Documents considered by the Committee on 12 September 2018 Contents

20Exchanging 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

20.1The 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. In early 2016, the Commission proposed a Directive—document (a)—to improve the operation of ECRIS and make it a more effective tool for exchanging information on third country national offenders convicted of a criminal offence in the EU. It was supplemented in 2017 by a proposed Regulation—document (b)—which would establish a centralised EU information system containing biographical information, fingerprints and facial images of third country national offenders. 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. The UK has participated fully in ECRIS since it became operational in April 2012. As ECRIS is an EU criminal law measure, participation in the proposed changes is subject to the UK’s Title V (justice and home affairs) opt-in. The Government has opted into both proposals.

20.2The Justice and Home Affairs Council agreed a general approach on the ECRIS package in December 2017. The Minister for Policing and the Fire Service (Mr Nick Hurd) described the outcome of negotiations as “broadly acceptable” but the UK abstained during the vote as both proposals remained under scrutiny.256 In subsequent correspondence (see our Report agreed on 13 June) he explained that the (then) Bulgarian Presidency was keen to complete trilogue negotiations between the Council, European Parliament (EP) and Commission and put the final compromise texts to COREPER for political agreement by the end of its term (30 June). Although some issues were still subject to discussion, he outlined the progress made and anticipated that the final texts would establish “a much more efficient mechanism for identifying where convictions of Third Country Nationals (TCN) are held in the EU than is the case now” and that the Government would wish to vote for them.

20.3In his latest letter of 24 July 2018, the Minister says that, contrary to expectations, the Presidency was unable to secure agreement in June—the sticking points remain the criminal threshold for taking and loading fingerprints into the central ECRIS (TCN) system and the inclusion of criminal record information on individuals who are nationals of an EU Member State and a third country (“dual EU/TCN nationals”). Negotiations will now be taken forward by the Austrian Presidency.

20.4The delay in reaching an agreement on the ECRIS package means that the deadline of 36 months for Member States to implement the changes proposed will fall outside the transition/implementation period envisaged in the draft EU/UK Withdrawal Agreement which will end on 31 December 2020. We noted in our earlier Report that, to avoid a loss of operational capability and minimise the risk that criminal record information would no longer be available to inform sentencing decisions or enhance public protection, a new internal security treaty would need to be in place by the end of 2020 and asked the Minister: to:

20.5The Minister tells us that exit negotiations with the EU’s Article 50 Task Force have mainly focused on the Withdrawal Agreement itself and the transition/implementation period from March 2019, but adds that “formal negotiations on the future relationship are now underway” and discussions on internal security took place in May and June. He refers us to the Framework for the UK-EU Security Partnership published by the Government in May and its July White Paper which sets out the UK’s position on the content of the future relationship. He adds:

“We continue to work at pace to finalise the Withdrawal Agreement and Future Framework by October.”

20.6The Minister says it will be for the EU and its 27 Member States to determine how competence under any post-exit internal security treaty with the UK should be exercised but implies that it is most likely to concern areas for which the EU has acquired exclusive competence through the adoption of internal EU rules as:

“The UK has proposed that the treaty should provide for cooperation on the basis of measures in relation to which the EU has already exercised competence.”

20.7The Minister also encloses copies of his Department’s Impact Assessment on the costs and benefits of participating in the ECRIS package and a separate Justice Impact Test. He concludes that UK participation would provide “significant public protection benefits”:

“Having more information on TCN [third country national] offending can improve the investigation and prosecution of offences, allow for more consistent sentencing, increase opportunities to put public protection measures in place, increase opportunities for the removal of foreign national offenders, and increase the availability of previous convictions for use in employment vetting.”

20.8He notes also that:

“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 the UK leaves the EU.”

20.9The Minister reiterates his view that “it would not be appropriate to conduct an impact assessment which examines the impact of ‘no deal’ on ECRIS and ECRIS-TCN as the exact structures to allow security, law enforcement and criminal justice cooperation to continue once the UK has left the EU, including the nature of our cooperation vis ECRIS, will be a matter for negotiations”. He is unwilling to “set out unilateral positions on specific measures as this could in turn risk exposing our negotiating position”. He adds that the Government nonetheless “continues to plan for all eventualities”, including the impact on the UK of not securing a post-exit security treaty encompassing ECRIS and ECRIS-TCN (and other areas of criminal justice and security cooperation) before the end of the transition/implementation period.

Our Conclusions

20.10We thank the Minister for his latest update. As we indicated in our earlier Report, we share the Minister’s view that the ECRIS package will improve the mechanism for obtaining information on the offending history of third country nationals within the EU. We also accept that UK support for the package is consistent with the Government’s wider objective of securing a new internal security treaty with the EU post-exit. We look forward to receiving further details of any new compromise texts prepared by the Austrian Presidency so that we can consider clearing the ECRIS package before it is put to the Council for formal adoption.

20.11In light of the Government’s assessment (in its Framework for the UK-EU Security Partnership) that there are “no viable existing third country alternatives” to ECRIS and that there would be “a clear mutual loss of operational law enforcement and criminal justice capability” and “substantial security consequences” if the UK were no longer able to participate in ECRIS and other elements of the EU’s internal security toolkit, we ask the Minister to provide regular progress reports on negotiations for a new EU/UK internal security treaty.

20.12Pending further information explaining how the outstanding issues in trilogue negotiations have been resolved, the proposals remain under scrutiny. 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

20.13Our 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.

Previous Committee Reports

Thirty-first Report HC 301–xxx (2017–19), chapter 6 (13 June 2018), Eleventh Report, HC 301–xi (2017–19), chapter 3 (24 January 2018); 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) only, 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).


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




Published: 18 September 2018