10. DRAFT AGREEMENT BETWEEN THE UNITED
STATES OF AMERICA AND EUROPOL ON THE EXCHANGE OF PERSONAL DATA
AND RELATED INFORMATION
(a)
(23951)
13689/02+ADD1
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(b)
(23966)
13996/02
—
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Draft supplemental agreement between Europol and the United States of America on the exchange of personal data and related information, and JSB Opinion on that agreement.
Exchange of letters related to the supplemental agreement between Europol and the United States of America on the exchange of personal data and related information.
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| Legal base: | (a) Articles 42(2), 10(4), and 18 of the Europol Convention, and the Council Decision of 27 March 2000 authorising the Director of Europol to enter into negotiations on agreements with certain third states and non-EU related bodies; information ; unanimity
(b)(c) —
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| Department: | Home Office
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| Basis of consideration: | Ministers' letters of 4 and 9 December 2002
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| Previous Committee Report: | HC 63-ii (2002-03), paragraph 5 (27 November 2002)
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| To be discussed in Council: | 10 December 2002
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| Committee's assessment: | Politically important
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| Committee's decision: | Not cleared; Minister asked to appear before the Committee
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Background
10.1 When we last considered these documents (two weeks
ago), we kept them under scrutiny and asked the Parliamentary
Under-Secretary of State at the Home Office (Mr Bob Ainsworth)
a number of further questions on them.
10.2 At the Justice and Home Affairs Council on 28-29
November, COREPER was tasked to examine the proposal further with
a view to obtaining an agreement "in a forthcoming session
of the Council".
10.3 Meanwhile, our sister Committee in the House of
Lords has received comments on the draft Agreement from Statewatch
and Justice. Both are critical of the documents, citing the lack
of transparency and accountability, the wide scope of information
exchange, insufficient data protection and unsatisfactory arrangements
for US oversight of the agreement.
The Ministers' letters
— Letter of 4 December
10.4 The Parliamentary Under-Secretary of State at the
Home Office (Mr Bob Ainsworth) has written promptly in response
to our questions. He tells us that he understands our concern
that a proposal of this importance was sent to Ministers for agreement
at a JHA Council so soon after the official text had been produced.
He continues:
"However, the Government considers that this draft agreement
is important in the fight against serious forms of international
crime both within the EU and in countries outside the EU whose
organised crime activity impacts upon the EU. It is also important
in terms of supporting the US fight against terrorism and this
has therefore led to it being given particular priority."
10.5 We asked the Minister for confirmation of Europol's
current mandate, and for a comment on the state of negotiations
on any proposed extension. He tells us:
"Europol's current mandate covers all forms of serious international
crime where there are factual indications that an organised criminal
structure is involved and two or more EU Member States are affected.
The specific forms of crime covered are listed in Article 2 of
the Europol Convention and the Annex to that Convention and include
drug trafficking, trafficking in nuclear and radioactive substances,
illegal immigrant smuggling, trade in human beings, motor vehicle
crime, as well as terrorism and money laundering and the offences
listed in the Annex to the Europol Convention...."
10.6 Turning to the possible extension of the mandate,
the Minister says:
"The Danish Presidency in July 2002 tabled proposals to amend
the Europol Convention[44]...These
proposals originally included widening Europol's mandate to all
forms of serious international crime. The Government resisted
the proposed widening of Europol's mandate which could have resulted
in a dilution of Europol's priorities and misuse of its resources.
It is important that Europol focuses on serious international
organised crime. As a result, the Presidency's latest version
of these proposals[45]
...no longer seeks a widening of Europol's mandate. The only proposed
change would be to include within Europol's mandate serious international
crime where there are 'suspicions' of the involvement of an organised
criminal structure. This minor amendment does not cause difficulty
for the Government."
10.7 The Minister points out, however, that these proposals
are still under discussion and any agreed changes would only come
into effect following ratification by every Member State
10.8 We asked for an assurance that the purposes set
out in Article 5(1) of the draft Agreement and amplified in point
5 of the exchange of letters did not extend beyond Europol's remit.
The Minister replies:
"I can assure the Committee that information will be supplied
only under the terms set out in Article 5(l) and there is no circumstance
in which Europol should go beyond its mandate. The Article also
sets out conditions for the handling of such requests, and the
security measures to be used for the care of this material. The
Government is satisfied with these security measures, which ensure
that information exchange is within the terms of the Europol Convention."
