Legally and politically important
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
(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) 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
(Both) Article 82(1)(d) TFEU, ordinary legislative procedure, QMV
(a) (37463), 5438/16 + ADDs 1–2, COM(16) 7
(b) (38886), 10940/17 + ADD 1, COM(17) 344
7.1The European Criminal Records Information System—ECRIS—enables Member States to exchange information on the previous convictions of EU citizens, ensuring that they cannot escape their criminal past by offending in a different Member State. Each Member State operates as a central repository for all criminal records information concerning its nationals, including criminal convictions handed down in other Member States. ECRIS provides a mechanism for notifying Member States of relevant convictions and exchanging criminal records information. The UK has participated fully in ECRIS since it became operational in April 2012 and is one of the most active users.
7.2ECRIS can be used to obtain details of previous convictions recorded against third county national offenders in the EU but the procedures are cumbersome. As 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.
7.3In early 2016, the Commission proposed a Directive—document (a)—to make ECRIS a more effective tool for exchanging information on third country national offenders. It envisaged that this information would be held on interconnected systems at national level. Following the completion of a feasibility study, EU justice and home affairs Ministers decided that this decentralised model would be too burdensome and costly to implement. In July, the Commission proposed a Regulation—document (b)—which 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.
7.4The proposed Directive and Regulation are both subject to the UK’s Title V (justice and home affairs) opt-in. The Government opted into the proposed Directive in May 2016, shortly before the referendum in which the UK decided to leave the UK. The Government informed us this October that it had also decided to opt into the proposed Regulation. In a Written Ministerial Statement issued on 2 November the Home Secretary (Amber Rudd) said that opting in would increase the efficiency of ECRIS and “help ensure that our law enforcement agencies have more information available to them when they encounter third country nationals than they do at present”.
7.5We considered the ECRIS package on 13 November. We asked the Government to provide:
7.6We also asked the Government:
7.7In his letter of 1 December, the Minister for Policing and the Fire Service (Mr Nick Hurd) tells us that negotiations have made “rapid progress” and that the Estonian Presidency intends to seek agreement to a general approach at the Justice and Home Affairs Council on 7/8 December. Although the Government does not yet have the final text, he anticipates that it will be “broadly acceptable” and expects “all other Member States” to support it. As the proposals remain under scrutiny in both Houses, the Government intends to abstain.
7.8The Minister recognises that the ECRIS proposals are “unlikely” to be agreed and implemented before the UK leaves the EU but says that opting in underlines “the importance to the UK of EU tools in achieving a practical relationship with the EU on security cooperation after Brexit”. He confirms that the Government is seeking “a strictly time-limited implementation period” during which the UK will continue to take part in existing security measures—the mechanisms for achieving this, as well as any post-exit participation in ECRIS, are still to be negotiated. The Minister acknowledges that, in the absence of an agreement with the EU, it would be harder to obtain criminal records information on EU and third country nationals from Member States on a bilateral basis.
7.9We understand that the Justice and Home Affairs Council agreed a general approach on both legislative proposals at its meeting on 8 December. We ask the Minister to explain why he was unable to inform us sooner of the Presidency’s intention to seek an agreement. It is not good enough for the Minister to tell us that the Government will abstain, safe in the knowledge that the proposals will pass through the Council unopposed. Effective scrutiny depends on the Government providing information in sufficient time for us to consider it before, not after, decisions are taken within the Council.
7.10The Minister confirms that he is content with the outcome of negotiations on “the most important issues” for the Government—the treatment of EU citizens who are dual nationals and the criminal threshold that has to be met to include fingerprints in ECRIS-TCN. We note that the general approach also includes changes to the provisions of the proposed Regulation on third country access to criminal records information. We ask the Minister for his assessment of the changes, why they were included, and how they are likely to affect the UK once it leaves the EU.
7.11We note that the expected timeframe for implementing the changes to ECRIS and ECRIS-TCN appears to have been pushed back to three (rather than two) years from the date on which the legislative proposals are adopted, taking it beyond the UK’s exit from the EU in March 2019 and beyond the end of a two-year transitional/implementation period. Does the Minister expect this delay to affect the UK’s preparations for implementing the proposed legislation? Can he confirm that the Government intends ECRIS and ECRIS-TCN to be amongst the measures included in a future EU/UK agreement on security, law enforcement and criminal justice cooperation?
