Thirteenth Report of Session 2019–21 Contents

10UK participation in the Schengen Information System55

Overview

These EU documents are politically important because:

  • they concern preparations for a phased “upgrade” of the Schengen Information System (SIS) to be completed by the end of 2021 and highlight “serious deficiencies” in the UK’s application of current SIS rules which may jeopardise UK participation in SIS, or in similar real-time data sharing systems, after transition.

Action

  • Write to the Minister for Security (Rt Hon. James Brokenshire MP) asking him why the Home Office has not provided an Explanatory Memorandum on the documents, urging him to do so immediately, and outlining the issues he should address.
  • Draw to the attention of the Home Affairs Committee, the Justice Committee and the Committee on the Future Relationship with the European Union.

10.1The Schengen Information System (“SIS”) is the most widely used and largest information sharing system for security and border management in Europe. The UK cannot use SIS for the purpose of border control as it does not participate in the Schengen free movement area in which internal border controls have been lifted between Schengen countries. The UK has, however, been able to use SIS II (the ‘second generation’ Schengen Information System) for policing and criminal law purposes since April 2015, giving police real-time access to data (in the form of ‘alerts’) which can be vital in tackling crimes which have a cross-border dimension and in identifying and apprehending criminals seeking to evade justice in the border-free Schengen area. As a latecomer to SIS II, the UK must demonstrate that it meets the conditions for participation and applies the EU rules governing its use. A first evaluation of the UK’s implementation of the EU rule book on SIS II was carried out in June 2015, followed by a second in November 2017.

10.2Shortly afterwards, in 2018, the EU (with UK participation) agreed a further upgrade of SIS II to enhance its functionality. The changes will allow more data to be shared through SIS II, improve the existing automated fingerprint recognition system, and extend biometric searches using new categories of data, such as palm prints and facial images. The changes are being phased in and should all be completed and operational by the end of 2021.

10.3The UK remains connected to SIS II during the post-exit transition period provided for in the EU/UK Withdrawal Agreement which is expected to end on 31 December 2020.56 Two documents, one relating to UK implementation of the rules governing the existing SIS II, the second to preparations for implementing the upgrade to SIS II agreed in 2018, have been deposited for scrutiny.

10.4The first document, a Council Implementing Decision (“the Council Decision”) adopted on 5 March 2020, follows the November 2017 on-site evaluation by a team of Commission and Member State experts which found serious deficiencies in the UK’s implementation of SIS II. The Council Decision makes a series of recommendations addressed to the UK to rectify these deficiencies—25 of the 34 recommendations concern (in the Council’s view) “very serious deficiencies” requiring immediate action. It says the UK should stop making illegal copies of SIS data, ensure that copies of SIS data are up to date by carrying out full data consistency checks, improve the functionality of the Police National Computer, and take appropriate action on the alerts issued by Schengen countries.

10.5The Council Decision is based on a 2013 Regulation establishing a mechanism for evaluating and monitoring Member States’ application of the Schengen rule book.57 Under this mechanism, the UK must provide the Commission and Council with an action plan to remedy the deficiencies identified in the evaluation report within three months of the adoption of the Council Decision, or one month if the Council’s recommendations indicate that the UK is “seriously neglecting its obligations”. The Commission must share the action plan with the European Parliament and with Member States and has one month in which to present its assessment of the adequacy of the action plan. Once completed, the UK must report regularly to the Commission on the progress it is making in implementing its action plan. During this period, the Commission is required to provide regular updates to the European Parliament and the Council. It should also inform national parliaments of “the content and results” of the evaluations it has carried out.58 The 2013 Regulation does not seek to prescribe how national Governments share information on the outcome of evaluations and any remedial action taken with their national parliaments.

10.6The second document, a Commission report published in February 2020, examines the progress made by Member States in preparing for the phased upgrade of SIS II from the beginning of January to the end of September 2019. It describes the work undertaken by the Commission, the EU’s specialised IT Agency (eu-LISA), Member States (including the UK), Europol and the European Border and Coast Guard Agency (formerly Frontex). The information concerning Member State preparations is based on reports and responses to questionnaires. The Commission concludes that “significant progress” has been made in the phased implementation of the upgrade to SIS II, while noting that Member States are “at different stages of preparation”.

