CORRESPONDENCE CONCERNING THE UK APPLICATION
Letter from Barbara Roche MP, Minister
of State, Home Office, to Jimmy Hood MP, Chairman of the Commons
European Scrutiny Committee
UK SCHENGEN APPLICATION:
1. In its Twenty-Fifth Report, the Committee
asked for answers to two questions in relation to the UK's request
to take part in some of the provisions of the Schengen acquis
(Council doc no 8562/99, Schengen 56). I am writing to respond
to those questions, and also to update you on progress in the
Council's consideration of our request.
2. You asked, first, what kind of co-operation
the UK had in mind in relation to the carriage of firearms by
officers engaged in hot pursuit or cross-border surveillance under
Articles 40 and 41 of the Schengen Implementing Convention (SIC).
I enclose, for your information, a copy of a paper prepared by
the UK to aid Council consideration of our implementation of the
cross-border surveillance provisions. This makes clear that UK
law does not permit the carriage of firearms unless specifically
and individually authorised by the chief officer of police. We
have no intention of changing that position and have therefore
indicated that it will be necessary for arrangements to be made
to allow the surrender and storage of weapons carried by police
officers on entry to the UK. The detail of this would be established
during the period in which the UK makes the necessary preparation
for implementation of its participation.
3. The provisions on hot pursuit under Article
41 SIC also envisage the carriage of firearms by officers on foreign
soil. We have, however, at the request of the Presidency and other
Member States, agreed not to include Article 41 in our application
at this stage. This is because the provision applies only to land
borders at which controls have been removed. It is therefore not
applicable to any of the current parties to the Schengen arrangements.
We may have to review this position if, when the Republic of Ireland
submit their request for participation in Schengen, they seek
participation in Article 41.
4. You asked also about the basis for our
statement that the Fixed Link between England and France is not
a land border. We have suggested in the Council Working Groupand
the French delegation have acceptedthat the Channel Tunnel
Link is "sui generis"; neither land nor sea border.
The actual border is agreed as being in the middle of the English
Channel; the Sangatte Protocol therefore provides for special
administrative arrangements to be made for controls at the Fixed
Link, in recognition of the fact that it is not a conventional
border arrangement. This is the basis for our argument. It is
clear that hot pursuit has no real application to the Fixed Link
in practice given that the practicalities of travel, together
with the retention of immigration controls, prevent suspects from
taking flight freely from one jurisdiction to the other.
5. Turning to progress on our application
more generally, a draft Council Decision is now under discussion,
which will be the means for approval by the Council to the broad
terms of our participation. The draft Decision has been deposited
for scrutiny and an explanatory memorandum provided. I enclose
for the Committee's information the latest revision of that text.
The Presidency have referred the draft Decision for consideration
by Coreper, and we understand it is their intention that it should
be approved by Ministers at a meeting of the Council during December.
Thus, while I understand your wish for further information before
clearing the application for scrutiny, and I am happy to respond
to any further requests you may have, I would hope that it would
be possible for scrutiny to be completed by the end of the month
in order to ensure that we keep pace with the Presidency's plans.
I hope that this does not cause the Committee any difficulty,
and I stand ready to provide any further information you may require.
6. I am copying this letter and enclosure
to Lord Tordoff.
18 November 1999
SCHENGEN PARTICIPATION: CROSS-BORDER SURVEILLANCE
BETWEEN THE UK AND EXISTING CONTRACTING STATES UNDER ARTICLE 40
THE UK DELEGATION
1. Existing co-operation between the UK
police and customs services and other EU Member States is good.
When a surveillance team from another Member State needs to continue
a surveillance into UK territory, current practice is for them
to notify their UK counterparts in advance, who would take over
the surveillance when the subject reached the UK. The UK team
would either handle the surveillance operation independently,
or take control of the surveillance but with officers from the
original team acting as advisers. At no time is a surveillance
team entering the UK and handing over their surveillance to a
UK team allowed to carry their service weapons. Because the provision
for emergency cross-border surveillance does not at present exist
in the UK, and all operations are pre-planned, the issue of service
weapons is resolved before the team sets out. The UK has built
on its successful experience of such co-operation in setting out
the following proposals for its participation in the Schengen
acquis based on Article 40 SIC.
Article 40 provisionsgeneral
2. The UK delegation's understanding of
the principles of Article 40 SIC is as follows. The UK considers
it important that it has a full and correct understanding of these
provisions in order to finalise practical arrangements for their
implementation. Article 40 SIC states that police officers (and,
in the UK, for the offences which concern them, customs officers),
may continue a surveillance operation initiated in their own country
across the borders of another EU Member State, subject to the
agreement of the State on whose territory the surveillance is
3. Article 40 SIC distinguishes between
two types of surveillance: "ordinary" surveillance,
which is carried out after obtaining authorisation, and "emergency"
surveillance, which allows surveillance to be continued into the
territory of another Schengen State without prior authorisation.
4. In normal circumstances, when prior authorisation
is sought, the requested State refuses or grants authority, which
might be subject to conditions as to the way in which the surveillance
is carried out. Emergency surveillance may be carried out only
where prior authorisation cannot be requested for particularly
urgent reasons. The UK delegation envisages that this would generally
apply where the subject under surveillance unexpectedly crosses
the border into another State; the crime under investigation is
serious enough to warrant the continuation of the operation; and
that these circumstances come to attention at such a late stage
that a request for assistance cannot be granted even if it is
transmitted to the authority in the requested State immediately.
