Select Committee on European Union Ninth Report

CHAPTER 8: conclusions and recommendations

General Conclusions

152.  The United Kingdom is not a Schengen State and will not become one in the foreseeable future. But the Schengen Information System, and its development into a second generation system, are matters of the highest relevance to this country.

153.  We believe this is well understood by the police, the prosecuting authorities, and all those involved in the combating of serious cross-border crime. They appreciate the benefits to be derived from this country's participation in the information system—benefits not just for this country, but for all the States with which we can share our information.

154.  We are less sure that this is fully understood by the Government. They are content not to participate in the current SIS, and likewise content that the United Kingdom should be one of the last countries to participate in SIS II. We find this hard to reconcile with their stated commitment to fighting cross-border crime.

Background—the development of the Schengen database

155.  Ministers should put more resources into the development of the national connection to SIS II. Whenever the central system is ready, the United Kingdom should be ready and able to participate as early and as fully as possible. (paragraph 30)

156.  A project of this importance and magnitude needs to be developed openly and publicly. It potentially affects not just EU citizens, but also hundreds of thousands of non-EU citizens who may wish to travel to or reside in the EU. Information must be readily available, not just to EU institutions and national experts, but to all those affected. (paragraph 38)

157.  It is unacceptable for a project with such cost and resource implications to be developed without a prior full impact assessment, and a full legislative explanatory memorandum. (paragraph 39)

158.  The Government should press for greater transparency in the future development of the project, including the award of contracts. (paragraph 40)

159.  The lack of transparency in Council proceedings, and in co-decision negotiations between the Council and the European Parliament, is an issue relevant to all areas of EU policy-making, and has been particularly noticeable in the negotiations on the SIS II legislation. The Government should press the EU institutions to ensure greater openness and transparency of their proceedings, and in particular to codify the procedures for co-decision negotiations. All drafts of legislation should as a general rule be published immediately. (paragraph 49)

160.  To facilitate public debate on SIS II and to ensure effective Parliamentary scrutiny of United Kingdom participation in the project, the Government should undertake to publish regular reports on our preparation for SIS II, and on the planned and actual impact on the United Kingdom. (paragraph 52)

How the system works in practice

161.  The SIS II legislation permits the use of one-to-many searches only once the Commission reports that the relevant technology is available and ready. The Government must press for:

• the Commission report to be drawn up on the basis of the opinion of independent experts;
• the certification by the Commission that the technology is ready, sufficiently accurate and reliable;
• the report to be adopted by unanimous vote of the Council after consultation with the European Parliament.

The Government must deposit the Commission report for scrutiny, and the views of Parliament must be taken into account. (paragraph 61)

162.  Full and clear statistics must be published at regular intervals, and should include:

• the number and type of alerts per Member State;
• the number and type of hits per Member State;
• the use of the SIRENE system for each type of supplementary information exchanged by each Member State; and
• actions taken following a hit for each type of hit and for each Member State. (paragraph 68)

163.  There must be harmonisation of statistics to ensure consistency and comparability between EU and national statistics on SIS II relating to extradition requests, visa refusals, refusals of entry at the border and refusals to grant or renew residence permits. (paragraph 69)

164.  We welcome the procedural harmonisation concerning immigration alerts contained in the legislation, but there should also be harmonisation of the substantive rules for listing a person. There should be a requirement to publish in the Official Journal a summary of the different national laws and practices concerning the creation of an immigration alert. (paragraph 71)

165.  The forthcoming review of the grounds for listing an immigration alert should also examine how well the right to appeal is secured in practice, and whether there is a need to address the timing of the right to appeal, and its link with the right to information. (paragraph 72)

166.  The United Kingdom is particularly affected by the application of the current SIS, and SIS II, to the family members of EU citizens. A British family which includes a third-country national subject to a SIS or SIS II alert will not be able in practice to travel to the Schengen area. This is justified if the third-country national has committed crimes sufficiently serious to justify exclusion under EC free movement law, but not otherwise. The application of SIS and SIS II rules needs to be monitored closely to ensure that they are being correctly applied. (paragraph 76)

167.  The Home Office should start planning for the inevitable increase in the resources needed by the Crown Prosecution Service. The resources should be agreed in sufficient time so that the effectiveness of the Crown Prosecution Service in issuing and executing extradition requests and European Arrest Warrants is not reduced. (paragraph 78)

Management of the system

168.  The Government should press for the establishment as soon as possible of a dedicated Management Authority for the Central SIS II. The legislation setting it up must provide for:

