Europol: ECC Report

HL Deb 06 June 1995 vol 564 cc1307-39

5.55 p.m.

Lord Slynn of Hadley rose to move, That this House takes note of the Report of the European Communities Committee on Europol (Tenth Report, HL Paper 51).

The noble and learned Lord said: My Lords, it is a considerable disadvantage to have to speak immediately after the forceful, engaging and elegant speech of the noble Earl. It is perhaps less of a disadvantage since we are not playing on the same fields.

The subject of the report that is referred to in the Motion standing in my name is of very considerable practical significance. It also has a procedural significance in that this is the first time that the Select Committee or one of its sub-committees has considered a convention proposed under Article K of the Treaty of Union which in this country is normally referred to as the justice and home affairs pillar. I am not sure whether pillars exist in other member states of the Community, but the adoption of that phrase is regarded as another English eccentricity.

The procedural significance is that Sub-Committee E has been able to look at the draft at a time when constructive criticism could be made. One always lives in hope that suggestions and criticisms that are made by the Select Committee will be listened to, and perhaps even taken into account.

This was a particularly unusual situation in that negotiation was still in progress and it was plain that changes would be made. Since our report a number of changes have been made in the provisional draft which the Minister was kind enough to let me see a few days ago. I do not propose to refer to more than one or two of those changes.

It is significant that a number of the articles in the draft convention are now blank because they are to be the subject of further negotiation at the Paris Council of Ministers. I hope that some of the things that we have said have an effect there.

Crime across frontiers has increased and seems likely to increase further. It has become apparent to everyone that it has to be dealt with in certain areas on a cross-frontier basis. The Maastricht Treaty contemplated that a proposal for a European police office (not a European police force) would be made.

The United Kingdom and Germany have supported that idea throughout. The proposal seeks to achieve an exchange of information between states in order to combat crime. The member states have already experimented in that area with a European Drugs Unit. That is based in the Netherlands and has made a very successful start. The committee, which I have the honour to chair, had considerable doubts about the legal basis of the European Drugs Unit, but it has provided some experience upon which Europol, the police office, can develop.

It is accepted everywhere that from the police point of view it is important that all data, including sensitive data, should be available for exchange and analysis in respect of certain crimes, if criminals are to be caught. The director of our criminal intelligence service accepts the importance of the new proposals.

It is no less important to ensure that the citizen who wrongly and unjustifiably gets caught up in the system has protection and a remedy. It is also no less important that Europol should be accountable for what it does.

What is to be the task of this new office? Its task is to be limited to the exchange or collection, analysis and provision of information and intelligence. Despite earlier discussions, which, perhaps, were going in a different direction, it is not now proposed to give Europol any operational or enforcement powers. They will remain with national police authorities. The committee which considered the matter thought that that was right. Whether further powers should be given to Europol in the future will remain to be seen in the light of experience. The committee took the view that it might only be necessary to have operational powers if, one day, there is a body of European criminal law. That is something which will have to be looked at as time goes on.

I should like to deal briefly with three issues. The first is the question of how the information should be exchanged and who should have access to it for police purposes. Secondly, what crimes ought to be covered or ought to fall within the Europol remit? Thirdly, how should data, and especially sensitive data, properly be protected and what remedies should there be for the citizen who has been injured by the wrongful giving of inaccurate information?

I shall start with the first question, about exchange of information and access to it. As to the exchange of information, there is really no controversy. Each of the member states is to establish a national unit which will be the only liaison body between Europol and competent national authorities. In the case of the United Kingdom, that authority will be the National Criminal Intelligence Service. That unit in each stage will supply information to Europol to enable it to carry out its task. The information itself will be available to national units of other member states and to Europol.

What will really be important in the future is not just the information which is given; the analysis of the information will also be of very considerable significance. That analysis will be available to Europol and national liaison officers only when authorised. They will be authorised to receive it only when it is necessary for them to have it as part of the analysis of a particular project. In effect, it means that there are two rings: there is the outer ring of information which is not necessarily very sensitive and which will be obtainable by national authorities; and there will be an inner ring of sensitive information which will only be available on a need-to-know basis.

The committee considered that the "need to know" test which has now been accepted is a very important limitation and control. If information is to be given and if there is to be access to the inner ring, it is important that it should be done speedily. It seems to the committee to be unsatisfactory that an order for opening a new file or for setting out the conditions upon which data can be communicated should require the approval of the management board set up by Europol. That board is required to meet only twice a year. It seems to the committee quite impracticable that such a board should have the final word. The committee recommended that there should be power of delegation either to a committee or to the director to take steps. In the revised draft convention, I have to say that a number of the articles relating to that kind of access and exchange of information are distinct improvements.

I turn now to the second question; namely, what crimes should be covered? It is clearly not necessary in the view of the committee that all crimes, however serious, should fall within the remit of Europol. It is only those crimes which have a trans-national effect—such as drug smuggling, vehicle crimes and illegal trade in radioactive and nuclear materials. There is no dispute in that respect. I am glad to see that money laundering has been added to the list of crimes by the latest negotiations.

