Examination of Witnesses (Questions 82-99)
Mr Jonathan Faull and Ms Cecilia Verkleij
22 MARCH 2007
Q82 Chairman: Director General, if
we can now move to Prüm, please. This is part of our inquiry
which I think and hope we are likely to conclude before our inquiry
into PNR. In a sense, this is rather top of our agenda at the
moment. Again, thank you and your colleagues very much for agreeing
to come and give evidence to us. Perhaps if I could open this
by saying it has been suggested that for seven Member States to
conclude a Treaty in an area of EU competence was a breach of
the requirement to abstain from action which could jeopardise
the attainment of the EC Treaty objectives, Article 10. Would
you agree?
Mr Faull: As early as July 2004 we said very
clearly that the co-operation, which is now enshrined in the Prüm
Treaty, should be brought into the institutional framework of
the European Union. We talked to the Prüm negotiators about
ways in which the ideas that they were working on could be developed
to improve law enforcement co-operation with the then 25, now
27, Member States. Therefore, we welcome the initiative now underway
under the German Presidency of the Council to bring the Prüm
Treaty into the institution and legal system of the European Union.
It is an important step forward to improve the exchange of information
to which the Union as a whole is committed under The Hague Programme,
and we have said that we are willing to help the process of integration
of the Prüm system into the EU in any way we can.
Q83 Lord Teverson: One of
the things we have come up with, particularly with the European
Data Protection Supervisor but also in other areas, is around
this area of the EU Treaty enhanced co-operation procedure and
should that not have been used? In fact, in certain areas it has
been suggested that it is unlawful that that route was not used?
Perhaps you could comment on that for us?
Mr Faull: As I said, we regret that this was
not done in an EU framework from the very beginning and it could
have been done in an EU framework, in the way you suggest by using
the enhanced co-operation provisions of the Treaty. In parallel,
of course, we have been working as the whole of the EU under The
Hague Programme on intensification of cross-border co-operation
of police and customs authorities, and we have a commitment to
implement the principle of availability by 1 January 2008. Prüm
will go some way, not the whole way, to doing that. It was developed
outside the EU framework, we are pleased that it is coming back
in and we regret that it was not done in that way from the very
beginning.
Q84 Earl of Caithness: Director
General, I think you have answered what my question was going
to be but I will ask it nevertheless. Given that the Commission
has the sole right of initiating legislation in the EU, what involvement
did you have in the Prüm Treaty?
Mr Faull: Unfortunately we do not have the sole
right of initiating legislation yet in the European Union framework,
the third pillar; we do in the First European Community pillar,
but in the third Justice and Home Affairs pillar the Member States
have a parallel right of initiative. Indeed, even under the provisions
of the draft Constitutional Treaty some right of initiative for
the Member States would be presented. Our right of initiative
is not an exclusive one, it exists, but it is not an exclusive
one in respect of the third pillar. We were not involved in the
negotiations of the Prüm Treaty, which was negotiated as
an international treaty by the states concerned, although some
of those states made sure that we were kept informed.
Q85 Chairman: Had you seen
a draft of any sort from the Austrians before this started?
Mr Faull: I cannot remember from whom, although
that can be checked, but we did see drafts from time to time.
Q86 Lord Teverson: In terms
of how it all started, was it sort of six Member States skulking
off into a corner and deciding to do it and keeping away from
you or was it done completely openly? How did that arise, in very
broad terms?
Mr Faull: In very broad terms, it started as
Germany plus neighbours.
Q87 Chairman: I thought it
started with Austria, did it not?
Mr Faull: It was Germany with Austria. Who first
had the idea? We think it was Germany.
Ms Verkleij: I think it was Germany.
Mr Faull: Which is why it ended up getting signed
in Prüm, no doubt, which is a small German town not very
far from here. It was Germany plus neighbours, no doubt born from
an occupational need, get our police forces working together,
exchange information between our databases because of a very manifest
common interest in enforcing the law together even across borders.
You will have to ask them this question but I may imagine that
they thought it would be easier to make rapid progress with like-minded
neighbours than through the EU mechanisms involving 25 countries,
some of which were quite a long way away. They may be surprised
with the enthusiasm that this has generated in countries much
further away than they thought. Of course there is a domino effect
because everybody is somebody else's neighbour, even our islands
in a way, we have neighbours too. I would imagine that people,
having got used to the idea first of all because of the general
discussions in the EU context, seeing something was beginning
to work and had engendered quite some enthusiasm between Germany
and its neighbours, Member State after Member State after Member
State started signing on. I think that is the way it worked in
practice, and enhanced co-operation, much heralded, much talked
about, has never been used.
Q88 Lord Teverson: That is
an interesting fact.
Mr Faull: And people are very reluctant to use
it, for reasons which frankly I do not always understand.
Q89 Baroness D'Souza: What
kinds of consultations have there been about proposals for incorporating
the future provisions into EU law?
Mr Faull: After the Treaty was signed a joint
working group at senior level and six technical working groups
were created, and from December 2005 the Commission regularly
attended meetings of the joint working group, the senior level
group. Therefore, we established close contacts with the people
responsible for the Treaty in the Member States and, in particular,
with the German Presidency now, and in the latter months of last
year when preparing for the German Presidency, we have been talking
to them in great detail about how to bring it into the EU framework?
Q90 Lord Foulkes of Cumnock:
This is a very significant initiative by a number of European
Union states in your area of responsibility. Would you not have
expected it to be accompanied by an explanatory memorandum and
an impact assessment?
