HOUSE OF LORDS European Union Committee 9th Report of Session 2006–07 Schengen Information System II (SIS II) Report with Evidence Ordered to be printed 20 February and published 2 March 2007 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 49 The European Union Committee The European Union Committee is appointed by the House of Lords “to consider European Union documents and other matters relating to the European Union”. The Committee has seven Sub-Committees which are: Economic and Financial Affairs and International Trade (Sub-Committee A) Internal Market (Sub-Committee B) Foreign Affairs, Defence and Development Policy (Sub-Committee C) Environment and Agriculture (Sub-Committee D) Law and Institutions (Sub-Committee E) Home Affairs (Sub-Committee F) Social and Consumer Affairs (Sub-Committee G) Our Membership The Members of the European Union Committee are: Lord Blackwell Lord Maclennan of Rogart Lord Bowness Lord Marlesford Lord Brown of Eaton-under-Heywood Lord Powell of Bayswater Baroness Cohen of Pimlico Lord Roper Lord Freeman ` Lord Sewel Lord Geddes Baroness Symons of Vernham Dean Lord Grenfell (Chairman) Baroness Thomas of Walliswood Lord Harrison Lord Tomlinson Lord Kerr of Kinlochard Lord Wright of Richmond The Members of the Sub-Committee which carried out this inquiry (Sub-Committee F) (Home Affairs) are: Baroness Bonham-Carter of Yarnbury Earl of Caithness Baroness D’Souza Lord Foulkes of Cumnock Lord Harrison Baroness Henig Lord Jopling Earl of Listowel Lord Marlesford Lord Teverson Lord Wright of Richmond (Chairman) Information about the Committee The reports and evidence of the Committee are published by and available from The Stationery Office. For information freely available on the web, our homepage is: http://www.parliament.uk/parliamentary_committees/lords_eu_select_committee.cfm There you will find many of our publications, along with press notices, details of membership and forthcoming meetings, and other information about the ongoing work of the Committee and its Sub-Committees, each of which has its own homepage. General Information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at http://www.parliament.uk/about_lords/about_lords.cfm Contacts for the European Union Committee Contact details for individual Sub-Committees are given on the website. General correspondence should be addressed to the Clerk of the European Union Committee, Committee Office, House of Lords, London, SW1A OPW The telephone number for general enquiries is 020 7219 5791. The Committee’s email address is [email protected] CONTENTS Paragraph Page FOREWORD—What this Report is about 6 Chapter 1: Introduction 1 7 The subject of our inquiry 1 7 Reasons for the inquiry 6 8 Conduct of the inquiry 9 8 Structure of this report 11 9 Chapter 2: Background—The development of the Schengen Database 12 10 Schengen and SIS 12 10 Box 1: Examples of the Schengen Information System in action 10 The United Kingdom position 18 11 The need for SIS II 20 12 The timetable of SIS II 22 12 The United Kingdom’s timetable 28 14 The cost 32 15 Lack of transparency 34 15 Legislation for SIS II 41 16 Issues concerning United Kingdom implementation 51 18 Chapter 3: How the system works in practice 53 19 Data and supplementary information 53 19 Box 2: SIRENE UK—the United Kingdom gateway to the SIS 19 Categories of data 57 20 Types of alert 62 21 Table 1: Valid (unexpired) entries on the central SIS database at 00.00 hrs on 1 January 22 Table 2: Breakdown of Wanted Persons 22 Family members 73 24 Box 3: The ECJ Judgment in Commission v Spain 25 Chapter 4: Management of the system 79 27 Chapter 5: Access to data 91 30 Access to immigration data for asylum purposes 101 31 Europol 107 32 Chapter 6: Data protection and data processing rules 111 34 Chapter 7: United Kingdom access to immigration data 135 39 Chapter 8: Conclusions and recommendations 152 43 General Conclusions 152 43 Background—the development of the Schengen database 155 43 How the system works in practice 161 44 Management of the system 168 45 Access to data 170 45 Data protection and data processing rules 175 45 United Kingdom access to immigration data 183 46 Appendix 1: Sub-Committee (Home Affairs) 48 Appendix 2: Call for evidence 49 Appendix 3: List of witnesses 51 Appendix 4: List of abbreviations 52 Appendix 5: Other reports from the Select Committee 54 ORAL EVIDENCE Mr Mike Fitzpatrick, Programme Director, Schengen Information System Programme; Mr Jonathan Sweet, International Directorate; Mr Kevan Norris, Legal Adviser and Mr Marek Rejman-Greene, Senior Biometrics Adviser, Scientific Development Branch, Home Office. Oral evidence, 11 October 2006 1 Supplementary written evidence 10 Professor Kees Groenendijk, Ms Evelien Brouwer, Professor Theo de Roos, the Meijers Committee (Standing Committee of Experts on International Immigration, Refugee and Criminal Law)and Professor Elspeth Guild, Immigration Law Practioners’ Association (ILPA) Written