Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs, the Justice Committees and the Committee on Exiting the European Union
(a) Proposal for a Regulation on the use of the Schengen Information System for the return of illegally staying third country nationals
(b) Proposal for a Regulation on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks
(c) Proposal for a Regulation on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters
(a) Article 79(2)(c) TFEU, ordinary legislative procedure, QMV;
(b) Articles 77(2)(b) and (d) and 79(2)(c) TFEU, ordinary legislative procedure, QMV;
(c) Articles 82(1)(d), 85(1), 87(2)(a) and 88(2)(a) TFEU, ordinary legislative procedure, QMV
(a) (38426), 15812/16, COM(16) 881; (b) (38427), 15813/16, COM(16) 882; (c) (38428), 15814/16, COM(16) 883
8.1At the end of 2016, the Commission presented a package of three proposed Regulations to improve the functioning of the Schengen Information System—SIS II—and strengthen border control and counter-terrorism efforts across the EU. The proposals are intended to close information gaps and enhance the exchange of information on terrorism, cross-border crime and irregular migration so that “in the future, no critical information should ever be lost on potential terrorist suspects or irregular migrants crossing our external borders.” Three Regulations are needed to reflect differing degrees of Member State participation in Schengen but the Commission says they have been drafted to “work seamlessly together” to ensure the “comprehensive operation and use” of SIS II. For this reason, we are holding all three proposals under scrutiny.
8.2Our main focus of scrutiny is the proposed police cooperation Regulation—document (c)—as this is the only measure in which the Government has decided to participate. Announcing the decision last July, the Minister for Policing and the Fire Service (Mr Nick Hurd) told the House:
“The proposed Police Cooperation Regulation will replace the legislation that currently governs SIS II’s use for that purpose. The UK has participated in this aspect of SIS II since April 2015. Our law enforcement agencies benefit from this, for example by being able to detain at the border people who are wanted under European Arrest Warrants and to obtain intelligence from police forces across the EU on suspected criminals and security risks. The draft Regulation contains a number of proposals that would update SIS II’s capabilities, for example allowing it to store a wider range of biometric data and permitting alerts to be created to protect children who are at risk of going missing. There are some changes we will seek, in particular to maintain Member States’ control over when alerts are created, but the Government believes we will be in a better position to do this by not opting out and remaining full participants in the negotiation.”
8.3The Minister made clear that the decision to continue to participate in the proposed police cooperation Regulation would “have no implications for our general opt out from the internal border-free zone established by Schengen”.
8.4The SIS II package is intended to:
8.5The proposed police cooperation Regulation would:
8.6The Commission does not expect the SIS II package to take effect until around 2021. Negotiations are proceeding at a steady pace. The Council and the European Parliament each agreed their negotiating positions on the SIS II package in November 2017 and intend to reach a First Reading agreement.
8.7The Minister told us in December that the Council general approach on the proposed police cooperation Regulation was “broadly acceptable”. He highlighted changes which would enable Member States to decide not to create an alert on individuals or objects connected with terrorist activity if to do so would be “likely to obstruct official or legal inquiries, investigations or procedures related to public or national security” as well as more flexible deadlines for providing follow-up information in response to a “hit” in SIS II (“preferably not later than 12 hours”).
8.8The Government nonetheless decided to vote against the Council general approach as it considered that:
8.9As our earlier Reports have made clear, the Government’s decision to participate in the proposed police cooperation Regulation, even though the envisaged technical and operational changes to SIS II are not expected to take effect until 2021, only makes sense if it intends to secure some form of continued participation in SIS II post-exit. We have repeatedly asked the Minister to confirm that this is the case, not least because under existing EU rules governing SIS II, only EU Member States are entitled to participate and data processed in SIS II cannot be transferred or made available to third countries (see Article 62 of the proposed police cooperation Regulation). Despite this, four non-EU countries—Iceland, Norway, Switzerland and Liechtenstein—do participate in SIS II by virtue of agreements concluded with the EU associating them with the implementation, application and development of the Schengen rule book.
8.10In July 2017 the Minister told us:
“You will be aware that our current participation in SIS II is based on our membership of the EU and that the only non-EU countries that also participate are members of the Schengen border-free zone. The UK will not join the Schengen border-free zone but we will be in a unique position as a former EU Member State and we will seek a relationship with the EU that reflects that unique position. We are exploring options for cooperation arrangements once the UK has left the EU but it would be wrong to set out unilateral positions on specific measures in advance of negotiations.”
8.11In December the Minister again said that it was “too early to say what future cooperation we may have in relation to individual measures” but added that it was “in the clear interest of both the UK and European partners that we find a way to continue to cooperate and exchange this kind of information”.
