Legally and politically important
(a) and (c) Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee, the Justice Committee and the Committee on Exiting the European Union; (b) Cleared from scrutiny
(a) 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
(b) Commission report concerning the exchange through the European Criminal Records Information System (ECRIS) of information extracted from criminal records between the Member States
(c) Proposal for a Regulation establishing a centralised system for the identification of Member States holding conviction information on third country nationals and stateless persons (TCN) to supplement and support the European Criminal Records Information System (ECRIS-TCN system) and amending Regulation No 1077/2011
(a) and (c) Article 82(1)(d) TFEU, ordinary legislative procedure, QMV
(a) (37463), 5438/16 + ADDs 1–2, COM(16) 7
(b) (38890), 11011/17 + ADD 1, COM(17) 341
(c) (38886), 10940/17 + ADD 1, COM(17) 344
22.1The European Criminal Records Information System—ECRIS—enables Member States to exchange information on the previous convictions of EU citizens. Obtaining 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 UK has participated fully in ECRIS since it became operational in April 2012.
22.2ECRIS is a decentralised system, meaning that Member States must be notified of any criminal convictions recorded against their nationals elsewhere in the EU and include these in their national criminal records systems. Each Member State operates as a central repository for all criminal record information concerning its nationals. This information can be used in criminal proceedings, such as bail hearings or for sentencing, and for other purposes, such as checking the criminal record of individuals seeking a firearms licence or applying for a job involving vulnerable groups, especially children.
22.3ECRIS can also be used to obtain details of previous convictions recorded against third country national offenders in the EU. As, however, there is no central criminal records repository, a Member State seeking a full criminal history must send a request for information to all other Member States. Few choose to do so in practice as the administrative burden of sending blanket requests, as well as the danger of clogging up the ECRIS system, outweighs the benefits.
22.4EU leaders have underlined the need for the “systematic sharing of criminal records data for people connected to terrorism (and serious and organised crime) and the extension of ECRIS to third country nationals” to strengthen the EU’s response to the heightened terrorist threat. In early 2016, the Commission proposed a Directive—document (a)—establishing a mechanism for identifying Member States holding relevant criminal records information on third country offenders. The Government informed our predecessors in May 2016 that it had decided to opt into the proposal. Since then, a feasibility study has revealed that the Commission’s original decentralised model in which information on the convictions of third country nationals would be held on interconnected systems at national level would be too burdensome technically and administratively. In light of this information, EU justice and home affairs Ministers agreed in June last year to continue work on a centralised system which would be more cost-effective and efficient.
22.5The proposed Regulation—document (c)—is intended to supplement the Directive proposed in 2016. It would establish a centralised EU information system containing biographical information, fingerprints and facial images of third country national offenders who have been convicted of a criminal offence in the EU. This central system—ECRIS-TCN—would enable a Member State to discover whether any relevant criminal records information is held elsewhere in the EU and, if it is, to obtain access to that information by submitting a request to the relevant Member State(s) through the decentralised ECRIS system.
22.6The proposed Regulation is accompanied by a Commission report—document (b)—providing statistical data on Member States’ use of ECRIS since its creation in 2012 until the end of 2016. The report demonstrates that the UK is one of the most active participants in ECRIS and that around one in three requests for information submitted through ECRIS reveals a history of previous criminal convictions. 90% of these requests concern EU citizens. The Commission believes that its ECRIS reform package will lead to “a substantial increase in requests” concerning third country offenders.
22.7In his Explanatory Memorandum submitted in July, the Minister for Policing and the Fire Service (Mr Nick Hurd) underlines the importance of sharing criminal records information to “ensure offenders cannot evade justice by travelling from country to country” and to enable courts to make “more appropriate sentencing decisions”. ECRIS allows “a picture of EU-wide criminality to be established and held in an EU national’s home State”. He confirms that the proposed Regulation is subject to the UK’s Title V (justice and home affairs) opt-in and makes clear that, until negotiations on the UK’s exit from the EU are concluded, “the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force”, adding:
“During this period the Government will continue to negotiate, implement and apply EU legislation.”
22.8The three-month deadline for opting into the proposal at the negotiating stage (thereby securing a right to vote on the final text) expired on 24 October. In his letter of 25 October, the Minister informs us that the Government has decided to opt into the proposed Regulation and notified the Council Presidency on 23 October. He expects to issue a Written Ministerial Statement “as soon as practicable”.
22.9The Government’s decision to opt into the proposed Directive—document (a)—was taken shortly before the referendum in June 2016 on the UK’s membership of the EU. Its recent decision to opt into the proposed Regulation—document (c)—has been taken after the decision to leave the EU. The Minister’s letter does not set out the Government’s reasons for deciding to opt into the proposed Regulation. We ask him to provide a full explanation.