On the face of it, it might seem that the most obvious crime to include in the list would be terrorism. In committee, we thought at first that that was something which ought to be included. However, we recognised that, because of the unusually sensitive information which may be held by member states in regard to terrorist activities, terrorism is in a special category. The committee eventually supported the compromise solution which had been arrived at, that terrorism should be included after a period of experience. I note that, although it was contemplated that that would be done within a period of two years, it is now recognised that it may be brought in earlier. As time goes on, I suspect that it will be necessary to consider whether other criminal activities should be included if the police are to be effective as a result of using the new system.

I turn now to the third question: how can the data be properly protected, and what remedy should there be for the citizen who has been injured by the wrongful giving of inaccurate information? As to the first part, it is important to bear in mind that the Council directive on data protection—which was debated in this House some time ago—will not apply to police data. It has always been contemplated that there would be separate provisions. Under the draft convention, each member state must implement in its national legislation a standard of data protection which is at least equivalent to that required by a data convention adopted by the Council of Europe for the protection of individuals and that it should also take account of a recommendation of the Council of Europe which is known as Recommendation R(87)15. The draft convention proposes that Europol will simply take account of those principles.

The Home Secretary, who was good enough to give evidence to the committee, accepted that that recommendation (which lays down very good standards for the police to follow) should be incorporated into the convention in language appropriate to such a document. However, he did not accept that the recommendation in its current terms should be adopted. We accept the attitude that the Home Secretary has taken on the matter, but we consider that Europol should be bound by the same rules and should not simply have to take them into account.

Access to data by individuals has caused considerable discussion. It now seems that there is no agreed proposal in the convention. It is a matter to be negotiated in the Paris Agreement. We firmly took the view that it was quite wrong that Europol should have the right to refuse to produce information to the citizen about him or about his affairs if the effort to retrieve it was disproportionate to the data subject's stated interest. It seems to us to be critical that there should be a much more precise definition of when Europol can refuse to give information. The same is true of a provision that Europol may refuse to produce information if it is necessary to do so for the proper performance of its task. The committee has urged that such matters should be made more limited and more precise so that people will know where they stand.

Finally, there is the question of supervision as regards what is being done by Europol and by national authorities. This is most important. We strongly support the recommendation that there should be both a national supervisory authority, and a joint supervisory authority, to monitor the flow of information and complaints by citizens that their rights have been violated. If that does not work there must be a fallback position. It is the view of the committee that the citizen should have a direct remedy against national authorities and Europol in the national courts, but not in the European Court of Justice. If there is to be liability for the unauthorised or incorrect processing of personal data the citizen should have the right to go to the national court.

That leaves two important questions. Is it desirable that this convention should be interpreted in the same way in each of the states a party to the convention? What is to happen if member states are in dispute as to the interpretation or application of the convention? It seems right and necessary in principle that an international treaty, like any contract, should be interpreted by all the parties in the same way. They have agreed the words, and cannot possibly have intended that they should have as many different meanings as there are parties to the convention; otherwise, there is little point in agreeing the convention at all. It is absurd that a British subject suing here should be told that the convention means one thing but that if he goes to sue in a Greek, Danish or Portuguese court he will be told that it means three other quite different things. That necessarily involves a body, court or tribunal giving an authoritative ruling. If this convention fell under the Community pillar there would be no problem. It would come within Article 177 and national courts could make a reference to the European courts. Prima facie, under Article K the jurisdiction of the European court is excluded, though it is provided that conventions under the home affairs and justice pillar may stipulate that the Court of Justice shall have jurisdiction to interpret the provisions of the convention and to rule upon them in such a way as is laid down in the convention.

The majority of the Select Committee and Sub-Committee E took the view that for purely practical reasons it was desirable that there should be power to refer the matter either to the European court or an independent tribunal for an interpretation to be given to apply across all the member states concerned. The minority of members of the committee believe that, despite the clear words of Article K which provide for jurisdiction, to give jurisdiction to the European court is contrary to the spirit of the Maastricht Treaty. I suggest that conventions made under the justice and home affairs pillar need to be looked at on a case-by-case basis. There should not be any dogmatic rule either that they should or should not give jurisdiction to the European court.

Despite that, the difference of view between the majority and minority is not to be blown out of proportion. There is a difference which we have set out in our report. The majority were firmly of the view that it was desirable to have uniformity of interpretation, and that even if most disputes would be settled in the national courts, the management board, or between member states in the Council, there was a need for a fallback position. I am glad to see in the last sentence of the Government's response that, even if they are not convinced that a reference to the European court or an independent tribunal is needed, they will consider the committee's recommendation further in the context of the continuing discussion. It is that kind of undertaking that makes the work involved in these reports worthwhile. In particular, I desire to pay tribute to our legal adviser, Mrs. Denza, her assistant, Mr. Ivan Smith, and our clerk for the work that they have done. I beg to move.