8.12Given the likelihood that the Government will wish to seek some form of participation in the police cooperation elements of SIS II post-exit, we asked the Minister:
8.13Our earlier Report explored possible models for UK participation in SIS II post-Brexit, drawing on a range of different EU/third county agreements. We concluded that there was a wide spectrum of possible outcomes on the role and jurisdiction of the Court of Justice and invited the Minister to indicate which the Government would prefer (or rule out) in any future agreement between the EU and the UK on security, law enforcement and criminal justice cooperation.
8.14We noted that the proposed police cooperation Regulation includes an introductory recital on the EU Charter of Fundamental Rights. The Minister indicated that “matters such as complying with the EU Charter on Fundamental Rights” would need to be addressed during the UK’s exit negotiations. We asked him to explain how, since clause 5(4) of the EU (Withdrawal) Bill envisages that the Charter will not form part of domestic law “on or after exit day”. We also asked whether he anticipated that it would be necessary to identify equivalent Charter-type protections in UK law to secure continued UK participation in SIS II and other similar EU justice and home affairs measures post-exit.
8.15In his response, the Minister sets out the Government’s view on the main elements of the negotiating mandate agreed by the European Parliament. He makes clear that the Government values the capability provided by SIS II but considers that there would be “no appetite” amongst Member States and the Commission to lift the ban on sharing SIS II alerts with third countries. Retaining this capability will form part of negotiations on a future security partnership with the EU. He reiterates the Government’s intention to agree “a new strategic treaty” with the EU on security, law enforcement and criminal justice cooperation and to “bring an end to the direct jurisdiction of the Court of Justice”. Whilst the Government is “not seeking to recreate any other cooperation model” and wants “a bespoke approach which works for the UK”, it will “take into account how the range of existing models for cooperation between the EU and third countries operate”.
8.16The Minister says that the reference to the EU Charter in the recital to the proposed police cooperation Regulation is “declaratory in nature” and “does not in itself create any obligations towards the Charter for Member States or other participating countries”. He explains that the Government does not intend the Charter itself to form part of the body of EU law retained under the EU (Withdrawal) Bill but adds that, “insofar as the rights and principles underpinning the Charter exist elsewhere in directly applicable EU law or EU law which has been implemented in domestic law, that law will be preserved and converted by the Bill”. The Government “does not intend that the substantive rights recognized in the Charter of Fundamental Rights will be weakened”.
8.17We thank the Minister for his latest update.
8.18The Minister tells us that the Government wishes to retain the capability provided by SIS II but has not sought to challenge the “long-established principle” that third countries cannot access alerts entered in SIS II as there would be “no appetite” amongst Member States and the Commission to change it. We appreciate the difficulties, but are not clear why they will be any easier to resolve when the Government begins negotiations on a new strategic treaty on security, law enforcement and criminal justice to take effect after the UK has left the EU.
8.19Based on the limited information available to us, it seems likely that this treaty will seek to establish bespoke structures and procedures associating the UK with parts of the EU’s justice and home affairs rule book—including SIS II—without requiring changes to third country provisions in EU secondary legislation (see the ‘Background’ section for further details). Whilst we can see some merit in this approach, we note that there is no precedent for a non-EU third country to participate in SIS II unless it also participates in the Schengen free movement area and the Minister has already told us that “the UK will not join the Schengen border-free zone”. SIS II was conceived as a tool to compensate for the removal of internal border checks within the Schengen area. The Government will need to demonstrate why an exception should be made to allow the UK to continue to participate in SIS II post-exit once it is outside the EU and Schengen and no longer bound by EU rules on free movement.
8.20We welcome the Minister’s assurance that the Government does not intend there to be any weakening of the substantive rights recognised in the EU Charter of Fundamental Rights following the UK’s withdrawal from the EU. We note, however that Article 8 of the EU Charter on the protection of personal data “has no direct equivalent in the European Convention on Human Rights”. This may make it difficult to demonstrate that the UK will be able to ensure a standard of protection essentially equivalent to that guaranteed within the EU and may create scope for future divergence in data protection laws which could have implications for UK participation in EU information-sharing systems such as SIS II post-exit.
8.21Given the possibility that the UK may not be able to secure an agreement with the EU encompassing SIS II, it is disappointing that the Minister has not told us whether the UK would be able to obtain the information contained in SIS II alerts on a bilateral basis from individual Member States. We ask him to do so and to explain what processes the UK would need to follow to obtain this information.
8.22The general approach agreed by the Council would extend the existing category of alerts on missing persons to include alerts on “vulnerable persons who need to be prevented from travelling for their own protection”. We ask the Minister whether he supports this change and how he envisages it being applied.
8.23The European Parliament has proposed that the SIS II package should take effect one year after the proposed Regulations have been adopted (the Commission proposals leave the date to be determined at a later stage). Now that trilogue negotiations are underway, we ask the Minister when he expects the proposals to be formally adopted, whether he judges that they are likely to take effect during any transitional/implementation period agreed with the EU and how this would affect the Government’s preparations for implementing the legislation.
