Examination of Witnesses (Questions 73-79)
Professor Kees Groenendijk, Ms Evelien Brouwer, Professor
Theo de Roos and Professor Elspeth Guild
18 OCTOBER 2006
Q73 Chairman:Good
morning, ladies and gentleman, to be joined by another gentleman
shortly; I understand that he is on his way. Welcome to all of
you. If I may say, Ms Brouwer, a special welcome to Professor
Groenendijk and to Elspeth Guild who are longstanding friends
of this Committee, or at least I hope you regard yourselves in
that way. This session is on the record and you will in due course
be sent a transcript of the evidence for you to check that we
have it correctly recorded. It is being broadcast but not televised.
It is very good of you to come and particularly good of you to
come from some way away. Do any of you want to make any opening
statement or opening comment?
Professor Groenendijk: First of all, I would
like to thank you for the invitation and once again commend this
subcommittee for its very important contribution to democracy
and rule of law in Europe by holding these kinds of hearings.
It is the only national parliament which does so. I think that
the issue of SIS is especially important because the questions
you have formulated and the issues you are discussing now arise
in regard to the Schengen Information System that contains personal
data of about 700,000 to 800,000 third country nationals but the
same questions will arise or are on the table with regard to the
Visa Information System which will contain the data on millions
of third country nationals. So, the theme is a very important
one. If you will allow me to draw one more parallel, I remember
that, during the negotiations on the Schengen Implementing Agreement
in 1989, there was a great deal of pressure put on discussions
around issues such as remedies and protection of privacy, but
then we had to rush because everything had to be agreed in 1990
in order that the system could be in place in 1992. Eventually
SIS became operative only in 1995. Now, we have exactly the same
pressure again, that everything should be decided within a few
months and even now there is talk about SIS II being operative
in 2008. Why do we not take some time to discuss these very important
issues and why do we allow ourselves to be rushed—and I
will not say by the politicians because that may be a bad thing
to say in this House?
Q74 Chairman: Thank you very much for
that. Incidentally, I should have thanked Elspeth Guild and Ms
Brouwer for your written evidence.
Professor Groenendijk: May I introduce Ms Brouwer?
She is a PhD student at the Radboud University Nijmegen. She is
writing her dissertation on the functioning of the Schengen Information
System in France, Germany and the Netherlands. That is why we
are very happy to have her on our Committee. Professor de Roos
will arrive at any moment; he is on another plane.
Q75 Chairman: When it is written, I hope
that you will send us a copy. I think that my first question leads
on very much from what Professor Groenendijk has said because
it is a rather speculative question and that is, what improvements
could have been made to the process of negotiating the SIS II
legislative instruments? Are you satisfied with the transparency
of the process and should there have been an impact assessment
or public consultation? All three of you—and the same will
of course apply to Professor de Roos when he is here—are
welcome to answer any or all of the questions. Who would like
to have a shot at that one?
Ms Brouwer: The Meijers Committee welcomes the
fact that the European Parliament has been much better involved
in the decision making on SIS II and not only with regard to the
Regulation on SIS II but also with regard to the Decision. As
we have seen in the last weeks, the LIBE Committee was able to
decide or take a part in the package deal on two decisions. I
think that is an improvement and you could say that this is a
start for more transparent decision making. We are concerned however
that there have been many decisions adopted between 2001 and 2006
on the actual use of SIS, extending the use, giving new authorities
access to SIS, and broadening the functioning of SIS. This has
already been incorporated now in the decision making on SIS II.
This piecemeal approach, as it is called, is making for opaque
decision making on this issue. Secondly, national parliaments
and the UK Parliament have found it very difficult to cope with
the different amendments since the European Commission published
the proposal in 2005. As you probably know better than we do,
there have been many amendments from the Member States and, every
time there is a new proposal from one Member State, it makes it
very difficult to see what is really happening to such an important
issue like SIS, as Professor Groenendijk mentioned. So, we are
not very happy with the actual decision making.
