Select Committee on European Union Fifth Report

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


  Thank you for your letter of 10 January, in which you sought clarification of a number of points arising from the draft Council Decision on the UK's application to participate in provisions of the Schengen acquis.

  I have set out below a response to your questions, which I hope will be helpful. I am also enclosing a copy of the latest version of the draft Council Decision (Schengen 74 Rev 4) for the Committee's information. I will ensure that the Committee receives the final version in accordance with scrutiny procedures.


  I can confirm that the cross-border surveillance arrangements which we plan to put in place envisage that officers from another Member State attached to a UK team would play a formal role in acting as advisers in a surveillance operation. This would entail them making recommendations as to the direction the operation should take, suggesting courses of action based on their knowledge of the case and remaining in touch with their command centre so as to provide valuable intelligence to their UK colleagues who would have taken over control of the operation.

  Given the limited part in the operation which, as advisers, officers from another Member State would play, and given the conditions laid down in Article 40(3), it is unlikely that the question of damages would arise. However, in the event that it did so, we can confirm that the officers would be subject to the jurisdiction of the UK courts, and to the extent that they would be engaged in a surveillance operation, albeit alongside their UK counterparts, Articles 42 and 43 SIC would apply, so that the arrangements governing compensation set out in Article 43 would apply to officers from another Member State in these circumstances. I should also draw the Committee's attention to Declaration No. 3, which it is proposed the United Kingdom should make, on adoption of the Decision, with reference to our implementation of Article 40.


  As you say, one of the underlying principles of the Schengen Convention is to provide for the free movement of persons across borders. It follows that the provisions of both Articles 40 and 41 exist in order to provide compensatory measures for the removal of physical border controls. As a result, surveillance operations and incidents which involve a hot pursuit across a land border are permitted under Articles 40 and 41 as a withdrawal of resources at the border necessarily means there is no opportunity for the Member State into which the surveillance or pursuit enters to control that situation. The significant point in terms of their application to the UK is that Article 41 applies expressly only to land borders, whereas Article 40 is applicable across all borders. Thus we were able to accept that hot pursuit as envisaged by the Schengen Convention could not take place between the UK and other Schengen States, whereas cross-border surveillance might occur by air or sea.


  The provisions relating to our partial participation in the SIS, contained in Article 5 of Schengen 74 Rev 2, do not appear in the latest version of that document. This is because it has been agreed that the legal and technical modalities of our partial participation in the SIS will be the subject of further discussion by the Schengen Acquis Working Group following adoption of the Council Decision. However, the provision in question was originally included in the draft Council Decision in recognition of the derogation contained in Article 102(3) of the Schengen Convention enabling Member States to switch data from one category to another where justified by the need to prevent an imminent serious threat to public policy and safety, for serious reasons of State security or for the purposes of preventing a serious offence. As we will not be participating in Article 96 it is not envisaged that our Immigration Service (IS) will have direct access to the SIS. But we would not rule out, exceptionally, the possibility of information being passed to the IS where the conditions of Article 102(3) are met.


  The Government has accepted the exclusion of the two Schengen Executive Committee Decisions on confidentiality from the Council Decision because we agreed with Council Legal Service advice that their inclusion was not necessary. The Decisions, which are not themselves confidential, purely establish the confidentiality of certain Schengen documents. Following the incorporation of the Schengen acquis into the Treaty on European Union, these two Decisions became Decisions of the Council relating to the confidentiality of Council documents. As members of the Council, the United Kingdom is automatically bound by decisions on the confidentiality of Council documents. We therefore accepted that to list these two Decisions among the acquis in which the United Kingdom is seeking to participate would imply that the United Kingdom was not already bound by the Council rules on confidentiality. This would be misleading.


  Discussions continue with Spain and the Government of Gibraltar on issues relating to the UK application. The article of the draft Council decision relating to Gibraltar's participation therefore still remains open. We will ensure that the Committee is informed as soon as the matter is resolved.

  On Channel Islands and Isle of Man, the Government has proposed, in addition to Article 5(1) of Schengen 74 Rev 4, a declaration which would read as follows:

    "Any future request pursuant to Article 7(1) of this Decision concerning the application to the Channel Islands and Isle of Man of provisions of the Schengen acquis mentioned in Article 1 will ensure coherence in the application of the Schengen acquis in the United Kingdom, Gibraltar and the Channel Islands and Isle of Man, consistent with their respective status under the Treaties. In this regard, the United Kingdom will ensure that any request covers all appropriate provisions of the acquis mentioned in Article 1 of this Decision, taking into account the status of the Channel Islands and Isle of Man under the Treaties".

  This text has not yet been unanimously agreed and may be subject to further amendment. However it indicates our intention to ensure that the Islands participate as fully as possible in the Schengen provisions, within the terms of the UK's application and of the constitutional position of the Islands. We are still discussing with the Islands the exact terms of their participation which are dependent in part on the final form of our own application.


  The Government's decision to propose a declaration by the UK on the matter dealt with by Article 10(2) of the draft Council Decision (Article 8(2) of Schengen 74 Rev 4) was prompted by concern about the original drafting of this Article, which seemed to us to be inconsistent with the terms of the Schengen Protocol. A declaration was, in our view, justified by the fact that it dealt with a matter which concerned the exercise of our discretion under Article 5 of the Schengen Protocol. However, we were able to secure amendments to the Article which brought it into line with the wording of the Schengen Protocol and on that basis were able to accept the inclusion of this provision in the text of the Decision.


  Publication of the Schengen acquis in the Official Journal did not take place on entry into force of the Amsterdam Treaty because the acquis had not at that stage been translated into all Community languages. The full acquis will be published in the Official Journal as soon as the translation process has been completed, which is expected to be in April.

  As the Committee has noted, Article 8(4) of the draft Decision provides for Article 75 of the Schengen Convention together with Decision SCH/Com-ex (94) 28 rev to be directly applicable in the United Kingdom. However, these provisions of the acquis will not enter into force for the United Kingdom on adoption of the draft Decision. In accordance with Article 8(1) of the draft Decision, the acquis will be put into effect for the United Kingdom on a date to be decided by the Council following the adoption by the UK Government of the legislation necessary to implement the acquis in the United Kingdom. Until this date, no question of direct applicability can arise. Given the need to adopt primary legislation to implement certain parts of the acquis, there is likely to be a gap of some months before the Council decides to put the acquis into effect for the United Kingdom. It is therefore highly likely that the acquis will have been published in the Official Journal before Article 75 and Decision SCH/Com-ex (94) 28 rev become directly applicable in the United Kingdom.

31 January 2000

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