Schengen Acquis

The Committee consisted of the following Members:

Chair: Mr James Gray 

Brokenshire, James (Parliamentary Under-Secretary of State for the Home Department)  

Bryant, Chris (Rhondda) (Lab) 

Buckland, Mr Robert (South Swindon) (Con) 

Connarty, Michael (Linlithgow and East Falkirk) (Lab) 

Duddridge, James (Lord Commissioner of Her Majesty's Treasury)  

Heaton-Harris, Chris (Daventry) (Con) 

Huppert, Dr Julian (Cambridge) (LD) 

Lewis, Brandon (Great Yarmouth) (Con) 

Michael, Alun (Cardiff South and Penarth) (Lab/Co-op) 

Moon, Mrs Madeleine (Bridgend) (Lab) 

Reckless, Mark (Rochester and Strood) (Con) 

Shannon, Jim (Strangford) (DUP) 

Wilson, Phil (Sedgefield) (Lab) 

Alison Groves, Committee Clerk

† attended the Committee

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European Committee B 

Monday 3 September 2012  

[Mr James Gray in the Chair] 

Schengen Acquis

4.30 pm 

The Chair:  This is a very experienced Committee. Nevertheless, it might be helpful if I remind the Committee of the procedure that we will follow. First, there will be a five-minute introduction from the hon. Member for Daventry, who is a member of the European Scrutiny Committee. The Minister will then have up to 10 minutes for introductory remarks, during which time it will not be in order to interrupt him, so there will be no interventions during the Minister’s opening speech. We will then have questions for a period that will last as long we like, but that plus the following general debate must finish by 7 o’clock. That is how I intend to conduct the business. 

4.31 pm 

Chris Heaton-Harris (Daventry) (Con):  It is a pleasure to serve under your chairmanship, Mr Gray. It is something that I have not done before and something that I have been looking forward to all summer. 

The documents that we are considering today form part of a package of measures on the governance of the Schengen area, and were debated in Committee last November. We noted then that the increased migratory pressures at the EU’s external borders had not only raised concerns about the adequacy of existing Schengen controls to stem the influx of migrants, but damaged mutual trust in the capacity of some member states to apply Schengen rules effectively to an agreed common standard. The Commission therefore proposed to replace an existing intergovernmental mechanism for evaluating the way individual member states applied the Schengen acquis with a more rigorous form of monitoring and evaluation in which the Commission would play the lead role, supported by member states. 

The Commission’s original proposal would have excluded any UK involvement in future Schengen evaluations, because it was based on a provision of the treaty on the functioning of the European Union that solely concerned border controls. Although the UK does not participate in Schengen border control measures, the Schengen acquis is far broader and encompasses measures on policing and criminal law enforcement in which the UK does participate. 

The documents that we are debating today are the product of prolonged deliberations within the Council. The first—document (a)—is a compromise text proposed by the then Danish presidency as a basis for political agreement at the Justice and Home Affairs Council on 7 June 2012. The second—document (b)—is a revised text reflecting the content of the agreement reached at the Council. Both documents cite a new legal base—article 70 of the TFEU—which is significant for three reasons. First, it ensures that the UK can participate in future Schengen evaluations covering elements of the acquis in which the UK takes part. Secondly, article 70 specifies that national Parliaments shall be informed of the content and results of evaluations. Thirdly, article 70

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of the TFEU triggers the UK’s Schengen opt-out, meaning that the Government have a three-month period—expiring in this case on 7 September—in which to decide whether to exercise the UK’s right to opt out of the new evaluation mechanism. 

The European Scrutiny Committee recognised that the agreement reached on the legal base in the face of opposition from the Commission and the European Parliament represented a very good outcome for the United Kingdom. However, it was achieved at some cost to the scrutiny process. Document (a)—the presidency compromise text—was not available for deposit in Parliament in advance of the June Justice and Home Affairs Council. Although the Minister made every effort to inform us of its likely content before the Council, we were in effect being asked to express a view on a text that we had not seen and that from the Minister’s description included some significant changes to the version originally proposed by the Commission. 

