20 The Prüm Decisions: cross-border
cooperation on terrorism and crime
(34542)
COM(12) 732
| Commission Report on the implementation of Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (the "Prüm Decision")
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Legal base |
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Document originated | 7 December 2012
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Deposited in Parliament | 13 December 2012
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Department | Home Office
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Basis of consideration | EM of 9 January 2013
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Previous Committee Report | None
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Discussion in Council | None
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Committee's assessment | Politically important
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Committee's decision | Cleared; further information requested in forthcoming Explanatory Memoranda on measures subject to the UK's 2014 block opt-out
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Background
20.1 In 2008, the Council adopted two Decisions ("the
Prüm Decisions") which implement, within the EU legal
framework, most of the provisions contained in the intergovernmental
Prüm Treaty concluded by some, but not all, EU countries
in 2005.[84] The purpose
of the Treaty, and subsequent Council Decisions, is to establish
more effective mechanisms for cross-border police cooperation
and the exchange of information to prevent and investigate terrorist
and other serious criminal offences. The principal Prüm
Decision (2008/615/JHA) requires Member States to establish national
DNA analysis files for the investigation of criminal offences.
It also:
- establishes rules and procedures for the automated
searching and transfer of "reference data" held in national
DNA analysis files these are data containing individual
DNA profiles which may be used to establish a match or "hit",
but which do not reveal the identity of the data subject
as well as fingerprint data, and certain vehicle registration
data;
- provides for the spontaneous exchange of information
(including personal data) in order to prevent criminal offences
and maintain public order and security for major events with a
cross-border dimension;
- provides for the exchange of information (including
personal data) on individuals where particular circumstances give
reason to believe that they may commit a terrorist offence; and
- strengthens cross-border police cooperation.
20.2 A second Decision (2008/616/JHA) contains
detailed technical measures to implement the principal Prüm
Decision and includes, for example, guidance on the technical
requirements for establishing DNA profiles.
20.3 Both Prüm Decisions were adopted under
the pre-Lisbon intergovernmental or "Third Pillar" arrangements
applicable to EU police and criminal law measures and took effect
in August 2008. Most of the provisions were to be implemented
by Member States within one year, but a three-year implementation
deadline applied to those providing for access to national vehicle
registration, fingerprint and DNA databases.
20.4 The Government informed us in February 2011
that the UK would not be in a position to meet the August 2011
implementation deadline for two reasons. First, UK policy on
the retention of DNA and fingerprint data was about to change
with the introduction of the Protection of Freedoms Bill, so it
would be premature to implement the Prüm provisions on access
to fingerprint and DNA data until the necessary legislative changes
had been made. Second, there were insufficient resources within
the current spending review period (2011-15) to prioritise work
on Prüm implementation, but the Government would seek EU
funding to begin work on the vehicle registration and DNA elements
of Prüm.[85]
20.5 The Prüm Decisions are subject to Article
4 of the Protocol on Transitional Provisions, annexed to the EU
Treaties, which allows the UK to decide, no later than 31 May
2014, to opt out of all Third Pillar EU criminal law and policing
measures agreed before the Lisbon Treaty took effect on 1 December
2009 ("the 2014 block opt-out"). Current Government
thinking, as set out in the Home Secretary's statement to the
House on 15 October 2012, is to exercise the block opt-out and
to seek to rejoin measures which it considers to be in the national
interest. A decision to opt back into the Prüm Decisions
would expose the UK to the risk of infraction proceedings brought
by the Commission, once it is empowered to do so from 1 December
2014, if the UK continued to fall short in its obligation to implement
them in full.
The Commission report
20.6 The purpose of the report is to review Member
States' implementation of the Prüm Decisions and to identify
the main operational difficulties encountered. The application
of provisions on the exchange of vehicle registration, fingerprint
and DNA data, as well as compliance with data protection standards,
in each Member State is subject to a process of testing and evaluation
by experts from other Member States, followed by the adoption
of a specific Council Decision bringing the provisions into effect.
Implementation
20.7 The report indicates that:
- the provisions on the automated exchange of DNA
data are operational in 18 Member States, and are likely to become
operational in a further five Member States early in 2013;
- the provisions on automated searching of fingerprint
data are operational in 14 Member States, and a further seven
Member States are expected to complete their technical implementation
and undergo evaluations early in 2013; and
- the provisions on automated searching of vehicle
registration data are operational in 13 Member States, and a further
four Member States are awaiting evaluation.
20.8 Greece and the UK are the only Member States
to have made little or no progress on data exchange in all three
areas, though Ireland, Italy, Poland and Portugal are experiencing
difficulties in some areas. The UK is, however, compliant with
the data protection provisions of the Prüm Decisions.
