Thank you for your letter of 23 April 2007[110] in which you update us on the progress of negotiations over this proposal. Sub-Committee F of the House of Lords Select Committee on the European Union has examined this dossier at a meeting on 6 June 2007.

  The Committee accepts that, while Europol's priority areas should remain organised crime and terrorism, there might be scope for expanding Europol's mandate to include serious crime which is not organised. Could you tell us, however, how the draft text will be amended to ensure that Europol's involvement in serious crime that is not linked to organised crime is appropriately limited? What further safeguards will the Government press for to limit Europol's involvement in relation to the proposed list of offences in Annex I of the draft Council Decision?

  We would also welcome clarification on two issues with relevance to data protection which were highlighted by the Joint Supervisory Body (JSB) of Europol in an opinion published on 5 March 2007. One is the question of the new power to collect, store and process personal data from public or private entities (Article 5(1 )(a)). Will the text be amended to reflect the JSB's view that the processing of personal data from other public or private entities should take place exclusively via national units?

  The other issue is the relationship between this proposal and the proposed third pillar Data Protection Framework Decision (DPFD). Can you confirm that it is still intended that the DPFD will be applicable to Europol and clarify the relationship between these two proposals?

  On the question of parliamentary oversight, you say that you are broadly satisfied with the provisions which are emerging from the Working Group discussion. Could you tell us what these provisions are? You will also be aware that the Commission proposal was meant to enhance democratic oversight by proposing that Europol should be funded from the general budget of the EU and giving the European Parliament, as one of the budgetary authorities, the power to control the development of Europol, which national parliaments hitherto had through the ratification process. This will not happen if it is decided that Europol will continue to be funded by Member States. How likely is it that agreement on transposing the Europol Convention into a Council Decision will maintain funding by Member States? What would you do to maintain parliamentary oversight of the way in which Europol might develop?

  With regard to privileges and immunities, and the related issue on the application of the EC Staff Regulations, we would be grateful if you could report on the outcome of discussions as to how this matter will be taken forward.

  The Committee has decided that it will continue to keep the document under scrutiny pending a further report on the progress of negotiations and receipt of the information requested.

  The Committee also considered a point in a letter you wrote to the Chairman of the Commons European Scrutiny Committee on 2 May 2007, which you kindly copied to me. In that letter you say that the German Presidency recognise "that it will be impossible to adopt the Council Decision as a whole by the end of their Presidency. However they are keen to reach a general approach on the first Chapter" at the forthcoming JHA Council.

  We are concerned at the suggestion that it is possible to reach a general approach on parts of a proposal. As far as we are aware this is a new practice, at least in this area of EU policy. As you know, a general approach on a whole instrument means that it is no longer possible, as a matter of practical politics, to re-open the matters agreed. This Committee treats agreement on a general approach to an instrument under scrutiny as a scrutiny override. Can you say what you think the consequences would be if a general approach was agreed on part of this Proposal?

7 June 2007

  Thank you for your letter of 7 June in which you raised a number of issues.

LIMITING THE EXPANSION OF EUROPOL'S MANDATE AND LIST OF OFFENCES—ANNEX 1

  The Government is pleased that the Select Committee recognises that there might be scope for expanding Europol's mandate to include serious crime which is not organised. However, you are seeking clarification as to how Europol's involvement in serious crime which is not linked to organised crime is appropriately limited. In the revised text Article 4 of the proposed Council Decision, we have ensured that the changes to Europol's mandate have been limited to cover situations where there is a very serious crime which would require a common approach owing to the scale, significance and consequences affecting several Member States.

  As stated in my previous letter to the select Committee, we will continue to press for further safeguards to limit Europol's involvement in serious crime, once discussions in the Working Group move onto the role of the Management Board which have oversight of Europol and the proposed list of offences at the Annex I of the proposed Council Decision.

COLLECTION, STORAGE AND PROCESSING OF DATA VIA NATIONAL UNITS

  In principle the Government's preference is for the processing of personal data from other public or private entities to take place exclusively via national units as they are the only liaison body between Europol and the competent national authorities. However, this is to be discussed under the revised Chapter IV Relations with Partners. Negotiations are still underway and the issue of how Europol can communicate data received from public or private entities stands to be addressed.

APPLICABILITY OF THE DATA PROTECTION FRAMEWORK DECISION (DPFD)

  It is not yet clear whether Europol will come within the scope of the Data Protection Framework Decision (DPFD) because both the draft Europol Council Decision and DPFD texts are still under negotiation. However, we are in close contact with colleagues at the Ministry of Justice, the lead Department for data protection issues and will be able to comment on this further as the DPFD negotiations progress. The Framework Decision will set overarching minimum standards of data protection across the whole of the third pillar and so will have an impact upon other third pillar measures, including Europol, unless Europol is specifically exempted from the DPFD which is not our intention.

