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Europol (EUC Report)

7.28 p.m.

Baroness Harris of Richmond rose to ask Her Majesty's Government, in the light of the report of the European Union Committee on Europol's Role in Fighting Crime (5th Report, HL Paper 43), what steps they are taking within the European Union to ensure that the Europol Convention is amended to ensure that Europol has the tools to operate effectively and is properly accountable, particularly to national parliaments.

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The noble Baroness said: My Lords, I should first declare my interest as a former member of the Police Negotiating Board and of the Service Authority for the National Crime Squad.

I am very glad to have the opportunity to open this rather short debate, not only to draw attention to my sub-committee's recent report, Europol's role in fighting crime, but to highlight the role of Europol more generally. I am also grateful to the noble Baroness, Lady Stern, and the noble Lord, Lord Wright of Richmond, two extremely valuable members of the EU sub-committee which I chair, who will be contributing to the debate.

Europol is playing an increasingly important role in the EU in supporting the member states in combating a number of forms of cross-border crime, especially serious organised crime and terrorism. Its work deserves to be more widely recognised and understood. It needs to have the tools to enable it to do its job effectively while, at the same time, being properly accountable for its activities.

The focus of our inquiry was a proposal made last year by the Danish presidency for a protocol to the Europol convention designed to extend Europol's remit and streamline its methods of working. As this is a short debate, I shall not describe our conclusions and recommendations in detail. On many of the issues we support the line that the Government have taken and we are grateful for the detailed and positive response from the Government to our report.

There are, however, one or two areas where we would have preferred the Government to have maintained their original stance. I shall give just one example which relates to the role of national units. At present, the national unit in each member state is the sole channel of communication with Europol. The United Kingdom's national unit is the National Criminal Intelligence Service (NCIS) and it is generally regarded as fulfilling that role very effectively. The Danish presidency's original proposals would have allowed exchange of data directly between Europol and a wide range of national law enforcement agencies in addition to the national units. Initially, the Government were totally opposed to that proposal for reasons which the committee found persuasive. They were, however, unable to negotiate its complete withdrawal. Instead they secured the introduction of a number of safeguards, including, for example, a requirement that any communication between Europol and other law enforcement agencies must be sent simultaneously to the national unit. We recognise that compromises have to be made in negotiation and we understand why the Government have shifted their position on this point. Nevertheless, we remain of the view that the existing system is clear and effective and represents the best safeguard for the protection of personal data.

In the time available to me I should like to concentrate on three areas: protection of data exchanged with third countries; the accountability of Europol; and possible future developments,

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particularly the implications of provisions in the draft constitutional treaty currently being prepared by the Convention on the Future of Europe.

First, I turn to data protection. For Europol, like any intelligence-based organisation, information is its lifeblood. Much of this information will necessarily be data about individuals. It is important that Europol should have the ability to handle those data and exchange them with other authorised agencies. But, given the scale and nature of the data involved, it is vital that they should be subject to stringent data protection safeguards. We took the opportunity in our report to comment on the recent agreement between Europol and the United States of America on the transmission of personal data. We scrutinised that agreement in some depth at the end of last year and identified a number of serious shortcomings. Those included: the breadth of the purposes for which data may be exchanged, which goes further than Europol's own remit; the wide range of US authorities entitled to receive Europol data, which include local as well as state and federal authorities; and the lack of information provided about US data protection systems.

That was an extremely frustrating exercise as we exchanged no fewer than nine letters with the Government but secured no change in the agreement, the text of which—it was clear—had been settled before it had been submitted to us for scrutiny. The eventual outcome was that the Government overrode the scrutiny reserve of both Houses. That is clearly not the right way to ensure adequate parliamentary scrutiny of the transfer of data on British and other European citizens to foreign institutions. I hope that lessons have been learnt from that experience and are being applied to the handling of the EU/US extradition treaty, which is currently under scrutiny by Sub-Committee E.

Europol is now negotiating a series of agreements for the exchange of personal data with other countries, primarily the incoming member states, but also others further afield. I am very pleased to say that these are being handled in a much more deliberate and satisfactory way with proper attention to the scrutiny process that allows an opportunity to suggest changes before the agreements are set in concrete. The role of the Joint Supervisory Body (JSB) is absolutely crucial here. The JSB is composed of senior data protection regulators from each member state. It examines any proposals that have a data protection element and delivers an opinion on them. We were critical of the readiness with which the JSB endorsed the Europol/USA agreement despite what appeared to us obvious flaws, but in general it performs a crucial role. It has made a number of valuable proposals in relation to other agreements and, particularly relevant to this debate, to the data protection provisions of the proposals that we are considering today.

