5th REPORT: AFTER MADRID: THE EU'S RESPONSE
TO TERRORISM
Letter from Rt Hon Baroness Scotland of Asthal
QC, Minister of State, Home Office to the Chairman
I am writing on behalf of the Government in
response to recommendations made by the European Union Committee
in its report entitled "After Madrid: the EU's response to
terrorism". I enclose a full response to each of these with
this letter.
The Government appreciated the full and thorough
consideration given to the many complex issues involved in this
area and agreed with many of the conclusions the Committee drew.
We particularly welcomed the emphasis on the contribution of the
UK overall to the EU's counter-terrorism effort. While we believe
that national security is primarily the responsibility of each
Member State, the EU can and does add value to the broader response.
In a world where the relatively new phenomenon of international
terrorism is a grave threat to us all, raising standards, sharing
information and working together is in all our interest.
15 June 2005
Government Response
Committee's view: More effective sharing
of information between law enforcement agencies is crucial to
the counter-terrorism effort. (Rec 93)
We agree it is very important that law enforcement
agencies share information effectively, subject to data protection
requirements. This is an example of where EU activity can complement
the work of Member States.
Europol and Interpol are, for example, well
placed to make a difference as a resource for national law enforcement
authorities. However, security and intelligence information in
the possession of a law enforcement authority that belongs to
other national agencies must be protected by adequate safeguards.
Committee's view: There is a need to enhance
the exchange of information, and the principle of availability
offers a suitable framework for doing so. In developing this idea,
it will be essential to ensure that the exchange of information
is subject to suitable safeguards; and that it should incorporate
the idea contained in the principle of equivalent access that
information exchanged with other Member States should be subject
to the same restrictions as would apply nationally. (Rec 94)
The Government supports the Principle of Availability
and will develop options for implementing the principle of availability
during the UK Presidency.
Safeguards in the Hague Programme attached to
the Principle of Availability are very important. In any proposals
we will seek to ensure that the privacy of individuals is respected
and sensitive information sources and techniques are adequately
protected.
Committee's view: Building mutual trust and
confidence within and between [law enforcement] agencies, and
internationally, is a crucial and continuing challenge to be addressed
through positive leadership and effective training. (Rec 95)
We agree. Indeed, the more sensitive the information,
the more that trust and familiarity are required. Leadership and
training do play important roles in the nurturing of such trust.
Positive experiences of previous work, personal
contacts and understanding of each others' methods and capabilities
are equally important. We actively engage with the development
of standards and sharing of best practice in many fora, including
work with Europol, CEPOL and the European Police Chiefs Task Force.
Committee's view: A co-ordinated programme
of training, development and work to spread best practice needs
to be developed nationally and internationally. CEPOL, the European
Police College, has a valuable role to play here. (Rec 96)
Since 9/11 anti-terrorist work has been an urgent
and continuing priority for CEPOL. The work programme for 2005
includes courses and events designed to facilitate co-operation
between European police forces and to improve anti-terrorist activities.
In July 2005 Italy and France are organising
an Anti-Terrorism Training Course. In November 2005, the UK is
hosting a Joint Investigation Team Seminar after pioneering work
with the Netherlands. In 2006 the UK, Italy and Spain are organising
an Anti-Terrorism Training Course specifically relating to the
Madrid bombings.
EFFECTIVE DATABASES
Committee's view: Priority should be given
to ensuring that existing databases—and those under construction—are
effective rather than to developing new ones. (Rec 97)
We believe it would be better to improve existing
databases rather than create new ones. We need to exploit opportunities
in existing technical platforms such as the Schengen Information
System.
Development of new databases should only be
taken forward after a proper analysis of the costs and benefits.
Committee's view: It is particularly important
that databases of information used to combat terrorism are adequately
protected and that robust back-up and disaster recovery systems
are in place if they should fail. (Rec 98)
In the event of a disaster there is an increased
need for rapid information transfer but this must be balanced
against the security risk of information leaking or finding its
way into the wrong hands.