Moved, That this House takes note of the Report of the European Communities Committee on Europol (Tenth Report, HL Paper 51).—(Lord Slynn of Hadley.)

6.15 p.m.

Lord Aldington

My Lords, I start by thanking the noble and learned Lord, Lord Slynn, for the way in which he has introduced this debate with his usual clarity and pleasing method of delivery. He will not be surprised if I say that I have one difference and a few points to make later in my speech about his closing remarks. The noble and learned Lord conducted this inquiry in a masterly way. He handled those of us who had the honour to be members of his committee—I was co-opted onto it—in an excellent way. We had a full set of evidence which enabled the Committee to produce a worthwhile report.

Like many other debates on European Union (formerly European Community) matters, this discussion takes place at a time when my noble and right honourable friends are engaged in intricate negotiations on this subject. I am sure that in the past we have all had that in mind and we have it very much in mind at the moment. I hope that I shall say nothing that will embarrass my noble friend. I join the noble and learned Lord in thanking my right honourable friend the Home Secretary for taking the trouble to come to give evidence to the Committee. He argued his point in a lucid, impressive and powerful way.

The establishment of Europol is a practical example of ever closer union in Europe as a result of intergovernmental co-operation. Police co-operation is necessary and must be based on the full exchange of up-to-date information and intelligence in secure conditions by the authorities concerned. In that way they can tackle cross-border criminal activities that threaten all of us and presage an increased threat if we do not tackle the situation properly. The sooner the full Europol system can be established the better for everyone in the European Union.

It is worth while seeking, and getting, full agreement of all member states, who have different systems of criminal law and traditions, to the details of the system and the safeguards of private citizens which the noble and learned Lord has emphasised, as indeed we all emphasised in the committee. I for one do not complain about the time that has been taken. I do not complain yet, though I shall if the matter is still unresolved in the latter part of the year. I hope that by the end of the current French presidency all that has to be resolved will be resolved.

The noble and learned Lord reminded us of one or two points on which it might be possible to review the situation later. That is true of the points that he has made and is also true of the points about the jurisdiction of the European Court of Justice, to which I shall refer later.

With regard to timing, in view of the current arguments about what should be done at the IGC in relation to the pillars, I do not believe that the Commission could have secured earlier agreement on Europol matters had the issue been communitised because there are problems to be sorted out between differing member states. Meanwhile, the Europol Drugs Unit can do and is doing good work. I accept the points made in the Government's reply about the validity of that unit. I applaud the agreements that have widened the unit's original remit so that it can be a precursor to Europol. We must accept that, even if we obtain an agreement to the convention in the middle of this year, it will take a number of months before Europol can be fully established. That is clear from the wording of the treaty; and it is clear from an understanding of reality.

Europol will have no operational powers. Those remain with member states, each supplying and having access to information and intelligence gathered on a European Union basis. It seems to me to be in the nature of the third pillar activity of the European Union, Article K, that member states retain responsibility for operational action and help each other to operate more successfully. It therefore follows that citizens seeking redress, whether against their government or against Europol, for any damage that they allege they suffer should seek it from member states using their legal system. The recommendations in paragraph 104 of the committee's report are along those lines. Although in its latest form Article 35 does not follow that argument exactly, it meets my point.

Redress is sought, rightly, in national courts. Any member state found liable may be able to make a claim on another or on Europol. If and when disputes arise, how will they be settled? Article 35 provides for the settlement in the first place by the Management Board or the Council. Our report examines whether the European Court of Justice should have jurisdiction to settle disputes of interpretation or implementation of the convention or disputes between member states. That is clearly set out in paragraph 109.

I say that the argument is clearly set out. The majority view is clearly set out. My noble friend Lady Carnegy of Lour and I parted company with the remainder of the sub-committee and with the majority of the Select Committee. Our arguments are fully set out on pages 36 to 39 in the report. They are not part of the report; I wish that they were. I hope that the House will take as much note of those arguments as of the recommendation in paragraph 109.

As noble Lords will understand if they read those pages, my noble friend and I were trounced by the lawyers. We were trounced again in the Select Committee, where the arguments received some support. However, we both venture to suggest to the House that we might be right and that the others might be wrong. In our view there is no case for providing now—I emphasise "now"—for the involvement of the European Court of Justice in this convention. It was eloquently and clearly argued by the noble and learned Lord that uniformity in interpretation is desirable; indeed, it is said that it is important. I would say that it is desirable and important if other factors are equal but it is not essential. Differing national traditions should not be trampled upon unnecessarily.

If some member states' courts were to interpret the convention in a maverick way, the Council or the Management Board is there to sort out the problem, as the noble and learned Lord said. If that course failed—it would be some years before it failed—the Council could meet again to decide whether the European Court of Justice or an independent tribunal might be necessary. But such a tribunal is not necessary today. If the arguments about the issue were to delay the signing in June of the agreement to the convention, it would damage an issue which really matters to the Community. Therefore the case on uniformity does not seem to be proved.

