8 Access to information by law enforcement
agencies
| (25764)
10745/04
COM(04)429
| Commission Communication: Towards enhancing access to information by law enforcement agencies
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| Legal base | — |
| Document originated | 16 June 2004
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| Deposited in Parliament | 23 June 2004
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| Department | Home Office |
| Basis of consideration | EM of 6 July
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| Previous Committee Report | None
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| To be discussed in Council | 19 July 2004
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Objective of the Communication
8.1 The Commission says that the objective of the proposals in
the Communication is to establish an EU Information Policy for
law enforcement that will contribute to the realisation of the
purpose of Article 29 of the Treaty on European Union (the EU
Treaty). In making the proposals, the Commission has taken account
of the relevant parts of the European Council's Declaration of
25/26 March on Combating Terrorism.
8.2 Article 29 of the EU Treaty provides that the
Union's objective is to provide citizens with a high level of
security in an area of freedom, security and justice by developing
police and judicial cooperation between Member States. This is
to be achieved by preventing and combating crime through, among
other things, closer cooperation between police forces, customs
authorities and other competent authorities and between them and
the European Police Office (Europol).
8.3 In its Declaration on Terrorism, the European
Council:
- instructed the Council to examine
measures to simplify the exchange of information and intelligence
between Member States' law enforcement authorities; and
- called on Member States to ensure that law enforcement
authorities cooperate with each other and exchange all information
relevant to combating terrorism .
8.4 The Commission says that the Communication is
intended:
"to improve information exchange between all
law enforcement authorities, i.e. not only police authorities,
but also between customs authorities, financial intelligence units,
the interaction with the judiciary and public prosecution services,
and all other public bodies that participate in the process that
ranges from the early detection of security threats and criminal
offences to the conviction and punishment of perpetrators."[27]
The Commission's proposals
8.5 The Commission makes eight main proposals for
the improvement of access to information and the introduction
of intelligence-led law enforcement at the level of the EU. The
proposals are as follows:
FREE MOVEMENT OF INFORMATION BETWEEN LAW ENFORCEMENT
AUTHORITIES AND BETWEEN THEM AND EUROPOL
8.6 The law enforcement authorities of each Member
State would have rights of access to the data and databases of
every other Member State on the same conditions as the law enforcement
authorities of the Member State holding the data.
8.7 The Commission also says that law enforcement
authorities should have access to data not collected for law enforcement
purposes and that the authorities should have that access for
"as long as appropriate, necessary and proportionate to the
specific and legitimate purposes pursued" by the authorities.[28]
SCOPING STUDY OF THE CONDITIONS FOR ACCESS TO DATA
8.8 The Commission proposes to conduct a study of:
- the data and databases which
are available to Member States' law enforcement authorities;
- the purposes of the databases;
- which authorities have access to the data;
- the conditions on which the authorities have
access;
- the technical requirements for access;
- the frequency with which the databases are accessed;
and
- the databases which are of interest to law enforcement
authorities but to which they do not have access; and the applicable
data protection provisions.
The Commission will begin the study by the end of
2004.
STANDARD SETTING
8.9 The Commission says that common standards for
data collection, classification and access would provide the basis
for effective access to information. The Commission will, therefore,
conduct a study into such standards.
REMOVE OBSTACLES TO SHARING INFORMATION
8.10 The Commission says there are some things which
may impede the sharing of information, such as incompatible crime
definitions and incompatibility between law enforcement authorities'
IT systems. It will present a Communication on how to remove
obstacles. The ultimate aim would be to achieve interoperable
and interconnected EU law enforcement data systems.
RESEARCH
8.11 The Commission proposes that research should
be commissioned on the use and implementation of European criminal
intelligence systems. This would be additional to research already
planned.
DEVELOP EU INTELLIGENCE-LED LAW ENFORCEMENT
8.12 The Commission says that:
"Criminal intelligence assists the competent
authorities in the performance of their strategic or operational
tasks, in order to prevent and combat terrorism and other serious
organised crime, as well as threats caused by them. The introduction
of a European Criminal intelligence model would render intelligence-led
law enforcement effective and allow for enhanced cooperative action."[29]
The Commission proposes the development of common
definitions for crime statistics and common analysis methods for
the production of intelligence at EU level.
8.13 The Commision says:
"At this moment the EU law enforcement authorities
are not guided by criminal intelligence that targets the security
of the EU as a whole. Today an urgent need exists to protect
EU citizens against new risks and threats. Therefore it is imperative
that EU strategic and operational assessments are rapidly made
available.
