UK APPLICATION TO PARTICIPATE IN PROVISIONS
OF THE SCHENGEN ACQUIS
(20460)
11177/99
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Draft Council Decision on the request by the United Kingdom to take
part in some of the provisions of the Schengen acquis.
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| Legal base:
| Article 4 of the Protocol annexed to the TEU and the TEC
incorporating the Schengen acquis into the framework of
the EU
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| Department: |
Home Office |
| Basis of consideration:
| Minister's letter of 25 April and Supplementary EM of 4
May 2000
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| Previous Committee Report:
| HC 23-ii (1999-2000), paragraph 13 ( 1 December 1999)
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| To be discussed in Council:
| 29-30 May 2000
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| Committee's assessment:
| Politically important
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| Committee's decision:
| Cleared (decision reported 1 December 1999)
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Background
11.1 We cleared this document in December
1999, but asked to be informed of the outcome of the continuing
discussions about the territorial scope of UK participation in
some of the provisions of the Schengen acquis. Over the
last few months, progress on this issue has been stalled. However,
as the Foreign Secretary reported to the House of Commons on 19
April[16],
the differences between Spain and the UK on a number of issues
within the EU concerning Gibraltar have now been resolved.
The Minister's letter
11.2 In his letter of 25 April, the Secretary
of State at the Home Department (the Rt. Hon. Jack Straw) informs
us that one outcome of the successful resolution is that the UK
Permanent Representative has now written to the Presidency of
the Council enclosing an amendment to the draft Council Decision
on the UK application which covers application to Gibraltar. (He
provides a copy for our information.)
11.3 He also tells us that Spain has lifted
all its outstanding reserves on the draft Council Decision.
The Supplementary EM
11.4 The Minister of State at the Home Office
(Mrs Barbara Roche) has now provided a Supplementary Explanatory
Memorandum which addresses the amendment. She tells us that it
supplies the text for Article 5 (2) which had been left open pending
the outcome of the discussions between Spain and the UK. She explains:
"If agreed, the Articles
of the Schengen Convention which will apply to Gibraltar are identical
to those which will apply to the UK (Article 1(a) of the draft
Decision) with only the following exceptions:
"(i) Articles 40, 42 and 43 (cross
border surveillance) will apply to the UK but not to Gibraltar.
These provisions are not designed for application to a border
of the sort which exists between Gibraltar and Spain, where customs
checks are applied.
"(ii) Articles 92-119, and Article 64
(Schengen Information System). These will apply to the UK
but not to Gibraltar. The SIS is a database which is used both
for police co-operation and for frontiers purposes.
"Conversely several provisions of the Schengen
Convention not envisaged in the original UK application will now
apply to Gibraltar:
"— Articles 26 and 27 (carriers'
liability): these were not included for the UK in the
UK's original application but since, in negotiation, we have agreed
that they should apply to the UK they will also apply to Gibraltar.
The UK's letter seeks to participate in these measures, for the
record.
"— Articles 48-63, 65-69 (mutual
assistance and extradition): at the time of the original UK
application, the UK did not seek to apply these provisions because
the underlying Council of Europe conventions did not apply to
Gibraltar. However the Government of Gibraltar has since confirmed
its wish to see these conventions extended to Gibraltar.
"— Articles 75 and 76 (co-operation
in narcotic drugs): these particular articles had been allocated
a Treaty legal base of Article 95 TEC. Given that Gibraltar is
outside the Common Customs Territory we believed at the time of
the original UK application that it would therefore be inappropriate
to apply these articles to Gibraltar. However in the light of
the subsequent consultations, we have concluded that these articles
are at root concerned with co-operation in narcotic drugs, not
the free movement of goods; and that, given Gibraltar's participation
in the other articles in this chapter, it was sensible also to
include participation in these two articles.
"There is one amendment to Article 1. In the
light of further consideration, the Government accepts that Article
47(2)(c) should not apply either to the UK (under Article
1) or Gibraltar (under Article 5) since this relates to the activities
of liaison officers in respect of external border surveillance.
"Three paragraphs will be added to the preamble
of the Council Decision. These are designed to make clear that:
"(i) the UK assumes the obligations
of a Member State under this Decision;
"(ii) neither the UK nor Gibraltar
are participating in the frontiers provisions; and
"(iii) Articles 26 and 27 will apply to
the UK and Gibraltar (this last preambular paragraph is because
Articles 26-27, although dealing with carriers' liability, fall
under Title II of the Schengen Implementing Convention dealing
with abolition of checks at internal borders and movement of persons).
"The Government believes that overall this is
a very favourable outcome. Gibraltar will be participating in
very significant elements of Schengen co-operation."
11.5 The Minister tells us that the Presidency
would like the draft Decision to be adopted at the JHA Council
on 29-30 May.
Conclusion
11.6 We welcome the resumption of progress
on this matter, and thank both Ministers for informing us about
the amendment to the draft Decision. We have already cleared the
document.
16 Official Report, 19
April 2000, col. 499W. Back
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