Documents considered by the Committee on 24 January 2018 Contents

4Managing EU migration and security databases

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

Document details

Proposal for a Regulation on the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice

Legal base

Articles 74, 77(2)(a) and (b), 78(2)(e), 79(2)(c), 82(1)(d), 85(1), 87(2)(a) and 88(2) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(38878), 10820/17, COM(17) 352

Summary and Committee’s conclusions

4.1A new EU Agency—“eu-LISA”—was established in 2012 to oversee the operational management of three EU information systems dealing with asylum, border management and law enforcement. Several new EU information systems are planned (see the Background section of this chapter for further details). Each envisages an important role for eu-LISA in ensuring overall operational management. The proposed Regulation would give eu-LISA responsibility for managing these new EU information systems. It would also repeal and replace the 2011 Regulation establishing eu-LISA, make some technical changes to implement the findings of a recent external evaluation, and empower the Agency to take the actions needed to make EU information systems for security, border and migration management fully interoperable by 2020 (this latter task being dependent on the adoption of a further legislative instrument).

4.2UK participation in eu-LISA is legally complex, bringing into play the UK’s Title V (justice and home affairs) opt-in and Schengen opt-out Protocols. This is because the proposed Regulation will give eu-LISA responsibility for an array of new EU information systems. Some build on parts of the Schengen rule book on border control and visa policy which do not apply to the UK and are not open to UK participation. Others are subject to the UK’s Title V (justice and home affairs) opt-in or Schengen opt-out, meaning that the UK is able to decide whether or not to participate.

4.3In his Explanatory Memorandum on the proposed Regulation submitted last July, the Security Minister (Mr Nick Hurd) set out the steps that the Government would need to take if it were to decide that the UK should participate in the proposal (see the Background section). He informed us in October that the Government had decided to participate in the proposal. A Written Ministerial Statement issued by the Home Secretary (Amber Rudd) in November set out the reasons:

“The Government believe it is in the national interest to continue participating in eu-LISA, as this will maximise our influence over how it operates the IT systems that we take part in and for which it is responsible. We have therefore decided to opt in to the draft eu-LISA Regulation to the extent that it is not Schengen-building and not to opt out to the extent that it builds on the policing and judicial co-operation aspects of Schengen.”69

4.4The Minister wrote again in December. He accepted that full participation in eu-LISA would also depend on the Council adopting (by unanimity) a further Council Decision based on Article 4 of the Schengen Protocol and indicated that the Government would “keep under review the question of whether to seek a Council Decision”.70 We asked whether it would still be possible for the UK to participate in eu-LISA, albeit to a more limited extent, in the absence of a Council Decision, and whether partial participation in a Regulation would be legally possible.71

4.5Turning to the UK’s position as a third country post-exit, the Minister recognised that Article 38 of the proposed Regulation would limit participation in eu-LISA to non-EU Schengen countries (Iceland, Norway, Switzerland and Liechtenstein). Whilst the Government would have preferred Article 38 to provide for participation by any third countries taking part in some or all of the systems that eu-LISA manages, the Minister told us:

“A third country agreement concluded by the EU may provide for an EU measure, or provisions within such a measure, to apply to that third country, with or without modifications or adaptations, even where the EU measure being applied does not itself expressly provide for participation by non-Member States [….] As such, ultimately the scope of a third country’s participation in eu-LISA will be determined by the agreement that provides for that participation, and not by the eu-LISA Regulation itself.”72

4.6He reminded us that the Government has proposed a treaty to govern the UK’s relationship with the EU on security, law enforcement and criminal justice cooperation post-exit. We asked the Minister whether the Government intended eu-LISA to be amongst the measures included in this treaty and to indicate which EU information systems managed by eu-LISA should also be included.

4.7We noted that the Justice and Home Affairs Council had agreed a general approach on the proposed Regulation on 7 December and that the text includes a new provision—Article 38a—which would enable eu-LISA to establish “cooperative relations” and “working arrangements” with relevant authorities in third countries if authorised to do so by a Union act. We asked the Minister to explain what sort of cooperation was envisaged under this provision and how useful it would be for the UK post-exit, particularly if the UK was unable to secure a separate treaty with the EU on security, law enforcement and criminal justice cooperation.

