Thank you for your letter of 26 April 2007.[95] I am writing to provide you with further information on the specific issues raised by the Committee and to update you on progress in negotiations.

  The Government is largely content with the current draft, and welcomes the latest Presidency proposal on implementing measures. The German Presidency is keen to reach a general approach on this dossier at the June JHA Council.

UPDATING CRIMINAL RECORD INFORMATION

  On the specific issues the Committee raises; I am pleased that the Committee is content with my explanation of the Government's position on the updating of information. The Government agrees with the Committee that an effective and comprehensive data protection instrument will safeguard data exchanged at EU level.

DUAL NATIONALITY

  In its recent letter, the Commitee raised again the issue of dual nationality. I note the Committee's concern that a convicted person may not disclose all nationalities. The Overseas Crime Task Force has examined this issue and has concluded that in establishing an obligation that goes considerably further than the obligations established by existing instruments, the provisions of the Framework Decision vis-a"-vis dual nationals is satisfactory.

RECORDING OFFENCES

  As I stated in my previous letter, we can record on the PNC convictions for overseas offences that are not offences in the UK. However, we will have to consider how best to implement the obligations to store information transmitted under the Framework Decision and may consider the use of a linked data-base. Several Member States have indicated at official level that they will establish a new data-base, linked to the existing criminal record, to store information from other Member States.

GENERAL OBLIGATION TO CONSULT

  On the subject of the general obligation to consult, I refer the Committee to my letter of 19 April. As I outlined in that letter, the provisions of the current draft of the present Framework Decision establish an obligation on the central authority of the Member State where an individual makes a request for information on their own criminal record, the Member State where the request is made must always make a request to the Member State of nationality for the person's criminal record, and the Member States of nationality must respond. This obligation will only come into force when the electronic transfer of information is implemented.

  Finally I enclose the most recent version of the Framework Decision 9237/07 COPEN 55 for the Committee's information (not printed).

11 May 2007

  Thank you for your letter of 11 May 2007 which was considered by Sub-Commitee E at its meeting of 23 May 2007.

  We note that the Presidency is hoping to agree a general approach at the June JHA. We do, however, have two outstanding concerns regarding the proposal.

RECORDING OFFENCES

  You have previously agreed that a central premise of the Framework Decision is to guarantee the completeness of the information held by the Member State of nationality. We would be grateful if you would confirm that all Member States are willing and able to store, where they are the Member State of nationality, all criminal record information transmitted to them under this Framework Decision, regardless of whether the conviction relates to an offence which is an offence under their national law.

  In addition to dual criminality concerns, problems may arise as a result of disparities in the age of criminal responsibility across the EU. Are Member States prepared to store details of convictions where the offence was committed prior to the individual attaining the age of criminal responsibility under the law of the Member States of nationality?

GENERAL OBLIGATION TO CONSULT

  Further to your previous letter where you advised that the new obligation would "impose obligations on the central authorities of Member States to always consult with the Member State of nationality where a request for a criminal record extract is made", we note that this would only apply in the case of an individual making a request for information on its own criminal record.

  Is it the case in each of the UK jurisdictions that criminal record checks carried out on an individual prior to working with children are always requsted by the individual concerned and would thus fall within the scope of Article 6(2a) of this Framework Decision? Is this also the case in relation to other Member States? If not, we fail to see how the main objective of the Sex Offences proposal has been met by this amendment.

  Provided that you can provide promptly the assurance we seek regarding (i) the completeness of the criminal record held by the Member State of nationality; and (ii) the practical effect of Article 6(2a), we would hope to be in a position to reconsider the matter before the June JHA Council. In the meantime, the proposal is retained under scrutiny.

24 May 2007

  Thank you for your letter of 24 May. I am writing to address the issues raised by the Committee in this letter.

RECORDING OFFENCES

  The Committee asks for confirmation that all Member States are willing and able to store, where they are the Member State of nationality, all criminal record information transmitted to them under this Framework Decision. I would like to reiterate that the operation of the Framework Decision depends on the recording of this information by the state of nationality, even where, for example, there is no dual criminality for the offence which has attracted a given conviction. As such, under Article 5, an obligation is established on the Member State of nationality to record all information transmitted under the Framework Decision. This obligation is not qualified by any reference to national law. Therefore all Member States, in agreeing to this Framework Decision, are accepting the obligation to store information on their nationals transmitted to them by other Member States. The issue of age of criminal responsibility has not been raised in the course of negotiations, but there is no provision in the Framework Decision that would allow Member States not to fulfil their obligation to record information on the basis of differing national laws on age of criminal responsibiity.

GENERAL OBLIGATION TO CONSULT

  On the subject of the general obligation to consult, it is the person to whom the criminal record certificate relates who applies for this certificate under Part V of the Police Act 1997. The employers (the registered bodies) are not the applicants for criminal record certificates or enhanced criminal record certificates. As such, a criminal records check against an EU national in the UK would lead to a request under Article 6(2a). The amendment is therefore helpful, although I would agree that it does not fully meet the objectives of the Sex Offences proposal. In other Member States, Article 6(2a) will apply where there is no provision under national law for an individual to make a request to the relevant authority.

  The Framework Decision also provides for the exchange of those disqualifications that are entered on the criminal record and this will enhance the current exchange of information on sex offenders. As I outlined in my letter of 19 April, the future of the work on the Sex Offences proposal is not clear. However, it will be taken forward separately and should not impact on our support of the current Framework Decision on the exchange of criminal records information.

  I hope the Committee will accept these assurances and will be able to reconsider the matter before the JHA Council in June.

4 June 2007

  Thank you for your letter of 4 June 2007 which was considered by Sub-Commitee E at its meeting of 6 June 2007.

RECORDING OFFENCES

  We note what you say as regards the Article 5 obligation on Member States to record all information transmitted to them by other Member States, regardless of whether it satisfies dual criminality and irrespective of whether the offence was committed by a person below the age of criminal responsibility in the Member State of nationality.

GENERAL OBLIGATION TO CONSULT

  As regards the general obligation to consult, it seems to us that this should be effective within the UK to ensure that the criminal record of the Member State of nationality is consulted in cases where a vetting application is made by an EU citizen who is not a UK national. However, Article 6(2a) may not be adequate in other EU Member States where the system of vetting differs from that in the UK. We note that you do not consider that the provision fully meets the objectives of the Sex Offences proposal; it appears that no study has been undertaken to ascertain what the practical effect of this provison would be in each of the Member States. We trust that the Government will take every opportunity to encourage the continuation of negotiations on the Sex Offences proposal so as to ensure that the criminal record of the Member State of nationality is consulted as a matter of course in the context of domestic vetting procedures across the EU.

  The Committee has decided to clear the proposal from scrutiny.

7 June 2007