Examination of Witnesses (Questions 580-599)
Joan Ryan MP, Mr Jonathan Sweet, Mr Mike Fitzpatrick
and Mr Kevan Norris
29 NOVEMBER 2006
Q580 Lord Avebury: I must confess
I am a little bit surprised by that answer. The technology for
one-to-many searches is already available and, as a general matter
in IT technologies, there are one-to-many searches which are conducted
on a regular basis. I wonder if there are any particular difficulties
arising from this particular set of data which mean that this
is taking far longer than it would in, say, a commercial environment.
Joan Ryan: I think some of the issue is about
availability and readiness and also we raised concerns with officials
about data quality assurances and accuracy of the technology.
I know the technology is available but availability and readiness
are features.
Q581 Lord Avebury: I am not suggesting
you should go into the detail here; it would not be appropriate.
I would find it interesting if we had a slightly amplified note
on why the delays should arise from the conduct of one-to-many
searches when it is a common operation in the commercial environment.
Let us not continue that at this moment.
Joan Ryan: As you have mentioned one-to-many,
I think there is an issue about one-to-many. The use of the term
in this context is a bit misleading. I am looking at Mr Fitzpatrick
because I have had this conversation with him and I am hoping
he will explain why it is misleading.
Mr Fitzpatrick: I think the timing of the report
is a matter for the Commission and the resource they allocate
to it. Our suggestion is that we would be disappointed if it was
not ready by 2009 but we will obviously inquire of them whether
or not it can be delivered earlier than that.
Joan Ryan: Some of what we are talking about
is the use of the photograph; it is verification rather than a
one-to-many search. I am not sure that has illuminated anything
for your Lordships at all. You suggest that you would find a note
useful and we will do just that.
Q582 Lord Avebury: Thank you, Minister.
My next question is this. As regards these one-to-many searches,
what public and Parliamentary scrutiny will there be of the decision
to apply this functionality and what controls will there be on
the process of applying it? What would happen if one or more national
government or parliament objects to the idea of applying this
extension of this functionality of the system?
Joan Ryan: The SIS II Decision states that identification
using fingerprints will be introduced as soon as it is technically
possible. Technically that can include the issues we have already
talked about, not just technologically but technically possible.
Further decisions are to be made concerning technical details.
Once the Commission's report has been published, as I understand
it, Member States will need time to look at the findings in the
Commission's report and the European Parliament will also need
to be consulted at that stage. It is only then if all Member States
are satisfied that the use of fingerprints for identification
will actually be permitted. Key players such as the Commission,
the Legal Service and the Council, will need to be satisfied that
necessary safeguards are in place regarding accuracy and data
protection before Member States could start using fingerprints
for identification. That is in process at the moment and we are
not there because we await the Commission's report. We will get
the report; we all need time to look at it. The Commission, Legal
Services and the Council have got to be absolutely satisfied that
the necessary safeguards are in place and we will need to involve
Parliament through these normal scrutiny procedures.
Q583 Lord Avebury: So there will
be a motion before Parliament to extend SIS II to one-to-many
searches?
Mr Norris: Looking at the text of the SIS II
instrument, the legal precondition for the exercise of this functionality
is that the Commission should present its report; once that report
has been presented, that has cleared the legal requirements and
then the functionality legally is available. That is obviously
subject to the technology being there.
Q584 Chairman: But it is up to our
Government to put the motion before both Houses for negative or
affirmative resolution? How will that be accomplished?
Joan Ryan: The normal scrutiny that I am referring
to is the scrutiny with our select committee procedure.
Q585 Chairman: Minister, I make a
comment rather than putting a question here. We were struck during
our visit Brussels by the extent to which a decision on whether
to opt into third pillar measures would primarily be based on
the Government's assessment of the advantages for us, for the
British, but we were also struck by the fact that an opt-in by
Britain should have considerable advantages for our European partners
in terms of the exchange of information that would become available
to them. I only make that point not to argue one way or other
but it is a consideration which I would hope the Government will
take very strongly into account.
Joan Ryan: I think any discussion we have at
Council level and with partners in the European Union is that
this is very much a two-way street and that is the whole purpose
of working in partnership; benefits go both ways.
Q586 Lord Avebury: Could we turn
to the question of whether or not we opt into the Court of Justice's
jurisdiction on third pillar matters? Could you tell the committee
on how many occasions and what was the most recent one when the
Government refused to review that decision and what are the reasons
for the current policy of not opting in? When do you think that
the decision will next be refused? Can you explain how the interpretation
of third pillar measures can be assured EU-wide when some members
do not opt in?
Joan Ryan: At the moment, we have great concerns
that any extension of the court's competence would result in cases
taking longer to get through the system than they currently do.
