Documents considered by the Committee on 6 March 2019 Contents

9Cross-border police cooperation: Third country participation in the Prüm framework for exchanging DNA, fingerprint and vehicle registration data

Committee’s assessment

Politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Justice Committee

Document details

(a) Proposal for a Council Decision on the signing and provisional application of certain provisions of the Agreement between the EU and Liechtenstein on the application of the Prüm Decisions on cross-border police cooperation and on the accreditation of forensic service providers

(b) Proposal for a Council Decision on the conclusion of the Agreement between the EU and Liechtenstein on the application of the Prüm Decisions on cross-border police cooperation and on the accreditation of forensic service providers

(c) Proposal for a Council Decision on the signing and provisional application of certain provisions of the Agreement between the EU and Switzerland on the application of the Prüm Decisions on cross-border police cooperation and on the accreditation of forensic service providers

(d) Proposal for a Council Decision on the conclusion of the Agreement between the EU and Switzerland on the application of the Prüm Decisions on cross-border police cooperation and on the accreditation of forensic service providers

Legal base

(a) and (c) Articles 82(1)(d), 87(2)(a) and 218(5) TFEU, QMV

(b) and (d) Articles 82(1)(d), 87(2)(a) and 218(6)(a) TFEU, QMV, EP consent

Department

Home Office

Document Numbers

(a) (40373), 6253/19 + ADD 1, COM(19) 35; (b) (40374), 6248/19 + ADD 1, COM(19) 24; (c) (40375), 6251/19 + ADD 1, COM(19) 27; (d) (40376), 6249/19 + ADD 1, COM(19) 26

Summary and Committee’s conclusions

9.1The proposed Council Decisions would authorise the EU to sign and conclude Agreements with Liechtenstein and Switzerland enabling them to apply the provisions on cross-border police cooperation contained in three EU measures which together form the “Prüm package”.51 The EU concluded a similar Agreement with Iceland and Norway in 2010 which is not yet in force.

9.2The Prüm Decisions—Council Decision 2008/615 JHA and Council Decision 2008/616/JHA—establish a framework for the exchange of information between law enforcement authorities responsible for the prevention and investigation of criminal offences. They contain specific rules and procedures regulating the automated searching and comparison of DNA profiles, fingerprint and vehicle registration data. A further Council Framework Decision 2009/905/JHA requires forensic laboratories carrying out analysis of DNA and fingerprints to be accredited so that there is mutual trust in the quality and reliability of the systems underpinning the cross-border exchange of information.

9.3Despite opting out of the Prüm package in December 2014, the Government concluded shortly afterwards that “that there would be undoubted operational and public protection benefits” in rejoining Prüm and is currently in the process of implementing the measures in the UK.52 If adopted by the Council, the latest proposed Decisions would extend participation in the key data-sharing elements of Prüm to Liechtenstein and Switzerland. The Agreement (identical in substance for both countries) includes provisions on the uniform application and interpretation of the Prüm rules, based on a regular exchange of relevant case law, and on the diplomatic settlement of disputes. It also includes a mechanism to ensure that Liechtenstein and Switzerland are informed of any changes to the Prüm rules “at the earliest possible occasion” and can submit comments. If either country decides not to accept changes agreed by the EU to the rules governing the exchange of DNA profiles, fingerprint and vehicle registration data, the Agreement must be suspended and may be terminated if Liechtenstein or Switzerland cannot demonstrate that they have “equivalent” domestic laws in place. Both countries are also bound to apply relevant EU data protection laws. A Declaration accompanying the Agreement envisages that experts from Liechtenstein and Switzerland may be invited to technical meetings if their attendance would be “directly relevant to the proper application and development” of the Prüm measures.

9.4Liechtenstein and Switzerland both participate in the Schengen free movement area and have concluded an agreement with the EU associating them with the implementation, application and development of the Schengen rule book. These rules include the so-called “Swedish initiative“ which permits a law enforcement authority in one Member State to request information from its counterpart in another Member State if there are factual reasons for believing that it would be relevant for the purpose of a criminal investigation.53 The European Commission considers that the automated exchange of information within the Prüm framework would help to establish the factual reasons necessary to obtain access to further information or criminal intelligence.54

9.5The proposed Council Decisions on the signature and conclusion of the Agreements with Liechtenstein and with Switzerland all cite a Title V (justice and home affairs) legal base, meaning that they will only apply to and bind the UK if the Government decides to opt in. The UK opted into the earlier Agreement with Iceland and Norway and will be bound by it if it takes effect before the UK leaves the EU or during a post-exit transition/implementation period.55

9.6In his Explanatory Memorandum of 21 February 2019, the Minister for Policing and the Fire Service (the Rt Hon. Nick Hurd MP) expresses his full support for data sharing as a means to assist with the investigation and prosecution of serious crimes:

It is the Government’s position that data sharing regimes between countries, with appropriate safeguards, enhance the safety and wellbeing of citizens and visitors to those countries.

