85. INCORPORATING THE SCHENGEN ACQUIS
INTO THE EUROPEAN UNION (31ST REPORT SESSION 1997-98)
Memorandum submitted by the Home Office
170. 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.
1. The Government is grateful to the Committee
for its recognition of the Government's commitment to openness
and transparency in the Third Pillar. The Government sees a need
for a continuing effort to ensure that JHA activities are made
more transparent to the citizen, building on the effective implementation
of the Council conclusions agreed during the UK presidency at
the JHA Council on 19 March 1998.
171. 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.
2. It is ultimately a matter of law as to
whether the subject matter of a particular item of the Schengen
acquis more properly has a base in the First or Third Pillar.
The Government considers that that allocation has to reflect fully
and correctly the decision taken at Amsterdam to create the Free
Movement Chapter in the EC Treaty. According to well-established
legal principles, the choice of legal base is determined objectively
by reference to the substance of the measure. Any incorrect allocation
could ultimately be challenged in the European Court of Justice.
3. The allocation of the Schengen acquis
to the First or Third Pillar will, of course, be one of the factors
likely to influence the Government's participation in particular
measures, as this will determine the applicable institutional
regime within which co-operation will take place. The Government
has however made clear that it will participate in First Pillar
activities on immigration and asylum where it is in the national
interest to do so; it has also undertaken to ensure that Parliamentary
scrutiny arrangements enable Parliament to be kept informed of
and give its opinion on that process.
172. 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.
173. 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
4. The Government considers that there will
be no change in legal certainty in relation to immigration and
asylum policy as a result of the United Kingdom's position on
Title IV of the EC Treaty. The Government will continue to define
its national policy on immigration and asylum (as it has done
recently by publication of its White Paper Fairer, Faster and
Firmera modern approach to immigration and asylum).
It will, further, co-operate at EU level with other Member States
where it considers that there is advantage in doing so. The Protocol
on the position of the United Kingdom and Ireland enables that
participation to take place at any time. While recognising the
Committee's concern about possible implications for UK influence
at EU level in this area, the Government would note that the nature
of the United Kingdom's immigration control is in many respects
different from that of its continental neighbours and that differences
can be justified on the grounds of our island geography. The unique
immigration control requirements of the UK (and Ireland) and the
retention of our internal frontier controls have been formally
recognised at EU level in a dedicated Protocol to the Treaty of
174. 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.
5. This requirement is a legal obligation
arising from Article 8 of the Schengen Protocol annexed to the
Treaty of Amsterdam. The Schengen Member States regard the Schengen
acquis as a single body of law which must be accepted in full
by all States wishing to join the Schengen area. The justification
is that, before any opening of internal frontiers between new
and existing Member States, the applicants for EU membership should
be able to demonstrate that they can fully meet the requirements
of providing a strong external frontier and effective internal
security measures such as police and judicial co-operation to
counter organised crime and illegal immigration. As part of the
price for the agreement of the United Kingdom and Irish Governments
to the incorporation of Schengen into the European Union, the
Schengen Member States agreed that the UK and Ireland could participate
in some but not all of the Schengen acquis but at the same time,
it was agreed in a separate Protocol on Article 7A that the UK
and Ireland would maintain their internal frontier controls with
the rest of the EU. However, for States which join the EU in future,
and thereby join the Schengen area, the normal rule will apply
so that they will be required to accept the Schengen acquis in
175. 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.
6. The Government agrees that the incorporation
of the Schengen acquis will increase the EU acquis significantly
in a single exercise and that the further development of this
acquis within the Union is likely to affect the rights of individuals.
That is why the Government is concerned to ensure that the correct
legal base is selected for each provision of the acquis and that
full compliance with data protection requirements is secured.
176. 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.
179. The Committee draws attention again
to the fact that national procedures for approving the Amsterdam
Treaty incorporating the acquis will have been completed in many
if not all EU countries before a definitive list of the provisions
of the acquis has been made available. The Committee is concerned
at Governments signing, and bringing into force, a set of arrangements
to incorporate the acquis without first being clear what that
180. The Committee considers that there
is an urgent need for clarification and consolidation of the acquis
now, before it is brought within the European Union framework.