We should bear in mind the danger of relying
too heavily on electronic systems at times when power and communication
networks are themselves likely to be affected.
Committee's view: As new systems are developed,
the Commission should ensure that there is compatibility between
them so that, where it is justified, data can be compared and
if necessary exchanged. (Rec 99)
EU databases should be compatible. It is essential
that information in one database can be checked against information
in another database (so long as data protection considerations
are taken into account).
Committee's view: We support the development
of common standards and sharing of best practice across the EU
in the area of counter-terrorism. However, combating terrorism
requires a swift, flexible response, which is likely to be hampered
by the development of excessively bureaucratic centralised structures.
The role of the EU should be one of coordination, providing structures
to encourage Member States' co-operation, the dissemination of
best practice and encouraging the input of information to central
databases. There needs to be a clear division of responsibility
between the EU and the Member States. We do not favour an EU intelligence
policy; if that implies an EU policy separate from that of the
Member States, which would cause confusion and duplication. (Rec
100)
We agree that the EU has a role in setting a
framework for co-operation in police and judicial co-operation,
facilitating information sharing (Europol and EU Situation Centre),
and raising standards (through CT peer reviews).
But EU institutions are not themselves an operational
actor in counter-terrorism; real time operational work is for
the Member States. Here there is, and must remain, a clear distinction
between roles of EU institutions and those of Member States.
Committee's view: Subject to appropriate
safeguards, the retention of communications data may be justified
as a weapon in the fight against terrorism and other serious crime,
but its application to all crime would be disproportionate. (Rec
101)
We do not agree with this recommendation. We
welcome the endorsement that data retention is a useful tool in
fighting terrorism. But Her Majesty's Government believes that
the prevention and detection of crime generally is a public interest
for which data should be retained.
The provisions in UK law for relevant public
authorities' acquisition of communications data—under Part
I Chapter II of the Regulation of Investigatory Powers Act 2000—make
lawful requirements for disclosure of data for the purpose of
preventing and detecting crime that are necessary and proportionate
in line with respect for Convention rights.
Committee's view: Enhanced information exchange
in the EU, and the trend towards greater profiling of individuals,
necessitate the establishment of a common EU framework of data
protection for the Third Pillar. (Rec 102)
Committee's view: We agree with the Information
Commissioner and the Joint Supervisory Authorities that a tailor-made
data protection framework for the Third Pillar is necessary. The
standards to be adopted should be subject to full parliamentary
scrutiny. (Rec 103)
Committee's view: There is a strong case
for simplifying the existing supervision arrangements at EU level,
especially if a specific EU data protection framework for the
Third Pillar is established. If and when the EU Constitutional
Treaty comes into force, there would be advantage in entrusting
supervision for current Third Pillar matters to a central authority.
(Rec 104)
For three recommendations above:
The existing arrangements for supervision at
EU level will be considered in the forthcoming discussions on
the Framework Decision on data processing in the Third Pillar,
and the Government welcomes this. The Government recognises that
there is a case for unifying (which may not necessarily lead to
simplifying) the existing supervisory arrangements, but considers
that the case must be considered in the context of ongoing developments
in the third pillar.
Committee's view: It is important that national
data protection authorities have sufficient audit powers. We regret
that in the United Kingdom the Information Commissioner does not
have such powers and recommend that this is reviewed. (Rec 105)
Aspects of the UK Information Commissioner's
powers are currently under discussion and this includes the scope
of his office's audit powers.
Committee's view: The expertise of the Joint
Supervisory Authorities would be very valuable in developing EU
policy on data protection and those responsible should make use
of it. (Rec 106)
The Government agrees that the expertise of
the Joint Supervisory Authorities has an important part to play
in the current discussions on third pillar processing and looks
forward to their contributions.
