INTRODUCTION

  109.    At the Amsterdam European Council held on 16/17 June 1997 the Member States reached political agreement on a draft Treaty text (the Amsterdam Treaty). The Treaty, which is expected to be signed in Amsterdam in October 1997, will, when it enters into force, structurally alter what at present forms the Third Pillar. The existing Third Pillar will be divided into two parts, one of which will become a new Title III-A to be inserted into the EC Treaty. In addition, certain provisions relating to customs co­operation under the existing Article K.1(8) will be transferred to a new and strengthened Article 209a in the EC Treaty combating fraud against the Community[39]. The remaining part of the present Third Pillar will remain inter-governmental in nature but will be renamed "Provisions on police and judicial co­operation in criminal matters". The amended text of Article K will consist of 14 articles (K.1-K.14) with four associated declarations. Article K.1 will list certain criminal phenomena to be addressed[40] and three methods of co­operation to be employed[41].

  110.    The Committee recognises that the Amsterdam Treaty is provisional and subject to further revision and refinement before a final version will be signed in October. The Committee proposes to comment, however, on the implications for Parliamentary scrutiny arising from: the transfer of asylum, visa and immigration policy from the Third Pillar to the new Title III-A and the effect of Protocol Y; the Protocol integrating the Schengen acquis; the new Article K.6 and the Declaration on Article K.6(2); the granting of a formal consultation role to the European Parliament under the Third Pillar; the Protocol on the role of national parliaments; and the new provisions on transparency and openness.

  111.    The Home Office provided a memorandum outlining certain provisions of the Amsterdam Treaty which were of relevance to the Committee's enquiry. The Committee also discussed certain aspects of the Amsterdam Treaty with the witnesses they met during the Committee's visit to Brussels and at the Committee meeting with the Home Secretary and his officials.

THE NEW TITLE III-A AND THE EFFECT OF PROTOCOL Y

  112.    Under the Amsterdam Treaty the matters currently referred to in Article K.1(1)[42], (2)[43], (3)[44] and (6)[45] of the Maastricht Treaty will be transferred to a new Title III-A in the EC Treaty. Protocol Y will govern the relationship of the United Kingdom and Ireland to the new Title III-A[46]. The basic provisions in Articles 1 and 2 of Protocol Y are that the United Kingdom and Ireland will not take part in the new title and that nothing agreed under it will apply to them. However, Article 3 of Protocol Y allows the United Kingdom and Ireland to opt in to measures adopted under the new title on a selective basis provided that they give notice of their intention to do so within 3 months of a proposal being presented to the Council. Where measures are adopted by the thirteen Member States without the United Kingdom and Ireland, Article 4 allows both Member States to notify their intention to the Council and the Commission to accept such measures at a later date should they so wish.

Opinion

  113.    The modus operandi for the new Title III-A raises an important question for Parliamentary scrutiny. Although the Government may decide not to opt in to the negotiations on a proposal when it is first proposed, the option exists for the United Kingdom to subsequently agree to accept the measure.

  114.    Bearing in mind that the Government will not be in a position to renegotiate a measure where it has decided to opt in after it has been adopted by the other Member States, it follows that if the Committee is to have any influence on the proposal it must have an opportunity to scrutinise it when it is first brought forward. A similar, but not identical, situation has existed with respect to legislation adopted under the Agreement on Social Policy (the Social Chapter) annexed to the Maastricht Treaty[47]. Despite the fact that the United Kingdom may have taken no part in the negotiations on Social Chapter proposals, the texts of proposals have been deposited in Parliament by the Government and the Committee has had an opportunity to scrutinise them.

  115.    We recommend that, in order to safeguard the Parliament's scrutiny prerogatives, all proposals to be adopted under the new Title should be deposited in Parliament when they are first tabled by a Member State[48] or the Commission irrespective of whether or not the Government intends to take part in the negotiations at the initial stage.

THE PROTOCOL INTEGRATING THE SCHENGEN ACQUIS INTO THE MAASTRICHT TREATY

  116.    A Protocol to the Treaty would incorporate the Schengen Agreement of 1985 into the treaty system[49]. The Protocol refers to the Schengen acquis[50] which is defined in an Annex to the Treaty. All the Member States, including the United Kingdom and Ireland, would be parties to the Protocol in as far as it authorises the thirteen Member States which are committed to Schengen to make use of the Community institutions. Special arrangements will apply for the United Kingdom and Ireland which make it clear that both the acquis and future decisions based on them will not apply only to them[51]. Because the existing Schengen acquis covers matters falling within the new Title III-A and the Third Pillar, the Member States will have to separate the measures adopted according to whether they can be transferred into the new Title III-A of the EC Treaty or must remain within the Third Pillar. The distribution of Schengen measures in the Community and Third Pillars must be sanctioned by a unanimous decision of the participating States before the entry into force of the Amsterdam Treaty.

  117.    Article C of the Protocol provides that the United Kingdom and Ireland may at any time submit a request to take part in some or all of the provisions of the existing Schengen acquis. Where the United Kingdom or Ireland submits a request to take part the Council will decide on the request by a unanimous vote of the Member States who are full parties to the Schengen Agreement[52]. Article D makes provision for the United Kingdom (and the Republic of Ireland) to take part in actions to develop the Schengen acquis after the Treaty comes into force. Where the United Kingdom has notified the President of the Council, in writing of such an intention, the United Kingdom will be entitled to participate, automatically in the case of the development of the Schengen acquis in the Third Pillar, and, in the case of development of the Schengen acquis in the new Title III-A, subject to Protocol Y governing United Kingdom participation in that Title.

