Memorandum by the Home Office
THE INCORPORATION
OF ELEMENTS
OF THE
PRÜM CONVENTION
INTO EU LAW—DRAFT
COUNCIL DECISION
ON THE
STEPPING-UP
OF CROSS-BORDER
COOPERATION, PARTICULARLY
IN COMBATING
TERRORISM AND
CROSS BORDER
CRIME
1. The implications of a small number of
Member States fixing the policy on matters of importance for all
the Member States (as in the case of Schengen)
The Government wants an EU that adds value to
the efforts of Member States and which provides the opportunities
and tools for better practical co-operation. If a sensible proposal
is put forward by a Member State or a group of Member States that
appears to meet these criteria then the Government will react
positively as long as it is consistent with national interest
and democratic accountability.
Under the third Pillar of the EU individual
or groups of Member States regularly exercise their right of initiative.
Indeed, the UK has co-sponsored a number of third pillar proposals
and is also a member of the informal G6 group of Member States,
which may from time to time put proposals to the rest of the Council.
Adoption of a proposal requires unanimity, which
means that policy cannot be fixed by a small group of Member States.
To this extent the incorporation of elements of the Prüm
Convention into EU does not differ substantively from normal process.
That process also provides democratic accountability through the
normal third pillar avenues ie the domestic scrutiny process and
consultation with the European Parliament.
In this particular case the significant potential
benefits of the Council Decision incorporating parts of Prüm,
improving public safety by sharing information for police purposes
which can have an important role for the investigation of cross
border crime including terrorism, have convinced the Government
that subject to certain conditions being met we can support the
proposal.
2. The relationship of the Convention with
EU initiatives in the same field which would be binding on all
Member States, in particular the negotiations on the draft Framework
Decision on the exchange of information under the principle of
availability
The draft Council Decision provides a mechanism
for the exchange of information between police and law enforcement
bodies, consistent with the principle of availability. The Government
supports the application of the principle of availability and
therefore welcomes a measure that provides a concrete method for
its implementation in relation to three specific types of data.
The Presidency has indicated that whilst this Council Decision
is under negotiation the separate Commission proposal for a Framework
Decision on the exchange of information under the principle of
availability will be held in abeyance.
3. Whether the provisions of the Convention
are justified by the need to combat terrorism and cross-border
crime
Terrorists and other criminals do not respect
borders; it is therefore important that police can track individuals
including foreign nationals who have committed crimes in the UK,
across borders, through sharing information with law enforcement
agencies of other EU member states. Police cooperation through
measures such as cross border information sharing can play a vital
role in prevention, investigation and prosecution of serious crimes.
DNA, Fingerprints and Vehicle registration data
is already shared between the police forces of EU member states,
including the UK. The arrangements in the draft Council Decision
will speed up and improve the quality and quantity of information
exchanged, which has the potential to improve the ability of UK
law enforcement officials to identify and bring to justice, terrorists
and criminals.
4. The legal basis of the two draft third
pillar Decisions seeking to incorporate the provisions of the
Convention into EU law, which were considered by the Article 36
Committee on 25-26 January 2007
The Article 36 Committee on the 25-26 January
discussed legal drafts for a first pillar and a third pillar instrument
on Prüm. Subsequently it was agreed that the elements of
the Prüm Convention to be brought into EU law would be primarily
the third pillar information sharing elements. Consequently, the
first pillar draft Council Decision was not resubmitted to the
February meeting of the Article 36 Committee and will not be sent
to the European Parliament. The legal basis for the third pillar
draft Council Decision is Article 30(1)(a) and (b), Article 31(1)(a),
Article 32 and Article 34(2)(c) of the Treaty on European Union
(TEU).
5. The relationship between the data protection
provisions of the Convention (and hence the implementing Decision)
and those of the draft Data Protection Framework Decision (DPFD)
The DPFD will set overarching minimum standards
of data protection across the whole of the third pillar and so
will have an impact upon other third pillar measures, including
the draft Council Decision on elements of Prüm, it is not
possible to comment definitively on the relationship between the
data protection provisions in that draft Council Decision and
those in the DPFD at present because both texts are still under
negotiation. However, the DPFD is designed for general application
so its application will be superseded by any specific data protection
provisions in other third pillar instruments: as a consequence,
the specific data protection provisions in the draft Council Decision
on elements of Prüm will apply to data that is processed
under that Council Decision.
The data protection provisions in the draft
Council Decision differ from those in the DPFD because the two
instruments, and their data protection provisions, aim to achieve
different things. The Council Decision is designed to intensify
cross border police cooperation, especially in the fight against
terrorism and cross border crime. The DPFD, on the other hand,
aims to set a minimum standard of data protection to apply to
all data processing in the third pillar. The data protection provisions
in the DPFD are much more general than those in the Council Decision
on elements of Prüm because they are intended to provide
for all types of processing relating to all types of third pillar
data; by contrast, Prüm would only be relevant to specific
forms of processing under certain circumstances. There would be
no conflict between the provisions in the DPFD and those in the
Council Decision: the Council Decision would simply supplement
the data protection safeguards set out in the DPFD, so where stricter,
we would expect the Council Decision to apply over and above the
DPFD.
6. Whether the provisions allowing automated
searching of DNA and fingerprint records are matched by adequate
safeguards
The Government believes that the data protection
safeguards in the draft Council Decision are robust and largely
consistent with UK legislation. For example, the bodies processing
data obtained through the Council Decision must ensure that the
data is effectively protected against unauthorised access, unauthorised
disclosure, accidental loss or alteration etc. There are also
provisions relating to how the data may be used and for how long
the data may be kept.
7. The part, if any, to be played by the
European Parliament and national Parliaments
The draft Council Decision will be subject to
consultation with the European Parliament and scrutiny by national
Parliaments, like all other legislative proposals submitted under
Title VI of the TEU.
8. Why the United Kingdom is only now considering
acceding to the Convention (or negotiating on the draft Decision)
The Government seriously considered signing
up to the full Prüm Convention as the information sharing
aspects of the Convention bring real value to the fight against
terrorism and cross border crime. There were however aspects of
the Prüm Convention such as the provisions on air marshals,
a measure on action to be taken in urgent situations and those
on immigration that prevented UK accession to the Convention.
The subsequent discussion of the draft Council Decision, in particular
at the February meeting of the JHA Council, has lead to these
provisions being removed, although the Council is currently investigating
a solution that would mean that only those Member States who chose
to apply it need be bound by the provision on measure in the event
of immediate danger (Article 18 of the Council Decision). Current
suggestions include the Article being dependent on the negotiation
of bi—lateral arrangements. The draft Council Decision subsequently
differs from the original Prüm Convention, and therefore
the Government has reassessed its position.
28 February 2007
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