Moreover, the Minister indicated that the Government intended to take “a pre-emptive position” on the UK’s Schengen opt-out. This meant that the UK would signal its support for the presidency compromise text, even though the three-month period available to the Government to decide whether to exercise their Schengen opt-out and to take account of any views expressed by the Scrutiny Committees had not run its course. 

Shortly after the June JHA Council, the Government deposited documents (a) and (b) in Parliament, accompanied by an explanatory memorandum recommending that the UK should participate in the new evaluation mechanism. The Home Secretary also issued a written ministerial statement on the outcome of the Council in which she stated: 

“While the UK had yet to complete its domestic parliamentary processes, the Government position was not to opt out.”—[Official Report, 14 June 2012; Vol. 546, c. 40WS.] 

The European Scrutiny Committee took the view that the Home Secretary’s statement more accurately reflected the reality of the Government’s position and that they had, in effect, already determined that the UK should not exercise its opt-out. That Committee also noted that the political agreement reached at the June Council represented a clear breach of the scrutiny reserve resolution. It recommended today’s debate for two reasons: first, to ask the Minister to explain why the Government considered it necessary, rather than simply desirable, to override scrutiny in order to secure a political agreement in June, before an unclassified text was available for deposit and scrutiny in Parliament; and secondly, to underline the importance to which that Committee continues to attach to proper parliamentary scrutiny of Title V opt-in—in this case, Schengen opt-out—decisions. 

Today’s debate will give Parliament the opportunity to consider the factors underlying the Government’s recommendation not to opt out of the new evaluation mechanism and to express a view on the Government’s recommended approach. 

4.36 pm 

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  I welcome you to the Chair, Mr Gray. I also welcome the introductory comments made by my hon. Friend the Member for Daventry. 

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There are two issues for the Committee today: first, whether the UK should remain bound by the draft Council regulation on the establishment of an evaluation mechanism to verify the application of the Schengen acquis; and secondly, to examine the outcome of the June Justice and Home Affairs Council on the instrument in light of the European Scrutiny Committee’s report of 4 July. 

As my hon. Friend the Member for Daventry will be aware, I wrote to the Chair of the European Scrutiny Committee on 17 July, and that letter forms part of the pack of documents that are before right hon. and hon. Members this afternoon. The letter seeks to respond to some of the specifics that my hon. Friend raised in his opening remarks. 

Throughout the negotiations on the evaluation mechanism, we had two primary objectives, which the European Scrutiny Committee shared. The first was to change the legal base that would grant us choice over our participation. That reflected the fact that the original proposal was based on article 77(2)(e) of the treaty on the functioning of the European Union, which excluded the UK. Secondly, we sought to achieve an outcome whereby the Commission’s role would be one of supporting rather than controlling the evaluation processes and procedures. We sought here to reaffirm that Schengen government should be based primarily on peer-to-peer evaluation, and that the final decision should rest with member states in the Council. 

I am pleased to say that on both those points, a successful outcome was achieved in the text under debate today. On the role of the Commission, the text is now clear that the evaluation falls jointly on member states and the Commission. That will see the Commission undertake the administration of the process, such as establishing the programme for evaluations, as well as forming part of the evaluations team. However, member states in the Council will control the recommendations and decisions imposed on each other as a result of evaluations. 

Also, the UK has secured the right to choose whether to participate in the evaluation mechanism proposal, because of a change in the legal base to article 70 in the TFEU, to which my hon. Friend referred. As a consequence, we have a UK Schengen opt-out decision under article 5 of the Schengen protocol. 

It has been a long and hard negotiation to get to this point, which I think the European Scrutiny Committee understands. The issue was also debated in part by this Committee on 21 November 2011. I know that the hon. Member for Rhondda was part of that debate and will therefore be familiar with some of the issues to which we are now returning. 

Chris Bryant (Rhondda) (Lab):  All of them. 

James Brokenshire:  I have no doubt that that will be the case. 

