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Seventeenth Report of Session 2019–21 Contents

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7UK participation in the Schengen Information System59

These EU documents are legally and politically important because: they concern preparations for a phased “upgrade” of the Schengen Information System (SIS II) to be completed by the end of 2021 and highlight “serious deficiencies” in the UK’s application of current SIS II rules which may jeopardise UK participation in SIS II, or in similar real-time data sharing systems, after transition. Action Write to the Minister for Security (Rt Hon. James Brokenshire MP) requesting further information on (i) how the UK is addressing the “serious deficiencies” identified, and (ii) the Government’s position on existing precedents on third country access to SIS II. Draw to the attention of the Home Affairs Committee, the Justice Committee and the Committee on the Future Relationship with the European Union.

Overview

7.1The 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 and immigration controls 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.

7.2At our meeting on 18 June 2020, we considered two documents relating to the Schengen Information System. The first, a Council Implementing Decision (“the Council Decision”) adopted on 5 March 2020, makes a series of recommendations to rectify deficiencies in the UK’s implementation of SIS II—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. The 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. The upgrade stems from wider changes made in three Regulations (adopted in 2018) concerning different aspects of SIS II. The upgrade is expected to be completed and operational by the end of 2021. Our Thirteenth Report of Session 2019–21 provides further information on both documents.60

7.3The documents provide important context for the UK’s continued participation in SIS II during the post-exit transition period, ending on 31 December 2020, and for any arrangements that take its place after transition. The Government is seeking “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” after transition which would provide capabilities “similar to those delivered by SIS II”, but with no jurisdiction for the EU Court of Justice.61 The UK’s draft agreement on law enforcement and judicial cooperation in criminal matters (published in May 2020) includes a place holder (in Part Ten of the agreement) for the insertion of “legal provisions on SIS II capability”, with additional text (in square brackets) setting out the Government’s view that it is legally possible for the EU to establish capabilities similar to those provided by SIS II with the UK.

7.4By contrast, the EU has made clear 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.62 The EU’s draft legal text for a new partnership agreement with the UK 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.63 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”.64

7.5Despite the importance of the Schengen Information System for law enforcement in the UK, and the diminishing time available to establish equivalent capabilities by the end of 2020, the Government failed to submit an Explanatory Memorandum (due in March 2020) on time. We therefore decided to report the documents to the House in June, without the benefit of an Explanatory Memorandum setting out the Government’s position. In our letter of 18 June 2020, we asked the Minister for Security (Rt Hon. James Brokenshire MP) to:

• expand on the Government’s reasons for believing that it would be legally possible for the EU to agree “legal provisions on SIS II capability” as part of a future relationship agreement with the UK, drawing on any relevant third country precedents; and
• clarify whether the Government’s objective was continued UK 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 replicated those of SIS II? If the latter, what type of model the Government had in mind.

7.6Even if any legal obstacles to maintaining capabilities similar to those provided by SIS II could be overcome, we expressed concern that serious deficiencies in the UK’s implementation of the current rules governing the use of SIS II might create political obstacles which would be far harder to surmount. We asked the Minister:

• whether the Government accepted the Council’s judgment that there were serious deficiencies in the UK’s implementation of SIS II;
• whether the UK had drawn up an action plan to remedy the deficiencies identified by the Council and, if so, what assessment the Commission had made of its adequacy;
• whether (and how frequently) the Government was reporting to the Commission on its progress in implementing the action plan; and
• what efforts the Government had made to inform Parliament of the concerns raised about UK implementation of SIS II, the steps being taken to address them, and any practical or operational implications for UK law enforcement authorities.

