Documents considered by the Committee on 7 December 2016 Contents

8Exchanging information on criminal convictions

Summary and Committee’s conclusions

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union

Document details

Proposal for a Directive amending Council Framework Decision 2009/315/JHA as regards the exchange of information on third country nationals and as regards the European Criminal Records Information System (ECRIS) and replacing Council Decision 2009/316/JHA

Legal base

Article 82(1)(d) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(37463), 5438/16 + ADDs 1–2, COM(16) 7

8.1The European Criminal Records Information System (ECRIS) enables Member States to exchange information on the criminal convictions of EU citizens. Maintaining a complete record of previous convictions can make an important contribution to public safety, ensuring that criminals cannot escape their criminal past by offending in a different Member State. The proposed Directive seeks to make ECRIS a more effective tool for the exchange of criminal records by including a new mechanism for sharing details of the offending history of third country (non-EU) nationals within the EU.

8.2The UK participates in the current ECRIS system. The Government informed us in May that it had decided to opt into the proposed Directive. In October, the Minister for Policing and the Fire Service (Brandon Lewis) told us that the original model proposed by the Commission—a decentralised system in which information on the convictions of third country nationals would be held on interconnected systems at national level—was not technically feasible. Justice and Home Affairs Ministers had therefore agreed in June to continue work on the basis of a centralised system in which ‘pseudonymised’ data would be held centrally to reduce the number of transmissions required and increase efficiency. We asked the Minister whether a centralised approach would increase the costs of ECRIS for the UK and by how much.

8.3We noted that the Presidency had mooted the idea of a Regulation instead of a Directive to implement the proposed changes. We asked the Minister whether Justice and Home Affairs Ministers had agreed in June that a Regulation would be necessary and, if so, to set out the next steps. In particular, did he expect the Commission to withdraw its current proposal? Could he confirm that any new proposal for a Regulation to establish a centralised system would be subject to the UK’s Title V (justice and home affairs) opt-in and require a separate opt-in decision? What assessment had he made of the likelihood that changes to ECRIS would be agreed and implemented before the UK leaves the EU, and would the Government wish to participate in ECRIS following its withdrawal from the UK? If so, was there any existing mechanism to enable third (non-EU) countries to do so?

8.4We reminded the Minister that we also expected to hear how the concerns identified in his predecessor’s Explanatory Memorandum, for example on the handling of “spent” convictions, the mandatory storage of the fingerprints of convicted third country nationals, the mechanism for exchanging fingerprints, and the treatment of dual nationals were being addressed in the negotiations.

8.5We note that the Government intends to produce a full impact assessment when the Commission publishes its proposal for a new centralised information system early next year and ask the Minister to share it with us once it has been completed. If a new Regulation is proposed, or if the Commission formally amends its current proposal, it is clear that a fresh opt-in decision will be required. Although the Minister is unwilling to speculate on whether the proposed changes to ECRIS are likely to be agreed and implemented before the UK leaves the EU, we consider that timing will be a relevant factor in deciding whether or not to opt in, particular if opting in would involve substantial additional costs for the UK without any assurance that the UK could continue to participate in ECRIS once it has left the EU. The Minister does not tell us whether the Government would wish to participate in ECRIS after leaving the EU. He will need to do so if a further opt-in decision is required.

8.6The Minister indicates that other options are being considered to allow “the proactive sharing of convictions data” outside the ECRIS system. We would welcome further information on the options under consideration and the extent to which they would be likely to be available to the UK once it has left the EU.

8.7We ask the Minister to provide regular updates on the progress of negotiations or any new or amended proposals put forward by the Commission. Meanwhile, the proposed Directive remains under scrutiny. We draw the latest developments to the attention of the Home Affairs Committee and the Committee on Exiting the European Union.

Full details of the documents

Proposal for a Directive amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA: (37463), 5438/16 + ADDs 1–2, COM(16) 7

Background

8.8Our earlier Reports (listed at the end of this chapter) provide a detailed overview of the proposed Directive and the Government’s position.

