6. EXCHANGE OF INFORMATION ABOUT
DISQUALIFICATIONS
| (a)
(23627)
9957/02
—
(b)
(23876)
12536/02
—
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Draft Council Decision on increasing cooperation between EU Member States with regard to disqualifications.
Draft Council Decision on increasing cooperation between EU Member States with regard to disqualifications.
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| Legal base: | Articles 31(a) and 34(2)(c) EU; unanimity; consultation
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| Document originated: | (b) 30 September 2002
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| Deposited in Parliament: | (b) 16 October 2002
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| Department: | Home Office
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| Basis of consideration: | EM of 30 October 2002
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| Previous Committee Report: | (a) HC 152-xxxviii (2001-02), paragraph 13 (16 October 2002)
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| To be discussed in Council: | Justice and Home Affairs Council 28-29 November 2002
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | (a) Cleared
(b) Not cleared; further information requested
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Background
6.1
In June 2002 Denmark submitted a proposal for a Council Decision
on the establishment of a network of national contact points in
Member States to exchange information on disqualifications that
restrict a person's access to employment. The Government has expressed
general support for the proposed measure as an extension of existing
agreements and mechanisms for the exchange of information in conjunction
with criminal convictions and associated penalties. The Government
did, however, indicate some concerns about the lack of clarity
of its scope and possible effects.
6.2
On 16 October 2002 we decided to hold the original Danish proposal
(document (a)) under scrutiny pending receipt of information
resulting from the Government's request for clarification of
the scope of this proposal and of the Minister's reply to our
own questions. We asked the Minister for clarification of the
words "as a corollary of a criminal conviction"; whether
the proposal would require any changes to the law of the United
Kingdom; and if the UK would make the supply of information conditional
on the consent of the person to whom it related.
The revised document
6.3
The Danish Presidency has now submitted a second revised proposal
(document (b)), which supersedes the original text (document (a)).
The revised proposal is identical with the original version[22]
except for the following amendments indicated in the following
paragraphs.
6.4
Article 1 lays down the scope of the proposed measure. It provides
(with the amendments italicised here) that the exchange of information
envisaged under the proposal shall be obligatory in relation to
all "disqualifications which are imposed by a judicial
authority on natural persons as part of a judgement or that
are an automatic corollary of a criminal conviction imposed
by a judicial authority, and which restrict the convicted
persons' access to employment, with the exception of driving disqualifications."
New section 2 of Article 1 adds that "This Decision shall
not apply to disqualifications which are imposed by regulatory
bodies."
6.5
Article 3(1) grants the proposed national contact points a right
of access to national criminal records, including access to information
on disqualifications. The revised proposal adds Article 3(1bis)
which states that "Each Member State shall ensure that the
contact point shall also have information on disqualifications
that are an automatic corollary of a criminal conviction imposed
by a judicial authority of that Member State."
6.6
Article 3(1), which obliges Member States to provide information
about disqualifications without the consent of the person concerned
wherever such information is requested in the course of a criminal
prosecution, has been amended by the addition of a new Article
3 (1bis) which provides that: "Each Member State shall ensure
that the contact point shall also have information on disqualifications
that are an automatic corollary of a criminal conviction imposed
by a judicial authority of that Member State."
6.7
Article 4 imposes an obligation on Member States to inform other
Member States of disqualifications concerning the nationals or
residents of or proprietors of businesses in those Member States.
To this provision the revised proposal adds a final amendment
contained in new Article 4(3bis) which provides that "The
Member State that receives the information referred to in paragraphs
1 and 2 may use this information only for the purpose of ensuring
that the disqualification is observed, and that any other use
of the information it to be governed by the data protection legislation
of the Member State concerned."
The Government's view
6.8
In his Explanatory Memorandum of 30 October 2002 the Parliamentary
Under-Secretary at the Home Office (Mr Bob Ainsworth) reiterates
the Government's support in principle for the proposed legislation
as a further measure "in the context of crime reduction."
In reply to our questions he states:
"The latest text has clarified to some extent the scope of
the draft Decision. The revised Article 1 refers to disqualifications
which are imposed by a judicial authority or that are an automatic
corollary of a criminal conviction imposed by a judicial authority.
We understand the Presidency intends 'automatic corollary of
a criminal conviction' to mean disqualifications which are not
mentioned expressly in the judgement but which nonetheless have
effect on conviction. Disqualifications imposed by regulatory
authorities (i.e. professional bodies) are specifically excluded
in the revised text.
"Article 3 has been revised to require that the contact point
in each Member State has access to information on disqualifications
which are an automatic corollary of a criminal conviction. This
brings it into line with the scope of the Decision in Article
1. Articles 3(3bis) and 4(3bis) also now state that any information
exchanged will only be used 'for the purpose of ensuring that
the disqualification is observed.' Any other use of the information
is limited by local data protection law. The Government does
not anticipate that the draft Decision as currently drafted would
require any change to UK law or that disclosure of disqualifications
within the scope of the Decision should be made conditional on
the consent of the person to whom it relates. Under Article 2(2)
of the Decision, information will be exchanged in accordance with
international agreements and national legislation."
6.9
While the revised proposal addresses some of the concerns expressed
by the Government and by us, the Minister states that
"The Government remains concerned about the scope and purpose
of the draft Decision. It has not yet been shown that there is
sufficient commonality of practice on disqualifications to allow
disqualifications imposed in one Member State to be observed in
another or to justify extending the provisions for exchanging
this information already set out in the 1959 European Convention
on Mutual Assistance in Criminal Matters.
"The Presidency has now asked Member States to provide information
by mid-November on local practice with regard to disqualifications
and whether Member States' legal systems would allow them to enforce
disqualifications imposed in another Member State.
"The draft Decision envisages that Member States will use
the information they exchange to observe disqualifications in
their own territory in so far as this is possible under their
own national law. In the absence of a system for mutual recognition,
the Government believes this is unlikely to be effective. The
application of the principle of mutual recognition first requires
the compilation a list of disqualifications imposed as part of
a conviction which are common to Member States. The Government
remains of the view that there should also be a full feasibility
study on the best method of exchanging information on disqualifications
which might lead to the drawing up of an instrument for mutual
recognition. (Measures 21 and 22 in the Programme of Measures
on mutual recognition — Explanatory Memorandum 9737/00 Rev
5 on this document was deposited for scrutiny on 20 November 2000)."
6.10
Finally, the Minister states that the Government expects to implement
the Decision within existing legislation, making use if possible
of existing contact points, but that it has not yet reached any
conclusion on the designation of a contact point under the Decision.
Conclusion
6.11
Document (a) has been superseded by document (b). We therefore
clear document (a).
6.12
We are grateful to the Minister for his helpful reply to our
questions. We welcome in particular the proposed amendments to
Article 1 and share the Minister's view that the revised proposal
has to some extent clarified the scope of the draft Decision.
6.13
We note, however, that the Government remains concerned about
the scope and purpose of the proposal and we share these reservations.
In particular we welcome the Government's view that a full feasibility
study should be undertaken before considering adoption of the
proposal.
6.14
In view of the Government's own concerns we ask the Minister
whether the Government intends to oppose the proposal in its present
form. We also ask the Minister whether the Government intends
to make its support for the proposal in its present or any future
form dependent on satisfactory completion of a feasibility study.
6.15
We shall hold document (b) under scrutiny pending the Minister's
reply.
22 For
a summary of the contents of the original proposal, see our previous
Report cited in the headnote. Back
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