Select Committee on European Union Fifth Report


Annex 2

COMMENTARY ON ARTICLES OF THE SCHENGEN IMPLEMENTING CONVENTION IN WHICH THE UNITED KINGDOM WISHES TO SEEK PARTICIPATION

  The Articles of the Schengen Implementing Convention in which the United Kingdom wishes to seek participation are listed in Annex 1, together with the relevant Decisions and Declarations of the Schengen Executive Committee. This Note provides a commentary on the implications for the United Kingdom of implementing this acquis and indicates any specific measures which will need to be taken under UK law to enable full compliance with the relevant provisions. Primary legislation will be introduced when parliamentary time allows.

  This analysis is based on available information about the purposes and effect of the Schengen provisions.

POLICE CO-OPERATION

Article 39

  The United Kingdom intends to designate the National Criminal Intelligence Services (NCIS) as the central body under Article 39.3.

Article 40

  A transition period will be needed to enable the United Kingdom to put in place the operational framework necessary for cross-border surveillance to be carried out. In view of the United Kingdom's island geography, it is expected that surveillance which takes place without prior authorisation would be limited to those situations where the duration of travel to the UK is shorter than could reasonably allow for prior authorisation to be sought.

Article 40.3

  The United Kingdom recognises that the intention of Article 40.3(d) is to enable police officers to carry their service weapons while carrying out cross-border surveillance. However, handguns are prohibited weapons in England, Wales and Scotland and, with some exemptions, can only be possessed with the specific authorisation of the Secretary of State. The UK wish to discuss with partners how to take forward co-operation in this area consistent with UK law and with the provisions of Article 40.3(a) and 40.3(d) of the Convention.

Article 40.4

  Under the terms of this Article, competent officers in the United Kingdom would be officers from police forces in the United Kingdom and officers of Her Majesty's Customs and Excise.

Article 40.5

  The competent authority for the receipt of requests for authorisation of cross-border surveillance would be the National Criminal Intelligence Service.

Article 41

  The only land border of mainland UK is that with the Republic of Ireland, as it is recognised that the Fixed Link between England and France is not a land border. Implementing Articles 41.1, 41.2 and 41.6 will require primary legislation and will therefore need a transition period. In relation to Article 41.5, gun controls in England, Wales and Scotland prohibit, with some exceptions, the carrying of handguns unless specifically authorised by the Secretary of State. The UK will discuss with its partners how to take forward co-operation in this area. Any change to the United Kingdom's current laws would require legislation. The United Kingdom will develop legislation in close consultation with the Republic of Ireland and will make a joint declaration under Article 41.9.

Article 41.7

  The competent officers as designated under this Article would be officers from police forces in the United Kingdom and officers of Her Majesty's Customs and Excise.

Article 42

  To meet the requirements of this Article, the United Kingdom will need to introduce primary legislation. A transition period will therefore be needed.

Article 43

  United Kingdom implementation of this Article will be linked to the measures necessary for implementation of Article 42 and will require primary legislation. A transition period will therefore be required.

Article 46

  The United Kingdom will designate the National Criminal Intelligence Service as the central authority for the exchange of information.

JUDICIAL CO-OPERATION

Articles 49e & 49f

  In relation to certain legal statements, suspension of sentences etc, the UK has reserved the right in the Additional Protocol to the 1959 Convention on Mutual Assistance in Criminal Matters not to assist with such matters.

Article 50

  The provision of assistance in a form admissible as evidence in relation to non-criminal infringements would require legislation. The UK will therefore require a transition period.

Article 53.5

  The United Kingdom does not intend to apply this discretionary provision as it has reserved the right not to apply Article 21 of the 1959 Convention on Mutual Assistance in Criminal Matters.

Article 57

  The United Kingdom will nominate the authorities declared under Aritcle 24 of the 1959 European Convention on Mutual Assistance in Criminal Matters, with any variation made pursuant to the future EU Convention on Mutual Legal Assistance in Criminal Matters.

Article 64

  The United Kingdom will need to introduce primary legislation to implement the provisions of this Article. A transition period will therefore be requested.

Article 66

  The United Kingdom will need to introduce primary legislation to implement this. A transition period will therefore be requested.

Articles 67-69

  The United Kingdom will need to introduce primary legislation to implement the provisions of these Articles. A transition period will therefore be requested.

NARCOTIC DRUGS

Article 75

  The competent authority referred to in Article 75 would be the Home Office.

SCHENGEN INFORMATION SYSTEM

Articles 92-119

  The United Kingdom will need to make appropriate administrative and financial arrangements to set up a national section under the Schengen Information System. A transition period will be required to enable this work to be completed. The nature of UK participation and the level of financial contribution to be made to the technical support function will also need to be discussed.

  The United Kingdom will need to make appropriate administrative and possibly legislative arrangements to give effect to the provisions of these articles relating to the protection of personal data. A transition period will therefore be needed to enable this work to be completed.

Articles 96 and 101.2

  Although the United Kingdom has sought participation in all the Articles relating to the SIS, in recognition of the view of Schengen States that the SIS represents a whole, the United Kingdom does not intend to access or enter information on the Schengen Information System relating to the movement of persons.

Article 101

  The authorities allowed to have direct access to the data on the Schengen Information System under Article 101.4 will be:

    —  The National Criminal Intelligence Service

    —  The National Crime Squad

  The United Kingdom will set out at a later stage the information on the data on which each body may search and for what purposes.

Article 108

  The central responsible authority under Article 108 would be the National Criminal Intelligence Service.

Articles 114-115

  The United Kingdom will designate the Data Protection Registrar (to become the Data Protection Commissioner after the entry into force of the Data Protection Act 1998) as the supervisory authority responsible for the activities described in these articles.

DATA PROTECTION

Articles 126-130

  The United Kingdom will need to make appropriate administrative and possibly legislative arrangements to give effect to the provisions of these articles relating to the protection of personal data insofar as they apply to activities in which the UK is seeking to participate. A transition period will be needed to enable this work to be completed.

Article 128

  The United Kingdom intends to designate the National Data Protection Registrar (to become the Data Protection Commissioner after the entry into force of the Data Protection Act 1998) as the supervisory authority under this Article.

LEGAL EFFECT

  The United Kingdom will wish to clarify in the Decision under Article 4 of the Schengen Protocol the legal effect of the Schengen acquis as it applies to the United Kingdom, bearing in mind that, on the date of its application to the United Kingdom, it will have been incorporated into European Union and Community Law.

TERRITORIAL APPLICATION

  For the purposes of this application, the provisions of the Schengen acquis which the UK wishes to accept should apply to Gibraltar except the following provisions which should not apply to Gibraltar.

Articles 40-43

  (i)  Cross border surveillance and hot pursuit.

Articles 48-53

  (ii)  Mutual assistance in criminal matters: the provisions of this chapter are intended to supplement the 1959 Convention on Mutual Assistance in Criminal Matters which does not currently apply to Gibraltar.

Articles 59-66

  (iii)  Extradition: the provisions of this chapter are intended to supplement the 1957 European Convention on extradition which does not currently apply to Gibraltar.

  (iv)  Those provisions of the Schengen acquis, such as Article 75, which will be allocated a legal base of Article 95 TEC and relate to the free movement of goods (since Gibraltar is outside the Common Customs Territory).

  The Crown Dependencies, that is the Channel Islands and the Isle of Man, may also wish to participate in some areas of co-operation under Schengen. The arrangements for any such participation will be taken forward separately.


 
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