Select Committee on Home Affairs Third Report

3  The effectiveness of European action in particular fields

Policing

---

Police co-operation across the EU

67. There are a large number of different national and European bodies operating in the policing field. At the UK level the Serious Organised Crime Agency (SOCA) and the Association of Chief Police Officers (ACPO) are key players, and individual forces have a number of localised agreements with police organisations in other EU Member States. At the European level the major organisation is the European Police Office known as 'Europol'. Europol was established in 1995 by the Europol Convention, which entered into force in 1999, with the objective "to improve the effectiveness and co-operation of the competent authorities in the Member States in preventing and combating all forms of serious international crime". It exists to aid national policing agencies to co-operate one with another in tackling cross-border crime. There are also a number of other organisations which facilitate closer informal co-operation, including the European Police Chiefs Task Force and the European Police College (CEPOL). Outside the EU there is a further layer in the form of international organisations such as Interpol.

68. Close co-operation between law enforcement agencies across the European Union is crucial to the UK and EU ability to fight crime effectively. Liaison between UK police and their EU counterparts is carried out by SOCA in regard to serious organised crime, but there is no equivalent central agency to carry out a similar role in regard to other forms of crime. The gap is partly filled by bilateral contacts between police forces and between other policing organisations on a more or less ad hoc operational basis, where the need for co-operation is specific or specialist. In other cases the nature of the problem is pan-European, and it may be more effective to have an EU-wide agreement or legal framework in place to facilitate co-operation.

69. In the context of our inquiry, which aims to be a 'snapshot' of current EU developments in the whole field of JHA, we have not had the opportunity to investigate European police co-operation in depth. Rather we have isolated a number of topics of current concern, particularly where there are claimed to be deficiencies in current arrangements.

UK input into co-operation: is SOCA sufficient?

70. We explored with our witnesses the question of whether the proliferation of police organisations had led to unnecessary duplication of functions, and whether there were gaps in co-ordination. ACPO told us that SOCA guards against duplication in the field of serious organised crime by providing a gateway function for UK police to European co-operation, co-ordinating access to Schengen, Europol and Interpol: "SOCA provides a one-stop facility in respect of serious organised crime, a bespoke agency".[34] SOCA also represents the UK on a number of police working groups in Brussels.

71. We were given an example of how SOCA can co-ordinate police co-operation in relation to serious organised crime:

One of the operations we did recently was an operation called Flamage, which is an ongoing operation involving the smuggling of Class A drugs through Europe into the UK. So far we have facilitated numerous outbound Article 40 requests for international surveillance of the main targets in Holland and Spain. So far intelligence we have got from the surveillance has led to the seizure of 50 kilos of cocaine and arrests in the United Kingdom, and it is an ongoing operation which we are still working on with Spanish and Dutch colleagues.[35]

72. Whilst SOCA provides mechanisms for liaison in relation to serious organised crime, it has no oversight of day to day contact on more minor issues between UK police and their European partners. ACPO raised this as a problem: "we would be in a stronger position if we had a single body in the UK that dealt with [police co-operation on] the non-serious organised crime side".[36]

73. We asked ACPO to give an example of the kind of crime which would not be covered by SOCA in its co-ordinating role. In response Chief Constable Paul Kernaghan told us:

SOCA does not have a role, for instance, in respect of murder, or in respect of a single paedophile etc. That is incredibly important information which is exchanged between all the police forces of the European Union. There is lots of serious crime which is not serious organised crime. It is not the raison d'être but it is what I would call day-to-day bread and butter policing which engages all 52 territorial forces of the UK.[37]

74. Bill Hughes, Director-General of SOCA, agreed that although ACPO and SOCA do their best to liaise in a pragmatic way about serious but non-organised crime, nonetheless this was not within SOCA's remit, and there was a deficiency in liaison at this level.[38] ACPO pointed out that this arises from the devolved nature of UK policing, with no national police force: Chief Constable Paul Kernaghan said that "we lack a central police body, a core of staff, and that does cause problems". Mr Kernaghan also said that, to the best of his knowledge, with one exception, other Member States either had a national police force, or else one designated to take the national lead on particular issues. He gave the example of The Netherlands which, although devolved, has "one national police agency which literally deals with any function that a territorial force neither wishes to or is not resourced to".[39]

75. We raised with the Parliamentary Under-Secretary at the Home Office, Joan Ryan MP, whether the Government had any plans to establish a central policing body for exchange of information on more minor criminality. Ms Ryan replied that she was not aware of the issue, but would send further comments in writing. [40]

76. On 27 February, Ms Ryan wrote to us in the following terms:

The possibility of a central UK police body to deal with EU functions and issues

The Government is aware that this issue was raised by members of the ACPO and SOCA when they gave evidence to your Committee on 9 January. There is already good co-operation between UK police forces and counterparts in the EU, in part facilitated by ACPO, liaison officer networks and Europol, but it is true that the structures in place at EU level tend to concentrate on supporting co-operation in tackling organised crime because this has been identified as the EU-level priority. However, the Government takes seriously the views expressed by ACPO and SOCA and is committed to improving police co-operation with other Member States, whether it is serious or not. We will therefore consider jointly with ACPO and SOCA what improvements could be made to current arrangements, including at a planned Law Enforcement Forum in April.[41]

77. We welcome the Government's assurance that it will give consideration to setting up some central mechanism for co-ordinating liaison between UK police and their counterparts in other EU states on crime other than serious organised crime. It is clear from the comments made to us by police representatives that the absence of such a mechanism causes difficulties. We are therefore surprised that prior to our evidence session on 9 January it appears that the Government was not aware of ACPO's and SOCA's concerns in this regard—which in turn suggests a failure of liaison between the Government and its senior police advisers.

Bilateral arrangements

78. Practical arrangements for bilateral co-operation between police forces to deal with localised or specialist subjects can be very fruitful. ACPO cited the example of the Cross Channel Intelligence Conference :

Typical of the evolution of good co-operation in a recognised border region is the Cross Channel Intelligence Conference. Co-operation is based on both bi-lateral and multilateral localised agreements between the various police services and, in some cases, governmental representatives in the respective regions … Membership derives from police forces in coastal regions of The Netherlands, Belgium, France and England.[42]

79. ACPO also gave the example of the Joint Initiative between the Préfet of the Pas-de-Calais and the Chief Constable of Kent Police:

Agreed in June 2004, this initiative agrees the practice of daily trans-frontier co-operation …. there are clear benefits to be derived from: developing co-operation between their services to improve levels of arrest and prosecution [and] improving the exchange of intelligence.[43]

80. SOCA praised the speed and flexibility of practical arrangements:

The main benefit [of practical co-operation] continues to be the co-operation through bilateral channels within national law of the Member States. This co-operation is quicker and can take place without any formal legislative framework.[44]

81. SOCA expanded on this in oral evidence, saying that UK police bodies favour a pragmatic approach to problems as they arise, rather than setting in place structures to anticipate problems. It suggested that this approach is often best accomplished through practical arrangements:

Bilateral, sometimes multilateral, working in small groups and small working arrangements we can get on and achieve a considerable amount. It seems to work quite well but there is a danger all the time of creating structures to deal with all the known or unknown circumstances that could arise and we are generally not in favour of that type of approach.[45]

82. We asked the police if more arrangements are needed. SOCA emphasised the need to ensure what is already in place works properly:

We do not necessarily need more agencies, more institutions, or even more legislation actually. If anything, we need to streamline the current arrangements and make better use of what, in many respects, are significant capabilities that are already out there.[46]

Europol

83. Whilst practical co-operation between European police forces can be effective without the assistance of any centralised EU agency, some police co-operation arrangements require co-ordination at EU level. The chief mechanism for achieving this is provided by Europol, the European Police Office.

84. Following the entry into force of the Maastricht Treaty, Member States signed in 1995 the Europol Convention, which entered into force in 1999. Prior to that date, operational co-operation between police forces in the EU took place primarily through Europol's predecessor, the European Drugs Unit. Europol is a third pillar body with legal personality. Its task is to facilitate bilateral or multilateral practical co-operation between police forces in individual countries. Its remit is to "improve the effectiveness and co-operation of the competent authorities in the Member States in preventing and combating terrorism, unlawful drug trafficking and other serious forms of international organised crime".[47]

85. The criminal activities against which Europol's work is primarily directed include illicit drug trafficking, illicit immigration networks, terrorism, forgery of money (counterfeiting of the euro) and other means of payment, trafficking in human beings including child pornography, illicit vehicle trafficking and money-laundering.

86. The Europol Convention describes Europol's key tasks in assisting national police forces as: [48]

• to facilitate the exchange of information between the Member States;
• to obtain, collate and analyse information and intelligence;
• to notify the competent authorities of the Member States without delay via the national units referred to in Article 4[49] of information concerning them and of any connections identified between criminal offences;
• to aid investigations in the Member States by forwarding all relevant information to the national units;
• to maintain a computerized system of collected information containing data in accordance with Articles 8, 10 and 11.[50]

87. Europol is based in The Hague. As at December 2006 it had 566 staff, including 105 Europol 'liaison officers' (ELOs) seconded from Member States and around 100 intelligence analysts. The total number of staff has almost doubled since 2000. Europol's budget for 2006 was 66 million euros.[51]

88. The recent increase in resourcing for Europol has reflected an extension of its remit. Its competence has expanded from five to 27 specific forms of crime. It is now authorised to participate in "joint investigations teams" in the Member States and empowered to request individual states to "initiate, conduct or co-ordinate investigations in specific cases". Three protocols giving force to these changes have been ratified by national parliaments and had entered into force by April 2007.[52]

89. In their evidence to us, UK police praised the value of Europol. Bill Hughes, Director-General of SOCA, told us:

Europol already represents the single mechanism within the EU to co-ordinate Member States' response against serious and organised crime. We would encourage all Member States to make the best use of that organisation, and use that the single method of co-ordinating our work. It does work effectively in many cases. I am not sure that its potential has yet been fully realised.[53]

90. Our police witnesses maintained that the UK co-operates well with Europol:

The analytical working files, … there are 18 of those which cover a wide spectrum of organised crime. The UK participates in 15 of those, and we are just about to participate in the sixteenth … we are one of the good guys because we work with Europol and Interpol and we support what they are doing.[54]

91. ACPO gave us an example of where, in their view, bilateral co-operation between police forces needs to take place within a formal legal framework supplied by Europol:

There is good professional co-operation but I think on certain occasions it is very important that there are treaties and protocols signed up between Member States to ensure that police work can be translated into evidence before a court to secure a conviction. … A good example would be the protocol that has set up joint investigation teams which enables police forces very openly and publicly to send an officer to another jurisdiction, and for that individual to participate in the investigation. We do need a framework.[55]

92. However, we note that it is still early days for Joint Investigation Teams (JITs). According to figures from Eurojust, so far there have been only 16 JITs set up within the EU, of which only one involved the UK.[56]

93. Some witnesses suggested that the effectiveness of Europol is being undermined by the fact that not all Member States use it or provide information to the same degree. A 'High Level Conference' held in February 2006 found that "some information is still not supplied to Europol because the potential providers in the Member States do not know what will happen with that information".[57] Neither the conference nor the Commission's follow-up paper arrived at conclusions as to how this attitudinal problem might be remedied.

94. The civil liberties organisation Statewatch has argued that:

Some Member States' police forces are clearly reluctant to co-operate with Europol in the way that the Convention envisaged, preferring to co-operate through traditional bilateral channels. Europol is certainly providing logistical support to cross-border investigations and operations such as 'controlled deliveries' (the surveillance of cross-border shipments of drugs, people or illegal goods) but is clearly hampered by a lack of practical intelligence from the Member States.[58]

95. Europol itself confirmed that it is not receiving full co-operation from all members of the EU. Deputy Director Michel Quille told us:

We have some Member States (and it is not my task to deliver good or bad scores) who do not use the full potential of Europol. Our fight in Europol is to try to convince all Member States to use Europol … we have to convince Member States to send information … to increase the awareness of Europol.[59]

96. An internal debate on the future of Europol has been taking place within EU institutions over the past 18 months. The Commission has argued that there is a need to put Europol on a firmer legal footing by replacing the current patchwork system of conventions with a "fully fledged legislative system". In December 2006 it put forward a proposal for a Council Decision to re-establish Europol on a new legal basis. As the Commission explained, "the main advantage of a Decision over a Convention is that it is relatively easy to adapt to changing circumstances because it does not require ratification" by national parliaments. The proposed Decision would also further extend Europol's mandate, to cover crime which was not specifically linked to organised crime, and would give it power to gather and handle information "as necessary to achieve its objectives".[60]

97. Our UK police witnesses did not support any significant further extension of the organisation's current, recently expanded, powers and remit. For instance, SOCA told us that what was needed was for Europol to do better "what it already does pretty well".[61] And Europol itself commented "we have to stabilise our work, and not to expand too much".[62]

98. The European Parliament's Civil Liberties, Justice and Home Affairs Committee (LIBE) held a hearing on the future of Europol on 10 April 2007. At this meeting, concerns were expressed about a lack of democratic scrutiny in the Commission's proposal. The proposal gave only a marginal role to the EP and did not mention national parliaments at all. This contrasted with the provision in the stalled Constitutional Treaty for joint scrutiny of Europol by the EP and by national parliaments. MEPs on the LIBE Committee also criticised the Commission's proposal for lacking safeguards on the handling of personal data.[63]

99. We believe that the creation of Europol has been a positive development in facilitating police co-operation, particularly by building confidence and knowledge between Member States. We do not believe Europol has yet achieved its full potential. A significant aspect of this is a lack of full trust and co-operation between Member States. Although the UK is fully engaged with the work of the agency, its work appears to be hampered by the varying degrees of co-operation it receives from other Member States. It is disappointing that the Commission has not done more to address the evident reluctance of some Member States to supply their national Europol liaison officers with needed information. We recommend that the UK Government should take such steps as are open to it to encourage all Member States to co-operate fully with Europol. We recommend that the Commission should consider practical ways to promote Member States' confidence in Europol and encourage better data-sharing; and also that it should draw public attention to the failure of some individual Member States fully to co-operate with Europol.