In terms of reviewing the European Court of Justice's jurisdiction
to third pillar matters, I think it is true to say that was last
considered during the detailed discussions around the Constitutional
Treaty. Of course, if Article 42 was to be brought into use, then
again it would have the same effect in that it would extend the
court's competence in that way. As your Lordships know, that is
an issue that has been on the agenda through the Finnish presidency.
We very much think, after Member State contributions at the informal
meeting at Tampere on the issue of passerelle Article 42, that
the current debate on that issue is probably closed. We will know
that next week at the Council. The issue is not therefore being
reviewed in that sense now. The next time I think it will be reviewed
will be in the second half of 2007 when the period of reflection
on the Constitutional Treaty comes to an end.
Mr Sweet: May I add one point of clarification?
I am sure Mr Norris is better able to explain it than I am. When
one uses the term `opt in', this is not an opt-in in the more
traditional arrangements as it were in relation to the UK's position.
As I understand it, and again Mr Norris will correct me, the provisions
in Article 35 of the Treaty actually specify that a Member State
may, by way of a declaration, decide to accept the jurisdiction
of the Court of Justice. Just to be clear, this is not something
that is the usual, as it were, opt-in arrangements. I wanted to
be clear on the term.
Chairman: Thank you. That is a helpful
clarification. It clarifies something that I had clearly misunderstood.
Q587 Lord Harrison: Minister, this
is a question about resources. The Crown Prosecution Service suggested
to us that their workload in respect of extradition and dealing
with the European Arrest Warrant might double or triple when SIS
II comes in to the United Kingdom. Do you share that view? If
you do share that view, is the Government prepared to double or
triple resources? Beyond that, are there other resource implications
beyond that of the EU framework?
Joan Ryan: I certainly share the view that the
Crown Prosecution Service has stated that there will be an increase
in extradition traffic, should we call it. I also think that is
a very good thing and one of the outcomes we would want from the
European Arrest Warrant because, of course, that will mean more
people are being brought to book to face justice, to be prosecuted
and to be tried for any offences of which they may be accused.
Q588 Lord Harrison: The question
is about resources.
Joan Ryan: I think there will be an increase
in traffic. The development of the European Arrest Warrant and
the introduction of SIS II will also bring efficiencies in some
areas. There will be some balancing because of that.
Q589 Lord Harrison: Is it not true
in that case that efficiencies anyway could be brought in at any
time? The CPS is saying there could be a doubling or a tripling
of the workload, however much you seek to find some savings. Is
there an implication of resources? What I am asking you is if
you are alert and ready and able to respond to that at all?
Joan Ryan: We are seized of the issue of resources,
so, yes, we are aware that there may be resource implications
and we are alive to that issue. Some of the efficiencies that
I am referring to that will come with SIS II and will bring about
operational changes is ongoing work as to how much efficiency
will be brought about. At the moment, we do not have an exact
picture of what it will be.
Q590 Lord Harrison: My supplementary
question implied that there is always active work being done order
to introduce efficiencies into any operation. I had not understood
a qualitative difference of that kind was being done. I understand
it is going to be a quantitative difference in terms of a doubling
or tripling and that in turn suggests that you would require resources
to be raised at least.
Joan Ryan: I am not trying to avoid answering
you, Lord Harrison. I am saying that we are aware of what the
CPS has said. We are aware and welcome the increase in European
Arrest Warrant extradition traffic and we are seized of the issue
of resources. We are aware that Rob Wainwright of the Serious
and Organised Crime Agency raised status in his evidence and that
he is satisfied that the Home Office was seized of this issue.
So we are looking at it and it will come into our planning.
Q591 Lord Harrison: Have you identified
further resource implications that might be beyond the immediate
area of extradition and the European Arrest Warrant because of
entry into SIS II?
Joan Ryan: I do not have any details for you
on that but the whole issue of what impact it will have for us
when we plug into SIS II and how much impact that will have on
resourcing requirements is an issue that we keep under constant
review. As I said, plugging into SIS II is now 2010, so planning
for resources on the basis of something that is subject to movement
is not an exact science or a precise exercise. We would not want
to identify resources, and we certainly would not be able to just
leave them sitting there and not use them because something did
not happen. It is a slightly more complex procedure than saying,
"This is going to happen, so we need these resources".
Chairman: Minister, thank you for that
reply. When you look at the transcript, if you have anything to
add to that and are able to put any more flesh on that answer,
we would very much welcome it.
Q592 Lord Dubs: Does the Government
now have a firm view as to whether UK legislation will have to
be changed in order to implement SIS II?