22.10Given that the proposed Regulation is intended to supplement the earlier proposed Directive, we ask the Minister:
22.11Our predecessors expressed concern that the Government’s opt-in decisions might entail changes to domestic laws and substantial costs for the UK without any assurance that the UK would be able to continue to participate in ECRIS and ECRIS-TCN once it leaves the EU. The Government’s future partnership paper, Security, law enforcement and criminal justice highlights the value of a mechanism for the exchange of criminal records information in helping to deliver “fair and robust justice” and says that the UK will seek “a strategic agreement” with the EU that “provides a comprehensive framework for future security, law enforcement and criminal justice cooperation between the UK and the EU”. In her statement to the House on 9 October the Prime Minister (Mrs Theresa May) indicated that the Government would seek a “strictly time-limited” period of implementation between the UK exiting the EU and moving to a new relationship with the EU during which the UK would have “left the EU and its institutions but […] should [also] continue to take part in existing security measures”.
22.12With this in mind, we ask the Minister to confirm that the Government intends ECRIS and ECRIS-TCN to form part of the strategic agreement it will be seeking with the EU. We also ask him to explain:
22.13We ask the Minister whether he accepts that British citizens will be third country nationals for the purposes of ECRIS and ECRIS-TCN once the UK leaves the EU. Given the Commission’s view that that the creation of a centralised EU information system will entail “some risk of adverse impacts on the fundamental rights” of third country nationals which needs to be mitigated, does the Government consider that the proposed Directive and Regulation include adequate data protection safeguards and effective remedies to mitigate the risk of any adverse impact on British citizens post-Brexit?
22.14We remind the Minister that his predecessor made a commitment to produce a full impact assessment on the Commission’s ECRIS-TCN proposal once it had been published. We ask him to confirm that work on the impact assessment is underway and to share the findings with us at the earliest opportunity.
22.15We are content to clear the Commission report—document (b)—from scrutiny. Documents (a) and (c)—the proposed Directive and Regulation—remain under scrutiny. We look forward to receiving the information we have requested as well as regular progress reports on negotiations. We draw this chapter to the attention of the Home Affairs and Justice Committees and the Committee on Exiting the European Union.
(a) 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), + ADDs 1–2, COM(16) 7. (b) Commission report concerning the exchange through the European Criminal Records Information System (ECRIS) of information extracted from criminal records between the Member States: (38890), + ADD 1, COM(17) 341. (c) Proposal for a Regulation establishing a centralised system for the identification of Member States holding conviction information on third country nationals and stateless persons (TCN) to supplement and support the European Criminal Records Information System (ECRIS-TCN) and amending Regulation No 1077/2011: (38886), + ADD 1, COM(17) 344.
22.16In 2008, the Council agreed a Framework Decision requiring Member States to take into account (and give equivalent legal effects to) previous convictions handed down in criminal proceedings in another Member State in the same way as they would previous national convictions. Member States had to comply with the Framework Decision by 15 August 2010.
22.17A further Council Framework Decision agreed in 2009 established a mechanism and a common format for the exchange of criminal records information. It requires the convicting Member State to record in its criminal records database the offender’s nationality (but only if the offender is a national of an EU Member State) and to send details of the conviction and related information to the offender’s Member State of nationality. The information may include the offender’s fingerprints. The Member State of nationality is required to store all of the information sent to it so that it is able to provide a comprehensive response to requests from other Member States for details of all previous convictions against its own nationals.
22.18A Council Decision also agreed in 2009 established a European Criminal Records Information System (ECRIS) to enable Member States to exchange (by automated means) information held in their national criminal records databases. ECRIS does not give Member States direct online access to each other’s databases or create a centralised EU criminal records database. Member States were required to comply with the Council Decision by 7 April 2012 and with the Framework Decision on the exchange of criminal record information by 27 April 2012.
22.19The two Framework Decisions and the Council Decision were all adopted (with UK participation) before the Lisbon Treaty took effect on 1 December 2009 and were subject to the UK’s “2014 block opt-out” of pre-Lisbon EU police and criminal justice measures. In its first Command Paper (8671) on these measures, the then Coalition Government noted that “the principle of taking into account overseas convictions in the same way as domestic ones exists in UK domestic law” but that opting out of the 2008 Framework Decision would release other Member States from the obligation to take into account previous convictions given by UK courts. It noted also that the 2009 Framework Decision and related Council Decision “had allowed much more information to be obtained on EU offenders in the UK and UK nationals convicted elsewhere in the EU”, adding:
“This has allowed the police to build a fuller picture of offending by UK nationals and allowed the courts to be aware of the previous offending of EU nationals being prosecuted. The previous conviction information can be used for bail, bad character and sentencing as well as by the prison and probation service when dealing with the offender once sentenced.”
