Select Committee on European Communities Fourteenth Report


APPENDIX 5

DRAFT CONVENTION ON MUTUAL ASSISTANCE AND CO-OPERATION BETWEEN CUSTOMS ADMINISTRATIONS (NAPLES II)

EXPLANATORY NOTE ON WORK CARRIED OUT UNDER TITLE VI (JUSTICE AND HOME AFFAIRS) OF THE TREATY ON EUROPEAN UNION

SUBMITTED BY HM CUSTOMS AND EXCISE

  This explanatory note and the attached document are being made available to Parliament in line with the Government's commitment to keep Parliament informed of work being carried out under Title VI (the Justice and Home Affairs Pillar) of the Treaty of European Union. The proposal under discussion would not lead to Community legislation, does not form part of a communication from one Community Institution to another and is outside the scope of the scrutiny rules that apply to Community proposals.

Subject Matter

  1. Attached to this note is the draft text of a Convention on Mutual Assistance and Co-operation between customs Administrations of the European Union (Naples II). Discussions on a new Convention began in 1992. Early drafts of the Convention incorporated proposals for a Customs Information System (CIS) which were subsequently removed and progressed under a separate Convention. An explanatory note in relation to the CIS Convention was submitted to Parliament on the 8 March 1994, while the Convention itself was signed by the Council at Cannes in June 1996. Following agreement on the CIS Convention work resumed on the draft Naples II Convention.

  2. The draft Naples II Convention will update and develop the existing 1967 Naples Convention on Customs Co-operation and is designed to improve Customs cross-border co-operation in the fight against drugs trafficking and other customs offences. The forms of co-operation proposed under the Convention are of considerable operational value and the Convention will increase the pressure on Member States to participate in such activities.

  3. In the UK, the offences that the Convention will cover are solely a matter for HM Customs and Excise. In some other Member States, the powers of customs services are more limited and the Convention will apply to law enforcement agencies other than Customs in those Member States.

  4. The Convention will provide for "administrative" assistance between Customs authorities. For example, it sets out procedures to be followed when one Member State requires information from another Member State; it will provide for a Member State to carry out surveillance or to make enquiries in its territory on behalf of another Member State; and it will commit Member States to offer spontaneous assistance when they come across information which may be of use to other Member States in the day-to-day customs co-operation in the EU.

  5. The Convention will also provide for "special forms of co-operation" between Customs authorities. Title IV of Naples II will allow law enforcement officers from one Member State to conduct certain activities on the territory of another Member State. These special forms of co-operation include hot pursuit, cross-border surveillance, covert investigations and controlled deliveries. However, the Convention will allow those Member States that wish to opt out of certain forms of co-operation.

  6 Article 20 - hot pursuit - will authorise law enforcement officers to cross borders without prior approval where the matter is so urgent that officials of the Member State being entered cannot be contacted before the border is crossed. When in hot pursuit those law enforcement officers will be able to detain suspects, conduct searches and carry their official firearms, use of which would be permitted in self-defence. Member States may opt out of this Article.

  7. Article 21 - cross-border surveillance - will authorise law enforcement officers to continue their surveillance of someone suspected of committing customs offences after that person has entered another Member State's territory. Such surveillance will require the authorisation in advance of the Member States concerned except in particularly urgent cases where obtaining permission in advance is impractical. In the latter cases the Member State concerned would be notified immediately after the border is crossed and a request submitted at that point. Member States may opt out of all or part of this Article.

  8. Article 22 wil provide for controlled delivery. This technique enables customs authorities to allow consignments of drugs and other prohibited goods to pass through their controls and be kept under surveillance until they reach their final destination. This technique is valuable in cross-border investigations as it allows investigators to discover more about the criminal organisations involved in the operation, and is effective in disrupting criminal gangs.

  9. Article 23 will provide for covert investigations in the territory of other Member States. Such investigations would only ever take place with the approval of the host Member State, and the host Member State would be able to set any conditions it wished.

  10. Article 24 will allow groups of Member States that wish to set up joint special investigation teams to carry out investigations requiring simultaneous action in the Member States concerned and to co-ordinate joint activities.

  11. Article 25 sets out data protection arrangements in respect of data transmitted both electronically and manually. This Article covers the procedures to be followed in relation to data transmitted, and the rights of individuals to know what data about them has been transmitted and to have erroneous data amended or deleted.

  12. The Convention will provide for a role for the European Court of Justice (ECJ). The Article providing for this is not yet set out in the draft text of Naples II. The Luxembourg Presidency has suggested that the role for the ECJ should be along the lines envisaged for new Third Pillar Conventions under the new Amsterdam Treaty, namely jurisdiction for rulings on disputes between Member States; on disputes between Member States and the Commission, and optional preliminary reference jurisdiction.

