7 Exchange of information and cooperation
concerning terrorist offences
| (a)
(25536)
8200/04
COM(04) 221
(b)
(26132)
14009/04
—
(c)
(26152)
14999/04
—
(d)
(26244)
15599/04
—
|
Commission Communication on measures to be taken to combat terrorism and other forms of serious crime, in particular the exchange of information. Draft Council Decision on the exchange of information and cooperation concerning terrorist offences
Draft Council Decision on the exchange of information and cooperation concerning terrorist offences
Draft Council Decision on the exchange of information and cooperation concerning terrorist offences
Draft Council Decision on the exchange of information and cooperation concerning terrorist offences
|
| Legal base | (a) —
(b) to (d) Articles 29, 30(1) and 34(2)(c) EU; consultation; unanimity
|
| Deposited in Parliament | (b) 17 November 2004
(c ) 25 November 2004
(d) 12 January 2005
|
| Department | Home Office |
| Basis of consideration | EM of 8 February 2005
|
| Previous Committee Report | (a)HC 42 -xxi (2003-04), para 7 (26 May 2004)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | (b) and (c) cleared
(a) and (d) not cleared; further information requested
|
Background
7.1 The European Council of 21 September 2001 approved a plan
of action including enhanced police and judicial cooperation and
measures against terrorist funding. A wide variety of measures
has since been adopted, many of which (such as the European Arrest
Warrant) were concerned more with the general criminal law than
being specifically directed towards terrorism, whilst others gave
effect to United Nations Security Council resolutions on terrorism
and terrorist funding. Council Framework Decision 2002/475/JHA
of 13 June 2002 on combating terrorism[13]
defined a "terrorist group", created the offence of
directing a terrorist group, as well as other offences related
to terrorism, and provided for a common range of penalties across
the EU.
7.2 We considered a Communication from the Commission
on 26 May 2004 together with a draft Council Decision. The Communication
argued for a more direct link between measures to combat terrorism
and those dealing with organised crime, suggesting that the scope
of Joint Action 1998/733/JHA, making it a criminal offence to
participate in a criminal organisation in the Member States, should
be reviewed and expanded. It also suggested that systems should
be established by the Member States for registering bank accounts,
to allow the true owners to be identified and for such systems
to be accessible to law-enforcement agencies and judicial authorities.
The Communication indicated that the Commission would be making
a proposal before the end of 2004 for a European criminal record.
7.3 The draft Council Decision would require Member
States to designate a specialised service within its police services
which is to have access to, and collect, information concerning
or resulting from criminal investigations into terrorist offences.
Each Member State would be required to designate a Eurojust national
correspondent for terrorism, or an appropriate judicial or other
authority, which would have access to, and collect, information
concerning prosecutions and convictions for terrorist offences
and would be required to ensure that information obtained by these
bodies is passed to Europol and to Eurojust.
7.4 We agreed with the Minister that there should
be a careful assessment of the links between terrorism and organised
crime in the EU before any new legislation on organised crime
was proposed at EU level. The Commission's Communication appeared
to us to rest more on assertion than on evidence. We also agreed
with the Minister's hesitation over compulsory measures on the
registration of bank accounts. We noted that the Minister did
not comment specifically on the question of subsidiarity in relation
to the possibility of a European criminal record, but we considered
that it was not the business of the European Union to determine
the composition or content of national criminal records, since
such a matter bore directly on the rights of the individual and
was a matter for national parliaments.
7.5 We asked the Minister for her assessment, in
due course, of the compatibility of the draft Council Decision
with Article 8 of the European Convention on Human Rights, and
whether it would necessitate any amendment of the Human Rights
Act 1998 or the Data Protection Act 1998. We also asked the Minister
for an account of the views expressed by the Council Secretariat
on the question of an exemption to protect national security and
on the extent to which the new proposal may duplicate the operation
of the Europol Information System. We also asked the Minister
to explain how the Council Decision might affect the handling
of confidential or secret information provided to the United Kingdom
by third countries (notably on the use of communications technologies)
and whether it was the Government's intention to seek to qualify
or restrict the apparently absolute obligation to pass all information
to Eurojust or Europol.
