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

Peter Grant Excerpts

Tuesday 19th December 2017 Commons Chamber

[The Minister for Policing and the Fire Service (Mr Nick Hurd)]

I beg to move,

That this House takes note of European Union Documents No. 15812/16, a Proposal for Regulation of the European Parliament and of the Council on the use of the Schengen Information System for the return of illegally staying third-country nationals, and No.15814/16, a Proposal for a Regulation of the European Parliament and of the Council on the establishment, operation and use of the Schengen Information System (SIS) in the field of police co-operation and judicial co-operation in criminal matters, amending Regulation (EU) No 515/2014 and repealing Regulation (EC) No 1986/2006, Council Decision 2007/533/JHA and Commission Decision 2010/261/EU; agrees with the Government’s decision not to opt in to proposals on the use of the Schengen Information System for the return of illegally staying third-country nationals; and further agrees with the Government’s decision not to opt out of proposals on the establishment, operation and use of the Schengen Information System in the field of police co-operation and judicial co-operation in criminal matters.

I thank the European Scrutiny Committee for calling this debate, which is about the EU’s second-generation Schengen information system, known more commonly as SIS II. I am also grateful to the Committee for the report it published last Friday to inform our debate tonight. I expect that many of the points made in that report will be raised this evening. In any event, I will reply formally to the Committee in writing.

SIS II is the EU’s automated system for circulating policing alerts to law enforcement officers across the EU and in non-EU countries that also take part in it. Alerts can be created in a number of categories, including people who are wanted under a European arrest warrant, suspected criminals, security risks on whom information is sought, and objects that need to be seized such as stolen vehicles and passports. We have taken part in SIS II since April 2015, although we operate only its police and judicial co-operation aspects and not those that support the passport-free Schengen area. We make SIS II alerts available to police officers in real time, and high-priority alerts are also made available at the border. This allows wanted people to be stopped and arrested on arrival, preventing them from posing a risk to the public. SIS II is therefore one of the most important EU policing tools that we have at our disposal.

Last December, the European Commission proposed three draft regulations to replace the legislation that currently governs SIS II. These consisted of one draft regulation to cover the police and judicial co-operation aspects of the system, one to govern its Schengen border control aspects, and a third that allows alerts to be circulated on non-EU nationals who have been subject to removal action in a member state. We are excluded from the regulation on border control as it builds on the aspects of the passport-free Schengen area that we do not take part in. The regulation on non-EU nationals subject to removal action would have applied to us only if we opted into it. The police and judicial co-operation measure would apply to us unless we opted out of it. The deadline for both opting in and opting out was 2 July. This means, as will be obvious to the House, that the Government have already had to take the decisions that we are debating, although I still hope that the House will endorse them.

Let me first explain the Government’s decision not to opt into the proposal on circulating information on non-EU nationals subject to removal action—the so-called returns regulation. This draft regulation would allow member states to circulate alerts on non-EU nationals to whom they have issued a decision requiring them to leave their territory. There could be some benefits to knowing this, as it might give us information about the immigration history of someone who tries to enter the UK or who comes to the attention of law enforcement while here.

However, in the Government’s view, the proposal is too closely linked to another piece of legislation that we do not take part in—the 2008 returns directive. This sets out common rules subject to Court of Justice of the European Union jurisdiction that govern the way in which member states return non-EU nationals who have no right to be in their countries. We do not take part in it because we think that these issues should remain under national control. The Commission has been very clear throughout the negotiations that we could not opt into the returns regulation without also joining the 2008 directive.

[Peter Grant (Glenrothes) (SNP)]

Have the Government had legal advice to confirm the Commission’s view, or are they simply accepting the Commission’s view? Have they conducted any assessment to demonstrate the balance between the benefits to our safety and security from opting in compared with the benefits from complying with the Government’s refusal to have anything to do with the European Court of Justice?

[Mr Hurd]

My understanding is that the Commission’s decision was based on legal advice that we accept.

I hope that the House will agree with our decision not to opt into the returns regulation. The draft police co-operation regulation would replace the 2007 legislation that governs this aspect of SIS II and would bring in a number of useful changes. For example, it would allow pre-emptive alerts to be created for children who are in danger of going missing through parental abduction rather than allowing for alerts only after the child has disappeared, as now. It would also allow member states’ law enforcement to ask specific questions of people on whom information is sought via an alert, and it would update SIS II’s technical standards.

However, there were some aspects of the proposals that we were less happy with. For example, the original text proposed to make it compulsory to create alerts in cases involving terrorism, with implications for the autonomy of our police and security services. We wanted to be clear in the regulation that none of the new actions that it provides for would require police to act contrary to national law, but we felt that we would be better able to address these issues if we did not opt out and thus continued to participate fully in the negotiations with a vote.

--- Later in debate ---

[Peter Grant (Glenrothes) (SNP)]

I am grateful for the chance to contribute to this debate. I am also immensely grateful to the many Members who did not speak earlier, as it means that we have got to this motion about four and a half hours earlier than we had at one point feared. We should not allow that to detract from the importance of the subjects we are debating today.

