4 Exchange of criminal record information
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5463/06
COM(05) 690
| Draft Council Framework Decision on the organisation and content of the exchange of information extracted from criminal records between Member States
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| Legal base | Articles 31 and 34(2)(b) EU; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 15 June 2006
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| Previous Committee Report | HC 34-xxiii (2005-06), para 8 (29 March 2006) and see (26391) HC 38-xv (2004-05), para 19 (6 April 2005) and (26385) HC 34-i (2005-06), para 27 (4 July 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; further information requested
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Background
4.1 The 1959 Council of Europe Convention on Mutual Assistance
in Criminal Matters[7]
provides for the exchange of criminal record information, both
by way of response to specific requests for information and by
informing Contracting Parties of all criminal convictions and
subsequent measures in respect of nationals of the latter Party
which are entered in its judicial records.
4.2 We considered a draft Framework Decision on 29
March 2006. We noted that it was described by the Commission as
responding to the expectations of the Justice and Home Affairs
Council on 14 April 2005 where Member States indicated that they
wished to retain the current principle whereby it was for each
Member State to centralise information on convictions in respect
of its own nationals. In relation to nationals of other Member
States and of third countries convicted within the European Union,
Member States considered that an index of convicted persons might
be created, but confined to such information as was necessary
to identify the Member State of conviction.
4.3 We noted that the proposal imposed a number of
obligations on the Member State of the convicted person's nationality
to record and maintain information and respond to requests for
information from criminal records and provided a framework for
a computerised information exchange system. The Member State where
the conviction is reached is required to record the nationality
in the case of the conviction of a national of another Member
State, and to inform the central authorities of the Member State
of nationality of the relevant conviction. Personal data provided
for the purposes of criminal proceedings or other proceedings
may be used only for the purposes of those proceedings, apart
from the case where the requesting Member State uses the information
"for preventing an immediate and serious threat to public
security", and data transmitted to a third State are to subject
to the same usage restrictions as those applying between Member
States.
4.4 We noted that the proposal provided for the introduction
and use of a standardised format for the electronic transmission
of criminal record information. A Committee chaired by the Commission
would make recommendations on the collection and storage standards
for information contained in national criminal records, and adopt
measures under a type of 'comitology'[8]
procedure.
4.5 We asked the Minister to confirm that the provisions
restricting the transfer of data to third countries applied only
to the re-transmission of data received from another Member State
and not to data which are processed within only one Member State.
We also asked the Minister to explain the purpose of Article 9(5)
in referring to data originating in a Member State being obtained
by that Member State under the Framework Decision. We noted with
concern the apparent resistance of other Member States to the
need for the United Kingdom to have more than one central authority
to reflect the fact that, alone of the Member States, the United
Kingdom is not a unitary state. We asked the Minister if the concerns
he had related also to Northern Ireland as well as to Scotland
and if he would make the UK's participation in this measure conditional
on agreement to a Member State being permitted the number of central
authorities appropriate to its own circumstances.
4.6 We were concerned about the extensive delegation
of power to the Commission to determine the format and other ways
of organising and facilitating the exchange of information, and
asked the Minister if he was content with the scope and degree
of delegation under these provisions, with the abandonment of
the requirement for unanimity and with the propriety of inclusion
of a reference to qualified majority voting under Article 205(2)
EC in a Framework Decision adopted by unanimity under the EU Treaty.
Finally, having noted that no reference had been made to the views
of the Information Commissioner, we asked the Minister if he intended
to consult him and to inform us of his views.
The Minister's reply
4.7 In her letter of 15 June 2006 the Parliamentary
Under-Secretary of State at the Home Office (Joan Ryan) confirms
that the provisions of Article 9 apply only to the re-submission
of data received from another Member State. In relation to our
question on the operation of Article 9(5) (which provides that
the conditions restricting the use of personal data do not apply
to personal data obtained by a Member State when originating in
that same Member State), the Minister provides an example to show
the working of the provision:
"Mr X, a UK citizen, is arrested and convicted
in Germany. That conviction is subsequently sent to the UK and
placed on the UK criminal record database (PNC). At a later date
the French ask the UK for convictions held by the UK on Mr X.
