37. INCORPORATION OF, AND UK PARTICIPATION
IN, THE SCHENGEN ACQUIS
Letter from Lord Tordoff, Chairman of
the Committee to Kate Hoey MP, Parliamentary Under-Secretary of
State, Home Office
Sub-Committee F (Social Affairs, Education and
Home Affairs) has considered the Association Agreement between
the 13 EU members of Schengen and Norway and Iceland (Schengen
26 Add 1 Rev 1), the Decision establishing the EU's internal rules
for the operation of the Association Agreement (Schengen 17 Rev
2), and the Decision concerning the Joint Supervisory Authority
(Schengen 23 Rev 1).
The Committee is grateful for the opportunity
to examine these documents although we understand that the Association
Agreement was signed on 18 May and that the other two documents
were also adopted in May. The Committee notes that the arrangements
for determining the areas of Schengen-derived co-operation with
which Iceland and Norway may be associated will have important
implications for the UK's future participation in parts of the
Schengen acquis. In particular, the areas identified in
Article 1 (G)-(I) of the Decision establishing procedures for
applying the Association Agreement correspond to the areas described
in the UK's application to participate in the Schengen acquis.
The Committee would welcome clarification of
one point arising from the Association Agreement. Article 7 requires
the 13 EU Schengen States and Iceland and Norway to agree criteria
and mechanisms for establishing the State responsible for an asylum
application lodged in any one of the Member States, Iceland or
Norway. This would appear to be a development of the Dublin Convention
rather than a development of the Schengen acquis. Article
6(1) of the Schengen Protocol, which provides the legal basis
for the Agreement, only refers to the association of Iceland and
Norway with the " implementation of the Schengen acquis
and its further development". Can you explain how Article
17 relates to the Schengen acquis?
The Committee would be grateful for copies of
the final versions of Schengen Decisions and related documents
adopted by the Council since 1 May.
24 June 1999
Letter from Kate Hoey MP, Parliamentary
Under-Secretary of State, Home Office to Lord Tordoff, Chairman
of the Committee
Thank you for your letter of 24 June following
the consideration by Sub-Committee F of various documents relating
to the incorporation of the Schengen acquis. You asked
for clarification of a point concerning Article 7 of the Association
Agreement between the 13 members of Schengen and Norway and Iceland
(Schengen 26).
You questioned why Article 7 should deal with
a matter (establishing the State responsible for an asylum application)
which is apparently a development of the Dublin Convention and
not of the Schengen acquis. This provision is included
in the Association Agreement with Norway and Iceland by virtue
of Article 6(1) of the Schengen Protocol, which states that Norway
and Iceland are to be associated with the Schengen acquis
and its further development on the basis of the 1996 Luxembourg
Agreement.
The Luxembourg Agreement provides for the association
of Norway and Iceland not only with the Schengen acquis
but also with EC and EU measures which have replaced the Schengen
acquis. Thus, the association of Norway and Iceland on
the basis of Article 6 of the Protocol covers non-schengen measures
such as the Dublin Convention.
I hope this clarifies the point. I will ask
officials to ensure that the Committee has copies of the final
versions of all the Schengen documents we have submitted for scrutiny.
8 July 1999
Letter from Lord Tordoff, Chairman of
the Committee to Kate Hoey MP, Parliamentary Under Secretary of
State, Home Office
Sub-Committee F (Social Affairs, Education and
Home Affairs) considered the Agreement between Ireland and the
UK, on the one hand, and Iceland and Norway on the other, at its
meeting on 30 June. The Sub-Committee also had before it the Presidency
Note on the UK's application to participate in certain provisions
of the Schengen acquis.
The Sub-Committee noted the reasons for the
late deposit of the text of the Agreement and is grateful for
your explanation. Notwithstanding, the Sub-Committee wishes to
express its strong disappointment at Member States' apparent disregard
for the spirit of the Protocol on the Role of National Parliaments.
The desire of the German Presidency to secure agreement before
the end of its term of office does not seem a sufficient reason
to override the six week scrutiny period, particularly given this
Committee's interest in the incorporation of the acquis.