The Scottish National party’s position is that membership of the European Union makes us safer, and it supports co-operation between law enforcement and security services throughout democratic western Europe. Anything that weakens that co-operation is to be at least regretted and resisted if at all possible. I welcome the decision to opt in to one of these EU documents, and we will not oppose the decision to opt out, but it is disappointing that we did not have time for a fuller debate on the decision when there was still time to change it. As a former member of the European Scrutiny Committee under the very capable chairmanship of the hon. Member for Stone (Sir William Cash), I believe that there is still a degree of frustration at the Government’s reluctance to grant debates, either in the Chamber or in Committee, timeously at the request of the Committee. The situation is not as bad as it was, but there is still an issue around the Government not complying properly with the procedures that the House has put in place, so that Parliament can scrutinise what the Government are doing on our behalf on the European Union.

I want first to talk about the document that relates to the operation of European arrest warrants and related matters. It is important to realise just why the warrant is such a vital part of our protection against terrorism and organised crime, and why it is important that the system continues after we leave the European Union.

Since 2011, there have been 541 cases in Scottish courts, where proceedings were taken after an arrest under the European arrest warrant scheme. A total of 367 people were extradited from Scotland to face justice elsewhere and 45 people were brought back to Scotland to face justice in the Scottish courts. That is over 400 people across Europe who were wanted for serious crimes and tried to use international borders to hide from the law, but who found that the European arrest warrant prevented them from doing that. The warrant allowed every one of those 400-plus people to be extradited to face trial much more quickly, and with far fewer opportunities for legal loopholes, than previous extradition treaties alone would have allowed. It will not be enough if the European arrest warrant is replaced with extradition treaties. We need to make sure the European arrest warrant continues in no weaker a form than its current one.

The figures I quoted have already increased in the very short time that SIS II has been in place in the UK. In the first full year of its operation, there was a 25% increase in the number of people arrested in the UK under an EAW, simply because the police had much more detailed, accurate and—most importantly—more rapidly available information on the people they were dealing with. That is more than one additional arrest in the UK every day of the year. Over 400 suspected criminals a year are being taken off our streets who might still be on them if SIS II was not in operation. That is the scale of the benefit we derive from the system and the scale of the risk we face if it is not replaced by something equally effective after we leave the EU.

We therefore welcome the decision to opt into participation in SIS II, but we remain concerned about the longer-term implications of leaving the EU, particularly on the terms the Government have set out so far. On the continued decision not to opt into the draft returns regulation, document No. 15812/16, the Minister told the European Scrutiny Committee in his letter of 20 July this year that opting in

“would pose a risk to national control over how we remove people with no right to be here”.

He expanded on that by referring to the Government’s reluctance to have anything subject to the Court of Justice of the European Union.

Clearly this is not the place or time to challenge the Government’s position on the jurisdiction of the Court of Justice, but their inflexibility over the status of the Court prevents us from deriving the additional benefits we would enjoy if we were part of the new returns regulation. In the Minister’s own words to the Committee earlier in the year,

“in principle there would be some benefit in knowing whether individuals seeking entry to the UK, or who had come here illegally, had been ordered to leave another Member State”.

That should not come as any surprise. Any licence holder of a pub could tell us that, if they are given information on people thrown out of other places, it is easier to keep them out of their place so that they cannot cause trouble there. It is easy to see that it would be useful to know that somebody had only pitched up at the UK border because they had been thrown out of every other decent country in western Europe.

The Government are willing, however, to sacrifice that additional assurance simply because they do not want us to have anything to do with the Court of Justice of the European Union. I will ask the Minister again the question he did not answer when I intervened on him earlier: what assessment have the Government made to show the benefits for security and safety that we might gain from opting in, compared with the benefits they claim we will achieve by opting out in its entirety from the European Court of Justice?

I have several other concerns about what the Government are proposing to replace SIS II after we have left the EU. I will not go into these in detail, however, because the hon. Member for Sheffield, Heeley (Louise Haigh) summed them up very well. At the moment, as with so much else on Brexit, we know what we are leaving, but we have absolutely no idea where we are going. On the safety and security of our citizens, we are getting close to the time when we really need certainty and answers.

We have asked the Minister to tell us what assessment has been made of the potential benefits of opting in. The hon. Member for Stone has asked this. If not the European Court of Justice, what dispute resolution mechanism will the Government support that will allow citizens of the UK or other EU countries to challenge the legality of data sharing in relation to criminal matters? We know what they do not want; it is high time they told us what they do want and gave us an indication that the Europeans are willing to give them what they do want. Will the UK Government be seeking a data adequacy decision from the EU before the end of the article 50 negotiations? What is plan B if that decision is not forthcoming or goes against us? If we do not get a data adequacy decision before we leave the EU, data sharing cannot happen. What happens then?

On the concerns that the Minister raised about the earlier draft of the regulations, I am puzzled to know in what circumstances we would want the police to do anything other than alert their colleagues in other European countries if they were dealing with a case involving terrorism. I thought that the whole point of the Schengen information system, and other data sharing among law enforcement agencies, was that crime and terrorism do not respect international borders. If policing is to be effective, the police must sometimes cross borders as well. That does not mean that they will physically chase people across borders as a matter of routine, but information sharing across borders must be made as easy, as free of bureaucracy and as free of legal challenge as possible. The reason the European arrest warrant works more effectively than a simple extradition treaty is that the process is so much faster. People can be returned to the jurisdiction where they are wanted and put on trial much more quickly—sometimes years more quickly—than was possible previously.

We will not force the motion to a vote. We do not want to oppose what the Government are doing, but at present they are not doing enough. We will need to see something very definite very quickly, so that people can rest assured that leaving the European Union will not produce the reduction in our safety and security that it currently seems it might well produce.