Documents considered by the Committee on 15 May 2019 Contents

8Cross-border access to electronic evidence in criminal proceedings

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; drawn to the attention of the Home Affairs Committee and the Justice Committee

Document details

(a) Recommendation for a Council Decision authorising the participation in negotiations on a second Additional Protocol to the Council of Europe Convention on Cybercrime (CETS No. 185)

(b) Recommendation for a Council Decision authorising the opening of negotiations in view of an agreement between the European Union and the United States of America on cross-border access to electronic evidence for judicial cooperation in criminal matters

Legal base

(a) and (b) Article 218(3) and (4) TFEU, QMV

Department

Home Office

Document Numbers

(a) (40362), 6110/19 + ADD 1, COM(19) 71

(b) (40363), 6102/19 + ADD 1, COM(19) 70

Summary and Committee’s conclusions

8.1The proposed Council Decisions both seek to facilitate cross-border law enforcement access to electronic evidence (“e-evidence”) held by online service providers based in a different jurisdiction. The first, document (a), would authorise the European Commission to negotiate the Second Additional Protocol to the Council of Europe Convention on Cybercrime (CETS No. 185) on behalf of the EU; the second, document (b), to negotiate an agreement with the US. The European Commission asserts that the EU has exclusive competence to conduct both sets of negotiations as:

8.2Our earlier Reports listed at the end of this chapter provide a more detailed overview of the proposed Council Decisions and the European Commission’s e-evidence proposals.

8.3Although the proposed Council Decisions concern areas of EU law and policy which fall mainly within the scope of Article 82 TFEU on judicial cooperation in criminal matters, neither cites a Title V (justice and home affairs) legal base. In their joint letter of 26 March 2019, the Minister for Security and Economic Crime (Rt Hon. Ben Wallace MP) and the Minister for Policing and the Fire Service (Rt Hon. Nick Hurd MP) told us that the Council supported the addition of a Title V legal base. Whilst stating that the Government “would not accept that the UK is bound by any exclusive external EU competence”, they were nonetheless “mindful” of the risk that the Court of Justice might take a different view because of the “significant overlap” between existing or prospective EU laws and the subject matter of the Second Additional Protocol and EU/US Agreement.

8.4We asked the Ministers to clarify:

8.5In their response of 8 May 2019, the Ministers inform us of the Government’s decision not to opt into either of the proposed Council Decisions. They note that:

8.6The Ministers add that the House will be informed of the Government’s decision not to opt in through the publication of a Written Ministerial Statement. Turning to the questions raised in our earlier Report, they confirm that two substantive legal bases—Article 82(1) TFEU on judicial cooperation in criminal matters and Article 16 TFEU on data protection—have been included in both the proposed Council Decisions. Whilst the European Commission maintains its view that substantive legal bases are unnecessary for the approval of negotiating mandates, EU Member States support their inclusion and accept that “the addition of the JHA legal bases brings into play the UK JHA opt-in” and that the UK is not automatically bound by any exercise of exclusive external EU competence, meaning that the Government is free to decide not to opt in.

Our Conclusions

8.7We welcome the inclusion of substantive legal bases on judicial cooperation in criminal matters and data protection as well as the addition of a recital in both the proposed Council Decisions making clear that the UK’s Title V (justice and home affairs) opt-in Protocol applies. As the Government has decided not to opt in, the UK will not take part in, or be bound by the outcome of, negotiations on a new EU/US agreement on cross-border law enforcement access to electronic evidence. Nor will the UK be bound by the EU negotiating mandate when taking part in negotiations for a second Additional Protocol to the Council of Europe Cybercrime Convention. We therefore agree to clear the proposed Council Decisions from scrutiny. In doing so, we draw the Government’s attention to Opinion 2/2019 published by the European Data Protection Supervisor in April which underlines the need for data-sharing arrangements to include strong data protection principles and safeguards. We trust that the UK Information Commissioner will be fully consulted on the terms of the data access agreement which the UK is negotiating with the US. We draw this chapter to the attention of the Home Affairs Committee and the Justice Committee.

Full details of the documents

(a) Recommendation for a Council Decision authorising the participation in negotiations on a second Additional Protocol to the Council of Europe Convention on Cybercrime (CETS No. 185): (40362), 6110/19 + ADD 1, COM(19) 71; (b) Recommendation for a Council Decision authorising the opening of negotiations in view of an agreement between the European Union and the United States of America on cross-border access to electronic evidence for judicial cooperation in criminal matters: (40363), 6102/19 + ADD 1, COM(19) 70.

Previous Committee Reports

8.8Sixty-second Report HC 301–lx (2017–19), chapter 5 (3 April 2019) and Fifty-seventh Report HC 301–lvi (2017–19), chapter 8 (6 March 2019). See also our earlier Reports on the proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters: Twenty-eighth Report HC 301–xxvii (2017–19), chapter 3 (16 May 2018), Thirty-seventh Report HC 301–xxxvi (2017–19), chapter 16 (5 September 2018) and Fortieth Report HC 301–xxxix (2017–19), chapter 14 (17 October 2018).


26 See the Commission’s explanatory memorandum accompanying the proposed Council Decision.

27 See recital (6) of the proposed Council Decision—document (a).




Published: 21 May 2019