Examination of Witnesses (Questions 560-579)
Joan Ryan MP, Mr Jonathan Sweet, Mr Mike Fitzpatrick
and Mr Kevan Norris
29 NOVEMBER 2006
Q560 Lord Avebury: Would these arrangements,
if they do come off, result in conditional access by our officials
to SIS II alerts on the computer system?
Joan Ryan: It is indirect access rather than
conditional access. It is making an agreement with somebody else
who may have that information and how they will exchange that
information with us, but we do not expect rapid progress on that
issue at the moment, it is true to say.
Mr Sweet: There is of course sympathy from some
Member States towards the UK's request to have access to these
data, but quite often one comes up against the fairly fundamental
point, which is that other Member States suggest that if we want
full access to all the information that is available on Schengen
information systems, then the short simple answer is for the UK
to participate fully in Schengen.
Q561 Lord Corbett of Castle Vale:
Given that the UK opted out from the negotiations on the SIS II
immigration data Regulation, to what extent did the UK nevertheless
take part in the discussion, informally perhaps, of this proposal?
What positions did we advocate and how influential were we?
Joan Ryan: It was more than informal. During
the UK presidency, we chaired the Schengen Acquis Working Group.
We have attended and participated in all working group meetings,
so we have been very involved. We have not been successful in
pursuing all of our objectives in terms of some of the discussion
we have just been having in that indirect access and entry refusal
data for asylum purposes issue; we were not successful there.
However, that is not to say that we did not have some successes
on some issues. We had a number of objectives in terms of this
working group: inclusion of biometrics, for instance, and we had
some success there; flexibility of the use of the system; scanned
copies of European arrest warrants on the SIS II; extended access
for Eurojust and for Europol to help them better to fulfil their
tasks; and the mechanism for oversight for data protection, which
I know is an issue that this committee is always concerned about;
and a mechanism that is independent of the Commission, preferably
a single structure. We are broadly happy with the outcome of the
negotiations on these points. The committee is aware that we have
been unsuccessful on some key issues for us.
Q562 Lord Teverson: Minister, to
clarify something in my own mind here, this question we have just
heard relates to a Regulation. Schengen is now part of the Acquis
of the Community, as opposed to a separate agreement. I presume,
in terms of the Council of Ministers, that in all Regulations
clearly the UK is able to participate or is a participant in all
legislation as part of the legislative process. There is no longer
a separate Schengen Council group that votes on legislation presumably,
or have I got this wrong?
Joan Ryan: I will ask the officials to come
in on this in a moment. My understanding is that because we opt
out and we do not opt in to the whole of Schengen, then we are
not allowed to participate in all these Regulations.
Q563 Lord Teverson: I am talking
about the legislative process in terms of voting in the Council
of Ministers.
Mr Sweet: Essentially, as you say, the Schengen
Acquis was incorporated into the body of the EU and there is,
in that sense, not a separate mechanism as such. When it comes
to discussing particular proposals which might be brought forward
that relate to aspects of the Schengen Acquis, then those are
discussed in the Schengen Acquis Working Group, for instance,
which is within the Council structure. Clearly, in relation to
each individual instrument, if it is an instrument which, if one
accepts the Council Legal Service analysis for example, builds
on a part of the underlying Schengen Acquis into which the UK
had not opted, then we do not participate in that instrument.
We can contribute to the discussions—we are still in the
working group and we do contribute to the discussions—but
we will not, at the end of the day, formally be a party to that
instrument.
Q564 Lord Teverson: Forgive my newness
to this committee. When it is a Regulation, which is a legislative
instrument within the European Community depending on the pillar,
I had not understood that all Member States were not able to participate
in actual Regulations. It may be that working parties follow on
from Schengen but, in terms of the legislative voting in the Council
of Ministers, are we actually excluded from that?
Mr Sweet: Yes, we do not participate in the
Regulation itself. This is a particular example. There are two
instruments for the Schengen Information System. One is a third
pillar Council Decision, in which we do participate; the other
is a first pillar Regulation. Because we have not chosen to participate
in the underlying part of the Schengen Acquis, which deals with
those immigration aspects, then we do not participate in that
Regulation.
Q565 Lord Teverson: That is part
of the Treaty of Amsterdam, is it?
Joan Ryan: The debate we are having is that
some of what is in the first pillar relates to law enforcement,
not just immigration. Therefore, we think we should be able to
participate in the law enforcement aspects of it.
Q566 Lord Teverson: I understand
the participation issues. It is the core legislative issue that
I had not realised.
Joan Ryan: Other Member States say, as Jonathan
said, that the solution rests with us because we can opt in to
the whole of Schengen if we wish. It is simply because we opt
out that we are not able to participate in those Regulations that
relate to parts of Schengen we decided not to participate in.