20.9 The report indicates that technical and
funding difficulties are the reasons cited by Member States for
the delays in implementation. The Commission highlights the availability
of technical support, through the Prüm helpdesk at Europol
and a mobile support team, as well as funding from the EU Programme
for the Prevention of and Fight against Crime and concludes:
"What is needed above all seems to be political
will and appropriate prioritisation to overcome barriers at national
level."[86]
Operational difficulties
20.10 The report suggests that, for many Member
States, "Prüm has become a routine tool in investigating
crime with a potential cross-border dimension."[87]
However, the Commission highlights the need for better statistical
data to demonstrate not only how many matches or "hits"
for each dataset are recorded, but how useful the data are in
the context of criminal investigations. The report highlights
four areas for improvement:
- follow-up action after a data match has been
found: although automated searches are
effective in identifying matching datasets, any follow-up action
to obtain personal data concerning the identity of the data subject
is governed by national laws on mutual legal assistance and can
be subject to delay;
- unsatisfactory technical specifications for
data exchange: a considerable number
of Member States believe that the specifications for matching
DNA data should be made more reliable;
- the need to make better use of existing expertise
and support: notably the Prüm helpdesk
at Europol for operational Member States and the mobile support
team (MCT) for those in the process of implementing provisions
on the exchange of DNA and fingerprint data; and
- operational police cooperation: the
provisions on cross-border police cooperation for major events
and joint operations are generally considered to be of some value,
but little use has been made so far of those providing for the
exchange of information to prevent terrorist offences.
20.11 The report concludes by urging Member States
which have not implemented the Decisions in full to bid for EU
funding and to make use of existing support facilities. It also
calls for more accurate statistical data to demonstrate how useful
data matches prove to be in the context of criminal investigations,
and suggests that further work on procedures for more rapid follow-up
on data matches would be of some value.
The Government's view
20.12 The Parliamentary Under-Secretary for Security
(James Brokenshire) describes the Commission's report as "a
stocktake on Prüm".[88]
He notes that the UK has successfully bid for EU funding to support
implementation of the provisions on DNA data exchange, but adds:
"The report mentions some very real problems
with the technical and administrative specifications for Prüm.
These include the matching rules for DNA hits which, should the
UK implement Prüm, potentially cause some major problems
with adventitious matches.[89]
This issue already exists for some other countries: we understand
that the Netherlands already simply refuses to provide follow-up
information should the original hit be one that is very likely
to have been adventitious. Other technical difficulties exist
in the fingerprint area; these include the possibility that verification
rules around hits are not sufficiently tight and capacity problems
with Member States' verifying authorities and within their Automatic
Fingerprint Identification System (AFIS) databases."[90]
20.13 The Minister questions the usefulness of
other aspects of the Prüm Decisions, such as the requirement
for each Member State to designate national contact points responsible
for different elements of Prüm cooperation, adding that cooperation
for the EURO 2012 championships was not based around the Prüm
contact points for major events.
20.14 The Minister concludes:
"The Prüm Decisions are, of course, included
in the list of police and judicial co-operation measures which
are subject to the UK's 2014 opt-out decision. As the report
does not propose new measures or changes to the legislation, this
situation is not altered. The Home Office acceptance of funding
for the DNA work does not in any way prejudge this decision and
should not be taken as an indication one way or the other as to
whether the UK will exercise its opt-out, or if it does so, that
it will ultimately opt back into the Prüm Decisions. It
will, however, help provide information about the costs, benefits
and practicalities of exchanging DNA data with other Member States
which might help inform that decision."[91]
Conclusion
20.15 The Commission report highlights the
patchy implementation of the Prüm Decisions in a number of
Member States and the apparent lack of progress made by the UK
in implementing those aspects concerning the automated exchange
of DNA, fingerprint and vehicle registration data. We understand
that the delays in the UK are largely a result of financial constraints,
rather than an unwillingness to play a full part in Prüm
cooperation. However, the Minister gives no indication of the
Government's view on the practical and operational utility of
Prüm cooperation or, given the concerns expressed about the
accuracy of matches based on DNA profiles, the implications of
the Decisions for the protection of fundamental rights.
20.16 We note that the draft Decisions fall
within the scope of the UK's 2014 block opt-out and are amongst
the measures which the Government may seek to rejoin if it decides
to exercise its block opt-out. 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 Commission report should be
drawn to the attention of the House.
20.17 As it seems that the report will not
be discussed by the Council, 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 measures such as these, as well as the costs
involved in UK participation and the expected benefits.
84 The original signatories to the Treaty were Austria,
Belgium, France, Germany, Luxembourg, the Netherlands and Spain.
Bulgaria, Romania, Slovenia, Finland, Hungary, Estonia and Slovakia
have since acceded to it. Back
85
See letter of 7 February 2011 from the Parliamentary Under-Secretary
of State for Crime Prevention (James Brokenshire) to the Chairman
of the European Scrutiny Committee. Back
86
See p.6 of the Commission Report. Back
87
See p.6 of the Commission Report. Back
88
See para 13 of the Minister's Explanatory Memorandum. Back
89
These are sometimes called "false positives" - in other
words, the initial positive match turns out be a false one on
further examination. Back
90
See para 21 of the Minister's Explanatory Memorandum. Back
91
See para 24 of the Minister's Explanatory Memorandum. Back
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