10.7The documents provide important context for the negotiations underway between the EU and the UK to establish a new relationship after the post-exit transition period has ended, including a framework for continued law enforcement and criminal justice cooperation. The Political Declaration agreed by the EU and the UK in October 2019 sets out a common aspiration for “comprehensive, close, balanced and reciprocal law enforcement and judicial cooperation in criminal matters” with a view to delivering “strong operational capabilities” while also underlining that “the United Kingdom will be a non-Schengen third country that does not provide for the free movement of persons”.59 It says that arrangements for the exchange of information should seek to deliver capabilities approximating those provided by existing EU systems (such as SIS II) “in so far as is technically and legally possible, and considered necessary and in both Parties’ interests”.60

10.8The EU’s negotiating mandate for a new partnership with the UK, published in February 2020, states that “a third country cannot enjoy the same rights and benefits as a Member State” and that alternative means of sharing criminal information and intelligence must therefore be found.61 The EU’s draft legal text includes provisions on the exchange of information to support criminal investigations but rules out sharing data with the UK that has been “processed in databases established on the basis of Union law.62 This would preclude direct or indirect access by UK law enforcement authorities to SIS II data. It is consistent with Article 65 of the SIS II Law Enforcement Regulation, adopted in 2018, which provides that data processed in SIS and related supplementary information exchanged between national law enforcement authorities “shall not be transferred or made available to third countries”.63

10.9The Government’s Command Paper setting out its approach to negotiations with the EU envisages a freestanding Agreement on Law Enforcement and Judicial Cooperation in Criminal Matters which would include “a mechanism for the UK and EU Member States to share and act on real-time data on persons and objects of interest including wanted persons and missing persons”, providing capabilities “similar to those delivered by SIS II”, but with no jurisdiction for the EU Court of Justice.64 The UK’s draft legal text includes a place holder (in Part Ten of the agreement) for the insertion of “legal provisions on SIS II capability” following further discussions with the EU. Additional text (in square brackets) puts on record the Government’s view that there is a mutual interest in establishing capabilities similar to those provided by SIS II and that it is legally possible for the EU to do so.

10.10The European Parliament will have to give its consent to any agreement on law enforcement and criminal justice cooperation which the EU proposes to conclude with the UK. Some MEPs have been highly critical of the UK’s use of SIS II.65 In a Resolution adopted in February 2020 ahead of negotiations on the future relationship between the EU and the UK, the European Parliament not only ruled out UK access to SIS II as a third country after transition, but also stated that arrangements for future cooperation between the EU and the UK in the area of law enforcement should only be discussed once the UK had remedied all the deficiencies identified in the Commission’s evaluation and implemented the recommendations made in the Council Decision.66

The Government’s position

10.11The Home Office is the lead Department for both documents deposited for scrutiny and for UK policy on the Schengen Information System. The deadline for submitting an Explanatory Memorandum on the documents expired in March. It is now three months overdue.

Action

10.12Write to the Minister for Security (Rt Hon. James Brokenshire MP) requesting an explanation for the delay and outlining the questions we expect him to address, as a matter of urgency, in his Department’s Explanatory Memorandum on these documents.

Letter to the Minister for Security (Rt Hon James Brokenshire MP), Home Office

10.13I am writing in connection with two EU documents concerning the Schengen Information System (SIS II) which were deposited for scrutiny in early March and on which we have yet to receive an Explanatory Memorandum. I understand that you are the Minister responsible for Home Office policy during the transition period established by the EU/UK Withdrawal Agreement.

10.14The first document, a Council Implementing Decision adopted on 5 March 2020, follows an on-site evaluation by a team of Commission and Member State experts in November 2017 which found serious deficiencies in the UK’s implementation of SIS II. It makes a series of recommendations, addressed to the UK, to rectify these deficiencies, with 25 of the 34 recommendations described as “very serious deficiencies” which require immediate action.

10.15The second document, a Commission report published in February 2020, examines the progress made by countries currently connected to SIS II (including the UK during the transition period) in preparing for its phased upgrade by the end of 2021.