100. The Commission's recent proposal further to extend the powers of Europol will require careful examination by the UK Government. In the light of the evidence we have received from UK police, it does not appear to us that there is a pressing need for a further extension of powers on top of the significant extension recently approved.

101. We are also concerned that the Commission's proposal contains no reference to scrutiny of Europol by national parliaments. In this respect it marks a step backwards from the proposals in the Constitutional Treaty. We recommend that the UK Government should not give its approval to any changes in the status of Europol unless provision is made for a scrutiny role for national parliaments in conjunction with the European Parliament.

The Schengen Convention and Article 96 data

102. Although the United Kingdom has not participated in the 1990 Schengen Convention insofar as this abolishes border controls between Member States, it is a signatory of the Council Decision implementing in EU law those parts of the Convention which relate to police co-operation. These provide for mutual assistance and direct information exchange between police services, cross-border surveillance and pursuit of suspects, improved communication links and information exchange via central law enforcement agencies. The Schengen Information System (SIS), in operation since 1995, is a computer network containing information on wanted persons, stolen objects and vehicles. Different parts of the information system can be consulted by police, border police, customs, Europol, Eurojust and by authorities responsible for delivering visas and residence permits. The Commission is developing proposals for the design and establishment of the second generation Schengen Information System (SIS II), to meet the challenges of enlargement. This was expected to become operational in 2007, but implementation has been delayed until 2008 for technical reasons.

103. Since January 2005 the UK has participated in all Schengen police and judicial co-operation measures, except "hot pursuit". The terms of the Schengen acquis provide for police agencies to assist one another by the exchange of information on a police-to-police basis for the prevention and detection of criminal offences. Most exchanges of information take place between designated central bureaux in each Member State (SOCA provides this function in the UK), although closer bilateral ties in border areas are not precluded. ACPO told us that the UK is a gross exporter of requests for assistance from other Member States, receiving "vastly more information from abroad than is released".[64]

104. Because the UK does not participate in the border control measures of the Schengen Agreement, it has been excluded from access to data gathered under the provisions of Article 96 of the agreement. 'Article 96' data is designated for immigration and visa purposes, and consists of alerts put on the Schengen system for specific individuals. ACPO told us that many of the subjects of Article 96 alerts have been refused access to the Schengen area because of criminal convictions or national security issues.

105. We questioned ACPO about the consequences for UK police of not having access to this data. Chief Constable Paul Kernaghan told us in response:

I want as much information to protect the public as I can get my hands on and it does worry me that there will be information available which I will not have access to. … It could be if there is a notorious case … the media will be able to say, "Did you know under Article 96 in the following country they knew this person was a mad axeman" or whatever, and … the police chief in Britain will be stood looking at the cameras saying, "No, I was not aware of that". ... We would like access to Article 96 but at this point in time we have not got it.[65]

106. SOCA's Director-General, Bill Hughes, gave an example of an anomaly arising from the current situation:

an individual could be refused entry to France by a French police officer who is based in Kent at the juxtaposed controls for the Channel Tunnel on the grounds that the French officer is aware that he is a threat to national security from the information that he has from the Schengen Information System. That French officer can turn that individual back without us having access to that same information.[66]

107. The police argued to us that although they could "work around" the difficulties caused by UK exclusion from access to Article 96 information, it should not be necessary to resort to such expedients.[67]

108. The UK Government supports the police in their request for access to Article 96 data. It argues that Article 96 data bears on law enforcement and not only immigration and it is therefore appropriate for the UK to have access. The Parliamentary Under-Secretary at the Home Office, Joan Ryan MP, told us that "where there is information that impacts upon law enforcement issues, then we should have access to that and yes, we are pressing the point very hard".[68] She stated that the Government is making its case in all appropriate forums: at the Council, with the Commission and with the Council for Legal Services, as well as through bilateral ministerial contacts. Ms Ryan told us, however, that other Schengen countries are not very sympathetic to the UK's position: "we do not have a lot of support for our argument, I have to say".[69]

109. We support the UK Government in its efforts to persuade the relevant EU institutions and other Member States that enabling UK police to access Article 96 data would be in the best interests both of the UK and the EU at large. It is not acceptable that crime-fighting should be hindered simply in an attempt to force the UK to take a different attitude towards participation in the Schengen border-control regime.

Addressing deficiencies in data exchange

110. ACPO told us that the principal gaps they would identify in current police co-operation throughout the EU were in respect of "firstly, the standard identification of individuals and secondly, automatic sharing of criminal records throughout the EU".[70] SOCA concurred with this analysis.

EXCHANGE OF CRIMINAL RECORDS

111. Until 2005 the exchange of criminal records of nationals of one Member State who were convicted in another Member State was governed by Article 22 of the 1959 Council of Europe Convention on Mutual Legal Assistance in Criminal Matters. Article 22 did not set any deadlines for the speed of exchange of information, nor for the quality of content. On timing, it required only that States should "communicate … information to each other at least once a year". As the Home Office has commented, "this wording conveyed no sense of urgency". The inadequacy of these arrangements was flagged up at the EU level by a series of high-profile cases in France and Belgium, including the Fourniret case.[71]

112. Concerns prompted by this case led to an EU Council Decision in November 2005 requiring Member States to exchange information on convictions via a designated 'Central Authority'. In the UK such an authority was set up as part of ACPO in May 2006.

113. At our evidence session on 9 January 2007, we asked Chief Constable Paul Kernaghan, representing ACPO, if the arrangements prior to the creation of the UK Central Authority meant that serious offenders could enter the UK without the authorities being aware. Mr Kernaghan agreed that this had been the case:

Until the ACPO criminal records office was created to support European legislation, and let us use an emotional but I think it is a very valid example, someone could go to, let us say, Germany, commit a sexual offence, be convicted by the German courts, rightly and properly serve his sentence and that would not be known to any British police officer when they came back to the UK and it frankly would not be known to the British courts when they re-offended in Britain and went before the courts, they would go with a clean record which obviously affects the sentence. That is a totally unacceptable position I would say professionally and crucially from a public protection point of view. Over a period information was supplied to the UK and frankly sat in box files. It was not entered into the Police National Computer and there was a gap.[72]

114. This evidence was widely reported in the press and provoked considerable criticism of the Home Office, particularly when it emerged that prior to our evidence session Home Office Ministers had not been aware of the systematic failure to put details of overseas criminal convictions of UK citizens onto any police database.

115. In response to these criticisms, Ministers set up an internal Home Office inquiry into what had happened. The resulting report, by Dusty Amroliwala OBE, was published in February 2007.[73] Amongst its conclusions were the following:

• The lack of provision in the 1959 Convention for timely exchange of information, compounded by the poor quality and inconsistent formatting of much of the information received under Article 22, mean that "from the outset, it appears that this data was viewed by successive generations of handling authorities in the United Kingdom as little more than a subordinate set of statistical information".
• "For reasons that the Inquiry has not been able to establish fully, the practice of forwarding these notifications to the Metropolitan Police ceased around 1995. … Thereafter, an accumulation of Article 22 notifications began to grow in the Home Office."
• "Ministers were not told over a period of more than ten years about the accumulating notifications, even during the latter part of 2006 when the potential seriousness of the issue was beginning to be realised. The first Ministers knew of it, therefore, was on 9 January 2007 when the Chief Constable of Hampshire Constabulary gave evidence to the Home Affairs Select Committee."[74]

116. The Amroliwala report made a number of criticisms of Home Office working practices, chief amongst them being the absence of structured and systematic handovers between outgoing and incoming occupants of posts. It also recorded "a strong sense … that witnesses had a particularly narrow view of their personal responsibilities", a lack of leadership, and an absence of proper risk assessment.[75]

117. ACPO told us that the benefits of the new situation arising as a result of the 2005 EU agreement and the consequent setting up of the UK Central Authority have been considerable.[76] They include the following:

• The exchange of criminal records will enable patterns of criminality to be more readily identified, facilitating the appropriate operational response. People smuggling, international paedophilia, drug trafficking, as well as terrorist related offences are crimes which are trans-national by nature.
• Courts will be able to take account of a convicted person's complete offending history when considering sentencing.
• Having a dedicated Central Authority within the UK has already ensured greater accuracy in the creation and updating of records. The unit is also able to ensure consistency in identification of the offender by encouraging the exchange of fingerprints, (and perhaps later DNA), to prove identity.
• There will be an increased opportunity to identify wanted persons, both in the UK and those subject of a European Arrest Warrant. This will lead to the apprehension of offenders, denying them the opportunity to commit further, often serious crime.
• The ability to identify offenders and their offending patterns (e.g. Fourniret) who commit serious crime in one country and who later move to and continue to commit crime in another country (the SIS can also be used to identify the arrival of certain offenders before they reoffend).
• The timely creation of full and accurate conviction information on PNC and other national databases, such as the Violent and Sex Offenders' Register (ViSOR), in support of policing purposes.

118. However, although records are now being entered onto police databases, the 2005 agreement only addressed the speed and manner of the records exchange and not the content and quality of the records:

Whilst this new agreement will ensure that such convictions are transmitted to the UK within weeks of the conviction, only the bare details of the offender are received, i.e. name, date and place of birth. The important identification material is not sent with the notification because the record offices within the EU do not have access to this data.[77]

119. When we raised this issue with Parliamentary Under-Secretary at the Home Office, Joan Ryan MP, she agreed that the quality of information received is still poor:

It is the case, as I understand it, that some countries send through very good information and some countries do not; it is all very variable. Yes, we have had some difficulty with some of the conviction data we have received in actually identifying who the individual is who we are talking about.[78]

120. ACPO identified a further problem: that because of the split between immigration and police systems, the police do not automatically know when an individual convicted abroad re-enters the country:

people are not checked against a criminal record database or a police database, it is against immigration databases, so there is a gap at this point in time. I hope that with the implementation of e-Borders and as and when we join up with Schengen, more information will be available so that whilst they may well be allowed into the UK there will be an update as to the fact that they are now in the UK.[79]

They argued that measures need urgently to be put in place to regulate the quality of data on criminal records, suggesting that "at some stage there should be automatic recognition of convictions throughout the EU".[80]

121. Ms Ryan informed us on 20 March that the Home Secretary wrote to the Prime Minister and Cabinet on 16 January 2007 about a proposed review of information on criminality to consider "how information about criminality is recorded and shared both within the UK and between the UK and other countries as well as how such information is used to protect the public". She told us that the Home Secretary had proposed the following draft terms of reference: "To thoroughly examine and recommend necessary improvements for recording and sharing information about criminality within the UK and between the UK and other countries; and to the way in which this information is used to protect the public and the relevant procedures and responsibilities."[81]

122. The EU Council Decision in 2005 on exchange of information about criminal records provides a good example of both the value of action and the limitations of decision-making at European level. On the positive side, the decision redressed a real deficiency in the practice of Member States, including the UK, and prompted them to set up more effective systems for exchanging information. We consider that this is a significant step forward and to be welcomed.

123. However, it has also become clear that the Council Decision itself was only a 'half-way house', which replicates some of the weaknesses of the original 1959 Convention, in particular the lack of specificity about the format and content of the information exchanged. We also note that some EU countries are being more vigorous than others in implementing the 2005 decision. This is therefore to be regarded as unfinished business. We recommend that the UK Government should pursue energetically in all relevant EU forums the objective of strengthening the 2005 decision by imposing requirements on Member States to supply full and usable information in a common format on convictions by other States' nationals.

124. We look forward to the results of the Home Secretary's review of information on criminality, and urge that this should address in particular the current deficiency whereby police are not notified when an individual convicted abroad is released from custody or re-enters this country.

125. We congratulate ACPO on drawing our attention, and thereby that of the wider public, to the highly unsatisfactory situation that had obtained in the UK prior to the 2005 decision, with information about overseas convictions being received by the Home Office and allowed to moulder on shelves rather than being made available to the police and the courts. We note the findings of the internal Home Office report, which reveal disfunctionality and poor performance within the Department; but we welcome the action that has been taken to tackle the deficiencies revealed in the report.

PILOT PROJECT ON INTEROPERABILITY OF CRIMINAL RECORDS

126. One solution to the problems identified with information exchange for policing purposes is the project currently being piloted by a number of EU countries to make their criminal records systems interoperable. Four EU Member States (France, Germany, Spain and Belgium) have set up a pilot project interconnecting their criminal record databases. The House of Lords European Union Committee has described and evaluated the pilot as follows:

This project operates along similar lines to the proposed Framework Decision, identifying the Member State of nationality as the State responsible for storing criminal record information. While the participants seem to consider the pilot a success, they highlight some of the problems yet to be resolved.

127. We asked the Government for its assessment of this project. The Parliamentary Under-Secretary, Ms Ryan, told us that she had notified the German Presidency:

that we now wish to join the pilot project around the exchange of criminal records and information. We want to move quite quickly on that. There are six Member States there at the moment, but it seems there is a difficulty of more than one State joining at any one time. We are hoping we will move very quickly on that. That will develop the electronic exchange of that information, which is what will make it usable. We think the likelihood is that that pilot project will actually become the basis for the European-wide system as we move towards a framework decision.[82]

128. The Minister also stated that the pilot would contribute towards solving the problem of identifying when nationals convicted abroad re-enter the country:

If we get electronic exchange of information at the point of conviction, and that information goes on the Police National Computer, then it will stay on the Police National Computer, so whenever the person is released the information is still there and is recorded.[83]

129. We fully support the Government's wish to sign up without delay to the pilot project on interoperability of criminal records data. It is very regrettable that the UK missed the opportunity to be one of the original pilot participants, and thus influence the project from the start. The fact that the UK has, in its own interests, opted out of certain EU initiatives (the single currency, the borders part of the Schengen Convention) makes it all the more important that it should be an effective player in all the other areas.

