19 The exchange of information for
law enforcement purposes
| (34516)
17680/12
COM(12) 735
| Commission Communication: Strengthening law enforcement cooperation in the EU: the European Information Exchange Model (EIXM)
|
| Legal base | —
|
| Document originated | 7 December 2012
|
| Deposited in Parliament | 10 December 2012
|
| Department | Home Office
|
| Basis of consideration | EM of 9 January 2013
|
| Previous Committee Report | None; but see HC 428-ii (2010-11), chapter 12 (15 September 2010) is relevant
|
| Discussion in Council | No date set
|
| Committee's assessment | Politically important
|
| Committee's decision | Cleared; further information requested in forthcoming Explanatory Memoranda on measures subject to the UK's 2014 block opt-out
|
Background
19.1 The removal of internal border controls through the creation
of an EU internal market and the establishment of the Schengen
free movement area has been accompanied by a range of measures
to strengthen external border controls and enhance police, judicial
and customs co-operation to tackle cross-border crime within the
EU. Many of these measures depend on the cross-border exchange
of data between law enforcement authorities.
19.2 A multiplicity of systems for the cross-border
exchange of information, however, carries risks in terms of personal
data protection, invasion of privacy, lack of coherence and duplication.
As a result, the Stockholm Programme, which establishes the EU's
priorities in the justice and home affairs field for the period
2010-14, recognised "the need for coherence and consolidation
in developing information management and exchange" systems
and invited the Commission and Council to implement an EU Information
Management Strategy based on a strong data protection regime.[77]
The European Council also invited the Commission to evaluate
existing instruments for the exchange of information with a view
to determining whether there was a need to develop a European
Information Exchange Model.
19.3 As a first step, the Commission published
a Communication in July 2010 providing an overview of EU justice
and home affairs instruments which regulate the collection, storage
and exchange of personal data for law enforcement or migration
purposes. It described each instrument in terms of the purposes
for which data may be collected, stored or exchanged; the structure
of the information exchange system (some are centralised, with
data collected and stored at EU level, others are decentralised);
the type of personal data held; the authorities which have access
to the data; rules on data retention and protection; and provision
for review or evaluation.
19.4 Our Second Report of 15 September 2010 set
out the main EU instruments used for the cross-border exchange
of information and the "core set of principles" proposed
by the Commission to govern information exchange. These include:
safeguarding fundamental rights (especially the right to privacy
and personal data protection); complying with the principles of
subsidiarity and proportionality; and ensuring that EU information
management systems are based on an assessment of need and include
a purpose limitation. In addition to these substantive principles,
the Commission also proposed "process-oriented principles"
to ensure a rigorous analysis of cost-effectiveness, involvement
of a wide range stakeholders, a clear allocation of responsibilities
(notably at the design stage) and systematic inclusion of review
clauses.[78]
The Commission Communication
19.5 The purpose of the Commission's latest Communication
is to consider how the cross-border exchange of information between
law enforcement authorities works in practice and to recommend
possible improvements. It focuses principally on Member States'
use of four EU instruments:
- the Framework Decision on exchange of information
between law enforcement authorities (the "Swedish initiative")
which establishes rules (and deadlines) for the exchange of information
and intelligence between Member States' law enforcement authorities
for the purpose of criminal investigations. It is based on the
principle of "equivalent access", which means that the
conditions governing the supply of information to another Member
State should be no more onerous than would be the case in a purely
domestic or internal context;
- the Prüm Decision which provides
for the automated exchange of DNA profiles, fingerprints, vehicle
registration data and information relating to suspected terrorist
attacks in order to help prevent and investigate crime, particularly
terrorism, and maintain public order;
- Europol, including
the Europol Information System, which enables Member States to
exchange criminal intelligence and information to prevent and
combat serious and organised crime; and
- the Schengen Information System (SIS and
SIS II) which includes information ("alerts")
on individuals and objects and is intended to support cooperation
between police and judicial authorities in criminal matters.
19.6 The Commission states at the outset that
these, and other information exchange systems (including, for
example, Interpol and bilateral agreements between Member States)
generally work well, adding:
"No new EU-level law enforcement databases or
information exchange instruments are therefore needed at this
stage. However, the existing EU instruments could and should
be better implemented, and the exchanges should be organised more
consistently."[79]
19.7 The recommendations put forward in the Communication
are intended to provide the basis for a European Information Exchange
Model, with particular emphasis placed on ensuring a high level
of data quality, security and protection, as well as more coherent
use of existing communication channels. These channels are based
on national units established in each Member State which use one
of three main communication tools:
- SIRENE[80]
bureaux for SIS-related requests: once a Member State
has discovered a match with data held in the Central Schengen
Information System, it may request supplementary information from
the Member State which entered the original alert using the SISNET
information exchange system. SISNET will be replaced by a new
communication tool once SIS II becomes operational later in 2013.
- Europol National Units
for Europol-related requests: these Units exchange information
with Europol, and with Member States on a bilateral basis for
crimes which are outside Europol's mandate, by means of the SIENA
secure communications tool.[81]
- Interpol National Central Bureaux:
these Units use a specific communication tool to exchange information
with Interpol as well as bilaterally.