8.24In addition to the information requested, we look forward to receiving updates on the progress being made in trilogue negotiations with the EP on the overall SIS II package and on the Government’s outstanding concerns on the proposed police cooperation Regulation—in particular, the provisions on proportionality in Article 21 (which determine how much discretion a Member State has to create an alert on a terrorist suspect), on “specific checks” and “inquiry checks” in Article 37, and on purpose limitation in Article 53. Meanwhile, the proposed Regulations remain under scrutiny. We draw this chapter to the attention of the Home Affairs, the Justice Committees and the Committee on Exiting the European Union.
(a) Proposal for a Regulation on the use of the Schengen Information System for the return of illegally staying third country nationals: (38426), , COM(16) 881; (b) Proposal for a Regulation on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, amending Regulation (EU) No 515/2014 and repealing Regulation (EC) No 1987/2006: (38427), , COM(16) 882; (c) Proposal for a Regulation on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending Regulation (EU) No 515/2014 and repealing Regulation (EC) No 1986/2006, Council Decision 2007/533/JHA and Commission Decision 2010/261/EU: (38428), , COM(16) 883.
8.25Document (a)—the proposed returns Regulation—would create a new alert category for third country (non-EEA) nationals who have been issued with a return decision under the procedures set out in the EU Return Directive. The new alert is intended to increase the detection of illegally staying third country nationals and support EU-wide enforcement of return decisions. The Government decided not to opt into the proposed Regulation since it would also have to opt into the EU Return Directive and considered that this would “pose a risk to national control over how we remove people with no right to be here, and would place our returns process under the jurisdiction of the Court of Justice of the European Union”.
8.26Document (b)—the proposed border checks Regulation—would require Member States to enter an alert in SIS II whenever they issue a Schengen-wide entry ban under the EU Return Directive. The Commission believes that increasing the visibility of entry bans should make their enforcement more effective at the EU’s external borders. The UK is not entitled to participate in this proposal as it builds wholly on parts of the Schengen rule book on border controls which do not apply to the UK.
8.27Iceland, Norway, Switzerland and Liechtenstein are the only third countries that participate in SIS II. Their agreements with the EU identify the Schengen rules that these non-EU Schengen countries are required to implement and apply and establish special structures and procedures to enable them to keep pace with changes to the Schengen rule book. The agreements operate in a way that avoids the need to make extensive changes to provisions in EU secondary legislation limiting participation to EU Member States.
8.28The agreements do not give the Court of Justice direct jurisdiction to resolve any disputes concerning their interpretation or application. The Court nevertheless has an important indirect role. The agreements include provisions which seek to ensure “as uniform an application and interpretation as possible” of common Schengen rules (based on the regular mutual transmission of relevant case law) and to avert any “substantial difference” in the case law of the Court of Justice and the courts of the non-EU Schengen countries. A failure to do so can lead to the termination of the agreements.
8.29There are other models in which the Court of Justice has a more direct role for matters involving a high degree of regulatory approximation. For example, dispute settlement procedures in EU agreements with Ukraine, Georgia and Moldova involve an arbitration panel which is required to seek a ruling from the Court of Justice on questions concerning the interpretation of relevant EU law provisions. In these cases, the Court’s ruling is binding on the arbitration panel and the ruling of the arbitration panel must be unconditionally accepted by the Parties. These examples illustrate the wide spectrum of possible outcomes on the role and jurisdiction of the Court of Justice.
8.30In our earlier Report agreed on 13 December 2017, we noted that a Council press release issued on 8 November stated that “COREPER endorsed, on behalf of the Council, a mandate for negotiations” with the European Parliament on the SIS II package. We asked the Minister whether the Council itself had agreed a general approach on the proposals. He confirms that this was the case.
8.31We suggested that the Minister’s reluctance to confirm that the Government intended to seek some form of participation in the police cooperation elements of SIS II post-Brexit could no longer be justified, given the imminence of negotiations on the framework for future UK/EU relations. He responds:
“The Government has set out its intended approach to post-Brexit cooperation on security, law enforcement and criminal justice in the Security, Law Enforcement and Criminal Justice—A Future Partnership paper you refer to in your report. We are proposing a new strategic treaty that provides a comprehensive framework for future security, law enforcement and criminal justice co-operation. This would complement the extensive and mature bi-lateral relationships that we already have and promote security across Europe.
“As the paper also sets out, we value the capability we currently have to share law enforcement and security alerts with EU countries. That capability is currently provided by SIS II. How we retain the capability though will be a matter for negotiations on our future security partnership with the EU.”