Secondly, I turn to accountability. The more powers that Europol is given and the wider its role, the greater is the need for effective oversight of its activities. The Danish presidency originally proposed far-reaching provisions for oversight of Europol's activities by the

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European Parliament. Those have been somewhat watered down but still represent a useful step forward. Our concern has been that there should be equivalent oversight by national parliaments, which in our view would be particularly appropriate for an essentially intergovernmental institution. We were therefore disappointed that a proposal for a joint committee to oversee the work of Europol, consisting of members of national parliaments and of the European Parliament, was withdrawn. The Government have explained that the reason for that is that such a provision could not be incorporated directly in the Europol convention but would require a basis in the treaties. We have been reassured to see that the draft constitutional treaty makes provision for the scrutiny of Europol's activities,

    "by the European Parliament, together with the national parliaments".

I urge the Government to endorse that proposal and ensure that it is retained in the treaty as the draft is revised.

Finally, I turn to the future and particularly to the impact that the constitutional treaty is likely to have on Europol. As it stands at present the draft contains both good and bad elements. On the plus side, given the difficulty of amending the convention, it makes sense to leave the definition of Europol's structure, operation, field of action and tasks to secondary legislation; and, as I have said, we welcome the provision about scrutiny by national parliaments. But the very broad remit—in effect "serious" rather than "serious organised crime"—would undo much that has been achieved in the current negotiations on the draft protocol.

The other big issue for the future is whether Europol should become "operational"—a European FBI, as some have argued. We did not express a view on that in our report—it was outside our remit—but we were concerned that any change of that kind should come about only as a result of an informed debate and not as a consequence of a succession of in themselves relatively small extensions to its remit. One recent step in that direction has been the decision enabling Europol to participate in joint investigation teams. The Government are clear that that should not happen and I hope that they will be vigilant in ensuring that Europol does not acquire operational powers in that way.

There is much more that I could say on this fascinating subject but I look forward to hearing the views of other noble Lords and the response of the Minister to the Question.

7.40 p.m.

Lord Wright of Richmond: My Lords, in so far as Europol is involved in helping to reduce counterfeiting of the euro, I must first declare an interest as a consultant to DeLaRue, one of the companies that prints euros for other members of the European Union and is much involved in helping to devise ways to reduce the risks of counterfeiting.

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I shall be very brief. I share the hope of our chairman, the noble Baroness, Lady Harris of Richmond, that the report of our sub-committee, on which I had the honour to serve, will have highlighted the role of Europol. It may nevertheless be worth emphasising again that, as she said, our report does not call for a major new operational role for Europol, at least not before there has been further informed debate. We welcome the Government's assurance in their response that none of the amendments suggested in the Danish presidency's proposals will have the effect of changing Europol's fundamental role as it exists today.

As the noble Baroness said, information for Europol, as for any intelligence-based organisation, is its life blood. Our committee noted with approval that the British Government have been widely commended for their greater readiness to provide Europol with intelligence than any other member state. Several of our witnesses, both during the inquiry and at previous meetings of the sub-committee, drew attention to that. Needless to say, that readiness to share intelligence, particularly on individuals, carries with it the absolute need to observe the most stringent requirements of data protection.

Within those constraints, I hope that the Government can continue to encourage our European partners, and our applicant partners in the future, to keep Europol adequately supplied with the information that it needs if it is to fulfil its role effectively.

7.42 p.m.

Baroness Stern: My Lords, I welcome the opportunity to debate this important report. The noble Baroness, Lady Harris, said how important it was that Europol should be widely recognised and understood. I endorse that. I suggest that the number of people who have heard of Europol is not great, and that the number who have any idea what it does, who is in charge of it, what information it holds on any of us, and what powers it has, is even smaller. So I am glad that our sub-committee found the time, with so many competing demands, to carry out a study of Europol's work and role. If it is of high quality—I think that it is—we owe that mainly to our excellent Clerk and his staff.