"Therefore the following two-phased approach
is envisaged:
- In the short term, the Member States' criminal
intelligence services should meet on a monthly basis, possibly
under the aegis of Europol, to discuss their national strategic
and operational assessments. Europol should contribute all intelligence
it can avail. The resulting intelligence should be collated to
produce EU strategic assessments for instance twice a year, and
EU operational assessments every month. The EU strategic assessments
would allow the Council to set law enforcement priorities. The
CPTF [Chiefs of Police Task Force] should hand down the operational
assessments to the operational levels within national law enforcement
communities.
"This should, at first stage, draw on information
that Member States' criminal intelligence and Europol can lawfully
access on the basis of current legislation and make use of available
analytical tools.
- In the longer term, the national criminal intelligence
authorities can start producing criminal intelligence using standard
analytical tools on the basis of the relevant law enforcement
data available within the Union.
"The importance of Europol would increase, since
data and procedures will be more European. This would result
in criminal intelligence of a superior quality as it would be
more standardised and thus more widely understood. The relations
between Europol, the Council and the CPTF need to adapt to changing
circumstances. At that moment, the EU will be in a position to
assert itself on the international scene as a law enforcement
partner with its distinct character and quality."[30]
8.14 The Commission will report to the Council by
the end of 2005 on the action necessary to establish a system
for the production of reliable criminal intelligence assessments.
BUILDING TRUST
8.15 The Commission regards building trust between
law enforcement authorities as an essential element of the proposed
Information Policy. This will require the development of shared
values and standards and the training of law enforcement staff
to share a common understanding of criminal intelligence. The
European Police Training College (CEPOL) could play a major part
in this.
DATA PROTECTION
8.16 The Commission proposes that there should be
a Framework Decision on the protection of fundamental rights in,
and common standards for, the processing of personal data exchanged
under the police and judicial cooperation powers of the EU Treaty.
The Government's view
8.17 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) tells us that:
"The Government broadly supports the purpose
of the Commission's Communication, and will consider the detail
of the Commission's more specific proposals when they are put
forward. In particular, the Government will wish to be satisfied
that the proposals do not extend into security matters, which
are national responsibilities for Member States themselves."
Conclusion
8.18 We see no objection, in principle, to the
exchange of information between Member States in order to prevent
or detect terrorism and serious crime. But it is essential that
such exchanges should be subject to rigorous data protection safeguards
and clearly defined rules on access to and use of the information.
For that reason, we have a number of reservations about the Commission's
proposals. For example:
- the Commission's definition
of law enforcement authorities includes all public bodies which
"participate in the process that ranges from the early detection
of security threats and criminal offences to the conviction and
punishment of perpetrators". Taken literally, this would
mean that, among others, probation officers and prison officers
would be entitled to access to the same information as the police,
including criminal intelligence and personal data held in other
Member States. In our view, the list of those with access to
data should be defined with precision and limited to those with
a legitimate "need to know".
- The Commission refers to giving law enforcement
authorities access to information not collected for law enforcement
purposes. The Communication does not define such information
but, in the absence of definition, it could include records about
a person's health, education, taxes, social security and so on.
In our view, there should be no general right of access to such
data and access should be allowed only in exceptional circumstances
for a specific purpose connected with the prevention or detection
of serious crime.
- The Commission also proposes that the law
enforcement authorities of one Member State should have access
to data held in another State on the same conditions as the law
enforcement authorities of the holding Member State. The Communication
does not qualify the proposal by a requirement for the prior
consent of the holding Member State. On the face of it, the proposal
would open the way for any body concerned with law enforcement
to go fishing in the databases in any other Member State, subject
only to the access conditions which apply to law enforcement authorities
of the other State. It is not apparent from the Communication
that this proposal is necessary or proportionate.
- The Commission foresees a crucial role for
Europol in the operation of information-led criminal intelligence
within the EU. It seems to us that, if Europol were to be given
such a role, commensurate systems for its supervision and accountability
should be established first.
8.19 It is true that the Commission proposes an
ambitious scoping study. But it appears that the Commission is
seeking the Council's approval of the Communication now. In our
view, it would be premature to give the Communication even broad
support; rather, at this stage, it would be reasonable to draw
attention to issues of importance — such as those listed
in the preceding paragraph — and to withhold support until
the Commission can provide satisfactory answers to them and comes
forward with specific proposals which can be subjected to detailed
consideration.
8.20 Because of our concerns about the document,
we ask the Minister to tell us about the discussion of it at the
Council on 19 July. We also ask her for an assurance that the
Information Commissioner will be fully consulted about the data
protection aspects of the proposals and subsequent developments.
Meanwhile, we shall keep the document under scrutiny.
27 Commission Communication, page 4. Back
28
Commission Communication, page 6, para 2. Back
29
Commission Communication, page 10, last para. Back
30
Commission Communication, page 11. Back
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