“The Irish authorities have reported that approximately 12,000 criminal offences are committed in Ireland by UK nationals each year, some of which are serious offences. [Framework Decision] 2009/315/JHA requires the Irish authorities to inform us of these offences and they will be exchanged electronically under the arrangements of [Council Decision] 2009/316/JHA. Under the arrangements of the 1959 Council of Europe Convention we were not notified of such convictions.”
22.21A further assessment in Command Paper 8897 confirmed the utility of ECRIS and related measures “for public protection purposes”, consistent sentencing of UK and other EU nationals prosecuted in the UK, and “legal certainty that foreign convictions will be used in UK courts and that UK convictions are taken into account in foreign proceedings”. The Coalition Government recommended re-joining all three measures. Decisions confirming UK participation in these measures (and 32 others) were adopted and took effect on 1 December 2014.
22.22The current ECRIS measures do not include any provision for the participation of third (non-EU) countries. In November 2016, the then Minister for Policing and Fire Services (Brandon Lewis) told our predecessors:
“[…] the ECRIS legislation does not explicitly provide for the possibility of third country agreements, but 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.”
22.23Details of the changes proposed by the Commission in 2016—document (a)—are described in the Reports listed at the end of this chapter.
22.24The report covers the period from April 2012 when ECRIS became operational until the end of 2016 and includes conviction data from 24 Member States (the exceptions are Bulgaria, Cyprus, Denmark and Slovenia). The Commission reports that all 28 Member States are connected to ECRIS but some inter-connections between Member States have yet to be established, meaning that ECRIS has yet to achieve its full potential. The report reveals that:
22.25The proposed Regulation would establish a centralised system—ECRIS-TCN—containing a data record of third country nationals who have been convicted of a criminal offence within the EU. The data record would be created by the Member State in which a third country offender was convicted and contain biographical information and fingerprint data, as well as a country code for the Member State of conviction. A Member State wishing to establish whether a third country offender has previous convictions would be able to search this identity data to ascertain whether relevant criminal records information is held in other Member States. The data record may also contain facial images of the convicted third country offender, but these can only be used to confirm identity once a match (“hit”) has been established based on the biographical information and fingerprint data held in ECRIS-TCN. The Commission anticipates that it will be possible, at a later stage, to use facial images to establish identity once ECRIS-TCN is equipped with facial recognition software. Each Member State is responsible for removing from ECRIS-TCN an individual data record they have created once a conviction has become “spent” and has been erased from its national criminal records.
22.26ECRIS-TCN is intended to supplement ECRIS. The centralised system will not, therefore, give direct access to a third country national’s offending history. Instead, it will identify the Member States holding relevant criminal records information so that a request can be submitted through ECRIS. Details of previous convictions can only be confirmed on the basis of information provided directly from Member States’ national criminal records. This ensures that Member States maintain full control over their criminal convictions data.
22.27The Commission recognises that its proposals differentiate between EU citizens, whose criminal records information is stored and processed at national level, and third country nationals, whose identity data are stored and processed at EU level. It considers this difference in treatment to be “justified and proportionate” as “it does not lead to any substantial disadvantages” for third country nationals and “the differences are not so important that they would justify spending significantly more on the creation of a decentralised solution”.
22.28The EU’s dedicated Agency responsible for overseeing the EU’s justice and home affairs information systems—eu-LISA—would be responsible for the development and operational management of ECRIS-TCN. The Commission anticipates that the development and implementation phase is likely to take around two years once the proposed Regulation has been adopted. The proposal includes provisions on data security, data protection, access rights and remedies and gives the European Data Protection Supervisor responsibility for overseeing the lawful processing of personal data.
22.29Europol, Eurojust and (once established) the European Public Prosecutor’s Office (EPPO) would have access to ECRIS-TCN to the extent needed to fulfil their tasks. Eurojust would operate as the contact point for third (non-EU) countries seeking information on the previous convictions of third country nationals. It would be able to search ECRIS-TCN to establish which (if any) Member States hold relevant information but would not be able to communicate that information to the requesting third country. It would simply inform the Member States of the request—any follow-up would be at the discretion of each Member State, acting in accordance with its national law. To reinforce the point, the proposed Regulation makes clear that Eurojust, Europol, the EPPO and the central authorities in each Member State which have access to ECRIS-TCN are prohibited from transferring or making available to third country, international organisation or private party:
22.30The proposed Regulation cites the same legal base as the Directive proposed in 2016 —Article 82(1)(d) of the Treaty on the Functioning of the European Union—which provides for cooperation between Member States’ judicial or equivalent authorities “in relation to proceedings in criminal matters and the enforcement of decisions”. The choice of a directly applicable Regulation to implement ECRIS-TCN is intended to ensure uniform application of the rules across the EU.
