THE UK APPLICATION
Explanatory Memorandum on a Note from
the Presidency to the Council concerning the request by the United
Kingdom to take part in some of the provisions of the Schengen
acquis (in accordance with Article 4 of the Schengen Protocol)
(Document No: 8562/99, SCHENGEN 56) Submitted by the Home Office
on 24 June 1999
1. This Explanatory Memorandum relates to
the UK's application to participate in those areas of the Schengen
acquis which relate to law-enforcement and judicial co-operation,
including the Schengen Information System (SIS), in accordance
with Article 4 of the Schengen Protocol.
2. The Home Secretary has overall responsibility
for the policy arising from this document. The Foreign Secretary
has overall responsibility for the implementation of the Amsterdam
(i) Legal Basis
3. The UK's application to participate in
the Schengen acquis is provided for by Article 4 of the Protocol
integrating the Schengen acquis into the framework of the European
Union, annexed to the Treaty on European Union and the Treaty
establishing the European Communities.
(ii) European Parliament
4. There is no formal provision in the Schengen
Protocol for the European Parliament either to be kept informed,
or to take part in the decision-making of the Council. The UK
fully supports initiatives by the EU Presidency of the day to
supply the European Parliament with full documentation on the
(iii) Voting Procedure
5. Article 4 of the Schengen Protocol provides
that any application by the UK to participate in the provisions
of the Schengen acquis shall be decided unanimously in the Council
by the thirteen Schengen states and the UK.
6. Participation in the provisions of the
Schengen acquis will require legislation in a number of areas.
These are identified in annex 2 to the application, which indicates
that transitional periods will as a consequence be needed to implement
these aspects of Schengen. The details are set out in the three
paragraphs below. Article References are to the relevant article
of the Schengen Implementing Convention (SIC).
7. Specific aspects of the provision on
hot pursuit (Article 41) will require primary legislation before
they can be implemented in the UK. The requirement (Article 42)
that a foreign law enforcement officer, acting under the terms
of Article 40 and 41, should have the same status as a British
officer in respect of any offence committed against them and the
provisions in Article 43 regarding damage caused during such operations
will require primary legislation to enable their implementation
in the UK.
8. Some of the Schengen provisions on judicial
co-opertion (Articles 50, 64, and 66) will require implementation
through primary legislation relating to mutual legal assistance
in fiscal matters and to streamlining of extradition procedures.
Primary legislation will also be needed to implement the Schengen
provisions for the transfer of the enforcement of criminal judgements
9. Participation in Schengen, and particularly
in the SIS, will bring additional data protection requirements.
The Government is continuing to give these careful considertion
to assess whether the Data Protection Act 1998 provides a sufficient
legal base or whether any additional requirements need legislative
or administrative changes.
10. The Government will also wish to clarify,
in negotiations within the Council, the legal force of the various
Articles, Decisions and Declarations of the Schengen acquis in
which participation is sought, in order that they can be transposed
correctly into UK law.
11. The Government of Gibraltar has been
consulted over the extent to which the proposed participation
in the Schengen acquis should apply to Gibraltar. The Data Protection
Registrar has also been consulted over the role envisaged for
her in the application.
12. The application is part of the UK's
policy of positive involvement in JHA co-operation. The Republic
of Ireland has indicated that it will submit shortly an application
in similar terms. Participation will lead to closer contacts with
European Union partners, particularly at operational level. Through
participation in the SIS, the UK will be able to exchange information
about wanted or missing persons and vehicles across Europe more
effectively and efficiently than is currently possible.
13. With regard to Articles 40 and 41 (cross-border
surveillance and hot pursuit), the Government does not anticipate
these provisions being put to extensive practical use. The only
land border across which these provisions will apply is that with
the Irish Republic, and the UK will work closely with the Irish
government to set out precisely how these provisions would be
implemented, should Ireland seek participartion in this area also.
Although cross-border surveillance will extend to the UK's continental
European neighbours, it is anticipated that cases without prior
authorisation will be rare, given the scope for advance notice
which the nature of travel to the UK provides.
14. As the Government does not intend to
participate in the provisions on external borders, or in Article
96, there will be no policy implications in terms of persons deemed
inadmissible to the UK.
15. The principal financial implication
arising from the UK's participation in Schengen will be with respect
to the SIS. As well as start-up and running costs for the UK section
of the SIS, the UK will also be expected to contribute to the
original costs of setting up the SIS, although no commitment has
yet been given to the expenditure involved. The precise nature
of our participation in the SIS, and the consequent financial
costs, will be subject to detailed discussion during the negotiations
on the application. It is not possible to provide a precise estimate
of the costs, which the UK is discussing with interested parties,
including the police service, but if we joined in 2001 it would
be in the region of £3.3 million.
16. Funding will also be required for the
equipment needed at the National Sirene; lines to the Central
Sirene; such local terminals as are installed in the different
agencies; and the relevant connections. This has not been costed,
as much will depend on the type of equipment involved and its
compatibility with existing equipment, as well as decisions by
the different agencies as to the number of local terminals they
17. There will also be financial implications
arising from the new tasks which participation in the Schengen
acquis will impose on the Data Protection Registrar. It is estimated
this will amount to 10 days a year of senior staff involvement,
start up costs of between £6,000 and £9,000 and running
costs of between £22,000 and £34,000.
18. The next stage in the application process
will be the issue of an Opinion by the Commission. The Government
expects this to take place shortly, after which the application
will be discussed within the Council framework. The Government
hopes that significant progress on the application will have been
made by the time of the Tampere European Council in October 1999.