Q76 Chairman: What about impact assessment?
Why do you think that none was done in this case?
Ms Brouwer: That is a good question because,
in 2004, the European Council decided that, for large IT databases
such as SIS, there should be an extended impact assessment and
there has not been one on SIS II. Professor Peers knows the decision-making
process better in the third pillar framework but I think it would
have been a good opportunity to make such an extended impact assessment.
If you would allow me to say one more thing, the Meijers Committee
has commented on the extended impact assessment on the Visa Information
System. You cannot say that there was a proper balancing of the
positive and the negative aspects of VIS. You could have doubts
about whether this was the perfect assessment before reaching
a decision on the Visa Information System, but it is a start.
Professor Guild: I would like to add a few comments
as well from the perspective of ILPA. We note from the proposed
Regulation and the Decision on SIS II which have now been agreed
with the European Parliament that, rather than more transparency
by the involvement of Parliament, what seems to be happening is
that the European Parliament is being taken into the shadows with
everybody else. They are agreeing in private negotiations and
then what will happen is that the Regulation and the Decision
will be adopted at first reading by the European Parliament. Therefore,
instead of the Parliament necessarily increasing transparency,
it in fact seems to be being drawn into negotiations behind closed
doors and while we have a much better system of releasing documents,
I am not sure that transparency is what is happening.
Q77 Chairman: May I interrupt you there
and ask you: are you aware of complaints from the European Parliament
at this lack of transparency?
Professor Guild: I do not know about complaints
by them because they are involved. It is us—we are excluded.
They are in, so they have stopped complaining, but we are not
in. It is all very well and good but it does not solve the problem
from the perspective of civil society. On public consultation,
we notice that the European Data Protection Supervisor and national
data protection supervisors in fact made a number of comments
in respect of both of these proposals, but we do not notice that
their comments having been received actually made much impact.
We are somewhat concerned about whether, even if there is public
consultation, consultation is being taken sufficiently into account.
Is sufficient weight being given to those who are going to have
the duty of enforcement? There seems to be a very heavy obligation
on data protection supervisors to provide an intermediary control
of SIS II. On impact assessments, I would certainly support what
Evelien Brouwer has said. In my view, the problem about impact
assessments is that so far they are done by the same people who
are writing the proposal, so they are not independent, and they
are designed to justify the proposal. Therefore, I am not quite
sure why we are calling them "impact assessments", they
are explanatory memoranda.
Q78 Earl of Caithness: Do you have any
evidence that the current SIS has proved its efficiency and added
value for maintaining a high level of security in an area without
internal border control and, if so, what is the evidence?
Ms Brouwer: Your question is as to whether the
current use of SIS works for improving security. That is a very
good question and you would have thought this would be the first
question to answer, when starting with the development of the
second generation SIS. Is the current SIS actually functioning?
I have not seen any document at the EU level or the national level
where Member States or national police organisations are saying
that security is much higher now and SIS works. I think that if
you ask immigration law officers, they will tell you that it works
because it is sort of efficient. From an immigration law point
of view, I do not say that it works—and we will come on
later to that—because there are a number of deficiencies.
I think that immigration law authorities will tell you that we
have a good system: that you put persons into the system and another
authority in another country will know that this person has to
be refused entrance. For policing and law enforcement authorities,
at this moment, I have not seen evidence that SIS is giving added
value and, from my research, I think that immigration law authorities
will say that it is a very useful tool but only in a restricted
sense.
Q79 Lord Avebury: Can you say anything
about the impact of the multidisciplinary group on organised crime
and its work on the European data protection framework on SIS
II? To what extent does the work of this multidisciplinary group
have an effect on the data protection regime to be adopted for
SIS II? How did such a group come into being to look at these
aspects of the European data protection framework?
Ms Brouwer: I think that would be a good question
to ask Professor de Roos when he arrives. Do you mean the actual
framework decision on data protection that has now been drafted
and how that will work?
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