Select Committee on European Scrutiny Fourteenth Report



+ ADD 1
Draft Framework Decision on the exchange of information under the principle of availability

Commission staff working document: Impact Assessment

Legal baseArticles 30(1)(b) and 34(2)(b) EU; consultation; unanimity
DepartmentHome 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 assessmentPolitically important
Committee's decisionFor debate in European Standing Committee B


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."


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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