Cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee for Exiting the European Union
Commission Communication: First progress report towards an effective and genuine Security Union
(38176), 13442/16, COM(16) 670
14.1In his State of the Union speech in September, the President of the European Commission (Jean-Claude Juncker) made clear that security remained at the top of the Commission’s political priorities:
“My Commission has prioritised security from day one—we criminalised terrorism and foreign fighters across the EU, we cracked down on the use of firearms and on terrorist financing, we worked with internet companies to get terrorist propaganda offline and we fought radicalisation in Europe’s schools and prisons. But there is more to be done.”
14.2In May, we reported on a Commission Communication which set out a roadmap of measures to develop “an effective and genuine Security Union”. Its broad aim was to reduce fragmentation and increase the capacity of Member States to respond to threats to their own internal security and to the collective security of the EU as a whole. Since then, the UK has voted to leave the EU, the UK’s EU Commissioner (Jonathan Hill) has resigned and his successor—Julian King—has been appointed to a new portfolio, Commissioner for the Security Union, with a mandate to focus on “concrete operational measures where the action of the EU can have an impact—and where we can show that this does not compromise our commitment to fundamental rights and values”. One of his key tasks will be to ensure the swift implementation of the measures outlined in the Communication on the Security Union. Commenting on the Commission’s first progress report, he made clear that:
“Terrorists don’t target one Member State or another. They target our way of life, our openness, our future. Our response needs to be comprehensive and sustainable, building on trust and effective cooperation between institutions and Member States.”
14.3This latest Commission Communication is the first in a series of monthly reports tracking the progress made towards achieving “an operational and effective Security Union”. The reports will highlight action already taken and areas in which further efforts are needed to combat terrorism and organised crime and improve the EU’s resilience to threats to its internal security. The key elements of the Commission’s first progress report and its priorities for the coming months are reproduced in the Annex to this chapter.
14.4The Security Minister (Ben Wallace) explains that the Security Union is “a collection of initiatives that share the general objective of increasing the security of the European Union”. He highlights the Government’s “leading role” in supporting EU efforts to improve security and considers that many of the actions set out in the Communication “have the potential to significantly increase the security of all EU citizens”, but adds:
“The Government is also clear that any notion of a ‘Security Union’ must not go beyond the Union’s competence. The EU Treaties set out that the EU must respect Member State functions, including maintaining law and order and safeguarding national security, and it has been a UK priority to insist on the supremacy of the Council in defining the EU’s priorities in this area.”
14.5The context for scrutinising this first progress on implementing the Security Union has been transformed by the UK’s decision to leave the EU. In October, the Secretary of State for Exiting the European Union (Mr David Davis) told the House that one of the Government’s aims for the Brexit negotiations would be to “keep our justice and security arrangements at least as strong as they are”. The Minister’s Explanatory Memorandum is a missed opportunity to explain how the Government intends to achieve this goal. It is simply not tenable to reiterate that “all the rights and obligations of EU membership remain in force” while the UK remains a member of the EU without attempting to sketch out a longer-term perspective for the UK’s future law enforcement cooperation with other EU Member States once it has left the EU.
14.6We draw attention to the Minister’s observations on the EU Policy Cycle—“an effective mechanism” for improving law enforcement cooperation in tackling serious and organised crime—and his recognition of the need to “make optimal use of the services and opportunities offered by agencies like Eurojust” to support cross-border investigations and prosecutions. He also acknowledges the valuable work undertaken by Europol, including through the European Cybercrime Centre and the European Counter-Terrorism Centre, and the benefits for the UK of “increased data sharing and coordination of law enforcement bodies” through the Prüm framework (DNA profiles, fingerprints and vehicle registration data) and through the exchange of information derived from passenger name record data.
14.7We have previously asked the Government to indicate when it intends to consult Parliament on its decision whether or not to opt into the new Europol Regulation (which will take effect next May) and to explain what impact a decision not to opt in would have on the UK’s continuing participation in Europol while the UK remains a member of the EU. We would also like to hear whether, in principle, the Government wishes to maintain as close a relationship as possible with Europol and with Eurojust once the UK has left the EU “in order to keep our justice and security arrangements at least as strong as they are” and how this could be achieved.
