6 Schengen Information System
| (a)
(26638)
9942/05
COM(05) 230
(b)
(26639)
9943/05
COM(05) 236
(c)
(27249)
5709/06
—
(d)
(27250)
5710/06
—
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Draft Decision on the establishment, operation and use of the second generation Schengen Information System (SIS II)
Draft Regulation on the establishment, operation and use of the second generation Schengen Information System (SIS II)
Redraft of the proposed Regulation
Redraft of the proposed Decision
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| Legal base | (a) and (d) Articles 30(1)(a) and (b), 31(1)(a) and (b) and 34(2)(c) EU; consultation; unanimity
(b) and (c) Articles 62(2)(a) and 66 EC; co-decision; QMV
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| Deposited in Parliament | (c) and (d) 2 February 2006
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| Department | Home Office |
| Basis of consideration | (c) and (d) EMs of 7 March 2006
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| Previous Committee Report | (a) and (b) HC 34-iv (2005-06), para 14 (20 July 2005)
(c) and (d) None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | (a) and (b) Cleared
(c) and (d) Not cleared; further information requested
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SIS I and II
6.1 The main aim of the Schengen Convention of 1990 was to abolish
checks at the borders between the signatory States while strengthening
control of the external borders of the Schengen area. In addition,
the Convention and subsequent measures contain provisions on police
and judicial co-operation for the detection and prosecution of
serious cross-border crime. The collective name for the Convention
and subsequent agreements is "the Schengen acquis".
The UK is not part of the Schengen area and does not participate
in the immigration and border control provisions of the acquis,
but it does participate in the provisions on police and judicial
cooperation.
6.2 The present Schengen Information System (SIS I) dates from
1995. It contains information about, for example, people wanted
for arrest or extradition, third country nationals to be denied
entry, missing persons, and stolen vehicles, firearms and other
property. It comprises a central database and national databases.
The system is capable of serving a maximum of 18 States.
6.3 In 2001, the Commission was given a mandate to develop the
second generation of the Schengen Information System (SIS II).[24]
The purpose of SIS II is to enable up to 30 States to participate
in the System and to include biometric data in the information
it holds. In addition to the Member States, Iceland, Norway and
Switzerland will take part in SIS II, which is due to become operational
in 2007.
Previous scrutiny of documents (a) and (b)
6.4 Document (a) is a draft Decision on the police and judicial
co-operation aspects of SIS II. Document (b) is a draft Regulation
concerned with the immigration aspects.
6.5 Separate measures are required because the legal bases for
the provisions on police and judicial co-operation are in the
EU Treaty, whereas the legal bases for the immigration provisions
are in the EC Treaty.
6.6 The UK is excluded from the proposed Regulation because it
does not take part in the immigration provisions of the Schengen
acquis. But it has an interest in the text of the draft Regulation
for two reasons. The first arises from the possibility of the
UK having access to SIS II data for asylum purposes. The second
reason is that the draft Decision and the draft Regulation have
common provisions on matters such as the purpose, scope, architecture,
management and security of SIS II.
6.7 In addition to those common provisions document (a) includes
specific provision on the information which may be entered on
SIS II about people wanted for arrest, extradition, appearances
as witnesses in criminal proceedings and about the surveillance
of people or objects (such as stolen vehicles, identity papers,
money or firearms).
6.8 In addition to the provisions it has in common with document
(a), document (b) specifies the conditions under which information
may be entered on SIS II about third country nationals to be refused
entry to the territory of the Member States, and has provisions
about access to the data and the retention, processing and protection
of the information.
6.9 The Home Secretary (Mr Charles Clarke) told us that the Government
welcomed the draft Decision. He also told us about the main issues
on which the discussions between Member States were likely to
focus, such as the data protection arrangements and the proposals
for the management of SIS II.
6.10 When we considered the documents in July 2005, it was our
opinion that the most important objective of the negotiations
on these documents should be to find a proper balance between
the protection of personal data and civil liberties, on the one
hand, and the needs of law enforcement, on the other.[25]
We noted that the negotiations had only just begun. We decided,
therefore, to hold documents (a) and (b) under scrutiny pending
the progress reports the Home Secretary had promised to send us.
