Examination of Witnesses (Questions 100-118)
Mr Jonathan Faull and Ms Cecilia Verkleij
22 MARCH 2007
Q100 Chairman: I think I remember
a minister telling the House of Lords last week that DNA information
is never destroyed.
Mr Faull: In the United Kingdom?
Q101 Chairman: Yes, it is
kept forever.
Mr Faull: Article 7: collection of cellular
material and supply of DNA profiles.
Q102 Baroness D'Souza: It
is restricted to criminal convictions?
Mr Faull: No. The minimum requirement is that
the contracting party undertake to open and keep national DNA
analysis files for an investigation of criminal offences. They
can do more if they want. If a request is on a specific basis
from another Member State, of course, the requesting country will
say, "I am investigating Ms X and I want information on the
following basis". If you happen to have it in the UK, just
because you cast your net more widely than others, you have it.
That is my understanding of the system, which may mean you give
more than you get, unless others join you in casting the DNA net
very widely. Is that right?
Ms Verkleij: I think so.
Mr Faull: Subject to verification, I believe
that to be the position.
Q103 Earl of Caithness: Given
the fact that there is no explanatory memorandum, have you received
any estimates of the cost of implementing these provisions, and
what resources will be needed to exchange DNA and fingerprints?
Mr Faull: No.
Q104 Earl of Caithness: Is
that not a huge lacuna?
Mr Faull: I do not know. If the data does not
exist it might be, but I do not know whether the data exists or
does not exist. We have not been informed of cost estimates by
the Member States. I would imagine that Member States, in their
thinking about Prüm, their negotiating of the Prüm Treaty,
will have thought about that and for all sorts of internal purposes
may have made such estimates but we have not seen them.
Chairman: I think it was Mark Twain who
commented on the absence of statistics on undiscovered burglaries
in New York!
Q105 Baroness D'Souza: Could
you tell us something about the Portuguese initiative for dealing
with hot pursuit?
Mr Faull: There is a new provision suggested
by Portugal, it would be a new Article 18, obliging Member States
with a common border to declare that they would apply the provisions
of Article 18, usually called hot pursuit. I am not quite sure
that it is exactly the same as hot pursuit in the way that is
defined in international law. It would be up to pairs of Member
States to agree with each other that they would do this and then
make a declaration that they would implement it.
Q106 Baroness D'Souza: That
would be an open agreement, a standing agreement, between neighbouring
states?
Mr Faull: That is the Portuguese idea. There
is controversy around this hot pursuit idea of Article 18 and
people are looking for solutions which would enable the Prüm
Treaty to be brought into the Treaty. This is one of the last
issues needing resolution and the Portuguese idea, which is a
very interesting one, is one way to deal with it. Another solution
under examination would require Member States with a common border
to conclude separate bilateral agreements about measures they
would take in the event of an immediate danger in their border
regions. In any event, there would have to be agreement on responsibility,
powers and liability for the hot pursuers on the other side of
the border. One way or another, I know this is controversial in
some countries, we need to find a solution to this pressing issue
because it is preventing the incorporation of the Prüm Treaty
into the EU system. We are prepared to look at any sensible solution
for doing that.
Q107 Chairman: Going back
to the question of Commission involvement, were you represented
at the Wiesbaden meeting on 9 March?
Mr Faull: No, we were not.
Q108 Lord Foulkes of Cumnock:
We were discussing earlier the position of Prüm in relation
to the Framework Decision on the exchange of information under
the principle of availability and we are getting different views
about whether Prüm supersedes it or it overlaps and so on.
I must confess, I am a little confused. Could you help to try
and dispel that confusion? Does Prüm supersede it or do they
run in parallel or how do they relate?
Mr Faull: The Prüm Treaty and the initiative
to bring it, or at least the non-Schengen third pillar part of
it, into the EU framework is an important, albeit incomplete,
implementation of the principle of availability and therefore
more needs to be done. The Justice and Home Affairs Council on
14 April 2005 considered how the principle of availability should
be implemented and in doing that confirmed that an appropriate
system of data protection needed to be put in place. We believe
that the right way to do that is to adopt the Framework Decision
on data protection, and we are confident that is possible under
the German Presidency, which attaches great importance to that
matter and is making considerable efforts with our support to
do that. I hope we will have, alongside the Prüm Treaty having
become part of the law of the European Union, a dedicated data
protection system for the third pillar as well.
Q109 Chairman: That is a very
interesting reply because I had got the impression that from the
Presidency's point of view Prüm had made the Framework Decision
unnecessary. That is quite wrong, is it?
Ms Verkleij: No, not at all.
Chairman: Thank you for that clarification.
