These EU documents are legally and politically important because:
10.1The is the most widely used and largest information sharing system for security and border management in Europe. The UK participates in the ‘second generation’ Schengen Information System (“SIS II”) for law enforcement purposes and would like to retain access to it after the post-exit transition period ends on 31 December 2020. SIS II gives 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.
10.2We have previously considered two documents relating to the Schengen Information System. The first, a (“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. The second document, a published in February 2020, examines the progress made by countries currently connected to SIS II (including the UK during the post-exit transition period) in preparing for its phased upgrade by the end of 2021. Our and Reports of Session 2019–21 provide further information on both documents.
10.3As we explain in our earlier Reports, the Government is keen to retain access to SIS II or to a mechanism delivering similar capabilities, but without oversight by the EU Court of Justice, as part of a future relationship agreement with the EU. How the Government responds to the serious deficiencies identified in the Council Implementing Decision and how it prepares for the planned upgrade of SIS II described in the Commission report may materially affect the prospects for reaching an agreement with the EU. For its part, 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.
10.4In to the Minister for Security (Rt Hon. James Brokenshire MP), we asked him to clarify how many of the recommendations in the Council Implementing Decision the Government intended to implement, the timescale for doing so, and which (if any) it considered to be without merit. We also reiterated our earlier request 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.
10.5One element of the SIS II upgrade addressed in the Commission report concerned preparations for deploying the Automated Fingerprint Identification System (AFIS) for fingerprint searches in SIS II by the end of 2020. We asked the Minister whether the UK had already deployed the AFIS search functionality or expected to be ready to do so before the end of 2020.
10.6In previous correspondence, the Minister cited EU agreements with Iceland, Norway, Switzerland and Liechtenstein to support the Government’s view that it would be legally possible for the EU and the UK to agree capabilities similar to SIS II as part of a new relationship after transition. We noted that all four countries were part of the Schengen free movement area (having lifted their internal border controls with EU/Schengen countries) and were 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. The agreements include provisions to ensure “the most uniform possible application and interpretation” of the Schengen rule book, “as interpreted, where relevant, by the CJEU”.
10.7We asked the Minister:
10.8In his , the Minister says that the Government does not agree with the legal reasoning behind nine of the 34 recommendations contained in the Council Implementing Decision. Work to remedy many of the deficiencies identified in that Decision began in February 2018, focussing primarily on the design of a new technical platform to resolve some of the core concerns regarding SIS II data management practices in the UK. He continues:
[…] addressing the recommendations fully is dependent on the replacement of existing legacy IT systems currently used by UK Law Enforcement and Border Force. These systems are not capable of supporting e.g. biometric data or facial imagery and are due to be phased out by 2022 as they are reaching the end of their operational lifecycle.
10.9These technical limitations are reflected in the long-term nature of the action plan presented to the Commission in response to the Council Implementing Decision and explain why the Commission currently considers it to be “not adequate”.
Given the ongoing uncertainty surrounding future cooperation on the SIS II capability, the Government’s focus has been to seek to resolve (partially or fully) as many of the recommendations as possible without additional investment. Officials therefore continue to engage constructively with the Commission on ‘interim’ proposals which seek to mitigate many of the issues raised — this includes, e.g. applying greater rigour to checking the consistency of data held on UK systems against that held on the central system in Strasbourg. In addition, efforts have been made to ‘de-amalgamate’ SIS II data from domestic datasets held on the Border watchlist, a key Commission concern.
10.10The Commission accepts that seven recommendations have been met in full and, the Minister adds, several more can be considered as having been partially addressed. He says the Government is “well placed to accelerate delivery of the principal technical platform if cooperation on SIS II capability forms part of the UK-EU future relationship”. Meanwhile, the Commission’s evaluation of the UK action plan is an iterative process, with the next assessment due “imminently”.
10.11The Minister confirms that the UK “has not and does not intend to deploy the AFIS system for fingerprint searches in SIS II before the end of this year” and that any change in approach will be informed by the outcome of the ongoing future relationship negotiations with the EU.
10.12Turning to the existing precedents for third country access to SIS II, the Minister reiterates the Government’s position that “any agreement between the EU and UK must not constrain the autonomy of the UK’s legal system in any way, nor provide any role for the CJEU in resolving UK-EU disputes” and that “any agreement providing for continued cooperation on capabilities similar to SIS II would have to be consistent with these principles”. He observes, however, that:
[…] the basis of the EU’s current opposition to continued cooperation in this area appears to be their view that it is not possible to make an agreement on the SIS II capability with a country outside the Schengen zone that does not provide for free movement of people, rather than because of any specific concerns relating to our clear and principled position in relation to the CJEU. We remain of the view that an agreement to continue to cooperate on capabilities similar to SIS II is possible if the political will exists and that there is no legal barrier to this.
10.13Finally, noting our reference to a (and reiterated in a further ) stating that UK access to SIS II as a third country is not feasible, the Minister observes that “these are ostensibly matters that remain open for negotiation between the UK Government and the European Commission and our position remains that there is mutual interest in retaining such capabilities and no legal barrier to doing so”.
10.14Write to thank the Minister for his response and to request a further update in October on the progress made by the UK in implementing its action plan, the Commission’s evaluation of the adequacy of the measures taken and the recommendations that remain outstanding, and the prospects for reaching an agreement on capabilities broadly replicating those provided by SIS II or on other means of sharing criminal information and intelligence to take effect after transition.
As you appreciate, UK access to the Schengen Information System (SIS II) or to a mechanism delivering similar law enforcement capabilities when the post-exit transition period ends on 31 December 2020 is an important part of the UK’s future relationship negotiations with the EU. We note the Government’s position that there is no legal barrier to maintaining SIS II capability after transition and that any technical obstacles can be overcome as part of a wider upgrade of the UK’s Law Enforcement and Border force IT systems.
We would welcome a further update from you in October on the progress made in implementing the UK’s action plan to address the deficiencies identified in the Council Implementing Decision, the Commission’s evaluation of the adequacy of the measures taken by the UK and the recommendations that remain outstanding, and the prospects for reaching an agreement on capabilities broadly replicating those provided by SIS II or on other means of sharing criminal information and intelligence to take effect after the post-exit transition period has ended.
146 (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 — Consulted; 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 — Consulted; ESC number 41107.
147 Thirteenth Report HC 229–ix (2019–21), (18 June 2020) and Seventeenth Report HC 229–xiii (2019–21), (16 July 2020).
148 See Part Two, paras 43–45 of the Government’s on The Future Relationship with the European Union (CP 211) published in February 2020.
149 See paras 117b and 121 of the to authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement.
150 See the , its and its .
151 See p.3 of .
Published: 16 September 2020