1 EXCHANGE OF INFORMATION
BETWEEN LAW ENFORCEMENT AUTHORITIES
(26925)
13413/05
COM(05)490
+ ADD 1
| Draft Framework Decision on the exchange of information under the principle of availability
Commission staff working document: Impact Assessment
|
| Legal base | Articles 30(1)(b) and 34(2)(b) EU; consultation; unanimity
|
| Department | Home Office
|
| Basis of consideration |
Minister's letter of 15 December 2005 |
| Previous Committee Report |
HC 34-ix (2005-06), para 10 (9 November 2005) |
| To be discussed in Council
| No date set |
| Committee's assessment | Politically important
|
| Committee's decision | For debate in European Standing Committee B
|
Background
1.1 In November 2004, the European Council adopted the Hague Programme
setting out a five-year programme for policies on security, freedom
and justice in the EU.[1]
In the section on Strengthening Security, the Hague Programme
says that the cross-border exchange of information between law
enforcement authorities should be governed by the "principle
of availability". That principle is defined as follows :
"throughout the Union, a law enforcement officer in one
Member State who needs information in order to perform his duties
can obtain this from another Member State and that the law enforcement
agency in the other Member State which holds this information
will make it available".[2]
1.2 The European Council invited the Commission to make proposals
by the end of 2005 for the implementation of the principle of
availability. It said that:
"The methods of exchange of information should make full
use of new technology and must be adapted to each type of information,
where appropriate, through reciprocal access to or interoperability
of national databases, or direct (on-line) access, including for
Europol, to existing central EU databases such as SIS [the Schengen
Information System, managed by the Commission]".[3]
1.3 In November, we considered the draft of a Framework Decision
proposed by the Commission in response to the European Council's
invitation.[4] It proposes
the conditions and rules under which information held by the competent
law enforcement authorities in one Member State is to be available
to the equivalent competent authorities in other Member States
in order to help them prevent, detect and investigate criminal
offences prior to the commencement of a prosecution.
1.4 The draft Decision applies to six types of information:
- DNA profiles;
- fingerprints;
- ballistics;
- vehicle registration information;
- telephone numbers and other communication data,
excluding content data and certain traffic data; and
- "minimum data for the identification of
persons contained in civil registers".
Each Member State would have a duty to ensure that
the equivalent competent authorities of other Member States and
Europol have online access (that is, without prior authorisation)
to the information held on electronic databases of the Member
State's competent authorities. If the information is not available
online, the Member State would be required to provide an online
index of what relevant information is available and who controls
it. Having consulted the index, the equivalent competent authority
could issue an information demand, to which a reply must be given
within 12 hours. The reply could limit the use to which the information
might be put, or refuse to provide the information, on any of
the grounds specified in the Directive.
1.5 The draft Decision refers to the provisions of
a separate proposal on data protection.
1.6 The Parliamentary Under-Secretary of State at
the Home Office (Paul Goggins) told us that the Government supports
the general purpose of the Commission's proposal to increase and
speed up the sharing of information and intelligence between Member
States and with Europol. He noted that:
- Information obtained under
the draft Decision could be used only for the prevention, detection
or investigation of offences. Arguably, this is more restrictive
than the present arrangements and practices.
- Consistency would be needed between the data
protection provisions of this proposal and the separate draft
Framework Decision on the protection of personal data.
- The proposed grounds for refusing a demand for
information are, arguably, more limited than the present arrangements
and practices.
The Government would encourage discussion by the
Council of the costs to Member States of complying with the proposed
requirements for the provision of information.
1.7 We concluded that the "principle of availability"
is of sufficient importance to require debate in European Standing
Committee B. But before recommending the debate, we asked the
Minister to comment on a number of questions.
The Minister's letter of 15 December 2005
1.8 We set out below our questions and the replies
the Minister has given us in his letter.
Does the European Council's definition of the
principle of accessibility necessarily entail a right to online
access without the prior consent of the Member State which holds
the data?
1.9 The Minister agrees with us that the principle
does not in itself necessitate the granting of online access.
Would the right to refuse information be confined
only to requests arising from an entry in the index or would it
also extend to online access to databases?
1.10 The Minister says that it appears from the current
draft of the document that the right to refuse would apply only
to requests ("information demands") arising from consultation
of an index. He will seek clarification of the point. He adds
that he believes careful consideration will be needed about what
databases would be accessible online and "to ensure appropriate
safeguards are in place governing who can access these databases,
what data they can access and to what purposes data obtained can
be put".
Article 11(2) of the draft Framework Decision
would require the reply to an information demand to be given within
12 hours. Would this provide sufficient time for the proper consideration
of the request?
1.11 The Minister says that the Government will consult
the relevant authorities in the UK with a view to ensuring that
any time-limits specified in the Framework Decision allow sufficient
time for consideration of a request.
Should not discussion of the data protection provisions
of the draft Decision on the exchange of information be postponed
until after the consideration of the draft Framework Decision
on the protection of personal data processed for the purposes
of police and judicial cooperation in criminal matters?
1.12 The Minister tells us that that he expects that
the negotiations on the two draft Framework Decisions will inform
each other and that is the Government's aim.
Annex II of the draft Decision specifies the six
types of information which Member States would have a duty to
make available. The sixth type is described as "minimum data
for the identification of persons contained in civil registers".
What does this mean?
1.13 The Minister says that the sixth type was included
because of the value to law enforcement of access to data which
can identify or confirm who people are. He understands that electoral
registers and registers of births, marriages and deaths are examples
of registers held in the UK which might be of the sixth type.
He adds that:
"I believe this information type is illustrative
of the need, over the coming months, to give careful consideration
to what types of data should be subject to the principle of availability
and what modalities might be feasible and desirable for exchanging
this data."
Conclusion
1.14 We are grateful to the Minister for his letter.
We ask him to keep us informed of the progress of the negotiations
on this proposal.
1.15 For the reasons we gave in November when
we first reported on this proposal, we consider that the "principle
of availability" as interpreted by the Commission in the
draft Framework Decision raises issues of importance that should
be debated in European Standing Committee B.
1.16 The Council's discussions of the proposal
are expected to begin shortly. We recommend, therefore, that the
European Standing Committee's debate should be held soon so that
the Government is able to take account of the views of the House
from the outset of the negotiations.
1 See (25730) 10249/05: HC 38-iv (2004-05), para 17
(19 January 2005). Back
2
Conclusions of the European Council on 4/5 November 2004, Annex
1, paragraph 2.1, page 20. Back
3
Hague Programme, page 21. Back
4
See headnote. Back
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