There is another kind of uniformity which is equally as important and certainly equally as desirable. It is that all citizens of the United Kingdom should have the same right of redress in police data matters whether or not Europol is involved. The European Court of Justice should not be put in a position to overrule British courts where Europol is involved and to have no say where Europol is not involved. The noble and learned Lord stated that there was a strong practical argument for the European Court of Justice to be given jurisdiction in the convention when it is first signed. For practical reasons that is not so. The Council is there to ensure that members observe the convention, and it should not be assumed that it will not succeed. Nor should it be assumed that if the European Court of Justice were to have jurisdiction every member state would immediately follow the course that the Court decided was right. That is one of the problems of today's European Union.

Nor should it be assumed that in all conventions and treaties between member states outside the Treaty of Rome a special tribunal to settle disputes must be provided for. There is no such provision in the Schengen Agreement among six member states on open borders—an agreement which also has police data implications—and it seems to work perfectly well.

I hope that agreement to the convention will not be held up by arguments about the European Court of Justice jurisdiction which are not immediately relevant to today's problems. In principle, I believe it right to keep the two new pillars away from the European Court of Justice, at least at this formative stage when intergovernmental co-operation has to prove itself. A strong case has to be made for the necessity of providing European Court of Justice jurisdiction; and that does not exist here, in the opinion of my noble friend Lady Carnegy of Lour and myself.

Furthermore, as your Lordships know, the Select Committee is inquiring into matters for the 1996 Inter-Governmental Conference, including the working of the two pillars and the European Court of Justice implications. Should we not wait until we have been able to consider anything that the IGC report may say in regard to the European Court of Justice and the home affairs and justice pillars?

Looking back upon my unusual obstinacy in face of the opinions of many colleagues I deeply respect, I have a procedural suggestion to offer to the House. It relates to occasions when differences of opinion occur in Select Committees on points of political importance which have been in the mind of the House in its agreement to major Bills such as the European Communities (Amendment) Bill passed in 1993. In that Bill and in the Maastricht Treaty which it ratified the independence of the two new pillars from the institutions of the Community other than the Council was fundamental, with the treaties spelling out suitable provisions. The noble and learned Lord was quite right to remind the House that there is provision for the European Court of Justice having jurisdiction where it is so decided in Article K matters. Would it not be wise to allow a Select Committee simply to set out the conflicting arguments and points of view, without any need for a recommendation? The House can then make up its mind on major matters which have been in front of it in quite recent months.

My final words relate to the scrutiny by national parliaments of the work of the third pillar, where the House has been enormously helped by the leadership given to it by the noble and learned Lord and his committee. This inquiry, so well led by him and well supported with evidence and documents from the Home Office, shows how this House can be informed of the progress of policy and convention creation and can express useful opinions which the Government can have in mind in further negotiations. We shall in due course be asked to ratify the convention and at that stage we shall have no power of amendment. But today, and through this valuable report, we have an opportunity to influence and to help to mould it. That is important for us in our duties within the United Kingdom constitution, but it is also an important consideration when it is argued, as it will be, that the third pillar is undemocratic and non-accountable and that it should be more accountable to the European Parliament. The accountability of Ministers in the Council is to their national parliaments and this debate, in a long line of others, helps, does it not, in the implementation of that accountability.

6.32 p.m.

Lord Bruce of Donington

My Lords, I should like to pay my tribute to the noble and learned Lord, Lord Slynn, and his sub-committee—to him for the way in which he has introduced the Report to the House and to the sub-committee for the way in which they have presented it. I myself was not a member of the sub-committee—I did not have that honour or pleasure—but I can assure your Lordships that, although I was not present during the giving of the evidence, I have read thoroughly through it since and am familiar with that evidence.

This report has perhaps a rather greater significance than its necessarily academic flavour must have given it, particularly when you have the presence of so many lawyers involved in its production. However, there can be no doubt that the subject matter of the report is of great importance to all our citizens. There are very few areas of our society, in terms of the gradation of society, rich and poor, or in terms of the location in which we happen to live or work, that are immune, for example, to the effects of international crime, particularly in the field of drug trafficking.

This is something which, indirectly or in many cases directly, affects us all. If that be the case, so much more must it be with the trends that have become more inevitable and more pressing since the break-up of the Soviet empire: the traffic that has grown up in radioactive substances, in the disposal of nuclear material, as well as of more commonplace crimes which are again organised internationally in the field of car theft, the theft of goods in transit and matters of that kind. Last, but not least, I would include in the list illegal emigration. So let us make no mistake: what we are talking about today is not something of pure academic or legal interest. These are matters of the utmost importance to us all.