  118.    The Home Office indicated that it will be examining the detailed functioning of Schengen in order to determine, on a case-by-case basis, whether to seek to participate in particular elements of Schengen activity. In its view, it was likely that there would be few areas of Schengen activity in which the United Kingdom would wish to participate. The Home Office confirmed that where the Government decided to seek to take part in any element of Schengen activity - whether existing acquis or future co-operation - Parliament would be notified. The procedures to be used would be determined by whether the matter fell within the Third Pillar or under the new Title III-A. The Government would undertake to notify Parliament of the outcome of any application to participate in Schengen activity (pp 17-18).

  119.    The Home Secretary commented that the Schengen arrangements in the Amsterdam Treaty were complicated. He believed that as the United Kingdom was committed to maintaining its internal frontier controls and national control over asylum and immigration policy this would narrow the range of Schengen activities in which the United Kingdom might consider participating. He noted, however, that there were some areas, particularly in relation to police co-operation, where it might be in the national interest for the United Kingdom to participate. He agreed that he would inform Parliament of the outcome of the Home Office's examination of the Schengen acquis (QQ 303-4).

Opinion

  120.    The provisions incorporating the Schengen acquis into the Amsterdam Treaty are extremely complex and will require careful analysis in the months prior to the entry into force of the Amsterdam Treaty. The Committee is grateful to the Home Secretary for confirming that he will inform Parliament of the outcome of his Department's examination of the existing Schengen acquis.

  121.    We welcome the Home Office undertaking to notify Parliament of any decision to take part in the existing or future Schengen acquis. As the United Kingdom has not been a party to the Schengen Agreement and Parliament has not scrutinised the measures already adopted it is crucial that any measure which it is intended to accept is deposited in Parliament in time to enable it to consider and comment on the desirability or otherwise of agreeing to apply the measure in the United Kingdom. We recommend that such measures should be treated in the same way as proposals for new legislation under either the Community Pillar or the Third Pillar and that the Government should make any application to participate in Schengen measures subject to Parliamentary scrutiny.

  122.    We welcome the Home Office undertaking to keep Parliament informed of the outcome of any application to participate in Schengen activity.

ARTICLE K.6 AND THE DECLARATION ON ARTICLE K.6(2)

  123.    A new Article K.6 (which will replace the existing Article K.3) will outline the consultation and decision-making processes to apply under the revised Third Pillar. In the new text "Joint Actions" will become "Common Positions". A new category of "framework decisions", similar in nature to Directives under the EC Treaty but without direct effect, will be used "for the purpose of approximation of the laws and regulations of the Member States". They will be binding upon the Member States as to the result to be achieved but will leave it up to national authorities to decide the appropriate form and method of implementation. There will also be a category of "other Decisions" covering any other purpose consistent with the objectives of the Third Pillar. Conventions will also be drawn up under the Third Pillar. However, conventions would be capable of entering into force once ratified by half the Member States. A Declaration on Article K.6(2) provides for the publication of Third Pillar proposals in the Official Journal of the European Communities in accordance with "the relevant rules of procedure of the Council and the Commission".

  124.    The Home Office outlined the present procedure applied in deciding whether or not to publish a Third Pillar proposal. The decision whether or not to publish an agreed Third Pillar measure is taken by unanimity in each case at the time of adoption[53]. If there is to be a general practice of publication, as required by the Declaration to Article K.6(2), the Council Rules of Procedure will require amendment. Since Third Pillar initiatives often emerge gradually and informally from Member States rather than as a formal Commission proposal, the Council will also need to determine at what point the initiative should be published. The Home Office did not believe that the Declaration would have much impact on the Parliamentary scrutiny process since Third Pillar proposals falling within the scrutiny criteria would be made available to the scrutiny committees regardless of their official publication. The Home Office recognised, however, that the Declaration should increase public access to Third Pillar initiatives before they are adopted, subject to the terms of the Council rules governing access (p 17).

  125.    Mrs Neyts-Uyttebroeck, MEP, welcomed the inclusion of framework decisions within the new Article K.6. These had the advantage of being clearly defined legal instruments which would impose binding obligations on Member States. She expressed concern about the legal status of common positions[54] and suggested that there would have to be careful consideration of the possibilities for Parliamentary control and overview of these. Security concerns should not override the need to protect fundamental liberties (QQ 284-6).

Opinion

  126.    The Committee welcomes the reclassification of the instruments to be applied under the Third Pillar. As many witnesses indicated during the course of the enquiry, the existing instruments (joint actions and joint positions) have unclear legal status and often give rise to disagreements among Member States on the binding character of certain rules. Furthermore, the uncertain status of Third Pillar instruments has given rise to problems in identifying matters which fall within the terms of the Government's undertaking to Parliament. The Committee believes that the new classification set down in Article K.6(2) will assist both the Government and Parliament in identifying the documents to be deposited for scrutiny.

  127.    We share the view expressed by Mrs Neyts-Uyttebroeck, MEP, that there must be Parliamentary oversight of common position texts. This is particularly important because of their exclusion from the documents to be transmitted to the European Parliament for consultation. National Parliaments will have to fill this vacuum and ensure that their Parliamentary scrutiny arrangements are broad enough to catch these documents.

  128.    We welcome the new provisions in Article K.6.2(d) on conventions to be adopted under the Third Pillar. Allowing conventions to enter into force once a minimum number of Member States have completed their ratification procedures is consistent with the practice followed in other international fora such as the Council of Europe.

  129.    We note the comments made by the Home Office in relation to the Declaration on Article K.6(2). If the publication of Third Pillar proposals in the Official Journal of the European Communities is to have any practical significance for interested third parties, then it must take place at the earliest possible stage of the legislative process to enable interested parties to consider the proposal and make submissions either to the relevant Government Departments directly or to their national parliaments.