9.7He adds that the UK does not currently have a biometrics data sharing agreement with Liechtenstein or Switzerland.

9.8The Minister confirms that the UK’s Title V opt-in applies to all four proposed Council Decisions and that the Government intends to reach an opt-in decision before 29 March 2019, the date on which the UK is expected to leave the EU, even though this will be sooner than the three-month opt-in period envisaged in the UK’s Title V opt-in Protocol. He explains that an early opt-in decision is necessary as the UK will not be entitled to opt into the proposals after its exit from the EU, even if it leaves on the terms set out in the draft EU/UK Withdrawal Agreement. Under that Agreement, the UK may only opt into EU proposals brought forward during a post-exit transition/implementation period if they “amend, build upon or replace” an EU justice and home affairs measure in which the UK participated before its exit from the EU. As the proposed Council Decisions are new measures, an early opt-in decision is necessary if the UK wishes to participate.

9.9In reaching an opt-in decision, the Minister says the Government “will need to be fully assured that exchanges of personal data come with sufficient protections to ensure they are consistent with fundamental rights” but “is generally supportive of the EU exchanging data with trusted third countries to maximise its potential in the fight against serious and organised crime”. In a nod to the UK’s future status as a third (non-EU) country, the Minister adds that “the exact nature of the UK’s future relationship with tools such as Prüm is yet to be confirmed following the UK’s exit from the EU”.

Our Conclusions

9.10The UK opted into a similar Agreement with Iceland and Norway which was concluded by the EU in 2010. We understand that this Agreement is still not in force. We ask the Minister to explain the reasons for the delay.

9.11Given the long lead-in time needed to prepare for implementation of the Prüm rules and the imminence of the UK’s exit from the EU, we ask the Minister:

9.12The EU has so far sought only to sign and conclude Agreements on participation in Prüm with third countries that are formally associated with Schengen. Whilst we understand that the Prüm package is not part of the Schengen rule book, the Preamble to the Agreements underlines the centrality of Schengen membership in establishing close cooperation with the EU in combating crime. The draft Political Declaration setting out the framework for the future relationship between the EU and the UK envisages establishing “arrangements for timely, effective and efficient exchanges” of […] “DNA, fingerprints and vehicle registration data (Prüm)” but also states that these arrangements must take into account “the fact that the United Kingdom will be a non-Schengen third country that does not provide for the free movement of persons”.

9.13We ask the Minister:

9.14Pending further information, the proposed Council Decisions remain under scrutiny. We ask the Government to inform us of its opt-in decisions before 29 March 2019. We draw this chapter to the attention of the Home Affairs Committee and the Justice Committee.

Full details of the documents

(a) Proposal for a Council Decision on the signing, on behalf of the European Union, and on the provisional application of certain provisions of the Agreement between the EU and Liechtenstein on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, of Council Decision 2008/616/JHA on the implementation of Council Decision 2008/615/JHA and the Annex thereto, and of Council Framework Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities: (40373), 6253/19 + ADD 1, COM(19) 35; (b) Proposal for a Council Decision on the conclusion of the Agreement between the EU and Liechtenstein on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, of Council Decision 2008/616/JHA on the implementation of Council Decision 2008/615/JHA and the Annex thereto, and of Council Framework Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities: (40374), 6248/19 + ADD 1, COM(19) 24; (c) Proposal for a Council Decision on the signing, on behalf of the European Union, and on the provisional application of certain provisions of the Agreement between the EU and Switzerland on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, of Council Decision 2008/616/JHA on the implementation of Council Decision 2008/615/JHA and the Annex thereto, and of Council Framework Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities: (40375), 6251/19 + ADD 1, COM(19) 27; (d) Proposal for a Council Decision on the conclusion of the Agreement between the EU and Switzerland on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, of Council Decision 2008/616/JHA on the implementation of Council Decision 2008/615/JHA and the Annex thereto, and of Council Framework Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities: (40376), 6249/19 + ADD 1, COM(19) 26.

Background

9.15A Report published by our predecessors in December 2015, entitled Cross-border law enforcement cooperation—UK participation in Prüm, provides a detailed overview of the EU measures which form part of the Prüm package and the case advanced by the then Government for the UK to participate.

Previous Committee Reports

None on these documents. See our earlier Report on Cross-border law enforcement cooperation—UK participation in Prüm: Twelfth Report HC 342–xii (2015–16), published 4 December 2015.


51 The measures concerned are Council Decision 2008/615 JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, Council Decision 2008/616/JHA on the implementation of Council Decision 2008/615/JHA and Council Framework Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities.

52 See Command Paper 9149 published in November 2015.

53 See Council Framework Decision 2006/960/JHA.

54 See p.2 of the European Commission’s explanatory memorandum accompanying the proposed Council Decisions.

55 See Council Decision 2010/482/EU.




Published: 12 March 2019