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Documents considered by the Committee on 24 January 2018 Contents

3Exchanging information on criminal convictions

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, the Justice Committee and the Committee on Exiting the European Union

Document details

(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

Legal base

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

Department

Home Office

Document Numbers

(a) (37463), 5438/16 + ADDs 1–2, COM(16) 7; (b) (38886), 10940/17 + ADD 1, COM(17) 344

Summary and Committee’s conclusions

3.1These proposals are intended to improve the operation of the European Criminal Records Information System—ECRIS—which 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. The UK has participated fully in ECRIS since it became operational in April 2012 and is one of the most active users.

3.2In early 2016, the Commission proposed a Directive—document (a)—to make ECRIS a more effective tool for exchanging information on third country national offenders in the EU. 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 2017, 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 to obtain access to that information by submitting a request to the relevant Member State(s) through the decentralised ECRIS system.

3.3Both proposals are 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. It opted into the proposed Regulation last October, stating that it 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”.68

3.4The Justice and Home Affairs Council agreed a general approach on the ECRIS package on 8 December. It includes changes to the provisions of the proposed Regulation on third country access to criminal records information. We asked the Minister for Policing and the Fire Service (Mr Nick Hurd) for his assessment of the changes, why they were included, and how they were likely to affect the UK once it leaves the EU. We noted also that the expected timeframe for implementing the changes to ECRIS and ECRIS-TCN had 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 (if agreed). We asked whether this delay was likely to affect the UK’s preparations for implementing the proposed legislation and whether ECRIS and ECRIS-TCN were amongst the measures that the Government would seek to include in a future EU/UK agreement on security, law enforcement and criminal justice cooperation. We also asked whether the Government intended to fulfil its commitment to publish an Impact Assessment on the proposals.

3.5In his latest update, the Minister apologises for the fact that we were unable to consider the terms of the general approach before it was agreed in early December, adding that the proposed Regulation was published “whilst Parliament was dissolved and therefore without the scrutiny committees in place”. He considers that the provisions on third country access to criminal records information held in ECRIS-TCN “still offer a helpful route for third countries” to identify where information on third country offenders is held, but notes that requests for information could only be made for the purpose of criminal proceedings. He says that the Government is preparing a “Justice Impact Test” and will also complete an Impact Assessment which he expects to share with us in early 2018. Future cooperation with the EU on ECRIS and ECRIS-TCN once the UK becomes a third country post-exit “will need to be agreed in negotiations on the UK’s future partnership with the EU”.

3.6We remind the Minister that we are not responsible for the delay in setting up this Committee following the general election last June and do not see how it is relevant to his Department’s handling of the ECRIS package in the run-up to the December Justice and Home Affairs Council. The Minister’s explanation that “work moved far more quickly than anticipated” is difficult to reconcile with his recognition that the ECRIS package was “a priority” for the Estonian Presidency and that its term was soon to end. We trust that he will make greater efforts to communicate with us sooner in future so that we are able to perform our scrutiny function effectively.

3.7We ask the Minister to confirm our understanding of the general approach texts agreed by the Council:

3.8Given these constraints on the ability of third countries to access information through ECRIS and ECRIS-TCN, we expect the Government’s Justice Impact Test and Impact Assessment to set out the operational impact for the UK if it does not secure a post-exit agreement encompassing ECRIS and ECRIS-TCN.

3.9The Minister does not confirm that the Government intends these measures to be included in a future agreement with the EU on security, law enforcement and criminal justice cooperation. We do not consider this reticence to be tenable, not least because the Government’s future intentions are increasingly likely to affect its approach to the implementation of proposals currently under negotiation which are adopted before the UK leaves the EU but are only expected to take effect during or after a post-exit transitional/implementation period.