Ministerial Responsibility

  13. The Chancellor of the Exchequer.

Legal and Procedural Issues

  14. An Order in Council will be needed to specify the Naples II Convention as a "Community Treaty" under the European Communities Act 1972. This will empower the Commissioners of HM Customs and Excise to co-operate with other Member States by exchanging information or otherwise. This process is straightforward, and will not confer any new powers on HM Customs and Excise. The 1967 Naples Convention was specified as a Community Treaty in this way.

  15. As currently drafted, paragraph (e) of Article 25 on manual data protection would require new legislation in the UK.

Policy implications

  16. The Government is keen for Naples II to be agreed and implemented. It provides for investigative practices which are important tools in combating drug trafficking and other customs offences. HM Customs & Excise are usually already able to conduct cross-border investigation using the "special" techniques provided for in Naples II by means of bilateral or informal arrangements. The formalisation of these arrangements in a Convention should help to ensure the continuation of such arrangements and increase pressure for improved co-operation across Europe.

  17. The Government believes that most of the provisions of the Convention relating to cross-border co-operation would be of operational benefit. However, the Government does not see any operational need for hot pursuit provisions in relation to the UK. Given our geography, the circumstances in which smugglers have the opportunity to turn tail and flee back across the border are extremely rare. Pursuit into or out of UK territory is conceivable only in the circumstances of non-passenger boats and aircraft and on the Northern Ireland land boundary (where obvious special security considerations apply in any case). In the air and maritime scenarios (including the Channel Tunnel) it ought to be possible for the relevant law enforcement services of the Member States involved to be contacted in advance. The absence of such provisions has not to date hindered our law enforcement work. If the UK were to apply the hot pursuit provision it would need to enact new primary legislation giving foreign law enforcement officials powers to detain suspects, conduct searches and carry and use their official firearms. The Government is against this. It would ultimately serve no useful purpose. A provision has been negotiated allowing Member States to declare that they will not be bound by this Article. The Government intends, therefore, that the UK will not apply Article 20 of the Convention relating to hot pursuit.

  18. Likewise, because of our geographical separation the Government does not see any operational necessity to provide for cross-boarder surveillance without prior approval. It intends that the UK should opt to be bound only by that part of Article 21 which allows cross-border surveillance with the prior approval of the Member State in whose territory the surveillance will take place. This means that the UK will retain the right to refuse requests for surveillance; will be able to set strict conditions before allowing surveillance within our territory; and HM Customs and Excise will always be in a position to supervise any surveillance activity by law enforcers from other Member States in this country.

  19. Article 25, paragraph (e) of the draft Convention covers the rights of people to receive information on any electronic or manual data concerning them which customs services have exchanged. As currently drafted this would oblige Member States to enshrine such rights in law in ways which would necessitate new legislation in the UK before we could ratify the Convention. This would seriously delay ratification of this important Convention. However, in recent working group discussion, officials have negotiated an amendment to the text allowing a combination of legal and administrative provisions to apply. This would enable the Convention to be ratified without new legislation in the UK. Provided this amendment is reflected in the final version of the text, the Government can accept the Data Protection provisions.

Financial Implication

  20. The Convention has no financial implications.

Timing

  21. The Report of the High Level Group on Organised Crime which was endorsed by the Amsterdam Council recommended that the Naples II Convention be agreed by the end of this year. The Luxembourg Presidency are hoping to secure political agreement by the end of this year. It is possible therefore that it may be submitted to Council for agreement early in December.

  22. If agreed, the Convention would be subject to national ratification procedures in Member States and would enter into force 90 days after the last Member State notified the Council Secretariat of its adoption.

12 November 1997

Letter from Lord Tordoff, Chairman of the European Communities Select Committee to Dawn Primarolo MP, Financial Secretary to the Treasury

  I refer to the above matter and to the Explanatory Note from HM Customs and Excise dated 12 November 1997. The text of the draft Convention has been sifted to Sub-Committee E (Law and Institutions) for detailed consideration.

  I note that your Explanatory Note suggests that political agreement may be reached on this matter at the Justice and Home Affairs Council in early December. The delay in depositing this document for scrutiny is inexplicable considering that reference was made to the on-going work on this measure in the Luxembourg Presidency's Work Programme for the relevant Third Pillar Steering Group which was sent to the Select Committee by the Home Office on 24 July last. The Work Programme states: "The Presidency will continue the work on the so-called Naples II Convention and will attempt to reach agreement on the questions outstanding so that the Convention can be signed before the end of the year thus complying with the deadline set by the Amsterdam European Council" This clearly indicates that a draft text of the Convention was in circulation at that time and could have been deposited for scrutiny.

