HOUSE OF COMMONS
Second Standing Committee on Delegated Legislation
DRAFT EUROPEAN POLICE OFFICE (LEGAL CAPACITIES) ORDER 1996
Tuesday 3 December 1996
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The Committee consisted of the following Members:
Chairman: Mr. Michael Lord
Amess, Mr. David (Basildon)
Brooke, Mr. Peter (The City of London and Westminster, South)
Chapman, Sir Sydney (Chipping Barnet)
Corston, Ms Jean (Bristol, East)
Fraser, Mr. John (Norwood)
Kaufman, Mr. Gerald (Manchester, Gorton)
King, Mr. Tom (Bridgwater)
Luff, Mr. Peter (Worcester)
Maclean, Mr. David (Minister of State, Home Office)
Miller, Mr. Andrew (Ellesmere Port and Neston)
Montgomery, Sir Fergus (Altrincham and Sale)
Quin, Ms Joyce (Gateshead)
Sainsbury, Sir Tim (Hove)
Spearing, Mr. Nigel (Newham, South)
Taylor, Mr. John D. (Strangford)
Tipping, Mr. Paddy (Sherwood)
Trend, Mr. Michael (Windsor and Maidenhead)
Wells, Mr. Bowen (Lord Commissioner)
Young, Mr. David (Bolton, South-East)
Mr. T. W. P. Healey, Committee Clerk2 3 Second Standing Committee on Delegated Legislation Tuesday 3 December 1996
[MR. MICHAEL LORD in the Chair]
Motion made, and Question proposed, That the Committee has considered the draft European Police Office (Legal Capacities) Order 1996.—[Mr. Maclean.]
Ms Joyce Quin (Gateshead, East): As I knew that I was to be on the Committee only a couple of days ago and it is not my normal area of policy, and given some of the background to the Europol legislation, I find it difficult to comment authoritatively, but I want to ask the Minister one or two questions. The Opposition do not oppose the order because we understand that it arises from the commitment entered into at the time of the treaty of Maastricht and the agreement on Europol. However, I wonder why this order giving Europol its legal identity has been separated from the rest of the Europol convention. I understand that there is also a protocol to the Europol convention. Has Parliament considered it, or will we consider it separately? In general, the Opposition have approved the Government's approach to Europol, but there are elements that need to be scrutinised further by Parliament. We agree with the Government that Europol should be essentially an intergovernmental arrangement and part of the third pillar of the Maastricht treaty. None the less, as members of the Committee who are also members of the Select Committee on European Legislation will know, there is concern about effective scrutiny of third pillar matters, including matters that arise from Europol. I understand that most countries in the European Union will go through the process of ratifying the Europol convention, whereas the United Kingdom Parliament has dealt with it via statutory instruments and given it only perfunctory scrutiny. Will the Government give us an opportunity for a more in-depth debate on some of the interesting issues that arise from it? To judge from the history of parliamentary comment on Europol, the most detailed work has been done by their Lordships in another place in two debates about Europol in 1993 and 1995. I wish briefly to refer to the two principal points made by their Lordships in those debates. The first related to scrutiny of this and third 4 pillar issues. Do the Government propose to improve the scrutiny of this legislation? The Government—we have supported them in this matter—feel that Europol should be intergovernmental, but that means that final decisions are taken in the European Council of Ministers, which operates behind closed doors so that unless the Government make special provision for parliamentary scrutiny, it will be difficult for hon. Members to find out what is going on. I hope that the Minister will address that point. If we feel that this issue is not dealt with satisfactorily, we shall reserve the right to try to hold debates on Europol and the third pillar in the weeks and months ahead. Secondly, their Lordships were rightly concerned about information that might be kept on our citizens by Europol in its data banks and how, without recourse to the European Court of Justice, citizens could find out what information was being kept on them by Europol. I understand that an independent joint supervisory body is supposed to look at those issues but we want an assurance that that body will function effectively if UK citizens will be unable to take matters to the European Court of Justice. Their noble Lordships felt that this was an important issue and, having read their speeches, I must say that I agree with them. If disputes arise between member states about Europol, or between Europol and a particular member state, how will those be redressed, given the conflicting views of the UK Government and the other 14 Governments of the European Union. If disputes arise, there must be a satisfactory method of dealing with them. I stress that I support the Government in their intergovernmental approach but if the system is to come into operation, it needs to work effectively. I understand from an article that I read that the expert assessment is that the Europol computer system will be ready mid-1999. Does the Minister wish to comment on the delay occasioned in tackling that work? Will any UK companies get some kind of business from the introduction of the Europol computer system? A press release that the Government issued in 1995 on Europol said that it was too early to say how much Europol would cost this Government and this country, as well as other countries in the European Union. Although not a great deal seems to have happened since 1995 in this connection, it would interest the Committee if the Minister had any up-to-date information on the cost of Europol.