22.31The Minister notes that the Commission’s report on ECRIS does not highlight any deficiencies in the UK’s application of ECRIS, adding that the UK “features favourably” and is described as “an active user” with a “high level of electronic interconnectivity” to 26 other Member States. He considers that the significant increase in the volume of transactions routed through ECRIS’s decentralised network has helped to “keep citizens secure and to implement public protection measures”.
22.32Turning to the proposed Regulation, the Minister explains why ECRIS-TCN is desirable:
“Across the EU, when a TCN [third country national] is arrested, an overseas criminal record check is conducted via ECRIS in between only five and ten percent of cases, usually where there is a known link to another Member State, due to the costly, impractical, and time consuming nature of sending a ‘blanket’ request to all 27 Member States. This means that an individual who offends in another Member State, and is subsequently arrested in the UK, may not have their offending history revealed to the courts or law enforcement agencies. The proposed Regulation solves this problem through the creation of the centralised identification system, to be searched on a hit/no hit basis, providing a repository of identifying information which can be searched against, enabling full criminal records requests to be directed toward the appropriate Member State(s).”
22.33He notes that ECRIS-TCN would not be the first large-scale centralised EU information system:
“Eurodac collects the fingerprints of TCN asylum seekers and certain illegal migrants to support the Dublin system and the Visa Information System stores the fingerprints of Schengen visa applicants, who are TCNs. Currently, the Schengen Information System II (SIS II) stores the fingerprints and photographs of individuals who are subject to an alert and an Automatic Fingerprint Identification System (AFIS) is currently being developed to enable fingerprints to be searched effectively. In the same way, the centralised ECRIS system will not create a precedent.”
22.34Nor would the proposed Regulation “harmonise national provisions on the retention of criminal records and fingerprints”. Instead, it makes clear that data recorded in ECRIS-TCN would have to be deleted once a conviction has been removed from the national criminal records register of the convicting Member State. Although Eurojust, Europol and the EPPO would have direct access to ECRIS-TCN, any “hit” would have to be followed up with the relevant Member States. The proposed Regulation would not, therefore, expand access to ECRIS by these EU agencies.
22.35The Minister says that the Government is “currently considering” the provisions establishing Eurojust as a central contact point for third countries seeking criminal records information on third country nationals.
22.36If the Government were to decide to opt into the proposed Regulation, the Minister does not anticipate “any significant substantive impact on UK law”:
“Criminal records are maintained in all parts of the UK irrespective of nationality. Convictions and cautions in England and Wales (irrespective of the offender’s nationality), for example, are recorded on the Police National Computer, which is accessible to all police forces, law enforcement agencies, approved organisations, and government departments for specific purposes. UK law makes provision for the recording, retention, and use of criminal record information, including appropriate safeguards (relevant legislation includes the Rehabilitation of Offenders Act 1974, the Police Act 1997, the Data Protection Act 1998, the Immigration and Asylum Act 1999, the Safeguarding of Vulnerable Groups Act 2006 and the Protection of Freedoms Act 2012).
“Police and prosecutors are able to request criminal records information on TCNs from other Member States under ECRIS, police-to-police cooperation and mutual legal assistance arrangements and to process that data in accordance with national law. Similarly, police and prosecutors from other Member States are able to request criminal records data on TCNs from UK competent authorities. Data Protection legislation already applies to these records.”
22.37He notes that the proposed Regulation would involve the processing of personal data at national level through the creation of a data record comprising alpha-numeric and fingerprint identifiers and facial images for each third country national convicted in the UK. He continues:
“The proposed Regulation contains specific provision on data security and data protection to govern this data processing, including cross reference to the provisions of Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent national authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. This Directive entered into force on 5 May 2016 and has to be transposed into UK law by 6 May 2018.”
22.38The Government is considering whether domestic legislation would be needed to “deliver any aspect of the proposal in UK law” but adds:
“This will in any case be dependent on the final outcome of negotiations for the UK’s withdrawal from the EU. However it is presently considered likely that any such legislation would only be in relation to relatively minor aspects of the proposal.”
