Letter from Jim Murphy MP, Minister for
Europe, Foreign and Commonwealth Office
Thank you for your letter of 20 November 2007,
in relation to the Lords EU Select Committee's inquiry into the
impact of the EU Reform Treaty. I have endeavoured to answer the
questions posed in that letter, and in doing so, I have co-ordinated
responses from colleagues across Government.
The Committee will wish to note that since your
letter the numbers of the Articles have been updated in the Treaty
of Lisbon. In this response we cite both the Articles that you
refer to, and the new Article numbers, as set out in the Treaty
of Lisbon.
The responses to your questions are set our
below.
INTERNAL SECURITY
AND NATIONAL
SECURITY
What, in your view, is the description of "national
security", and how does it differ from internal security?
The Lisbon Treaty explicitly confirms that national
security remains the sole responsibility of each Member State.
It is necessarily for each Member State to determine both the
matters that are relevant to its own security as well as the arrangements
and measures that are necessary to deal with the threats to its
own security.
The equivalent term in UK legislation is not
itself defined, reflecting the fact that it is, as the Judicial
Committee of the House of Lords have confirmed, a "protean"
concept whose scope necessarily evolves to cover those matters
which a State may consider necessary to protect its security.
The term "internal security" has not
been defined either in legislation or by the European Court of
Justice. As a result, it is open to interpretation, and is used
in a variety of contexts in EU treaties and legislation. A minimalist
interpretation is that internal security relates to matters of
public order within a Member State, and in particular matters
falling within the responsibility of the police authorities.
Whatever your view on the meaning of "national
security", will it not be possible for the Court of Justice
to give it (and hence the derogation in Article 4) a narrower
meaning than you might have wished?
The provision in Article 4 (Article 3a in the
Lisbon Treaty) is not a derogation from EU rules but rather confirms
that national security remains the sole responsibility of Member
States. While it cannot be precluded that the interpretation of
the term "national security" would arise in proceedings
before the Court, we consider it unlikely. In such cases we would
expect the Court to give full weight to the position of Member
States regarding their own national security as Article 4 requires.
If the expression "internal security"
is open to misunderstanding, why is it used in at least four provisions
of the Treaties?
We judge that the legal clarity provided by
Articles 4 and 5 (Articles 3a and 3b in the Lisbon Treaty) provide
sufficient protection of our interests in this area. Article 5
provides that "competences not transferred to the Union remain
with Member States".
Further work to define the precise meaning and
scope of "internal security" will be necessary in the
implementation of the Treaty, notably in the establishment of
the Article 65 Committee (Article 61 D in the Lisbon Treaty).
What are the existing bodies concerned with internal
security? How will the standing committee on internal security
to be set up under Article 65 differ from them? How will it differ
from the informal groupings for co-operation/co-ordination on
national security permitted under Article 66a?
Existing EU bodies which would regard themselves
as being concerned with matters of internal security (in this
context, EU internal security), include the Article 36 Committee
and its various subcommittees, notably the Terrorism Working Group,
the Civil Protection Group and the Multidisciplinary Group on
Organised Crime. Also, the Strategic Committee on Immigration,
Frontiers and Asylum and its subcommittees. There is also the
Customs Working Party, which has a Counter-Terrorism subgroup
and a Counter-Terrorism Action Plan.
The detailed remit of COSI (the Article 65 Committee—Article
61 D in the Lisbon Treaty) has yet to be defined and will be addressed
during implementation of the Treaty. However, it will include
promoting and strengthening operational co-operation in areas
such as policing, data sharing, counter-terrorism and drugs.
Article 66a (Article 61 F in the Lisbon Treaty)
deals with arrangements that are wholly distinct from those in
Article 65. It simply acknowledges that co-operation in relation
to national security may take place but this is wholly a matter
for Member States. This underlines the confirmation in Article
4 that national security is a matter for Member States alone.
In the United Kingdom, which are the "administrations
responsible for safeguarding national security"?
For the purposes of Article 66a (Article 61
F in the Lisbon Treaty), the competent departments could comprise:
— the Security Service, given
its statutory function "to protect national security";
— the Intelligence Agencies (GCHQ
and SIS), given that they are empowered to act "in the interests
of national security"; and
— those Government Departments
charged with responsibility in these areas (chiefly the Home Office
but also FCO and, potentially at least, MoD).
DATA PROTECTION
IN RELATION
TO FOREIGN
AFFAIRS
Article 15a of the Treaty of the Functioning
of the European Union (TFEU) is now Article 16b and Article 24
of the Treaty of the European Union (TEU) is now Article 25a.
The text of these Articles is set out below.