10.16Both documents provide important context for the negotiations underway between the EU and the UK to establish a new relationship post-transition, including a framework for continued law enforcement and criminal justice cooperation. As you know, the Political Declaration agreed by the EU and the UK in October 2019 says that arrangements for the exchange of information for law enforcement purposes should seek to deliver capabilities approximating those provided by existing EU systems (such as SIS II) “in so far as is technically and legally possible, and considered necessary and in both Parties’ interests”.67 The EU’s draft legal text rules out sharing data with the UK that has been “processed in databases established on the basis of Union law.68 This would preclude direct or indirect access by UK law enforcement authorities to SIS II data. It is consistent with Article 65 of the SIS II Law Enforcement Regulation, adopted in 2018, which provides that data processed in SIS and related supplementary information exchanged between national law enforcement authorities “shall not be transferred or made available to third countries”.69

10.17By contrast, the UK’s draft legal text includes a place holder for the insertion of “legal provisions on SIS II capability” and puts on record the Government’s view that there is a mutual interest in establishing capabilities similar to those provided by SIS II and that it is legally possible for the EU to do so.

10.18We ask you to expand on the Government’s reasons for believing that it is legally possible for the EU to agree to the inclusion of “legal provisions on SIS II capability”, drawing on any relevant third country precedents. We also ask you to clarify whether the Government is seeking continued participation in and direct access to SIS II as a third country after transition, or rather a legally binding commitment by the EU to develop capabilities short of participation that replicate those of SIS II? If the latter, what type of model do you have in mind?

10.19The documents under scrutiny indicate that, even if a legal solution can be found, the political obstacles may be far harder to surmount because of a perception that the UK is not adhering to the rules governing the use of SIS II. The Council Implementing Decision is part of a process set out in a 2013 Regulation establishing a mechanism for evaluating and monitoring Member States’ application of the Schengen rule book.70 We ask you to explain:

Turning to the Commission report on preparations for the SIS II upgrade, we ask you to explain:

10.20We look forward to receiving your Explanatory Memorandum—now three months overdue—as a matter of urgency. We seek an explanation of the reasons for the delay (one of many on Home Office documents) and an assurance that you and your Department are committed to fulfilling your scrutiny obligations to Parliament during the transition period.


55 (a) Council Implementing Decision setting out a recommendation on addressing the serious deficiencies in the 2017 evaluation of the United Kingdom on the application of the Schengen acquis in the field of the Schengen Information System; Council document 6554/20; Legal base Articles 1(1)(a) and 15(3) of Council Regulation (EU) 1053/2013; Department—Home Office; Devolved Administrations—; ESC number 41120.

(b) European Commission report on the state of play of preparations for the full implementation of the new legal bases for the Schengen Information System (SIS) in accordance with Article 66(4) of Regulation (EU) 2018/1861 and Article 79(4) of Regulation (EU) 2018/1862; Council document 6463/20, COM(20) 72; Legal base—; Department—Home Office; Devolved Administrations—; ESC number 41107.

56 See Articles 127 and 132 of the EU/UK Withdrawal Agreement. The Joint Committee can agree before 1 July 2020 a one-off extension of the transition period “for up to 1 or 2 years”, but UK agreement to such an extension would require a statutory amendment. Section 15A of the EU (Withdrawal) Act 2018 prohibits a Minister of the Crown from agreeing to an extension in the Joint Committee.

57 See Articles 15 and 16 of Regulation (EU) No 1053/2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis.

58 See Article 19 of the 2013 Regulation.

59 See para 80 of the Political Declaration.

60 See para 85 of the Political Declaration.

61 See paras 117b and 121 of the Annex to Council Decision 2020/266 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement.

62 See Part Three of the draft legal text, chapter four concerning cooperation on operational information.

63 Regulation (EU) 2018/1862 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters.

64 See Part Two, paras 43–45 of the Government’s Command Paper on The Future Relationship with the European Union (CP 211) published in February 2020.

65 See the article published in The Guardian on 9 January 2020, Dutch Liberal MEP Sophie in ‘t Veld says leaked report revealed ‘violations and abuse’.

66 See para 94 of the EP Resolution on the proposed mandate for negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland, P9_TA(2020)0033.

67 See para 85 of the Political Declaration.

68 See Part Three of the draft legal text, chapter four concerning cooperation on operational information.

69 Regulation (EU) 2018/1862 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters.

70 See Articles 15 and 16 of Regulation (EU) No 1053/2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis.




Published: 24 June 2020