Letter from Lord Tordoff, Chairman of
the Select Committee on the European Union, to Barbara Roche,
MP, Minister of State at the Home Office
DRAFT COUNCIL DECISION ON THE UK APPLICATION
TO PARTICIPATE IN SCHENGEN (DOCUMENT 11177/99, SCHENGEN 74)
I understand that the Council Decision concerning
the UK request to take part in certain provisions of the Schengen
acquis was substantially agreed during December, apart from the
question of territorial application to Gibraltar. As you know,
this Committee has taken a keen interest in the incorporation
of the acquis within the European Union and its proposed extension,
at least in part, to the UK. Sub-Committee F heard evidence from
your officials on the UK application on 24 November and has since
had the opportunity to consider a revised draft Council Decision
and your response to various questions raised by our sister Committee
in the Commons. While the Committee would welcome clarification
of a number of points arising from these documents, it also recognises
that your officials are unlikely to be able to provide a full
response in the short time available. It is content, therefore,
to clear the draft Council Decision from scrutiny pending your
reply to the points set out below. Once the precise terms of the
UK's application have been agreed, the Committee intends to publish
the relevant documents and evidence in a short Report to the House.
Your letter of 18 November encloses a detailed
paper setting out proposed arrangements for cross-border surveillance
under Article 40 of the Schengen Convention. Paragraph 11 of the
paper explains that a UK team would take over a surveillance initiated
in another Schengen State if the target moves onto UK territory.
Officers from that State would, however, join the UK team as advisors.
Such officers, you suggest, "would not be acting in an operational
police capacity as envisaged by the Schengen provisions, in the
particular circumstances of these operations". If your assumption
is correct, Articles 42 and 43 of the Schengen Convention would
seem not to apply. These provisions ensure that officers operating
on foreign territory are treated, in terms of their status and
liability, as if they were officers of the State in which they
are operating. Under Article 43(2), the UK authorities would be
required to repair damage arising from a surveillance operation
carried out on UK territory, notwithstanding that the damage was
caused by an officer from another Schengen State. This should
make it easier for a UK citizen to obtain speedy compensation.
The Committee would be grateful if you could
explain in what formal capacity, if any, officers from another
Schengen State performing an advisory function in the UK would
be acting. Would such officers be amenable to the jurisdiction
of UK courts for any damage caused by them to the person or property
of an individual in the UK? Would it be possible for the injured
individual to seek redress from the local police authority in
respect of such damage, as would seem to be envisaged by Article
43(2) of the Convention?
The Commtitee notes the reasons given for excluding
Article 41 of the Convention on "hot pursuit" from the
UK application. In particular, you suggest that this provision
only applies to land borders at which controls have been removed.
Although the general purpose of the Convention is the removal
of internal border controls, Article 41 does not expressly require
the lifting of such controls as a pre-requisite to "hot pursuit".
If such a requirement is to be inferred from the general purpose
of the Convention, would it apply equally to cross-border surveillance
under Article 40 which also involves the crossing of a border?
The Committee would welcome your views.
The Committee notes that Article 5(b) of the
draft Decision would permit UK authorities to use SIS data to
refuse entry to, or to expel from, UK territory non-EU nationals
who present "an imminent serious threat to public policy"
or "for reasons of State security or for the purpose of preventing
a serious offence". Would you accept that, to this limited
extent, UK participation in the SIS might have some impact on
UK immigration control?
The Committee is concerned at the justification
advanced by the Council Legal Service (and apparently endorsed
by the Government) for the exclusion of two Schengen Executive
Committee decisions, (93)22 and (98)17, from the draft Council
decision, notwithstanding that these decisions are already in
the public domain and will bind the UK. The two decisions merely
identify certain documents which, for operational reasons, are
to be treated as confidential. They appear on the face of the
Council Decisions, adopted last May, defining the acquis to be
incorporated within the European Union and allocating it to a
legal base in the EU Treaties. The decisions form part of the
acquis deposited in Parliament. The Committee commented, at paragraph
127 of its Report, Incorporating the Schengen Aquis into the
EU (1997-98, 31st Report, HL Paper 139), that "there
is a crucial distinction between laws regulating matters considered
confidential for security or other reasons and the operational
rules to implement them. While there may be circumstances in which
non-disclosure of the latter may be justified, the laws on which
they are based should be subject to public and parliamentary scrutiny".
The Committee can see no reason for excluding the two Executive
Committee decisions from the draft Council Decision on the UK
application and would welcome a more detailed explanation.
The Committee notes that the territorial scope
of the UK application remains unresolved. The Committee wishes
to be informed of the outcome of the bilateral negotiations between
the UK and Spain on the extension of parts of the acquis to Gibraltar.
It would also welcome a clearer indication of the Government's
intentions with regard to the Channel Islands and the Isle of
ARTICLE 5(1) OF
Article 10(2) of the draft Decision provides
for the UK to play a full part in the discussion and adoption
of proposals and initiatives building on the acquis in which it
has chosen to participate. The UK would not, therefore, be required
to give a separate notification in relation to each such proposal,
as is envisaged under Article 5(1) of the Schengen Protocol. It
seems that the Government would prefer to make a declaration to
this effect. Other Member States consider that it should remain
within the body of the draft Decision, not least for reasons of
openness and legal certainty. The Committee would welcome a fuller
explanation of your reasons for preferring a declaration.
The Committee notes that, under Article 8(4)
of the draft Decision, Article 75 of the Convention and an implementing
Decision adopted by the former Executive Committee shall be directly
applicable within the UK. Both of these provisions have been incorporated
into the EU but the Schengen acquis as a whole has not yet, to
our knowledge, been published in the Official Journal. Does the
Government consider that EU law would permit such provisions to
be directly applicable before their publication?
The Committee looks forward to receiving your
reply to the points raised above and a copy of the final Decision
once it has been agreed in Council.
10 January 2000