Mr Faull: One of the strange features of the
EU's affairs is when the Commission makes a proposal it is always
accompanied by a very detailed and rigorous impact assessment.
There is no requirement on Member States when making proposals
to carry out such impact assessments and in practice they do not.
They may for their own domestic purposes, no doubt, consider in
accordance with their own procedures the impact of a particular
European initiative in which they are interested, but it does
not happen at European level. The Commission would very much welcome
it if it did.
Q91 Lord Foulkes of Cumnock:
That certainly is an anomaly. Has that happened on a number of
other joint initiatives?
Mr Faull: As far as I know, every occasion on
which a Member State or a group of Member States has made a legislative
initiative we have not had an impact assessment.
Q92 Chairman: Or any explanatory
memorandum?
Mr Faull: There may be some papers explaining
the purpose. They do not have to follow exactly the same procedural
arrangements or format of documents that we do, so there may be
some explanatory material but there is no impact assessment as
such.
Q93 Earl of Listowel: The
Presidency has explained that data exchanges with Austria have
already resulted in a number of serious crimes being solved. How
significant would you say the results are so far?
Mr Faull: Considerable. I do not have numbers
here and I am not sure they are in the public domain, but as between
Germany and Austria, the exchanges of DNA data have been numerous
and very successful. There have been 300 cases solved by exchanges
of DNA. Of course, Germany and Austria are neighbours, sharing
a language and it is easy to get from one country to another,
so of course it is a good test case. It will not be replicated
in exactly the same way but the Germans and Austrians are very
enthusiastic about it.
Q94 Lord Teverson: Is that
likely to be a once-off? I think it was described when we took
evidence somewhere else, that at the very front end of this process
you get a—
Mr Faull: You solve a lot of old cases.
Q95 Lord Teverson: Yes.
Mr Faull: There could be that effect. You may
not remain in the 300 forever—I am not sure what period
that is over—because you can sort out a backlog, but everybody
has a backlog.
Q96 Chairman: But it is not
an average figure?
Mr Faull: No, it is not necessarily an average
figure, there may be a front-loading effect.
Q97 Lord Marlesford: Is the
connection and categorisation of data sufficiently harmonised
across all 27 EU Members for the principle of availability to
be implemented in a Prüm system?
Mr Faull: The Hague Programme, under which we
are operating, highlights six categories of data which we are
to bring into the principle of availability, that is to say, for
which we should arrange access from one country to another by
1 January 2008. Three of those six are covered in Prüm. Is
that enough? No, we want to do more but, I have to say, Prüm
is so far by far the most successful implementation of this principle
of availability. It will not be easy to meet the deadline of 1
January 2008, which is only seven or eight months away, for these
other categories. Meanwhile, we are discussing a related Framework
Decision in the Council on data protection, which is an important
part of this balancing which we were talking about earlier, and
all of that is part of a wider political discussion among ministers
and in the European Parliament about what sort of information
exchange should be carried out. Harmonisation of categories and
definitions is important in this area because you need to identify
precisely, and perhaps harmonisation is not even the right word,
you need to have a definition of DNA. That is probably a scientific
matter but you need to have precise definitions of the information
which is exchanged under a particular legal instrument and the
Prüm Convention does that, and any other legislation produced
by the European Union would have to contain some agreed definitions
so that the various authorities in our Member States would understand
what they are sharing with each other.
Chairman: I think we shall want to revert
to the relationship with the Data Protection Framework Decision
later on and, as you possibly know, we are expecting to hear evidence
after this meeting from Mr Delgado, the Data Protection Supervisor.
Q98 Lord Teverson: This question
is around exchanging DNA, fingerprint data and equipment and is
everybody equipped sufficiently. To be honest, the question I
would like to ask beyond that more is in terms of DNA held by
future signatories of the EU version of Prüm. It is well
known that the UK has a larger DNA database than the rest of the
world put together and includes a lot of people who have committed
no offence or have just been arrested or even questioned. I also
want to ask can the availability of DNA be restricted by Member
States to certain categories because presumably different Member
States have different reasons for collecting DNA or different
thresholds at which they keep people's DNA? Is this an issue in
the negotiations in that maybe in Austria it is only murderers
and paedophiles, whereas in the UK it could be anybody who has
walked into a police station or been breathalysed, I am not saying
that is the case? Is there not an asymmetrical problem or issue?
Mr Faull: Yes, of course we expect Member States
to comply with their obligations. They will have a certain period
of time in which to gear up to do so, but once they have undertaken
to exchange DNA data they have to have the equipment in place
enabling them to do it properly. On the question of the disparity
between volumes of DNA available and reasons for collecting it,
that may well give rise to disparities in the way exchanges take
place because you cannot provide something which you do not have,
of course. The initiative for the sharing, for the exchange, will
come from a country which has an interest in checking someone's
DNA—to stay with DNA—and that country will address
a request to others. If those others just do not have it, for
whatever reason, that person has not crossed their particular
radar screen, which can be different, then I think that is the
end of the story. We are not obliging Member States to build up
DNA databases of innocent people just in case one day somebody
else in another Member State might be interested in knowing about
them.
Q99 Lord Teverson: What I
was trying to understand there is, is a Member State allowed to
restrict the amount which is available or, through signing up
to the Directive, does it therefore have to share all its DNA?
There could be some question in another Member State if someone
has a DNA record then prima facie that might seem there is something
suspicious about them whereas there might be nothing suspicious
about them.
Mr Faull: No, I think that would have to be
made clear. The fact that DNA is available in another place does
not mean that other place has convicted the person of a crime.
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