14.8In separate correspondence with the Government, we have sought further information on possible models of cooperation to enable the UK to continue to participate in the Prüm framework once the UK has left the EU. We ask the Minister whether he can confirm that, in principle, the Government would wish UK law enforcement authorities to have the possibility to share DNA profiles, fingerprints and vehicle registration data with their counterparts in other Member States post-Brexit. Can he also confirm that concluding an agreement on the sharing of passenger name record (PNR) data with EU partners would also be a priority, given the “vital role” the data play in criminal investigations?
14.9We are content to clear the Communication from scrutiny but draw it to the attention of the House as an illustration of the issues which the Government will need to address in developing its strategy for law enforcement cooperation with EU Member States once the UK’s withdrawal from the EU takes effect. We ask the Minister to provide a full and timely response to the questions we have raised. We consider that this chapter will be of particular interest to the Home Affairs Committee and the Committee for Exiting the European Union.
14.10Our earlier Reports listed at the end of this chapter provide a comprehensive overview of earlier Commission Communications proposing A European Agenda on Security and setting out a roadmap of measures to develop “an effective and genuine Security Union”.
14.11In his Explanatory Memorandum of 2 November, the Minister makes clear that, until negotiations on the UK’s withdrawal from the UK have concluded, “the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation”. He sets out the Government’s position on each of the areas of action covered by the Commission Communication.
14.12The measures set out in this part of the Communication are intended to deprive terrorists of the material support which underpins their activities—funding, firearms and access to precursor substances used in homemade explosives. The Commission urges the Council and European Parliament to conclude negotiations by the end of the year on two current proposals, one seeking to strengthen the legal framework for combating terrorism, the other to limit civilian access to the most dangerous firearms. The Minister observes:
“The UK continues to support international collaborative efforts to tackle the foreign fighter threat, and broadly supports the aims of the Directive on Combating Terrorism. The UK did not opt back in to the EU Framework Decision 2002/475/JHA on combating terrorism (which this Directive would replace) under our Protocol 36 decision in December 2014 and is therefore not bound by its provisions. The Directive, which is currently being negotiated, aims to strengthen the provisions of the existing Framework Decision and to build on the Additional Protocol to the 2005 Council of Europe Convention on the Prevention of Terrorism (which the UK signed in our own right on 22 October 2015) as well as the 2005 Convention itself. The UK has signed both the Convention and its Additional Protocol but has not ratified either of them. The Directive also seeks to ensure further compliance with the provisions of UN Security Council Resolution 2178 on tackling foreign fighters, with which the UK is already compliant.”
14.13The Minister supports the EU Action Plan (agreed last December) to strengthen operational cooperation in tackling illicit trafficking in, and use of, firearms and explosives and notes that the UK is playing a leading role in taking forward a number of the actions. He says that the UK is also “actively engaged” in efforts to implement common minimum standards on the deactivation of firearms so that they are rendered “irreversibly inoperable” and in bringing negotiations on proposed changes to the EU Firearms Directive to a successful conclusion before the end of the year. He welcomes the progress made so far, “fully supports the Commission’s objective to ban the most dangerous types of semi-automatic weapons”, but cautions that “a number of other Member States do not want to go this far” and says that the Government “would not want to see any weakening of the text”.
14.14The Minister supports “strong action” to tackle illicit finance and agrees with the aims of the changes proposed by the Commission to the Fourth Anti-Money Laundering Directive but says that the Government is considering the proposal carefully to ensure that it is both “effective and proportionate”. He also “strongly supports” the Commission’s efforts to reduce terrorist access to precursors that can be used in the illicit manufacture of explosives and to strengthen explosives detection capabilities. He comments:
“The UK is fully compliant with EU Regulation 98/2013 on the marketing and use of explosives precursors and has been working with the Commission to support other Member States in resolving remaining issues identified with implementation. The UK recognises the need for the policy to address constantly evolving threats and in light of this supports the addition of substances to the Regulation and the review of European rules to be reported in early 2017.”
