Select Committee on European Communities 31st Report


  75.    This part of the Report is divided into two sections. Section A deals with the implications for the United Kindgom of matters such as policy-making in the First and Third Pillars, the allocation of the acquis, and the question of opting in or opting out. Section B deals with some of the more complex and technical issues arising from the incorporation of the acquis.


What will Incorporation mean for the United Kingdom?

  76.    A major concern of the Committee in embarking on this enquiry was to shed light on the Government's approach to policy-making in the First and Third Pillars, to examine how this would influence the United Kingdom's position on the allocation of the acquis, and to elucidate Government policy on opting in or staying out. We explored some of these broader questions with the Minister.

The Government's view

  77.    The Home Secretary's explanatory memorandum states that "There are no direct consequences for the United Kingdom arising from the two draft Decisions since by virtue of the Treaty of Amsterdam the United Kingdom is not subject to the automatic application of the Schengen acquis" (p 46). The memorandum recognises an important United Kingdom interest in ensuring that the acquis is properly identified and that the allocation of a legal base is correct in case, at some future date, the United Kingdom seeks to participate in areas of Schengen co-operation. "The allocation as between the First and Third Pillars will be of particular importance: even if the United Kingdom does not ultimately participate in a provision, an inappropriate allocation to the First Pillar may risk the extension of Community competence into subjects properly covered by inter-governmental co-operation in the Third Pillar or solely within the competence of individual Member States" (p 46).

The practical implications for the United Kingdom

  78.    There will be direct consequences for British citizens entering Schengen States. British citizens may still be subject to controls at Schengen frontiers or at any point of entry into Schengen territory[82]. Moreover, the position of the United Kingdom (and Ireland) in relation to the Schengen acquis after incorporation is far from clear. Although they are not bound by the acquis, they may at any time request to take part in some or all of its provisions. Their participation will be possible only with the unanimous agreement of the 13 Schengen States[83]. A Declaration provides that the Council shall seek the Commission's opinion before deciding on a request by the United Kingdom and/or Ireland. The Schengen States undertake "to make their best efforts" to allow either or both of them to participate[84]. By contrast, the United Kingdom and Ireland will be entitled to participate in future action building on the existing Schengen acquis, because this will be subject to the relevant provisions of the EU Treaties. If they choose not to, the remaining Member States may proceed without them[85].

Is it Acquis?

  79.    A further layer of complexity arises in relation to measures based on the new Title IV in the EC Treaty. As Title IV concerns visas, asylum, immigration and other policies related to the free movement of persons, it provides the legal base for many of the provisions of the Schengen acquis. A distinction will have to be made between those proposals and initiatives within Title IV which build on the acquis, to which the previous paragraph applies, and those which are independent of it. This is because, although the United Kingdom and Ireland are not bound by Title IV, there are separate procedures to enable them to take part in the adoption or application of measures based on it[86]. These will only apply, however, if the Title IV measures in which the United Kingdom and Ireland seek to participate do not build on the acquis.

  80.    It is not only the United Kingdom and Ireland that have an interest in distinguishing between measures building on the acquis and other Title IV acts. Other Schengen States or partners, such as Denmark, Iceland and Norway, will need to identify the evolving Schengen acquis in order to establish the extent to which they may be associated with it. Moreover, Article 8 of the Schengen Protocol specifies that acceptance in full of the existing acquis and measures building on it is a pre-condition for membership of the European Union. This will apply to the eleven candidates for accession presently engaged in a screening process to assess how far their national legislation and administrative structures are compatible with EU requirements.

The United Kingdom approach to the allocation of the Acquis: First or Third Pillar?

  81.    The Government have inherited from their predecessors a policy of opting out and of promoting the Third Pillar as a superior vehicle for co-operation between Member States, with minimal interference by the Commission, European Parliament or Court of Justice. The Committee sought to clarify whether there had been a significant change of policy under the present Government or whether the difference was essentially one of tone and emphasis.

  82.    Joyce Quin MP, Home Office Minister of State with responsibility for Europe, felt that "some issues of principle" were involved in determining the limits of Community (First Pillar) competence. An important factor would be "to examine at each stage whether something being dealt with in the Third Pillar rather than the First Pillar is in danger of creating or adding to a democratic deficit". The Government's general approach was to ensure that "some of the genuine concerns about transparency, openness, democratic involvement and so on, can be achieved by improving the work of the Third Pillar and therefore you do not simply make a choice between the First and Third Pillar on the basis of one being obviously more democratic or accessible or open than the other" (QQ 63, 64 & 62).

  83.    The Minister did not accept that because the Government happened to agree with their predecessor that some issues should remain inter-governmental, "that means you just then put to one side the involvement of the European Parliament to debate the issues or the need to try and operate in a transparent and open way and in a way which would broadly equate to the First Pillar in such areas". There was a growing awareness amongst Justice and Home Affairs Ministers that "we are dealing even in an inter-governmental way with issues which are of great concern to our citizens and therefore our citizens have a right to be informed of what we are doing and they also have a right to be treated fairly". A goal of the United Kingdom Presidency had been to "try and bring Third Pillar issues more out into the open" (QQ 62 & 64).

