Letter from Joyce Quin MP, Minister of
State at the Home Office to Lord Tordoff, Chairman of the Select
Committee on the European Communities
Thank you for your letter of 11 March about
the above. I was in any event about to write to you on the subject.
I should say at the outset that I am sorry for
the confusion there has been in respect of this particular Convention
and for any lapse in what I know have otherwise been very effective
and much appreciated liaison arrangements on Third Pillar matters
during the United Kingdom Presidency so far. We are, as we have
made clear, committed to meaningful parliamentary scrutiny of
EU instruments.
When I deposited with the Committee a supplementary
note on the draft Eurodac Convention in January we anticipated,
as I had explained to the Committee last December, that it should
prove possible to reach agreement on the draft text during our
Presidency; but at that stage it seemed likely that we would not
be in a position to get such agreement until the Justice and Home
Affairs Council in May. In the light of that expectation we did
not request that the Committee give any particular priority to
its consideration of the draft Eurodac Convention.
Since then negotiations on the draft Convention
have progressed in an encouraging manner. The fact that the completion
of Eurodac was agreed as an item on the Action Plan to deal with
the Influx of migrants from Iraq and the neighbouring region adopted
by the General Affairs Council on 26 January has given a significant
impetus to the negotiations at all levels. As a result of the
progress which has been made it recently became clear that there
is a possibility, although I would put it no more strongly than
this, that political agreement might be achievable at the JHA
Council meeting on 19 March. This would clearly be a welcome and
high profile achievement for the United Kingdom Presidency. It
is in the light of these developments that Eurodac is on the agenda
for the March Council
There are as you rightly note still some significant
issues outstanding. As you mention Austria and Germany have proposed
that EURODAC should be extended to include illegal immigrants.
This possibility has therefore been discussed. However the proposal
raises some fundamental and difficult issues. As Presidency we
could only hope to get political agreement to the draft Convention
on the basis of its current scope. Such agreement would therefore
require some flexibility from Austria and Germany given the statements
they have made.
I should also mention that there is now the
possibility that the central unit of the EURODAC system should
be run by the Commission rather than by a member state. This follows
rather belated advice from the Commission containing doubts about
the practicability of a hybrid arrangement of the sort proposed
in the draft text sent to the Committee in January. Having considered
the point we can see no reason to oppose Commission management
of the central unit. A change of this kind would require some
minor consequential amendments to other aspects of the draft Convention
and would therefore require that the text be sent back to the
Working Group. This question is one which will need to be resolved
by Ministers if speedy political agreement is to be achieved in
March. However as there are a number of States which still have
a strong preference for Member State management of the system
this may be difficult to achieve.
It is therefore a strong possibility that one
or more Member States will not be in a position to signify political
agreement to the Convention in March for these or other reasons,
despite the considerable amount of work which is being put into
resolving points of difficulty.
I should explain moreover that the formal agenda
for the Council simply includes the draft EURODAC Convention as
an item for discussion. There is as I have explained a possibility
that political agreement might be achieved at the Council; but
there is no question of the Convention being concluded and signed.
I have been unable to establish so far why the March statement
of business for the Council of the European Union suggested that
EURODAC would be concluded and signed on 19 March: but I can assure
you that there has never been any such prospect.
EURODAC is, of course, still under consideration
by the Committee. I understand that your officials have advised
that there is no realistic prospect of any conclusion being reached
by the Committee before the Council. As the government has made
clear that it is committed to meaningful parliamentary scrutiny
of EU initiatives this would place us in a difficult position
in the event that political agreement did prove to be possible.
I understand that you have recently pointed
out the apparent inconsistency in the government's giving political
agreement to proposals which are the responsibility of the Department
of Trade and Industry and the Lord Chancellor's Department whilst
at the same time maintaining a parliamentary scrutiny reserve.
I have noted this point and I am therefore letting you know that
if as Presidency it appears that political agreement is obtainable
on 19 March—which as I have made clear is no more than a
possibility—I do not believe that it would be tenable for
the United Kingdom delegation to withhold its agreement on the
basis of an outstanding scrutiny reserve. I will, of course, write
to let you know the outcome as soon as possible after the Council.
If agreement is not achieved on 19 March it would clearly be very
helpful if the Committee could turn its attention to the draft
Convention as a matter of some urgency in time for the May Council.
I would like to take this opportunity to respond
to the points made in the letter from Justice about the draft
Convention which you forwarded to me. Firstly I note that Justice
was reassured by the Government's policy in respect of the jurisdiction
to be granted to the European Court of Justice under the draft
Convention. As I explained in the supplementary explanatory note
we are prepared to take a more flexible approach to this question
in the light of developments at Amsterdam. This means that the
Government is willing to accept unqualified European Court of
Justice jurisdiction in dispute resolution; and to accept an optional
preliminary rulings jurisdiction for the Court. The United Kingdom
would not at this stage be prepared to support a provision requiring
all Member States to accept the Court's jurisdiction in this area.
Justice remains concerned, however, about the
length of time for which fingerprints may be retained after refugee
status has been granted, despite the fact that the data of those
recognised as refugees would be blocked initially. This retention
would be to allow a proper statistical assessment of the scale
of the problem of those granted asylum in one Member State subsequently
claiming asylum in another Member State. This assessment would
be made after a period of five years. At that stage a decision
would either be taken to delete such data; or to retain it in
an unblocked form because there was a problem justifying doing
so. I am not convinced that this could be considered disproportionate.
Indeed as our domestic legislation provides that the fingerprints
of asylum seekers should be deleted on the acquisition of indefinite
leave to remain—which for a person granted refugee status
would be four years later—I do not believe that the retention
allowed under EURODAC sets any sort of precedent.
The final issue raised by Justice relates to
the point made in their earlier letter about the case for the
application of the EC Data Protection Directive to the EURODAC
Convention. As Ms Colvin rightly notes in her letter the government
is prepared to take account of what was agreed at Amsterdam in
negotiating Coventions under Title VI TEU. This is demonstrated
in the approach we are now prepared to take to matters such as
Court of Justice jurisdiction, costs and the voting regime appropriate
for implementing measures. However the position with regard to
the EC Data Protection Directive is rather different. In that
case the Directive itself explicitly states on its face that its
provisions do not apply to the processing of personal data in
the course of activity under Title VI TEU. In the circumstances
we have to accept that the data protection regime which will apply
to EURODAC while it remains a Third Pillar measure is that set
out in the1981 Strasbourg Convention.
That does not mean, however, that the question
of data protection is not taken very seriously in the draft Convention.
It is—and the data protection provisions have been the subject
of prolonged debate. As a result of those discussions the text
has been further strengthened during our Presidency to try to
ensure that data subjects will be in a position to exercise rights
of access, correction and erasure should they want or need to
do so. I attach a copy of the latest version of article 11 of
the text, which has not yet been agreed, which you may find helpful
in reaching a view as to whether the rights of the data subject
will be properly protected.
I am not clear, incidentally, that there are
any provisions contained in the Directive which would be relevant
to the processing of fingerprint data in EURODAC and which would
guarantee any greater protection for data subjects than that already
provided under the 1981 Convention and under the terms of the
draft EURODAC Convention itself.
I would of course be happy to respond very quickly
to any other points which you might have on the draft Convention
before 19 March. And as I have already said I will write to you
following the Council meeting to clarify the position.
I am copying this letter to Jim Marshall as
Acting Chairman of the European Legislation Committee in the House
of Commons and to Chris Mullin as Chairman of the House of Commons
Home Affairs Committee.
18 March 1998
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