Documents considered by the Committee on 8 May 2019 Contents

4Cross-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

Cleared from scrutiny; 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, COM(19) 24

(c) (40375), 6251/19 + ADD 1, COM(19) 27

(d) (40376), 6249/19, COM(19) 26

Summary and Committee’s conclusions

4.1The 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”.17 The EU concluded a similar Agreement with Iceland and Norway in 2010 which is not yet in force.

4.2The 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.

4.3Despite opting out of the Prüm package in December 2014, the Government concluded shortly afterwards “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.18 If adopted by the Council, the latest proposed Decisions would extend participation in the key data-sharing elements of Prüm to Liechtenstein and Switzerland. As they all cite a Title V (justice and home affairs) legal base, the Decisions and the Agreements themselves 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.

4.4In his letter of 28 March 2019, the Minister for Policing and the Fire Service (Rt Hon. Nick Hurd MP) reiterated the Government’s commitment to full implementation of Prüm in the UK and informed us that it had decided to opt into the proposed Council Decisions.19 He acknowledged that “the Agreements would fall away” once the UK had left the EU and any post-exit transition/implementation period had ended, meaning that any rights derived from the Agreements would cease to exist in UK law, but considered that there were no legal impediments to prevent the EU from concluding an agreement with the UK on its continued participation in Prüm post-exit/transition. Were the EU and UK to do so, the Government would also seek to conclude similar agreements with the Schengen states.20 The Minister noted also that:

[…] the EU Withdrawal Act, as amended by the Withdrawal Agreement Bill, would retain in domestic law any directly effective rights derived from the Agreements which were concluded by the EU before and during the Implementation Period. However, it would be inappropriate to retain such rights once the UK has ceased to be treated as a Member State during the Implementation Period for the purposes of the Agreements, and they would therefore be revoked.

4.5We saw no reason to object to the proposed Council Decisions, given that extending participation in Prüm might have operational benefits for the UK (by increasing the pool of data its law enforcement authorities would be able to access) and strengthen the UK’s case for a continuing relationship with Prüm and other EU data sharing instruments after leaving the EU. We granted a scrutiny waiver at our meeting on 3 April 2019 to enable the Government to support the adoption of the proposed Decisions but asked the Minister to clarify what he had meant by “directly effective rights derived from the Agreements” and what status these rights would have in domestic law once the UK had left the EU. We requested some indication of the nature of the “directly effective rights” that might accrue under the proposed Agreements with Liechtenstein and Switzerland and how they would be affected by the UK’s exit from the EU.

4.6The Minister’s letter of 30 April 2019 largely confirms our understanding that:

4.7Whilst the Government does not consider that the proposed Agreements would confer directly effective rights, their effect would be to extend to Liechtenstein and Switzerland any such rights conferred by the Prüm measures themselves. These are most likely to relate to the mechanisms and conditions governing the exchange of personal data between the parties participating in Prüm.

Our Conclusions

4.8We thank the Minister for clarifying the nature of the “directly effective rights” that may be conferred by the Prüm measures and how they may be revoked using the powers contained in section 8 of the European Union (Withdrawal) Act 2018 if the UK is unable to reach an agreement with the EU on maintaining the exchange of biometric and other personal data as part of the future EU/UK security partnership.21

4.9We are content to clear the proposed Council Decisions from scrutiny but remind the Minister of our expectation that he will inform us, in due course, of any progress made in fleshing out the “arrangements for timely, effective and efficient exchanges” of […] “DNA, fingerprints and vehicle registration data (Prüm)” envisaged in the draft Political Declaration setting out the framework for the future relationship between the EU and the UK. 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, 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, COM(19) 26.

Background

4.10A 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

Sixty-second Report HC 301–lx (2017–19), chapter 6 (3 April 2019) and Fifty-seventh Report HC 301–lvi (2017–19), chapter 9 (6 March 2019). See also our earlier Report on Cross-border law enforcement cooperation—UK participation in Prüm: Twelfth Report HC 342–xii (2015–16), published on 4 December 2015.


17 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.

18 See Command Paper 9149 published in November 2015.

19 See the Minister’s Written Ministerial Statement of 25 April 2019, Hansard, HCWS1524.

20 The Minister confirmed that the UK does not currently have a biometrics data sharing agreement with Liechtenstein or Switzerland.

21 The power to deal with deficiencies in retained EU law under section 8 of the 2018 Act expires two years from exit day.




Published: 14 May 2019