6 Exchange of information between law
enforcement authorities
| (a)
(25729)
10215/04
—
(b)
(25795)
10215/04
+ ADD1
—
(c)
(26190)
15187/04
—
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Draft Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, in particular as regards serious offences including terrorist acts
Explanatory memorandum on the draft Framework Decision
Draft Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, in particular as regards serious offences, including terrorist acts - note by Sweden
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| Legal base | (a) and (b) Articles 30(1)(a) and (b) and 34(2)(b) EU; consultation; unanimity
(c) —
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| Department | Home Office
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| Basis of consideration | (c) Minister's letter of 2 February 2005
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| Previous Committee Report | (a) and (b) HC 42-xxvii (2003-04), para 7 (14 July 2004); HC 42-xxxii (2003-04), para 17 (13 October 2004); HC 42-xxxvii (2003-04), para 9 (17 November 2004); and see (25536) 8200/04: HC 42-xxi (2003-04), para 7 (26 May 2004)
(c) HC 38-iv (2004-05), para 5 (19 January 2005)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; information on progress awaited
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Background
6.1 Following the declaration on terrorism by the European Council
on 25 March 2004, Sweden has brought forward a proposal (document
(a)) and an explanatory memorandum (document (b)) on the creation
of a "common and simplified framework" for the exchange
of information and intelligence between law enforcement authorities
of the Member States during the investigation of crime or in the
course of a criminal intelligence operation. More recently, Sweden
has produced a note (document (c)) setting out a list of types
of information or information sources to which law enforcement
bodies need access in order successfully to detect, prevent and
investigate criminal offences.
6.2 We considered this note on 19 January 2005.
We were told that the Presidency had asked the Member States on
6 December 2004 to consider, in respect of each item on the list,
whether the information was already available to, or might be
obtained by, domestic law enforcement authorities without the
involvement of the judicial authorities, or whether judicial authorisation,
possibly involving coercive measures, was required.
6.3 We noted that the list referred to criminal records,
criminal intelligence registers, missing persons registers and
registers relating to photographs, fingerprints, DNA samples,
firearms, passports, driving licences, identity cards and data
on vehicles, aircraft and vessels. The list also referred to information
which was derived from investigations, such as statements by persons
co-operating with law enforcement agencies, statements by undercover
agents and statements by suspects, witnesses and experts. Also
included in the list was information derived from searches of
premises, the interception of communications and covert surveillance,
crime scene investigations, and the monitoring of telecommunications,
including communications data generated by IT systems and handled
by telecoms operators and internet service providers as well as
financial information, such as reports of unusual or suspicious
money transactions and information held by banks and financial
institutions.
6.4 We asked the Minister for a fuller account of
the United Kingdom's response to the Presidency's request for
comments on the list. We noted that a number of items on the
list prepared by Sweden concerned information obtained by coercive
measures, and the interception of telecommunications, whereas
we had understood from the Minister's letter to us of 26 August
2004 that the UK intended to suggest that this should remain outside
the scope of this Framework Decision. We welcomed the Minister's
emphasis on the importance of ensuring adequate data protection,
civil liberties and public interest safeguards as regards the
exchange of information and we asked the Minister to explain
how these concerns were being met, and the extent to which domestic
law in the various parts of the United Kingdom permitted the disclosure
to other Member States of information obtained by means of coercive
measures.
The Minister's reply
6.5 In her letter of 2 February 2005, the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) explains
that the list (document (c)) has been prepared by Sweden and is
not a list arrived at by consensus of the Member States. The Minister
adds that the Government is still consulting law enforcement and
judicial authorities on the list and is aware that these authorities
have concerns about how far, if at all, a number of the items
are appropriate for exchange with other Member States under the
draft Framework Decision.
6.6 The Minister also points out that the Government
remains of the view that the draft Framework Decision should not
disturb the provisions of Title III of the Convention of 29 May
2000 on Mutual Assistance in Criminal Matters between Member States
of the European Union.[12]
The Minister adds that the Government doubts whether information
already obtained for domestic purposes through a coercive power,
such as a search warrant or a production order under the Police
and Criminal Evidence Act 1984, could appropriately be exchanged
under the Framework Decision without further judicial oversight.
The Minister notes that the Information Commissioner appears
to have similar concerns about this and other matters.
6.7 The Minister explains that the Framework Decision
"is making slow progress", with no substantive discussion
of Article 3 onwards and no generally settled text of Articles
1 and 2. The Minister refers to the Conclusions of the European
Council of 25 March 2004, which declared that measures on simplifying
exchange of information and intelligence between the law enforcement
authorities of the Member States must be agreed by the end of
2005. The Minister explains that the UK is discussing with the
Luxembourg Presidency and with Sweden how best the UK might be
able to arrive at a consensus during its Presidency which "both
meets operational objectives and provides a full range of data
protection and other safeguards".
Conclusion
6.8 We thank the Minister for her letter. We are
relieved to learn from the Minister that the list set out in document
(c) has not been agreed by Member States, since the exchange of
some of the information referred to in the list would clearly
not have been appropriate.
6.9 We are grateful to the Minister for her indication
of the likely programme of negotiations on this measure, and we
look to the Minister to ensure that the safeguards to which she
has referred are not put at risk by any unseemly haste to reach
an agreement at all costs during the United Kingdom Presidency.
6.10 We shall continue to hold the documents under
scrutiny pending further information from the Minister on the
progress of the negotiations.
12 OJ No. C 197 of 12.07.00, p.3. Title III contains
provisions on mutual assistance in relation to the interception
of communications. Back
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