  84.    The Committee notes that it is, nevertheless, the case that democratic and judicial oversight are weaker in the Third than in the First Pillar. This is compounded by successive Governments' refusals to allow domestic courts in the United Kingdom to seek rulings from the Court of Justice on Third Pillar matters affecting the rights or interests of British citizens.

Opting in or staying out?

  85.    The Committee asked whether the opt-in mechanism was workable or whether it produced a real risk of incoherence and fragmentation that might cause the EU Treaties to founder. The Minister was clear that the United Kingdom should approach the question of opting in "in a fairly coherent and consistent way. If we do it that way and explain to our partners what our overall approach is then I think that we are more likely to be welcomed into that process than if we seem to be in some way cherry-picking". She, nevertheless, welcomed the fact that the United Kingdom had "quite a large degree of freedom for opting in or opting out". The United Kingdom had sought and achieved at Amsterdam the right to maintain border controls and to retain freedom and flexibility in the area of asylum and immigration. The Minister outlined the Government's approach to the question of opting in: "Obviously in areas where we feel it is in our interests to cooperate and have a system at European level which works smoothly, then we would be interested in being involved, but generally the immigration and asylum area is not an area we are likely to be wanting to opt in to on many occasions. I think it is much more likely that we would want to be involved on the ... police co-operation side" (QQ 59 & 53).

  86.    The Committee probed further into the issue of asylum and immigration policy, questioning why the United Kingdom had differentiated itself from developments in the rest of the Union. The Minister referred to common principles which had already been developed with EU partners in the Third Pillar to refute the charge of the UK's differentiation. There was a "common thread" running through the policies pursued by the Member States. Despite a substantial degree of co-operation, different policy approaches based on "geography, history and sometimes even economic considerations" remained (QQ 54 & 55).

  87.    As we have explained, the United Kingdom has chosen not to participate in the part of the First Pillar (Title IV of the EC Treaty) concerning asylum and immigration issues. The Minister described how the new arrangements would work (without the United Kingdom) in the future. Asylum and immigration "would be part of the general European Union's institutional set-up and therefore would be governed by the way business is conducted generally in that European Union framework, including arrangements on access to information, openness, transparency, data protection and so on". Future policy to facilitate the movement of third country (non-EU) nationals legally resident within the Union, a matter of some concern to the Minister, would also be dealt with in this First Pillar framework (QQ 56 & 58).

  88.    The Committee would welcome clarification as to why the Government have felt able to co-operate on asylum and immigration policy in the Third Pillar, but have opted out of doing so now that these matters are being transferred to the First Pillar.

  89.    The Committee welcomes the Government's commitment to openness and transparency in the Third Pillar and commends the progress that has been made at and since Amsterdam.

  90.    We note the Minister's statement that there are "issues of principle" which determine whether an issue should be dealt with in the First or Third Pillar. We would welcome clarification as to what these "issues of principle" are. The choice of First or Third Pillar will, no doubt, affect future United Kingdom decisions on opting in or opting out.

  91.    We are concerned to ensure that the UK opt-out from Title IV of the EC Treaty does not undermine the principle of legal certainty in relation to asylum and immigration policy. This principle is of paramount importance in areas affecting fundamental rights and freedoms of individuals. We urge the Government to clarify how UK policy on asylum and immigration will develop outside the new framework established by the Amsterdam Treaty.

  92.    The Committee agree with the Minister on the need for the Government to develop a coherent approach to opting in. We are concerned that, by virtue of our opt-out, the United Kingdom may be unable to influence and shape future European policy in such critical areas as asylum and immigration, and may find itself having to adopt in due course rules agreed by others.

The broader context: the impact of incorporation on the enlargement of the Union

  93.    The Minister was impressed by the extent to which applicant countries were modelling their own asylum and immigration policies, as well as police co-operation, on the Schengen acquis: "The applicant countries are very well aware that this is an area where they have to comply". She doubted, therefore, whether application of the Schengen, or indeed the broader EU justice and home affairs, acquis would prove to be a stumbling block to enlargement (QQ 60 & 65).

  94.    As we explained in paragraph 80 above, future members of the EU will have to accept all of the Schengen acquis. The Schengen States have themselves struggled to fulfil the conditions deemed necessary for the lifting of internal border controls. The demands made of the "first wave" applicant countries will be even greater. The five central European candidates -the Czech Republic, Hungary, Poland, Slovenia and Estonia - will bear the brunt of migratory pressures at the European Union's eastern external frontier. Cyprus, which shares with the United Kingdom and Ireland the distinctive characteristic of being an island State, is expected to police the Union's south-eastern external frontier. The flexibility which the UK has enjoyed in preserving its own border controls will not be available to applicant countries.