The value of the Protocol will be greatly reduced if Member States
are not willing to resist the inevitable eleventh hour pressures
of an outgoing Presidency.
The Sub-Committee has noted your intention to
implement the Agreement by means of an Order under section 1(3)
of the European Communities Act 1972. The Decisions incorporating
the Schengen acquis have allocated a number of provisions
to legal bases in the Third Pillar (Title VI). I would therefore
welcome an explanation of your reasons for considering that implementation
of the Agreement by means of an Order is appropriate.
The Sub-Committee is content to clear from scrutiny
the Presidency Note detailing the legislative and operational
changes which will be required to permit UK participation in parts
of the acquis covered by its application. The Sub-Committee
wishes to be informed of developments and, in particular, to have
early sight of the Commission's opinion.
1 July 1999
Letter from Kate Hoey MP, Parliamentary
Under Secretary of State, Home Office to Lord Tordoff, Chairman
of the Committee
Thank you for your letter of 1 July following
Sub-Committee F's initial consideration of the Agreement establishing
rights and obligations between the UK and Ireland on the one hand
and Norway and Iceland on the other, concerning the latters' association
with the implementation and further development of the Schengen
acquis.
I have noted your comments about the absence
of a proper scrutiny period for this Agreement. This arose because
of the nature and circumstances of the Agreement's conclusion
and I should like to reassure you that the Government remains
fully committed to the observance of proper scrutiny procedures.
The Sub-Committee asks why we consider that
implementation of the Agreement by means of an Order under section
1 (3) of the 1972 Act is appropriate given that the decisions
incorporating the Schengen acquis have allocated a number
of provisions to legal bases in the Third Pillar.
The need for a section 1 (3) Order arises from
the fact that the United Kingdom will need to be able to implement,
as Community obligations, provisions of the Schengen acquis,
or measures building on or developing that acquis, which
are given a First Pillar legal basis, to the extent that they
bind Norway and Iceland by virtue of the Article 6 Agreements
and to the extent that the United Kingdom accepts them. With a
section 1 (3) Order specifying the Agreements as Community Treaties
the United Kingdom will be able to implement those obligations
by regulations under section 2 (2) of the 1971 Act. Moreover,
some of those obligations may have direct effect and apply directly
by virtue of Section 2 (1) of the 1972 Act.
As regards Schengen obligations which have a
Third Pillar legal basis (which are likely to be the majority
as far as the United Kingdom is concerned), to the extent our
law needs amending to give effect to those obligations, it seems
probable that primary legislation would be necessary because of
the need to give effect to those obligations vis a vis other
member states. I say "probable" because there might
be cases where it would be proper to use section 2 (2) regulations
"for the purpose of dealing with matters arising out of or
related to any [Community] obligation" of the United Kingdom
(section 2 (2) (b)). But that would of course depend on the relationship
between the Third Pillar obligation and the First Pillar obligation
in question. In most cases, it seems likely that primary legislation
would be needed.
I could add that the vast majority of section
1 (3) Orders specify mixed agreements and that in substance both
Article 6 Agreements will be mixed agreements.
I have noted the Sub-Committee's continuing
interest in the UK's application to participate in the Schengen
acquis, and will ensure that they receive an early copy
of the Commission's Opinion once this is available.
23 July 1999
Letter from Lord Tordoff, Chairman of
the Committee to Barbara Roche MP, Minister of State, Home Office
I understand that the Council Decision concerning
the UK request to take part in certain provisions of the Schengen
acquis was substantially agreed during December, a part
from the question of territorial application to Gibraltar. As
you know, this Committee has taken a keen interest in the incorporation
of the acquis within the European Union and its proposed
extension, at least in part, to the UK. Sub-Committee F heard
evidence from your officials on the UK application on 24 November
and since had the opportunity to consider a revised draft Council
Decision and your response to various questions raised by our
sister Committee in the Commons. While the Committee would welcome
clarification of a number of points arising from these documents,
it also recognises that your officials are unlikely to be able
to provide a full response in the short time available. It is
content, therefore, to clear the draft Council Decision from scrutiny
pending your reply to the points set out below. Once the precise
terms of the UK's application have been agreed, the Committee
intends to publish the relevant documents and evidence in a short
Report to the House.