Mr. Nigel Spearing (Newham, South): As this may be our only opportunity to look at this important convention, will the Minister say whether there has been any other debate or whether this will be debated again? I suspect that this delegated legislation is, in 5 effect, the constitutional ratification required under the Maastricht treaty. The problem is that we cannot tell at this stage whether Europol will be a genuine international organisation—one of co-operation—or whether it will eventually become the seed of some people's fears. Some hon. Members—not myself—may perceive Europol as a Federal Bureau of Investigation of the united European state. I use the singular because most of the possibilities appear to be there, at least in seedling form. I shall ask the Minister a few graphic questions. Incidentally, the order is not very clear. No White Paper or memorandum has yet been issued. What is the objective? "Any other crime", according to the appendix, includes one laconic word: "corruption". That is strange because it is a very wide matter for an international body to deal with. Under article 4, we are to designate a national unit. Will that be the Home Office or the Metropolitan Police, because, unlike other states, we have no specific national police force other than the Metropolitan Police, who co-ordinate to some extent. Article 23 says that "Each Member State shall designate a national supervisory body" that will monitor independently. I wonder which body that will be. We have enough difficulty to have a London supervisory body on the Metropolitan Police. I have clashed with the Home Secretary over that issue on many occasions. He appoints members to look after himself, so I wonder we are to deal with that. Perhaps the Minister will tell us. Article 24 is about the joint supervisory body. It says: "An independent joint supervisory body should be set up, which shall have the task of reviewing, in accordance with this Convention, the activities of Europol". It sounds healthy, but it depends what our national supervisory body and those of other countries are. It could mean a powerful consumer voice, or a Government voice; or it could mean rather less. Article 28 sets up a management board. Paragraph 2 says: "The Management Board shall be composed of one representative of each Member State. Each member of the Management Board shall have one vote"— presumably Luxembourg as well as everyone else. How will our management member be appointed and to whom will he be accountable? Article 30 relates to staff. The director will engage and dismiss employees. I do not disagree with that; I presume that it puts responsibility where it should be. I hasten towards the conclusion, to the declaration, which does not form part of the document. Will the Minister clarify that? My understanding of a 6 declaration in a document of this sort is that it is not part of the internationally legal wording of a treaty or, in this case, a convention. The declaration in article 40 (2) is about the European Court of Justice. As my hon. Friend the Member for Gateshead, East (Ms Quin) mentioned, perhaps wisely from my point of view, although not from hers—the convention is not to be subject, in this country at least, to proceedings under the European Court of Justice. That is a wise step, but to what extent is that a declaration under the Vienna convention—if indeed the convention comes within the definition of a convention rather than a treaty with any substance? Finally, I refer to something that occurred only this very morning and which could have an important bearing directly, and perhaps practically, on the Europol convention. In a Room along this Corridor, the Minister of State at the Foreign Office revealed that the United Kingdom and Denmark were the only two states at this stage who oppose a merging of the so-called "third pillar"—the home and justice pillar of the treaty—with the so-called "first pillar", which is the treaty of Rome and the whole of the institution structure of what was originally the Common Market and is now the European Union. It would have considerable implications if the whole of the third pillar, of which this is to be part, were merged with the rest of the treaty and the wider Union was, in this area at least, joined with the European Parliament, the European Court of Justice, the Commission and the Council of Ministers as distinct from the intergovernmental conferences and councils, which will be used at large, namely pillars J and K. I hope that those are relevant points and that the Minister can give some answers. We do no know where this body is to go—we hope that it will not go too far.