7.12We ask the Minister whether the Government has changed its position on producing an Impact Assessment on the proposed Regulation establishing ECRIS-TCN. His predecessor (Brandon Lewis) informed the Committee in November 2016:
“The Home Office has already committed to working with the Ministry of Justice to provide a full impact assessment of the new system once the legislation has been published.”
By contrast, the Minister now tells us:
“Home Office officials are working closely with the Ministry of Justice to establish the downstream impacts and so costs of the draft Regulation as it relates to the Criminal Justice System.”
Does the earlier commitment to provide “a full impact assessment” remain and, if so, when does the Government expect to publish it?
7.13The 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) 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.
7.14Our earlier Reports listed at the end of this chapter provide an overview of ECRIS, the changes put forward by the Commission in the proposed Directive and Regulation and the Government’s position.
7.15We asked the Minister to explain the Government’s reasons for opting into the proposed Regulation and whether it would have been feasible not to do so, given the Government’s earlier decision to opt into the related proposal for a Directive amending ECRIS. The Minister responds:
“Although ECRIS already allows for the exchange of criminal records information across the EU and establishes an EU-wide offending history for EU nationals, it does not lend itself to efficient exchange with regard to third country nationals (TCNs) because Member States must send requests to all Member States individually in order to capture EU-wide criminality. The draft Regulation addresses this by creating a centralised identification system, as detailed in my Explanatory Memorandum laid on 19 July 2017, which makes criminal records exchange for TCNs more efficient. Opting into the draft Regulation which provides for the efficient exchange ensures that our criminal justice and law enforcement agencies have more information available to them when they encounter TCNs than they do at present.”
7.16He confirms that it would not be possible for the UK to comply with the proposed Directive without also opting into the proposed Regulation, citing as an example Article 6(3)(a) of the proposed Directive. Under this provision, a third country national can request an extract of information held on his or her criminal record. To provide a complete extract, the requested Member State can only approach Member States holding relevant criminal records information. The Minister notes that “access to the centralised system is the only way to ensure the central authority can make a targeted request in this way”.
7.17The Minister recognises that the Government’s opt-in decision has a wider significance in the context of Brexit:
“Opting in also supports the Government’s objectives as set out in the future partnership paper Security, law enforcement and criminal justice for an overarching agreement with the EU that supports future cooperation on security, law enforcement and criminal justice. By agreeing to participate in measures such as this, the Government is underlining the importance to the UK of EU tools in achieving a practical relationship with the EU on security cooperation after Brexit.”
7.18We asked the Minister to confirm that Article 4a of the UK’s Title V opt-in Protocol would not have applied if the Government had decided not to opt into the proposed Regulation, meaning that there would have been be no mechanism for removing the UK from ECRIS while it remained a member of the EU. The Minister confirms that this is the case, as Article 4a “only applies to measures which amend an existing measure by which the UK is bound” and the proposed Regulation “is not amending the existing draft Directive but instead is setting up the centralised system which is designed to complement the existing ECRIS system”.
7.19The Minister considers that the proposed Directive and Regulation are “unlikely” to be agreed and implemented before the UK leaves the EU as they will need “two years for development and implementation post-adoption”. He confirms the Government’s intention to seek “a strictly time-limited implementation period where we continue to take part in existing security measures” and which he expects to last “for a period of no more than two years”, adding:
“We will need to build a bridge from our exit to our future partnership, to allow business and people time to adjust, and to allow new systems to be put in place. It makes sense for there to be only one set of changes.”
7.20We invited the Minister to explain what mechanism the Government envisaged to enable the UK to participate in the new ECRIS-TCN system and to cooperate with eu-LISA, an EU Agency, during a transitional/implementation period, given that the UK will have left the EU and its institutions. He responds:
“The mechanisms to enable our participation in existing security measures during the implementation period will need to be addressed in negotiations on the implementation period.”