PARLIAMENTARY OVERSIGHT AND THE APPLICATION OF PPI AND ECSR

  The Council Conclusions from the June JHA Council foresee Community financing for Europol subject to satisfactory solutions on a number of outstanding issues such as the clarification of budgetary issues guided by the principle of budget neutrality, the lifting of immunity for Europol officials in Joint Investigation Teams (JITs) and the application of Protocol, Privileges and Immunities (PPI) and the European Community Staff Regulations (ECSR). The decision is by unanimity.

  We believe these issues would be addressed before the scheduled date of 1 January 2010 for Community financing. Europol and the Commission will draw up an implementation plan with clear milestones which have to be reached before the start date. Negotiations are still on going with respect to PPI & ECSR and the Government's position is clear that Europol officials in JITs should not have immunity.

  As a result and rightly pointed out by the Select Committee, the European Parliament would play an active role in the development of Europol. In the interim period aside from the Parliamentary oversight in the transposing of the Europol Convention to a Council Decision, the Scrutiny Committees will continue to receive periodical reports and will be informed of any new developments.

GENERAL APPROACH

  Thus far negotiations have centred on the first chapter of the proposed Council Decision, which deals with establishment and tasks. The revised version has taken into consideration most of our concerns. At the June JHA Council all other delegations took the same position. This does not mean that the provisions of chapter 1 are finally agreed but rather that work on these provisions have been closed for the present time in order to allow work to begin on other chapters. We are therefore content with that section of the text, and have indicated we are content to proceed to negotiating the next chapters.

  The Committee will understand that in order to manage a negotiation on a proposal of this size it is best to take it in parts in order to make progress. However, it is not possible to look at parts of the text in isolation and this means that subsequent work on Articles 10 onwards will undoubtedly affect some of the components in Chapter 1, which will therefore have to be looked at again. There is no bar to further negotiation on the first section of the text should we find that there are elements we consider unsatisfactory. In any event it is clear that the entire document remains under Parliamentary Scrutiny.

  I hope this addresses the points you have made and I will keep the Committee updated on the progress of discussions on the draft proposal.

27 June 2007

  Thank you for your further letter of 27 June 2007 commenting on the issues raised in my letter of 7 June. Sub-Committee F of the House of Lords Select Committee on the European Union considered your letter at a meeting on 11 July 2007.

  We are very grateful for your full reply on the points that concerned us. The Committee are glad that the JHA Council foresees that there will be Community financing of Europol, and that the Government's position is that officials in JIT teams should not have immunity. We will be following the negotiations to see whether these desirable objectives are achieved.

  We hope that, when negotiation continues on Chapter IV, the Government will insist on its preference that processing of data from other public or private entities should take place only through national units.

  We are concerned that not all Member States may be making full use of the Europol Information System, and would be grateful to have figures showing the extent to which it is used.

  We appreciate that, while the state of negotiations on the DPFD is so fluid, it is not possible to reach a conclusion on the relationship with this proposed Decision; that too is something we will continue to pursue.

  The Committee are still unhappy about the absence of safeguards to ensure that Europol will not be involved in crimes which are not organised crimes, and they are not reassured by your statement that the mandate of Europol will be limited to "very" serious crimes where a common approach is needed; they are not aware of any definition of the distinction between a serious crime and a very serious crime. In the Select Committee's recent report on the EU/US Passenger Name Record (PNR) Agreement[111] we referred[112] to the lack of a definition of "serious" crime, and contrasted the smuggling of children (an example given to us by Baroness Ashton of Upholland) with the with the smuggling of tobacco (an example given to us in oral evidence by Joan Ryan MP).

  You say that the Government will continue to press for safeguards to limit Europol's involvement in serious crime. This is welcome. However you add that the Management Board will have oversight of the proposed list of offences at Annex 1. We would like to know how the Management Board will acquire this role, and how it will he exercised.

  As you know, the Committee were concerned at the suggestion that a general approach had been agreed on part of the proposal. They accept that negotiations must move on from Chapter I to the next chapters, but are glad that you say Chapter I will undoubtedly have to be looked at again, and that there is no bar to further negotiation on it.