THE PRINCIPLE OF AVAILABILITY

130. A more wide-ranging measure to maximise information exchange between law enforcement agencies is in the pipeline. The development of police co-operation in the EU on the basis of the 'principle of availability' has been central in the Hague Programme. The 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 … the law enforcement agency in the other Member State which holds this information will make it available for the stated purpose, taking into account the requirement for ongoing investigations in that State.[84]

131. The Commission tabled in October 2005 a proposal for a third pillar measure aimed at introducing the principle of availability, which covered a wide range of data fields including DNA profiles, fingerprints, vehicle registration data, ballistics, and telephone numbers and other communications data.[85] The proposal has not yet been adopted, but the principle may be introduced into the EU legal order for some categories of data via the incorporation of the Treaty of Prüm (for which, see paragraphs 138 to 145 below).

132. UK police have welcomed the principle as a good measure to improve information exchange. The Director-General of SOCA, Bill Hughes, told us that "we should be finding every way in which we can make that work more effectively".[86]

133. Dr Valsamis Mitsilegas of Queen Mary, University of London, set out in written evidence some of the "far-reaching implications" of the principle, as outlined in the original Commission proposal. These include: that the exchange of information should take place on the basis of standard, pro-forma documents, thus becoming quasi-automated; that in principle no questions will be asked by the receiving authority about the purpose of the information (though the proposal currently includes a ground for refusal on human-rights grounds); that authorities cannot request that information be obtained by coercive measures, but can request information which has already been collected by coercive measures; and that a 'comitology' committee would determine which authorities can benefit from the principle, thereby bypassing parliamentary scrutiny at both EU and national levels.[87]

134. The principle raises serious questions about data protection and privacy. The European Commission's spokesman, Mr Jonathan Faull, commented:

That is easy enough to say is a principle; it is harder to work out in practice. What do you do about DNA databases? What do you do about other forms of database, of which there are very many now being collected all over Europe? All of that needs to be worked out in practice.[88]

135. ACPO told us that information shared under the principle would be shared on a 'need to know' basis. The principle would not give another European police force wholesale access to a UK database such as the DNA database:

Basically, people cannot go into a room and trawl through the DNA database to pass an idle hour et cetera. You have a sample, you put it against the database, which is independently managed in the UK, it is not a police serviced database and they say "hit" or "no hit".[89]

136. SOCA told us that the police have a number of mechanisms in place to 'risk assess' all data sharing:

As with all areas of law enforcement in whatever country in the world you work, you need to take risk assessments of everything that you are doing in terms of sharing data and, of course, the source from which that data originates. We are doing that at every opportunity.[90]

137. We believe that adopting the principle of availability has great potential to speed up and improve the quality of information shared between law enforcement agencies. Given the premium placed on good information-sharing by police practitioners, this will be an important development. However, there is a danger that if it is not implemented with sufficiently rigorous safeguards, in particular robust data-protection arrangements, the principle risks the dissemination of personal data of UK citizens without sufficient control over the subsequent use of that data. We recommend that the Government should insist that an appropriate impact assessment by an independent body be commissioned at EU level on the potential use of data under the principle before the principle is adopted (in whatever form that takes) and that the Opinion of the European Data Protection Supervisor be fully taken into account in so doing. We also recommend that appropriate monitoring arrangements are set up by the national information commissioners to pick up any abuse of the systems. We recommend that particular attention be paid to the admissibility of evidence obtained under the principle of availability, in particular if such evidence has been obtained by coercive measures.

THE PRÜM TREATY

138. A recent measure aimed at improving police co-operation between EU Members States has major constitutional implications. The Prüm Treaty[91] (named after the German town where it was signed) is a multilateral agreement designed to enhance exchange of information on the basis of the 'principle of availability' with regard to sensitive personal data such as DNA records and fingerprints. Its significance is that it was drawn up in secret by seven Member States outside the legal framework of the EU, and yet has now been accepted for incorporation within that framework.

139. The Prüm Treaty is an agreement between Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain. It was signed in May 2005. Neither the Commission nor any other Member States were involved in the negotiations on the Treaty. However, it is known that the UK Government was invited to take part in those negotiations, and declined to do so.[92]

140. The main provisions of the Treaty relate to:

a)  DNA and fingerprint database searches and exchange of personal data following a match against a record

b)  access to vehicle registers

c)  measures to prevent terrorism

d)  guidance on deploying air marshals on aircraft

e)  guidance on service weapons

f)  measures to reduce illegal immigration, including document liaison officers and co-ordinated removals

g)  an ability to provide a basis for joint patrols in border areas, including prevention of danger and response to major incidents

h)  formalisation of routine checks including registered vehicle keepers, licences, addresses, telephone subscribers.[93]

141. At the JHA Council in February 2007, Member States considered a draft Decision, drawn up by the German Presidency, to incorporate the Prüm Treaty into EU law. The Government told us that:

The Council mandated experts to prepare a Council decision for adoption in the coming months which would transfer the third pillar, the police co-operation element of that Treaty, into the EU.[94]

ACPO tentatively welcomed this, but said that the UK had "clear reservations about certain elements of the Treaty". They urged the Government to look for the "operational advantages held within the Treaty".[95]

142. The Parliamentary Under-Secretary, Joan Ryan MP, told us that the UK anticipated difficulty only with Article 18 of the Treaty.[96] Article 18 of the draft Decision (the equivalent to Article 25 of the Treaty) deals with "hot pursuit". It would allow officers of one Member State to cross the border into another Member State without that State's prior consent "in urgent situations" to take "any provisional measures necessary to avert immediate danger to life or limb". [97] Following our session with the Minister another draft of the Framework Decision was produced, on 27 February 2007, which omitted Article 18.

143. The Prüm Treaty brings into force a number of the most significant elements of the principle of availability—in particular giving Member States reciprocal access to national databases covering DNA profiles, fingerprints and vehicle registration data. However, Prüm does not implement the principle as widely as the proposed Framework Decision which would have specifically brought the principle into force (discussed above in paragraph 131). It is not yet clear whether Prüm will have the effect of superseding the Framework Decision. Currently negotiations on the Framework Decision are in abeyance. However, a recent report on the Prüm Treaty by the House of Lords European Union Committee concluded that the German presidency of the EU is "attempting to sideline the EU initiative on the principle of availability in favour of 'the promising model offered by the Prüm Treaty'-an attempt which has been conspicuously successful". [98]

144. The proposed transposition of the Prüm Treaty into the legal framework of the EU raises serious questions. In the case of Prüm, just as in the case of the pilot project on interoperability of criminal records (see paragraphs 126 to 129 above), the UK has missed out on an opportunity to influence a major European multi-country project from the start. Even more importantly, Prüm sets a worrying precedent whereby a small group of Member States may reach an agreement amongst themselves which then is presented to the wider EU almost as a fait accompli. Thus it raises the danger of a 'two-track Europe' developing. We deal with these issues of principle in section 4 of this report. We also note with alarm that if the draft Framework Decision implementing the principle of availability is superseded by the Prüm Treaty then the original design of an instrument introducing radical change to EU data-sharing will have been carried out outside the democratic processes of the EU.

145. Notwithstanding these concerns, we consider that the provisions within Prüm for more effective police co-operation are, in themselves, welcome. We support the UK Government's decision to sign up to those provisions, and welcome the fact that it has secured agreement to drop Article 18.

Criminal Justice: Judicial Co-operation

The goal: an area of freedom, security and justice

146. Member States enshrined the objective of a single area of freedom, security and justice in the Treaty of Amsterdam, which came into force in 1999. The European Commission describes action taken to enhance judicial co-operation as a means of achieving this goal:

a)  Practical co-operation. A number of bodies and networks have been put in place to help co-ordinate prosecutions and facilitate judicial co-operation. These include Eurojust and the European Judicial Network.

b)  Development of instruments based on the mutual recognition principle. Since the Tampere Council in 1999 mutual recognition of each other's judicial decisions by Member States has been the cornerstone for judicial co-operation. A number of instruments have been adopted or are being negotiated based on this principle (such as the European Arrest Warrant, or the Framework Decision on the execution of orders freezing property or evidence), as are others setting out common standards to enhance mutual trust in Member States' judicial systems (such as the draft Framework Decision on minimum procedural rights for defendants).

c)  Approximation of legislation. There are a wide variety of criminal justice systems within the EU, affording scope for criminals operating on a multinational basis to exploit the differences between them. Legal texts have been adopted or are being negotiated, particularly in areas such as international trafficking, terrorism and financial crime, to adopt common definitions and harmonise some sanctions. [99]

147. In this section of our report we consider recent developments in judicial co-operation within the EU.

Eurojust

148. The most significant mechanism set up to date to enable practical co-operation between judicial authorities in the EU is Eurojust. This organisation was established in 2002 and comprises senior magistrates, prosecutors, judges and other legal experts seconded one from each of the Member States. Eurojust can give immediate legal advice and assistance to prosecutors, investigators and judges in cross-border cases, for example by advising them where to look for information they need from another EU country. It exists as an independent body with its own legal personality and budget, but has no authority to launch or carry out investigations itself. Eurojust is supported by the European Judicial Network, an informal network of judicial contact points in each Member State.

149. The President of Eurojust, Mike Kennedy, told us of the challenges facing it:

Increasingly, we are finding that there are cases linked to Member States which are not just adjacent to each other in geographical terms but also linked, possibly through the internet, right across the European Union. Because the systems are so different, particularly the four common law countries … from those based on the Napoleonic Code or other codes … there are many rubbing points. This is simply in the systems themselves. There is a cultural difference and of course there are linguistic differences and we need to bridge these gaps and these barriers to be able to deal satisfactorily with cases. [100]

150. A case study illustrating Eurojust's activities is given in the text box below.[101]

CASE STUDY: Illegal Immigration—Operation Pachtou

Operation Pachtou was a case which brought together a series of investigations involving four EU Member States and Turkey. Investigations in France and the UK showed that a sophisticated network was moving people from the Kurdish areas of Turkey through Greece into Italy and from there to France and the UK. Eurojust made enquiries which revealed that separate investigations into the same network, which were not so far advanced, were also taking place in Italy, Greece and Turkey. Eurojust arranged a co-ordination meeting in October which was attended by police, investigators, judges and prosecutors from each of the five states involved. A good deal of information was exchanged and the links between the different parts of the network become much clearer. The French and UK representatives were keen to act quickly and make a series of arrests in their countries. However after discussions and agreement to provide further information to the Italian, Greek and Turkish authorities it was agreed that the French and UK agencies would delay any action so that a series of arrests and house and other searches could take place on the same day in all five countries in December. On 14 December the network was dismantled when 82 arrests took place across Europe: in Turkey (3), in Greece (2), in Italy (21), in France (49), and in the UK (7).

This case illustrates benefits that a multinational multi-functional approach through Eurojust can offer. It also demonstrates the point that a case which was initially a bilateral matter introduced by France and the UK can be effectively expanded at Eurojust to involve several other Member States and ensure work is done together to produce a very successful outcome.[102]

151. Both the UK Government and the European Commission were strongly supportive of the work of Eurojust. The former told us that the strengthened co-operation the organisation provides is "absolutely essential to tackling international crime, drugs, terror".[103] The latter commented that Eurojust is doing a "very important job", while emphasising that it is not seeking to gather to itself criminal justice competencies which are currently sensitive to national sovereignty:

it is co-ordinating national prosecution efforts. It cannot bring them together in one prosecution effort.[104]

152. Several witnesses told us that Eurojust's capacity is limited by some Member States' unwillingness to use it fully. According to the Centre for European Policy Studies:

Eurojust itself says that it has the capability and possibility to go further but it cannot work when no cases are referred to it. … Apart from the 500 additional cases arising in 2005, it says that it had the capability and capacity to deal with more but it is not able on its own to instigate this work.[105]

153. Mike Kennedy, President of Eurojust, told us that "initially we found that countries were reluctant to co-operate with us because they felt that we were an unnecessary link in the chain".[106] But he emphasised that the picture has changed:

As time has gone on and we have been able to demonstrate the added value we can bring by bringing people together … it has meant that we have been able to build trust and confidence amongst the various specialist investigators particularly.[107]

154. SOCA agreed that some countries are more reluctant than others to use Eurojust, and noted that the UK, by contrast, plays a proactive role.[108] The Government has quantified UK involvement in Eurojust operations. In 2005 Eurojust registered 588 cases, of which 39 involved requests from the UK and 82 involved requests to the UK.[109] The UK is among the top five users of Eurojust.[110] (The overall total of cases in 2005 included 135 drug trafficking offences, 120 swindling and fraud offences, 92 crimes against property, 48 offences of money laundering and 43 of murder, amongst others).[111]

155. Eurojust has powers to make formal requests to ask Member States to investigate and prosecute, to work with one another and form joint investigation teams, to co-ordinate their activities, and to supply Eurojust with information. However, it cannot impose a penalty if these requests are not complied with, although it can publish details of failures to comply in its annual report. Mr Kennedy stated that the possibility that Eurojust might exercise its formal powers had proved enough to make states "react and act appropriately."[112]

156. The UK Government judges the powers of Eurojust to be sufficient, and regards the current situation where it can ask national authorities to initiate prosecutions but cannot instruct national authorities to do so, nor carry out prosecutions itself, as striking the "right balance".[113] However the Government emphasised in written evidence that it supports the continued development of Eurojust and the European Judicial Network as facilitators of judicial co-operation between Member States where necessary.[114]

157. Eurojust provides an excellent example of what can be done to build mutual trust between practitioners and through them Member States in one another's systems. This kind of contact and practical co-operation is absolutely critical in enhancing trust and co-operation.

Mutual recognition instruments

158. To date, the agreed proposals based on mutual recognition are: the 2002 Framework Decision introducing the European Arrest Warrant (EAW), the 2003 Framework Decision on the execution of orders freezing property or evidence, the 2005 decision to apply mutual recognition to financial penalties, and the 2006 Framework Decision on the mutual recognition of confiscation orders. There are also a number of measures on the negotiating table which are due to be adopted in the near future, including a framework decision on the European Evidence Warrant.

159. We considered the EAW in some detail. It was the first mutual recognition instrument and therefore more is known about its benefits and limitations than any other mutual recognition instrument.

THE EUROPEAN ARREST WARRANT

160. The European Arrest Warrant came into force in January 2004 and has replaced surrender procedures between Members States of the EU. The warrant is a judicial decision by a court in one Member State to require the arrest and return of a person who is in another Member State. It only applies in cases where the person whose return is sought faces prosecution for a criminal act where the sentence is at least 12 months long, or if they have been sentenced to a prison term of at least four months. It means that Member States can no longer refuse to surrender to another Member State one of their own citizens who is suspected of having committed a serious crime, on the ground that they are nationals.

