18TH REPORT: PRÜM: AN EFFECTIVE WEAPON
AGAINST TERRORISM AND CRIME?
Letter from Joan Ryan MP, Parliamentary
Under Secretary of State, Home Office to the Chairman
I am writing in response to the European Union
Committee's report—Prum: an effective weapon against
terrorism and crime?
The Government welcomes this report and is pleased
that the Committee broadly shares our view of the importance of
the implementation of the provisions under the Principle of Availability,
including the data sharing covered by the Prum Council Decision.
The attached response details the Government's
reactions to the recommendations made by the Committee on a point-by-point
basis. The Government looks forward to debating these recommendations
at the earliest opportunity.
15 May 2007
GOVERNMENT RESPONSE
99. We put on record our regret that the
German Presidency should have been unwilling to discuss with the
Committee of a national Parliament an initiative to which we,
like them, attach great importance.
100. We believe that for seven Member States
to enter into an agreement including first pillar matters falling
squarely within EC competence may have breached the letter, and
certainly breached the spirit, of Article 10 of the EC Treaty.
The Government wants an EU that adds value
to the efforts of Member States and which provides the opportunities
and tools for better practical cooperation. 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.
Article 10 of the EC Treaty provides that
Member States are to abstain from any measure which could jeopardise
the attainment of the Community's objectives. It is intended to
prevent Member States from taking action which would undermine
the objectives of the Treaty. It does not prevent Member States
from entering into an agreement in an area falling within Community
Competence particularly if these allow for closer cooperation
which would advance the objectives of the Community.
The second recital to the original Prum
Convention reads, "Endeavouring,without prejudice to the
provisions of the Treaty on European Union and the Treaty establishing
the European Community, for the further development of European
cooperation, to play a pioneering role in establishing the highest
possible standard of cooperation." This clearly sets out
that the original signatories' intention was to increase cooperation
without undermining the Treaty.
101. In the space of a year four ministers
told us that the question of accession to Prum was under
"close", "active" and "serious"
consideration. We do not understand why it should have taken so
long for the Government to conclude that there was at least one
provision of the Treaty to which the United Kingdom could not
agree.
The Government seriously considered signing
up to the full Prum Convention as we believe that the information
sharing aspects of the Convention will bring real value to the
fight against terrorism and cross border crime. There were however
aspects of the Prum Convention, such as the provisions on
air marshals, a measure on action to be taken in urgent situations
and those on immigration that prevented our firm support for the
Convention and consequently accession. We strongly believe however
that this approach has not prevented the UK from achieving a positive
result which will benefit our citizens.
102. The threshold for holding DNA profiles
on the United Kingdom DNA database is far lower than in any other
Member State, and the proportion of the population on the database
correspondingly far higher. The Government should as a matter
of urgency examine the implications of DNA exchanges for those
on the United Kingdom database.
The UK already shares DNA information bilaterally
with a number of countries (all EU member states included). This
is via law enforcement co-operation and mutual legal assistance
channels. Whilst there have been a small number of notable successes
(identifying suspects for serious crimes), the impact of international
DNA sharing is limited by the relatively low numbers of exchanges.
This low number of exchanges is in part
due to the lack of any automation in the process of sharing. With
ever increasing travel by offenders and the transnational nature
of organised crime, the necessity to share all types of forensic
intelligence increases accordingly. The present non-automated
procedures are slow and cumbersome.
It is important to keep three points in
mind when considering the implications of Prum search requests
for individuals whose profiles are recorded on the UK National
DNA Database:
1. The UK (as with other Member States)
will decide which profiles on the national database should be
exposed to search requests from other member states. There need
be no assumption that all profiles would be searched routinely
under Prum.
2. The results of any search request
will be reported to the other member state on a "hit no hit"
basis. Confirmation of the profile match may be provided, but
no details which would provide the name or other personal details
of the individual would be provided.
3. Any consequent exchange of data
following a hit on a Prum search request will rely on already
existing law enforcement and Mutual Legal Assistance channels.
Consequently any disclosure of personal information about individuals
whose profiles are on the UK database would be under existing
conditions. This provides for a case by case consideration of
the legal basis as well as the necessity, proportionality and
justification of the disclosure taking into account data protection
and ECHR considerations.
103. Law enforcement authorities in all
the Member States must be provided with the same clear guidance
and training which will enable them to operate the new laws responsibly
in the fight against crime.
The Government supports this recommendation
in principle and agrees that common guidance can be useful. Within
this context differences in national legislations and professional
codes of conduct need to be considered. An implementing agreement
will be agreed following the Prum Council Decision, and
will we take this recommendation into account in the negotiation.
It should also be noted that as the Prum
Council Decision focuses on information sharing. The usage of
the data is covered by the data protection provisions set out
how data can be used and are legally binding.