Mr. Andrew Miller (Ellesmere Port and Neston): May I pursue briefly the point raised by my hon. Friend the Member for Gateshead, East about data protection and its consequences. We are still awaiting a Government response to their consultation process on the European draft directive on data protection. There are a number of different routes that the Government could follow as a result of that consultative process. It therefore seems logical to ask how the Government envisage the data protection issues that stem from the questions raised by my hon. Friend the Member for Gateshead, East. How will they be dealt with in the context of this draft statutory instrument, given that we have not yet received a response from the Government on the much wider issue of the European draft directive on data protection?7
Mr. Maclean: I congratulate the hon. Member for Gateshead, East on coming to this issue new and fresh, but asking some very pertinent points. The hon. Member for Newham, South (Mr. Spearing) also raised some valid points, as did the hon. Member for Ellesmere Port and Neston (Mr. Miller) who has just spoken. Fortunately, I can answer all of them, perhaps not to the full satisfaction of the Committee, but I hope that the answers will be satisfactory. The hon. Lady and the hon. Member for Newham, South asked what further scrutiny will take place, why we are doing this in separate debates, and whether there will be any other debates. The answer is that there will, as far as I am aware, be no other debates on this. We are dealing with a convention that does not fall under our normal legislation applying to European Union matters and the House's special procedures; we are dealing with another convention—ones made under the third pillar are similar to those that I signed at the Rio earth summit—so we follow the rules for ratification of treaties—the Ponsonby rules—under the treaty itself and the important protocol to it, signed last year. The protocol and the treaty have been laid before the House for the relevant period under the Ponsonby rules and then the Government can proceed to ratification. The only legislation that we require to implement the treaty in the United Kingdom is this order, which creates a legal entity in Europol under article 26 of the treaty. It has to have legal effect in order to be a legal body, buy and sell property and operate. The hon. Members for Newham, South and for Gateshead, East might not like that answer but I cannot go into what procedures the House should have to scrutinise all similar treaties. I am not aware that further scrutiny will be given to this treaty.
Mr. Spearing: I am grateful to the Minister for that helpful elucidation. He will know that the Ponsonby rules were invented in the 1920s in very different international circumstances. Does he agree that, in view of the prospect of pillar three being joined to the earlier Roman trunk and the fact that this may be discussed at the intergovernmental conference, the procedure, which might not even be debated, needs to be looked at afresh because of the changed international circumstances?
Mr. Maclean: This interesting point may or may not carry a lot of weight with the House and with business managers, but I should not like to be quoted as suggesting that the procedures of the House are inadequate or need to be reformed. To be fair, the House has been given quite a bit of information on this. We sent an explanatory note on the then draft convention on 22 February 1994; supplementary explanatory notes with revised drafts of the convention 8 were provided on 17 November 1994 and 31 May 1995; and the final text of the convention, together with accompanying explanatory notes, were forwarded on 28 July last year. The hon. Member for Newham, South may have a valid point, but I cannot stray today into the territory of deciding what sort of scrutiny rules are required for conventions in the future.
Ms Quin: If the Minister is saying that the scrutiny process will be completed after this order, does that mean that the agreed protocol to Europol is somehow included in the order, or will that have to be ratified separately? I refer to an article that the Library helpfully provided me with in a publication called Statewatch of August this year, which says that "The UK has already virtually completed the ratification process of the Convention … but will now have to put the Protocol through the same unopposed process."
Mr. Maclean: Yes, but that process does not require further parliamentary debate and, although it may give ammunition to the hon. Member for Newham, South, were it not for article 26 of the treaty, which requires a legal change to give Europol legal status in this country, there would have been no debate on either the treaty or the protocol. There will not be a separate legal requirement to implement the protocol. That is done by the Government's executive Act and by order of Council—I cannot remember the exact technicalities. The ratifying of treaties and the protocol are done by executive Act of the Government and it requires no other motion to be put before this House, nor further debate on it, so the protocol has been considered at the same time. In one sense, neither the treaty nor the protocol have been considered today. But as we have before us an order to give legal effect to article 26, the relevant background documents—vital background documents—are both the treaty and the protocol. That is the best layman's way to describe it. The hon. Member for Newham, South asked whether Europol was the prototype for an FBI. We certainly do not think so, and there is no way that we would have signed up to this if we thought it could be engineered into an FBI. The task of Europol is intelligence gathering. It will have no operatives in the field, and no operational arm. It is an intelligence analysis and gathering organisation. We shall get out of Europol only what we put into it. If Britain and other countries do not feed in information on the criminals that we are interested in, we will get very little out from the other end of it. The hon. Gentleman also asked which national unit would deal with Europol. That national unit is the National Criminal Intelligence Service. It has nothing to do with the Metropolitan Police or the Association of Chief Police Officers. A police Bill in another place at the moment is putting National Criminal Intelligence Service on a proper statutory footing. So that would be the British point of contact. 9 The national supervisory body referred to will deal with data protection and we intend that it will be the data protection registrar in Britain. So the national supervisory body will look at aspects of data protection. The hon. Gentleman spotted somewhere in the treaty that there has to be a joint supervisory body in Europol. We intend that a senior officer of the data protection registrar's office, properly vetted and so on, will be our nominee on that Europol joint supervisory body. Who will be the British representative on the management board? We intend that that will be a senior Home Office official who has participated on the management board. The hon. Member for Newham, South asked whether the declaration was in the treaty: this declaration is part of the treaty but I refer the hon. Gentleman to the protocol, because the protocol is the vital element. It was invented after the treaty because the European countries could not agree the disputes resolution procedure contained in article 40. As the Committee will know, some countries wanted to involve the ECJ. So a protocol was invented to allow countries, if they so wished, to use the ECJ to give preliminary rulings on disputes. It also built in a provision that, if countries did not wish to use the ECJ, they did not have to. Britain has made it clear that we do not wish to involve the ECJ even to give preliminary rulings to British courts who will be the final arbiters on interpretation of the treaty. However, if, for example, France and Germany have a dispute in which we have an interest and they are resolving it in the ECJ, the protocol allows all countries to feed in views and make submissions but not necessarily be bound by it. We have said that we want British courts to be the final arbiter where disputes are taken to court. Where countries disagree, we wish it to be settled by the procedure in article 40 of the treaty which is the dispute resolution in the Council of Ministers.