161. The EAW is based on the principle of mutual recognition of judicial decisions. It applies to a wide range of criminal offences. For 32 specified offences the requirement of dual criminality, i.e. that conduct is a crime in both Member States involved, is abolished if such offences are punishable by a maximum custodial sentence of at least 3 years. These offences, not all of which are harmonised at EU level, include participation in a criminal organisation, terrorism, trafficking in human beings, sexual exploitation of children and child pornography; trafficking in arms, ammunition and explosives; corruption, fraud, money laundering and counterfeiting of money.

162. The EAW has undoubtedly speeded up the surrender process between EU states. Commission statistics for 2005 in respect of 17 Member States show that from 1,526 people arrested, 1,295 were effectively surrendered within 20 to 40 days. The Commission reports that the average time taken to execute a warrant has fallen from more than 9 months, before the introduction of the EAW, to 43 days following its introduction.[115] Its most high-profile UK application so far has been in the extradition of Hussain Osman from Italy to the UK following the terrorist attacks in London in July 2005, which took only 60 days. In the case of suspects consenting to be surrendered (which the Commission reports is a frequent occurrence) the average time has fallen to only 13 days.

163. Senior District Judge and Chief Magistrate for London Tim Workman, who deals with large numbers of extradition requests, told us that, although it is difficult to find an average time for a EAW in the UK because "there really is no norm",[116] the process under the EAW has speeded up by a number of months, and is "much faster".[117] Figures supplied by the Home Office show that in 2005 43 persons were returned to the UK under the EAW and 77 persons surrendered by the UK to other Member States.[118]

164. The Government welcomes the EAW. The Parliamentary Under-Secretary at the Home Office, Joan Ryan, stated that "we think it is a very, very important measure and I think we have made good progress … it is a fine example of working together across the European Union".[119]

165. The EAW has not been without some practical problems. Its legality has been challenged in a number of national courts. In April 2005 the Polish Constitutional Tribunal found that the EAW contradicted the Polish Constitution's ban on extraditing Polish nationals. In July 2005 the German Constitutional Court annulled Germany's law transposing the Framework Decision because it did not adequately protect German citizens' fundamental rights. The EAW was transposed into UK law through the Extradition Act 2003. Senior District Judge Tim Workman told us that the Act implemented the EAW into UK law with a number of higher standards than were required by the original EU instrument:

The Extradition Act with its bars goes rather further than the Framework Decision in terms of the protection that it provides to the defendant … Our safeguards are probably at a higher level than those of many other countries.[120]

166. However, the Minister denied that the EAW had been implemented in such a way as to give foreign nationals in the UK more protection than UK citizens abroad:

There are a small number of additional bars to extradition introduced by the Extradition Act 2003 (e.g. extraneous conditions and passage of time) that appear to go beyond the bars set out in the Framework Decision on the EAW. However, these reflect provisions contained in the preamble to the Framework Decision (in paragraph 12) and therefore do not, in our view, go beyond the terms of the Framework Decision. The UK has also explicitly referred in its legislation to human rights protections and the Hostage-Taking Convention which other Member States are also bound by even though they are not explicitly referred to in the Framework Decision.[121]

167. The EAW has also been criticised on grounds of principle, because it abolishes the requirement for dual criminality.

168. The doctrine of 'dual criminality' means that nationals can be extradited to face prosecution or serving a sentence in another Member State only where the offences concerned are offences under the laws of both States. Dual criminality derives from the principle of nullum crimen sine lege (no crime without law), which is constitutionally enshrined in a number of Member States. Dual criminality has been a general principle of international extradition law for some time, but found expression in the EU in the 1957 European Convention on Extradition.[122]

169. The EAW has abolished dual criminality for the 32 major agreed categories of offences. EAWs issued in respect of crimes or alleged crimes on this list have to be executed by the State receiving the warrant irrespective of whether or not the definition of the offence is the same, providing that the offence is serious enough and punishable by at least three years' imprisonment in the Member State that has issued the warrant. The dual criminality requirement remains for all other offences.

170. A number of commentators have argued that is constitutionally unacceptable to execute an enforcement decision relating to an act which is not a crime under the law of the executing state. In negotiations for the European Evidence Warrant, Germany heavily criticised the abolition of dual criminality in respect of six offences, which it argued were poorly defined. Germany negotiated an exemption for five years, during which period courts in that country will examine whether the requirement of dual criminality is met for the offences of terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling. This examination will only take place if it is necessary to carry out a search or seizure for the execution of the European Evidence Warrant.

171. Under the EAW a UK citizen can be extradited for an act which they commit in the territory of another EU state which is illegal under the law of the other state, but not under UK law. For example, if a UK citizen dressed in Nazi uniform in Germany they could subsequently be surrendered back to Germany from the UK since the act is a criminal offence in Germany and is covered by the racism and xenophobia dual criminality exemption of the EAW.

172. This works both ways. So, for example, another EU national could be surrendered to the UK for having sex with a person under 16 years old in the UK, even though the age of consent might be lower in the country from which they are surrendered. The act would be covered by the rape dual criminality exemption of the EAW.

173. It is not possible to surrender someone in either of these situations if the act was committed in the territory of the state where the act is not illegal. For example, if an individual in the UK dressed up in Nazi uniform they could not be surrendered to Germany as the Extradition Act 2003 stipulates that 'no part' of the act must have taken place in the UK.

174. However, there is a grey area (which applies to criminality more broadly) about which commentators have expressed concern. In cases where it is not legally evident on whose territory the act was committed, the rules of the EAW are not clear-cut. This could be the case with internet publications—an often-cited example is a UK national publishing material on the internet which denies that the Holocaust took place, an offence under Austrian law, where it may be unclear in whose territory the act has occurred. It should be noted, though, that the scale of such cases is pretty small, and we did not receive any evidence that such cases have so far occurred under the EAW.

175. The Government told us that it had supported the EAW, notwithstanding the abolition of dual criminality in respect of the 32 specified offences, because—

We do not accept that we should make judicial co-operation conditional in all circumstances on dual criminality. As a general principle, if people break our laws we should be able to co-operate within the EU to ensure that they do not evade justice.[123]

176. The application of the EAW in each of the Member States is the subject of a peer review taking place at the moment. The UK was reviewed at the end of 2006 and the Government told us it expects the report on the UK 'in the very near future'.[124] It promised to submit the formal version of the report to us "as soon as it is published".[125]

177. It is too early to give a full assessment of the effectiveness of the EAW. However, we note that the UK Government and law enforcement agencies regard it as having been a major success. In particular, it has had a significant impact in speeding up extradition arrangements between Member States.

178. We believe that there should be no objection to arresting and surrendering a UK national for an act that is a crime in another EU country in whose territory it was committed. We agree with the Government that the abolition of dual criminality for a defined and agreed set of offences is acceptable. Nonetheless, there is continuing anxiety in some quarters about the abolition of dual criminality in respect of the 32 offences; it remains to be seen whether particular cases throw up anomalies or perceived injustices which might undermine public support for the EAW. A number of the categories on the list, such as racketeering or xenophobia, cause us concern. We recommend that both the UK Government and the Commission should monitor the application of the EAW to see whether problems are emerging. It may be that in the light of several years' experience, some fine-tuning of the EAW system and the list of 32 offences may be desirable. (Under present arrangements, of course, any modifications will themselves require the unanimous approval of Member States. If there were to be a move to first-pillar decision-making on JHA issues, as the Commission wishes, changes to the list of offences would be made under qualified majority voting, which raises the possibility that they might be imposed on individual Member States against their wishes.)

The scope for further mutual recognition measures

179. Mutual recognition has been strongly supported by the UK as an alternative to harmonisation of any substantial parts of criminal justice systems. The Centre for European Policy Studies told us that it was the UK which "very strongly pushed" for its application as a founding principle of the Hague Programme: "it has been very much a UK project".[126]

180. We asked our witnesses what scope there was for extending mutual recognition as the cornerstone of judicial co-operation. JUSTICE responded that they thought the scope was limited:

The mutual recognition principle … does not appear to enjoy the full support it once did when the Framework Decision on the EAW … was adopted in 2002. The Finnish EU Presidency's press release on the most recent informal JHA ministers' meeting in Tampere [in September 2006] … demonstrates this when it speaks of the recent difficulties which the negotiation of mutual recognition instruments posed in the Council. Some experts go so far as saying that the mutual recognition principle as a basis for police and criminal justice co-operation is doomed.[127]

181. The Law Society highlighted some of the negative consequences of mutual recognition. It told us that when the mutual recognition of criminal convictions abroad comes in, a number of UK citizens will find themselves with criminal convictions incurred abroad under very different standards of proof. It gave the example of football hooligans in Portugal:

There were a lot of problems in Portugal in terms of street fighting and pub fighting. A lot of UK citizens would pay for example a 200 euro summary fine to be able to go home. When the mutual recognition of convictions and sharing criminal convictions comes in, those people will have the equivalent to an affray or even a GBH conviction that they were not tried for, they had no legal representation, and which could count as a repeat offence in terms of sentencing and in terms of aggravating circumstances.[128]

182. The UK Government conceded that there are certain limitations to mutual recognition:

We have recognised certain limitations to the application of the mutual recognition principle and appropriate safeguards have been incorporated into individual instruments addressing issues such as territoriality and double jeopardy.[129]

But it underlined that it sees mutual recognition as the way forward:

The UK has always been a strong proponent of mutual recognition and continues to support mutual recognition.[130]

183. We asked the Government whether it still supported practical co-operation and mutual recognition as a sound basis for European Union co-operation beyond the Hague Programme. The Parliamentary Under-Secretary at the Home Office, Joan Ryan MP, said that the Government is "very encouraged" by what has been achieved by practical co-operation and mutual recognition.

184. The EAW was frequently cited by our witnesses as an example of an effective mutual recognition instrument. However, in one respect it is untypical—it is hitherto the only mutual recognition instrument which has been agreed and implemented relatively quickly. The necessary unanimity amongst Member States was secured because the political will was there to push the measure through. Jonathan Faull of the European Commission explained why:

It is no coincidence that the European Arrest Warrant was adopted very shortly after the terrorist attacks in Washington and New York on September 11 2001. It is the only example, frankly, of legislation of that importance which was enacted relatively quickly and a lot of people believed that without 9/11 it would not have been adopted that quickly. Some cynics have gone so far as to say that we might still be talking about it today.[131]

185. Other mutual recognition instruments have been held up indefinitely in institutional deadlocks. For example, the European Evidence Warrant (EEW), envisaged as the natural accompaniment to the EAW, has been far harder to reach agreement on. The EEW is intended to replace mutual legal assistance in the same way that the EAW has replaced extradition, and to facilitate the movement of evidence to accompany suspects.

186. A number of concerns have been expressed about the EEW as it is currently drafted. The Law Society told us that the instrument is balanced in favour of the law enforcement perspective and gave the example of its provisions on admissible evidence:

The way it has been adopted … is that objects, data and other items found at the scene when the evidence warrant is being executed can also be included and also statements can be taken from witnesses or individuals at the scene. We have had strong concerns about that in terms of protection of self-incrimination in terms of what that evidence will be used for.[132]

187. Concern over abolition of dual criminality has also been raised in relation to the EEW. The European Scrutiny Committee has commented:

The doctrine of dual criminality is more than a mere technicality, as it gives the United Kingdom citizen (or any other person within the jurisdiction) a guarantee that he will not be pursued by police and prosecution authorities for conduct which is lawful in this country. In our view, the proposal too lightly discards this guarantee.[133]

188. Fair Trials Abroad has criticised the EEW on the grounds of variable implementation, citing Germany, which has negotiated "the right to double-check evidence requests for six types of crime, including terrorism and race-related crimes and refused to forward evidence where the charges would not attract criminal sanctions in Germany".[134]

189. The EEW has faced greater resistance from Member States than the EAW. Although a General Approach to the measure was agreed in September 2006, the Framework Decision is still stuck in Council Working Groups and awaiting adoption by the Council.

190. The implementation of the EAW demonstrates that sufficient political will can drive agreement in the field of mutual recognition, even against institutional challenges. The EAW was passed and implemented despite the alleged problems with reaching agreement in the third pillar. However, given the special circumstances of its inception, in the aftermath of 9/11—and at a time when unanimity was required from only 15 Member States rather than the present 27—we conclude that the EAW is not typical of a third pillar measure and that it is likely to be much more difficult to reach agreement on other mutual recognition instruments.

191. The European Evidence Warrant provides an interesting comparison to the EAW. Without the same degree of political pressure under which the EAW was passed, this important measure has fallen foul of difficulties in getting agreement under unanimity.

192. The difficulties in passing mutual recognition instruments may not reflect a failure of the core principle of mutual recognition. It may simply be that the current procedures do not allow progress to be made if there is little desire amongst Member States to make progress, or if there are significant failings in the proposals. It should not be assumed that these hurdles to agreement are necessarily a bad thing, or that removing them would produce better and more satisfactory outcomes.

Harmonisation

193. An alternative to mutual recognition is the harmonisation—sometimes called 'approximation'—of more extensive aspects of Member States' criminal justice systems, including criminal definitions and sanctions. We asked witnesses whether they saw advantages or disadvantages in more extensive harmonisation.