104. It is understandable that a State which
holds the Presidency should wish to make use of that opportunity
to further legislative proposals which it is particularly anxious
to see implemented. This should not however be seen as a reason
for cutting short full consideration by all the Member States.
The timetable for initiatives by Member States should be the same
as for Commission proposals.
105. We congratulate the Government on having
successfully insisted on the removal from the Prum Decision
of a general provision which would allow designated officers and
officials of one Member State to enter the territory of another
Member State without prior permission.
106. Since unanimity is needed for the adoption
of the Prum Decision this shows that, given the will, the
Government should be able to secure agreement on other matters
which need to be settled before the Decision can be adopted.
The Government agrees that EU initiatives,
whether from Member States or the Commission, should be developed
in a time-frame which allows for their proper discussion and a
full consideration of their implications. However, although the
timetable for negotiating the proposal to incorporate elements
of the Prum Convention into EU law has moved quickly, the
Government does not believe that the process for consideration
of the proposal has been cut short as a result. Indeed the Presidency
has devoted considerable resources both on a bilateral basis and
through Ministerial and expert level meetings of all Member States
in Brussels, Wiesbaden and Potsdam to discuss and examine the
detail of the Council Decision. Through this process the Government
has been able to secure changes to the text to meet our concerns,
in particular about its potential use in hot pursuit situations
and to limit the scope of its application to serious crime in
relation to the sharing of vehicle registration data. We are continuing
with this negotiating process to ensure that the data protection
provisions are acceptable.
107. If and when the Prum Decision
is agreed, any matters in the Framework Decision on the principle
of availability which have not been adequately dealt with must
continue to be the subject of negotiation.
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 Government therefore supports the Committee's recommendation
that the elements of the Principle of Availability not taken forward
under Prum should continue to be subject to negotiation.
108. There should be a convention that any
legislative proposals by Member States should, like Commission
proposals, be accompanied by full explanatory memoranda and regulatory
impact assessments.
109. Member States which are asked to consider
an initiative by some of their number should normally decline
to do so unless and until they have been supplied with a full
explanatory memorandum covering in particular the estimated cost
of the initiative.
The Government agrees that any EU initiatives,
whether submitted by the Commission or by Member States, should
respect better regulation principles, including the use of explanatory
memoranda to explain the need and reasoning for the proposal and
the use of regulatory impact assessments. However, the Government
also believes that there may be cases, such as with the Prum
proposal, where practical experience of operating a particular
system can provide the same information and evidence of costs
and benefits.
The Committee will be aware that experts
from those States already implementing and operating the data
sharing elements of the Prum Treaty provided such information
to all Member States at an expert level seminar in Wiesbaden.
The experience of the signatories in operating elements of the
Prum demonstrated to the Government that the Decision could
bring real benefits to the UK.
110. The Government should not allow the
Prum Decision to be incorporated into EU law unless and
until there is available a reliable estimate of the start-up cost
and the running costs of doing so, and then only if they believe
that the benefits to the United Kingdom of implementing the Decision
justify these costs.
The Government believes that we have a
suitable estimate of the start up costs of £31 million this
includes running costs for the first year, which we have considered
to be around £2.5 million. We must however clarify that this
is an estimate, and taking into account the changing nature of
technology and the negotiation of the implementing agreement this
is subject to change. Therefore, these are informed but necessarily
limited estimates of cost based on the information currently available.
It is likely that a project such as this one will require a more
detailed feasibility study and impact assessment before we agree
on the specific implementation models within the UK. We believe
that considering the considerable benefits that this Decision
could bring to public security that this represents a reasonable
cost.
111. The Government should insist on the
inclusion in the Prum Decision of provisions to ensure that
its operation is properly monitored. What is required is at the
very least:
— an obligation on national agencies
to produce annual reports, including statistics, on the use of
their powers under the Decision; and
— an obligation on the Commission
to produce an overall evaluation of the operation of the Decision,
for submission to the Council, the European Parliament and national
parliaments, to see whether it needs amendment.
The Government welcomes the Committee's
recommendations in this area; they will be useful when we come
to consider the more detailed provisions on the implementation
of the Council Decision, which will be set out in the implementing
agreement. We will of course be looking to ensure that the evaluation
and reporting processes on this Decision are appropriate.
On the evaluation of the operation of the
Decision you will be aware that the Decision sets out in Article
37 that, "the Commission shall submit a report to the Council
by at the latest after four years after taking effect on the implementation
of this decision accompanied by such proposal as it deems appropriate
for any further development." The Government will work to
ensure that this report is issued in a timely manner and that
the evaluation procedure is comprehensive.
112. There should be a requirement that
Member States putting forward initiatives with data protection
implications should consult the European Data Protection Supervisor.
