Documents considered by the Committee on 20 June 2018 Contents

7Managing 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, 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

7.1A 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. The proposed Regulation would give eu-LISA responsibility for managing several new or planned EU information systems (see the Background section of this chapter for further details). 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 (this latter task being dependent on the adoption of a further legislative instrument).64

7.2UK 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 some of the EU information systems which eu-LISA will manage 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 or not to participate.

7.3The Government has decided to participate in the proposed eu-LISA Regulation to “maximise our influence over how [eu-LISA] operates the IT systems that we take part in and for which it is responsible”, but recognises that full UK participation in eu-LISA will depend on the Council adopting a further Decision based on Article 4 of the Schengen Protocol—without it, UK 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.65 The Minister for Policing and the Fire Service (Mr Nick Hurd) told us in December that the Government would “keep under review the question of whether to seek a Council Decision”.66

7.4We anticipated that securing political support for a Council Decision (which would require the unanimous approval of EU Schengen States) might be difficult given the UK’s decision to leave the EU, but encouraged the Minister to pursue this option as it would make clear the basis on which the UK participates in eu-LISA and enhance legal certainty. We were informed in March that officials would explore the prospects for agreeing a Council Decision with other Member States “over the coming months”, as well as the practical implications for the UK’s participation in eu-LISA if no Decision were to be agreed.67

7.5We were struck by the apparent lack of urgency in the Minister’s response, given that the UK would be leaving the EU on 29 March 2019. In our Report agreed on 21 March, we noted that the Government must have considered the implications of failing to secure a further Council Decision and how this would affect the UK’s role on eu-LISA’s Management Board and in its Advisory Groups when it decided to participate in the proposed Regulation. We reiterated our request for the Minister to explain what partial participation in eu-LISA would mean in practical terms.

7.6In his letter of 30 May, the Minister assures us that the Government is “fully committed to resolving this matter as soon as practicable” and is in discussion with the Council Legal Service and Member States. He reiterates that, without a Council Decision, “we would not be participating in the Regulation as a whole, as we would be excluded from those parts of it that deal with the new Schengen-building measures that we do not take part in”. He considers that a new Council Decision would “avoid the need for separate Regulations and possibly separate configurations of the Management Board dealing with the management of systems in which we do and do not participate”. The Minister undertakes to report back to us “once further progress has been made”.

7.7The Minister also responds to our concern that Article 38 of the general approach agreed by the Council in December would limit third country participation in eu-LISA to countries that have concluded agreements with the EU associating them with the “implementation, application and development” of the Schengen rule book and with Dublin and Eurodac-related measures (which establish rules to identify the Member State responsible for examining an application for asylum made within the EU). The Government has previously ruled out UK participation in the Schengen internal border-free zone post-exit.68 The Minister tells us that Article 38:

“clearly envisages non-Schengen third countries participating in eu-LISA—where those countries have entered into agreements with the EU to participate in the Schengen acquis and in Dublin and Eurodac-related measures. These are the only measures that eu-LISA will manage in which non-EU countries currently participate. Further, Article 38a is also clear that the precise nature of the agreement shall be the subject of negotiation.”

7.8We expressed frustration at the Government’s unwillingness to flesh out its objectives for the UK’s future internal security partnership with the EU post-exit and state whether it should include UK participation in eu-LISA and in the EU information systems it manages. The Minister responds:

“On 9 May 2018 HMG published a policy paper that explains the Government’s vision for the future UK-EU Security Partnership (‘Framework for the UK-EU Security Partnership‘). The paper notes that a new internal security treaty with the EU should facilitate multilateral cooperation through EU agencies.”

7.9In a further letter dated 7 June 2018, the Minister informs us that trilogue negotiations on the proposed eu-LISA Regulation concluded earlier than expected and that the final compromise text was sent to Coreper for “political agreement” in early June. He adds:

“As the dossier had not cleared scrutiny, the UK abstained from the vote seeking unanimous political agreement from Member States. I apologise that we were not able to give you advance notice to clear the dossier.”

7.10The Minister says that the Government “continues to seek discussions with the Council Legal Service on the terms of a new Council Decision”, that discussions are “ongoing” and that he anticipates the Decision “will be adopted by the Council at the same time as the Regulation”, before the summer recess.