CROSS-BORDER
SURVEILLANCE
Your letter of 18 November encloses a detailed
paper setting out proposed arrangements for cross-border surveillance
under Article 40 of the Schengen Convention. Paragraph 11 of the
paper explains that a UK team would take over a surveillance initiated
in another Schengen State if the target moves onto UK territory.
Officers from that State would, however, join the UK team as advisors.
Such officers, you suggest, "would not be acting in an operational
police capacity as envisaged by the Schengen provisions, in the
particular circumstances of these operations". If your assumption
is correct, Articles 42 and 43 of the Schengen Convention would
seem not to apply. These provisions ensure that officers operating
on foreign territory are treated, in terms of their status and
liability, as if they were officers of the State in which they
are operating. Under Article 43(2), the UK authorities would be
required to repair damage arising from a surveillance operation
carried out on UK territory, notwithstanding that the damage was
caused by an officer from another Schengen State. This should
make it easier for a UK citizen to obtain speedy compensation.
The Committee would be grateful if you could
explain in what formal capacity, if any, officers from another
Schengen State performing an advisory function in the UK would
be acting. Would such officers be amenable to the jurisdiction
of UK courts for any damage caused by them to the person or property
of an individual in the UK. Would it be possible for the injured
individual to seek redress from the local police authority in
respect of such damage, as would seem to be envisaged by Article
43(2) of the Convention?
HOT PURSUIT
The Committee notes the reasons given for excluding
Article 41 of the Convention on "hot pursuit" from the
UK application. In particular, you suggest that this provision
only applies to land borders at which controls have been removed.
Although the general purpose of the Convention is the removal
of internal border controls, Article 41 does not expressly require
the lifting of such controls as a pre-requisite to "hot pursuit".
If such a requirement is to be inferred from the general purpose
of the Convention, would it apply equally to cross-border surveillance
under Article 40 which also involves the crossing of a border?
The Committee would welcome your views.
SCHENGEN INFORMATION
SYSTEM
The Committee notes that Article 5(b) of the
draft Decision would permit UK authorities to use SIS data to
refuse entry to, or to expel from, UK territory non-EU nationals
who present "an imminent serious threat to public policy"
or "for reasons of State security or for the purpose of preventing
a serious offence". Would you accept that, to this limited
extent, UK participation in the SIS might have some impact on
UK immigration control?
CONFIDENTIALITY
The Committee is concerned at the justification
advanced by the Council Legal Service (and apparently endorsed
by the Government) for the exclusion of two Schengen Executive
Committee decisions, (93) 22 and (98) 17, from the draft Council
decision, notwithstanding that these decisions are already in
the public domain and will bind the UK. The two decisions merely
identify certain documents which, for operational reasons, are
to be treated as confidential. They appear on the face of the
Council Decisions, adopted last May, defining the acquis
to be incorporated within the European Union and allocating it
to a legal base in the EU Treaties. The decisions form part of
the acquis deposited in Parliament. The Committee commented,
at paragraph 127 of its Report, Incorporating the Schengen
Acquis into the EU (1997-98, 31st Report, HL Paper 139), that
"there is a crucial distinction between laws regulating matters
considered confidential for security or other reasons and the
operational rules to implement them. While there may be circumstances
in which non-disclosure of the latter may be justified, the laws
on which they are based should be subject to public and parliamentary
scrutiny". The Committee can see no reason for excluding
the two Executive Committee decisions from the draft Council Decision
on the UK application and would welcome a more detailed explanation.
TERRITORIAL SCOPE
The Committee notes that the territorial scope
of the UK application remains unresolved. The Committee wishes
to be informed of the outcome of the bilateral negotiations between
the UK and Spain on the extension of parts of the acquis
to Gibraltar. It would also welcome a clearer indication of the
Government's intentions with regard to the Channel Islands and
the Isle of Man.