Committee's view: The Counter-terrorism Co-ordinator
has a vital role in overseeing the work of the various EU groups
and committees within the Second and Third Pillars in order to
prevent overlap, avoid duplication and ensure that their aims
and objectives are delivered. He should have a clear job description
which identifies his primary role as internal co-ordination rather
than external representation. His work should be subject to parliamentary
scrutiny by national parliaments as well as by the European Parliament.
The Government should consult the Committee on how this can best
be achieved. (Rec 107)
The Government views the Counter-Terrorism Co-ordinator
as important in pulling together many and varied strands of EU
work that contributes to the fight against terrorism, including
justice and home affairs, transport security, civil protection,
and external relations.
The Co-ordinator's primary role should be in
bringing coherence to this agenda; in accelerating the agreement
and implementation of key EU-level measures which will add real
value to Member States' efforts.
It is important that CT Co-ordinator is democratically
accountable. His regular appearances before the European Parliament
are an important step in this direction.
Committee's view: There should be critical
reviews of Member States' performance in implementing agreed measures
and following best practice in relation to sharing information
and developing counter-terrorism structures. In the absence of
a central authority to undertake such reviews, they should take
the form of a rolling programme of peer reviews by groups of Member
States analogous to the peer reviews of Member States' capacity
to combat serious organised crime undertaken by Heads of Europol
national units. (Rec 108)
The Peer Evaluation of Member States CT arrangements
is a valuable tool in identifying examples of best practice.
The process is still underway with a final report
on the exercise due to be completed at the end of the UK Presidency.
No decisions have been made as to what happens
next, however the process is flexible. It is currently proposed
that accession states Romania and Bulgaria should have the opportunity
to undergo evaluation, which Her Majesty's Government supports.
Committee's view: In an area where clarity
of roles and responsibilities is vital, we found the structures
within the EU for combating terrorism complex and confusing. (Rec
109)
Yes, EU Counter-Terrorism structures are complex.
But this only reflects complexity of EU structures and Treaties
themselves, as well as the wide-ranging nature of counter-terrorism
policy.
COREPER has taken upon itself the role of co-ordinating
body. We will use our Presidency to show how this co-ordinating
role should be performed, with regular CT sessions to review progress
in specific areas and give strategic direction for further work.
In this COREPER will be assisted by the CT Co-ordinator.
Committee's view: The Counter-terrorism Co-ordinator,
with his overview of the whole system, has a crucial role to play
in ensuring that it works as effectively as possible. We believe
that he would be best placed to make recommendations for rationalising
and streamlining the present arrangements. (Rec 110)
The CT Co-ordinator does play an important role
in bringing strands together.
COREPER (the Committee of Permanent Representatives
made up of Ambassadors to the EU) agreed in May 2004 that it would
co-ordinate work on counter-terrorism, assisted by the IT Co-ordinator.
That arrangement will continue to function for the UK Presidency.
Committee's view: We welcome the proposal
to bring the European Police Chiefs Task Force within Council
structures. (Rec 111)
We welcomed the decision on the proposal to
bring the European Police Chiefs Task Force (EPCTF) within the
Council Structures that was taken by the Council on 19 November
2004.
Given the differing views from Member States,
the Council agreed a compromise. The EPCTF will meet within the
Council structures once per Presidency to discuss strategic issues.
Operationally focused EPCTF meetings will be held at Europol.
The UK welcomed the move to bring the EPCTF
closer to the work of both the Council and Europol. This should
improve coordination between strategic and operational priorities
in relation to EU policing and law enforcement.
Committee's view: It is unacceptable that
appointment to the crucially important post of Director of Europol
should have been left vacant for eight months as a result of individual
Member States insisting on their own national candidates. As the
Member States seem to have found it so difficult to reach a consensus
on the matter, the procedure for appointment should be changed
to ensure that the recent deadlock in making the appointment does
not recur. (Rec 112)
Whilst ideally it would have been desirable
to have been in a position to appoint a permanent Director sooner
it was vital that the process was both thorough and transparent.