7.21Post-exit, the Minister confirms the Government’s intention to seek “an overarching agreement with the EU that supports future cooperation on security, law enforcement and criminal justice” but does not indicate whether ECRIS and ECRIS-TCN would be amongst the measures included in the agreement. He recognises, however, that in the absence of an agreement with the EU, it would be harder to obtain criminal records information on EU and third country nationals from Member States on a bilateral basis. The UK could fall back on the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters which includes provisions on the exchange of information between participating countries (including all EU Member States) but there are shortcomings:
“Whilst the Convention does contain some very general provisions to exchange criminal records information, there are significant limitations. Criminal records requests would need to be made manually, compared with the current automated ECRIS system. Documents would not necessarily be translated or ‘mapped’ to recognisable offences here in the UK, as is the case currently via ECRIS. This makes processing slower and more costly. The information would not be received in a standard format which would make it difficult to process and would result in delays in passing criminality information to law enforcement and the courts. Critically, there is no requirement for Member States to respond to requests within any timescale, as there is with ECRIS, and so in some cases the UK may not receive a response at all.”
7.22Turning to Article 14 of the proposed Regulation which sets out restrictive conditions for exchanging information on criminal convictions with third countries via a contact point within Eurojust, the Minister comments:
“The draft Regulation contains provisions in relation to indirect access for third countries to information held in the ECRIS-TCN system. The Government has not sought changes or amendments to these provisions, but notes the potential benefits for the UK post-Brexit.”
7.23We asked whether changes to Article 14 would be necessary to accommodate any agreement on UK participation in, or access to, ECRIS and ECRIS-TCN post-Brexit. The Minister observes only that “the mechanism by which the EU will cooperate with the UK as a third country will need to be addressed in the course of negotiations” and that the Government has proposed an agreement with the EU on security, law enforcement and criminal justice.
7.24We asked the Minister whether he accepted that British citizens would be third country nationals for the purposes of ECRIS and ECRIS-TCN once the UK leaves the EU and sought an assurance 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. The Minister tells us that “the status of UK citizens in relation to measures such as ECRIS will need to be agreed during negotiations”. He nonetheless considers that the data processing safeguards set out in the proposals and in general EU data protection law are sufficient.
7.25We reminded the Minister that his predecessor had made a commitment to produce a full impact assessment on the Commission’s ECRIS-TCN proposal once it had been published. We invited him to confirm that work on the impact assessment was underway and to share the findings with us at the earliest opportunity. He responds:
“Home Office officials are working closely with the Ministry of Justice to establish the downstream impacts and so costs of the draft Regulation as it relates to the Criminal Justice System. Any future UK participation in ECRIS-TCN following the UK’s exit from the EU, and any costs relating to that, will be agreed during EU Exit negotiations.”
7.26The Minister says that he expects the Estonian Presidency to seek agreement to a general approach at the Justice and Home Affairs Council on 7 December. Although the Government has not seen the final text, he describes developments on the main issues of concern to the Government:
“Our objective was to ensure the threshold of criminality above which fingerprints should be taken is sufficiently low so as to capture as much criminality as possible. We are confident that the final text will offer a threshold which captures the types of criminality we care about whilst ensuring that UK police practice in collecting fingerprints is unaffected by this draft legislation.
“The draft legislation also contains provisions for dual nationals to be treated as TCNs [third country nationals] in the centralised system, as we had intended, helping to ensure that individuals with two or more nationalities are not able to hide previous criminality.”
7.27The Minister expects negotiations with the European Parliament to progress quickly:
“There is a good chance of Political Agreement being reached on the text in the first half of next year, under the Bulgarian Presidency.”
First Report HC 301–i (2017–19), (1 November 2017). 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).
93 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.
94 See the Home Secretary’s of 2 November 2017 on ECRIS and on the EU justice and home affairs IT Agency.
95 See the issued by the Council on 8 December 2017.
96 See the of 21 November 2016 from the then Minister for Policing and the Fire Services (Brandon Lewis) to the Chair of the European Scrutiny Committee.
97 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.
22 December 2017