ARTICLE 5(1) OF
THE SCHENGEN
PROTOCOL
Article 10(2) of the draft Decision provides
for the UK to play a full part in the discussion and adoption
of proposals and initiatives building on the acquis in
which it has chosen to participate. The UK would not, therefore,
be required to give a separate notification in relation to each
such proposal, as is envisaged under Article 5(1) of the Schengen
Protocol. It seems that the Government would prefer to make a
declaration to this effect. Other Member States consider that
it should remain within the body of the draft Decision, not least
for reasons of openness and legal certainty. The Committee would
welcome a fuller explanation of your reasons for preferring a
declaration.
DIRECT APPLICABILITY
OF THE
ACQUIS
The Committee notes that, under Article 8(4)
of the draft Decision, Article 75 of the Convention and an implementing
Decision adopted by the former Executive Committee shall be directly
applicable within the UK. Both of these provisions have been incorporated
into the EU but the Schengen acquis as a whole has not
yet, to our knowledge, been published in the Official Journal.
Does the Government consider that EU law would permit such provisions
to be directly applicable before their publication?
The Committee looks forward to receiving your
reply to the points raised above and a copy of the final Decision
once it has been agreed in Council.
10 January 2000
Letter from Barbara Roche MP, Minister
of State, Home Office to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 10 January, in
which you sought clarification of a number of points arising from
the draft Council Decision on the UK's application to participate
in provisions of the Schengen acquis.
I have set out below a response to your questions,
which I hope will be helpful. I am also enclosing a copy of the
latest version of the draft Council Decision (Schengen 74 Rev
4) for the Committee's information. I will ensure that the Committee
receives the final version in accordance with scrutiny procedures.
CROSS-BORDER
SURVEILLANCE
I can confirm that the cross-border surveillance
arrangements which we plan to put in place envisage that officers
from another Member State attached to a UK team would play a formal
role in acting as advisers in a surveillance operation. This would
entail them making recommendations as to the direction the operation
should take, suggesting courses of action based on their knowledge
of the case and remaining in touch with their command centre so
as to provide valuable intelligence to their UK colleagues who
would have taken over control of the operation.
Given the limited part in the operation which,
as advisers, officers from another Member State would play, and
given the conditions laid down in Article 40(3), it is unlikely
that the question of damages would arise. However, in the event
that it did so, we can confirm that the officers would be subject
to the jurisdiction of the UK courts, and to the extent that they
would be engaged in a surveillance operation, albeit alongside
their UK counterparts, Articles 42 and 43 SIC would apply, so
that the arrangements governing compensation set out in Article
43 would apply to officers from another Member State in these
circumstances. I should also draw the Committee's attention to
Declaration No 3, which it is proposed the United Kingdom should
make, on adoption of the Decision, with reference to our implementation
of Article 40.
HOT PURSUIT
As you say, one of the underlying principles
of the Schengen Convention is to provide for the free movement
of persons across borders. It follows that the provisions of both
Articles 40 and 41 exist in order to provide compensatory measures
for the removal of physical border controls. As a result, surveillance
operations and incidents which involve a hot pursuit across a
land border are permitted under Articles 40 and 41 as the withdrawal
of resources at the border necessarily means there is no opportunity
for the Member State into which the surveillance or pursuit enters
to control that situation. The significant point in terms of their
application to the UK is that Article 41 applies expressly only
to land borders, whereas Article 40 is applicable across all borders.
Thus we were able to accept that hot pursuit as envisaged by the
Schengen Convention could not take place between the UK and other
Schengen states, whereas cross-border surveillance might occur
by air or sea.
SIS
The provisions relating to our partial participation
in the SIS, contained in Article 5 of Schengen 74 Rev 2, do not
appear in the latest version of that document. This is because
it has been agreed that the legal and technical modalities of
our partial participation in the SIS will be the subject of further
discussion by the Schengen Acquis Working Group following adoption
of the Council Decision. However, the provision in question was
originally included in the draft Council Decision in recognition
of the derogation contained in Article 102(3) of the Schengen
Convention enabling Member States to switch data from one category
to another where justified by the need to prevent an imminent
serious threat to public policy and safety, for serious reasons
of State security or for the purposes of preventing a serious
offence. As we will not be participating in Article 96 it is not
envisaged that our Immigration Service (IS) will have direct access
to the SIS. But we would not rule out, exceptionally, the possibility
of information being passed to the IS where the conditions of
Article 102(3) are met.