  I am dismayed at the manner in which your Department has dealt with this proposal and its disregard for the Parliamentary scrutiny process. It is unacceptable that a proposal of this magnitude and significance is deposited in Parliament when it is practically a fait accompli. The seriousness of the delay is compounded by the fact that when your Department did finally submit an Explanatory Note the text of the draft Convention was not submitted at the same time and my officials had to contact your Department to ask for a copy. Furthermore, when the text of the draft Convention was finally provided the Council Secretariat's cover sheet indicated that it dates from 9 October.

  At its last meeting Sub-Committee E decided to conduct a short enquiry into the draft Convention on Mutual Assistance in Criminal Matters, the documents relating to which make several explicit references to the Naples II Convention. The Sub-Committee will wish to consider the interaction between the two Conventions and will not be in a position to complete its work prior to the next Justice and Home Affairs Council due to be held on 4-5 December when it is expected that political agreement will be reached on the text of the Naples II Convention. I expect, therefore, you will withhold the Government's agreement on this proposal until such time as Sub-Committee E has completed its current enquiry.

  Prior to the summer recess Sub-Committee F (Social Affairs, Education and Home Affairs) completed an enquiry into the existing procedures for Parliamentary scrutiny of Third Pillar proposals. The Sub-Committee made a number of detailed recommendations aimed at ensuring that Parliament receives Third Pillar documents in good time to allow the scrutiny committees to undertake detailed examination of their provisions. I enclose a copy of the Sub-Committee's Report for your consideration.

19 November 1997

Letter from Dawn Primarolo MP, Financial Secretary to the Treasury to Lord Tordoff, Chairman of the European Communities Select Committee

  Thank you for your letter of 19 November about the Explanatory Note on this Convention which I submitted on 12 November. I am very sorry that my Department did not submit an Explanatory Note on this Convention at a much earlier stage.

  I agree that the delay in submitting an Explanatory Note on this Convention was unacceptable and cannot be excused. I have asked my officials to ensure that this does not happen again. The Government inherited negotiations on this Convention in May and since then has had to form a view on it. The speed at which the Luxembourg Presidency has attempted to move negotiations forward since late September has meant that they have been producing a series of unofficial texts each of which has rapidly been superseded. When it became apparent that a text had emerged which had a realistic prospect of being negotiated to a conclusion the Explanatory Note was submitted with the latest text at that stage.

  In recent weeks the Presidency have conducted an intensive round of negotiations at official level on the Convention. These negotiations have concentrated on the outstanding reservations which a number of Member States had with various aspects of the Convention. The Presidency seem to have brokered solutions on these outstanding points although formal texts have not always been produced and often not in languages other than French. A consolidated text reflecting these latest negotiations has only been produced within the past couple of days and you may find it helpful to have that together with a supplementary EN (attached). It is possible that the Presidency may put this text to the Justice and Home Affairs Council on 4-5 December. If this Council is invited to consider this text it is my intention that the Government would indicate that although it believes the text is in principle satisfactory it remains subject to scrutiny consideration by Parliament.

  As you have indicated in your letter, the Amsterdam European Council earlier this year endorsed the report of the High Level Group on Organised Crime which included a recommendation that the text of this Convention be finalised by the end of this year. The Luxembourg Presidency efforts have been geared to this end and they recently announced their wish to have the Convention agreed and signed on 18 December. In substance the Government is extremely keen to see this measure, aimed against crime and drugs, agreed as soon as possible. This is just the sort of area of EU activity which the Government wishes to promote in order to bring the EU closer to the people. I understand that in the several other Member States which apply Parliamentary scrutiny to third pillar documents the speed of the Presidency action has required them to make extra efforts to clear their scrutiny processes more quickly than would normally be the case. It is probable that if the UK is unable to complete its scrutiny process before 18 December it alone will have to block signature of this Convention. Such a block would be particularly unfortunate with our own Presidency of the EU about to start. It may wrongly be thought that the UK has deliberately obstructed agreement in order to claim credit during its own Presidency and this may lead to a loss of goodwill which would make our conduct of a successful Presidency more difficult.

  I entirely accept that it was the failure of my Department to submit an Explanatory Note at an early enough stage which has given rise to this difficulty. However, given the adverse consequences for the UK which I believe will follow if we are not able to agree this Convention this year, I would be extremely grateful if you could consider whether there is any way that your Committee could expedite clearance before 18 December.

28 November 1997


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1998