14.15The Commission calls for the “urgent implementation” of measures set out in an earlier Communication on preventing radicalisation and violent extremism. It also provides an update on the progress made in tackling online radicalisation and terrorist propaganda through the EU Internet Forum (involving industry and civil society) and the Code of Conduct agreed by IT companies on the removal of illegal hate speech. The EU Radicalisation Awareness Network has developed counter-narratives to extremist propaganda and is expanding its work in third countries, such as Turkey and Jordan. Commenting on projects to tackle radicalisation within prisons, the Minister observes:
“The UK is clear that prisons need to be places of security and reform. Tackling extremism in prison requires dealing with a wide range of offenders, from highly motivated terrorists convicted of extremely serious offences, to prisoners with mental health issues or other vulnerabilities who may be susceptible to extremist ideology. We are refreshing our approach to counter-extremism in prisons and probation so that our efforts are resilient and responsive both to existing and future imperatives. We of course agree with the need to share experience with all European partners to enable all partners to respond to the threat as effectively as possible.”
14.16The Commission highlights Eurojust’s “key role” in supporting cross-border operational cooperation in the aftermath of recent terrorist attacks in Belgium and France. The Minister comments:
“The Government agrees that we must make optimal use of the services and opportunities offered by agencies like Eurojust, in accordance with its remit. This should be where they can add value and subject to the principle that the data owner retains control of their data. Eurojust can add value through timely coordination meetings between law enforcement and prosecution authorities to exchange information with a view to taking decisive action including in terrorism cases.”
14.17The EU’s current Policy Cycle, which gives priority to ensuring effective cooperation to tackle the most serious criminal threats, will expire in 2017. The Minister supports the Commission’s call for its renewal and strengthening, noting:
“The UK has ensured that its thematic priorities in relation to serious organised crime are reflected within the European Policy Cycle, and participates in all thirteen current (2014-2017) EMPACT priorities. This has been achieved through very active participation within the COSI (Standing Committee on Internal Security) and EMPACT (European Multidisciplinary Platforms Against Criminal Threats) forums. The UK views the Policy Cycle as an effective mechanism in which to improve law enforcement coordination with EU Member States and wider third parties on the serious and organised crime types most impacting upon UK security. These include the trafficking of human beings, drug smuggling, firearms trafficking, child sexual exploitation online and cybercrime. The UK considers it important that these threats are continued to be addressed by EU Member States at the end of this current Policy Cycle, and that any future action is flexible enough to meet the evolving threats.”
14.18The Minister also supports the EU’s efforts to improve “cross-sector and cross-border cooperation against cybercrime”, drawing on the expertise of the European Cybercrime Centre within Europol. He adds:
“We encourage European efforts to address challenges that would contribute to stronger information sharing, partnerships, and joint working with regard to cyber crime operations. The UK also recognises the importance of electronic evidence and so supports work to improve the efficiency of current mechanisms to obtain cross-border access to such evidence for example through Mutual Legal Assistance. The UK also responds to the Commission’s consultations, contributing material on encryption and improving criminal justice in cyber space.”
14.19The Commission underlines the importance of the Prüm framework—a package of three EU measures establishing rules for the automated exchange of DNA profiles, fingerprints and vehicle registration data—in strengthening cooperation on terrorism and serious crime and says it is taking action against Member States which have failed to implement it. The Minister observes:
“The UK rejoined the EU legislation governing Prüm this May, after both Houses of Parliament agreed last December that we should do so. The Government is committed to implementing our obligations under this legislation, with a view to starting to exchange DNA, fingerprints and Vehicle Registration Data with at least one other Member State by the end of 2017.”