4.8In his latest update, the Minister tells us that he considers the UK would still be able to participate in eu-LISA’s management of the EU information systems in which the UK participates, even without a further Council Decision. He reiterates the Government’s intention to establish a post-exit relationship with the EU “that provides for practical operational cooperation; facilitates data driven law enforcement; and allows multilateral cooperation through EU agencies” but says “it would be wrong to set out unilateral positions on particular measures now”.

4.9In his Explanatory Memorandum on the proposed Regulation, the Minister indicated that “a new Council Decision under the Schengen Protocol would be necessary to ensure our full participation in this measure”.73 He nonetheless considers that it would be possible for the UK to participate without a further Council Decision, but participation would be limited to “eu-LISA’s management of the systems that we take part in or have opted into”. It would not extend to eu-LISA’s management of new information systems in which the UK cannot take part—the EU Entry/Exit System and European Travel Information and Authorisation System.

4.10We anticipate that securing political support for a Council Decision, which would require the unanimous approval of EU Schengen States, may be difficult given the UK’s decision to leave the EU in March 2019. In the circumstances, partial participation on the basis set out by the Minister may be the best outcome that the UK can achieve in the limited time available. In our view, a further Council Decision would be preferable. It would (as the Minister suggests) make clear the basis on which the UK is participating in eu-LISA and enhance legal certainty. We therefore encourage him to pursue this option by seeking the views of other Member States and to report back to us on the outcome of these discussions. We ask him to explain what partial participation in eu-LISA would mean in practical terms, for example how it would affect the UK’s role on the Agency’s Management Board and in Advisory Groups.

4.11We note that the general approach agreed by the Justice and Home Affairs Council in December amends Article 38 of the proposed Regulation. It now provides that participation in eu-LISA shall be open to “countries that have entered into agreements with the Union on their association with the implementation, application and development of the Schengen acquis and with Dublin and Eurodac-related measures”. The Government has ruled out UK participation in the “Schengen border-free zone” post-exit.74 We ask the Minister whether Article 38 is intended to limit participation in eu-LISA to the small number of third countries associated with Schengen, Dublin and Eurodac and exclude other third countries. If this is the intention, we ask the Minister whether the treaty the Government intends to seek on security, law enforcement and criminal justice cooperation with the EU post-exit could overcome this limitation on third country participation.

4.12The Minister does not address the question we raised about the new Article 38a inserted in the general approach text which would enable eu-LISA to establish “cooperative relations” and “working arrangements” with relevant authorities in third countries. We ask him to explain what sort of cooperation is envisaged, whether it would extend to a wider range of third countries than is envisaged in Article 38, and how useful it would be for the UK post-exit, particularly if there is no deal on security, law enforcement and criminal justice cooperation post-exit or the deal does not extend to eu-LISA.

4.13We challenge the Minister’s reticence in clarifying the importance the Government attaches to individual measures as part of the UK’s post-exit relationship with the EU. The European Council is expected to agree a new set of guidelines in March on the framework for the UK’s future relationship with the EU. Before then, it expects the UK to “provide further clarity on its position on the framework”.75 We accept that “the exact details of our future relationship will need to be agreed in the course of negotiations”. Given that these negotiations are now imminent, and that the Government will have to set out its position on individual measures if it is to influence the European Council guidelines and make headway in negotiations with the EU, we do not agree with the Minister that it would be “wrong” to share this information with Parliament. We consider it would be wrong not to and will continue to press for greater transparency.

4.14Pending further information, the proposed Regulation remains under scrutiny. We ask the Minister to provide progress reports on the negotiations. We draw this chapter to the attention of the Home Affairs Committee and Justice Committee and the Committee on Exiting the European Union.

Full details of the documents

Proposed Regulation on the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, and amending Regulation (EC) 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) 1077/2011: (38878), 10820/17, COM(17) 352.

Background

4.15The proposed Regulation covers an array of existing or planned EU information systems. Some build on parts of the Schengen rule book on border control and visa policy which do not apply to the UK and are not open to UK participation. Others are subject to the UK’s Title V (justice and home affairs) opt-in or Schengen opt-out, meaning that the UK can decide whether to participate.

4.16As the following table shows, the UK is not entitled to participate in the Visa Information System (VIS), the border control elements of the Schengen information System (SIS II), the EU Entry/Exit System (EES) and the European Travel Information and Authorisation System (ETIAS). The UK currently participates in the Dublin Regulation, Eurodac database, the European Criminal Records Information System (ECRIS) and the police cooperation aspects of SIS II. The Government has opted into new proposals to expand the Eurodac database but does not intend to take part in the new redistribution mechanism which is a key element of the Commission’s Dublin reform proposals. The Government has also decided to participate in the Commission’s proposed reform of SIS II in so far as it concerns police cooperation and in a recent proposal to establish a centralised EU information system—ECRIS-TCN—containing criminal records information on third country national offenders within the EU.