7.7As regards the Commission report on preparations for the SIS II upgrade, we asked the Minister:

• whether the UK was developing its national systems to prepare for full implementation of the SIS II upgrade by the end of 2021 (as foreseen in para 2.1 of the report);
• whether the UK was part of the network of experts (set up in January 2019) to coordinate the preparatory work (para 2.2.1 of the report);
• how much the UK had been allocated from the EU budget to fund a “quick and effective upgrade” of its national systems and how this funding was being used (para 2.4.2 of the report);
• whether the UK had submitted a “state of play” report on its preparations for deploying SIS II’s automated fingerprint identification system (AFIS) and was deploying the fingerprint search functionality (para 2.4.3 of the report); and
• whether the UK had responded to the Commission questionnaire on preparations for implementing the SIS II upgrade (para 2.4.4 of the report).

7.8Finally, we sought an assurance that the Minister and his Department were committed to fulfilling their scrutiny obligations to Parliament during the transition period.

The Minister’s response

7.9In his letter of 26 June 2020, the Minister apologises for the delay in submitting an Explanatory Memorandum (also dated 26 June 2020), makes clear he takes Parliamentary scrutiny “very seriously”, and says he is “committed to ensuring that Committee deadlines are adhered to”.

7.10The Minister reiterates the Government’s position that “there is a mutual interest in providing capabilities similar to SIS II and that this is legally possible”. While Article 65 of the SIS II Law Enforcement Regulation, adopted in 2018, limits the sharing of SIS II data with third countries, he says “it does not explicitly preclude third country access to SIS II itself”, adding:

[...] the EU already has agreements with other third countries in respect of SIS II and other mechanisms e.g. Prüm. In addition, none of these agreements involve CJEU [Court of Justice] jurisdiction in those third countries, or a role for the CJEU in dispute resolution.

7.11The Minister notes that the alternative model envisaged by the EU for exchanging information is based on the “Swedish initiative framework”65—also a Schengen measure—and has a number of limitations compared with SIS II. It only provides for the exchange of policing information and intelligence data insofar as it relates to “identified concrete criminal acts”, not the real-time exchange of ‘alerts’ on persons and objects that are wanted, missing or otherwise of interest for law enforcement purposes. The Minister questions why the legal barriers alluded to by the EU should apply to SIS II but not to this alternative information exchange mechanism.

7.12Turning to the Council Implementing Decision setting out the remedial action to be taken by the UK to rectify serious deficiencies in its implementation of SIS II, the Minister says that the UK “continues to engage constructively and pragmatically with the EU on the terms of the SIS II evaluation” underpinning the Council Decision (carried out in 2017) and accepts that “many of the recommendations are not without merit”. The UK submitted an action plan to the Commission and Council on 24 April 2020 addressing many of the Council’s recommendations, as part of the normal process of Schengen evaluation applicable to all countries participating in Schengen, and the Government will continue to engage with the EU on the SIS II evaluation process for as long as the UK remains an operational user. He indicates that the EU is mainly concerned with the UK’s technical implementation of SIS II, such as shortcomings in the effective technical synchronisation of the UK system with the central SIS II network in Strasbourg, and that “significant progress” has been made. He considers that the UK is “well placed” to deliver on many of the Council’s recommendations “should there be negotiated access to SIS II beyond the transition period”, but adds:

However, given the uncertainty regarding future access to the system, our approach to implementation is cautious and necessarily pragmatic.

7.13Accordingly, the Government has given priority to addressing the concerns identified in the evaluation of the UK’s implementation of the current SIS II rules, reflecting the UK’s legal obligations under the Withdrawal Agreement, rather than preparing for the implementation of the SIS II upgrade. The UK is not participating in the network of experts tasked with coordinating preparatory work for the SIS II upgrade but is being informally kept abreast of technical developments. The UK has responded to Commission questionnaires and provided implementation reports “in line with normal procedure” but has not received EU funds to upgrade its national system “at this juncture”. The Minister says that “steps will be taken to accelerate implementation” of the SIS II upgrade if there is a positive outcome to the negotiations on SIS II capabilities after transition.