In my view, it is more important than ever that matters such as Europol are taken up by the European Union Committee. Europol is a law enforcement agency. The powers of such agencies have increased, as has their capacity to work together and share information since terrorism became a global issue. We have seen many changes in policy on law enforcement, and the bodies charged with ensuring accountability—our committee is one—are few and under considerable pressure.

Law enforcement agencies need to be able to operate and to catch suspects, but unless there is a balance between law enforcement, accountability and individual rights and protections we shall have lost our

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hard-won fundamental freedoms and will be no more secure than we were before. In that context, I echo the appreciation of the noble Baroness, Lady Harris, for the Government's positive response in many of the areas that we raised. I am glad that they share our concerns.

In this short debate, I want to concentrate on data transfer and data protection, and add a few words on the remit of Europol. One area that preoccupied us in the committee was the agreement between Europol and the United States on the transmission of personal data. We worked from the point of view of acceptance of the need for international police co-operation, but not at the expense of,

    "adequate protection of personal data",

which, as the report says, is,

    "one of the fundamental common values of the EU member states".

The noble Baroness mentioned the shortcomings of the agreement and the frustrating exchange of letters. I would like to examine in more depth the cause of our concern about that agreement with the United States, and the importance of ensuring "stringent data protection safeguards".

That concern was reflected in the evidence given to the committee by Statewatch and Justice. The debate on the US-Europol agreement has continued since our report. We hope that it has contributed to the informed nature of that debate. In its report, The Balance between Freedom and Security in the Response by the European Union and its Member States to the Terrorist Threats, submitted on 31st March this year, the EU network of independent experts in fundamental rights said that,

    "the absence of an independent supervisory authority competent for controlling transmission of data by Europol and the treatment of that data by the United States authorities gives grounds for particular concern".

The essence of the matter is the protection of sensitive personal data, how far they can be disseminated and what they can be used for, and whether they can even be sold for commercial purposes. All countries in Europe—the 45 countries that are members of the Council of Europe, which includes the 15 members of the European Union—are bound by privacy and data protection standards as expressed in Article 8 of the European Convention on Human Rights, and in the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. Article 6 of that convention covers special categories of data. It states that,

    "personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions".

The United States is not a party to any of the conventions and is not bound by those requirements. It operates in an entirely different cultural climate as concerns personal privacy. Should anyone doubt that, they should look at the website of—I take but one example—the Florida Department of Corrections.

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There are five databases on the website. Some of them are about people actually in prison, so it could be argued they are not entitled to much privacy, although I would not argue that myself.

I shall take another database—the released inmates database—at random. It is about people who have left prison. I suggest that noble Lords type in "John Smith" to the database. There are 40 John Smiths. Choose one at random, as I did this afternoon. I chose the one whose hair colour was said to be strawberry. I could then find out all his personal details, such as height, weight, birthday, aliases, tattoos—he has a sun tattooed on his right upper arm—criminal record and prison history. He is now living in Orlando, and there is a photograph. I feel uncomfortable even talking about the matter in the House, but the website is there for all to see. It indicates a totally different approach to personal information from that of countries operating within the European framework.

We recommend in our report that Europol should continue to communicate with only the national units, rather than having direct communication with individual police forces and other agencies. It is good to note that the Government agreed initially with that view. However, I understand that the US-Europol agreement contains no such restriction and the data may be shared with law enforcement agencies throughout the United States. I also understand, although the Minister may well be able to correct me on this, that private companies are employed by some US states to purge voter lists of ex-prisoners who have forfeited their right to vote by having been in prison. Thus personal data may spread even more widely. So there is a need for safeguards to be written into the agreements that Europol makes with other countries outside the European framework.

Was our committee happy with the safeguards that currently operate? The noble Baroness, Lady Harris, mentioned the Joint Supervisory Body, which is concerned with protecting the data that Europol receives. Our committee looked at the report made by the Joint Supervisory Body on which the United Kingdom representative is our Information Commissioner. The opinion of the Joint Supervisory Body on the draft agreement between Europol and the United States indicates that it, too, felt some of the concerns that our committee raised. It suggested that the implementation of the agreement should be monitored,

    "in view of the law and regulation in the United States of America in relation to the protection of personal data".

