Sir William Cash: there is a wide spectrum of possible outcomes on the role and jurisdiction of the Court

The House of Commons debated yesterday the European Scrutiny Committee’s reports on Law Enforcement Co-operation and Border Control: Schengen Information System. Sir William Cash made the following intervention.

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.

(…)

Sir William Cash (Stone) (Con): This is the first of the European Scrutiny Committee’s reports to be debated on the Floor of the House in this Parliament. It is a great pity that the Committee was not set up somewhat earlier, but we have lived with that and managed to get through all the documents. We are now having this first debate.

In a nutshell, I have 16 questions for the Minister. He will be glad to know that I am happy to write to him with the details of the questions, many of which are set out in our report, so I do not need to go through them all now. They are important questions and I am absolutely sure that he will reply. If we have any further questions, we will continue to ask them until we get the right answers. There are, however, one or two matters that I want to deal with now.

The first matter relates to what the Minister said about the European Court of Justice. He said:

“There is…significant precedent for the EU to cooperate with third countries”—

which of course is what we will become—

“including in fields closely aligned to areas of EU law. There is no precedent for a third country to submit to the jurisdiction of the CJEU”

He of course is completely right. I made that point only a few weeks ago in a debate on the European Union (Withdrawal) Bill, when I invoked the former Belgian member of the European Court who said that there was no precedent for a third country submitting to the jurisdiction of that Court.

The Minister referred to the agreement between the EU and Iceland and Norway. There are other examples. Dispute settlement procedures in EU agreements with Ukraine, Georgia and Moldova involve an arbitration panel that is required to seek a ruling from the Court of Justice on questions concerning the interpretation of relevant EU law provisions. The Prime Minister referred to that indirectly in her statement yesterday, but what form of arbitration panel we will have is part of the ongoing negotiations. I have raised this myself several times on the Floor of the House in the past few months. Martin Howe, who is a great and distinguished QC, has put forward various proposals and we know that they are under active consideration by the Government.

The Committee highlights those examples to illustrate the point that there is a wide spectrum of possible outcomes on the role and jurisdiction of the Court. We ask the Minister to indicate which the Government would prefer or rule out in any future agreement between the EU and the UK on security, law enforcement and criminal justice co-operation.

On the charter, the proposed police co-operation regulation, which we are primarily concerned with today, introduces a recital stating—this is important—that it

“respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.”

The Minister tells us that

“matters such as complying with the EU Charter”

will need to be addressed during the expected negotiations. As we well know, because we have passed that point in the passage of the withdrawal Bill, under the Bill as currently drafted the charter will not form part of domestic law on or after exit day. We therefore ask the Minister to explain how the Government intend to address the charter as part of the UK’s exit negotiations.

Various questions remain outstanding. We take the view that this is an important issue and that there are ongoing questions about the European arrest warrant. I have the 16 questions I will be sending to the Minister. We will publish both the questions and the Minister’s replies in due course, so the House may be properly informed as to where this is going, which is, at the moment, part and parcel of the negotiations.

 

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