The Minister’s letter of 21 November 2016

8.9The Minister explains that the Commission has carried out an analysis of the potential costs involved in setting up a centralised ECRIS system:

“The analysis suggests that a centralised system is likely be less expensive for Member States to operate than a decentralised system and observed that both the initial setup and annual maintenance costs are likely to be lower.

“The exact costs will be dependent on the specifications for the system which we expect to be set out in a Commission proposal in early 2017. The Home Office has already committed to working with the Ministry of Justice to produce a full impact assessment of the new system once the legislation has been published.”

8.10The Minister says that Justice and Home Affairs Ministers “took stock of progress made at working level” at their meeting in June and supported the change of approach from a decentralised operating model to a centralised one. He adds:

“However, the merits of whether a Regulation, rather than an amending Directive, is required to achieve this change were not discussed. Member States are awaiting clarification from the Commission as to how they will seek to implement a centralised system.”

8.11Following the June Council meeting, the Slovakian Presidency cancelled all working groups on the Commission proposal. It is as yet unclear whether the Commission will withdraw its original proposal or decide to proceed “by way of parallel proposals for the Directive and a Regulation”. The Minister continues:

“Once any new legislation has been brought forward by the Commission, I will consider whether the opt-in applies and the Committees will receive an Explanatory Memorandum in the usual way.”

8.12The Minister is unwilling to speculate on whether changes to ECRIS will be agreed and implemented before the UK leaves the EU but undertakes to keep us informed of progress. Nor does he indicate whether the Government would wish to participate in ECRIS following the UK’s withdrawal from the EU. He recognises that the ECRIS legislation “does not explicitly provide for the possibility of third country agreements” but adds:

“The EU could conclude an agreement with a third country to exchange criminal records. At present, however, there are no countries other than EU Member States participating in ECRIS.”

8.13The Government previously indicated that it intended to seek further information on the impact that the different times at which convictions become ‘spent’ in different Member States would have on the proposal. The Minister comments:

“The Government remains of the view that retaining access to ‘spent’ convictions would be beneficial. However, other Member States do not take the same view in relation to ECRIS and, to date, we have not been able to gain any significant traction on negotiations in this area. The June Justice and Home Affairs Council endorsed a Roadmap to enhance information exchange and information management, including interoperability solutions in the Justice and Home Affairs area (provided separately), which called for work to ‘consider solutions (other than the ECRIS system) to allow the proactive sharing of convictions data, in particular relating to terrorism; and, as appropriate, assess the legal and practical feasibility of implement[ing] a solution which includes making certain convictions data available to the relevant authorities’. As such, we remain hopeful that progress can be made on this issue.”

8.14The Minister reiterates the Government’s support for the mandatory storage of the fingerprints of third country nationals (TCNs), adding:

“The current proposal reflects the fact that all Member States will be compelled to collect the fingerprints of convicted TCNs under the new system. During negotiations the majority of other Member States have been supportive of this element of the proposal.”

8.15The Government had indicated that some Member States had concerns about the way in which the changes proposed to ECRIS would be applied to dual nationals. The Minister comments:

“A majority of Member States supported the UK’s position in negotiations, as did the LIBE Committee [the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs]. I am therefore hopeful that we will see dual nationals treated as TCNs in any new proposal.”

8.16The Minister provides us with a copy of the Roadmap to enhance information exchange and information management, including interoperability solutions in the Justice and Home Affairs area which was published by the Dutch Presidency in June. He does so on the basis that the Roadmap is made available “under the Government’s authority and arrangements agreed between the Government and the Committee for the sharing of EU documents carrying a limité marking. It cannot be published, nor can it be reported on in any way which would bring detail contained in the document into the public domain”. He adds:

“The Roadmap focuses on three broad themes: information exchange, identifying individuals connected to terrorism and terrorist related activity, and border management and migration. The Council’s Committee on Internal Security (COSI) has been charged with overseeing the implementation of the Roadmap.”

Previous Committee Reports

Fourteenth Report HC 71-xii (2016–17), chapter 4 (19 October 2016), Fourth Report HC 71-iii (2016–17), chapter 6 (8 June 2016) and Twenty-fourth Report HC 342-xxiii (2015–16), chapter 10 (24 February 2016).





9 December 2016