8.32We expressed concern at the Government’s apparent lack of engagement on the provision of the proposed police cooperation Regulation prohibiting third country access to SIS II data. We reiterated our request to the Minister to explain whether changes to this provision would be necessary to accommodate any agreement on UK access to SIS II data post-Brexit. The Minister tells us:
“In the negotiations on the current SIS II legislation we have not sought to challenge the ban on sharing alerts with third countries because that prohibition is a long-established principle of SIS II and there would have been no appetite from Member States and the Commission to change it. Negotiations on our future cooperation on security, law enforcement and criminal justice will of course need to take existing EU legislation into consideration.”
8.33The Minister confirms that “leaving the EU will mean bringing an end to the direct jurisdiction of the CJEU” and adds:
“As I have said previously, there is significant precedent for the EU to cooperate with third countries, including in fields closely aligned to areas of EU law, but no precedent for a third country to submit to the jurisdiction of the CJEU. The UK and the EU therefore need to agree on how our new security partnership can be monitored and implemented to the satisfaction of both sides, and how any disputes which arise can be resolved. Many other countries have agreements with the EU on both economic and security matters without accepting the direct jurisdiction of the CJEU, for example the EU’s agreement with Norway and Iceland on surrender that I referred to in my previous letter.
“You cite the example of the Association Agreements with Georgia, Moldova and Ukraine and ask which approach to the role and jurisdiction of the CJEU the Government would prefer. The Government has already stated that we are not seeking to recreate any other cooperation model as we want a bespoke approach which works for the UK. Nevertheless, we will of course take into account how the range of existing models for cooperation between the EU and third countries operate.”
8.34We drew the Minister’s attention to an introductory recital to the proposed police cooperation Regulation which states that it respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union” and asked how the Government intended to address the Charter during the UK’s exit negotiations, given that clause 5(4) of the EU (Withdrawal) Bill envisages that the Charter will not form part of domestic law “on or after exit day”. The Minister responds:
“This recital is declaratory in nature and is not linked to any obligation contained within the proposed legislation. Rather it reflects the Commission’s fundamental rights analysis as set on page 11 of the explanatory memorandum accompanying the proposal. The Government agrees that this proposal is compatible with the fundamental rights recognised in the Charter. The recital does not in itself create any obligations towards the Charter for Member States or other participating countries.
“The European Union (Withdrawal) Bill will preserve domestic laws which implement EU law and convert directly applicable EU law into UK law. As the Charter was not intended to create new rights, but rather to reaffirm rights which already existed in EU law, the Government does not intend the Charter itself to form part of the body of EU law retained under the Bill after we leave the EU. However, insofar as the rights and principles underpinning the Charter exist elsewhere in directly applicable EU law or EU law which has been implemented in domestic law, that law will be preserved and converted by the Bill. Any provisions in the withdrawal agreement, and the treaty on security, law enforcement and criminal justice cooperation that we aim to agree with the EU, will be designed to enable the agreed relationship to operate effectively.
“The Government has been clear that it does not intend that the substantive rights recognized in the Charter of Fundamental Rights will be weakened. Those rights will continue to be protected in a number of ways as set out in the ‘Charter of Fundamental Rights of the EU Right by Right Analysis’, published by the Government on 5 December 2017.
“The UK has a long tradition of commitment to human rights which will not change after our withdrawal from the European Union.”
8.35Finally, the Minister tells us that the European Parliament (EP) has put forward a large number of changes to the proposed police cooperation Regulation. Whilst some are “simply drafting improvements that we could accept”, the Minister identifies others that are of greater concern:
160 See the European Commission’s on the proposed Regulations, issued on 21 December 2016, as well as its and its i.
161 See p.3 of document (c).
162 See the Minister’s of 20 July 2017, Hansard, 64WS.
164 See the Minister’s of 20 July 2017 to the Chair of the European Scrutiny Committee.
165 See the Minister’s of 1 December 2017 to the Chair of the European Scrutiny Committee.
166 See recital (52) of the Commission’s original proposal.
167 See the Minister’s of 1 December 2017 to the Chair of the European Scrutiny Committee.
168 See the Government’s Right By Right of the EU Charter of Fundamental Rights.
169 See the Minister’s of 20 July 2017 to the Chair of the European Scrutiny Committee.
170 For Iceland and Norway, see the associating them with the implementation, application and development of the Schengen acquis and . For Switzerland, see the associating Switzerland with the implementation, application and development of the Schengen acquis and . For Liechtenstein, see the on Liechtenstein’s accession to the EU-Switzerland Agreement.
171 See Articles 402–3 of the Association Agreement with Ukraine, Articles 321–2 of the Association Agreement with Moldova and Articles 266–7 of the Association Agreement with Georgia.
172 See recital (52) of the Commission’s original proposal.
173 See the Government’s Right by Right of the EU Charter published on 5 December 2017.
2 February 2018