Q110 Earl of Listowel: Director
General, the proposed Framework Decision on the exchange of information
under the principle of availability covers matters such as ballistics
and telecommunications data. Can you explain, please, why these
are not included in the Prüm Treaty? Would it not be better
if they were included in the Treaty?
Mr Faull: Yes, it would be better but they were
not. We did not negotiate the Prüm Treaty and I do not know
why it was thought that these items, the ones you mentioned, for
example, were not to be included. Are they more difficult to deal
with? Are they considered to be less necessary? Frankly, we do
not know. We believe that the implementation of the availability
principle for more categories than the three covered by Prüm
remains a priority of the European Union, and we hope that progress
will be made to extend the availability principle to other categories
at a later stage.
Q111 Chairman: When Prüm
was being negotiated, do you know to what extent there was any
discussion of its relationship with the Framework Decision?
Mr Faull: I do not know offhand. From the record,
which is certainly not the full record that we have seen, my impression
is probably not, but I do not know.
Lord Marlesford: Can we move on to Interpol.
Chairman: Do you mean Europol?
Lord Marlesford: Sorry, that is right.
Neither the Prüm Treaty nor the Prüm Decision involves
a role for Europol and yet the objective of Member States is supposed
to extend the availability of information to Europol. How do you
see that developing?
Q112 Chairman: I should say,
having interrupted Lord Marlesford, please, by all means answer
the question about Interpol if you want.
Mr Faull: Interpol has an important role to
play as well. We very much believe that the role of Europol in
this respect needs to be considered carefully. That has not been
done in Prüm but I do not think the issue of the role of
Europol has been settled or has gone away in any way. As soon
as possible the Member States and the Council must agree precisely
what role they want Europol to play in this respect. In the Commission's
proposal for a Framework Decision on the principle of availability
we made specific provision for Europol to play a part in a network
of implementation of the principle of availability, but the Prüm
contracting parties did not do so.
Q113 Lord Teverson: What is
the relationship between Prüm and the Framework Decision
of 18 December 2006 on simplifying the exchange of information
and intelligence between law enforcement authorities of the Member
States? Does the Prüm Decision not make this Framework Decision
redundant?
Mr Faull: The December 2006 Framework Decision
on simplifying the exchange of information and intelligence between
law enforcement authorities of the Member States, based on a Swedish
initiative lodged in 2004, lays down rules whereby Member States'
law enforcement authorities may exchange information and intelligence
swiftly and effectively for the purpose of conducting criminal
investigations or police intelligence gathering procedures. It
is much broader than the exchange of data provided for in the
Prüm Treaty and does not provide for the infrastructure for
the technical exchange of information which Prüm sets up.
The Framework Decision replaces the information exchange system
under Article 39 of the Schengen Implementing Convention, which
has been in place since 1995. It is unclear at this stage, just
because it is too early to carry out an assessment, how it will
improve exchanges of information and whether the new and untested
administrative procedure which Member States will introduce to
implement the 2006 Framework Decision will lead to better exchanges
of information. The Prüm contracting parties have said that
their assumption is that the Framework Decision will have a positive
impact on the time period needed to process requests for mutual
legal assistance in order to get further personal data following
a hit for DNA and fingerprints under Prüm. There is a sense
that they are complementary, that the 2006 Framework Decision
will help what happens after the Prüm system has revealed
a first level of information, but it is still too early to tell
precisely how it will work because each Member State has to set
up a system at home.
Q114 Lord Foulkes of Cumnock:
I confessed earlier I was confused and my Lord Chairman, you are
much more experienced than I am and so is Robin and we have all
been looking at it, yet there does seem to be some need to try
and produce something which explains how the various Framework
Decisions in Prüm interrelate. Are there any proposals to
produce a guide for those people, particularly for the people
who are going to have to work it on the ground?
Mr Faull: Yes, very much so. Yes, there is and
we will, if it is agreed that it should be we who do it, by the
way, but I do agree that some practical guidance for the people
at the sharp end of this, with all these bewildering bits of paper
with different names, is very necessary. No doubt, each country
will be producing this in its interior ministry, its home offices,
and so on for its police forces and other law enforcement bodies.
We are very willing to help and we can bring people together and
exchange good practices and perhaps root out bad practices and,
of course, produce information in all languages for everybody.
I hope that is done. We will play our part in that and we should
do it quickly. You did not quite ask the question but a further
related important issue is whether we should codify some of these
texts because this is still a relatively new area of European
law. It is growing and there are lots of different bits of paper
out there now, and it would make sense to look at codifying the
legislation and perhaps even simplifying the legislation. The
problem being, frankly, that codification in the European Union
is a difficult exercise because you have to go back through the
entire legislative procedure which you went through in the first
place to get all the various instruments in place, and the Commission
tends to start out by saying, "Will everybody agree..."—meaning
the Council plus the Parliament if we are in the First Pillar—"...that
we do no more than codify", we do not take the opportunity
to reopen any discussions which were closed painfully after months
of discussion?. It is sometimes hard to get that commitment, so
there is certain wariness about codification because you can find
yourself embarking on a whole new complex legislative exercise.
