Select Committee on European Scrutiny Thirty-Eighth Report



13. EXCHANGE OF INFORMATION ABOUT DISQUALIFICATIONS

 

(23627)

9957/02

Draft Council Decision on increasing co-operation between EU Member States with regard to disqualifications.

Legal base:

Articles 31(a) and 34(2)(c) TEU; unanimity; consultation

   

Document originated:

13 June 2002

Deposited in Parliament:

8 July 2002

Department:

Home Office

Basis of consideration:

EM of 18 July 2002

Previous Committee Report:

None

To be discussed in Council:

Justice and Home Affairs Council 28-29 November 2002

Committee's assessment:

Legally and politically important

Committee's decision:

Not cleared; further information requested

 

Background

    1. At its meeting in Tampere on 15 and 16 October 1999 the European Council endorsed the principle of mutual recognition as the future cornerstone of judicial cooperation in both civil and criminal matters within the EU. The Council concluded that the principle should apply both to judgments and to other decisions by judicial authorities.
    2. The document

    3. The draft Council Decision envisages the establishment of a network of national contact points in Member States to exchange information on disqualifications that restrict a person's access to employment.
    4. Article 1 states that the draft Decision is intended to apply to all such disqualifications imposed "as part of a judgment or as a corollary of a criminal conviction, and which restrict the convicted person's access to employment, with the exception of driving disqualification."
    5. Article 2(1) imposes a general duty on national contact points to obtain and supply information on disqualifications "in accordance with relevant international agreements and national legislation." Article 2(4) adds a general duty of Member States to ensure the effective operation of the newly-created bodies.
    6. To ensure such effectiveness Article 3 (1) gives the new body wide-ranging powers of access to national criminal records as well as other appropriate sources of information on disqualifications. Article 3(1) reiterates the principle that access to and supply of information on criminal convictions by national contact points is limited to cases where this is done in compliance with "relevant national and international rules". Article 3 (2) states that national contact points are under an obligation to supply information when a request has been made by a contact point in another Member State, but Article 3 (3) restricts that duty to supply the requested information without the consent of the person concerned to requests made in the course of a criminal prosecution. Where a request is not made in the course of a prosecution, it is open to Member States to make provision of any relevant information conditional upon the consent of the person to whom it relates.
    7. Finally, Article 4 imposes an obligation on Member States to inform any other Member States of disqualifications in respect of the latter Member State's nationals.
    8. The Government's view

    9. In his Explanatory Memorandum of 18 July 2002 the Minister (Mr Bob Ainsworth) expresses the Government's support, in principle, for the proposed measure as a welcome extension of existing agreements and mechanisms for the exchange of information in conjunction with criminal convictions and associated penalties. He states:
    10. "The exchange of information between Member States is already provided for in the 1959 European Convention on Mutual Assistance in Criminal Matters. Under Article 22 of the Convention, each contracting party is required to inform any other party of criminal convictions in respect of nationals of the latter party. The draft Decision builds on this by establishing a specific network of national contact points for this purpose. It also extends the instances where information must be exchanged to persons who are resident or who carry on a business in the latter Member State, and provides for ad hoc enquiries about whether a person is subject to a disqualification."

    11. The Government does, however, express some concerns about the proposed Decision. First, the Minister notes:
    12. "it is not clear how it progresses the mutual recognition programme or the wider Tampere agenda. Although, the recitals refer to mutual recognition, the draft Decision does not implement any of the measures in the mutual recognition programme (Explanatory Memorandum 9737/00 Rev 5 on this document was deposited for scrutiny on 20 November 2000). For example, it does not provide for mutual recognition of disqualifications (measure 22) and it has been brought forward before conducting a feasibility study on the best method of exchanging information on disqualifications (measure 21). It is therefore unclear why the draft Decision has been brought forward at this time. Information on disqualifications can already be exchanged under the 1959 Convention, but without mutual recognition Member States are often unable to act on it effectively. The Government has sought clarification on these points."

    13. Secondly, the Minister states that the Government is seeking clarification of the scope of the proposal. He states:
    14. "The text refers to disqualifications imposed as 'part of a judgment or as a corollary of a criminal conviction'. This could encompass a wide and diverse range of disqualifications — both in the UK and in other Member States — and could prove impractical. For example, it could include disqualifications imposed by professional bodies after the completion of criminal proceedings. This would present considerable difficulties for collecting the information and for identifying a suitable contact point. The feasibility study proposed in the mutual recognition programme would have addressed these points."

    15. Finally, the Minister states that "the Government will want to ensure" that any arrangements for exchanging information that may be adopted under the proposed Decision will "take proper account of the need for confidentiality."
    16. Conclusion

    17. We share the Government's concerns about the lack of clarity of the scope of this proposal. In particular, we ask the Minister if he can explain what is meant by a 'corollary of a criminal conviction.'
    18. We ask the Minister what changes, if any, would be needed to the law of the United Kingdom to permit the exchange of information and if the UK will make the supply of information conditional on the consent of the person to whom it relates.
    19. We shall hold the document under scrutiny until we receive the Minister's reply.

 


 
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