194. Mike Kennedy, President of Eurojust, told us that if laws were fully harmonised in Member States it would be easier for EU investigators and prosecutors to co-operate with one another:

If you take as an example a police officer visiting a witness, taking a statements as to what he of she saw at the scene of a crime and what he or she did linked into the crime. In other countries, a statement perhaps would be taken by a police officer or investigating judge, which would be simply the details of what this person said. There would not be a declaration. If everybody across the European Union had to make what we call section 9 statements, it would make life a lot easier for all the prosecutors in the common law countries.[135]

195. Other witnesses argued that wholesale harmonisation would be both impractical and undesirable. For example, SOCA commented:

In the context of serious crime cases, there is nothing to suggest that there would be benefits from harmonisation that cannot be obtained via practical co-operation/mutual recognition.[136]

196. The UK Government noted that "harmonisation would almost certainly require major changes to our domestic arrangements".[137] It added that:

The Government does not believe that there should be wholesale harmonisation of law and procedures at EU level and that any harmonisation must be justifiable under Articles 29 and 31 of the Treaty on European Union.[138]

197. There appear to be no current plans by either the Commission or any Member States to propose harmonisation on a large scale. The Centre for European Policy Studies told us that "as far as can be seen, there are no European efforts to harmonise entire 'criminal justice systems'".[139]

198. However, Open Europe disagreed, stating that "the EU Commission has … begun putting forward proposals for the full scale harmonisation of Member States' criminal law at quite an alarming rate."[140]

199. When we discussed approximation of legislation with Jonathan Faull of the European Commission, he told us that the Commission, and other EU institutions, only propose harmonisation in exceptional cases, and that "when we embark on the necessary but exceptional approximation of substantive notions of criminal law we do so in a way which respects and preserves national traditions".[141]

200. We agree with the UK Government, and a wide number of practitioners, that there is no case for a full-scale harmonisation of European criminal justice or legal systems. There would be very significant difficulties, if not impossibilities, in trying to marry nearly 30 different systems. We have seen no evidence that the Commission, or Member States, desire "full scale" harmonisation.

201. Mutual recognition and harmonisation are not mutually exclusive approaches. It is often argued that for mutual recognition to be truly effective, at least some common standards may be necessary, to ensure that Member States can have the required high degree of trust in the justice systems of other Member States. The Centre for European Policy Studies told us:

The biggest problem of mutual recognition is the fact that in the end what it does is excite distrust, because … you do not have a sense of confidence that if you hand over one of your citizens you know what will happen to that individual and can be confident that he will be tried in accordance with a set of rules which have been commonly agreed for offences which society here accepts ought to be regarded as offences.[142]

202. The Commission took a similar view, commenting that—

There are two reasons why mutual recognition is still an aspiration rather than a reality. One is relevant differences (and only relevant ones), and, secondly, there is still a lot of mutual trust to be built up between legal practitioners, between judges, between lawyers, and above all between the publics of our Member States so that they feel that they get as fair a trial abroad as they do at home.[143]

203. The UK Government supports the view that "mutual recognition is founded on mutual trust and confidence in other Member States' criminal justice systems".[144]

204. Many of our witnesses argued that, in order for mutual trust and therefore mutual recognition to be effective some common minimum standards are needed to iron out some of the inconsistencies between different systems. It was argued in particular that there needs to be common definitions of a number of concepts on which mutual recognition rests, particularly those in cross-border cases. This has already happened in a number of areas: for example, the agreed list of 32 offences in the EAW. Witnesses emphasised a number of other areas in which some common agreement is still needed. The Criminal Bar Association told us:

we recognise that some problems would be more readily resolved by harmonising rules that produce conflicts or tensions … for example, problems associated with ne bis in idem; or determining the appropriate trial venue for those accused of cross-border crime, or even, in the longer term, more sensitive matters of public policy such as the minimum age of criminal responsibility.[145]

205. The Director of Open Europe, Neil O'Brien, agreed that there are real challenges for judicial co-operation arising from the current lack of common definitions and procedures:

EU lawmakers will be faced with a dilemma. Either they accept that their citizens will be prosecuted for offences which are not recognised under UK law, or they will have to look to standardise large numbers of offences across the EU.[146]

However, he disagreed that looking for commons standards in a limited number of areas provides a solution. He argued that this would lead to 'competence creep', and would be 'simply the first step in a gradual process of harmonisation'.[147]

206. The UK Government expressed caution over claims that common standards in criminal law are always necessary to achieve mutual recognition:

The Government accepts that it may be necessary to establish some minimum standards in limited specific areas of the criminal law in order to enhance the effectiveness of mutual recognition, but these should not be regarded as a precondition for effective mutual recognition.[148]

207. We think it logical that for mutual recognition in the field of judicial co-operation to be effective, and for Member States to trust each other, some degree of common standards in tightly limited areas may be desirable. Nonetheless, we caution that even in the case of proposals for common standards no proposal should be considered without powerful evidence of the scale and nature of the problem to be tackled, and the gains to be delivered by any such proposal.

EU procedural rights

208. The balance between law enforcement measures and protection of defence rights was a recurring theme in our evidence. Many of the measures promoted at EU level in the JHA field in recent years have focussed on the need to protect the citizen against crime and terrorist attack, by enhancing co-operation between police, prosecutors and judicial authorities. It is probably fair to say that, overall, there has been less focus on ways of safeguarding or enhancing the defence rights of individuals suspected of or charged with criminal offences. However, one major initiative in this direction has been a proposed Framework Decision aimed at setting common standards by agreeing "certain procedural rights in criminal proceedings".

IS ACTION NEEDED?

209. Are common standards in this area needed? We sought concrete examples of where UK citizens have suffered infringements of their rights in other EU countries and the scale of the issue, to assess the need for EU action. The campaigning organisation Fair Trials Abroad described to us some examples of cases of alleged mistreatment of UK citizens in other EU countries. These case studies are set out in the written evidence.[149] One of the case studies involved a UK citizen currently being held under 'temporary arrest' in Poland. Fair Trials Abroad claim that he has been deprived of proper legal representation, not provided with adequate translation and interpretation facilities, asked to sign papers only provided in Polish (which he does not understand) and not given access to details of the case against him. The other case study involved a British citizen charged in Denmark with attempted rape. Fair Trials Abroad claim that he was questioned while suffering from a serious head wound; not given access to legal representation when questioned; not informed as to his legal rights; not allowed to read through the written texts of statements he had allegedly made; and not given proper interpretation facilities or legal support. On the face of it these cases (and others which are set out in Fair Trials Abroad's memorandum) would certainly seem to suggest that there is a need for more robust common standards across the EU.

210. Other witnesses also argued that lack of safeguards has real implications for EU and UK citizens:

If you have a situation where the rule of law is not fully respected, or lack of fair trial rights, then obviously that will act as a disincentive to UK citizens, for example, who wish to work and travel in those Member States, as others have discovered to their cost when travelling and working outside the EU.[150]

Yes, certainly in the UK you would have a duty solicitor provided upon arrest in terms of the European Arrest Warrant, but what happens when that person is surrendered to Bulgaria or Romania? Do they have guaranteed access to a lawyer and free legal representation in that Member State?[151]

211. We asked the police how necessary they considered minimum rights to be in accompanying the European Arrest Warrant. Bill Hughes, Director of SOCA, welcomed bringing procedural standards across the EU into line with high UK standards:

it would be useful, I think, if across Europe there were some common stand around procedural matters about something along the lines of what we expect in this country from the Police and Criminal Evidence Act, those types of caveats that apply to anybody held in custody in the UK.[152]

212. We asked the Government what level of protection is currently provided to UK citizens in other EU criminal justice systems, and whether it is sufficient. The Minister told us that the main support for citizens abroad is through FCO consulates.[153] The consulates can gain access to the citizen and make provision for their welfare, but can not provide any continued support in criminal proceedings. They can put citizens in touch with non-governmental organisations such as Prisoners Abroad and can provide a list of local lawyers, but do not provide any financial assistance to a UK citizen wishing to fight their case abroad. These consular services are not available to non-UK nationals, even those who have been lawfully resident in the UK for many years.

213. The Government told us that there is some provision for legal aid abroad through two schemes.[154] However, it seems that both this provision is only applicable to civil, commercial or administrative cases, and are not therefore relevant to criminal ones.

214. According to Prisoners Abroad, the charity to which the consular services refer UK citizens,[155] in February 2007 it was in touch with 318 British nationals in prisons in other EU countries. Of the breakdown by country, two of the top three countries with the highest number of UK nationals are EU countries (Spain and France).[156] According to Fair Trials Abroad's latest annual report, for 2004-05, it had 356 new cases referred to it in 12 months (including EU nationals detained abroad in EU and outside EU).

THE FRAMEWORK DECISION

215. The Hague Programme, to which Member States unanimously signed up, stated that:

The further realisation of mutual recognition as the cornerstone of judicial co-operation implies the development of equivalent standards for procedural rights in criminal proceedings, based on studies of the existing level of safeguards in Member States and with due respect for their legal traditions.[157]

216. In Spring 2004 the Commission proposed a measure designed to set some common minimum rights for defendants across the EU—the 'draft framework decision on certain procedural rights in criminal proceedings'. The rights contained in this original draft included the right to legal assistance, the right to interpretation and translation and the right to communicate with consular authorities.

217. Jonathan Faull, Director-General of JHA at the Commission, told us why the measure is necessary:

We are, and I will be very frank with you, having great difficulty in persuading the Council of Ministers that robust legislation is needed to create a minimum set of common procedural guarantees for suspects and defendants across the EU. The answer we are sometimes given by those who do not see the need for such legislation is, "But we all have the European Convention on Human Rights. We all have the EU's Charter of Fundamental Rights. We have a lot of common rules already, We are all democracies, after all, and we all respect the rule of law. What more could you possibly want?", the answer to which is that we do not have some of the more detailed rules which would go a long way towards reassuring people. It is nowhere written down that Europeans have the right to a translator to explain what is going on when arrested in a foreign country. Normally it happens. Again, most of our countries provide this and we are all democracies, it is true, but it is not written down anywhere and it would, it seems to us, be a considerable factor of reassurance for European citizens to know that certain minimum rights are guaranteed across the EU, whatever Member States we find ourselves in, those rights being written down in a form which everybody can read and understand in their own language.[158]

218. The draft measure was initially welcomed by Member States, including the UK, but as time went by increasing opposition was expressed to the proposals. As a result, substantial revisions were made to the text of the draft Framework Decision, with a view to addressing concerns such as ensuring compatibility with the European Convention on Human Rights (ECHR) (to avoid having two parallel human-rights regimes in Europe) and gaining exceptions for national provisions such as pre-charge detention. Notwithstanding these changes, a small group of Member States remained dissatisfied with the draft, and this group, which included the UK,[159] put forward in April 2006 a counter-proposal for a non-binding Political Resolution coupled with practical measures instead of a legislative instrument.[160]

219. The Council of Ministers is currently considering these two options, the original Framework Decision and the non-binding Resolution. The former is intended "to facilitate judicial co-operation in criminal matters, and in particular mutual recognition, and to safeguard the fairness of proceedings". The draft, in its latest form (produced by the current holders of the EU Presidency, Germany, in January 2007), focuses on five specific rights of persons subject to criminal proceedings: to information, legal assistance, legal assistance free of charge, interpretation and translation of documents.[161] The non-binding Political Resolution backed by the UK sets out practical action to promote fairness in criminal proceedings, with particular reference to compliance with the ECHR, and access to free legal aid and to an interpreter.[162]

220. The Home Office told us why the UK is now opposed to the draft Framework Decision:

We believe Europe already has enough legislation in this area in the form of ECHR and the related jurisprudence. The real need is to enhance compliance with the ECHR across the EU, and that is what measures proposed in a draft Resolution, proposed as an alternative to a Framework Decision on criminal procedural rights, sets out a range of practical measures based on recognised good practice Member States could take, mainly related to access to legal assistance and to interpreters.[163]

221. The level of procedural rights for defendants in the UK is high. A regularly revised code of practice on the Police and Criminal Evidence Act (PACE) 1984 provides explicit guidelines for the police over treatment of detainees. These include strict guidelines on the exercise of stop and search powers,[164] a statutory requirement on police to record all searches and provide the detainee with a copy,[165] and guidelines on the detention, treatment and questioning of detainees.[166] The UK also has an independent body to monitor police, the Independent Police Complaints Commission (IPCC), which has a statutory duty to oversee the whole of the police complaints system and powers to investigate all complaints against the police. On one of the key issues which the draft Framework Decision on procedural rights intends to address, the provision of legal assistance free of charge, a recent Commission-sponsored study demonstrated that the UK has by far the highest budget for criminal legal aid of any EU Member State.[167]

222. The House of Lords European Union Committee reported in January 2007 on the state of play with the alternative proposals. They noted that both the draft Framework Decision and the draft Resolution remained under discussion in a Council Working Group, with about nine or ten Member States in favour of the Framework Decision and about six opposed. Unanimity would be required for either proposal to be agreed. The Committee commented that "it is difficult to envisage how the deadlock can be broken".[168] They expressed their view that the Framework Decision in its current form had been so watered down as to outline a "disappointing" basic level of rights, and therefore "we see little value in agreeing the instrument as currently drafted".[169] They also criticised the alternative Resolution for omitting from its proposed list of practical measures the recording of police interviews; as well as noting that its implementation would be optional for each Member State, and therefore citizens would have no guarantee that they would be entitled to the stipulated procedural rights.[170]

223. The Lords Committee urged Ministers to revive their efforts to secure a binding Framework Decision. They stated that—

The Government are rightly proud of the high standards of procedural rights which are generally observed across the United Kingdom and suggest that practical measures could help all Member States meet the requirements of the ECHR. It is precisely because of the high standards in this country that we consider that British citizens have the most to gain from this proposal. British citizens may travel to countries where police interviews are not recorded and where access to interpretation is not freely available. Furthermore, they are unlikely to be familiar with the rights available to them in other Member States.[171]

224. Germany has signalled that the Framework Decision is a priority for its EU Presidency. It has emphasised that it would like to reach agreement on the current text by unanimity, and has stepped up negotiations to this end.

225. EU JHA Commissioner Franco Frattini made clear in a recent speech that the Commission and various Member States are already considering pursuing the aims of the Framework Decision through the special procedure known as "enhanced co-operation" if unanimity cannot be achieved:

The Commission firmly believes that a Framework Decision should be adopted unanimously by all 27 Member States so as to offer complete protection for citizens throughout the European Union territory. However, if one or two Member States will not accept a Framework Decision, whatever the content, and however hard others try to achieve a compromise, the only solution may be to do so without them.[172]

226. The process of "enhanced co-operation" means that eight or more Member States may go ahead with a measure, as long the Council unanimously authorises them to do this. Member States who do not participate retain the choice to join the agreement later on.