7.6 Finally, we noted that Article 2(6) of the Council
Decision (which required information acquired in the course of
a criminal investigation to be held available) appeared to duplicate
the provisions of the proposal for a European Evidence Warrant,
and we asked the Minister to explain the relationship between
these two proposals.
The revised draft Council Decision
7.7 Documents (b), (c) and (d) are revised versions
of the draft Council Decision. Document (d) is the most recent
version, on which the Council reached a common approach on 2 December
2004, subject to parliamentary scrutiny reservations by France,
Ireland, the Netherlands and the United Kingdom.
7.8 The text is substantially the same as the original
version, save that it now contains a new recital which provides
that "in the execution of the exchange of information, this
Decision is without prejudice to essential national security interests,
the jeopardizing of the success of a current investigation or
the safety of individuals, or specific intelligence activities
in the field of State security". A reference to an exception
based on such concerns had been included as Article 2(7) of the
earlier version (document (c)), but this has now been moved to
the recitals.
7.9 Article 2 continues to provide for the exchange
of information concerning terrorist offences. As before, Article
2(2) requires each Member State to designate a Eurojust national
correspondent for terrorism matters (or other appropriate judicial
or other competent authority) which "in accordance with national
law" shall have access to the relevant information and shall
send it to Eurojust. Article 2(3) requires Member States to ensure
that information concerning criminal investigations, prosecutions
and convictions for terrorist offences is transmitted to Europol
and Eurojust, but such transmission is now required only where
the terrorist offence affects or may affect two or more Member
States. As before, the transmission is to be in accordance with
national law and the Europol Convention and Eurojust Decision.
7.10 No material changes have been made to the remaining
Articles of the proposal.
The Government's view
7.11 In her Explanatory Memorandum of 8 February,
the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains that the proposal seeks to extend the
scope of exchange of information so as to cover all terrorist
offences as defined by Council Framework Decision 2002/475/JHA
on combating terrorism,[14]
and to include information on final convictions as well as investigations
and proceedings. The Minister adds that the proposal "also
delineates the boundaries between the information sent to Eurojust
and Europol by taking into consideration their respective need
to know".
7.12 The Minister makes this further comment:
"The UK has supported this Council Decision,
and is content that it will encourage the wider exchange of information
in this area. The UK believes that the Council Decision includes
appropriate safeguards which will ensure that there is no absolute
requirement to exchange information that may harm national security
or which could jeopardise the success, security or confidentiality
of ongoing investigations."
7.13 The Minister describes Article 2(3) as stating
clearly that information may only be passed to Europol and Eurojust
in accordance with national law and with the provisions of the
Europol Convention and the Eurojust Decision. The Minister adds
that "both instruments and UK national law include appropriate
safeguards which place conditions and allow for discretion concerning
the circumstances in which information may be exchanged".
7.14 The Minister adds that the references to "national
law" ensure that appropriate data protection standards, including
the Data Protection Act 1998, govern the transmission and handling
of UK data in this context. The Minister also comments that these
references "implicitly ensure that appropriate human rights
standards are respected, in accordance with Article 6 TEU, when
the draft Council Decision is operated".
Conclusion
7.15 We thank the Minister for her latest Explanatory
Memorandum, but we remind her that we still await her comments
on whether the proposal for a European criminal record, as referred
to in the Commission's Communication, complies with the principle
of subsidiarity, and on the question of whether Article 2(6) duplicates
the corresponding provisions of the draft European Evidence Warrant.
7.16 We note the Minister's explanation that the
proposal provides for safeguards and discretion in the exchange
of information, but we observe that the exception for "intelligence
gathering operations" (in document (b)) appears now to have
been narrowed to one for "specific intelligence activities
in the field of State security" and we ask the Minister if
she can be certain that the exception as now drafted would not
require the UK to disclose the nature of a "specific intelligence
activity" in order to rely on the exception.
7.17 We clear documents (b) and (c) on the grounds
they are superseded, but we shall hold documents (a) and (d) under
scrutiny pending the Minister's reply.
13 OJ No. L 164 of 26.6.02, p.3. Back
14
OJ No. L164 of 22.6.2002, p.3. Back
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