Select Committee on European Union Fifth Report



Letter from Barbara Roche MP, Minister of State, Home Office, to Jimmy Hood MP, Chairman of the Commons European Scrutiny Committee


  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 Group—and the French delegation have accepted—that 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



Current arrangements

  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 provisions—general

  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 carried out.

  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 the border.

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.

Home Office

September 1999

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