This selection process has succeeded in producing
the best candidate for the job, Max-Peter Ratzel, who has the
full support of Member States. This is in Europol's and Member
States' long-term interests.
Committee's view: Despite the proliferation
of EU committees Member States retain primary responsibility or
counter-terrorism policy and operations, and we believe that they
should continue to do so. Protecting a nation's security is arguably
the primary responsibility of a government. Co-operating with
other Member States, and indeed with governments across the world,
is essential in countering terrorism but, if individual countries
see a need for a deeper level of cooperation with particular countries
with a common interest they should not be debarred from doing
so. Nor is there any reason why such co-operation should prejudice
work that it is necessary to undertake at EU level with the additional
legislative and institutional support that is available there,
provided that the Member States concerned follow appropriate procedures
to keep other Member States fully informed. (Rec 113)
Countering terrorism is a vital issue of national
security which, in the new EU Constitutional Treaty, is defined
as an essential state function to be respected by the Union. The
role of the EU is thus one of support. This is particularly important
as there is a wide variation in the capacities of Member States
to gather and analyse intelligence, and the terrorist threat is
not confined by national borders. The EU can only be as strong
as its weakest link.
The UK is at the forefront of supporting and
in influencing change. We operate with two main principles in
mind: that Council bodies exist to support Member States; and,
that there must be added value derived from their contribution.
These efforts in no-way prejudice our many other multilateral
and bilateral arrangements.
Committee's view: It is clear that many Member
States are not notifying relevant information to the Interpol
database of lost and stolen passports and probably not consulting
it on a regular basis. This is unacceptable. Every effort must
be made to ensure that the Interpol database is as comprehensive
as possible. (Rec 114)
Much progress has been made on this subject
in the last year. The UK has initiated a connection between UK
Passports Agency and regular downloads from our database are made
to Interpol.
At the same time the UK has led in rolling out
"I 24/7", the Interpol search engine, to Law Enforcement
Agencies (LEAs) beyond the NCB. Many UK agencies are now connected
directly to "I 24/7" and able to search directly on
the Interpol stolen passport database including Metropolitan Police,
Immigration Service (IS) Terminal 3 at Heathrow, IS E-Borders
Heathrow, Greater Manchester Police, Kent Police and eight other
Forces. Remaining UK LEAs will be connected in the current fiscal
year.
Committee's view: There is much to be gained
from closer co-operation between the EU, particularly Europol,
and Interpol. High priority should be given to enhancing this
co-operation and, subject to observing data protection requirements,
sharing data more extensively. (Rec 115)
At the last Interpol European Regional Conference
the newly appointed Director of Europol made a commitment to work
closely with the Secretary-General of Interpol on developing closer
working relations and cooperative measures.
The incoming UK Presidency chair of the Europol
Management Board has already highlighted the importance of Europol
external relations, particularly those with Interpol as a key
area for development during the UK tenure.
Committee's view: It is essential that the
EU has a common approach, with high standards, for the transfer
of data to third countries. (Rec 116)
We agree that a high level of uniformity of
practice and shared common standards across the EU are essential
for the transfer of data to third countries.
This is one of the areas the Commission is consulting
Member States on as it prepares to produce a draft legal instrument
on data protection in the third pillar.
Committees view: Any decision on arrangements
or transfer data to third countries should be subject to full
parliamentary scrutiny. (Rec 117)
It is likely that any new arrangements in the
area of transfer of third pillar data to third countries will
be part of a larger package on data processing in the third pillar
that will, if adopted, be subject to scrutiny.