It is particularly important, as we are bound to know, for those in the United Kingdom and indeed in Europe who are entrusted with the enforcement of laws and the arrest and trial of criminals, because, unless they have adequate information, adequate intelligence and adequate analysis available to them, their task is made so much more difficult. Therefore, one must inevitably support wholeheartedly the endeavours that are being made to aid those honoured citizens of ours who, despite reductions in their numbers on the beat for totally different reasons, are entrusted with the enforcement of the law and the apprehension of criminals. So far so good: therefore the purposes of the convention and indeed of the agreement between states, as instanced in the case of Germany in 1993 concerning the Interpol drugs unit, must command the support of all.

But, having said that, I am bound to go, as an accountant, back to the initial considerations of this convention. Many of us forecast—I claim no particular credit for myself for having done so—that, with the abolition of internal frontiers on the scale that was proposed immediately following Maastricht, and indeed before it, this problem was bound to arise. The abolition of international frontiers, which from a trade point of view obviously had its advantages, nevertheless had its downsides. This is one of them and it is noteworthy that Germany should be the principal nation in the European Union to urge this forward, because it was across Germany's eastern borders that much of the illegal material began to flow. Indeed, even international drug rings now have a route via Germany and via those parts of the frontier that are far easier to cross than taking, say, Eurostar to Waterloo or crossing the English Channel.

Inevitably, therefore, this matter came under the influence of Germany, and so we have the convention. It is perhaps unfortunate that we have not yet got an agreed version. We are still discussing a convention to which further amendments are still being received, or so I understand from the noble and learned Lord, Lord Slynn. He will be well aware that what I have said applies also to the agreement achieved between member states in regard to the Interpol drug enforcement unit. From the practical standpoint I have to ask whether, in considering this problem, any thought was given to the European branch of Interpol. After all, Interpol is an organisation on an international scale that has very great experience in these matters. I am quite sure that those of your Lordships who have any experience with an organised police force—and my own Front Bench is replete with these—will be able to testify that Interpol has been of enormous assistance.

I may not have been able to go through all the evidence in detail, but I can find no suggestion anywhere that the improvement of the European branch of Interpol was considered. I shall be very glad if some information can be given about that. After all, Interpol has a proven track record. I should have thought that there would be an initial assessment as to whether the European branch of Interpol and its functions could have been extended to cover these matters rather than relying on the establishment of a new organisation confined to Europe.

I do not wish to be misunderstood. I am not against the foundation of the organisation which is laid out in the convention or of the Europol Drugs Unit. However, I am curious to know whether that possibility was explored, because cost comes into this. As an accountant I hesitate to bring to the attention of the Government, who are so bent on economies in public expenditure, the necessity for viewing any increases in expenditure with the utmost degree of scepticism. The establishment of such an organisation, with its management committee, liaison officers, data processing requirements and staff will not come cheap. I do not believe that the British contribution, in terms of a percentage of national income, will present overwhelming financial problems, but the costs ought to be considered. It would not have been out of order for the Government themselves to have made some estimate of costs when they presented the convention to us with its explanatory memorandum. We should like to know roughly what the cost will be.

It is quite clear that the operation of the new Europol, relying as it will on recording probably 90 or 95 per cent. of the information it receives in the form of computerised items, will involve some degree of data protection. That has already been dealt with very adequately by the noble and learned Lord, Lord Slynn. But it remains a problem. In the course of the operations of the new Europol, some injury may occasionally be done to the individual. As the report brings out and its recommendation makes clear, in those circumstances redress should be available. Such cases will probably be exceptional, but provision ought to be made for injured parties to be able to obtain suitable redress.

This is where the whole question of interpretation of the law is extremely important. I have taken note of the arguments produced by the noble and learned Lord, Lord Slynn, with whom I have often argued on a totally different plane. Nevertheless, the provisions of the treaty remain. The provisions of the treaty are not there as a matter of accident. The two pillars of foreign affairs and defence under Title V and the provisions under Title VI of the Maastricht Treaty were included quite deliberately. They mark the agreement of the member states that they do not want one universal writ to rule under the aegis of the Commission but want a degree of co-operation between member states without the impact of the influence of the Commission.

I like to think, perhaps modestly, that the remarks that I have made over the years on the question of international civil servants may have had some impact. There are two types of international civil servant. There is one type which consists of persons who conceive it to be their main purpose to carry out the instructions they have been given and to do so loyally and efficiently to the best of their ability. There is another type of international civil servant, from whom the tendency to desire to increase their power may not be entirely absent, which consists of people who see matters in institutional terms and regard their main role as the extension of their power rather than following the purposes of the nation states which comprise the Union. No names, no pack drill—but if the cap fits in any part of the Community it can be worn.

In this matter I support the Government. Indeed, somewhat unusually, I support the noble Lord, Lord Aldington. Those pillars should remain intact. We must maintain the principle of co-operation, rather than the principle of ever-increasing centralisation, which has been brought out once again by the Commission's own plans for the revisions which are to take place under the IGC. Although I shall not quote from the document now, it is clear that the Commission is bent on revising Titles V and VI in order that it may become fully involved, rather than retaining the existing position fortunately agreed by the member states to co-operate with one another rather than to submit, albeit after argument, to a quasi-supranational authority.

