5 Transmission of intelligence about
terrorist offences
| (27205)
5335/06
COM(05) 695
| Draft Council Decision on the transmission of information resulting from the activities of security and intelligence services with respect to terrorist offences
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| Legal base | Articles 30(1)(b) and 34(2)(c) EU; consultation; unanimity
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| Document originated | 22 December 2005
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| Deposited in Parliament | 19 January 2006
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| Department | Home Office |
| Basis of consideration | EM of 9 March 2006
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 In March 2004, the European Council made a declaration on
combating terrorism. It included the following passage on the
sharing of intelligence:
"The European Council calls upon Member States to improve
mechanisms for cooperation and the promotion of effective systematic
collaboration between police, security and intelligence services.
"The flow of intelligence in relation to all aspects
of terrorism to Europol should be improved. The further development
of the relationship between Europol and intelligence services
will also be carried forward."[23]
5.2 Article 29 of the Treaty on European Union (the EU Treaty)
states 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 common action among Member States in the field of
police co-operation in criminal matters co-operation. The objective
is to be achieved by closer co-operation between the police, customs
authorities and other competent authorities both directly and
through Europol.
5.3 Article 30(1)(b) of the EU Treaty provides that police co-operation
includes the exchange of relevant information, particularly through
Europol.
5.4 Article 34(2)(c) of the EU Treaty authorises the Council to
adopt Decisions for any purpose consistent with the objectives
of Title VI of the Treaty (Police and Judicial Cooperation in
Criminal Matters), excluding the harmonisation of national laws.
The Document
5.5 In its explanatory memorandum on this draft Decision, the
Commission refers to the passage in the European Council's Declaration
on combating terrorism. It also notes that, while information
which originates from the activities of national security and
intelligence services is not expressly excluded from existing
requirements for Member States to provide Europol with information,
in practice most of the information Europol gets is from law enforcement
authorities, not the security and intelligence services. The Commission
says that Europol has a pivotal role in dealing with terrorism
and must have the necessary information from Member States in
order to do its job. That is the purpose of the draft Decision.
5.6 The Commission states that the proposal is consistent with
the principle of subsidiarity because terrorism is an international
phenomenon and no Member State can tackle it effectively on its
own. Europol is able to develop an EU approach to and perspective
on terrorism; individual Member States cannot. The Commission
also says that the draft Decision would not impose excessive burdens
or costs on Member States and any such costs would be proportionate
to the contribution to countering terrorism.
5.7 Article 1 specifies the subject and scope of the draft Decision
and Article 2 contains definitions. Notably, "relevant information"
is defined as intelligence about terrorist offences which affects
or may affect two or more Member States.
5.8 Article 3 requires each Member State to designate a national
contact point in its security and intelligence services and to
ensure that those services transmit to the contact point all relevant
information resulting from their activities in connection with
terrorist offences.
5.9 Articles 4 and 5 require each Member State to ensure that
the information received by its national contact point is transmitted
to Europol and to the national contact points of the other Member
States to which the information relates.
5.10 Article 6 requires Member States to report on the action
they have taken to implement Article 3 to 5. The first report
would be required a year after the Decision comes into effect;
subsequent reports would be required at two-yearly intervals.
The Commission would have a duty to make reports to the Council
on the basis of the information provided by Member States and
Europol.
The Government's view
5.11 The Secretary of State for the Home Department (Mr Charles
Clarke) tells us that the Government is committed to working closely
with EU and non-EU partners to counter terrorism. This includes
sharing information, for which there are already well-established
bilateral and multilateral agreements. The Government is committed
to improving these arrangements so as to increase the security
of the EU as a whole.
5.12 The Minister says, however, that the Government believes
that the draft Decision:
"has potentially serious implications for the security
of sensitive information. In particular, we believe that the wide
distribution of information resulting from this Council Decision
would increase the chance that material would be leaked, misused,
lost or damaged. Moreover, having passed information on, there
are no restrictions on [its] use to [so as] to protect sensitive
sources and techniques. Agencies have a duty of care to their
human sources which they could not fulfil if the intelligence
provided were exchanges without these restrictions. Third parties
would be especially cautious about sharing sensitive intelligence
with EU partners for the above reasons."
5.13 The Minister adds that:
- Article 3 would require the setting up of a new and potentially
expensive system of national contact points;
- the Government believes that Europol would find it very difficult
to cope with the volume of intelligence that would be transmitted
to it;
- Article 3 of the Europol Convention requires Europol to inform
Member States of any information it has which affects them and
so Article 5 appears otiose; and
- the reporting requirements in Article 6 would add to Member
States' costs and there are no comparable reporting requirements
about the transmission of information to Eurojust and Europol
by law enforcement authorities.
Conclusion
5.14 We consider that the Government's reservations about the
draft Decision are serious and well founded. We are concerned,
in addition, that the document does not expressly exempt Member
States from the duty to transfer intelligence if transmission
would be likely, for example, to jeopardise national security,
an investigation or the safety of individuals. In our view, these
are essential safeguards.
5.15 We ask the Minister to provide us with progress reports
on the negotiations on the draft Decision and, in particular,
on the points about which he and we have expressed concern.
5.16 Pending those progress report, we shall keep the document
under scrutiny.
23 Brussels European Council, 25-26 March 2004, Presidency
Conclusions, Declaration on Combating Terrorism, item 9, pages
9 and 10. Back
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