evidence Meijers Committee 12 Written evidence Immigration Law Practioners’ Association (ILPA) 17 Oral evidence, 18 October 2006 20 Mr Peter Thompson, Head of European and International Division, and Ms Harriet Nowell-Smith, Legal Adviser, Department for Constitutional Affairs (DCA) Oral evidence, 25 October 2006 32 Mr David Smith, Deputy Information Commissioner and Mr Jonathan Bamford, Assistant Commissioner, Information Commissioner’s Office Written evidence 39 Oral evidence, 25 October 2006 41 Mr Philip Geering, Director of Policy and Ms Carmen Dowd, Head of Special Crime Division, Crown Prosecution Service (CPS); Superintendent Mike Flynn, Director, Joint Operational Authority, SIRENE UK; and Mr Rob Wainwright, Head of International Department, Serious Organised Crime Agency (SOCA) Oral evidence, 1 November 2006 49 Rt Hon Baroness Ashton of Upholland, Parliamentary Under-Secretary of State, Department for Constitutional Affairs (DCA) Written evidence 62 Oral evidence, 22 November 2006 65 Dr Wolfgang von Pommer Esche, Head of Unit, Police Intelligence Service, Federal Data Protection Office, Bonn Oral evidence, 27 November 2006 72 Mr Gerrit Huybreghts, Directorate-General, Justice and Home Affairs, Council Secretariat Oral evidence, 27 November 2006 78 Mr Jonathan Faull, Director, Dr Frank Paul, Head of Unit, and Mrs Marie-Hélène Boulanger, Directorate-General for Justice, Freedom and Security, European Commission Written evidence 85 Oral evidence, 27 November 2006 89 Supplementary written evidence 102 Mr Daniel Drewer, Europol Data Protection Officer Oral evidence, 28 November 2006 103 Mrs Laura Yli-Vakkuri, Chair of Schengen Acquis Working Party Oral evidence, 28 November 2006 108 Joan Ryan MP, Parliamentary-Under Secretary of State, Home Office Written evidence 117 Oral evidence, 29 November 2006 119 Supplementary written evidence 131 WRITTEN EVIDENCE JUSTICE 132 Note: References in the text of the Report are as follows: (Q) refers to a question in oral evidence (p) refers to a page of written evidence FOREWORD—What this Report is about The Schengen Information System (SIS) is an EU-wide system for the collection and exchange of information relating to immigration, policing and criminal law, for the purposes of law enforcement and immigration control. The System raises fundamental questions concerning the balance between, on the one hand, the operational effectiveness of immigration control and public security by law enforcement authorities, and on the other hand the protection of civil liberties. It is against this potential conflict that the Committee has examined the working of the SIS, and its planned development into a second-generation system, known as SIS II. We have looked at SIS II with the aim of assessing whether the proposed system is efficient, transparent, accountable and secure. The United Kingdom is not one of the full Schengen States, because it maintains its border controls with other Member States. It will therefore be denied access to immigration data on SIS II, although it will have access to other data for the purposes of police and criminal cooperation. SIS II will store an enormous volume of sensitive personal data. The processing and protection of such data will be governed by many different legislative instruments, often conflicting. We consider how the provisions should be made clear and unambiguous, and whether the United Kingdom should have access to all the data. We have also looked at the delay in setting up SIS II, and the consequences this will have for the United Kingdom and for other Member States. Schengen Information System II (SIS II) CHAPTER 1: INTRODUCTION The subject of our inquiry 1. One of the main aims of the Treaty establishing the European Economic Community, signed in Rome almost exactly half a century ago, was “the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital”. Chief among such obstacles was of course the checks imposed at the borders between the States. Even then, progress had been made towards the abolition of some of those obstacles between three of the six original Member States, Belgium, the Netherlands and Luxembourg, by the Benelux Customs Union, which became operative in 1948, and subsequently by the Benelux Economic Union. 2. By 1985 considerable progress had been made towards relaxing border controls on the movement of goods, services and capital, but restrictions on the movement of persons other than workers remained. Five of the (by then) ten Member States1 were frustrated by the slow progress, and in that year France and Germany joined the Benelux countries in an agreement which was “prompted by the resolve to achieve the abolition of checks at their common borders on the movement of nationals of the Member states of the European Communities and to facilitate the movement of goods and services at those borders”.2 That agreement was signed in the Luxembourg border village of Schengen on 14 June 1985.3 3.