Committee's view: We support efforts to attack
terrorists by targeting their finances, but the difficulties—the
small amounts of money involved, the fact that it may come from
legitimate sources, and the difficulty of penetrating informal
money transmission networks—are formidable. It would be
unrealistic to expect action of this kind to make a major contribution
to identifying terrorists and frustrating their operations. Consequently
we urge caution, on grounds of both effectiveness and proportionality,
in adopting measures that would give financial information units
direct access to financial databases. (Rec 118)
We agree that the challenges of tackling terrorist
financing are significant. But the Government believes that work
on terrorist financing can play a significant role in identifying
networks, disrupting their operations and assisting investigations.
Alone it will not prevent terrorism, but it can play a value part
in the wider effort. Measures against terrorist financing are
also important to ensure to maintain confidence in the financial
sector.
In taking action to counter the terrorist threat,
the Government carefully considers whether measures are proportionate
to the threat, their likely effectiveness and their cost—both
to the Government and the private sector. We have worked hard
to build a partnership in which Government, financial institutions
and law enforcement work together to exchange new ideas on new
trends in and possible responses to terrorist financing. We will
continue to do so.
Committee's view: We welcome the intention
contained in the Hague Programme to develop a long-term strategy
to address the factors which contribute to "radicalisation"
and recruitment for terrorist activities and recommend that this
work should include further studies on the intellectual linkages
with its ideological foundations. (Rec 119)
We agree that it is important to examine the
sociological and ideological issues around radicalisation and
recruitment to extremist organisations.
Such work will need to involve local communities,
including faith based communities, their leaders and young people.
We must work together towards the common aim of preventing terrorists
recruiting our vulnerable young people.
The UK is committed to producing a strategy
by the end of our 2005 Presidency to aid out understanding of
these issues and plan the path forward.
Letter from Rt Hon Baroness Scotland of
Asthal QC to the Chairman
You will remember that on Monday 20 June we
spent the afternoon debating counter-terrorism issues, in particular
those prompted by your committee's excellent report entitled "After
Madrid: the EU's response to terrorism". In my response I
said that the Government appreciated the full and thorough consideration
given to this important subject area. It was a mark of the quality
and substance of the report that it generated such a high level
of discussion and standard of debate.
However, I regret that there was not sufficient
time to cover all the issues raised in detail. I am now writing
to give you a fuller response to these questions, which you will
find in the Annex to this letter.
Since our debate, on 7 July and 21 July, we
have seen more terrible evidence of the indiscriminate and ruthless
nature of international terrorism. These events have underlined
once again the vital importance of doing everything that we can,
both bilaterally and multilaterally, to combat this very real
threat. Counter-terrorism was a priority for our Presidency of
the EU before the London attacks—it is now even more so.
The Emergency JHA Council of 13 July reflected the sense of purpose
shared by all Member States in reinforcing and accelerating our
response. I understand that you have received a copy of the Council's
Declaration with an Explanatory Memorandum.
19 August 2005
Annex
Lord Hannay of Chiswick asked how the incoming
British EU Presidency intended to carry matters forward over the
next six months following the decisions of the European Council.
Even before the events of 7 July, we intended
counter-terrorism to be an important part of our EU Presidency.
The Emergency JHA Council on 13 July has put added momentum behind
implementing existing commitments. We will use Coreper to ensure
this happens, and are also seeking to raise understanding of the
strategic issues in Brussels through a series of thematic and
focused sessions. Indeed, a substantive and useful discussion
on operational cooperation between security services took place
in Coreper on 21 July, highlighting areas where the EU can add
value. We also hope to conclude our Presidency by setting out
new focus and priorities to the EU's future CT work by introducing
an over-arching strategy, together with a revised Action Plan.
At the JHA Informal Council in Newcastle on 7 September, Ministers
will have the opportunity to discuss these proposals. Mr De Vries
and the Commission will also be invited to speak.
Lord Hannay also outlined the five elements
of the UN comprehensive strategy against terrorism, and asked
how the UK intends to deploy the EUs considerable influence in
the period between now and the September UN summit.