The Committee raised several questions concerning
"data protection in relation to foreign affairs". Article
24 TEU (now Article 25a in the Treaty of Lisbon) reads:
In accordance with Article 16 B of the Treaty
on the Functioning of the European Union and by way of derogation
from paragraph 2 thereof, the Council shall adopt a decision laying
down the rules relating to the protection of individuals with
regard to the processing of personal data by the Member States
when carrying out activities which fall within the scope of this
Chapter, and the rules relating to the free movement of such data.
Compliance with these rules shall be subject to the control of
independent authorities.
What is the purpose of having a specific provision
on data protection dealing with the Union's external action, and
why will the Council be responsible for it alone, rather than
jointly with the European Parliament?
A separate provision for data processing by
Member States when carrying out activities within the scope of
CFSP is appropriate given the distinct, intergovernmental character
of CFSP. For that reason too, the adoption of measures in the
areas of CFSP is a matter for the Council alone.
What will be the line of demarcation between rules
on data protection measures being adopted under Article 24 (Article
25a in the Treaty of Lisbon) rather than under the more general
Article 15a of the TFEU (Article 16b)? Under which Article would
protection of PNR data fall?
Any data protection proposals are likely to
be brought forward under Article 15a TFEU (Article 16b in the
Treaty of Lisbon), unless it relates to the processing of personal
data by Member States when carrying out CFSP activities, in which
case it will be brought forward under Article 24 TEU (Article
25a).
The two successive PNR agreements concerning
the transmission of PNR data to the Department for Homeland Security
have been negotiated under the third pillar (Articles 24 and 38).
The recently released proposal for the protection of EU PNR data
is also proposed as a third pillar measure. It is likely, therefore,
that international agreements on the use of PNR data will be adopted
under the TFEU.
How is this affected by Declaration 9 to the TFEU?
What are the specific characteristics of the matter referred to
in that Declaration (which have no equivalent in the French)?
Declaration 9 (now Declaration 20) relates to
the application of Article 15a (now 16b) and does not therefore
affect the demarcation between Article 15a (16b) and Article 24
(25a). "The specific characteristics of the matter"
clearly refer to the particular concerns relating to national
security and the fact that nothing prejudices the comprehensive
character of the national security carve-out.
What are the independent authorities responsible
for controlling compliance with data protection rules in the field
of foreign affairs, and how will they exercise control?
Article 24 (now 25a) relates to the processing
of personal data by Member States. The processing of personal
data by data controllers within the UK is governed by the Data
Protection Act 1998. The Information Commissioner is responsible
for regulating the Act. The arrangements for independent authorities
will vary from Member State to Member State.
Given that the Court of Justice has no jurisdiction
under Title V, how will lawfulness of a Council decision adopted
under Article 24 (25a) be verified?
On ECJ jurisdiction, the exclusion of ECJ jurisdiction
over CFSP measures is a long-standing, existing arrangement. All
Member States are clear that they must comply with their legal
obligations in this area—just as they must comply with obligations
arising under all international agreements.
REFERENCES
ARTICLE 15a
1. Everyone has the right to the protection
of personal data concerning them.
2. The European Parliament and the Council,
acting in accordance with the ordinary legislative procedure,
shall lay down the rules relating to the protection of individuals
with regard to the processing of personal data by Union institutions,
bodies, offices and agencies, and by the Member States when carrying
out activities which fall within the scope of Union law, and the
rules relating to the free movement of such data. Compliance with
these rules shall be subject to the control of independent authorities.
The rules adopted on the basis of this Article
shall be without prejudice to the specific rules laid down in
Article 25a of the Treaty on European Union.
Declaration 20. Declaration on Article 16
B of the Treaty on the Functioning of the European Union
The Conference declares that, whenever rules
on protection of personal data to be adopted on the basis of Article
16 B could have direct implications for national security, due
account will have to be taken of the specific characteristics
of the matter. It recalls that the legislation presently applicable
(see in particular Directive 95/46/EC) includes specific derogations
in this regard.
CIVIL PROTECTION
AND THE
NEW SOLIDARITY
CLAUSE
What precisely does the Solidarity Clause amount
to in practical terms?
The Solidarity Clause establishes a duty for
Member States to co-operate with each other and with the European
Union in managing disasters and terrorist attacks. European Councils
have already agreed from time to time packages of measures to
respond to terrorist attacks and natural or man-made disasters.
The Solidarity Clause reflects this concern of Member States to
offer each other and the Union support in dealing with major disasters
on their territory, including terrorist attacks. Any support provided
to assist an affected Member State in the event of a disaster
or terrorist attack would only be in response to a specific request
by the Member State.
