Select Committee on European Scrutiny Eighteenth Report


UK APPLICATION TO PARTICIPATE IN PROVISIONS OF THE SCHENGEN ACQUIS


(20460)
11177/99

Draft Council Decision on the request by the United Kingdom to take
part in some of the provisions of the Schengen acquis.
Legal base: Article 4 of the Protocol annexed to the TEU and the TEC
incorporating the Schengen acquis into the framework of
the EU
Department: Home Office
Basis of consideration: Minister's letter of 25 April and Supplementary EM of 4
May 2000
Previous Committee Report: HC 23-ii (1999-2000), paragraph 13 ( 1 December 1999)
To be discussed in Council: 29-30 May 2000
Committee's assessment: Politically important
Committee's decision: Cleared (decision reported 1 December 1999)

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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