14.20Despite adopting a Directive providing for the use of passenger name record (PNR) data to support investigations into serious crime earlier this year, the Commission highlights “a lack of processing capacity in the majority of Member States” which has hampered the setting up of Passenger Information Units. It intends to develop detailed implementing rules later this year and provide legal, technical and financial support so that all Member States are able to implement the Directive by the deadline of May 2018. The Minister emphasises the importance of using PNR data for law enforcement purposes:
“Processing Passenger Name Records (PNR) allows authorities to identify and respond proactively to travel by individuals who are, or may be, involved in terrorism-related activity and serious and organised crime. PNR plays a vital role in intelligence-led operations, post-incident investigations and judicial proceedings. As the Commission acknowledges the UK is currently the only EU Member State with the legal, technical and operational capability in place to process PNR and, in the National Border Targeting Centre, to have a fully functioning Passenger Information Unit. The UK is supporting the work of the Commission to adopt the implementing rules and is making its expertise available to the other Member States as they develop their own capabilities which will enable the UK to be better able to investigate and share information about international travellers and travel patterns.”
14.21The Commission expects Europol to increase its support for information exchange through the creation of an additional 90 posts and, following a thorough needs assessment, extra resources to enable the European Counter-Terrorism Centre (based in Europol) to operate around the clock. The Minister comments:
“We support Europol’s efforts to assist Member States in addressing the key security threats emanating from firearms, finance, the internet, and serious and organised crime. We accept information-sharing on travellers in accordance with the Europol Regulation, although we are clear that any activity by Europol must remain within its remit, which has a clear focus on law enforcement cooperation. We should ensure maximum use of our liaison officer network in The Hague to share information on key security threats, including CT. We are clear that it should not expand its role into CT intelligence operations and investigations beyond its existing remit.”
14.22The Minister notes that the UK did not take part in the Bratislava Summit of EU leaders in September which agreed a Declaration and Roadmap identifying various measures to support Member States’ efforts in ensuring internal security and fighting terrorism. The measures included closer cooperation amongst Member States’ security services and better exchange of information between intelligence and law enforcement communities. The Minister nevertheless observes:
“The UK supports efforts to enhance cooperation through information exchange between intelligence and law enforcement communities that enables disruption and detention of criminal and terrorist activities, while avoiding duplication and, importantly, respects Member States’ responsibility for national security. The UK continues to play a full and active role in discussions on these issues in the EU, including through the Council’s Committee on Internal Security (COSI).”
14.23The Commission’s High Level Expert Group is exploring the legal, technical and operational aspects of various options for improving the interoperability of information systems relevant to border control and security, as well as the “added value” of developing a “single search interface”. The Minister comments:
“The UK awaits more details around the plans to improve the overall architecture of information in the field of security. It recognises that the EU has a role to play in addressing criminal and terrorist threats through increased data sharing and coordination of law enforcement bodies, but emphasises that any developments should enhance ongoing efforts such as the implementation of the roadmap on data sharing agreed at the JHA Council in June 2016 and continue to respect the principle that National Security remains the sole responsibility of Member States.
“The Government supports the work of the High Level Expert Group (HLEG) and is represented on it by a senior official. We have used this to call for steps to improve the quality of the data that Member States upload to EU systems. A single search interface, allowing Member States to interrogate multiple EU databases with a single query, could be useful, but it is important that its design respects the structure of Member States’ law enforcement and immigration IT systems and avoids unnecessary implementation costs.”
14.24The Commission confirms its intention to publish a proposal for an EU Travel and Information Authorisation System (ETIAS) in November providing for pre-departure checks on nationals of third (non-EU) countries who do not require a visa to travel to the Schengen free movement area. Whilst welcoming “additional proposals to increase scrutiny of, and further secure, the external Schengen border”, the Minister says that the Government will examine the ETIAS proposal closely once further details are available.
14.25The European Border and Coast Guard became operational on 6 October and will work with Europol in migration hotspots established in Greece and Italy to strengthen security screening at the EU’s external borders. The Minister explains that the UK did not take part in and is not bound by the Regulation establishing the European Border and Coast Guard but says that the Government supports its efforts to improve border security. He continues:
“The new Regulation carries over the text from the previous Frontex Regulation which enables the UK to continue to participate in operations and other activities on an ad hoc basis and by mutual consent. It also allows us to maintain our seat at the Management Board as a non-voting observer. In the longer term, our future cooperation with the European Border and Coast Guard Agency will be considered as part of wider negotiations for the UK’s exit from the EU.”
