Select Committee on European Scrutiny Twentieth Report




Initiative of the Kingdom of Belgium, the Kingdom of Spain and the French
Republic with a view to the adoption by the Council of a draft Decision
amending Article 40(1) and (7) of the 19 June 1990 Convention implementing
the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at
the common borders.

Initiative of the Kingdom of Belgium, the Kingdom of Spain and the French
Republic with a view to the adoption by the Council of a draft Decision
amending Article 40(1) and (7) of the Convention implementing the Schengen
Agreement of 14 June 1985 on the gradual abolition of checks at the common

Legal base:Articles 32 and 34 (2) (c) EU; consultation; unanimity
Deposited in Parliament: 4 December 2001
Department:Home Office
Basis of consideration: Minister's letter of 5 February 2002
Previous Committee Report: HC 152-xii (2001-02), paragraph 9 (16 January 2002)
To be discussed in Council: Date not set
Committee's assessment:Politically important
Committee's decision:(a) Cleared
(b) Not cleared; further information requested


  9.1  These documents propose amendments to Article 40 of the Schengen Convention designed to extend the scope of cross-border surveillance. Document (b) is a later version of the text than document (a); the only difference is that document (b) provides for the Decision to take effect on the date of its publication in the Official Journal.

  9.2  When we considered the documents in January, we left them uncleared and raised a number of questions with the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth).

The Minister's letter

  9.3  The Minister has now responded, addressing each of our questions.

  9.4  We had expressed concern that, owing to the human rights issues raised by the extension of cross-border surveillance to people not directly suspected of criminal activity, the proposal risked conflict with Article 8 of the European Convention of Human Rights (ECHR)[27]. We asked the Minister whether he shared our concern, and whether it was the Home Office position that any domestic implementation must be compatible with the Human Rights Act 1998.

  9.5  The Minister tells us:

    "All 15 EU Member States (and Norway and Iceland) have incorporated the ECHR into national law and their respective law enforcement agencies are under an obligation to ensure that their activities conform to the requirements of the Convention. Further, its principles are also contained in Articles 6 and 7 of the Treaty on the European Union and, in respect of future enlargement, it is a prior requirement for all candidate countries to comply with the ECHR as part of their accession application. The ECHR was incorporated into UK law by the Human Rights Act 1998. In response to concerns raised as a result, appropriate conditions for authorisation of all surveillance undertaken by UK law enforcement, including the application of proportionality, were introduced in Part II of Regulation of Investigatory Powers Act (RIPA) 2000. RIPA provides for authorisation of UK­initiated surveillance operations both within and without our territorial boundaries.

    "Whatever approach we take in implementing Article 40 we expect to apply at least the same standard of tests as currently required under RIPA. Recent work looking at the circumstances under which we might allow a foreign officer to undertake law enforcement work in the UK, in particular issues such as liability and responsibilities, is helping with our consideration of the UK's handling of cross­border surveillance. We are now clear that all cross­border surveillance must be authorised and we are considering what domestic administrative/legislative provisions are necessary for implementing Article 40. We will keep the Committee informed of progress."

  9.6  We also asked for the Minister's view of the list of crimes for which applications may be made for emergency surveillance (surveillance in which permission to proceed may be sought after the crossing of a national border). (We considered that some of them — "organised fraud" in particular — needed more precise definition.)

  9.7  In reply, the Minister says:

    "I agree that at first sight the offences referred to in the existing subsection 7 of Article 40 and in the proposed amendment may appear vague. The UK is aware that even where progress has been made in reaching agreement on a definition of an offence in EC and EU instruments, variations still occur when these are adopted at national level. Generic descriptions of offences enable Member States to take account of these variations of detail. In drafting domestic legislation the UK takes note of its obligations under those EC, EU and other international instruments to which it is a signatory, and any definitions they may contain. All requests for surveillance will be required to comply with UK law. On that understanding the UK would accept the wording of the original Article and the proposed amendment.

    "As noted above, we are also currently considering how urgent requests, Article 40 subsection 2, will be handled in the UK. Due to our position as an island state we do not face the same urgency as experienced by Member States with land borders. We are determining whether we can insist that a foreign team informs our competent national authority at the point of embarkation as opposed to the moment the border is crossed (i.e. arrival in the UK). This would give us more time to consider whether the request passes our tests for authorisation of surveillance under RIPA."

  9.8  Finally, we asked the Minister to explain his comment: "Detailed consideration will be given to any specific measures that emerge from these Council Decisions, and the Parliamentary Scrutiny Committees will be given as much time as possible to scrutinise such proposals." We pointed out that the Scrutiny Committees had no role in relation to domestic legislation.

  9.9  The Minister explains:

    "I was focussing more on the domestic requirements for implementing Article 40 and related Articles. I disagree that the Scrutiny Committees will have no role in this. In consideration of the implications for the UK of this proposal the Committees are already assisting us in addressing domestic concerns. In responding to your comments we are looking to satisfy the Committee that we are taking the appropriate steps to ensure that proper safeguards exist under the ECHR and Human Rights Act. I intend to keep the Committee informed of how we mean to take forward implementation."


  9.10  We thank the Minister for his letter, which makes it clear that the Home Office does consider that domestic implementation must be compatible with the Human Rights Act 1998. We are still, however, left with some concerns.

  9.11   Firstly, we are not sure what is meant by the Minister's statement: "We are now clear that all cross-border surveillance must be authorised." How, if at all, does it affect the categories of people who may be subject to cross-border surveillance — the issue of particular concern to us? Does it exclude emergency surveillance?

  9.12   In general, the Minister's answers focus on the UK's approach to the implementation of this proposal. While his response is encouraging in several respects, we are concerned with the acceptability of the legislation itself, and the possibility that it may be interpreted very differently in different Member States. With regard to the list of offences, for example, the explanation that generic descriptions of offences enable Member States to take account of national variations is one we have heard before, but do not find reassuring.

  9.13  We are grateful to the Minister for his comments on our third question. Although we do not ourselves scrutinise the substance of domestic implementing legislation, we do have an interest in establishing whether the adoption of legislation at EU level will preserve human rights and other essential safeguards in domestic law. We therefore welcome the Minister's intention to satisfy us that appropriate steps will be taken to ensure that proper safeguards exist under the European Convention on Human Rights and the Human Rights Act 1998.

  9.14  We look forward to the Minister's response to our question about the authorisation of cross-border surveillance, and to learning more about how implementation will be taken forward, and, in particular, about how urgent requests will be handled. We clear document (a), since it has been superseded, but keep document (b) under scrutiny.

27  Article 8 ECHR confers a right to respect for a person's private and family life, his home and correspondence. An interference with this right may be justified under Article 8(2) ECHR if it is in accordance with the law and 'is necessary in a democratic society, ..... for the prevention of disorder or crime.' Back

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