12. DRAFT AGREEMENT BETWEEN THE UNITED
STATES OF AMERICA AND EUROPOL ON THE EXCHANGE OF PERSONAL DATA
AND RELATED INFORMATION
(a)
(23951)
13689/02+ADD1
—
(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: | Oral evidence from the Minister on 15 January 2003
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| Previous Committee Report: | HC 63-iv (2002-03), paragraph 10 (11 December 2002)
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| To be discussed in Council: | Not applicable: agreement signed 20 December 2002
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| Committee's assessment: | Politically important
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| Committee's decision: | (Both) cleared
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Background
12.1 When we last considered these documents (on 10 December),
we had just received a letter from the Parliamentary Under-Secretary
of State for Race Equality, Community Policy and European and
International Policy (Lord Filkin), announcing his intention of
overriding the scrutiny reserve.
12.2 In his letter, the Minister told us that the Presidency
was still seeking signature of the Agreement on 11 December, and
would therefore submit the Agreement to the General Affairs and
External Affairs Council on 10 December. He further reported that
COREPER had reached full agreement on the text, that only the
UK and one other Member State still had parliamentary scrutiny
reserves on it, and that the other Member State was expected to
lift the reserve. He emphasised that he had not taken the decision
lightly, that he remained strongly committed to the principle
of parliamentary scrutiny, but that, on this occasion, he considered
the override to be justifiable.
12.3 As we did do not consider that the Minister should
have lifted the scrutiny reserve on ambiguously-drafted documents
which Ministers and national parliaments had had so little time
to consider, we asked the Minister to appear before the Committee
to explain his decision, and left the documents uncleared.
12.4 In the event, the agreement was not signed until
20 December, after the French lifted their scrutiny reserve.
The Minister's oral evidence
12.5 The Minister appeared before the Committee on 15
January.[36] He confirmed
that the agreement was not signed on 11 December, because the
French maintained their scrutiny reserve. He explained:
"We thought that the agreement was a necessary and a right
and proper one, and the concerns that had been expressed about
it had been resolved to, at least, our satisfaction. Therefore,
in my judgment, it was probable but not certain that the French
would either clear or override, and it would be wrong for us both
in principle and also in practice, because we want these measures
to be operational, not to override. Clearly, in the time, it was
not possible for it to clear scrutiny and, therefore, I decided
I had to override and spoke to both yourself and Lord Grenfell
about that and wrote to explain that to you. I did that with regret."[37]
12.6 The Minister emphasised the urgency of the agreement,
saying:
"We ...checked to see whether this agreement, having been
signed on December 20th, nine days after we had expected it to
be, has led to anything in the real world happening. I am told
it has already been brought into force and is being used for relevant
purposes."[38]
12.7 The Minister also pointed out the particular problems
associated with third party negotiations, which cannot be in the
public domain in the same way as Member State negotiations. He
continued:
" Furthermore, we are prohibited from putting them in the
public domain because they give away the negotiating position
of our side of that negotiation. It is that factor which worsened
the difficulty of this occasion because these issues came in suddenly
and there was pressure to make the agreement."[39]
Conclusion
12.8 In our view, the handling of the agreement between
the USA and Europol on the exchange of personal data and related
information is a sorry tale of haste and pressure. It is
also, of course, ironic that since France did not lift its scrutiny
reserve, the agreement had to be postponed after all.
12.9 However, since the agreement has been signed,
and we have heard the Minister's explanation for the scrutiny
override, we now clear both documents.
36 See
HC 291-i. Back
37 Q.
32. (Numbers prefixed 'Q' relate to the oral evidence of 15 January
2003 printed at the end of this volume.) Back
38 Q.
34. Back
39 Q.
Ibid. Back
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