CONFIDENTIALITY
The Government has accepted the exclusion of
the two Schengen Executive Committee Decisions on confidentiality
from the Council Decision because we agreed with Council Legal
Service advice that their inclusion was not necessary. The Decisions,
which are not themselves confidential, purely establish the confidentiality
of certain Schengen documents. Following the incorporation of
the Schengen acquis into the Treaty on European Union,
these two Decisions became Decisions of the Council relating to
the confidentiality of Council documents. As members of the Council,
the United Kingdom is automatically bound by decisions on the
confidentiality of Council documents. We therefore accepted that
to list these two Decisions among the acquis in which the
United Kingdom is seeking to participate would imply that the
United Kingdom was not already bound by the Council rules on confidentiality.
This would be misleading.
TERRITORIAL SCOPE
Discussions continue with Spain and the Government
of Gibraltar on issues relating to the UK application. The article
of the draft Council decision relating to Gibraltar's participation
therefore still remains open. We will ensure that the Committee
is informed as soon as the matter is resolved.
On Channel Islands and Isle of Man, the Government
has proposed, in addition to Article 5(1) of Schengen 74 Rev 4,
a declaration which would read as follows:
"Any future request pursuant to Article
7(1) of this Decision concerning the application to the Channel
Islands and Isle of Man of provisions of the Schengen acquis
mentioned in Article 1 will ensure coherence in the application
of the Schengen acquis in the United Kingdom, Gibraltar
and the Channel Islands and Isle of Man, consistent with their
respective status under the Treaties. In this regard, the United
Kingdom will ensure that any request covers all appropriate provisions
of the acquis mentioned in Article 1 of this Decision,
taking into account the status of the Channel Islands and Isle
of Man under the Treaties".
This test has not yet been unanimously agreed
and may be subject to further amendment. However, it indicates
our intention to ensure that the Islands participate as fully
as possible in the Schengen provisions, within the terms of the
UK's application and of the constitutional position of the Islands.
We are still discussing with the Islands the exact terms of their
participation which are dependent in part on the final form of
our own application.
ARTICLE 5(1) OF
THE SCHENGEN
PROTOCOL
The Government's decision to propose a declaration
by the UK on the matter dealt with by Article 10(2) of the draft
Council Decision (Article 8(2) of Schengen 74 Rev 4) was prompted
by concern about the original drafting of this Article, which
seemed to us to be inconsistent with the terms of the Schengen
Protocol. A declaration was, in our view, justified by the fact
that it deal with a matter which concerned the exercise of our
discretion under Article 5 of the Schengen Protocol. However,
we were able to secure amendments to the Article which brought
it into line with the wording of the Schengen Protocol and on
that basis were able to accept the inclusion of this provision
in the text of the Decision.
DIRECT APPLICABILITY
OF THE
ACQUIS
Publication of the Schengen acquis in
the Official Journal did not take place on entry into force of
the Amsterdam Treaty because the acquis had not at that
stage been translated into all Community languages. The full acquis
will be published in the Official Journal as soon as the translation
process has been completed, which is expected to be in April.
As the Committee has noted, Article 8(4) of
the draft Decision provides for Article 75 of the Schengen Convention
together with Decision SCH/COM-ex (94) 28 rev to be directly applicable
in the United Kingdom. However, these provisions of the acquis
will not enter into force for the United Kingdom on adoption of
the draft Decision. In accordance with Article 8(1) of the draft
Decision, the acquis will be put into effect for the United
Kingdom on a date to be decided by the Council following the adoption
by the UK Government of the legislation necessary to implement
the acquis in the United Kingdom. Until this date, noquestion
of direct applicability can arise. Given the need to adopt primary
legislation to implement certain parts of the acquis, there
is likely to be a gap of some months before the Council decides
to put the acquis into effect for the United Kingdom. It
is therefore highly likely that the acquis will have been
published in the Official Journal before Article 75 and Decision
SCH/Com-ex (94) 28 rev become directly applicable in the United
Kingdom.
31 January 2000
| 