Documents (c) and (d)
6.11 During the UK's Presidency of the Council, some Member States
expressed reservations about the extent to which documents (a)
and (b) departed from the text of the Schengen Implementing Convention.
As a result, the Austrian Presidency has produced revised drafts
of the Decision and Regulation which more closely reflect the
terms of the Convention.
6.12 The amendments are extensive. Most do not significantly change
the substance of the proposals. But there are three major changes,
the first two affecting the draft of both the Decision and the
Regulation while the third affects only the draft Regulation.
6.13 First, responsibility for the management of SIS II would
not be vested in the Commission (as proposed in documents (a)
and (b)); it would be the responsibility of a Management Authority
designated by the Council.
6.14 Second, oversight of SIS II would be the responsibility
of a Joint Supervisory Board (in accord with the Schengen Implementing
Convention), not the European Data Protection Supervisor as proposed
in documents (a) and (b).
6.15 Third, Article 17 of the draft Regulation has been amended.
It specifies which authorities may have access to SIS II. Document
(b) proposed that access should be open to the authorities responsible
for:
- border checks;
- issuing visas and residence permits;
- identifying whether a third country national is staying illegally
in a Member State;
- identifying whether an applicant for asylum in one Member
State has stayed illegally in the territory of another Member
State; and
- deciding whether an asylum seeker is a threat to public order
or internal security.
6.16 Article 17 of document (c) proposes that, in addition to
the authorities listed in the previous paragraph, the following
should also have access to SIS II :
- the authorities responsible for "other police and customs
checks carried out within the country, and the coordination of
such checks";
- "national judicial authorities, inter alia, those responsible
for the initiation of public prosecutions in criminal proceedings
and judicial inquiries, prior to indictment, in the performance
of their tasks"; and
- the authorities responsible for "the administration of
legislation on third country nationals in the context of the application
of the Community acquis relating to the movement of persons".
The Government's view
6.17 The Minister of State at the Home Office (Hazel Blears) says
that the Government can broadly support the proposal to amend
the drafts of the Decision and Regulation so that they reflect
the terms of the Schengen Implementation Convention more closely.
But it will be seeking clarification of, or amendment to, some
of the changes incorporated in documents (c) and (d).
6.18 The Government has not yet reached a view on the proposals
to make a Management Authority responsible for running SIS II
and for a Joint Supervisory Board to have oversight of the operation
of the System.
6.19 Commenting on Article 17 of document (c), the Minister says
that the Government considers that it would be very helpful to
have access to SIS II data in order to determine which Member
State is responsible for deciding an asylum application and whether
an applicant is a threat to public order or internal security.
The Government will press for the UK asylum authorities to be
given access to SIS II data because the UK participates in the
Community legislation on asylum on the same terms as other Member
States.
6.20 The Government will also seek clarification of the drafting
of Article 17 to remove any doubt about which authorities are
to have access to the data and the purposes for which they are
to have it.
6.21 Finally, the Minister tells us that her Department has sent
the Information Commissioner a copy of documents (c) and (d).
Conclusion
6.22 We are grateful to the Minister for her comprehensive
and helpful Explanatory Memorandum.
6.23 The data protection provisions of the proposal remain
our main concern. We ask the Minister to tell us, therefore, what
comments she receives from the Information Commissioner and the
outcome of her consideration of the proposal to give a Joint Supervisory
Board oversight of the operation of SIS II.
6.24 We share the Minister's view that the drafting of some
of the provisions of the revised texts of the draft Decision and
Regulation need clarification. We ask her to tell us what improvements
the Government is able to achieve and to provide us with further
progress reports on the negotiations.
6.25 Documents (a) and (b) have been superseded by the revised
texts and so we clear them from scrutiny. We shall keep documents
(c) and (d) under scrutiny pending receipt of the further information
for which we have asked.
24 Council Regulation (EC) No. 2424/2001, OJ No. L
328, 13.12.2001, p.4; and Council Decision No. 2001/886/JHA, OJ
No. L 328, 13.12.2001, p.1. Back
25
See headnote. Back
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