Chairman: I think to some extent we are
getting into this rather complicated area of distinguishing between
first and third pillars.
Q567 Lord Dubs: I think you have
probably answered my question. My question is about what the main
objectives were of the UK Government in negotiating the third
pillar of the SIS II Decision. If you have not already answered
that, I would welcome an answer, together with how well we can
achieve those objectives and on which points did we have to compromise
or relinquish our objectives. I think that was a third pillar
answer.
Joan Ryan: I think I answered that.
Q568 Earl of Listowel: Minister,
can you say who is responsible for the delay in the application
of SIS II, which has caused so much concern to the new accession
countries? Has the Government now come to a final position on
whether it will support the extension of the current SIS to new
Member States in the meantime?
Joan Ryan: I think our view is that no single
body is responsible for the delay. There are three main causes.
One was the delay to the preparatory work required at the French
site. One was the legal challenges to awarding the main development
and network contacts. The third main delay was to do with the
legal basis that has taken five months longer than anticipated.
I think there would also be doubts as to whether, had things all
gone to plan, which of course they have not, all Member States
would have been ready to join themselves on the original timetable.
There is a number of reasons for the delay. Though it would be
easier to be able to point the finger at one single body and reason,
I do not think it is possible to do so. In terms of what is now
called SISone4all, to be candid with the committee, we have had
concern about creating SISone4all and expanding SIS to accommodate
fundamentally the 2004 A8 accession states. We understand that
this is a big issue for them and part of the commitment they made
to their populations of the countries on accession. We understand
that they are very frustrated at the delay. As for our own view,
we have had concerns about the technical feasibility of it, though
we understand that, after consideration, it is technically feasible.
I will ask one of the officials to comment on that in a moment.
That is about as far as I can go on the technical information,
but we understand that it is being judged to be technically feasible
to do this. We are not going to oppose SISone4all. We cannot in
fact stop it, even if we did. We are not going to oppose it but
we are not ourselves looking to participate in SISone4all. Our
concern is that focus on SISone4all would further delay SIS II.
So we have made very strong noises in various meetings at different
levels, both at political and official level, about those concerns
and that SISone4all will not be worth it if it delays SIS II to
any significant way, and there is a question of whether SISone4all
is worth it if it is so close to SIS II coming on stream. Those
are all decisions for those who will participate in SISone4all.
We have made clear our concerns and I think those concerns have
certainly been listened to. Obviously, I think there will be consideration
of this issue on the 4 and 5 December, which is now next week,
at the Justice and Home Affairs Council in Brussels. We want to
object. We have had a lot of conversations. We do have some concerns.
We have sought reassurance on those concerns and we do think those
concerns are being taken on board. That probably sums up our position.
We are fully committed to delivering SIS II, and to plugging into
that as early as possible, by 2010.
Chairman: Minister, I should say we did
not have an opportunity to question the Portuguese about this
in Brussels, but I think the concerns you have referred to are
certainly reflected in the comments that we had from the Commission
and others both on technological grounds and, most particularly,
on the risk that delay will be further increased, but it is very
helpful to have your reaction to it.
Q569 Lord Avebury: I wonder if you
have thought of any assessment of the extent to which our entry
to those parts of SIS II to which we will have access in 2009
is likely to be delayed by the diversion of effort of the SISone4all
and whether, in discussions with the accession states, it has
been pointed out that this diversion of effort may be to their
detriment as well in that they will not have full access to the
facilities of SIS II until a later date than would otherwise have
been possible?
Joan Ryan: As to SISone4all and whether or not
that will cause further delay to SIS II, that is a concern about
which I do not have an assessment. I have designated Mr Fitzpatrick
as our technical expert who will address that as far as we are
able. You mention 2009. Because of all the problems with SIS II,
the likely plug-in date for us is 2010 at the moment. We need
to be very aware of that. We are already conscious of the delay.
Mr Fitzpatrick: The current impact assessment
which will go before the meeting of 4/5 December suggests that
the impact on the delivery of SIS II will be five months, but
that is predicated on the current SISone4all timetable, which,
as the Minister has indicated, we do not think will be done, so
it is likely that were SIS one for all implemented, the delay
would be more than those five months. On our current timetable,
a delay of five months to the delivery of SIS II centre would
not impact our delivery. However, should that creep, we may well
be affected.
Q570 Baroness D'Souza: Minister,
has the Government arrived at any conclusion about the options
for the agency that will operate SIS II in the future? In particular,
would the Government support or oppose management of SIS II by
Europol or by Frontex, the European borders agency?
Joan Ryan: We are pleased that provisions of
the draft legal text will set out the role and responsibilities
and funding of the proposed management authority. We do not want
to pre-empt the impact assessment that will have the substantive
analysis of alternatives to setting up an agency to be responsible
for this long-term operational management of a central system.
I suppose the answer is `no' at the moment.