In these cases the authority of the requested State must be notified
immediately the border is crossed; a request for assistance must
be submitted without delay; and the surveillance must cease either
at the request of the requested State, or, in the absence of any
authorisation from the requested State, within five hours of crossing
Cross-border surveillance and the UK
5. This paper by the UK delegation covers
the position in terms of existing contracting States only and
only in relation to cross-border surveillance into the UK. The
UK would be happy to respond to any queries about cross-border
surveillance by UK officers in other Member States. The UK reserves
the right to review its position in the light of the terms of
any forthcoming application from Ireland to participate in the
Schengen acquis, given the particularities of the land border
between our two countries.
6. The UK border may be crossed in a number
of ways: by passing through the Channel Tunnel, by ferry or by
hovercraft, or by air. In view of the UK's position on frontier
controls, border checks will be in place at all entry points,
and it will not be possible to enter the UK without first encountering
a border check.
7. Because of the UK's geographical location,
crossing from one Member State into the UK can never be an immediate
process. The actual journey time is a minimum 30 minutes with
boarding, disembarkation and frontier check processes to add.
Lines of communication between the UK and other Member States
are such that even in cases of emergency it is extremely unlikely
that a State which is engaged in a surveillance operation which
is likely to continue into UK territory will be unable to arrange
for prior contact with the UK authority, for which it is intended
to nominate the UK National Criminal Intelligence Service, to
seek authorisation for cross-border surveillance. The National
Criminal Intelligence Service would liaise with the appropiate
UK police or customs authority with a view to identifying the
relevant resource which could be requested to carry out the surveillance.
Requests will be dealt with speedily, as the National Criminal
Intelligence Service has a 24 hour facility which has the means
to make an immediate approach to the appropriate authorising officer.
Where necessary, requests may be dealt with without formal documentation,
provided that sufficient information is supplied to the National
Criminal Intelligence Service at the first point of contact.
8. Once the border has been crossed, Article
40 requires that the officer must comply with the national law
of the country in which he is operating. Article 40 allows for
the carriage of service weapons unless the requested State expressly
objects. In the UK, police officers do not carry firearms except
in particular circumstances; each carriage of firearms has to
be authorised by the chief officer of the area concerned. The
UK therefore would not allow officers who are seeking to continue
a surveillance operation into UK territory to carry their service
weapons and any carriage of firearms without authority would be
a criminal offence and would not be covered by Article 42. However,
the UK recognises that operationally urgent surveillance, even
if authorised immediately before departure to the UK, could involve
officers from the requesting state being in a position where they
are carrying a firearm. Ideally, such firearms would be left in
the territory of the requesting state before departure or at the
port of embarkation. The UK would want to discuss with other delegations
the scope for such arrangements.
9. Where such prior arrangements could not
be made for any reason, the UK would want to make arrangements
for the firearm to be surrendered at the port of entry in the
UK and to be kept in a secure place to await collection by the
officers concerned either on their departure or subsequently.
The surrender of service weapons and ammunition would need to
be handled discreetly, so as not to compromise the essential covert
nature of the operation. The UK would want to discuss with other
delegations the modalities for such arrangements.
10. Where, in a case involving prior authority,
the requesting State considers that the subject of the surveillance
is so dangerous that it is essential that any officers conducting
the surveillance should carry weapons, they should convey this
information to the UK National Criminal Intelligence Service as
part of the application under Article 40(1). Such operations may
best be undertaken by transferring responsibility for the surveillance
to a team comprising officers from the UK, in accordance with
paragraph 2 of Article 40(1).
11. Officers conducting the surveillance
would hand the operation over to the UK team, but the UK envisages
that a small number of officers from the original team would join
the UK team to act as advisors. The UK assumes that the effect
of such a transfer would be that these advising officers would
not be acting in an operational police capacity as envisaged by
the Schengen provisions, in the particular circumstances of these
operations. The need for the UK officers to carry firearms would
be decided on the basis of the requesting state's assessment and
in accordance with UK law and practice.
12. In emergency cases officers carrying
out such a surveillance would be expected, as early as possible
before arrival in the UK, to make contact with their appropriate
senior officer, who would make contact with the National Criminal
Intelligence Service in the UK. The National Criminal Intelligence
Service would then consider the circumstances of the case and,
if appropriate, liaise with the appropriate UK police or customs
authority with a view to an appropriate team being assigned to
rendezvous with the officers concerned and take over the surveillance,
as described above. Where the requesting party believes that the
surveillance team should be armed, separate authority would have
to be sought in accordance with UK law, so early notification
is, in such cases, particularly necessary.
13. Delegations have drawn to the UK's attention
that cross-border surveillance is in principle permitted for a
maximum period of five hours without authority if the circumstances
of Article 40(2) are met and that, in any case, surveillance could
occur for a shorter period until notification has been made and
a request for assistance made and answered. The UK's description
above of the practicalities of travel to the UK suggests that
such circumstances would be likely to be exceptional. The UK nonetheless
accepts the existence of such provision in Article 40(2) but would
want the following restriction, allowed by Article 40(3)(d), to
be noted, namely that in order to comply with Article 40(3)(a),
which requires officers to comply with UK law, officers of the
sending state must not be armed.
14. The UK welcomes the opportunities that
these provisions provide for a full and constructive use of cross
border-surveillance within the broader framework of law enforcement
co-operation. The UK also recognises that the travelling time
betwen the UK and other Member States applies equally to UK teams
seeking to continue a surveillance operation into the territory
of another Member State. The UK National Criminal Intelligence
Service would be in a position to facilitate contact between UK
surveillance teams and other Member States where necessary, and
would seek to ensure that other Member States received requests
for prior authorisation for cross border surveillance from UK
teams prior to their embarkation, even in urgent cases.