Select Committee on European Union Forty-Ninth Report

DISQUALIFICATION (9957/02; 12536/02)

Letter from the Chairman to Bob Ainsworth MP Parliamentary Under Secretary of State, Home Office

  Sub-Committee F (Social Affairs, Education and Home Affairs) considered the proposal at its meeting on October 23.

  We were left unclear about the scope and intended effect of the measure including the range of disqualifications covered and whether notification of disqualifications would be automatic (or only on request).

  The data protection aspect is also very important and we note the Government's concern about the safeguards provided in the Decision. The Committee believes that in order to achieve legal certainty and the highest level of data protection in this context, it is important that the proposal makes specific reference to EU and international data protection instruments. This is especially the case in view of the broad powers of the contact points, which will also have access to national criminal records.

  Another important issue is whether the consent of the person concerned should be sought. Article 3(3) leaves this to the discretion of Member States. It seems anomalous for practice to vary between Member States, and it is for consideration whether the consent of the person concerned to the transmission of information should be mandatory. In this connection it would be helpful to have more information about appeal rights against disqualification in the different Member States.

  We welcome your efforts to clarify the scope of the instrument and to ensure the respect of confidentiality, and would be grateful to be kept informed on progress in negotiations. In the meantime, the Committee will retain the proposal under scrutiny.

24 October 2002

Letter from Bob Ainsworth to the Chairman

  Thank you for your letter of 24 October setting out the comments of Sub-Committee F on the above-named initiative. I hope that you have also received by now my Explanatory Memorandum of 30 October on the latest text of the draft Decision, doc 12536/02.

  The new text has helped to clarify the intended scope of the measure. Article 1 now states that the Decision shall only apply to disqualifications which are imposed by a judicial authority as part of a judgement or which are an automatic corollary of a criminal conviction. Disqualifications imposed by regulatory bodies are expressly excluded from the Decision. This means that the information to be exchanged should form part of the criminal record but that there would be no requirement to transmit details of vocational disqualifications imposed subsequent to a conviction by those bodies responsible for professional standards.

  The Decision requires that a contact point notifies his counterpart in another Member State when a national of the latter has a relevant disqualification imposed upon him. This is consistent with the requirements of the 1959 European Convention on Mutual Assistance in Criminal Matters. Article 4 of the draft Decision now extends this requirement by requiring a contact point to notify his counterpart in another Member State where a person is known to be resident in that State or to be carrying on a business there. Under Article 3, it is also possible for a Member State to request that another Member State informs it whether a person is subject to a disqualification. The text therefore allows for both the unprompted notification of disqualifications in certain circumstances and for a Member State to request such information where no such requirement exists.

  Article 2(2) of the text indicates that the supply of information will be "in accordance with relevant international agreements and national law". Articles 3 and 4 have now been amended so that any use of the information other than for the purpose of ensuring the disqualification is observed, shall be governed by the data protection legislation of the Member State concerned. As you have noted, there is also provision for a Member State to make disclosure subject to the consent of the individual concerned where the information has not been requested in the course of a criminal prosecution. We agree that the draft Decision would benefit from greater clarity in respect of its standards of confidentiality and that this would help achieve greater consistency of practice. We doubt, however, that there is a good reason for making it a mandatory condition that the individual concerned gives his consent. The latest text is more limited in the type of disqualifications which would be exchanged but would still allow the United Kingdom to apply such a condition in the event that it was considered appropriate.

  Although we support the principle of exchanging information on convictions and related disqualifications with other Member States, we remain concerned about the intended purpose of the draft Decision. In our view, it has not yet been shown that there is sufficient commonality of practice in Member States to make the exchange of information on disqualifications a worthwhile exercise in the absence of a mutual recognition instrument. We believe that the most effective way forward would be in the context of the Programme of Measure for Mutual Recognition (Measures 20, 21 and 22) by which a list of disqualifications common to all Member States would be compiled and a full feasibility study carried out on the best method of exchanging the relevant information before preparing an instrument for mutual recognition.

18 November 2002

Letter from the Chairman to Bob Ainsworth

  Sub-Committee F (Social Affairs, Education and Home Affairs) considered this proposal again, in the light of your letter of 18 November, at a meeting on 4 December.

  The Committee shares your concerns regarding the lack of clarity as to the intended effect of the measure. We agree that it would be preferable to undertake a feasibility study of the best method of exchanging information prior to drawing up a legislative proposal in the field.

  We note that the text itself has been substantially improved, with the scope of the proposal being clarified. The inclusion of additional safeguards in Articles 3 and 4 is welcome, but their effect remains unclear. While Articles 3(3 bis) and 4(3 bis) seem to limit the use of exchanged information for the purpose of ensuring that the disqualification is observed, it is further added that "any other use" of the information will be governed by national data protection legislation. The implicit permission of "any other use" seems at odds with the very purpose of the safeguard.

  The text provides no mechanism for ensuring that, when a disqualification is "spent", this information is transmitted to the receiving Member State.

  You mention in the Explanatory Memorandum that Member States have been asked by the Presidency to provide information on local practice with regard to disqualifications. The Committee would be interested to see this information, and I would be grateful if you could arrange for it to be sent to us.

  We would welcome your comments on these points. In the meantime the Committee will retain document 12536/02 under scrutiny. Documents 9957/02 and 9957/02 ADD 1 have been cleared.

11 December 2002

Letter from Bob Ainsworth to the Chairman

  Thank you for your letter of 11 December setting out the further comments of Sub-Committee F on this Danish initiative. The Committee was particularly concerned about the adequacy of the safeguards on the use of information which Member States exchanged on disqualifications and the lack of any mechanism for notifying when disqualifications are "spent".

  I note the Committee's comments but I hope that you have received by now a copy of my letter of 11 December to Jimmy Hood explaining that the Danes have decided not to take the draft instrument forward in its present form. They have agreed to give further consideration to the approach proposed in the draft instrument in the light of the information which they have gathered from Member States about their existing disqualifications and to prepare a revised instrument in due course. We welcome this decision as well as indications from the Commission that disqualifications are likely to form part of its programme of work this year on mutual recognition.

  You asked if the Committee could be sent a copy of the information gathered by the Presidency on local practice with regard to disqualifications. I enclose a copy of the report produced by the Council General Secretariat [not printed]. You will note that information from some Member States is still awaited.

7 January 2003

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