It was disappointing that versions of the text in advance of the Council were marked “LIMITE”, and therefore not available for deposit right up until the version that was published on 4 June, over the jubilee weekend. It meant that it was not possible for formal scrutiny of revisions to the text to take place before the Council. At the Council, the Home Secretary made an active intervention to help bring together a deal that will serve UK interests. She said that the Government’s

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view was to remain bound on the basis of the proposed text, and in so doing, helped to secure agreement. Crucially, she did so on the clear understanding that our parliamentary scrutiny process had not yet been completed, and that the UK Parliament was still to express its view on the opt-out decision, which is why we are here today. 

It is worth highlighting that the Government were in a very unusual position with this proposal. The change to the legal base at the end of the negotiating process, triggering our opt-out, at the same time as the text in its entirety, was coming together in the Council. We were faced with the choice of intervening to seek to secure a deal that was in line with UK interests and the views of both scrutiny Committees, or risking the deal collapsing. In our judgment, that was a real risk, with unanimity of member states required to overturn the legal base in the face of Commission opposition. The situation needed active intervention to strike the deal. 

I accept that the UK’s position at the June JHA Council, in endorsing the compromise text, left open the question of an override. In my letter of 17 July to the European Scrutiny Committee I apologised for the fact that it was not alerted to that sooner. The Government are clear that they have not waived the UK’s right to three months’ consideration against our opt-out decision under the Schengen protocol. On the question of whether the UK should remain bound by the measure, subject to views expressed in this Committee to inform a final view, the Government believe we should, and the European Scrutiny Committee’s report indicates that the compromise package is one that serves UK interests. 

Remaining bound will deliver the level of participation the European Scrutiny Committee has sought throughout the negotiation. In its reports the Committee has consistently supported a change to article 70 as the correct legal base for the proposal and welcomed text changes that ensure that the UK is one of the member states acting as the Council, which will have the final say on evaluation results. 

Although we retain our own border controls, what happens in the Schengen area matters to the UK. It is right that we play an active role in the system that is designed to verify the area’s security. By participating we will have a vote on all issues and reports that include policing and judicial co-operation elements of Schengen in which we already take part. Our involvement will also, crucially, protect our ability to secure participation in the only mechanism to demonstrate that the UK is ready to exchange data through the second generation of the Schengen information system when the time is right. 

In conclusion, I again acknowledge the European Scrutiny Committee’s view about whether there was an override on the substance of the text, and I have already apologised for the fact that it was not possible to notify the Committee sooner of the Government’s position at the June JHA Council. I hope, none the less, that for the reasons I have set out it can be agreed that the right decision for the UK is to remain bound by a text that protects and secures our interests. 

The Chair:  We now have until 5.30 to ask the Minister questions. I remind Members that questions should be short and to the point, although if they are linked I am perfectly content to allow supplementary questions to be asked by the same Member if that seems appropriate. 

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Alun Michael (Cardiff South and Penarth) (Lab/Co-op):  May I too say what a pleasure it is to serve under your chairmanship, Mr Gray? We have shared far too many Committee sessions in an atmosphere that was not good for your health or for mine, so it is pleasant to be in a slightly less confrontational situation today. 

The Minister is right to say that what happens in the Schengen area matters to the UK. Certainly that was brought home to me very strongly during my time on the Justice Committee and, more recently, on the Home Affairs Committee. I have two questions. Does the measure not show that a successful outcome can be achieved if Ministers and officials are involved in the process, and come at it with an open mind and with the objective of getting an outcome that is in practice the best for the UK? Secondly, would the Minister accept that the requirements he has described, while now including improvements sought by the UK, also put clarity and consistency in the requirements on processes in other member states? That is a particularly important aspect to seek. 

James Brokenshire:  The right hon. Gentleman rightly highlights the importance of Schengen to the UK in that broader context. Although our participation in the Schengen acquis is limited to policing judicial co-operation matters, we take a close interest in border issues and seek to take part in discussions and debates on that part of the acquis, recognising its impact on the UK. The right hon. Gentleman highlights the importance of negotiations and being engaged in the process. I hope that he will see, from the role that the Home Secretary has played over an extended period in relation to this measure, that that has been the approach, recognising the importance of a positive outcome for the UK. That is the approach we have sought on this and other issues. 

Dr Julian Huppert (Cambridge) (LD):  It is a pleasure to serve under your chairmanship, Mr Gray. I welcome the Government’s decision not to opt out of this regulation. It shows that the EU can reach suitable political agreements. 

