13 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 | — |
| Department | Home Office |
| Basis of consideration | Minister's letter of 9 August 2004
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| Previous Committee Report | HC 42-xxvii (2003-04), para 8 (14 July 2004)
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| Discussed in Council | 19 July 2004
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
13.1 The objective of the Commission's Communication is to help
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). The Commission says
that, in making the proposals, it has taken account of the relevant
parts of the European Council's Declaration of 25/26 March on
Combating Terrorism.
13.2 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).
13.3 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.
13.4 The Commission says that the Communication is
intended:
"to improve information exchange between all
law enforcement authorities, i.e. not only between 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."[26]
13.5 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:
- 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. The Commission says that law enforcement authorities should
also 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.[27]
- The Commission proposes a scoping study of the
conditions for access to data.
- 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,
also conduct a study of such standards.
- The Commission says there are some things which
may impede the sharing of information, such as incompatible crime
definitions and incompatibilities between IT systems. It will
present a Communication on how to remove obstacles.
- 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.
- The Commission proposes the development of common
definitions for crime statistics and common analysis methods for
the production of intelligence at EU level. The Commision says:
"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 [Chiefs of Police Task
Force] 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."[28]
- 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 for a common understanding of criminal intelligence. The
European Police Training College (CEPOL) could play a major part
in this.
- 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.
13.6 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) told us that the Government broadly
supported the purpose of the Commission's Communication, and would
consider the details of the Commission's more specific proposals
when they are presented. In particular, the Government would
want to be satisfied that the proposals did not extend into security
matters, which are national responsibilities of Member States.
Our previous comments and the Minister's response
13.7 When we considered the Communication in July,[29]
we said that we saw no objection, in principle, to the exchange
of information between Member States in order to prevent or detect
terrorism and serious crime. But it was 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 had a number of reservations about the Commission's
proposals. Those reservations are quoted below in italics and
are followed by the Minister's response to them in her letter
of 9 August.
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".
13.8 In her response, the Minister says:
"I share the Committee's view that the definition
of 'law enforcement authorities' should not be so wide as to include
bodies and persons not having a relevant and appropriate interest
in the information to be exchanged. I am sure that that is the
Commission's intention, but you can be assured that in examining
specific proposals for legislative instruments we would seek to
ensure that the scope was clear and that definitions were precise.
In general, we would expect to see Articles dedicated to definitions,
and Explanatory Reports elaborating and putting beyond doubt the
purpose and meaning of the detailed legislative provisions. Each
instrument would of course be for its own particular purposes,
so definitions might differ as between one instrument and another.
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.
13.9 The Minister tells us that:
"I also agree that there would need to be clarity
on the question of access by law enforcement authorities to information
not collected for law enforcement purposes. Access by law enforcement
agencies to such information would need to be justified by particular
well-defined and appropriate circumstances. We will of course
consult the Information Commissioner on this and other aspects
of individual specific instruments which the Commission may in
due course propose."
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.
13.10 The Minister responds that:
"We support the broad principle of reciprocal
access to data, but agree that this should be subject to the usual
safeguards against speculative or 'fishing' enquiries. We envisage
that any request for access to data under any proposed new instrument
would expressly be required to show a clear link between the data
subject and the offence in relation to which the data was being
requested."
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.
13.11 The Minister says:
"… we do not think that the Commission
is in fact suggesting an additional role for Europol. Rather,
we believe that the intention is that Europol would play a more
effective role than at present in adding value to Member States'
own criminal intelligence and information. It would do this in
part through a process of providing clearer guidance on the nature
of high priority organised crime threats to the Member States.
This would enable the Member States' law enforcement authorities
to sharpen their own performance in relation to criminal intelligence
and information on organised crime which could in turn be fed
into Europol's threat assessment. We attach importance to development
within the EU of intelligence-led policing and to ensuring that
Europol, within its existing remit, adds real value to Member
States' own investigations."
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.
13.12 The Minister tells us:
"Following a general discussion, the main decision
taken was that the Communication should be fed into the multi-annual
work programme. This endorses the purpose of the Communication,
which is that it should be the basis for more detailed proposals
in due course. The details would need to be considered on their
own individual merits against the background of this general endorsement."
Conclusion
13.13 We are grateful to the Minister for her
constructive reply. It is clear that there is substantial agreement
between us and that both we and the Government will be scrutinising
the detailed proposals for clear definitions of powers and robust
safeguards against inappropriate access to personal data.
13.14 We note that the Minister's letter refers
to Member States making "requests" for access to data
held by other Member States. As we read the Communication, however,
access would not be subject to a request and consent process;
there is no reference to a requirement for prior consent. We consider
that access to such information should be subject to the prior
consent of the Member State holding the information. We are particularly
glad, therefore, that the Government will be consulting the Information
Commissioner about the Commission's detailed proposals; and we
ask the Minister to tell us the Commissioner's views in due course.
13.15 We shall scrutinise the detailed proposals
with great care when they are presented. We have concluded that
it is not necessary to subject this Communication to further scrutiny
and we are content, therefore, now to clear it.
26 Commission Communication, page 4. Back
27
Commission Communication, page 6, para 2. Back
28
Commission Communication, page 11. Back
29
See headnote. Back
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