227. EU negotiators have privately suggested that two or three of those six Member States currently opposed may sign up to the Framework Decision when it comes to a vote. The remaining Member States which support the alternative non-binding Resolution, and the UK and Ireland in particular, have expressed strong opposition to the Framework Decision. It therefore looks very unlikely that the Decision will be agreed under the current unanimity requirements. Equally, the large number of Member States, and the Commission, which support a binding instrument, are unlikely to accept a non-binding instrument in its stead. It therefore seems that the deadlock on unanimous agreement will remain, and that a number of Member States may therefore go ahead with "enhanced co-operation". (We consider the implications of this in section 4 of this report.)

228. On the basis of evidence we have received, particularly from Fair Trials Abroad, there are reasonable grounds for concern about the absence of procedural safeguards for UK citizens in some other EU Member States. However, it is difficult to quantify the problem, or to know whether the injustices that result from a lack of binding common procedures are sufficient to justify radical change. We note that the level of procedural rights provided for defendants in the UK is high and that any EU-wide binding agreement must also offer high standards.

229. There is a real risk that setting common standards in EU criminal procedures might set up an alternative rights regime in Europe, operating in parallel with the ECHR, and opening the prospect of conflicting litigation at the European Court of Justice and the European Court of Human Rights. We support the UK Government's view that the starting point, which would benefit both UK citizens in other Member States and the citizens of those States, should be to use existing mechanisms to ensure that the rights enshrined in the ECHR are uniformly observed across the EU. Detailed and independent monitoring of the extent of rights abuses in Member States is a precondition for taking remedial action against offending States. We recommend that the UK Government puts proposals before the Council of Ministers for a system of such monitoring to be established, with central EU funding, and for it to consider the best means by which sanctions could be brought against Member States which fail to comply with the ECHR in procedural matters. This should be done in full liaison with the relevant organs of the Council of Europe, which has responsibility for overseeing the working of the ECHR.

230. With regard to the choice which currently confronts the Council of Ministers, between a watered down draft Framework Decision and a non-binding Resolution, we do not feel that either in its current form is an attractive proposition. Some of the contents of the Resolution are worthwhile, but we would wish to see it strengthened by inclusion of tape recording of police interviews as a right. Unfortunately, a non-binding Resolution, of its nature, cannot be used as a lever to produce improvements in the rights situation in the States most likely to cause problems.

231. There is also a danger that if, as looks very possible, most other EU countries press ahead with an equivalent to a Framework Decision, but binding only on themselves, then as happened with the Prüm Treaty the UK will miss the chance to influence negotiations when they matter, and may have little option later but to sign up to an agreement that has already been negotiated. We therefore urge the Government to reconsider its current support for a Resolution and give renewed consideration to the proposals in the Framework Decision.

Borders and migration

Migration

232. We now turn to consider migration policy. Both economic and illegal migration now come under the first pillar, forming part of Title IV. Decisions on illegal migration are taken by qualified majority voting and co-decision with the European Parliament, whereas those on economic migration require the unanimous approval of the Council of Ministers and the EP has merely a consultative role. The UK retains the right to opt-in to migration and asylum measures under Title IV. To date it has in principle opted into measures on asylum and illegal migration, but not into measures on economic migration. During our inquiry we focused particularly on EU-wide action in the field of illegal migration and border controls. Earlier in this report, at paragraphs 27 to 37, we set out some statistical background information on migration. We also treated issues of UK immigration control in great detail in our report on this subject published in July 2006.[173]

ILLEGAL MIGRATION—COMMISSION PRIORITIES

233. In July 2006 the Commission put forward a paper outlining its policy priorities in the fight against illegal migration.[174] In line with the Commission's overall evaluation of the Hague Programme in July 2006, these priorities focused on consolidation and implementation of agreed initiatives, rather than further proposals. The Commission paper reaffirmed the commitment of Member States to the multi-strand approach which they signed up to in the "Global Approach to Migration", supported by and agreed under the UK Presidency in 2005. The multi-strand approach aims comprehensively to address a number of precipitating factors in illegal migration, including co-operation with countries of transit and origin, securing of external borders, tackling illegal employment, and promoting effective returns agreements.

234. We asked Jonathan Faull, as spokesman for the Commission, what JHA Commissioner Franco Frattini's ambitions in the area of illegal migration were. Mr Faull said that, long term, Mr Frattini's ambition is "that the drama and tragedy of illegal immigration into the EU … should stop". In the short term, Mr Frattini's ambitions are to implement the Global Approach to Migration, helping the Maltese, Italians and Spanish patrol the Mediterranean (particularly through Frontex), and cracking down on illegal employment.[175]

235. The Government told us that it supports the measures put forward by the Commission in its paper:

The UK recognises that there must be a concerted effort from all Member States in fighting illegal immigration and supports the Commission's approach in this area, particularly towards more effective use of funding through Frontex and greater use of technology at borders.[176]

236. The Government also emphasised that it sees particular value in practical co-operation in the illegal immigration agenda, and gave examples of concrete operations:

Concrete operations in which expertise and support are exchanged are extremely effective ways of bringing about rapid and tangible improvements. For example:

—A bilateral study visit between the UK National Document Forgery Unit and Bulgarian Border Police led to a project to set up an equivalent unit in Bulgaria to strengthen their border control through increased capacity to detect forged documents.

—Acting as junior partner with the Danish on an EU Twinning Project with Turkey in order to develop their Asylum and Migration systems—including a sponsored study tour to the UK and Ireland to share experience on a wide raft of operational and policy areas, and training seminars on areas such as human resources/organisational issues and expulsion.[177]

237. One issue which has been the subject of some debate within the EU is whether there should be any change to the existing, rather anomalous situation, whereby although illegal and economic migration are both part of the first pillar, in Title IV, they are subject to different voting procedures. As mentioned in paragraph 232 above, illegal migration is subject to qualified majority voting in the Council of Ministers and co-decision with the European Parliament, whereas decisions in relation to economic migration have to be taken unanimously, with the EP having only a consultative role.

238. Jonathan Faull, speaking on behalf of the European Commission, told us that:

we are in the rather odd position at the moment that most of illegal immigration and asylum issues are dealt with under the First Pillar while legal migration, economic migration issues are dealt with under unanimity rules. That for a start strikes us as rather odd, dealing with two facets of the same phenomenon in such different ways. It does not strike everyone as odd, obviously, but we do feel rather hamstrung in our ability to deal with migration as an international phenomenon given that legal dichotomy.[178]

239. The European Policy Centre emphasised that the Hague Programme, which all Member States signed up to, "explicitly prioritises a balanced approach to migration management and acknowledges that effective combat of illegal immigration requires the creation of clear and coherent channels for legal migration".[179] It noted that currently links between the two types of migration are not occurring in any substantial way.

240. Home Office officials acknowledged that this relationship is the subject of a live debate at the EU level:

There have been a number of Member States who argue that there are clear linkages between illegal and legal migration and some Member States have sought to use those trade-offs with countries in order to manage migration into their countries.[180]

241. The Parliamentary Under-Secretary at the Home Office, Joan Ryan, told us that the Government has plans to propose a move of "legal migration from one pillar to another or vice versa"—by which we assume she meant that the Government rejects any suggestion of a shift in voting procedures to do away with the requirement for unanimity in relation to legal migration.[181] Likewise she indicated that the Government had no plans to use legal migration routes to disincentivise illegal migration.

242. We believe that the relationship between legal and illegal migration is a complex one which merits further debate. To the extent that there is an economic need for migration, legal migration will always be the preferred approach and the justification for tackling illegal migration. What is less clear is whether the EU has the capacity to take a common approach to legal migration, given the very different pressures and needs of individual Member States. At the same time, the EU has not yet shown the capacity to develop an effective common approach to illegal migration (although it is improving). Our view is that the development of effective action on illegal migration remains the priority and the case for developing an EU approach to legal migration is less clear. However, the UK needs to recognise that the decisions of other EU states on legal migration have direct implications for the level of legal migration to this country, given the right of movement within the EU. There is room for debate as to whether, in the future, it may be in the UK's interest to accept a stronger common EU approach to legal migration. Members of the Committee hold different views as to whether it might ever be acceptable to agree to this.

Borders

243. EU co-operation on borders is largely governed by the Schengen acquis. As we have noted earlier, the UK does not participate fully in Schengen—it does take part in the majority of measures on police co-operation, but not in the measures on border controls. Concerns regarding loss of sovereignty have led to the UK not abolishing its border controls with the other EU Member States.

244. Many of the recent developments in the area of border controls have only involved Member States which participate in the immigration measures in the Schengen acquis. These are known as 'Schengen-building measures' and include the adoption of a standard Schengen borders code, development of the Visa Information System and the Second Generation Schengen Information System (SIS II) and the proposal for a standard code on Schengen visas.

245. As a result of the UK's decision not to opt in to the Schengen provisions on borders, none of these measures has a direct impact on the UK. However, the Government told us that despite this, effective control of the external borders of the European Union is a UK priority: "we take a close interest as we believe a strong Schengen border is in our interests as is a strong UK border in the interests of the EU as a whole".[182]

246. We looked at the effectiveness of current action on external EU borders through the EU Borders Agency, Frontex. We also considered the UK position with regard to Schengen.

FRONTEX

247. The Hague Programme focuses heavily on the external dimension of illegal migration, in particular security at the external borders of the EU. In 2005 a European Borders Agency, Frontex, was set up to manage co-operation between the Member States at the external borders. It became operational in 2006, with its headquarters in Warsaw.

248. Frontex's remit is to assist in all cross-border co-operation which Member States wish to carry out. Frontex can carry out risk analyses, gather, instruct and deploy experts, and launch joint operations. It divides its operational budget between air borders, sea borders, land borders and returns. It focuses on five common illegal entry routes into the EU, three through the Mediterranean, one via the Balkans and one through the Eastern borders via Russia and the Ukraine. During its first year of operations, 2006, Frontex carried out 16 joint operations based on risk analysis. The activities covered all border areas, whether they were implemented at the sea, land border or at airports.[183]

249. Frontex has been the subject of some controversy during its initial period. This has centered around the fact that it has been called upon to conduct a number of emergency operations in the Mediterranean, picking up illegal migrants from makeshift boats and contributing to their processing and return. These emergency operations have, in some cases, distracted Frontex resources away from other operations.

250. A number of Member States have also expressed dissatisfaction that Frontex has not been given the level of financing and equipment promised. The European Policy Centre commented that under-resourcing and ongoing difficulties with staff recruitment to the Frontex offices in Warsaw have resulted in a situation "which compromises its ability to react rapidly to crises".[184]

251. We visited Warsaw in February 2007 to find out more about the effectiveness of Frontex's operations and its organisational challenges. The agency's Executive Director, Ilkka Laitinen, emphasised to us that Frontex cannot replace Member States in patrolling borders, but its role is to set up and co-ordinate operations, and then monitor and evaluate them. The three factors necessary for the success of the agency were appropriate financial resources, staff resources, and the willingness of Member States to co-operate with each other.

252. Although Frontex continues to face some substantial challenges, it has been demonstrably effective in a number of areas already:

a)  Operations. Operation HERA in the Canary Islands in autumn 2006 significantly reduced the number of boatloads of illegal migrants from Africa. Frontex calculated that during the first two months of that operation there were 5,000 and 8,000 migrants recorded respectively. However, once word of the operation reached the African mainland this had a significant effect. In the first two weeks of October only one boat of illegal migrants arrived, containing 52 people.

b)  Returns agreements. Frontex has negotiated working arrangements with Morocco, Libya, Senegal and Mauretania, which allow the agency to divert boats in waters controlled by those countries. Frontex has already turned away 4,000 people in boats under this agreement.

253. We asked the Government for its assessment of Frontex's importance to the UK. The Parliamentary Under-Secretary at the Home Office, Joan Ryan MP, told us that she considers Frontex border operations to have an important deterrent effect on illegal migration.[185] Effective control of the southern maritime borders is of very great importance to the UK as well as the southern EU states:

when they [illegal migrants] manage to enter the EU through the southern maritime border, they work their way up through the EU and that entry, therefore, affects the northern Member States as well as those on that border.[186]

254. The Commission and a number of Member States are keen to guarantee more resources to Frontex, and discussions are underway about possible extensions to its remit. These discussions are likely to be influenced by the outcomes of two reviews of the agency in 2007.[187] Future options included Frontex taking a role in co-ordinating border operations in third countries, or in evaluating the operation of Member States' border guards. It may also have a role in co-ordinating large EU-wide databases such as the Schengen Information System or Visa Information System. Jonathan Faull, Director-General for JHA at the Commission, told us that:

I think it [Frontex] has a considerable role to play in risk analysis and in operational co-ordination of the national border guards so that they can more effectively help each other in times of difficulty.[188]

255. We asked the Government whether it would like to see Frontex playing a larger role in border controls. The Minister told us that the UK is very supportive of Frontex's work: "early indications in terms of the work of Frontex are that there is much good work that they can be doing".[189]

256. However, she sounded a note of caution, arguing that Frontex, and the Member States which use the agency, must ensure that its work is focused on outcomes rather than only on activities.[190]

257. The UK is not a full member of Frontex. The agency was deemed to be a Schengen-building measure, therefore integral to the Schengen acquis on borders. As such the UK can apply to participate, and a unanimous decision is taken by the full Schengen Member States whether to allow it to. The UK did so apply, but the Schengen states refused the application, a judgment which the UK is currently challenging in the European Court of Justice. The Minister told us that a decision is not expected in the case for 12 to 18 months.[191]

258. Frontex told us that there are two key consequences for the UK of not being a full participant. The first is not having a formal vote on the Frontex management board. This may not be of huge consequence: Executive Director Ilkka Laitinen told us that the only votes taken to date by the management board have been on the appointment of the executive and deputy executive directors. The second consequence is not being able to host Frontex operations on UK territory. This caused some difficulty in 2006 in a Frontex joint operation targeting six airports across the EU. Heathrow was due to be one of the six, but was disallowed.