Will the Minister confirm that the Schengen convention and SIS II are pre-Lisbon measures? Does he agree that his decision not to opt out of this measure, which is about ensuring that those other measures are properly implemented, is consistent with the remaining pre-Lisbon Schengen measures? 

James Brokenshire:  As the hon. Gentleman will know, the decision on the 2014 block opt-out is being carefully considered by the Government. We have committed to a vote in both Houses before making a final formal decision on the issue. Clearly, SIS II is subject to the pre-Lisbon arrangements, so we are closely considering it as part of the block opt-out to which the hon. Gentleman rightly alludes. 

Dr Huppert:  I thank the Minister for that response. Does he agree that it is vital that we are involved in the development of SIS II? It has great potential benefits for the operation of the UK Border Agency, although it has potential risks for the civil liberties of citizens of this country. We will be taken seriously in what we seek to achieve only if other EU nations believe that we will opt in and take the benefits as well as tell them what it ought to look like. 

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James Brokenshire:  I hope my hon. Friend will understand that I do not wish to pre-empt a final decision on the 2014 opt-out. However, we remain committed to implementing SIS II, while considering all of the issues and context. I hope he will recognise that I am not in a position to prejudge the 2014 decision. 

Mark Reckless (Rochester and Strood) (Con):  Will the Minister assist me regarding article 16 of the draft regulation? It states: 

“The teams shall regard as confidential any information they require in the course of performing their duties. The reports drawn up following on-site visits shall be classified as EU restricted.” 

Given that the Danish presidency, by marking the compromise agreement as EU restricted, prevented the scrutiny process of this House working as it should, is it possible that article 16 and its restrictions may in turn evade appropriate scrutiny in future? 

James Brokenshire:  I am grateful for my hon. Friend’s question. That point was highlighted by the European Scrutiny Committee in its report on the issue. I draw his attention to the letter I sent to the Chair of that Committee on 17 July. I would add that sensitive operational issues, such as policing, can arise from some of the subject reports to which article 16 refers. I draw his attention to article 20, which requires a yearly summary. In addition, the presidency is piloting the creation of an overview report. As each subject report is adopted, its key findings and recommendations will be added to the overview report, so that the final version will contain a significant amount of the information available to member states and the Commission. However, I do recognise the point flagged by my hon. Friend. 

Mark Reckless:  I am grateful to the Minister and familiar with the contents of his letter of 17 July and article 20. Will he clarify that he is confident that article 16 and the restricted nature of the on-site evaluations will not negatively affect the processes of parliamentary scrutiny, both here and in other member states? 

James Brokenshire:  We will continue to ensure that Parliament receives the Government’s view on evaluation activity. As I hope my hon. Friend recognises, I take the scrutiny of these matters very seriously. We will be focused on such scrutiny as the measure develops and as the reports become available. 

The Chair:  If there are no other questions for the Minister, we will move to the formal debate. 

Motion made, and Question proposed,  

That the Committee takes note of European Union Documents 5754/6/12, relating to an amended proposal for a Regulation of the European Parliament and of the Council on the establishment of an evaluation and monitoring mechanism to verify the application of the Schengen acquis, and No. 11846/11, relating to a draft Council Regulation on the establishment of an evaluation mechanism to verify the application of the Schengen acquis; and supports the Government’s intention not to opt out of the draft Council Regulation under Protocol (No. 19) of the Treaty on the Functioning of the European Union.—(James Brokenshire.)  

4.51 pm 

Chris Bryant:  I will not lie to you, Brigadier, and say that I have been looking forward to serving under your chairmanship all summer, but it came as a slightly pleasant surprise when I walked in the door to see that

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you were in charge of our proceedings this afternoon. I hope, therefore, that you will not accuse me of being a liar, because I would have to call you out of order. 

I am grateful to the hon. Member for Daventry, who is far more pro-European than he would ever own up to in public. I know that because over several bottles of Belgian beer and several of French beer in Les Aviateurs in Strasbourg, he has told me how pro-European he is. 