It also stressed the importance of compliance with the five principles of purpose: finality; sensitive data; transmission only to competent federal, state and local authorities; deletion of data; and independent supervision. Our committee was not totally convinced by the decision of the Joint Supervisory Body and wrote to the noble Lord, Lord Filkin, on 11th December stating that,

    "the Committee is concerned that the Joint Supervisory Body does not appear to have exercised a sufficiently independent judgement of the important data protection issues involved".

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In answer to my own question, the committee was not happy with the safeguards in operation dealing with the agreement.

We say in our report that Europol has a crucial role in supporting national law enforcement authorities. That is its proper role. It is not an actor but a supporter of actors. Some of our witnesses suspected that there was pressure for Europol to become more operational in its own right. We do not favour a move to a more operational role without a major debate across the EU.

However, I note that the Europol annual report for 2002, which has just been published, states that Europol has a goal of reaching a situation in which two-thirds of its activities are operational. Can the Minister therefore comment on the lessons that have been learnt from the signing of the agreement with the United States and on the idea of a Europol that is two-thirds operational?

7.53 p.m.

Lord Roberts of Conwy: My Lords, the Motion rightly highlights three related aspects of the report. The first is the steps that are being taken to amend the Europol convention, following the changes proposed during the Danish presidency.

The report refers to discussions that have been going on in the Europol working group. We hope that the Minister will update us on progress within the group, and possibly beyond, at ministerial level. The noble Lord might also indicate the way ahead, especially in the context of the draft constitution.

This is an appropriate point at which to commend the report and all those who contributed to it. I for one found myself very much in agreement with most of its conclusions and recommendations and I do not think that the Government will dissent from many of them either, but we shall see.

The second thrust of the Motion has to do with the effective operation of Europol itself. That this is important goes without saying in these days when we are all acutely aware of the transnational dimensions of a wide range of serious organised crime. The definition of Europol's scope in terms of the crime it covers is clearly causing a problem. However, the committee is surely right to suggest that the answer lies in a reference to the definition provided by the UN convention.

The problem of Europol's remit is rather more complex in that I suspect that not all the subscribing countries have effective national bodies or units like our own National Criminal Intelligence Service (NCIS) and the National Crime Squad (NCS). It is not surprising therefore that there is a proposal to extend the remit of Europol beyond its present remit of intelligence gathering, analysis and dissemination to a more operational, investigative role and to extend its reach to subsidiary authorities.

There is—rightly, in my view—a general reluctance in the UK to go down that path, for very good reasons, as the noble Lord, Lord Wright, indicated. Such an enlargement of functions would inevitably lead to a

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diminution of concentration on criminal intelligence gathering, which is a vital weapon in the fight against crime. All of the evidence before the committee indicated a high degree of satisfaction with the national structure that we now have in place for dealing with Europol matters. There was no desire to put it at risk by allowing direct access to subsidiary authorities, which might well lead to duplication, confusion and inefficiency.

The issue of data protection is clearly all important to us, as the noble Baronesses, Lady Harris and Lady Stern, pointed out. I do not see how any authority that has data on the individual citizen can properly carry out its duty to safeguard such data if it does not know where, to whom and why such data have been transferred. The problem is particularly acute with data that are given to third countries, including the United States, and the committee is right to advise caution. The system and the transfer of data are too open to abuse; I am sure of that. I tend to doubt whether the Joint Supervisory Body—good as it may be—is adequate to the task.

With regard to the accountability of Europol, that is inevitably related to its financing. As I understand it, the UK contributes about one-fifth of the organisation's costs; the money comes from the Home Office via NCIS. There is therefore a legitimate parliamentary interest in Europol's activities. The same principle would clearly apply to other national parliaments that contribute to Europol's finances.

Is there a similar financial justification for the European Parliament to have oversight of Europol? Funding from the Community has been suggested but, so far as I am aware, it has not yet materialised. Europol remains an intergovernmental rather than a Community institution. Of course, financial involvement is not the only possible justification for parliamentary interest but a financial contribution does carry a duty to ensure that taxpayers' money is well spent. It is up to Parliament to ensure that.

My personal view is that there should be an interparliamentary committee that corresponds to the Europol management board. The board comprises representatives of each member state and the parliamentary committee should be similarly constituted. However, it is difficult to see how many of the issues raised in the report can be resolved until the new constitution of Europe is finalised and the European dimension of policing and the judicial system are settled. I hope that the Minister will be able to throw some light on the Government's view of that European dimension.

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