23 Police cooperation
| (26733)
11407/05
COM(05) 317
| Draft Council Decision on the improvement of police cooperation between Member States of the European Union, especially at the internal borders and amending the Convention implementing the Schengen Agreement
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| Legal base | Articles 30(1)(a), (b) and (c)and 32 and 34(2)(c) EU; consultation; unanimity
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| Document originated | 18 July 2005
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| Deposited in Parliament | 22 July 2005
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| Department | Home Office |
| Basis of consideration | EM of 4 August 2005
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
23.1 The Schengen Convention of 1990 abolished checks on the movement
of people across the common borders of the signatory countries
and created a single external frontier where checks were to be
carried out in accordance with a common set of rules. The Convention
provided for the freedom of movement across internal borders to
be accompanied by so-called "compensatory measures",
such as a common visa regime, and provision for cooperation between
the police, customs authorities and the judiciary. The Convention
was incorporated into EU law by the Treaty of Amsterdam 1997.
23.2 The UK and Ireland do not participate in the
provisions of the Convention on the internal and external borders
of the Schengen area (which covers the territories of all the
other Member States and Iceland, Norway and Switzerland).
23.3 The UK does, however, participate in Article
40 of the Convention, which provides for officers of the law enforcement
authorities of one signatory country to continue the surveillance
in the territory of another signatory country of people who are
suspected of having committed one of the serious crimes specified
in the Article. But the UK does not participate in Article 41
(cross-border hot pursuit), which authorises law enforcement officers
to pursue a suspect across the internal borders of the Schengen
area.
23.4 Title VI of the Treaty on European Union (the
EU Treaty) makes provision for police and judicial cooperation
in criminal matters. Article 32(2)(c) of the Treaty authorises
the Council to adopt decisions for any purpose consistent with
the objectives of Title VI, excluding any for the approximation
of the laws of the Member States.
The document and the Government's views on it
23.5 The Commission says that the aim of the draft
Decision is to improve police cooperation, especially at the internal
borders of the EU. The main provisions of the proposal are summarised
below. The Parliamentary Under-Secretary of State at the Home
Office (Fiona Mactaggart) has set out the Government's views on
the draft Decision in her Explanatory Memorandum.
23.6 Article 1 of the document provides that the
purpose of the draft Decision is to lay down general rules to
promote strategic and operational cooperation between police,
customs and other law enforcement authorities and to increase
the security of the citizens of the EU by strengthening and improving
the exchange of information and taking joint action to coordinate
strategic and operational cooperation and coordination.
23.7 Article 2 contains definitions of certain terms
for the purposes of the draft Decision. In particular, it provides
that "border region" means "an area to be defined
as such by the Member States, but which in any event comprises
all the territory of a Member States within a maximum distance
from the border of 50 kilometres".
23.8 The Minister tells us that the Government will
be seeking clarification of the reasons for the proposal to limit
the distance to 50 kilometres.
23.9 Article 2 proposes a list of the matters about
which a Member State would be required to provide assistance or
information at the request of the law enforcement authorities
of another Member State. The list is not exhaustive. Rules for
the implementation of the Article (for example, about the definition
of the information that may be provided or the means for the exchange
of information) may be made by the Committee to be established
under Article 10 of the draft Decision.
23.10 The Minister tells us that Article 3 covers
the same subject matter as the draft Framework Decision on simplifying
the exchange of information and intelligence between law enforcement
authorities.[72] The
Government would like to see the outcome of the negotiations on
that proposal before discussing Article 3 of this draft Decision.
Moreover, the Government will give further consideration to the
Committee proposed in Article 10 before committing itself to support
the proposal.
23.11 Article 4 would require Member States to coordinate
the cross-border activities of their law enforcement authorities,
including surveillance operations, searches, management of public
demonstrations, the compatibility and inter-operability of equipment,
and joint training schemes. To facilitate cooperation, Member
States would be required to keep the law enforcement authorities
of other Member States, and the permanent cooperation structures
provided for in Article 6, informed of intended operations and
organisational developments and to supply them with relevant operational
information.
23.12 The Government supports the general principles
of this Article but will give further consideration to its details.
23.13 Article 5 provides that operational cooperation
in the border regions should include joint patrols and surveillance
operations, joint investigation teams and assigning police tasks
to liaison officers or officials of other Member States, excluding
coercive measures.
23.14 The Government is satisfied with the principles
of Article 5 but will give further consideration to the provision
for the assignment of police tasks to liaison officers.
23.15 Article 6 would require Member States to set
up permanent "cooperation structures" between law enforcement
agencies in each of the border regions. The cooperation structures
would support and monitor the implementation of Articles 3, 4
and 5.
23.16 The Minister tells us that:
23.17 "The Government supports the principles
of this Article providing cooperation is subject to practical
and operational need. The possibility of the UK setting up permanent
cooperation structures with Ireland is raised. This is a sensitive
issue which will require careful handling. The Government will
establish what this means in practice before committing to this
provision."
23.18 Article 7 proposes that any information under
the Decision should be subject to the data protection and data
security provisions of Title VI of the Schengen Convention.
23.19 The Government will be consulting the Information
Commissioner about this Article. The Minister also notes that
the Commission is expected to produce an overarching data protection
instrument on police and judicial cooperation by the end of this
year; the Government hopes that it would provide adequate provision
for all relevant legislation.
23.20 Article 8 would require Member States to carry
out bilateral evaluations of cooperation in the border regions.
On the basis of these evaluations, three years after the Decision
came into force the Commission would make a report to the Council
about the operation of the Decision.
23.21 Article 9 expressly provides that the Decision
would not preclude Member States with a common border from having
or making more detailed bilateral agreements for police cooperation.
23.22 Article 10 provides for the establishment of
the Committee of representatives of the Member States to assist
the Commission with the functions proposed in Article 3 (that
is, the definition of detailed rules for the exchange of information
between Member States).
23.23 Article 11(1) proposes the deletion of the
list of offences in Article 40 of the Schengen Convention for
which cross-border surveillance is allowed and replaces it with
a general provision to enable surveillance of people suspected
of a criminal offence which carries a custodial sentence of at
least 12 months.
23.24 The Minister notes that the UK participates
in Article 40 of the Convention. She tells us that it makes sense
to widen the scope of Article 40 to include all serious offences.
The Government, therefore, supports the proposal.
23.25 Similarly, Article 11(2) proposes the deletion
from Article 41 of the Convention of the list of offences for
which cross-border hot pursuit is permitted and replaces it with
a general provision enabling hot pursuit in cases involving offences
for which there is a custodial sentence of at least 12 months.
23.26 The Minister notes that the UK does not currently
participate in Article 41 of the Convention.
Conclusion
23.27 As the Minister says, some of the provisions
in this draft Decision overlap with other proposals which are
already under consideration or which are expected shortly, such
as those on the exchange of information between law enforcement
authorities and on data protection. It seems to us undesirable
to duplicate EU legislation, not least because of the risk of
the enactment of inconsistent provisions. We understand, therefore,
why the Government wishes to obtain clarification of some of the
provisions of the draft Decision or to await discussion of other
proposals before taking a final view on some of the Articles of
the draft Decision.
23.28 Accordingly, we ask the Minister to tell
us the outcome of the Government's further consideration of the
document. Meanwhile, we shall keep the draft Decision under scrutiny.
72 See (26648) 6888/2/05: HC 34-iv (2005-06), para
10 (20 July 2005). Back
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