POLICE CO-OPERATION BETWEEN MEMBER STATES
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
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