Select Committee on European Union Fifth Report

Letter from Lord Tordoff, Chairman of the Select Committee on the European Union, to Barbara Roche, MP, Minister of State at the Home Office


  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 Man.


  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

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2000