10.9 Finally, we asked ask the Minister to explain the
basis for the view that the conclusion of agreements between Europol
and third countries merely entails a duty to inform and not to
consult the European Parliament. He responds:
"As to consultation of the European Parliament, this is not
provided for in the Europol Convention for agreements between
Europol and third countries or other bodies. The three measures
which implement the Europol Convention are the Council Act of
3 November 1998 laying down rules governing Europol's external
relations with third states and non-European Union related bodies,
the Council Act of 3 November 1998 laying down rules concerning
the receipt of information by Europol from third parties, and
the Council Act of 12 March 1999 adopting the rules governing
the transmission of personal data by Europol to third states and
third bodies. These implementing measures require only unanimity
in the Council of Ministers, they do not foresee European Parliament
consultation and there is no explicit reference to the European
Parliament or the Treaty on European Union. Without such reference
to the Treaty on European Union, Article 39 does not apply and
therefore there is no requirement for the European Parliament
to be consulted."
— Letter of 9 December
10.10 On 10 December, we received a letter from the Parliamentary
Under-Secretary of State for Race Equality, Community Policy and
European and International Policy (Lord Filkin). He tells us that
the Presidency is still seeking signature of this Agreement on
11 December, and will therefore submit the Agreement to the General
Affairs and External Affairs Council on 10 December. He further
reports that COREPER has reached full agreement on the text, that
only the UK and one other Member State still have parliamentary
scrutiny reserves on it, and that the other Member State is expected
to lift the reserve.
10.11 The Minister continues:
"There are occasions when the Government should resist finalising
agreements even if we are alone, but I do not on reflection think
this is one of them. This is an important agreement both in terms
of its substance and symbolism of the joint commitment between
the EU and the US to work together to fight terrorism. It has
been in negotiation for some time and it is urgent to implement
it both to improve our ability to combat international terrorism
and to give a clear signal to the US that we are with them in
this fight. The Danish Presidency is intending a joint signing
of this agreement with the US Attorney General in the US on 11
December and I do not feel it right for the UK, probably alone,
to block this and I have therefore reluctantly decided that I
have to over-ride Parliamentary scrutiny.
10.12 The Minister then states that his Department has
done its very best, despite the limited time, to answer all the
Committee's questions. He summarises the responses which we and
our sister Committee have received. He then says:
"The Government is therefore satisfied, in accordance with
the Cabinet Office guidelines, that this constitutes a measure
of benefit to the UK which should come into operation as soon
as possible. I would like to emphasise that this is not a decision
which has been taken lightly. I remain strongly committed to the
principles of parliamentary scrutiny, and respect the importance
of the Committee's remit and the Government's undertaking not
to agree EU legislation before domestic parliamentary scrutiny
has been completed. However, on this occasion I consider an override
of the Scrutiny Reserve Resolution to be justifiable."
Conclusion
10.13 We thank the Parliamentary Under-Secretary of
State at the Home Office (Mr Bob Ainsworth) for his prompt response
to our last Report, and for his exposition of Europol's current
mandate. We must accept his assurance that "there is no circumstance
in which Europol should go beyond its mandate", although
we note the reservations of both Statewatch and Justice in this
respect.
10.14 We also thank the Minister for his explanation
of why he thinks the proposed agreement does not require the consultation
of the European Parliament. We remain of the opinion that the
procedure in Title VI of the Treaty on European Union both applies
to the specific case and extends to consultation of the European
Parliament. We do not, however, regard this divergence of views
as a sufficient basis for refusing to clear the documents.
10.15 Given yesterday's letter from Lord Filkin, however,
we are not minded to clear the documents. Despite his assurances,
there are aspects of the draft Agreement with which we are still
not happy. Moreover, we do not consider he should have lifted
the scrutiny reserve on ambiguously-drafted documents which Ministers
and national parliaments have had so little time to consider.
We therefore ask the Minister to appear before the Committee to
explain his decision.
44 (23616)
10307/02; see HC 152-xxxix (2001-02), paragraph 5 (23 October
2002). Back
45 (24006)
13254/2/02; not yet considered by the Committee. Back
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