14.26The UK similarly does not participate in the Schengen Borders Code. The Commission calls on the Council and European Parliament to reach agreement on a proposal to strengthen checks at the EU’s external borders before the end of the year. It also urges them to accelerate work on a proposed new EU Entry-Exit System. The Minister comments:
“The UK supports the proposal for an EU Entry-Exit System (EES) which will record where and when a third country national enters or exits the EU. This is a further step towards increasing the security of the Schengen area but, as it is a Schengen building measure, the UK will not participate in the proposed new system.”
14.27The Commission’s priorities are to reduce vulnerability to terrorist attacks, strengthen resilience and protect citizens and critical infrastructure. It intends to develop an “insider threat toolbox” for use by Member States and industry and take further action to strengthen transport security. The Minister again reiterates that “Member States retain sole responsibility for national security” but adds:
“We continue to work closely with the EU on aviation security policy, to develop more responsive security rules across Europe, making air travel safer and reducing the risk to aviation.”
14.28Acting on our recommendation, he notes that the House agreed on 31 October to issue a Reasoned Opinion on the Commission’s recent proposal for a Regulation establishing a Union certification system for aviation security.
None, but our earlier Reports on the Commission Communication, The European Agenda on Security and the Commission Communication, Delivering on the European Agenda on Security to fight against terrorism and pave the way towards an effective and genuine Security Union are relevant: Third Report HC 71-ii (2016-17), (10 February 2016) and First Report HC 342-i (2015–16), (21 July 2015).(25 May 2016), Twenty-third Report HC 342-xxii (2015–16),
STRENGTHENING OUR FIGHT AGAINST TERRORISM AND ORGANISED CRIME, AND MEANS TO SUPPORT THEM
a)Legal framework for combatting terrorism and cutting access to financing and firearms
The European Parliament and the Council should continue the intense work on the proposal for a Directive on combatting terrorism to adopt the legislation before the end of the year.
The European Parliament and the Council should continue the discussions on the proposal to revise the Firearms Directive to reach an agreement before the end of the year.
The Commission will adopt in November three delegated acts on additional explosive precursors subject to enhanced controls.
b)Preventing and fighting radicalisation
Member States should make full use of the support offered by the Radicalisation Awareness Network (RAN).
The Commission will organise on 9 November 2016 the RAN High Level Conference on radicalisation.
STRENGTHENING OUR DEFENCES AND RESILIENCE
a)Improving information exchange
Member States should urgently take the necessary steps to build their Passenger Information Units (PIUs) to ensure that they are able to implement fully the EU PNR Directive by May 2018 at the latest.
The European Parliament and the Council should take the necessary steps to provide additional funding for the implementation of the EU PNR Directive.
The Commission will support the implementation of the EU PNR Directive and present an implementation plan by November 2016 with concrete milestones to gauge progress.
b)Strengthening information systems and closing information gaps
The Commission will provide an update to the European Parliament and the Council on the on-going work of the High Level Expert Group on Information Systems and Interoperability with a view to accelerating on-going work.
The Commission will table a proposal to establish an EU Travel and Information Authorisation System (ETIAS) by November 2016.
c)Enhancing security at the external border
The European Parliament and the Council should accelerate the discussions on the proposal to amend the Schengen Borders Code in order to reach an agreement by the end of 2016.
Europol should further enhance its presence in the migration hotspots through the deployment of guest officers.
d)Protecting citizens and critical infrastructures
Member States should implement best practices on insider threat and lessons learned from recent terrorist attacks for civil protection and emergency services.