The onus must, in this respect, rest on the Council which has
the responsibility under the Schengen Protocol for agreeing what
constitutes the acquis and how it is to be allocated to legal
bases in the EU Treaties. As the European Parliament has no formal
role in the process of incorporation, we do not see how it could
undertake this task. It is by no means clear to the Committee
that Governments (let alone Parliaments or European citizens)
understand the implications of the incorporation of the acquis.
We have attempted to explain some of the implications here but
the need for clear, simple explanation by the Council is both
urgent and acute.
7. The Government is grateful to the Committee
for its comments on our efforts to provide Parliament with Schengen
documents. These represent the vast bulk of the Schengen acquis.
The Government will continue to ensure that relevant documents
are made available to Parliament. The ongoing work to allocate
a legal base within the EU framework to the Schengen acquis enables
all Member States to consider case-by-case the implications of
incorporation. With the exception of Ireland, all our partners'
national parliaments had an earlier chance to scrutinise the Schengen
acquis during ratification of the original Schengen Convention.
Any eventual decision by the UK to opt in to parts of the Schengen
acquis will be covered by a Council Decision which will be subject
to normal Parliamentary scrutiny procedures.
177. 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 policy co-operation.
183. The Committee believes that the allocation
of a legal base to the constituent parts of the acquis and the
grounds for any exclusions must be transparent and fully reasoned.
The Committee is not satisfied that a proper evaluation of the
allocation can be made on the basis of the information contained
in the two draft Decisions.
8. The Government regrets that the Committee
has found the presentation of the two draft Decisions inadequate.
The Government is committed to depositing for scrutiny the Council
documents which are under consideration; these documents represent
the results of complex negotiations in which all 15 Member States
have an equal say. The form of the Decisions is therefore not
entirely within the control of the UK. The Government shares the
Committee's concern that the two draft Decisions should contain
sufficient information to allow Parliament and the public to understand
fully the decisions on allocation of legal base. Already, in respect
of the decisions of the Schengen Executive Committee, the draft
Decision on definition (SCHENGEN 14) contains a brief explanation
of the substance of each decision. The Government will, however,
seek to ensure that the subject of accessibility remains a key
element of the EU negotiations, and domestically will endeavour
to ensure that any future Explanatory Notes on this difficult
subject are as helpful as possible to Parliament.
178. We commend the Government for undertaking
to involve the European Parliament but we do not consider that
the European Parliament can be kept adequately informed if it
has not been sent the relevant documentation.
9. The Government fully accepts that, although
the Schengen Protocol gives the European Parliament no formal
locus in the process of incorporation, for consultation to be
meaningful, the fullest documentation should be submitted as early
as possible. The Government undertakes to raise this with other
181. The Committee regrets that the acquis
will be formally published in the Official Journal only after
it has been incorporated and taken effect within the framework
of the EU Treaties. This is contrary to the usual practice of
publishing binding legal instruments before they enter into force.
We believe that the spirit, if not the letter, of the rules agreed
at Amsterdam on publication in the Official Journal should apply
to the existing as well as future acquis.
10. The Government sympathises with the
Committee's desire to promote public access to the acquis. The
Government fully supports the Amsterdam Treaty's emphasis on decision-making
which is both as open as possible and as close as possible to
the citizen. But the new arrangements have not yet entered into
force, and current rules on publication in the Official Journal
relate only to acts which have been adopted. The Schengen acquis
cannot be adopted in the EU until the Amsterdam Treaty enters
into force, because the legal base for the necessary Decisions
(Article 2(1) of the Schengen Protocol) will only then become
valid. More importantly, legally the Schengen acquis will be formally
defined only at the point at which the Decisions are made: it
would therefore appear premature to publish a series of texts
purporting to form the Schengen acquis before these legal decisions
have been made and there is clearly no precedent for doing so.
Finally, the Government considers the analogy drawn with the usual
practice of publishing binding instruments before they enter into
force somewhat inappropriate: the Schengen acquis is already in
force and operating within the Schengen Member States.