Exactly the same principle applies to the resistance by the Government to the Court of Auditors being brought in to the audit of expense. The Court of Auditors is an institution of the European Community. It is not perhaps known that, if the Court of Auditors becomes involved in auditing the accounts and finance of the new convention and its association of member states, it remains subject to the Community's financial regulations under which it has to take into account at all times the wishes of the Commission. Therefore, the Government are wise to resist that proposal. I cannot find any reason why the Government's attitude on that matter should not be supported.

As I said at the outset of my remarks, we still do not have the final version of the convention. I must address the noble Baroness on this question. In the course of the evidence there was a suggestion by the Home Office that a document placed in the Library of the House could not properly be quoted until it had been published in another fashion. That, together with a quotation from her department's correspondence, appears on page 30 of the evidence given before the Committee. I made inquiries of the Clerk of the House and am told that that suggestion is incorrect. Once a document is in the Library it becomes public property at the hands of any Member of the House. I hope that some clarification may be given upon that point.

That apart, I give the report a hearty welcome. I congratulate the noble and learned Lord, Lord Slynn, despite my marginal difference with him in agreement with the noble Lord, Lord Aldington. I hope that in due course your Lordships' House may give the matter even further and more detailed consideration when the final proposals are known.

6.49 p.m.

Lord Knights

My Lords, I, too, begin by thanking the noble and learned Lord for providing the House with the opportunity to consider one of the products of the European Union. As the noble Lord, Lord Bruce, said, it will undoubtedly be of considerable benefit to many people in this country. He and his colleagues deserve our thanks for the work they have put in, for producing such a comprehensive and illuminating report, and for exposing some, if not all, of the problems involved in establishing a joint venture of this kind. Speaking personally, I support many, if not all, of the report's conclusions, but there are one or two on which I wish to comment.

Co-operation between police forces of this country and those overseas has necessarily existed for many years; in fact long before the Trevi organisation referred to in paragraph 9 of the report. It was set up in 1976 and was concerned at the outset with co-operation at an operational level against terrorism and other serious crime. It was 1990, however, before the Trevi group of Ministers was given the task of developing concrete proposals for a Europol organisation.

There is clear evidence, I believe, to indicate that the time has long since passed when an effective Europol should have been created. Motor cars, for example, were disappearing off the streets of Birmingham and reappearing somewhere on the continent of Europe well over 10 years ago. Your Lordships may agree that had the European Council of Ministers not authorised the steps it has in advance of a properly established convention—a fact which the committee finds unsatisfactory—then the position in relation to serious crime within the Community might well be more threatening than it currently is.

It is to be hoped, therefore, that the present intention, which I believe is to secure the signing of the convention at Cannes later this month, will be realised and that the necessary legal acts required by the convention will quickly follow. Until they are all in place, presumably everyone concerned with Europol will be acting in a way which will be contrary to the requirements of the convention, with whatever consequences that might have. But it is imperative, I suggest, that the present atmosphere of indecision, which must inevitably hamper the work of the unit in seeking to combat the burgeoning problem of criminal activity within and without the Community, should be removed.

The creation of any new system of records—whatever its contents—almost inevitably arouses suspicion and fear of misuse. Clearly the protection of the data held by Europol, subject access to that data, and the general accountability of the organisation for its policy and methods of operation are extremely important. The committee's conclusions in that respect should, I believe, be found generally acceptable.

Your Lordships might be surprised, however, that similar detailed requirements do not seem ever to have been debated in respect of this country's link to Europol; that is to say, the National Criminal Intelligence Service which commenced operations on 1st April 1992. Its position is unique in that while police forces are locally established and maintained, the National Criminal Intelligence Service is established by the Home Secretary, using his powers under Section 41 of the Police Act 1964 to provide and maintain common police services. Its director general is accountable directly to the Home Secretary who appoints him. Chief constables are not involved in any way in the management and organisation of that unit. It is the first time, I believe, that responsibility for what most people would regard as an operational responsibility has been assumed by a politician. But this is not the time or the place to debate that issue.

Your Lordships may agree that there are parallels here with the security services. One wonders whether the time may come—indeed may already have come—when there should be established a committee on the same lines as the Intelligence and Security Committee to oversee the policies and activities of the National Criminal Intelligence Service. Perhaps that is the role which will be performed by the national supervisory body which we shall be required to set up to monitor data exchange with Europol. The constitution of such a body seems rather sketchy at the moment and perhaps the Minister will be able to tell us later this evening a little more about what is proposed as regards the national supervisory body.

