PRUM TREATY: INCORPORATION INTO
EU LAW
Letter from Joan Ryan MP, Parliamentary
Under Secretary of State, Home Office to the Chairman
I thought it would be helpful to write to you
in advance of the February JHA Council to give you some early
information on German Presidency handling in relation to the possible
incorporation of the Prum Convention into EU law.
As you know from my recent written statement
on the outcome of the Informal JHA Council in Dresden, the current
Presidency has made clear that incorporation of Prum is
one of its top priorities in the JHA area, and indicated then
that it intended to bring forward a formal proposal to that effect
in advance of the February Council. The latest draft agenda for
the Council has an item on it entitled "Integration of the
Prum Convention into the Union legal order—Discussion
and Decision on further proceeding"
Although no such formal proposal has yet been
tabled (and, hence, no EM yet submitted), we hope to have a formal
proposal by the beginning of next week in advance of the JHA Council.
However the Presidency has now circulated draft Council Decisions
on the transposition of the Prum Convention, which are likely
to be similar to the formal proposal. I wanted therefore to draw
these to your attention as soon as I was able and to inform you
of the Government's intended approach to the Council discussion.
In broad terms, we favour in principle the rapid
incorporation of Prum into EU law, since we believe that
it has the potential to provide UK police and law enforcement
agencies with additional valuable tools in the fight against cross-border
crime and the detection of individuals, including foreign nationals,
who have committed crimes abroad and individuals who have committed
crimes and travelled abroad to prevent detection.
DATA SHARING
PROVISIONS
In particular, the key data sharing aspects
of Prum, which form the main element of the draft Council
Decisions, implement the principle of availability, agreed by
the Council in 2004. Prum provides a ready-made mechanism
for the exchange of information between police and law enforcement
bodies in relation to DNA, and fingerprint data, on a "Hit/No
Hit" basis and subject to appropriate data protection arrangements.
In Germany and Austria where parts of the Prum
Convention and therefore, Annex A is already being implemented,
the operation of the "hit/no hit" system has resulted
in hits on a large number of murders, rapes and other serious
crimes with a cross-border element. I should make clear that the
"Hit/No Hit" basis means that any search against appropriate
databases would do no more than confirm the existence of this
strand on the database of the other member state (hit) or to deny
the existence on the database (no hit). Any further personal information
would have to be obtained through Mutual Legal Assistance, as
is the current situation. Therefore Prum does not give greater
access to personal information but allows for the police to locate
and obtain the information more swiftly.
The Informal Draft Council Decision would allow
for direct access to vehicle registration data, this would mean
access to the data on Vehicle Registration but not to driver licensing
data. It should be noted that this is the same data that private
companies and the general public can access for a small fee.
ARTICLE 18—MEASURES
IN THE
EVENT OF
IMMEDIATE DANGER
Article 18 of Annex A is one of the reasons
that the UK was cautious about signing the original Prum
Convention (In which Article 18 is Article 25, attached for your
reference Annex B). The Article is designed for states with extensive
land borders who may have a situation, such as a train crash,
which would need to be immediately dealt with by the nearest police.
We therefore doubt that it is operationally feasible or desirable
for the UK.
In addition, whilst the focus is on urgent situations,
the Article does not preclude "hot pursuit" in a situation
such as a kidnapping where there may be "immediate danger
to life or limb." The UK does not participate in Article
41 of the Schengen Aquis on "hot pursuit". Furthermore,
Article 18 (4) requires signatories to accept liability for foreign
officers operating in our territory. This would require primary
legislation.
Therefore we will seek to ensure our concerns
are addressed in negotiations, possibly including exploring the
possibilities of an opt out or the removal of the Article altogether.
DATA PROTECTION
We are satisfied that the data protection provisions
in the Informal Draft Council Decisions are robust and largely
compliant with UK national law on the sharing of information with
other European Member States. It should also be noted that if
the Data Protection Framework Decision comes into force in the
future, it will apply to all third pillar measures (Annex A.)
OTHER PROVISIONS
The Informal Draft Council decision also allows
for the sharing of information for the prevention of terrorist
offences and for the maintenance of public order. This would not
involve the UK sharing any more information than that which we
already do. It also includes an Article on Joint Operations; this
defers to national law and does not therefore extend any powers
to foreign police on UK soil. This will not therefore extend the
powers of foreign police to carry firearms on the UK territory.
FINANCIAL IMPLICATIONS
Germany have stated that the costs to them of
implementing the Prum Convention, including the provisions
that are included in the Informal Draft Council Decision, have
been in the region of €900,000. We are considering in detail
what the financial implications for the UK might be but the initial
view of UK experts is that the costs associated with implementing
Prum among all 27 EU Member States may be considerably higher,
depending in part on the precise technical arrangements for allowing
Member States to link into one another's systems. We are currently
exploring with Germany and other existing Prum participants
the basis on which their costings were developed, with a view
to developing our own cost analysis. Any decision on our ultimate
participation would clearly need to bear that cost analysis in
mind.
PARLIAMENTARY SCRUTINY
Formal proposals on Prum will, of course,
be subject to the usual domestic Parliamentary scrutiny arrangements
and we will be submitting the necessary Explanatory Memoranda
in the usual way. They will also be subject to Third Pillar unanimity
and consultation provisions.
LEGAL BASIS
The legal basis currently suggested for the
third pillar aspects of the Draft Council Decision (Annex A) is,
Article 30(1)(a) and (b), Article 31(1) (a), Article 32 and Article
34(2)(c), The Legal basis for the first pillar Decision (Annex
B) is Article 30(1) (a) and (b), Article 32 and Article 34(2)(c).
2 February 2007
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