Declaration 37 on the Solidarity Clause, attached
to the Treaty, indicates that it is for each Member State to determine
the most appropriate means to discharge its solidarity obligation
towards the requesting Member State. So for example even if the
Union has acted to give a particular sort of assistance to a State,
the States have a discretion to give a different sort of assistance.
In practice, the extent of the duty is likely to depend on the
particular circumstances of a case and on the nature of co-ordination
among Member States in Council to which the Clause refers.
The Clause also envisages regular assessments
by the European Council of the threats facing the Union and that
the Union shall act to prevent and protect against such threats.
This might include supporting Member States to develop national
capabilities.
In terms of the solidarity obligation of Member
States to the Union, the Solidarity Clause language on the Union
mobilising "all the instruments at its disposal, including
the military resources made available by the Member States"
affords discretion to Member States. For example, any offer of
military resources by an individual Member State would be at the
sole discretion of that Member State. Again, in practice, the
extent of any co-operative duty is likely to depend on the circumstances
at the time.
Apart from co-ordination by Member States among
themselves in Council, the arrangements for implementing the Clause
will be defined by a Council decision. There is no requirement
to develop new permanent structures to allow the Clause to be
activated. Council would be assisted by the Political and Security
Committee as well as the support of, if appropriate, those Council
Secretariat structures dealing with European Security and Defence
Policy (ESDP) and by a standing committee for operational co-operation
and co-ordination set up under Article 65 (61D in the Treaty of
Lisbon). The Council will act by unanimity under CFSP procedures
where the decision has military or defence implications.
The UK is generally sufficiently well equipped
to deal with most emergencies without the need for external assistance.
However, emergencies may develop in unpredictable ways so we cannot
rule out such a possibility. As such the Solidarity Clause might
be of direct benefit to the UK.
What action would the United Kingdom take to assist
other Member States in the event of a natural or man-made disaster?
The United Kingdom is committed to assisting
other Member States in the response to disasters where we have
the deployable capability to get to the scene in a timely way
and can add value. Requests for assistance are considered on a
case-by-case basis.
Member States and the European Commission are
currently implementing the Civil Protection Mechanism (Recast)
which provides for specialised task-specific modules in disaster
response, based on Member States' assets and enabling them to
contribute where they are willing and best able to do so.
In what circumstances might the United Kingdom
ask for help from other Member States?
The United Kingdom uses an all-hazards approach
to risk assessment, preparedness planning and response co-ordination.
It is possible to speculate about a range of low probability but
high impact events which could stretch our response capabilities
to the extent that we felt it prudent to call for assistance from
others.
Such a call could in principle be made through
the EU's Monitoring and Information Centre to all its participating
countries, through other multilateral channels including NATO,
on the basis of existing bilateral ties, or through some or all
of these mechanisms. For example, during the 2007 floods we sought
and received international assistance for portable bio-degradable
lavatory facilities; and a number of EU Member States on their
own initiative made offers of assistance, for example with high
volume water pumps, which we found it unnecessary to take up.
Inevitably, in most cases, international assistance
would take some time to arrive. Within a framework of rigorous
national risk assessment, the Government's policy is therefore
to build national resilience through preparedness at all levels
so as to ensure that a fast and effective response can be deployed
to address a full range of risks.
Why is action at EU level thought appropriate,
given that in the case of the proposal for a Civil Protection
mechanism the Government is arguing strongly (and in the view
of this Committee rightly), that this is a matter only for the
Member States concerned and that the principle of subsidiarity
excludes action at EU level?
In EU fora, the Government has consistently
encouraged Member States to enhance their resilience at all levels
on the basis that emergency preparedness and response can best
be addressed through national action with support at the EU level
to facilitate the sharing of good practice and mutual assistance
where necessary. Strengthening the national capability of Member
States would also enhance Europe's collective ability to deal
with an overwhelming emergency where significant mutual assistance
is most likely to be needed while reducing the pressure for EU-level
action in more routine situations.
EU-level action envisaged under the Solidarity
Clause in the event of a natural or man-made disaster could be
taken only at the request of the affected Member State's political
authorities. The Government welcomes the Clause as an expression
of shared desire by Member States to provide mutual assistance
in a spirit of co-operation in extreme circumstances and to take
some action at a wider level to assess and prevent threats where
multi-national action is needed.
The Civil Protection Clause (Article 176c) provides
a specific new legal base under which further measures would be
decided by qualified majority and co-decision with the European
Parliament. This provides for EU action to support and complement
Member State activity, and to promote co-operation and consistency
in international civil protection. Its terms exclude harmonisation
of existing Member State laws and regulations. The recently adopted
Recast Civil Protection Mechanism and Financial Instrument accord
with these terms.
15 January 2008
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