VISA INFORMATION SYSTEM (VIS) (14196/2/06)
Letter from Tony McNulty MP, Minister
of State, Home Office to the Chairman
Thank you for your letter of 4 May 2006[117]
referring to the above dossier.
I am writing to provide you with an update on
negotiations, which are continuing under the German Presidency
with the aim of reaching an agreement by the end of June at the
latest.
I have attached a copy of the most recent text
to this letter for your information, and I thought it might be
helpful to go through the dossier briefly to highlight the minor
changes that the proposal has seen, resulting from working group
discussions. I have also included articles that have not changed,
but in which the UK does have an interest.
ARTICLE 1
This article covers the subject matter and scope
of the proposal. The UK has maintained its reservation on this
article, relating to the use of the words "internal security".
We have proposed using "designated authorities" instead
on the grounds that it more clearly allows Member States to decide
which of their national bodies should have access. It appears
that our proposal is close to being agreed upon.
ARTICLE 3
Covering the authorities which will have access
to the VIS, this article stipulates no limit to the authorities
that will have access, but that they must be designated by each
Member State. This will entail the Member State providing a list
of those designated authorities to the General Secretariat of
the Council and the Commission.
ARTICLE 4
This article provides for the designation, at
a national level, of the units within the designated authorities
that will have access to the VIS.
ARTICLE 5
The UK has retained its reservation on this
article, as we believe that it should also be applicable to us.
In its current form, the UK would not be granted direct access
to the VIS. We are pursuing negotiations to have direct access.
Article 5 no longer includes photographs as a criterion that can
be searched.
ARTICLE 6
The UK has retained its reservation on this
article, which would provide for indirect access to the VIS. Our
reasoning has been that this access would be unworkable and slow
and we would prefer direct access.
ARTICLE 7
This article provides for access to the VIS
by Europol. The UK does not oppose Europol having access to the
VIS, but we have retained our reservation on this article on the
understanding that the reasoning for providing such access is
not consistent with the approach taken towards the UK.
ARTICLE 8
Article 8 covers the data protection rules that
will be applied. Recent negotiations have focused on the transmission
of data to third countries (Article 8(5)). Negotiations are continuing
on this matter, and are expected to be finalised within the coming
months.
ARTICLE 11
The article concerning an advisory committee
has been deleted. This does not pose a problem for the UK.
I hope that this update will prove useful and
I am happy to answer any further questions your Committee may
have. The Government continues to believe that this proposal is
a necessary one with the potential to improve our ability to protect
the public and would therefore hope that it can be cleared from
scrutiny before the Presidency submits it to the June JHA Council
for agreement.
19 February 2007
Letter from the Chairman to Tony McNulty
MP
Thank you for your letter of 19 February in
which you comment on a revised text of the proposal (document
14196/2/06). Sub-Committee F (Home Affairs) of the House of Lords
Select Committee on the European Union examined the revised proposal
at a meeting on 7 March 2007.
The Committee notes that, with the exception
of the provisions on data protection, the revised draft does not
substantially differ from the original proposal. We are concerned
that the EU-level data protection framework which is provided
by the Framework Decision under negotiation (DPFD) is being replaced
by the Council of Europe framework. The Council of Europe Convention
on data protection is binding, but too general to safeguard data
protection in the area of law enforcement effectively, while Recommendation
R(87)15, although relevant in the law enforcement context, is
not binding. This change may have been dictated by pragmatic reasons,
ie in order not to delay adoption of this proposal. We do not
think, however, that the data protection framework to which this
proposal has now reverted is adequate, and we are increasingly
concerned about the fate of the DPFD. We are aware that the European
Parliament has made the prior entry into force of the DPFD an
essential element of the "bridging clause" between this
proposal and the draft VIS Regulation. What is the current thinking
in the Council with regard to the negotiations on the DPFD? Could
you inform us how the Council intends to deal with the bridging
clause link to the DPFD in discussions with the European Parliament?
We further note that the revised proposal provides
exceptions which would allow for the transfer of data to third
parties or international organisations. This was prohibited in
the original draft. The revised proposal does currently indicate
that data shall only be transferred to third parties that ensure
an adequate level of data protection, but there is an option for
this requirement to be deleted. Surely, such a requirement would
need to be maintained and enforced at EU level. There are currently
no EU-wide rules that govern the further transmission of personal
data to third parties—a gap that the DPFD is meant to fill.
We would be concerned if it were left entirely to the national
law of the Member State processing the data to determine whether
and when such transfer is allowed. We would be grateful if you
could dispel our concerns about this.
Finally, both the UK Information Commissioner
and the European Data Protection Supervisor, in their comments
on the original proposal, highlighted the lack of provisions on
co-operation of national and European data protection authorities,
including the involvement of the Europol Joint Supervisory Body.
This appears not to have been addressed. How is the harmonised
implementation of this Decision to be ensured in the absence of
a co-ordinated supervisory approach? And how does the revised
proposal ensure that supervision over law enforcement use of the
VIS is consistent with the supervision of the "first pillar"
VIS, given that it is the same system?
Document 14196/2/06 was not deposited and can
therefore not be retained under scrutiny. We will therefore continue
to retain under scrutiny the original document 15142/05, pending
receipt of the information requested and a further report on the
progress of negotiations.
7 March 2007
117 Correspondence with Ministers, 40th Report of Session
2006-07, HL Paper 187, 464. Back
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