I turn now to the role and remit of Europol. I very much share the committee's view that Europol should not take on an operational role, for all the reasons advanced by the committee in paragraph 84. Last year, during the passage of the Police and Magistrates' Courts Bill, your Lordships persuaded the Government that policing should remain clearly local in nature. I believe that that is still the correct attitude, however serious the crime may be. As to the crimes with which the unit should be involved, again there can be little argument with the provisions of Article 2 of the draft convention and the annex to it.

Lord Harmar-Nicholls

My Lords, perhaps I may ask a question. Is the noble Lord saying that chief constables have no contact with Europol in carrying out their duties at home?

Lord Knights

My Lords, I am not saying that chief constables have no contact. Of course there is a lot of contact between chief constables and the criminal intelligence service. My point is that they are not involved in any way in its management. I believe that that is unique.

Coming back to the crimes with which Europol will deal, I am doubtful about one or two. I am doubtful about the inclusion of nuclear and radioactive substances and, more particularly, of terrorism, even with the possible two-year delay before terrorism is to be taken up. Your Lordships will be aware that the development of intelligence relating to terrorism is one of the statutory responsibilities of the security services in this country. They also handle crimes involving nuclear substances, and the convention's requirement that there should be one national unit to liaise with Europol would appear to require that the security services' data will need to be fed to the unit via the National Criminal Intelligence Service and vice versa, with the security risks that that might involve. Or is it thought, perhaps, that the two data banks should be combined in some way?

In a Written Answer of 16th May 1995 (at col. 191 of the Official Report for another place) the Home Secretary said: If … resources were available to the Security Service and if, within their statutory functions, a useful role were identified for them in support of the police … in their work to counter serious crime, I would be ready to consider such proposals". One wonders whether there is anything to be read into that in terms of fusing the security services and the criminal intelligence service.

Clearly, there is much to be done in the two years which are to be allowed, if the respective roles of the security service and the National Criminal Intelligence Service are to be satisfactorily reconciled in respect of the handling of terrorist crime.

Finally, like the noble Lord, Lord Bruce, I turn to Interpol. It is mentioned only briefly in the report. At paragraph 14, the Data Protection Registrar is quoted as stressing that, Europol would be quite different in character from Interpol, which was based on operational arrangements among police forces without government involvement". A Select Committee of another place, in a report on practical police co-operation in the European Community in 1990, described Interpol's principal role as being to act as a channel of communication, to send messages from the police of one country to those of another.

There is reason to think that Interpol is seeking to widen that role. For example, in an article in The Times on 26th May this year the director of the National Criminal Intelligence Service is reported as saying that Interpol is building up a database in respect of stolen motor vehicles, which should be running by the end of this year, covering 45 countries in Europe. That sounds remarkably like duplication. Interpol is very much its own creature. If it is developing databases of an intelligence nature, questions must inevitably arise as to its accountability.

I understand that this country's contribution to Interpol is included in the budget for the National Criminal Intelligence Service. No doubt the Minister will correct me if I am wrong on that point. Bearing that in mind, perhaps she will say whether the question of possible duplication is being addressed and whether, in the light of the establishment of Europol, the activities of Interpol within the European Community are still regarded as cost-effective.

The noble Lord, Lord Bruce of Donington, raised a question as to whether consideration had been given to using the European branch of Interpol rather than setting up a new organisation. The difference between the two organisations, as I see it, is that that Europol is very much controlled and very much accountable right up to the Council of Europe; whereas Interpol, as I understand it, is accountable to no one but itself. There is no political connection whatever with Europol. As I say, it is a creature of its own standing. I am quite sure that the committee was right when it agreed that Interpol does not serve a useful purpose in the field of which we are now talking.

We are seeing the birth of a most important joint venture, one that will be of great benefit to us all. I am sure that we should support the committee's recommendations.

7.2 p.m.

Lord Bethell

My Lords, it is very reassuring to find noble Lords unanimous in welcoming this new European enterprise. All noble Lords who spoke, including the noble Lord, Lord Bruce of Donington, welcomed the report—with the exception of certain details encapsulated by my noble friend Lord Aldington. It seems undeniable that, in an age where criminals do not respect frontiers, the police should be enabled sometimes to cross frontiers in the pursuit and apprehension of the criminal. Too often these days the police can be handicapped by the fact that a crime is planned in France by British miscreants, who then commit their crime in Belgium, carry away their ill-gotten gains to the Netherlands and dispose of them in Germany. The police forces of more than two countries can be involved in such a crime. Frequently the police are one jump behind the criminals simply because of the transfer of the action from one nation to another. It is that problem, that security deficit, that the creation of Europol is designed to overcome.

I should emphasise at the outset that in these remarks I have taken the advice of the Police Federation of England and Wales, which I advise over such issues. I understand that the Police Federation is in favour of the development of Europol along the lines suggested.

However, I have one particular query in this connection; namely, how will the officers of Europol who are British be represented as regards a professional body or association? Will they remain British constables, and therefore be represented by their federation, or will they be represented by some other body? I gave my noble friend notice of that question, and I hope that she will be able to inform me.