  95.    The Committee would welcome clarification of the grounds justifying the insistence of all EU Member States that new members of the Union should, unlike the United Kingdom and Ireland, apply a Schengen border control regime, irrespective of their particular geographical situation or their links with ethnic minorities in non-EU countries.

Scrutiny of the Draft Decisions

  96.    The Government has promised to keep Parliament informed of the work being carried out in the preparation for the incorporation of the Schengen acquis into the framework of the European Union. It has made available the draft Decisions defining the acquis and allocating to its provisions legal bases in the EU Treaties. It has deposited in the Libraries of the House the 1985 Schengen Agreement, the 1990 Implementing Convention, various Accession Agreements and Protocols, the Co-operation Agreement between the Schengen States and Iceland and Norway, and copies of all the decisions and declarations of the Schengen Executive Committee and its subordinate body, the Schengen Central Group, which are in its possession. Six documents which are classified as "confidential" by the Schengen States have not been made available. Some of the Executive Committee documents are incomplete and a number of them are in French or German. The Home Office is endeavouring to obtain English translations. It will deposit these, along with documents issued since June 1997, once it has received them. We believe, on the basis of anecdotal evidence only, that Governments in most other Member States have not been so forthcoming with their Parliaments.

  97.    In its report, "Defining the 'Schengen Acquis'", the Committee stated that it hoped to have a sufficient opportunity to consider in detail the acquis once it had been finalised, the distribution of its provisions between the First and Third Pillars, and the allocation of the legal base to each provision[87]. The two draft Decisions we have received are dense in content and complexity. To those uninitiated in Schengen and struggling to comprehend the new arrangements agreed at Amsterdam, they are virtually unintelligible. Yet beneath the texts there are important issues of individual liberty and political accountability which the Committee fears may be obscured by the unhelpful presentation, technical jargon and procedural complexity.

  98.    In their written answers to our questions, the Home Office stated, "Answers are intended to be self-explanatory but this is a subject where every answer raises fresh questions". (p 9) This is also our experience. It re-inforces the need for maximum disclosure and discussion of the issues surrounding the incorporation of the Schengen acquis before the irrevocable step - entry into force of the Amsterdam Treaty - occurs.

  99.    In the Committee's view, what is clear is that incorporation of the Schengen acquis will significantly increase the scope for EU co-operation (with or without the United Kingdom) on such matters as visa and border policies, asylum and immigration, policing, and the exchange of data. All these will impinge directly on the rights of individuals.

  100.    The Committee commends the Government for their efforts in providing Parliament with Schengen documents, and welcomes the opportunity to offer preliminary comments on the draft Decisions. We regret, however, the paucity of information accompanying the draft Decisions. In particular, we are astonished that national ratification of the Amsterdam Treaty will have been completed in most, if not all, Member States before a definitive list of the Schengen acquis has been established and made available to national Parliaments in their own languages.[88]

  101.     The Committee considers the presentation of the draft Decisions and accompanying Explanatory Memorandum inadequate. Columns of numbers listed without descriptions or explanations are as unhelpful a way of providing information as we can think of. In order to make any sense of the draft Decisions as presented to Parliament it is necessary to have open the Decisions themselves, the EC Treaty, the Treaty on European Union, the Schengen Protocol and the Schengen Convention. One way to help to close the democratic deficit is to provide comprehensible information to Parliament, and the public. We encourage the Government to follow up their commitment to provide information by ensuring that that information is presented in a meaningful and useful form. We strongly urge the Government to produce a more accessible document which breaks down the elements of the acquis and sets out in clear terms what, in their view, incorporation into the EC Treaty or Treaty on European Union will mean for future Government policy on such issues as asylum, immigration, data protection and cross-border police co-operation.

82   Article 3 of the Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community to the United Kingdom and to Ireland. Back
83   Article 4 of the Schengen Protocol. Back
84   Declaration 45 on Article 4 of the Protocol integrating the Schengen acquis into the framework of the European Union. It was added to allay the concerns of the United Kingdom and Ireland that the unanimity requirement could block indefinitely their participation in some or all of the Schengen acquisBack
85   Article 5 of the Schengen Protocol. Ireland or the United Kingdom must give reasonable notice to the President of the Council if they wish to participate in proposals or initiatives building on the acquisBack
86   Protocol on the position of the United Kingdom and Ireland, annexed to the EC Treaty and the TEU. Back
87   21st Report, 1997-98, HL Paper 87. Back
88  See the Committee's Report, Enhancing Parliamentary Scrutiny of the Third Pillar (6th Report, 1997-98, HL Paper 25), which calls for any acquis texts which the UK intends to adopt to be deposited in Parliament in time to allow proper scrutiny before the adoption takes place (para 121). Back

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