The EU considers terrorism to be a high priority
for the Summit, and strongly supports the Secretary-General in
his efforts to ensure the most effective possible UN response
to terrorism. Pursuing the Secretary-General's strategy will be
a long-term effort in which the EU is already engaged, notably
taking part in several of the Counter-Terrorism Executive Directorate's
early country visits. The Summit can provide valuable momentum
to this. The EU has called for strong endorsement in the Summit
text, and we will ensure that this is pursued during our Presidency.
We are also working for Summit language clearly
condemning terrorism, and for that to be followed up by agreement
on the draft Comprehensive Convention. The former is part of ongoing
negotiations here, in common with many other aspects of the Summit
agenda, the EU is arguing with one voice. As the Summit negotiations
proceed, we will look to see how we can use this as a launch pad
for a successful conclusion of the draft Comprehensive Convention.
We will work with partners to develop a plan for extensive EU
outreach over the summer on the key aspects of the summit, including
terrorism.
Lord Dubs stated that there is a need to
understand better what motivates a terrorist.
We agree that it is important to work together
with our European partners, our allies and our domestic communities
on this difficult issue. We are undertaking specific work domestically,
bilaterally and multilaterally, to understand better the problems
and possible answers. The protection of our young people from
the threat of recruitment by violent extremists is key to our
strategy to reduce the threat from international terrorism. In
the EU, the UK Presidency is building on the work of previous
Presidencies to produce a draft strategy to tackle radicalisation
and recruitment. It will be discussed further, including at a
EuroMed summit in September, with a view to agreement at the December
summit.
Lord McNally asked whether there is sufficient
EU-US cooperation on terrorism.
The framework for EU-US co-operation on terrorism
was set out in the "Dromoland Declaration", during the
Irish Presidency of the EU. Operational exchanges will rarely
be suitable for such multilateral fora, but there is important
work to be done in ensuring our approaches are complementary and
in agreeing common standards, for example with the use of biometrics
in identity documents. This co-operation is already well developed,
but should continue to develop further. The UK Presidency will
seek to use the Troika to full effect and bring movement on this—on
11 and 12 July EU and US delegations met in London to discuss
JHA matters, which included some substantive sessions on terrorism.
Lord McNally also asked what priority the
Hague Programme will be given during our Presidency.
The UK is committed to delivering the Hague
Programme during its Presidency of the EU, and is already making
good progress on important issues such as the European Evidence
Warrant and information exchange, both of which were given added
impetus in the July 123 Declaration.
We will continue to support subsequent Austrian
and Finnish Presidencies in ensuring that this comprehensive framework
for EU action succeeds in bringing real practical benefits to
EU citizens.
Baroness Rawlings noted that many states
do not notify Interpol of lost or stolen passports, and wished
to know if the Government plans to remedy this.
The EU adopted the Common position on Exchanging
Data with Interpol on 24 January 2005. This commits Member States
to setting up the necessary infrastructures for sharing data on
lost and stolen passports with Interpol by December 2005. It also
states that the Commission shall review the extent to which Member
States are complying with the Common Position by December 2005,
and take the appropriate action.
Furthermore, as part of the work on development
of SIS II, the Commission will look at the feasibility of establishing
a direct technical link between Interpol and SIS II.
Lord Corbett hoped that there will be careful
and regular reviews of the organisations listed as "terrorist"
in our legislation.
The list of Terrorist Organisations in Schedule
2 is kept under regular review. Decisions to add groups to or
remove them from the list are only taken after the most careful
scrutiny of the available evidence and intelligence about a group's
activities.
Baroness Gibson of Market Rasen and Baroness
Rawlings asked about EU data protection and whether there needs
to be a framework for the third pillar.
We are of the opinion that there should be a
framework, and as such we were pleased that, in the Declaration
of July 13, the Commission agreed to bring forward its proposals
for a framework decision by October 2005. Information exchange
should take place within a common set of rules and standards.
We welcome any extra certainty the Commission's proposals could
bring.
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