Ms Quin: The Minister said that the Government wish disputes between Governments to be settled in the Council of Ministers, but if the other Governments have a different interpretation, because they want to use the European Court of Justice, how is that dispute between them and the British Government resolved?
Mr. Maclean: Let me be clear. Perhaps, through speed, I have not been clear enough. If there is a dispute between other countries, they have the right to go to the European Court of Justice if they wish. I can understand that some countries might wish to do so because they will incorporate the convention into their national law. But if a dispute involves Britain as a party, we have said that we will not take it to the ECJ, so we cannot be forced by another country to go to the ECJ. Therefore, any dispute between Britain and another country will have to be resolved according to 10 article 40 procedures in the treaty, and those procedures envisage it being settled in the Council of Ministers. This is a very important principle to us. We have said that in many areas disputes between countries should be settled not by a court that we sometimes see as increasingly political but between the countries and politicians in the Council of Ministers. I hope that that is a full answer to the hon. Member for Gateshead, East. The hon. Lady asked me about the cost. The best update that I can give her is that the cost of Europol to the British taxpayer in the current year is £760,000. I envisage that it will rise in future years as it gets up and running, but, again, we will be ruthless in trying to ensure that it does not become a great bureaucracy with costs running away from us. I do not know when the computers will be up and running. I merely speculate that every computer project that I have been involved in, whether in Government or elsewhere, never quite runs according to schedule. I would also speculate that, in view of all the data protection rules built into the treaty, all the requirements to protect people's rights and privileges, the way in which every piece of information must be logged in the name of the inputting country, and the fact that receiving countries must also have their information put on computer and the liaison officers must have access to it, it will be a pretty big computer and a pretty sophisticated programme. Britain will insist that the programme is up and running as soon as possible and is as straightforward as possible. Finally, all Opposition Members asked about the important matter of data protection. Britain is in the fortunate position that, with our existing data protection legislation, we do not need to make any legislative changes in order to ratify this treaty immediately. We not only have our own data protection legislation; there is also the European directive on data protection. We envisage all those rules, regulations and statutory provisions continuing exactly as they are at present, with the same rights of access or refusal to give information to a subject who is, for example, on any of our criminal records computers at present. The same British rules would apply to any British subject who wanted information, whether or not he was on the Europol computer. This is one of the largest parts of the convention and one of the most complicated, and the only way in which we could satisfy all countries was to have the complicated rule that Europol would implement the data protection legislation in each individual country. It could be the case, but it is what we have had to accept and I think it is sensible, that a British subject seeking information from Europol's computer could have different rights of access from a Dutch or French man asking the same question. But those rights should 11 exactly correspond to the data protection legislation in each country. We say that data protection is important. That is why we intend to nominate the Data Protection Registrar to supervise access. I hope that I have been full in my reply, although not over-long, and that I have dealt with all the questions 12 that Opposition Members asked. On that basis, I commend the order to the Committee.
Question put and agreed to.
Resolved, That the Committee has considered the draft European Police Office (Legal Capacities) Order 1996.
Committee rose at one minute to Five o'clock.
THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:
Lord, Mr. Michael (Chairman)
Chapman, Sir Sydney
Montgomery, Sir Fergus
Sainsbury, Sir Tim