• the Authority to have the required technical expertise in overseeing and operating large-scale information systems;
• the Authority to be required to publish full and clear statistics at regular intervals;
• the Authority to be subject to effective scrutiny, including by the Court of Auditors;
• clear differentiation between the tasks which remain the responsibility of the Commission, and those delegated to the Authority;
• clear lines of accountability. (paragraph 88)

169.  The Government should ensure that individuals affected by the actions of the Management Authority are not left without an effective recourse to justice. (paragraph 90)

Access to data

170.  In order to ensure accountability, we believe that all Member States should report on the circumstances in which they will allow further processing of SIS II data, and when they will permit other Member States to process further SIS II data which they have entered. (paragraph 95)

171.  We welcome the provision requiring the publication of information on which authorities have access to SIS II data, and for what purposes. There is no reason why such information could not be published already in respect of access to data held in the current SIS. (paragraph 99)

172.  The Government should now publish:

• the list of those authorities which will have access SIS II data;
• the purposes for which they will have access;
• the list of those authorities which will be able to input data into SIS II; and
• the circumstances in which they will be able to do so. (paragraph 100)

173.  Access to SIS II data (or data in the current SIS) by asylum authorities, to determine responsibility for an asylum application or to decide on the merits of an application, must be subject to detailed safeguards ensuring a full exchange of relevant information following a hit. It is not enough simply to note that there is an alert against a person. (paragraph 106)

174.  Europol should indicate in its annual reports how often it has accessed SIS data, and what use has been made of that data. (paragraph 110)

Data protection and data processing rules

175.  We agree with our witnesses that the data protection regime applicable to the SIS II rules is unduly complex. There are several third pillar instruments in force or in the course of preparation which have data protection provisions which are similar to but not identical with those in chapter XII of the Decision. (paragraph 119)

176.  The third pillar Data Protection Framework Decision should prescribe exactly which data protection rules are applicable, and which are to prevail where there is a conflict. The Government should press the Council to achieve effective harmonisation of data protection rules in the Framework Decision, and ensure that it sets a sufficiently ambitious data protection standard. (paragraph 120)

177.  Given that the Data Protection Framework Decision would apply to SIS II, it is not appropriate to implement SIS II until the Framework Decision has been adopted and is being implemented. The Government should seek to have this Framework Decision adopted by the summer of 2007. (paragraph 124)

178.  Because of its importance for civil liberties, the Framework Decision should be negotiated with the maximum degree of transparency and involvement of data protection authorities at national and European level. (paragraph 125)

179.  As regards SIS II, the exclusion of Europol, Eurojust and security agencies from the proposed Data Protection Framework Decision is unjustified unless equivalent data protection standards apply to these bodies. (paragraph 127)

180.  The Government should press for amendments to the data protection rules when they are reviewed, in particular

• to provide for clearer rules on the right to information, and
• to limit the ability of Member States to derogate from data protection rights to those cases where national security and the operations of law enforcement authorities would be directly prejudiced. (paragraph 130)

181.  The Government should seek to ensure that the Data Protection Framework Decision requires that all national data protection authorities enjoy all of the powers referred to in the EC Data Protection Directive. The Framework Decision should also make clear that this provision applies to the SIS II Decision. (paragraph 133)

182.  The question of adequate resources for data protection authorities to enforce EU data protection rules, and the SIS II rules in particular, should be reviewed on a regular basis. (paragraph 134)

United Kingdom access to immigration data

183.  We accept, as do the Government, that the position under the Amsterdam Treaty is that the United Kingdom cannot have access to all SIS II immigration data as long as it retains its border controls. However the contribution this information can make to the overall security of the European Union needs to be taken into account. We hope that when amendments to the EC and EU Treaties are next negotiated the Government will seek to persuade our partners of the benefits, to them as well as to us, of securing amendments to the relevant provisions. (paragraph 148)

184.  In the meantime, Ministers should persuade their colleagues from the Schengen States that police and other law enforcement bodies in the United Kingdom must have access to other Member States' immigration data relating to the criminality of the individuals concerned. In return, the United Kingdom would make available to other Member States its own data on individuals who are undesirable due to their criminal activity. (paragraph 149)

185.  Time is of the essence. These recommendations rely on it being technically feasible to distinguish between alerts on unwanted aliens for public policy, public security and national security purposes, and alerts based on immigration control purposes. The sooner attempts are made to resolve these technical problems, the more likely they are to succeed. (paragraph 150)

186.  To help the United Kingdom and its EU partners in their joint fight against terrorism and serious crime, the Government must therefore press ahead with representations at the highest levels. (paragraph 151)

187.  We recommend this report to the House for debate. (paragraph  11)

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