75 See the , 14 September 2016.
76 See our Third Report HC 71-ii (2016–17), (25 May 2016).
77 See the sent to Julian King in August 2016.
78 See the European Commission’s of 12 October 2016 and its on the European Agenda on Security.
79 See p.2 of the Communication.
80 See para 15 of the Minister’s Explanatory Memorandum.
81 See the Minister’s on Next Steps in Leaving the European Union, Hansard, 10 October 2016, col.55.
82 See our Report on the Commission Communication, Enhancing security in a world of mobility: Thirteenth Report HC 71-xi (2016–17), (12 October 2016) and our Reports on the Commission Communication, Supporting the prevention of radicalisation leading to violent extremism: Eleventh Report HC 71-ix (2016–17), (14 September 2016) and Eighth Report HC 71-vi (2016–17), (13 July 2016).
83 See the of 26 October 2016 from the Chair of the European Scrutiny Committee to the Minister for Policing and Fire Services (Brandon Lewis).
84 See para 13 of the Minister’s Explanatory Memorandum.
85 See para 18 of the Minister’s Explanatory Memorandum. For further information on the proposed Directive on combating terrorism, see the following Committee Reports: Sixteenth Report HC 342-xv (2015–16), (6 January 2016), Twenty-third Report HC 342-xxii (2015–16), (10 February 2016) and Twenty-ninth Report HC 342-xxviii (2015–16), (20 April 2016).
86 See para 21 of the Minister’s Explanatory Memorandum and the following ESC Reports: Fifteenth Report HC 342-xiv (2015–16), (16 December 2015), Third Report HC 71-ii (2016–17), (25 May 2016) and Seventh Report HC 71-ix (2016–17), (6 July 2016).
87 See para 19 of the Minister’s Explanatory Memorandum. See also the following Committee Reports: Eleventh Report HC 71-ix (2016–17), (14 September 2016) and Fifteenth Report HC 71-xiv (2016–17), (26 October 2016).
88 See para 22 of the Minister’s Explanatory Memorandum.
89 See our Eighth Report HC 71-vi (2016–17), (13 July 2016) and our Eleventh Report HC 71-ix (2016–17), (14 September 2016).
90 See para 23 of the Minister’s Explanatory Memorandum.
91 See para 24 of the Minister’s Explanatory Memorandum.
92 See para 25 of the Minister’s Explanatory Memorandum.
93 See para 26 of the Minister’s Explanatory Memorandum.
94 For further information on Prüm, see our Twelfth Report, HC 342-xii (2015–16) Cross-border law enforcement cooperation—UK participation in Prüm, and our Eighth Report HC 71-vi (2016–17), (13 July 2016).
95 See para 28 of the Minister’s Explanatory Memorandum.
96 See para 29 of the Minister’s Explanatory Memorandum.
97 See the of 16 September 2016 and accompanying Roadmap.
98 See para 30 of the Minister’s Explanatory Memorandum.
99 See paras 31–2 of the Minister’s Explanatory Memorandum.
100 See para 33 of the Minister’s Explanatory Memorandum.
101 See our Twentieth Report HC 342-xix (2015–16), (20 January 2016), Twenty-fifth Report HC 342-xxiv (2015–16), (9 March 2016), Twenty-eighth Report HC 342-xxvii (2015–16), (13 April 2016), Sixth Report HC 71-iv (2016–17), (15 June 2016). Eleventh Report HC 71-xiv (2016–17), (14 September 2016) and Fifteenth Report HC 71-xiii (2016–17), (26 October 2016).
102 See para 34 of the Minister’s Explanatory Memorandum.
103 See our Twenty-first Report HC 342-xx (2015–16), (27 January 2016), Twenty-fifth Report HC 342-xxiv (2015-16), (9 March 2016), Thirty-second Report HC 342-xxxi (2015–16), (4 May 2016) and Ninth Report HC 71-vii (2016–17), (20 July 2016).
104 See our Third Report HC 71-ii (2016–17), (25 May 2016).
105 See para 36 of the Minister’s Explanatory Memorandum.
106 See our Fifteenth Report HC 71-xiii (2016–17), (26 October 2016) and , 31 October 2016.
21 November 2016