259. The Minister told us that the UK sought a vote on the board because "it would increase our influence if we were able to vote and it would increase our ability to affect at a decision-making stage exactly what it is Frontex is doing".[192]

260. She confirmed that until the UK is a full member of Frontex, no operations will be allowed to take place on UK territory, although she added that the UK is not currently seeking any such operations.[193]

261. Frontex is a young organisation which has already carried out valuable work in securing the external borders of the EU. The agency has much untapped potential if it were to be properly resourced and staffed for the future. To this end the Government should encourage Member States to contribute the promised equipment and encourage the Commission to ensure sufficient funds to attract the right staff. We caution, however, that Frontex is not a panacea to problems of illegal migration, nor are emergency operations its raison d'être. Increased resourcing should not generate the expectation that Frontex can provide a much increased 'returns' service.

262. We support the Government's bid for the UK to become a full member of Frontex. The lack of a vote on the management board may not be a serious disadvantage, but the inability of Frontex to undertake operations on UK territory is a matter of serious concern. We therefore encourage the Government to take every step open to it to reverse this situation.

Schengen 'pick and mix'—is the UK position tenable?

263. As we have seen in paragraph 46 above, the UK has a special position with regard to the Schengen acquis. It does not participate in the Schengen agreement on borders but has applied, unsuccessfully, to opt-in to a number of 'Schengen-building' measures, such as Frontex.

264. On the one hand, this position is enviable. The UK can to a certain degree pick and choose measures which are advantageous, whilst giving up little to no national control over its own borders.

265. On the other hand, this situation in which the UK can gain more than it gives up is beginning to generate some negative results. The full Schengen members must unanimously approve any application for UK participation in any Schengen-building measures. In the recent past, the UK has been barred from participating in Frontex and, as the Minister said, is encountering great difficulty gaining support for its application for access to Article 96 data.[194] In addition UK police representatives told us that they want access to the proposed Visa Information System (VIS) but that the Council Legal Service has denied it:

The UK has asked for access to the data for security and crime prevention purposes. The Council Legal Service has argued that the proposal is a first pillar Schengen-building measure and that therefore the UK should not be allowed to participate.[195]

266. As the new Schengen Information System (SIS II) and the new Visa Information System come online, and more Member States are integrated into the Schengen framework, the amount of immigration and border data exchanged via the system is set to increase. The UK's exclusion may well be more and more keenly felt, particularly if other Schengen states become more frustrated with the UK having one foot in each camp.

267. We asked the police whether they thought, as experienced practitioners, that public protection and national security issues might be enhanced if the UK were fully part of Schengen rather than occupying our current 'halfway house' arrangements. ACPO and SOCA told us that, although they understood that issues around sovereignty and national borders made this a very difficult political question, as practitioners they thought public protection would be enhanced if we participated fully in Schengen.[196]

268. ACPO and SOCA questioned whether the choice to be a full member of Schengen or not was as stark as abandoning border controls and gaining access to more information on the one hand, or hanging on to border controls but having to find workarounds in accessing information on the other. Chief Constable Paul Kernaghan of ACPO said that this was a "false choice". He asked whether the UK was wholly convinced that its domestic border arrangements were better than those in Schengen:

Equally, I would have to say, as low key as I can, are we satisfied that our domestic border security is superior at this point in time to alternative options, I simply make that point. If we are saying there is a British gold standard and then there are these other people who perhaps are not just as good, that might be a valid choice. I would simply say and I am sure this Committee has heard evidence in the past which maybe says it is not such a stark choice.[197]

269. We asked the Government whether the UK's 'pick-and-mix' attitude towards Schengen is frustrating other Member States and whether the UK position is tenable. The minister told us that the UK has "very good relationships" with other Member States. She emphasised that on any issue there are Member States which have "individual legal systems, individual policies and politics that mean [they] cannot, and will not, sign up to everything across the board".[198] She gave the example of Poland's recent derogation from the Framework Decision on Transfer of Prisoners and the German exemptions on dual criminality for six types of crime in the European Evidence Warrant.

270. We agree with the Minister that different Member States sign up to measures in varying degrees and that this is part of the natural give-and-take at the EU. It could be argued that the UK position is qualitatively different because it has a wide variety of opt-in arrangements across the whole Schengen system. The UK may continue to be in the uncomfortable position of being excluded from important measures as a consequence of its selective participation. Nonetheless, the good reasons which led the UK to choose not to opt in to Schengen remain in force: in particular, the UK's unusual geographical position arising from its island status, long sea borders, and lack of land borders (other than with the Irish Republic, which has also chosen not to opt in to Schengen). We believe that on balance the UK is right to remain outside the Schengen border-control regime. We recommend that the UK Government should continue to explain to other EU countries why this is the case, while stressing the benefits of fuller co-operation on all other aspects of Schengen. The Government should also treat as its top priority the need to enforce immigration controls effectively within the UK; we made detailed recommendations as to how this can best be done in our report on Immigration Control published in 2006.[199]

Safeguarding data

Sharing data to fight crime effectively

271. All witnesses emphasised the need to share data effectively across the EU to fight trans-national crime. With the strong possibility that the 'principle of availability' will shortly be effectively adopted through incorporation of the Prüm Treaty in the EU's legal framework (see paragraph 143 above), an increasing amount of data is being shared across the EU. Witnesses told us that these increases in data availability increased the need for robust data protection arrangements. We took evidence on arrangements for data protection to balance data sharing.

Inside the EU—the need for better protection

272. Good data protection provisions exist in the UK at a national level with the Data Protection Act. At the EU level the Data Protection Directive, which preceded the UK Act, provides a similarly comprehensive level of data protection in the first pillar. However, there is currently no corresponding data protection provision in the third pillar, which leaves a significant gap, especially given the sensitive nature of much third pillar information. Witnesses identified a need for better data protection alongside increasing data availability. Professor Steve Peers, of the University of Essex, suggested that the principle of availability would involve a really "profound change".[200] He warned that although police forces would in theory have limited access to one another's databases, the reality might be different:

You would certainly hope that every police force in the EU would restrict itself to only searching for very important information where it has legitimate reasons to search. But I suspect there is a risk that in some cases some uncontrolled fishing expeditions will take place. That is the risk from the data protection point of view.[201]

273. It is apparent that the same tensions between security and rights which we explored earlier also arise from the data protection perspective. We asked David Smith, the UK's Deputy Information Commissioner, whether the nature of security challenges meant that the UK should be prioritising data sharing over data protection. He disagreed:

In simple terms, no. We are protecting a whole range of different rights. There is the right to the protection of your life but there is also … the right to protection of your private life. There is no doubt that, in some areas, in the interests of preventing terrorism we have to give up some aspects of protection of our private life and our privacy. That is understandable but we do not have to give it up completely. There is a balance to be struck.[202]

274. However, Mr Smith also pointed out that having robust data protection provisions would in some cases enable more, not less, important data to be shared:

The Data Protection Directive in the first pillar was not just introduced to protect privacy; it was introduced as part of developing the single market to enable to flow of personal information … by saying "we have common data protection standards, so no one can put up data protection barriers to the flow of information". Essentially, it is the same thing we are trying to do in the third pillar.[203]

275. We asked witnesses whether there has been a balanced impact study comparing the advantages of one with the risks of the other. Officials from the then Department for Constitutional Affairs (DCA) (now the Ministry of Justice), who hold cross-Government responsibility for data protection, told us that this was a "very important question" and that the Government had held extensive consultation with stakeholders, including those representing the data subject, in discussions about data protection measures in the third pillar.[204]

EXISTING PROVISIONS IN THE THIRD PILLAR

276. There are specific data protection measures built into a number of third pillar agreements and bodies. For example, Europol has a joint supervisory body composed of national representatives, who have the duty of ensuring that rights of the individual are not violated by the storage, processing and utilisation of the data held by Europol. Mr Michel Quille, Deputy Director of Europol, told us that his organisation has the "highest standard of data protection".[205] The Schengen Convention, the Prüm Treaty, the Europol Convention and Schengen-building measures have their own data protection regimes.

277. We asked witnesses whether, given the number of individual data protection regimes, there was a need for an overarching third pillar data protection measure to match the Data Protection Directive in the first pillar. Witnesses argued that there remains an urgent need for a data protection framework in the third pillar. Belinda Lewis from the DCA told us that an overarching measure would prevent reinventing the wheel and set minimum standards:

We would expect [a framework decision] to add value by avoiding working groups from reinventing the wheel every time data protection was discussed. If we have a sensible, more detailed minimum standard to which people can refer, then we would not need to start negotiating more basic data protection provisions in third pillar dossiers.[206]

278. David Smith, the Deputy Information Commissioner, also argued that the proliferation of different protection regimes in the third pillar is confusing and that clarity is needed for practitioners:

We are keen that the regulation is, as far as possible, clear, simple and consistent, so that police forces and others who have to follow it know what they have to do. When you have a proliferation of different measures—different ones applying to Europol, different ones to Eurojust it becomes extremely complicated. That is one of the reasons why we favour a framework decision for the third pillar, to give one overall standard which is hopefully clear, simple and easy to follow.[207]

THE DRAFT DATA PROTECTION FRAMEWORK DECISION (DPFD)

279. In October 2005 the Commission put forward a proposal for a Framework Decision on the protection of personal data processed in the course of activities of police and judicial co-operation under the third pillar.[208] The framework decision would apply to all agreements and information systems in the third pillar, both current and future, although specific information systems and bodies would continue to have their own bespoke data protection provisions built in.

280. Agreement has not been reached on the framework decision, and a number of witnesses held it up as another example of a rights-protecting measure which has become bogged down in the EU negotiating process.[209] JUSTICE told us that "the UK, among other Member States, is withholding support of significant elements of the Commission proposal while, at the same time, pushing for the adoption of the draft information exchange instruments".[210]

281. During the course of our inquiry agreement was reached to incorporate the Prüm Treaty into the legal framework of the EU. Professor Steve Peers warned against adopting the data protection provisions in the Prüm Treaty instead of the broader Framework Decision:

I think they [the data protection provisions in Prüm] are insufficient as compared to the Data Protection Framework Decision … If I may name the areas: particularly the powers of supervisory authorities are dealt with in the DPFD and not in the Treaty of Prüm; the issue of further processing of data is dealt with in the framework decision and not in the Treaty of Prüm; equally, the transfer of data to non-EU states is dealt with quite strongly in the original proposal for a framework decision and quite weakly in the Treaty of Prüm.[211]

282. However, Professor Peers also warned that the original framework decision would not necessarily provide sufficient protection either, as it would be likely to be watered down through the EU negotiating process:

I am sure it is technically possible that the framework decision could set a higher level of protection than the worst-case scenario, but I think something close to the worst-case scenario is more likely than something close to the best-case scenario.[212]

283. After agreement had been reached at the February 2007 JHA Council to incorporate the Prüm Treaty into the EU framework, the Government reiterated its support for the DPFD. The Parliamentary Under-Secretary at the Home Office, Joan Ryan MP, told us:

I think the data protection framework decision … is very important and we need that to come forward in the same way we have the Directive for the first pillar issues. Of course every policy that comes forward has within it its own data protection procedures … but I think that signals the importance of having the framework decision, so we can, as policies develop, horizontally apply data protection rather than having to negotiate it in each single, individual way forward.[213]

284. It is not yet clear what precise impact the incorporation of the Prüm Treaty will have on the draft Framework Decision. However, following a period of stagnation, the Framework Decision is back under active negotiation. On 4 May 2007 the European Parliament's rapporteur on the Decision noted that Germany had produced a revised proposal which "made it possible to overcome the deadlock within the Council" and "to reach political agreement".[214]

285. We consider that in the area of data protection there is evidence of insufficient political appetite for protective measures as compared to law enforcement ones. We note the Minister's expression of continuing Government support for the Data Protection Framework Decision. However, if proposals for a Framework Decision were to be superseded by the data protection provisions in the Prüm Treaty, we would have serious concerns as to whether these were adequate. We note the lack of EU-wide consultation over the contents of the Prüm Treaty, arising from its origins as an agreement between a small group of Member States which did not include the UK. We recommend that the Government should continue to support the principle of making provision for data protection in the EU third pillar through a Framework Decision.

Data sharing between the EU and third countries

286. We now consider two particular recent developments which have caused concern, in which personal data of UK and EU citizens have been made available to the United States: the Passenger Name Record agreement and the SWIFT agreement.

287. In the aftermath of the terrorist attacks on 11 September 2001, the US Congress passed a law requiring air carriers operating passenger flights to or from the United States to make Passenger Name Record (PNR) information available to the then Customs Service. PNRs contain a range of personal data about airline passengers, which can include sensitive data about race, political opinion, health or sex life of the individual.

288. In May 2004 the EU signed an agreement with the United States to allow the US authorities access to the airline PNRs of EU Member States. This allows US Customs to receive a wide range of personal data of passengers of European airlines flying to or via the US, including credit card numbers and dietary requirements. The agreement was made under the first pillar (as it concerned commercial airlines) but was then the subject of an European Court of Justice ruling which declared it was a third pillar competence as the ultimate purpose of the data sharing was for anti-terrorism measures. The first pillar agreement, concluded on the basis that the US has an adequate level of data protection, has now been replaced by a third pillar agreement between the EU and the US, signed in autumn 2006.

