Select Committee on European Communities Tenth Report

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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