22.39The Minister is satisfied that the proposed Regulation complies with the EU Charter of Fundamental Rights. In deciding whether or not to opt in, he indicates that the Government will:
“have particular regard to how far the proposed Regulation builds upon the 2016 proposed Directive, to which the UK opted in on 21 April 2016, to provide a more effective mechanism to identify TCNs with EU criminal records and the degree to which the proposed Regulation offers sufficient data protection safeguards”.
22.40The Minister provides the following breakdown of the financial implications of the proposed Regulation:
“The Commission estimate an initial, one-off set-up cost to the Commission of approximately £11,440,459 (to be met from the EU budget) and to each Member State of approximately £419,335 (a total of approximately £11,741,385 across 28 Member States). There would then be annual ongoing running costs, estimated by the Commission at approximately £1,876,826 for the Commission. For the Member States, the ongoing costs are expected to gradually increase over the years, starting at £191,283 annually for each Member State and increasing to a maximum of approximately £483,536 per Member State. This means the total ongoing costs across the 28 Member States will start at approximately £5,355,924 and increase up to a maximum of approximately £13,539,008.”
22.41The Minister informs us that the Government has decided to opt into the proposed Regulation and notified the Council of the European Union of its decision on 23 October. He will issue a Written Ministerial Statement informing the whole House of the Government’s decision “as soon as is practicable”.
On document (a), see our Twenty-second Report HC 71–xx (2016–17), (7 December 2016), Fourteenth Report HC 71–xii (2016–17), (19 October 2016), Fourth Report HC 71–iii (2016–17), (8 June 2016) and Twenty-fourth Report HC 342–xxiii (2015–16), (24 February 2016).
None on documents (b) and (c).
326 The Commission estimates that fewer than 5% of criminal convictions against third country nationals in 2014 were informed by a full criminal record history of previous offending.
327 See the agreed by the European Council on 17/18 December 2015.
328 See p.6 of the Commission report.
329 See para 18 of the Minister’s Explanatory Memorandum of 18 July 2017 on the Commission report.
330 See para 30 of the Minister’s Explanatory Memorandum of 19 July 2017 on the proposed Regulation.
331 Article 4a provides a mechanism to eject the UK from an existing measure if the UK decides not to participate in a later amending measure and its non-participation would make the existing measure “inoperable” for other Member States or the EU. As the proposed Regulation (unlike the earlier proposal for a Directive) does not amend the existing ECRIS measures, it seems unlikely that the Article 4a mechanism would apply.
332 See the Prime Minister’s , UK Plans for Leaving the EU, Hansard, 9 October 2017, col. 42.
333 See p.8 of the Commission’s explanatory memorandum accompanying the proposed Regulation.
334 See the of 21 November 2016 from the then Minister for Policing and Fire Services (Brandon Lewis) to the Chair of the European Scrutiny Committee.
335 See on taking account of convictions in the Member States of the EU in the course of new criminal proceedings.
336 See on the organisation and content of the exchange of information extracted from the criminal record between Member States.
337 on the establishment of ECRIS.
338 See , pp. 112–4 and 129–30, published in July 2013.
339 See , pp. 122–44, published July 2014.
340 See for 29 non-Schengen measures and for the remaining six Schengen measures.
341 See the then Minister’s of 21 November 2016 to the Chair of the European Scrutiny Committee.
342 One factor affecting these variations in use is the number of other Member States’ nationals living in a Member State.
343 See p.6 of ADD 1 accompanying the proposed Regulation.
344 See p.6 of the Commission’s explanatory memorandum accompanying the proposed Regulation.
345 See chapter XX (38882 and 38878) of this Report on proposed changes to eu-LISA’s founding Regulation.
346 See Article 14 of the proposed Regulation.
347 See para 19 of the Minister’s Explanatory Memorandum on the Commission report.
348 See para 20 of the Minister’s Explanatory Memorandum on the Commission report.
349 See para 31 of the Minister’s Explanatory Memorandum on the proposed Regulation.
350 See para 33 of the Minister’s Explanatory Memorandum on the proposed Regulation.
351 See para 18 of the Minister’s Explanatory Memorandum on the proposed Regulation.
352 See paras 16–7 of the Minister’s Explanatory Memorandum on the proposed Regulation.
353 Se para 19 of the Minister’s Explanatory Memorandum on the proposed Regulation.
354 See para 20 of the Minister’s Explanatory Memorandum on the proposed Regulation.
355 See para 32 of the Minister’s Explanatory Memorandum on the proposed Regulation.
356 See para 39 of the Minister’s Explanatory Memorandum on the proposed Regulation.
20 November 2017