Chris Heaton-Harris:  And I love you. 

Chris Bryant:  As the Deputy Prime Minister might say, I think that the hon. Gentleman should practice his sincerity a bit more. It is vital to the British interest to ensure that we proceed with the Schengen acquis robustly and sensibly, because the integrity of the outer boundaries of the European Union when it comes to immigration is essential to British security. I was struck by that when I drove from Spain into France and back during my summer break, because it is remarkable to cross a border and see only a sign that states, “You have arrived in France” or “You have arrived in Spain.” We must be constantly aware of the fact that there is a large area of completely free movement on our doorstep. Some of the countries in the European Union that are most vulnerable to illegal immigration have some of the weakest facilities for dealing with it, particularly Greece, Spain, Italy and Portugal, which all have significant problems with illegal immigration. The way in which the Schengen acquis works in relation to Bulgaria and Romania is also a matter of major concern. 

The Government have managed, with the European Union, to come up with a pretty much ideal relationship between the responsibility of member states and the responsibility of the whole Union acting in concert. It is a particular irony that we are discussing the matter beneath a painting in which King Alfred is inciting the Saxons to prevent the landing of the Danes, because this measure was negotiated largely at the suggestion of the Danes, who seem to have done a rather good job. The serious point, however, is that the Commission often starts from a position of assuming that it will take sole responsibility for everything, and, in brackets, if that means that the UK is omitted, so much the better. The Government have done a good job of ensuring that that has not prevailed. In fact, as long as the Danes, the Swedes, some more of the Scandinavians, the Dutch and a couple of other countries are on board, one can normally ensure that such a Commission view does not prevail, especially when it comes to home affairs issues. None the less, I think that the outcome has been a good one. 

I remember a time when the Commission wanted to determine what constituted public service broadcasting across the whole of Europe. I tried to point out that in Spain, showing bullfighting every afternoon from 3 o’clock until 6 o’clock is considered to be public service broadcasting, whereas in this country there would be more complaints about bullfighting being shown on television than about any other programme. It is not for

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the Commission to interfere at every stage when it feels like it, and I say that as someone who is even more pro-European than the hon. Member for Daventry. It is important sometimes to lay down where the correct delineation is between the responsibilities of member states and the responsibilities of the Union acting in concert. It would not, however, be possible for the member states on their own through the Council to produce the outcome that we would like to see, and that is why it is right that the Commission came forward with suggestions. 

The Government are right not to opt out, although that is not quite the same as it being right to opt in. Notwithstanding the remarks of the hon. Member for Daventry and the concerns of the Committee, I fully understand why the Government moved forward when such a good outcome had been secured. Indeed, in paragraph 2.23 on page 8 of the bundle there is a distinction between the Minister’s explanatory memorandum, which 

“recommends that the UK remains bound” 

by the draft regulation, and the Home Secretary’s written ministerial statement, which said: 

“While the UK had yet to complete its domestic parliamentary processes, the Government position was not to opt out.”—[Official Report, 14 June 2012; Vol. 546, c. 40WS.] 

That, however, is a distinction without a difference. Although I wholly support the idea that nothing should proceed without proper regard to the member states’ Parliaments—we fought very hard for that when we were in government—in this particular situation the result has been a good one. 

I constantly worry about the concept of “LIMITE”. It means that there is less transparency than any British Government would want to be able to secure in the process, but I also understand that sometimes Ministers in other countries are keen to keep the negotiating process behind closed doors simply in order to be able to cave in to British demands with impunity. If that is what they are doing, we should allow them a little cover. With those remarks, Brigadier, I am grateful for the Committee’s attendance. 

The Chair:  Unless anyone wants to make a contribution to the debate, I call the Minister. 

James Brokenshire:  I rise briefly to thank the hon. Member for Rhondda for his comments. I know that he showed the Opposition’s support for this approach when we had the preceding debate last November on the legal base and the relationship between the Commission and member states. I welcome the support that he has offered this afternoon. We believe that this is a good outcome for the UK and we therefore trust that the Committee will support the Government’s approach. 

Question put and agreed to.  

4.57 pm 

Committee rose.  

Prepared 4th September 2012