Joan Ryan: We do. We are satisfied that no further
legislation is required. My officials have consulted widely during
negotiations. We have not been advised of any gaps in existing
legislation. Many of the provisions refer back to relevant national
law on subjects such as data protection. They are not seeking
to create harmonised EU-wide provisions, so we are satisfied that,
yes, we do not need further legislation.
Q593 Lord Marlesford: Minister, what
has been the total cost of SIS I to the British taxpayer so far?
Can you give us, with some practical examples, the way in which
we have had an advantage being part of SIS I?
Joan Ryan: I might need to write to the noble
Lord on the precise costs, I do not have that to hand. Maybe I
misunderstood the question, but I understood we were going to
talk about savings. Having referred to that, I was simply going
to say that when the UK negotiated to join parts of Schengen,
including SIS I 1999 to 2000, of course we did not know about
SIS II then, it had not been proposed. It is difficult now to
estimate how much of the SIS I costs will eventually benefit the
SIS II programme during its lifetime.
Q594 Lord Marlesford: That is why
I did not ask the question.
Joan Ryan: I could not have answered that either.
That is a very good point. I would appreciate being able to look
a little more closely at that. I would be very unwilling to give
the Committee figures which I had not had a good look at, but
I will come back to the Committee on those matters.
Q595 Lord Harrison: Minister, your
officials told us that we are paying for our SIS II subscription
pro rata with the other Member States, but I wonder whether you
can justify that and whether we will receive any proportion of
the information which is available to those States ?
Joan Ryan: I read the transcript, compared it
with my information, and I am pleased to say it did marry up which
is always a bit of a relief. Yes, I am aware that the annual cost
is half a million pounds for our SIS II subscription, and then
we have in the order of three to four million pounds a year operational
running costs. In terms of paying our subscription, my understanding
is that set-up and running costs are determined by the infrastructure
which we need for the system itself rather than by the data which
is held in it. Our contribution, which is based on GDP, on a formula
which comes out at some 18 per cent, which is our contribution,
comes out at half a million pounds. I guess the point your Lordship
is making is if we are not getting access to all the data, why
are we paying the full sum? I think that is a really valid question
to ask; it is certainly one I have asked having seen the original
questioning. I am sure the answer is that it is about paying for
this infrastructure which we would be paying for for whatever
data we got out of it. I also think there is another point beyond
that which is perhaps a more political point and that is we want
to constructively engage with the Commission on the ways in which
we will access all the data. I am very determined about that programme,
particularly in relation to being able to use the immigration
information for law enforcement purposes; I think that is very
important for us. That is the debate I am pursuing most strongly.
I am not sure that would be helped if I started talking with them
about this half a million pounds, especially as I cannot find
really solid grounds in relation to the amount of data.
Q596 Lord Harrison: I wholly agree
with you about that, but you do acknowledge that we are missing
out on information we might otherwise obtain?
Joan Ryan: I do entirely, and part of my brief
is to access exactly that information we have been discussing
today which I think we all think would be very beneficial to us
and would be part of the two-way street which we have referred
to.
Q597 Lord Marlesford: Following that
up, Minister, have you been at least able to identify, and if
so will you tell us, where the obstacles to our full participation
in SIS II information lie? Is it the Commission or is it individual
countries and if so, which countries?
Joan Ryan: I think we discussed this the last
time. Originally we thought we were going to be able to participate
in all the data that we discussed which we wished to have access
to. There was a decision—perhaps Mr Norris will correct
me if I stray on this because it is an important point—by
the Council Legal Service which ruled as to whether we could participate
in some of the data and whether or not it was part of the Schengen
building measure. That is my understanding of why we do not get
to access some of these immigration data in relation to law enforcement
because it is classed as a Schengen building measure and that
is a ruling by the Council Legal Service. However, I think it
would be true to say that there are Member States that would think
that you should participate fully in Schengen if you want all
the data.
Q598 Lord Marlesford: Which ones?
Joan Ryan: I do not know if I can name individual
countries in that these are often informal discussions, and obviously
I am also working very hard to build our case and win support
for our case from other Member States. I do not want to lock them
into a position and then not be able to get them back out of that
position and win their support for our position; that would not
be the most sensible way forward. Member States do change their
positions on things and they can achieve movement, so I wish to
be diplomatic about that.
Q599 Lord Marlesford: On the legal
services barrier, do the British Government's legal advisers believe
that this decision had legal validity?
Joan Ryan: Yes.
Mr Norris: If we look at the court cases we
have at the moment, the Council has acted on the basis of advice
which it has received from the Council Legal Service, and the
UK Government has acted on the advice it has received from lawyers
here. We disagree with the analysis which the Council is putting
forward on the basis of the Council Legal Service advice and that
is what the court case in Luxemburg will determine.
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