3.10The Minister recognises that the deadline for implementing ECRIS-TCN and the changes to ECRIS “will indeed extend beyond the UK’s exit from the EU in March 2019” but does not explain how this will affect the Government’s preparations for implementing the legislation. It is important that he does so since there would be little point in committing expenditure unless there is a realistic prospect that the legislation will apply in the UK. To assist our scrutiny, we ask the Minister to explain:

3.11Pending further information, the proposed Directive and Regulation remain under scrutiny. We look forward to receiving the information we have requested as well as regular reports on negotiations and a summary of the Government’s position on any changes proposed by the European Parliament. We draw this chapter to the attention of the Home Affairs Committee, the Justice Committee and the Committee on Exiting the European Union.

Full details of the documents

(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), 5438/16 + 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), 10940/17 + ADD 1, COM(17) 344.

Background

3.12Our 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.

The Minister’s letter of 12 January 2018

3.13The Minister’s previous letter dated 1 December was sent shortly before the Justice and Home Affairs Council agreed a general approach on 8 December. We asked him to explain why he was unable to inform us sooner of the Presidency’s intention to seek an agreement and made clear that we expect the Government to provide information in sufficient time for us to consider it before, not after, decisions are taken within the Council. We added that it was not good enough for the Government to abstain, safe in the knowledge that the proposals would pass through the Council unopposed. The Minister responds:

“I apologise that the Committee were unable to take a view on the Presidency’s intention to seek an agreement. The draft Regulation was published on 29 June 2017, whilst Parliament was dissolved and therefore without the scrutiny committees in place. The Estonian Presidency set out that during their term, reaching a General Approach on both the draft Directive and draft Regulation was a priority and the work moved far more quickly than anticipated. For example, officials attended working groups every two weeks with proposed changes to the text made in correspondence outside of those meetings.”

3.14We asked the Minister for his assessment of the changes to the provisions on third country access to criminal records information held in ECRIS-TCN, why they were included, and how they were likely to affect the UK once it leaves the EU. He tells us that the general approach agreed by the Council “still offers a helpful route for third countries to identify where criminal records information is held in the EU on TCNs [third country nationals]”, adding:

“The text was revised to more explicitly reflect that when a request is made by a third country to Eurojust and a ‘hit’ or ‘hits’ are identified:

(a) Eurojust will inform the Member State(s) that hold the information of the request; and

(b) If the Member State(s) gives their consent, Eurojust will inform the third country which Member State(s) hold the information to allow the third country to make a targeted request for that information to the Member State(s).

“In the event of ‘no hit’, Eurojust will only respond with this information where a signed cooperation agreement, Memorandum of Understanding, or letter of understanding exists with that third country.

“The text now states that third countries may make requests for criminal proceedings only, using the standard form that will be set out at Annex A of the Regulation.”

3.15On future UK cooperation with ECRIS and ECRIS-TCN post-exit, the Minister tells us that this “will need to be addressed in the course of negotiations”.

3.16The Minister accepts that the longer deadline for implementing the ECRIS package (36 months in the Council general approach rather than the 24 months envisaged by the Commission) means that the UK will have left the EU before the changes take effect. He does not explain how the longer period will affect the Government’s preparations for implementing the proposed legislation or confirm that the Government does intend ECRIS and ECRIS-TCN to be amongst the measures included in a future EU/UK agreement on security, law enforcement and criminal justice cooperation, observing only that:

“The details of our future cooperation in relation to justice and home affairs measures, including ECRIS-TCN, will need be agreed in negotiations on the UK’s future partnership with the EU.”

3.17Finally, the Minister says that the Government is completing a “Justice Impact Test” and “remains committed to completing an Impact Assessment, which we anticipate being able to share with the Committee in early 2018”.

Previous Committee Reports

Seventh Report HC 301–vii (2017–19), chapter 7 (19 December 2017) and First Report HC 301–i (2017–19), chapter 22 (13 November 2017). On document (a), see our Twenty-second Report HC 71–xx (2016–17), chapter 8 (7 December 2016), 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).

68 See the Home Secretary (Amber Rudd’s) Written Ministerial Statement of 2 November 2017 on ECRIS and on the EU justice and home affairs IT Agency.



29 January 2018