Crime (International Co-operation) Bill: Schengen Convention (Hansard, 5 December 2002)

§ The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)

The articles of the Schengen Implementing Convention in which the United Kingdom will participate are set out in the Council decision of 29 May 2000 (2000/365/EC). The Crime (International Co-operation) Bill implements those articles which require legislation, with the exception of Article 27, which was implemented by the Nationality, Immigration and Asylum Act 2002, and Articles 40, 42 and 43 were in part implemented by the Police Reform Act 2002. Other provisions of Schengen relating to extradition are included in the Extradition Bill. All other articles and elements of the acquis, including the Schengen information system. in which the United Kingdom will participate, will be implemented through administrative measures. This Bill will implement the relevant parts of the Schengen convention for the United Kingdom; Gibraltar will take forward its own implementation.

The articles of Schengen to be implemented in the Crime (International Co-operation) Bill are as follows. Article 40(2) allows for police officers from one member state to continue surveillance into another member state in emergency situations for up to five hours. Clause 83 of the Bill inserts a new Section 76A into the Regulation of Investigatory Powers Act 2000 (RIPA) to allow automatic authorisation of overseas officers to carry out surveillance in the United Kingdom in strictly limited circumstances. Legislation to implement Article 40(1) arrangements for officers acting in pre-planned joint surveillance teams is only required in respect of civil liabilities; this was implemented by Section 103 of the Police Reform Act 2002.

Article 42 requies member states to ensure that officers operating under the terms of Article 40 are treated in the same way as officers of the member state in which they are operating in respect of offences committed by or against them. Clause 84 of the Bill extends provisions on assaults on police officers (Section 89 of the Police Act 1996 in England and Wales, Section 41 of the Police (Scotland) Act 1967 in Scotland and Section 66 of the Police (Northern Ireland) Act 1998 in Northern Ireland) to cover overseas officers involved in Article 40(2) surveillance operations, authorised under Section 76A of RIPA.

Article 43 requires member states requesting cross-border surveillance to be liable for any damage caused by its officers while on surveillance. Clause 85 of the Bill amends the provisions on liability of wrongful acts on constables (Section 42 of the Police Act 1997) to make the director general of the National Criminal Intelligence Service (NCIS) liable for overseas officers carrying out surveillance in the United Kingdom under Section 76A of RIPA.

Articles 49, 52 and 53 cover mutual legal assistance arrangements between member states. Those parts of these articles which will not be repealed by the Convention on Mutual Assistance in Criminal Matters 2000 (MLAC) are implemented by Part I of the Bill. Part I also implements MLAC.

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Articles 62 to 66 cover extradition arrangements between member states. These have subsequently been superseded by the 1995 and 1996 European Union (EU) Extradition Conventions which were implemented in the United Kingdom by the EU Extradition Regulations 2002 (S.I. 2002/419). However, Clauses 86 and 87 of the Bill are necessary to ensure that the United Kingdom can apply Schengen extradition arrangements to countries which are either non-EU participants in Schengen (currently Norway and Iceland) or are EU member states which have not yet implemented the 1995 and 1996 conventions in order to fulfil the United Kingdom's Schengen obligations). Other provisions of Schengen relating to extradition, including those on the transfer of the enforcement of criminal judgments, are included in the Extradition Bill.

Article 114 requires member states to designate a supervisory authority to carry out independent supervision of the national data file of the Schengen Information System (SIS). Clause 82 of the Bill creates a power of independent inspection for the Information Commissioner of the SIS and other specified EU information systems by inserting new Section 54A into the Data Protection Act 1998.

A transposition note has been prepared by the Home Office which provides more detail on the precise implementation for each article of Schengen covered by the Crime (International Co-operation) Bill. A copy has been placed in the Library.