  You have said that "aside from the Parliamentary oversight of the transposing of the Europol Convention to a Council Decision, the Scrutiny Committees will continue to receive periodical reports and will be informed of any new developments". We understand this to mean that you will take the initiative in informing us of the progress of negotiations, and in particular of any developments in the points we have highlighted. For the present, we continue to keep the document under scrutiny—the entire document, as you rightly point out.

12 July 2007

  Thank you for your letter dated 12 July, which was received here on the 17.

  You mentioned your concern that not all Member States may be making full use of the Europol Information System, and asked for usage figures.

  As you may recall the Information System was only established in October 2005. At the end of June 2007 around 40,000 `objects' (records) had been entered onto the system but there is an ongoing process of review and removal to `clean the data' with updates and data deletion to remove unrefined and expired material. The Europol Management Board has expressed its concern that the amount of inserted data remains low and while several Member States had very little data in the system others had expired data that needed to be updated or deleted. Members of the Management Board have expressed a commitment to increase the amount of data input into the Information System, and believe that the introduction of an "automated data loader" may help the situation.

  In strict numerical terms the UK is not a major user when compared to the data input by Germany, France, Italy and Austria but part of this is explained by the fact that about 45% of the objects on the Information system relate to forgery of money (Euro counterfeiting). This makes easy comparison of system usage by country problematic.

  However, taking June 2007 as an example sixteen countries input new material onto the Information System. In terms of volume the UK was fifth behind Germany, Belgium, Cyprus and Italy, but since it was not possible to identify the types of material input volume comparisons become meaningless.

  A concern for the Management Board is data quality and this echoes the approach adopted by the UK which is based on inputting highly refined material. Data from our high impact cases is submitted to and checked against the Information System and our contribution is of a very high quality in relation to serious and organised crime. That said the Information System is relatively new and the way in which it can be utilised is still being reviewed by our Europol Liaison Bureau, but we anticipate consistently rising levels of engagement with the Information System as other countries also engage more as the added value of the database is enhanced.

  You also asked about the possible role of the oversight by the Europol Management Board of the proposed list of offences for which Europol would be competent.

  I am sorry if the mention of the future discussions in the Europol Working Group, in my last letter to the Committee dated 27 June, has led to a slight misunderstanding. We do see a role for the Management Board in limiting Europol's involvement in crime that is not of an organised nature, and to ensure that it does not lose its primary focus which is to support Member States' activities to combat organised crime. The question for us is whether there is value and if it will be possible to get agreement at the Working Group on additional language in the Chapter dealing with the Management Board in the proposed Council Decision which will support this ambition. We see this as quite separate from later discussions in the Working Group on the Annex itself, the proposed list of crimes for which Europol will be competent, which in our view sits outside the remit of the Management Board.

  The Portuguese Presidency is keen to bring discussion on the draft Council Decision to a conclusion before the end of the year and I will keep the Committee informed on the progress of the negotiation.

23 July 2007

  Thank you for your very helpful and prompt reply of 23 July 2007 to my letter of 12 July. Sub-Committee F of the House of Lords Select Committee on the European Union considered your letter on 10 October at its first meeting after the summer recess.

  We are grateful to you for having clarified the role of the Management Board. We agree with you that it should not be for them to decide which particular criminal offences are to be within the competence of Europol; we believe (as seems also to be your view) that the Management Board is best employed in directing the energies of Europol to helping Member States in combating serious organised crime. We therefore look forward to seeing just who is going to decide which are to be the relevant criminal offences, and how.

  What you say about the use being made of the Information System seems to bear out the concerns we had heard expressed. It seems too that some of these concerns are shared by the Management Board. They put this down to the limited awareness of and lack of trust in Europol by the national competent authorities (Europol Management Board, The Strategy for Europol, The Hague, 1 August 2007). We accept that this is a relatively new system, that it will take some time for all Member States to increase the volume and quality of the data they insert, and that full use will not be made of it until this happens. However it seems to us that data quality is fundamental to establishing a climate of trust conducive to increased sharing of information and intelligence. It is reassuring to know that the UK inputs good quality data, but it would be even more reassuring to know that this was true of every Member State. How is the Council Decision expected to make a difference in this respect?

  You say that the Portuguese Presidency is keen to bring discussion on the draft Decision to a conclusion, and you undertake to keep the Committee informed of the progress of negotiations. No doubt there has been some progress since you last wrote, and we look forward to hearing about it. We would also be grateful if you could let us know how the Reform Treaty, if adopted, is going to influence the discussions on some outstanding issues, such as the Agency's financing. In the mean time we will continue to keep this document under scrutiny.

10 October 2007

111   21st Report, Session 2006-07, HL Paper 108. Back

112   Paragraphs 104-105. Back