Q571 Baroness D'Souza: As a supplementary,
the idea that came up before that there would be a new cross-pillar
agency is not something that you are going ahead with full steam?
Joan Ryan: We are not not supporting that, no.
I would not say we were not supporting that. We are happy for
that to continue to be looked at but we want to see its impact
assessment before we make a decision as to where we stand on that.
Q572 Chairman: As I understand it,
but perhaps I do not understand it, the idea of the agency arose
because of unhappiness at the thought of the Commission running
this. Do we share those worries about the Commission being in
charge?
Joan Ryan: I think I would say we are keen to
have the impact assessment and then consider, as Baroness D'Souza
said, the cross-pillar agency and look at that. I am certainly
not being negative. I am just saying we are not at the stage where
we have that position at the moment. We are just keeping the options
open but you are absolutely right, Lord Wright, about the reasons
why this has been looked at and the concerns that Member States
have expressed about who should be in this position, who should
be in the management position over this.
Q573 Chairman: I should say that
since many of us I think round this table, and indeed in this
room, have experience of the difficulties of running major IT
operations, we will look with great interest to see who is chosen
to run this agency because I think probably the number of people
or agencies in this world who are capable of running IT operations
as complicated as this is probably very few. That is not a question
to you so much as a personal comment.
Joan Ryan: I think it is a very major and important
decision. That is partly why I do not have an absolutely clear
answer at the moment precisely because of what you have just said,
Lord Wright. That is why I think the impact assessment is so important
so that we have that basis on which to make an informed decision
about something that is going to be very important for us.
Mr Sweet: We do expect that impact assessment
to contain a substantive analysis of alternatives to the agency.
It is as a result of that impact assessment that we would be able
to judge the comparative merits of different models for the management
of the system,
Q574 Earl of Caithness: I would like
to ask a supplementary on that before I get on to my question.
As I understand it, the Commission are looking at five different
options. What is the timing of their work and do you have any
input into it?
Mr Sweet: Offhand, I do not know whether there
is specific timing but we can check.
Q575 Chairman: Minister, perhaps
I could say in that context that if at any point, particularly
after you receive the transcript of this meeting, you or your
colleagues think of points that ought to be sent to us as supplementary
evidence, we would be very happy to receive it.
Joan Ryan: Certainly, I think we should do so
in answer to that point.
Q576 Earl of Caithness: Minister,
can I have an answer to my question? What degree of public and
parliamentary scrutiny and control will apply to the decision
to exchange SIS II data with Interpol, including the decision
as to which other Interpol countries will be able to access that
data?
Joan Ryan: We will only exchange certain data
with Interpol, as you are no doubt aware. That will be relating
to lost, stolen or misappropriated passports only. The draft Council
Decision contains a draft Council declaration regarding the nature
of the agreement to be reached with Interpol. This declaration
sets out the conditions that must be satisfied in reaching this
agreement. The legal texts themselves establish parameters for
the decision on sharing data with Interpol. Any of those countries
that take part in Interpol are eligible to have access to the
data transferred from SIS II to the Interpol database, but only
if they meet what are described as stringent data protection and
security criteria. In effect, the requirement will act as a significant
filter that will limit those countries with which data can actually
be shared. An important point is that the transmission of data
on these lost, stolen or misappropriated passports to Interpol
will be subject to the consent of the Member State who entered
the data in the first place. I think there is a protection there.
Obviously, we will seek to keep this committee and Parliament
in general informed of the progress on the agreement as it is
being developed.
Q577 Earl of Caithness: On your last
answer, how are you gong to keep us informed because the secrecy
regarding SIS I is something to be believed in comparison to quite
a lot of other organisations. Minister, are you happy with the
data protection agreement with Interpol and do you know which
countries are likely to have access to this data?
Joan Ryan: I think there are, as I said, stringent
data protection and security criteria. I am not concerned that
that is going to be a problem. As to which countries, I am not
sure that I am the best person to answer that. Kevan can give
us a little bit more detail on which countries will have access
to that outside ourselves.
Mr Norris: I am not sure that I can add very
much. My understanding is that any members of Interpol, any countries
belonging to Interpol, will have access to data. It is an exchange
via Interpol to the states which participate in Interpol.
Q578 Chairman: Would the exchange
with Interpol be via Europol?
Mr Norris: I think it is a direct exchange via
Interpol to my understanding. It is not going via Europol.
Q579 Baroness Henig: This is a short
and straightforward question. What is the likely timetable and
content of the Commission report on the technology for `one-to-many'
searching on biometric data?
Joan Ryan: I am not sure there is quite as short
or direct an answer. The Commission will produce this report as
soon as it considers the necessary technology is ready and available.
We would be disappointed if it is not produced by 2009.
Baroness Henig: You are projecting somewhat
ahead.
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