Action

7.14Write to the Minister for Security (Rt Hon. James Brokenshire MP) requesting further information on (i) how the UK is addressing the “serious deficiencies” identified in the Council Implementing Decision, and (ii) the Government’s position on existing precedents on third country access to SIS II.

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

Thank you for your letter of 26 June 2020 and Explanatory Memorandum of the same date on two EU documents: the first, a Council Implementing Decision setting out a series of recommendations to address “very serious deficiencies” in the UK’s implementation of the Schengen Information System (“SIS II”); the second, a Commission report examining 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.

Turning first to the Council Implementing Decision, you accept that “many of the recommendations are not without merit” and indicate that “significant progress has been made in addressing the (largely technical) concerns raised”. You add that “we are well placed to deliver against many of the recommendations should there be negotiated access to SIS II beyond the transition period”.

As we noted in our Thirteenth Report of Session 2019–21, a Resolution adopted by the European Parliament in February 2020 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 implemented all the recommendations made in the Council Decision.66 It would therefore be helpful to know how many of the Council’s recommendations you intend to implement, the timescale for doing so, and which (if any) you consider to be without merit. We also reiterate the request made in our letter of 18 June 2020 for details of the European Commission’s assessment of the adequacy of the action plan drawn up by the UK in response to the Council Implementing Decision.

We appreciate that the Government’s approach to the upgrade of SIS II (to take effect in 2021) is “cautious and necessarily pragmatic”, given the degree of uncertainty about the prospects for continued UK access to SIS II after transition. We nonetheless ask you to confirm whether the UK has already deployed the Automated Fingerprint Identification System (AFIS) for fingerprint searches in SIS II or intends to do so before the end of 2020.

We note your view that it is legally possible for the EU and the UK to agree capabilities similar to SIS II as part of a new relationship after transition. As you are aware, however, existing precedents for third country access to SIS II extend only to third countries (Iceland, Norway, Switzerland and Liechtenstein) which are part of the Schengen free movement area (having lifted their internal border controls with EU/Schengen countries). These non-EU Schengen countries are required, under their agreements with the EU, to apply the full Schengen rule book as it applies to EU Member States, as well as changes made to the rule book over time.67

While, as you note, the EU’s Court of Justice (“CJEU”) has no direct jurisdiction under these agreements, it does have a role to play under the mechanism established to ensure “the most uniform possible application and interpretation” of the Schengen rule book. Each non-EU Schengen country is required to report each year to a “Mixed Committee”68 on the way in which its administrative authorities and national courts have interpreted and applied the Schengen rule book, “as interpreted, where relevant, by the CJEU”. There is a requirement to “keep under constant review” relevant case law (cases decided in the CJEU and in domestic courts in Iceland, Norway, Switzerland and Liechtenstein) and to ensure the “regular mutual transmission” of this case law. Recognising that the way in which the CJEU interprets the Schengen rule book will be of direct interest to non-EU Schengen countries, their agreements with the EU include a right to submit their own statements or observations if a court in an EU Member State requests a ruling from the CJEU. Any “substantial divergence” in the way that the Schengen rule book is interpreted and applied would trigger a dispute and, potentially, the termination of the agreement if the Mixed Committee cannot settle the dispute within a specified time limit.

As you mention these precedents to support your view that an agreement with the EU on SIS II capabilities is legally possible, we would welcome your view on the provisions discussed above which seek to ensure “as uniform an application and interpretation as possible” of the Schengen rule book. Would provisions of this nature be compatible with the Government’s position, set out in its Command Paper, The Future Relationship with the European Union, that “we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK”?69 Would access to SIS II on the terms set out in the EU’s agreements with the non-EU Schengen-associated countries be acceptable to the Government?

Finally, I very much welcome your commitment to ensuring effective scrutiny during the post-exit transition period and the direction you have given to officials to investigate and resolve any shortcomings in your Department’s performance. I trust this will yield rapid results.

I look forward to receiving your response within 10 working days.

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