Our Conclusions

7.11It is disappointing that the Minister was unable to write to us before the proposed Regulation was sent to Coreper for political agreement. We expect him to seek scrutiny clearance before the Regulation is formally adopted by the Council and to provide the information requested below on:

A new Council Decision

7.12We ask the Minister whether the Government has submitted a request for a Council Decision to extend its participation in the Schengen rule book, as envisaged under Article 4 of the Schengen Protocol. If it has not already done so, we ask him to inform us whether and when he intends to do so.

7.13The Minister says he hopes the Council will adopt the Decision at the same time as the proposed eu-LISA Regulation, before the summer recess. We remind him that we expect the proposed Decision to be deposited for scrutiny (and clearance sought ahead of adoption) in the usual way.

Eu-LISA and a new EU/UK internal security treaty

7.14We can see no reason for the Government to expend effort in securing a Council Decision to enable the UK to participate fully in eu-LISA unless it intends to seek some form of continued UK participation in eu-LISA post-exit. Similarly, we can see no reason for the UK to participate in eu-LISA post-exit unless the Government also intends to participate in at least some of the EU information systems it will be responsible for managing. We ask the Minister if this is what he means when he says a new internal security treaty with the EU post-exit should “facilitate multilateral cooperation through EU agencies”.

Third country participation in eu-LISA

7.15As the Minister will be aware, the only third countries that currently participate in eu-LISA are the Schengen-associated countries—Iceland, Norway, Switzerland and Liechtenstein. The wording of Article 38 of the proposed Regulation is consistent with this position, limiting participation to third countries formally associated with “the implementation, application and development of the Schengen acquis and with Dublin and Eurodac-related measures”. We ask the Minister whether he considers that Article 38 would require full participation in the Schengen rule book, or whether third countries that only apply parts of the Schengen rule book (the current UK position) would also be eligible to participate. We also ask whether a third country would have to participate in the Dublin rules and Eurodac as well as some or all of the Schengen rule book to be eligible to participate in eu-LISA.

7.16The Minister appears to conflate the third country agreements envisaged in Article 38 with the “working arrangements” which eu-LISA itself may negotiate with relevant third country authorities under Article 38a of the proposed Regulation. We ask the Minister to confirm our understanding that these Articles pursue different purposes, the former allowing for third country participation in eu-LISA, the latter a looser form of cooperation.

7.17We look forward to receiving this information in sufficient time to enable us to consider clearing the proposed Regulation from scrutiny before it is formally adopted by the Council in the coming weeks.69 We draw this chapter to the attention of the Home Affairs and Justice Committees 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

7.18Our earlier Reports listed at the end of this chapter provide a detailed overview of the proposed Regulation and the Government’s position.

7.19It is envisaged that eu-LISA would be responsible for the operational management of eight existing or planned EU information systems. Four of these systems 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.

7.20As 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

7.21The Government has completed some of the steps need to participate in the proposed eu-LISA Regulation by:

7.22To secure full participation in eu-LISA, the Government would also need to seek a further Council Decision, based on Article 4 of the Schengen Protocol, authorising the UK to participate in the provisions of the Regulation concerning the operational management of new information systems in which the UK is not entitled not take part—the EES and ETIAS.

Previous Committee Reports

Twenty-first Report HC 301–xx (2017–19), chapter 8 (21 March 2018), Eleventh Report HC 301–xi (2017–19), chapter 4 (24 January 2018), 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).


64 See Council document 15119/17, summarised in our Sixteenth Report HC 301–xvi (2017–19), chapter 9 (28 February 2018).

65 See the Written Ministerial Statement issued by the then Home Secretary (Amber Rudd) on 2 November 2017, Hansard 32WS, as well as the letter of 1 December 2017 and the letter of 11 January 2018 from the Minister for Policing and the Fire Service (Mr Nick Hurd) to the Chair of the European Scrutiny Committee

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

67 See the Minister’s letter of 6 March 2018 to the Chair of the European Scrutiny Committee.

68 See the Minister’s letter of 20 July 2017 to the Chair of the European Scrutiny Committee on the proposed SIS II reform package.

69 Our scrutiny reserve only applies to decisions taken by a Minister within the Council, not to decisions taken by officials at Coreper. It is nonetheless good practice to provide a progress report and, if appropriate, request scrutiny clearance for proposals that are subject to the scrutiny reserve before they reach Coreper for political agreement.




Published: 26 June 2018