Point 5 of Article 9 allows the German conviction to be disclosed
as part of that process without recourse to Germany as that conviction
now forms part of the UK criminal record database."
4.8 On the question of central authorities, the Minister
states that the proposal at present allows for only one central
authority as the point of contact for other Member States when
sending a request for information to the UK. The Minister states
that this ensures certainty for other Member States when sending
a request in respect of a UK national. The Minister also notes
that, as presently drafted, the proposal appears to provide the
flexibility to have more than one central authority when responding
to a request. The Minister adds this comment:
"As I noted previously, there has been little
support amongst other Member States for having multiple Central
Authorities for the receipt of a request, and whilst the Government
will continue to press for this in negotiations, it is not something
that would block an important part of the mutual recognition agenda
if it were not to be included."
4.9 With regard to the delegation of powers to a
committee chaired by the Commission, the Minister comments that
"the Government considers that the use of a committee to
determine the design of the IT system, rather than including detailed
technical provisions in the text of the Framework Decision itself
is, in principle, a reasonable proposal". The Minister explains
that the committee would be made up of representatives of the
Member States and would agree detailed implementing measures and
amend them as necessary in the future. The Minister considers
this to be a practical solution and states that the Commission
"will not have free rein in determining the format and organisation
of exchange of information" since no measures can be adopted
unless there is a qualified majority and the "key criteria
that must be included in the standardised format will be set out
in Article 11". The Minister considers that, as the Committee
will be determining largely technical matters, qualified majority
voting "seems appropriate in this case" so that, for
example, a single Member State could not block a minor alteration
to the standard form. The Minister adds that the proposed use
of comitology type procedure in a Third Pillar instrument "will
attract significant interest" in the working group discussions
and that the Government will keep us informed of progress.
4.10 In relation to the Information Commissioner,
the Minister confirms that he will be consulted and that his views
will be included in further submissions to us.
Conclusion
4.11 We thank the Minister for her letter, which
goes some way towards meeting our concerns. We note that Article
9 applies only to data received from one Member State and then
re-transmitted to another.
4.12 We also note the explanation provided by
the Minister in relation to Article 9(5). However, in the circumstances
of the illustration provided by the Minister, it seems to us to
be strained to regard information transmitted to another Member
State as "originating" in the Member State to which
it is transferred. In our view, the drafting of Article 9(5) does
not achieve the result explained by the Minister.
4.13 We remain concerned that the UK should retain
the right to designate more than one central authority in order
to reflect the unique nature of its separate legal systems. In
our view, any mutual recognition "agenda" at EU level
must respect this distinctive feature of the United Kingdom.
4.14 We are also concerned about the delegation
of powers to a committee chaired by the Commission. We recall
that we pointed out to the Minister that such a committee would
be given power to determine not only questions of format but also
"other ways of organising and facilitating exchanges of information
on convictions". This remit appears to us to be considerably
wider than the "detailed implementing measures" referred
to by the Minister.
4.15 We also recall our concern over the inclusion
of a reference to qualified majority voting under Article 205(2)EC
in a Framework Decision. The legal basis for this appears to us
to be doubtful, since it is only in respect of a decision under
Article 34(2)(c), and not in respect of a Framework Decision under
Article 34(2)(b), that any reference is made in the EU Treaty
to the Council acting by a qualified majority. We invite the Minister
to consider this point and to state her views.
4.16 We welcome the Minister's decision to consult
the Information Commissioner and we shall look forward to receiving
an account of his views.
4.17 We shall hold the document under scrutiny
pending the Minister's reply.
7 European Treaty Series No.30. Back
8
The procedure used under the EC Treaty (under Council Decision
1999/468/EC) when implementing powers are delegated to the Commission
by the Council. The Council Decision does not apply to matters
falling under the EU Treaty, such as the implementation of Framework
Decisions. Back
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