289. A great deal of concern has been expressed about the PNR agreement. It provided the US with potentially very sensitive personal data of millions of EU citizens, with limited control over how the data would subsequently be used. Our witnesses disagreed over the adequacy of data protection provisions in the agreement. Officials from the DCA told us that the Commission had considered the data protection safeguards annexed to the PNR agreement to be sufficient. These set out what the US was allowed to use the data for, who they could share it with and how long they could retain it.[215] However, Professor Steve Peers cast doubt on the provisions:

The PNR agreement … gives a number of important data protection safeguards, [but] there are doubts about how well it is implemented … and it does not set much restriction on the further transfer of the data to other countries or other agencies within the United States.[216]

290. One of the MEPs who submitted evidence to us, Baroness Ludford, criticised Member States' lack of consistency in being reluctant on the one hand to share information with Europol and Eurojust, whilst at the same time having "no problem in exchanging data with the US, such as data related to air passengers (PNR) or banking information on the SWIFT network".[217]

291. We asked the Government whether the handing over of personal data of UK citizens to the US through Passenger Name Records demonstrated a "level of casualness". The Minister, Ms Ryan, responded, "I do not know that I would call it 'casualness' … but I think it does flag up issues that need to be addressed and I think it is important that they are addressed". When asked what could be done at a national level to protect UK citizens against their data being shared in an unjustified way, Ms Ryan replied that the Government would push for good evaluation and use this to inform future plans because "these issues are going to become more, not less, important". Although Ms Ryan agreed that creating a good pan-EU data protection framework was "very important", she also emphasised the need for data sharing, commenting that the "exchange of passenger name records is very important".[218]

292. In a further case in 2006, the non-profit Belgian international banking co-operative network Society for Worldwide Interbank Financial Telecommunication (SWIFT) shared sensitive EU banking records with the US Treasury Department. SWIFT received a subpoena from the US in the wake of 9/11 ordering it to allow the US access to search for evidence of terrorism-related activities. SWIFT allowed the US access to its data on international financial transfers without informing the EU authorities. EU Working Party 29, a national data-privacy supervisors committee ruled in November 2006 that the access to private transactions granted to the US was illegal.

293. SWIFT declared in a statement on its website that US access was only granted "for a limited set of data and for the exclusive purpose of terrorism investigations and for no other purpose".[219] It added that the US was not able to search freely, but could only see data responsive to specific, targeted searches. However, the UK's Deputy Information Commissioner, David Smith, raised with us the question of "whether the US access is proportionate; that is, whether they wanted far too much information about people who have no connection with the United States". The civil liberties organisation Statewatch recently reported on its website that it had "received complaints from people with online UK banking accounts informing them that from 14 May 2007 details of all financial transfers by them through SWIFT will be passed to US authorities for the purposes of money-laundering, terrorism and crime in general. They are asked to agree or not—and if not they cannot transfer money".[220]

294. We asked our witnesses whether the UK accepts lower data protection arrangements with third countries than with fellow EU Member States. Belinda Lewis of the DCA agreed that the UK does accept lower standards:

You asked about third countries and whether we accept lower standards of data protection there. In short, we do. Really we have to in order to maintain the proper flow of business. We share data with countries who would not be considered to provide adequate data protection for purposes such as extradition, also deportation, also to aid things like murder inquiries of UK citizens.[221]

295. Professor Steve Peers agreed:

We really should be digging our heels in and setting a reasonable standard as to what we consider adequate data protection with other countries. … We have to think of wrong identification and all sorts of other issues that might arise.[222]

296. David Smith, the Deputy Information Commissioner, emphasised that these data protection problems are international and made a plea for some unified action: "we need some international harmonisation".[223]

297. We asked the Government what could be done to ensure that EU systems are more robust in dealing with data sharing with third countries. Ms Ryan emphasised the importance of the draft Framework Decision on Data Protection, but did not specify how this agreement would impact on agreements with third countries, but said that a future situation similar to the Passenger Name Record agreement was "an area that the EU should hopefully be able to avoid".[224] She agreed that getting a powerful EU framework in place to block private sector or EU organisations sharing data with a third country with inadequate data protection was important:

I think it is crucial in ensuring that data that is exchanged is properly used and that the people to whom the data relates can be confident that they are protected.[225]

298. Current debate on the most recent draft of the Framework Decision on data protection in the third pillar has picked up on the problems of data protection with third countries in such cases as PNR and SWIFT. The European Parliament's rapporteur on the Framework Decision said, in May 2007, that "in view of the current discussions concerning the exchange of data with third countries, particularly on Swift and the PNR agreement, it is necessary to adopt at European level minimum standards of data protection for these exchanges. … such an exchange will be efficient and useful only if we establish a high level of data protection".[226] The latest draft of the Framework Decision on data protection provides for a joint supervisory authority to be set up to "combine the national supervisory authorities and the European Data Protection Supervisor".[227] The European Parliament's rapporteur also recommended that "the joint supervisory authority created in the framework decision should be able to advise the Council, so as to ensure an appropriate level of transfer of data to a third country in the light of national law and international agreements".[228]

299. Both the Passenger Name Record and SWIFT cases give cause for serious concern. We consider that the casual use of data about millions of EU citizens, without adequate safeguards to protect privacy, is an issue of much greater significance than many of the other EU-related matters put to the UK Government and Parliament for consideration. We recommend that the Government and the European Commission should prioritise the question of provision of personal information to countries outside the EU as an issue of the greatest practical concern to its citizens. We repeat our earlier recommendation that the Government should seek urgent agreement on a comprehensive EU-wide data protection framework in the third pillar and ensure that specific minimum standards ensuring adequate data protection are agreed for data exchange with third countries. We also recommend that the Government should give due consideration to the proposal of the European Parliament rapporteur that the joint supervisory authority advise the Council to ensure an appropriate level of data transfer with third countries.

34   Q 115 Back

35   Q 119 Back

36   Q 115 Back

37   Q 116 Back

38   Q 116 Back

39   Q 141 Back

40   Q 315-6 Back

41   Ev 175-6 Back

42   Ev 96 Back

43   Ev 97 Back

44   Ev 169 Back

45   Q 121 Back

46   Q 129 Back

47   Europol Convention Article 2.1 Back

48   Europol Convention Article 3.1 Back

49   Article 4 defines the national unit of each Member State, saying that "Each Member State shall establish or designate a national unit to carry out the tasks listed in this article" (Europol Convention Article 4.1) Back

50   Article 8 deals with 'content of the information system', Article 10 with 'collection, processing and utilization of personal data' and Article 11 with an 'index system'. Back

51   Europol Annual Report 2006 (March 2007), p23-5 Back

52   European Commission press release IP/07/528 (20 April 2007) Back

53   Q 129 Back

54   Q 135 Back

55   Q 122 Back

56   Eurojust figures supplied by UK Revenue and Customs Prosecutions Office (RCPO). The UK has had 1 JIT (with the Netherlands). Belgium has had 2 (with France and the Netherlands). Estonia has had 1 (with Finland). France has had 10 (9 with Spain and 1 with Belgium). The Netherlands has had 2 (with Belgium and the UK). Slovakia has had 1 (with Germany). Sweden has had 2 (with Finland). However, RCPO cautions that the figures may not be completely accurate, because not all Member States responded to the request for figures, and there may be some JITs which have not been reported to the national centres. (Evidence reported to the House but not printed.) Back

57   Council Presidency document 7868/06, p 4 Back

58   Statewatch, The future of Europol (August 2006), at www.statewatch.org Back

59   Q 130 Back

60   European Commission, Proposal for a Council Decision establishing the Euroopean Police Office (EUROPOL) (COM (2006) 817 final) (December 2006) Back

61   Q 135; see also Q 136 Back

62   Q 137 Back

63   Information on the LIBE hearing supplied by the UK National Parliament Office, Brussels Back

64   Ev 92 Back

65   Q 152 Back

66   Q 150 Back

67   Q 153 Back

68   Q 346 Back

69   Q 346 Back

70   Q 129 Back

71   In 2003, Michel Fourniret, 63, was arrested by the Belgian Police for the murder of six French and one Belgian girl. He had previously been sentenced in France to seven years imprisonment for rape and indecent assault on minors in France. The Belgian authorities were unaware of his previous convictions. It is thought that he may have murdered up to 40 victims. Back

72   Q 149 Back

73   Report of the Inquiry into the handling by Home Office officials of notifications, by other European countries, of criminal convictions for UK citizens, by Dusty Amroliwala OBE (Home Office, February 2007) Back

74   Ibid., paras 1.13, 2,1-27 Back

75   Ibid., section 4 Back

76   Ev 95 Back

77   Ev 96 Back

78   Q 301 Back

79   Q 149 Back

80   Q 149 Back

81   Ev 181 Back

82   Q 299 Back

83   Q 303 Back

84   The Hague Programme, para 2.1 Back

85   COM (2005) 490 final Back

86   Q 129 Back

87   Ev 148 Back

88   Q 74 Back

89   Q 162 Back

90   Q 157 Back

91   Sometimes referred to as the 'Prüm Convention' Back

92   See House of Lords European Union Committee, Eighteenth Report of Session 2006-07, Prüm: an effective weapon against terrorism and crime? (HL 90), published 9 May 2007, para 23 Back

93   Ev 94 Back

94   Q 292 Back

95   Ev 94 Back

96   Q 306-309 Back

97   Document 6002/07, Article 18 Back

98   House of Lords European Union Committee, Eighteenth Report of Session 2006-07, Prüm: an effective weapon against terrorism and crime? (HL 90), p 11 Back

99   Information in this paragraph is from the European Commission website: http://ec.europa.eu/justice_home/fsj/intro/fsj_intro_en.htm Back

100   Q 206 Back

101   Further examples are given in Ev 178-180 Back

102   Ev 180 Back

103   Q 327; see also Ev 129 Back

104   Q 83 Back

105   Q 14 Back

106   Q 207 Back

107   Q 207 Back

108   Ev 169 Back

109   Ev 177 Back

110   Ev 99 Back

111   Ev 177 Back

112   Q 209 Back

113   Q 327 Back

114   Ev 128 Back

115   COM (2006) 8 final Back

116   Q 225 Back

117   Q 224 Back

118   Ev 130 Back

119   Q 324-325 Back

120   Q 238 and 239 Back

121   Ev 181 Back

122   Article 2 (1) Back

123   Ev 131 Back

124   Q 323 Back

125   Ev 177 Back

126   Q 5 Back

127   Ev 137 Back

128   Q 177 Back

129   Ev 130-31 Back

130   Ev 131 Back

131   Q 67 Back

132   Q 180 Back

133   European Scrutiny Committee, Ninth Report of Session 2005-06 (HC 34-ix), published 18 November 2005, pp. 11-12 Back

134   Ev 125 Back

135   Q 243-244 Back

136   Ev 170 Back

137   Ev 131 Back

138   Ev 131 Back

139   Ev 103 Back

140   Ev 159 Back

141   Q 80 Back

142   Q 31 Back

143   Q 77 Back

144   Ev 131 Back

145   Ev 108 Back

146   Ev 158 Back

147   Ev 158 Back

148   Ev 132 Back

149   Ev 181-183 Back

150   Q 165 (JUSTICE) Back

151   Q 165 (The Law Society) Back

152   Q 144 Back

153   Ev 176 Back

154   Ev 176. The European Legal Aid Directive and the European Agreement for the Transmission of Applications for Legal Aid.  Back

155   The FCO guide to UK nationals in prison abroad (In Prison Abroad, www.fco.gov.uk/travel) specifically refers citizens to the charity 'Prisoners Abroad' Back

156   Figures calculated from February 2007 breakdown by country on the 'Prisoners Abroad' website. Back

157   The Hague Programme 2005/C 53/01, p 13 Back

158   Q 77 Back

159   Together with Cyprus, the Czech Republic, Ireland, Malta and Slovakia. Back

160   See House of Lords European Union Committee, Second Report of 2006-07, Breaking the deadlock: what future for EU procedural rights? (HL 20), para 3 Back

161   Ibid., paras 8-9 Back

162   Ibid., paras 21-22 Back

163   Ev 129 Back

164   Police and Criminal Evidence Act (1984) 2005 Guidance Code A Back

165   Ibid, Code A Section 4 Back

166   Ibid, Code C Back

167   142, 238,919 euro total budget (as of 2005). Cyprus has a recorded figure of 207, 576, 557, but the report authors state "we doubt that this figure is accurate". Taru Spronken and Marelle Attinger, Procedural Rights in Criminal Proceedings: Existing Level of Safeguards in the European Union (2005), p 81 Back

168   House of Lords European Union Committee, Second Report of 2006-07, Breaking the deadlock: what future for EU procedural rights? (HL 20), paras 25-27 Back

169   Ibid., para 33 Back

170   Ibid., para 55 Back

171   Ibid., para 35 Back

172   Frattini speech to Berlin conference, February 2007 Back

173   Home Affairs Committee, Fifth Report of Session 2005-06, Immigration Control (HC 775-I), published on 23 July 2006 Back

174   Commission Communication, Policy priorities in the fight against illegal immigration of third country nationals Back

175   Q 87 Back

176   Ev 133 Back

177   Ev 129 Back

178   Q 86 Back

179   Ev 119 Back

180   Q 343 Back

181   Q 343 Back

182   Ev 133 Back

183   Frontex Annual Report 2006, p 11 Back

184   Ev 120 Back

185   Q 335 Back

186   Q 332 Back

187   Frontex Annual Report in March 2007, and a formal Commission evaluation later in 2007 Back

188   Q 92 Back

189   Q 337 Back

190   Q 337 Back

191   Q 338 Back

192   Q 331 Back

193   Q 339 Back

194   Q 346 Back

195   Ev 92 Back

196   Q 153 Back

197   Q 154 Back

198   Q 347 Back

199   Home Affairs Committee, Fifth Report of Session 2005-06, Immigration Control (HC 775-I), published on 23 July 2006; the Government's Reply was published on 18 September 2006 as Cm 6910. Back

200   Q 253 Back

201   Q 253 Back

202   Q 273 Back

203   Q 274 Back

204   Q 270 Back

205   Q 161 Back

206   Q 272 Back

207   Q 272 Back

208   COM (2005) 475 Final Back

209   For example, JUSTICE Ev 135 and The Law Society Q 172 Back

210   Ev 135 Back

211   Q 255 Back

212   Q 256 Back

213   Q 348 Back

214   PR/665822EN.doc p33 Back

215   Q 289 Back

216   Q 290 Back

217   Ev 144 Back

218   Q 348-49 Back

219   www.swift.com/index.cfm?item_id=60275 Back

220   www.statewatch.org EU-US data protection PNR-SWIFT Back

221   Q 289 Back

222   Q 290 Back

223   Q 291 Back

224   Q 438 Back

225   Q 351 Back

226   PR/665822EN.doc p35 Back

227   Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters (7315/2007-C6-0115/2007-2005-0202(CNS)) Amendment 7 Recital 18a (new) Back

228   Ibid, p 35 Back

---

Prepared 5 June 2007