Existing information systems managed by eu-LISA

Schengen or non-Schengen

UK position

Visa Information System—VIS

Schengen

UK excluded

Schengen Information System—SIS II (border control component)

Schengen

UK excluded

Schengen Information System—SIS II (police cooperation)

Schengen

UK participates in existing SIS II and is also participating in the Commission’s proposal to strengthen the law enforcement component of SIS II

Eurodac

Non-Schengen

UK participates in the existing Eurodac database. The UK has opted into the Commission’s proposal to expand its scope

New information systems to be managed by eu-LISA

Schengen or non-Schengen

UK position

EU Entry/Exit System—EES

Schengen

UK excluded

European Travel Information and Authorisation System—ETIAS

Schengen

UK excluded

Dublin Regulation

Non-Schengen

UK participates in the current (Dublin III) Regulation. The UK has not opted into the proposed Dublin IV Regulation containing a new automated redistribution mechanism for asylum seekers

European Criminal Records Information System—extension to third country nationals (ECRIS-TCN)

Non-Schengen

UK participates in ECRIS and has opted into a supplementary proposal extending ECRIS to third country national offenders

4.17To participate fully in the proposed eu-LISA Regulation, the Government would need to:

The Minister’s letter of 11 January 2018

4.18The Minister confirms that the December Justice and Home Affairs Council agreed a general approach and that the UK abstained as the proposal had not been cleared from scrutiny. He apologises that there was “insufficient time for the Committee to take a view on the Presidency’s intention to seek a general approach prior to the December Council” but says that it was a priority for the Estonian Presidency and “work moved far more quickly than anticipated”.

4.19We asked the Minister whether a failure to secure a further Council Decision would affect the UK’s ability to play a full part in eu-LISA and whether partial participation in a Regulation would be legally possible.76 The Minister responds:

“The Government considers that even without a Council Decision we would be able to participate in eu-LISA’s management of the systems that we take part in or have opted in to. As I noted in my letter of 1 December, we will seek a Decision if it appears we would benefit from the legal certainty that it would give to our full participation in the Agency while we are still a Member State. The Government has not yet sought the opinions of other Member States on a new Council Decision. We will do so in due course in order to find out if there would be any particular objections and to confirm what our options are. I am, of course, happy to keep the Committee updated on discussions on this matter, as requested.”

4.20Turning to the UK’s future relationship with eu-LISA post-exit, the Minister observes:

“The Government’s future partnership paper on security, law enforcement and criminal justice published in September outlines how we are seeking a post-Brexit relationship with the EU that provides for practical operational cooperation; facilitates data driven law enforcement; and allows multilateral cooperation through EU agencies. We value the capability we currently have to share information with EU countries, a capability currently provided by tools like SIS II and Eurodac, which are managed by eu-LISA. The exact details of our future relationship will need to be agreed in the course of negotiations, however, and it would be wrong to set out unilateral positions on particular measures now.”

4.21The Minister expects trilogue negotiations to begin in January and undertakes to provide further updates as negotiations progress.

Previous Committee Reports

Seventh Report HC 301–vii (2017–19), chapter 8 (19 December 2017) and First Report HC 301–i (2017–19), chapter 26 (13 November 2017).


69 See the Written Ministerial Statement issued on 2 November 2017, Hansard 32WS.

70 See the Minister’s letter of 1 December 2017 to the Chair of the European Scrutiny Committee.

71 We drew the Minister’s attention to the Court of Justice’s reluctance to accept partial participation of the UK (and Denmark) in an EU measure (in that case EU participation in the Chicago Convention)—see Opinion 1/15 26 July 2017.

72 See the Minister’s letter of 1 December 2017 to the Chair of the European Scrutiny Committee.

73 See para 29 of his Explanatory Memorandum submitted on 20 July 2017.

74 See the Minister’s letter of 20 July 2017 to the Chair of the European Scrutiny Committee.

75 See the Guidelines agreed by the European Council on 15 December 2017.

76 See the Court of Justice’s ruling in Opinion 1/15 26 July 2017.




29 January 2018