The European Data Protection Supervisor
(EDPS) is, amongst other things, responsible for monitoring and
ensuring the application of EU data protection legislation and
advising European Community institutions and bodies on all matters
concerning the processing of personal data.[3]
Member States., of course, are not Community
institutions or bodies, and so have a more distant relationship
with the EDPS. The EDPS must cooperate with national supervisory
authorities (in the UK, the Information Commissioner's Office
or ICO) to the extent necessary for both bodies to fulfil their
tasks. The ICO is obliged to cooperate with other European Community
supervisory authorities and has powers to achieve that under the
Data Protection Act 1998 (DPA). As a matter of practice, we would
expect all such supervisory authorities to work with each other
in order to fulfil their functions effectively and efficiently.
Government routinely consults the ICO with
regard to EU legislation and other initiatives with data protection
implications. The ICO shares its views with the EDPS and other
national supervisory authorities at Article 29 Working Party meetings.
We therefore do not foresee any tangible benefits to be gained
by a formal requirement for Member States to separately, and directly,
consult the EDPS on initiatives with data protection implications.
113. We share the view of the Commission
that negotiations on the Data Protection Framework Decision (DPFD),
instead of being sidelined, should proceed in parallel with those
on the Prum Decision.
It is not our view that negotiations on
the DPFD are being sidelined. In fact, we believe that considerable
progress has been made towards reaching agreement on the text.
The German Presidency's redrafts have addressed a number of key
concerns of Member States and we expect to reach the end of the
second reading at the next Working Group meeting on 6 June 2007.
As you know, the Government is keen to
reach agreement on an appropriate DPFD text as soon as possible.
However, if an agreement is not reached in parallel with the Prum
Council Decision, the Government believes the data protection
safeguards in the Prum Council Decision are adequate for
the specific type of data sharing which would take place under
that instrument.
114. The Government should seize the opportunity
to stipulate that they will agree to the Prum Decision only
if other Member States, led by the German Presidency, simultaneously
agree to a Framework Decision setting high standards for the protection
of data across the third pillar.
We believe strongly in the many benefits
that the Prum Council Decision will deliver, and, given
the bespoke data protection measures contained in the Prum
DecisIon, it would not be appropriate to delay this Council Decision
in an attempt to speed up negotiations on another instrument.
The DPFD will provide for a minimum standard
of data protection across the whole of the third pillar and so
needs to be a flexible and subtle instrument. By contrast, the
purpose and scope of the Prum Council Decision is much more
narrowly constrained. Consequently, negotiations on the DPFD were
always likely to be more prolonged than those on the Prum
Council Decision. We are none-the-less making good progress on
the DPFD negotiations.
115. If the Presidency wishes other Member
States to accept its own views on the exchange of information,
it must be prepared to listen to views on how that information
is to be safeguarded, and to act on those views.
UK officials have worked closely with the
Presidency on the development of the draft Council Decision on
Prum. We have discussed key aspects of the text in detail
with the Presidency and other Member States and this has resulted
in helpful clarification and favourable amendments to the text.
116. The Government should strongly resist
any suggestion that agreement on a statement of general principles
on data protection would be an adequate quid pro quo for
the adoption of the Prum Decision.
We would not regard a statement of general
principles on data protection to be an acceptable substitute for
the DPFD. Furthermore, appropriately restrictive data protection
provisions in Prum would not detract from the Government's
firm commitment to concluding negotiations on the DPFD as soon
as possible (although we recognise that this is unlikely to be
achieved during the German Presidency).
117. The Government should try to ensure
that United Kingdom data protection standards are replicated across
the EU. The only way to achieve this is to adopt for all third
pillar measures a Framework Decision which will guarantee those
standards for the protection of personal data in all Member States.
We agree the DPFD is an important instrument
to ensure data protection under the third pillar. In many respects,
it is likely this standard will reflect our domestic legislation.
The negotiations on the DPFD should ensure
that the minimum standard is set at an appropriate level to preserve
the rights of the data subject and foster the required degree
of mutual trust necessary for the effective flow of data between
Member States.
The Government believes that the UK, like
all other Member States, should remain entitled to impose higher
standards of data protection than those required by the final
version of the DPFD with regard to how we process data received
from other Member States.
118. We believe that, given the need for
unanimity, the negotiations on the Prum Decision provide
an unrivalled opportunity for adopting a data protection regime
at the same time as the legislation facilitating data exchange
is adopted.
We are keen to conclude negotiations on
the DPFD as soon as possible. However, it is not our view that
the Prum Decision should be delayed until agreement is reached
on the DPFD. Signatories to the Prum Treaty are already
benefiting from the real advantages of greater data sharing for
cross-border crime prevention and prosecution. We do not want
to slow down the process by which other Member States, including
the UK, are able to enjoy these benefits.
3 Regulation (EC) No. 45/2001 of the European Parliament
and of the Council of 18 December 2000 on the protection of individuals
with regard to the processing of personal data by the Community
institutions and bodies on the free movement of such data. Back
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