Select Committee on European Union Fifth Report



Explanatory Memorandum on a Note from the Presidency to the Council concerning the request by the United Kingdom to take part in some of the provisions of the Schengen acquis (in accordance with Article 4 of the Schengen Protocol) (Document No: 8562/99, SCHENGEN 56) Submitted by the Home Office on 24 June 1999


  1.  This Explanatory Memorandum relates to the UK's application to participate in those areas of the Schengen acquis which relate to law-enforcement and judicial co-operation, including the Schengen Information System (SIS), in accordance with Article 4 of the Schengen Protocol.


  2.  The Home Secretary has overall responsibility for the policy arising from this document. The Foreign Secretary has overall responsibility for the implementation of the Amsterdam Treaty.


(i)  Legal Basis

  3.  The UK's application to participate in the Schengen acquis is provided for by Article 4 of the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and the Treaty establishing the European Communities.

(ii)  European Parliament

  4.  There is no formal provision in the Schengen Protocol for the European Parliament either to be kept informed, or to take part in the decision-making of the Council. The UK fully supports initiatives by the EU Presidency of the day to supply the European Parliament with full documentation on the Schengen process.

(iii)  Voting Procedure

  5.  Article 4 of the Schengen Protocol provides that any application by the UK to participate in the provisions of the Schengen acquis shall be decided unanimously in the Council by the thirteen Schengen states and the UK.


  6.  Participation in the provisions of the Schengen acquis will require legislation in a number of areas. These are identified in annex 2 to the application, which indicates that transitional periods will as a consequence be needed to implement these aspects of Schengen. The details are set out in the three paragraphs below. Article References are to the relevant article of the Schengen Implementing Convention (SIC).

  7.  Specific aspects of the provision on hot pursuit (Article 41) will require primary legislation before they can be implemented in the UK. The requirement (Article 42) that a foreign law enforcement officer, acting under the terms of Article 40 and 41, should have the same status as a British officer in respect of any offence committed against them and the provisions in Article 43 regarding damage caused during such operations will require primary legislation to enable their implementation in the UK.

  8.  Some of the Schengen provisions on judicial co-opertion (Articles 50, 64, and 66) will require implementation through primary legislation relating to mutual legal assistance in fiscal matters and to streamlining of extradition procedures. Primary legislation will also be needed to implement the Schengen provisions for the transfer of the enforcement of criminal judgements (Articles 67-69).

  9.  Participation in Schengen, and particularly in the SIS, will bring additional data protection requirements. The Government is continuing to give these careful considertion to assess whether the Data Protection Act 1998 provides a sufficient legal base or whether any additional requirements need legislative or administrative changes.

  10.  The Government will also wish to clarify, in negotiations within the Council, the legal force of the various Articles, Decisions and Declarations of the Schengen acquis in which participation is sought, in order that they can be transposed correctly into UK law.


  11.  The Government of Gibraltar has been consulted over the extent to which the proposed participation in the Schengen acquis should apply to Gibraltar. The Data Protection Registrar has also been consulted over the role envisaged for her in the application.


  12.  The application is part of the UK's policy of positive involvement in JHA co-operation. The Republic of Ireland has indicated that it will submit shortly an application in similar terms. Participation will lead to closer contacts with European Union partners, particularly at operational level. Through participation in the SIS, the UK will be able to exchange information about wanted or missing persons and vehicles across Europe more effectively and efficiently than is currently possible.

  13.  With regard to Articles 40 and 41 (cross-border surveillance and hot pursuit), the Government does not anticipate these provisions being put to extensive practical use. The only land border across which these provisions will apply is that with the Irish Republic, and the UK will work closely with the Irish government to set out precisely how these provisions would be implemented, should Ireland seek participartion in this area also. Although cross-border surveillance will extend to the UK's continental European neighbours, it is anticipated that cases without prior authorisation will be rare, given the scope for advance notice which the nature of travel to the UK provides.

  14.  As the Government does not intend to participate in the provisions on external borders, or in Article 96, there will be no policy implications in terms of persons deemed inadmissible to the UK.


  15.  The principal financial implication arising from the UK's participation in Schengen will be with respect to the SIS. As well as start-up and running costs for the UK section of the SIS, the UK will also be expected to contribute to the original costs of setting up the SIS, although no commitment has yet been given to the expenditure involved. The precise nature of our participation in the SIS, and the consequent financial costs, will be subject to detailed discussion during the negotiations on the application. It is not possible to provide a precise estimate of the costs, which the UK is discussing with interested parties, including the police service, but if we joined in 2001 it would be in the region of £3.3 million.

  16.  Funding will also be required for the equipment needed at the National Sirene; lines to the Central Sirene; such local terminals as are installed in the different agencies; and the relevant connections. This has not been costed, as much will depend on the type of equipment involved and its compatibility with existing equipment, as well as decisions by the different agencies as to the number of local terminals they install.

  17.  There will also be financial implications arising from the new tasks which participation in the Schengen acquis will impose on the Data Protection Registrar. It is estimated this will amount to 10 days a year of senior staff involvement, start up costs of between £6,000 and £9,000 and running costs of between £22,000 and £34,000.


  18.  The next stage in the application process will be the issue of an Opinion by the Commission. The Government expects this to take place shortly, after which the application will be discussed within the Council framework. The Government hopes that significant progress on the application will have been made by the time of the Tampere European Council in October 1999.

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