182. Legal certainty should be the guiding
principle for incorporation of the Schengen acquis. The process
of incorporation should be transparent and the laws resulting
from it should be accessible to citizens. We are concerned that
the grounds on which Schengen States may classify documents as
confidential go beyond the narrow exception we have suggested
(see paragraph 117). We believe that the basis for non-disclosure
of classified Schengen documents which concern matters within
Community competence should be clarified before agreeing to their
incorporation. There should, at least, be a summary of the confidential
documents sufficient to identify their subject matter and to ensure
that the correct allocation of legal base is made.
11. The Government shares the Committee's
concern to ensure the maximum possible transparency. The Government
does not control decisions on disclosure by Schengen states. The
Government notes the Committee's proposals for a limited disclosure
of at least the subject matter of classified documents and, if
full disclosure is not agreed, will explore this possibility and
report back to the Committee.
184. The failure to incorporate Article
28 of the Schengen Convention which reaffirms Member States' obligations
under international laws for the protection of refugees is of
particular concern to the Committee. We consider such protection
to be an essential element in an area of freedom, security and
justice. We believe that Article 135 of the Convention should
be allocated to a legal base in the EC Treaty. A Declaration does
not have the same force as a legally binding Treaty Article.
12. It was not considered necessary to give
a legal base to Article 28 since Articles 28-38 have been overtaken
by the Dublin Convention. The Member States' commitment to respect
the Geneva Convention and its protocol is already provided for
in the European Union Treaties (Article 63(1) Treaty establishing
the EC). Consideration is currently being given to including a
declaration, based on Article 135 of the Schengen Implementing
Convention, in the Council Decision.
185. The Schengen Protocol clearly expresses
Member States' desire to incorporate the Schengen acquis into
the EU framework. The Committee believes that the process of incorporation
must ensure that individuals and Member States are able to identify
the source of their rights and obligations. There is a risk both
that the integrity of the acquis itself and legal certainty will
be undermined if some of its provisions apply independently of
the EU Treaties.
13. The Government agrees with the Committee
that the source of rights and obligations should be clear. The
Government is satisfied that the text in French to which the Committee
refers (paragraph 138) is not designed to give an independent
existence outside of the EU Treaties to any item of the Schengen
acquis but rather to confirm the continuing legal validity of
186. The Committee considers it to be essential
that a clear route is marked for individuals seeking access to
data held on them in the SIS. If allocation to a dual legal base
in the First and Third Pillars is unavoidable, there should be
an equivalent level of data protection in each Pillar and coherent
and complementary rules for individuals to exercise rights of
access and obtain legal remedies if data held on the SIS is incorrect
or has been misused. Data protection requirements should be at
the forefront of any other options under consideration.
187. The Committee welcomes the commitment
to prohibiting racial discrimination that is demonstrated in the
new Treaty provisions. We fear, however, that the role of the
Court in ensuring a just and even application of the principle
of non-discrimination will be undermined if the SIS is allocated
to a legal base in the Third Pillar. We regret that the Government
seem set on continuing the policy of denying courts in the United
Kingdom the possibility of obtaining rulings on any Third Pillar
matters, including those seeking to eradicate racism.
14. The Government is committed to ensuring
full data protection rights to the SIS, should it decide to participate
in the System. It is inevitable that the Schengen Information
System will be based at least in part on a Third Pillar legal
base, since police co-operation remains a matter for intergovernmental
co-operation under the Amsterdam Treaty. The question of whether
provisions allocated a legal base in the Third Pillar should be
subject to European Court of Justice jurisdiction will therefore
arise, and if so the UK would need to decide whether, and in which
forms, it could agree to accept such jurisdiction. Such decisions
are taken on their merits.
188. The interaction between Treaty provisions
on Schengen and Europol raises particular issues for the United
Kingdom. The Committee would wish to be informed of any proposal
for Europol to involve itself in areas of police co-operation
arising from provisions of the Schengen acquis. This is particularly
the case if links are to be established between Europol's central
data bank and the Schengen Information System.
15. Europol's remit covers a number of issues,
such as trafficking in stolen vehicles, which also feature in
the Schengen Convention and related co-operation arrangements.
The Schengen Information System contains data which may be relevant
to Europol's work. The Europol Convention (Article 6.2), however,
precludes direct links between the two databases. For information
to be exchanged directly between the two systems would therefore
require an amendment to Article 6 of the Convention which would
have to be agreed by all Member States and ratified in accordance
with their respective constitutional arrangements.
2 November 1998