Law Enforcement Co-operation and Border Control: Schengen Information System

Louise Haigh Excerpts

Tuesday 19th December 2017 Commons Chamber

[Louise Haigh (Sheffield, Heeley) (Lab)]

I confirm that the Opposition support the motion before us, and I echo the Minister’s thanks to the European Scrutiny Committee for bringing forward this debate, because the motion raises some important questions about our national security and the consequences and potential implications of Brexit.

Our security, and the apparatus on which it rests, is utterly dependent on co-operation with our European partners. The UK should be rightly proud of the role it has played in establishing and developing our shared security through Europol, the European arrest warrant and the Schengen information system. As the Minister says, SIS II is already proving its worth, helping to underpin the operation of the EAW and delivering 12,000 hits on suspected criminals and terrorists since its introduction in 2015. It has been a game-changer for policing leaders and for day-to-day policing.

We know what the Prime Minister makes of the SIS II system from what she told the House of Commons in November 2014, the month in which she also said that support for it is vital

“to stop foreign criminals from coming to Britain, deal with European fighters coming back from Syria, stop British criminals evading justice abroad, prevent foreign criminals evading justice by hiding here, and get foreign criminals out of our prisons”.

However, without an agreement and a commitment that this will be foremost in the Government’s negotiating priorities, this apparatus will all fall away the second we Brexit.

Quite frankly, it is astonishing that the Government have given no guarantees that we will seek to retain full access to SIS II on our departure from the EU. Despite underlining its importance in the position paper earlier this year, in a letter to the European Scrutiny Committee, the Minister said it was “too early to say” whether SIS II will be one of the measures that the Government will seek to include in a new post-Brexit agreement. The Committee has noted that

“there is no justification for this reticence.”

Our security depends on it, but we know why Ministers are showing such reticence. It is because of the role of the European Court of Justice and the EU charter of fundamental rights.

The Prime Minister has made it abundantly clear that there will be no permanent role for the ECJ, and the European Union (Withdrawal) Bill has explicitly dumped the EU charter. However, there is no precedent for a country to operate within SIS II—nor to operate the European arrest warrant, for that matter—without accepting that the ECJ will play a leading role. Indeed, the regulations before us explicitly prohibit third-country access to SIS II data. In his letter to the European Scrutiny Committee, the Minister attempted to suggest areas where countries do not submit directly to the jurisdiction of the ECJ, but in the case of SIS II, the precedent is clear: whether direct or indirect, the determinations of the European Court are final.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

My hon. Friend is making some very important points. Does she not agree that this puts paid to the crazy suggestion of having no deal, because getting a deal on a security treaty will be absolutely crucial to the safety and security of this nation?

[Louise Haigh]

My hon. Friend is absolutely right that no deal is simply not acceptable for security or for data, which I will come on to shortly.

The Minister mentioned that four non-EU countries are members of SIS II, which is absolutely right. Iceland, Norway, Switzerland and Liechtenstein participate by virtue of their membership of Schengen. These non-EU member states are bound to avert any substantial differences in the case law of the ECJ, and they are required to implement structures and procedures that keep pace with changes in the Schengen rulebook. If they do not do so, their agreements will be terminated.

[Robert Neill]

I understand precisely where the hon. Lady is coming from, but in fairness to the Minister, this may be a question about the direct nature or otherwise of the jurisdiction. Does she agree that the evidence to the Justice Committee was most compelling about the practical need to get the data regulations aligned so that data can lawfully be passed from EU member states to us as a third country in the same way that they are passed to the four non-EU countries she has mentioned?

[Louise Haigh]

I am grateful to the hon. Gentleman, because he pre-empts my next point.

At the heart of these strictures is the issue of data. All SIS II systems operate on a hub-and-spoke model, with a central SIS II hub exchanging data from national servers in each participating member state. The European Commission is very clear that this is European data. Although the police may have some leeway on the speed at which they create an alert, once they do, the data passes to the central SIS II hub. Therefore, without an agreement on data transfers, we simply cannot participate in this critical information-sharing system. That is the insanity of having no deal.

The proposals before the House require compliance with EU data protection laws and fundamental rights enshrined in the EU charter. The EU will insist on these rights being protected in order for the UK to share information, so what exactly do the Government propose? Can the Minister reassure the House that no arbitrary red lines, on the ECJ or otherwise, will be put before the safety and security of the British public? Will he confirm that it is the UK’s negotiating aim to retain full access to SIS II? If not, can he explain how after Brexit we would track the hundreds, if not thousands, of serious criminals, foreign fighters and those who pose a threat to our national security who are flagged by the system every month? There are few areas in which the UK is more dependent on agreement than security co-operation as we Brexit. The consequences of failure are scarcely imaginable.

The regulations are necessary to maintain our membership of SIS II for the time being and for our negotiating position, but they signify the huge risk that Brexit poses to our national security and the gaping holes in the Government’s approach to negotiations. We will support the motion and any and all of the Government’s efforts to maintain access to such security systems and close co-operation with our European partners, but we will continue to hold the Government to account on their approach to negotiations that are so fundamental to our national security.