19.8 The Communication does not propose any changes
to existing EU information exchange instruments, other than those
which may result from draft legislation, expected later in 2013,
to reform Europol. It does, however, underline the need for all
Member States to implement the instruments, highlighting, in particular,
delays in exchanging
Prûm data (which are described in greater detail in Chapter
20 of this Report) and the limited number of data exchanges based
on the Swedish initiative.
19.9 Given the diversity of the communication
channels available to Member States, and the relative freedom
they have to select the most appropriate one, the Commission suggests
that greater convergence would be helpful. It recommends using
the Europol National Units, and the SIENA communication tool,
as the "default channel" for exchanging information
unless there are specific reasons for using another one. More
systematic use of this channel would also improve the flow of
information to Europol so that it is able to establish a more
comprehensive picture of cross-border criminality within the EU.
19.10 In addition, the Commission urges Member
States to establish a round-the-clock single point of contact
for international police cooperation, bringing together all national
law enforcement authorities with access to national databases.
The single point of contact would validate requests for information,
ensure consistent use of the appropriate communication channel,
and provide coordination at Member State level.
19.11 The Communication highlights the advantages
of developing standardised formats for exchanging information,
not least to avoid errors in data entry when performed manually,
whilst recognising that certain tasks, such as the validation
of requests for information or replies, should not be automated.
It also suggests that the development of a European Interoperability
Framework should make it easier for different national systems
and administrative structures to communicate with one another,
improve data quality, and reduce response times.
19.12 The Commission estimates that approximately
one-quarter of criminal investigations and intelligence operations
carried out by Member States involve the cross-border exchange
of information and recommends, therefore, that the use of EU information
exchange instruments should form part of the initial training
programme for all law enforcement officers. It suggests that
Member States' national multiannual programmes to implement the
EU Internal Security Fund from 2014-20 should include an indication
of national information exchange priorities with a view to obtaining
EU funding.
The Government's view
19.13 The Parliamentary Under-Secretary for Security
(James Brokenshire) says that the Government broadly accepts the
Communication and is satisfied with its central recommendation
that no new EU legislation is needed. He notes that the UK already
has a single point of contact for incoming requests for information
(the Interpol National Central Bureau based in the Serious Organised
Crime Agency) but indicates that the Government will need to consider
the implications of the Commission's recommendation to use SIENA
as the default channel for cross-border information exchanges.
He expresses interest in work led by Europol to automate some
processes which currently are performed manually, particularly
given the significant increase in international information exchanges
in recent years, and says that the Government will work closely
with the Commission to ensure that the recommendations made in
the Communication are acceptable to the UK, "in terms of
operational effectiveness, policy direction and costs."[82]
19.14 Turning to the UK's record in implementing
the main information exchange instruments described in the Communication,
the Minister notes that the UK has fully implemented the Swedish
initiative, and is a major user of Europol, but that
some aspects of the Prûm Decision remain to be implemented.
He continues:
"All these EU instruments are included in the
list of police and judicial co-operation measures which are subject
to the UK's 2014 opt-out decision. The Home Secretary announced
to Parliament on 15 October 2012 that the Government's current
thinking is to opt out of measures within the scope of the 2014
decision and seek to rejoin individual measures where it is in
national interest to do so. Any decision we make in this regard
will be subject to a vote in both Houses of Parliament."[83]
Conclusion
19.15 The Communication provides a useful
insight into the practical workings of a variety of mechanisms
and instruments established at EU level for the exchange of information
between national law enforcement authorities. We note that the
Government is broadly satisfied with the content of the Communication
and, in particular, its central recommendation that no new legislation
is needed to supplement or amend (with the exception of Europol)
the existing instruments. It is, however, disappointing that
the Minister gives no indication of the Government's view on the
practical and operational utility of these measures for the UK,
in terms of their contribution to tackling cross-border crime
and enhancing cross-border cooperation on law enforcement matters.
19.16 As the principal EU instruments governing
the exchange of criminal information and intelligence are within
the scope of the UK's 2014 block opt-out of EU criminal law and
policing measures adopted before the Lisbon Treaty entered into
force, the UK's future participation remains in doubt. In light
of the important role which Parliament will play in debating and
voting on the Government's block opt-out decision, and on any
recommendation that the Government may make to seek to rejoin
individual measures subject to the block opt-out, we consider
that the Communication should be drawn to the attention of the
House.
19.17 As the Communication itself has no direct
legal, policy or financial implications for the UK, we are content
to clear it from scrutiny. In so doing, however, we remind the
Minister that we expect the Government's forthcoming Explanatory
Memoranda on measures subject to the UK's block opt-out to include
a more detailed examination of the utility of these measures,
as well as the costs involved in UK participation and the expected
benefits.
77 See the Stockholm Programme, para 4.2.2, Council
document 17024/09. Back
78
See headnote. Back
79
See p.2 of the Communication. Back
80
Supplementary Information Request at the National Entry. Back
81
Secure Information Exchange Network Application. Back
82
See para 21 of the Minister's Explanatory Memorandum. Back
83
See para 17 of the Minister's Explanatory Memorandum. Back
| 
