Select Committee on European Union Fortieth Report


Letter from the Chairman to Paul Goggins MP, Parliamentary Under-Secretary of State, Home Office

  Sub-Committee F (Home Affairs) of the House of Lords Select Committee on the European Union considered this re-draft of the proposal for a Council Decision on the improvement of police cooperation between Member States at its meeting on 1 March. This proposal supersedes document 11407/05, which was being kept under scrutiny by the Committee and which it is now content to clear.

  The Committee is grateful for your comprehensive Explanatory Memorandum and for the annexes which set out the original texts alongside the amendments proposed in Council negotiations. We noted that most of the amendments were minor and unobjectionable. The issue of major concern to us is that there is no longer a requirement for dual criminality in the re-drafted provisions of the Schengen Convention on cross-border surveillance and hot pursuit (Articles 40 and 41). We understand from the comments you have provided that the Government, along with other delegations, wants to ensure dual criminality, and we welcome this. We would be grateful for your assurance that you will press for this when negotiations on this proposal resume in Brussels.

  As you will be aware, the Committee has previously expressed concerns over the extension to non-suspects of cross-border surveillance for which prior consent has not been requested. Such an extension of police powers might have implications for privacy rights for which the data protection framework envisaged by Article 7 of this proposal might not be adequate. We consider that the views of the Information Commissioner on this point would be particularly helpful. Perhaps you could let us know whether his views on this or earlier drafts of the proposal have been sought; if so, we would be grateful to receive them.

  We also noted that you are not convinced that provisions on challenging and apprehending the person are appropriate in an Article dealing with surveillance. We share this view and would welcome information on whether you will press for rejection of the relevant amendment.

  The Committee has decided to keep this document under scrutiny, pending receipt of the information requested and further progress reports on negotiations.

1 March 2006

Letter from Paul Goggins MP to the Chairman

  Thank you for your letter of 1 March. I would like to address the points you have raised.

  The Government shares your concern over the possibility that the current draft may allow cross-border surveillance or hot-pursuit to take place in the absence of dual criminality. We are flexible as to how such a condition is best achieved, but will continue to press for the principle that both types of operation should only take place in response to conduct which constitutes a criminal offence in all the Member States involved.

  As I have explained in the past, I am less concerned about the extension of cross-border surveillance to non-suspects in urgent cases. Domestically, the police have the power to keep non-suspects under surveillance under similar circumstances and the Schengen Convention as it is at present allows cross-border surveillance to take place when pre-arranged. The draft Decision does not therefore represent a significant departure from current practice or principle, especially when it is considered that the rules governing urgent cross-border surveillance are appropriately tight.

  I do however understand your concerns over the implications this change may have for privacy rights. The Government has not, to date, sought the opinion of the Information Commissioner on this point. I will however be sending a letter to the Commissioner shortly, copied to you, requesting his views.

  The Government maintains its view that the provisions on challenging and apprehending a person under surveillance are not consistent with the purpose of Article 40 and potentially unhelpful. We will continue to keep this point under close review as negotiations move forward.

  I will of course keep you informed as negotiations on this Decision progress.

27 March 2006

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