Nevertheless, we believe very strongly in better regulation, clear
regulation, and part of that drive is to keep things under review,
get rid of what is not needed anymore and codify by joining up
things adopted at different times, so we will not give up.
Lord Foulkes of Cumnock: It might be
helpful if we were to recommend to our Government that the Commission
be asked to produce handbooks in all of the languages of the Union
on this area and also that you might be asked to codify it. Is
that going too far?
Q115 Lord Teverson: I think
codification would be extremely useful as a recommendation in
this report.
Mr Faull: We are certainly willing to provide
guidance and we are willing to propose, because ultimately it
would not be we who decide, consolidation or codification of text.
Q116 Chairman: I should say—although
clearly it is no business of this Committee to codify anything—our
specialist adviser has done some very helpful educational work
for the Committee on the inter-relationship of all these various
systems of exchanging information, but it does occur to me that
we might consider—and I am not in any way pre-empting our
report—if I could call it this without sounding condescending,
"A child's guide to the exchange of information in the European
Union". If you had anything that we could use for that purpose,
and this is with great respect to our specialist adviser, I would
be very grateful if you could think about that, could you?
Mr Faull: With pleasure.
Q117 Chairman: Because, as
Lord Foulkes says, it is not just for children, it is a very confusing
area.
Mr Faull: That is true. The policeman or woman
on the beat needs to know that.
Chairman: Absolutely.
Q118 Earl of Caithness: Is
all this action not utterly chaotic? There is a sensible discussion
going on about the Data Protection Framework Decision and out
of nowhere come the Germans with the Prüm Convention, which
the Commission were not involved with, with its own data protection
provisions which are going to be agreed before the Data Protection
Framework Decision and it is going to be steamrollered through.
That is not a satisfactory way to do business.
Mr Faull: Life is messy. I think the European
Union is well served by its institutional framework and each of
its institutions playing its role properly, which means that in
an ideal world, but we do not live in one, the Commission would
make proposals and the Council and Parliament would legislate,
the Council by qualified majority and the Parliament in accordance
with its procedures. However, in the real world Justice and Home
Affairs are not wholly in that European Community system, they
are still largely inter-governmental with shared right of initiative
between the Commission and the Member States, with this disparity
about impact assessment requirements we talked about earlier,
with a very limited role for the European Parliament and largely
on the sidelines, and with the requirement of unanimity. That
reflects the fact, and it is a fact, that nearly all of the Member
States in one way or another still believe at the moment that
Justice and Home Affairs are special, different. I say that because
even the Constitutional Treaty, which all Member States have signed,
retains some special characteristics of the inter-governmental
origin of Justice and Home Affairs policy in the European Union.
That is what we have to live with. It is also the case in this
area, but not only in this area—and you yourselves more
than anybody have cast light on this process—that Member
States are taking initiatives in sub-union groups on a number
of important areas in Justice and Home Affairs. You know yourselves
about the G6 and you know also that there are other geographical
groups of Member States working together on some of these issues.
You know how Schengen was born and how it has developed. It was
born outside the EC framework, it has come into the EC framework,
but in a rather odd way with some Member States of the European
Union not in it and some non-Member States in the European Union
in it, plus the Euro, plus all sorts of other examples outside
our area. We have this variable geometry, as we call it in our
jargon, it makes life complicated, interestingly perhaps, but
you of all countries, I think, should know that constitutional
neatness is not always the way in which affairs can be run effectively.
That is where we stand in the European Union in 2007. Is it better
than doing nothing at all? Of course it is. Can we make it work?
We do, as best we can. Could it be more efficient and effective?
Yes. Does the Constitutional Treaty provide all the answers? No.
Most of them? Yes. Then I stop because I am wading into controversial
areas. It could be better, it could be different and I think given
where we are, a Union of 27 Member States, some large, some small,
some new, some old, some with very real practical recent experience
of terrorism, some blessedly inexperienced in terrorism and so
on, we have the system we have and Europe is well served by having
it. It could be better but my job is to make my bit of it work,
your job, if I may say so, by casting light on this in the way
you do is extremely effective as well, and most of the time agreements
are found and things are done properly and the law enforcement
authorities charged with our security are able to get on with
doing their job.
Chairman: Director General, can
I thank you very much indeed for the extremely helpful evidence
and the very helpful way in which you have answered our questions.
I wish you good luck on both subjects.
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