active involvement of Gibraltar in justice and home affairs co-operation, including Schengen, is a goal shared by the British Government and the Government of Gibraltar. As yet, no agreement has been reached on the provisions of the acquis which are to apply in Gibraltar. The draft Decision is one of a number of instruments (mainly concerning Third Pillar matters or measures based on Title IV of the EC Treaty) held up by the reluctance of Spain to recognise Gibraltar competent authorities (QQ 2-18).

40. The participation of the Channel Islands and Isle of Man in provisions of the Schengen acquis will require the adoption of a separate Decision. The Government has proposed a declaration, to be agreed at the same time as the present draft Decision, expressing its intention to involve the Islands in as much of the acquis as would be consistent with the terms of the UK Application and with the constitutional status of the Islands[26].

THIRD COUNTRY NATIONALS

41. The Government has rejected the Commission's suggestion that the UK participate in the provisions of the 1990 Convention permitting legally resident third country (non-EU) nationals to move freely within the Schengen area for up to three months. The Government believes that visa-free travel, even in the limited circumstances permitted by Article 21 of the Convention, would conflict fundamentally with the policy of maintaining border controls (QQ 19-22, p 36).

42. The Home Office subsequently provided estimates of the number of third country nationals legally resident in the UK who would continue to require visas to travel to the rest of the EU. Over a five-year period, from 1995-1999, the numbers affected have climbed from 770,000 (in 1996) to something just short of 1 million (in 1999). The numbers of third country nationals applying at British Diplomatic Posts in EU Member States for visas to travel to the UK are significantly smaller, ranging over the same period from 75,320 (in 1998) to 84,760 (in 1996) (p 41).

43. The Committee remains concerned at the consequences of the Government's policy of rejecting visa-free travel for this category of third country national. The premium placed on mobility and adaptability, whether in the workplace, in higher education, or in the field of tourism, would seem to sit uneasily with the maintenance of visa requirements.

IRELAND/UK

44. The Government continues to expect that Ireland will submit a parallel application to participate in aspects of Schengen co-operation "shortly". Until such time, cross-border police and judicial co-operation will continue on the basis of existing informal arrangements. Home Office officials emphasised the sensitivity of "hot pursuit" in the context of relations between Ireland and the UK. There was no question of UK participation in the "hot pursuit" provisions of the 1990 Convention (Article 41) if Ireland did not also request to participate (QQ 23-27, 35-38).

CROSS-BORDER SURVEILLANCE AND "HOT PURSUIT"

45. The UK intends to participate in the Convention provisions on cross-border surveillance (Article 41) but has proposed special arrangements for the surrender and storage of service weapons carried by foreign police officers on entry into the UK. Home Office officials emphasised two points. First, foreign officers wishing to continue a surveillance operation in the UK would have to obtain the prior authorisation of the National Criminal Intelligence Service (NCIS). There would therefore be an opportunity to screen requests. Second, although the Convention admits the possibility ("for particularly urgent reasons") of cross-border surveillance without obtaining prior authorisation, it would be difficult to envisage this happening in the UK. There were physical and administrative obstacles - crossing the Channel, embarkation and entry controls - which would allow time for advance notification to be given of a surveillance operation (QQ 32-33).

46. The 1990 Convention provisions on "hot pursuit" stipulate that "pursuit shall be solely over land borders"[27]. This raised the question of the status of the Fixed Link between France and the UK. The Government's view which, it seems, is shared by France is that the Fixed Link is neither a land nor a sea border and so the usual border arrangements do not apply, although immigration controls have been maintained. Even if the Fixed Link were to be regarded as a land border for Schengen purposes, the Commission has expressed doubt as to whether hot pursuit would be consistent with the maintenance of border controls. It would seem that France has taken the same view (QQ 35-36).

SCHENGEN INFORMATION SYSTEM

47. Home Office officials were confident that it was possible, technically and legally, to separate immigration data from the other categories of data stored on the SIS. The UK would not be entitled to enter or access immigration data but could participate in all other aspects of the SIS not related to immigration control. The only UK body with direct access to SIS data would, in the initial stages, be the National Criminal Intelligence Service (NCIS). The UK national SIRENE[28] bureau would be located within NCIS. Officials anticipated that direct access would, eventually, be extended to all police forces (possibly through the Police National Computer) and to the National Crime Squad. Customs authorities could, if necessary, obtain access to SIS data via NCIS but as they have their own dedicated databases, there was unlikely to be great demand for direct access (QQ 40-46).

CARRIER'S LIABILITY

48. Home Office officials explained that the 1990 Convention provisions on carrier's liability and the imposition of penalties for assisting an unlawful entry[29] had been included in the draft Decision at the request of the other States. The provisions were not included in the UK's Application as they formed part of a package of measures in the Convention dealing with external frontier controls and the UK was not seeking to participate in the immigration and free movement aspects of Schengen. The provisions would not, however, conflict with the UK policy of maintaining border controls and were broadly compatible with existing legislation (QQ 48-49).

Recommendation

49. 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 information.

1 This right is enshrined in Article 4 of the Protocol Integrating the Schengen Acquis into the Framework of the European Union, annexed to the EC Treaty and the Treaty on European Union. Back

2 21st Report 1997-98, HL Paper 87. Back

3 31st Report 1997-98, HL Paper 139. Back

4 7th Report 1998-99, HL Paper 37. Back

5 At paragraph 59 of the Report. Back

6 Declaration 45, agreed at Amsterdam, specifies that the Council may seek the opinion of the Commission on a request made by the UK or Ireland to take part in some or all of the provisions of the Schengen acquis. Back

7 All EU Member States other than Ireland and the UK. Iceland and Norway also apply the Schengen acquis by virtue of an Association Agreement Back

8 Protocol Integrating the Schengen Acquis into the Framework of the European Union. Back

9 Protocol on the Application of Certain Aspects of Article 7a of the EC Treaty to the UK and Ireland. Back

10 Article 2 of the Treaty on European Union. Back