The scope of Europol has been well set out by the noble and learned Lord in his report. It is undeniable that it can at the moment have no operational powers. But its and analysis role will be exceptional. I do not believe that it can be rivalled, if it works as it should work, by any other organisation, and certainly not by Interpol. I do not believe that any other body would enjoy the confidence of the organisation that already exists in embryo in The Hague. I speak as someone who has been to The Hague and visited police and customs officers in that building. It is my impression that they work very well together, that they have confidence in one another, and that they can get information from one another far more quickly than they used to do. Many arrests have been made already because of the swift exchange of information provided by that modest building in The Hague. Once Europol is fully under way, with information being provided direct to the central computer, it will be that much easier for criminals to be apprehended and for the police to go about their duty.

I know that there are fears about the power of this new organisation, although it is my impression that those fears are less felt in this country and more felt in countries such as Germany, the Netherlands and Belgium. The idea of some massive "Big Brother" of a computer containing all the information that there is to know about each one of us in the European Union is frightening to a number of people. Questions were rightly raised by previous speakers about how the great power of the new machine is to be controlled and to whom the body is to be accountable.

On the dispute, the disagreement, that arose between the majority and the minority in the noble and learned Lord's sub-committee, I have to say that I come down on the side of the majority. I think it normal that someone who has a grievance about how Europol has been working, who has not achieved satisfaction from a joint supervisory authority, and who takes the matter to the national court, should envisage the possibility of a reference, a search for advice, being made to the European Court of Justice. That can happen in practically any civil action that arises nowadays. It is undeniable, whether we like it or not, that the decisions of the European Court of Justice override those of national courts. It may well be that references to the ECJ in Luxembourg will have to be made from time to time in cases that are brought before national courts. I hope that not too heavy weather will be made of this process, and that it will be allowed to unravel itself in a normal way.

However, before those cases come to court, I hope that they can be tackled by normal parliamentary means. The report before us emphasises the view of the Home Office that individual cases can best be tackled by the national parliamentarians of the aggrieved individual. There is a fair amount of truth in this. But I should put forward a word for the European Parliament in this context. I know that the noble Lord, Lord Bruce of Donington, thinks that the European Parliament is totally useless, but there are times when the European Parliament can help and when an MEP can assist one of his or her constituents. In such questions as the third pillar, as in any other, the president of the home affairs Ministers appears before the Civil Liberties Committee of the European Parliament at least once every six months. Assisted by officials, he fields questions on anything that the members of that committee or other MEPs care to throw at the president in office. It is a forum for debate on third pillar issues which does not yet exist in national parliaments, so far as I know, or in another place. Does the noble Lord wish to intervene?

Lord Bruce of Donington

My Lords, I am most grateful to the noble Lord for allowing me to intervene. He said that I viewed the European Parliament as useless. I have never said that. Indeed, I was an active Member of it for four years. I do not feel that it is all that effective, but that is neither here nor there. What I had in mind in the context of this debate was the role of the European ombudsman, who appears not yet to have materialised.

Lord Bethell

Well, we do not need to bring up all over again the Maastricht debates, when words which perhaps we have now done our best to forget flew across the Chamber. But the noble Lord is quite right to raise the question of the ombudsman. He is the first speaker to do so. The Minister may care to refer to that at the end of our proceedings today.

I believe that at the moment there is a role for the MEP in representing constituents over third pillar issues, including Europol, just as there is a role for the national parliamentarian to represent constituents on the national scene. I hope that both will be used. When the Home Secretary appeared before the sub-committee, he seemed rather to down-play the role of the European Parliament in this issue. But I refer your Lordships to Article K.6 in the Maastricht agreement, which says quite clearly that the European Parliament has the right to be consulted— not just informed—over these issues.

Some interesting comments have been made about the crimes which could fall within the purview of Europol. It is quite right that we have begun rather slowly. We have begun before we have any legal basis in place, so far as I can see. I understand that doubts have been raised about whether the present unit has from time to time exceeded its legal entitlements. But I believe that it has begun to work well in providing an exchange of information on drugs and serious crimes connected with drugs. I can see no reason why it should not be expanded to deal with vehicle crimes and the very serious matter of crimes involving nuclear material. It is surely essential that such a terrible crime, which could threaten us all, should be tackled on the international level as well as on a national basis—if one likes, not only within Europol but, by agreement, with governments and the law enforcement agencies of all countries where there is nuclear material.

As for terrorism, I suggest that after the statutory two years, it would make sense to begin by exchanging information within Europol, which we hope by then will be thoroughly legal, on terrorism which is non-indigenous. I have in mind terrorism that originates outside the European Union. I can understand that there may be some hesitancy on the part of law enforcement agencies of the Union to pool information that they have on terrorists or terrorist suspects and put it into that great machine in The Hague. Such information is not garnered easily. It is often acquired after exposing police agents to danger and maybe even bloodshed. It is not given away to anyone on an easy basis. So a step forward would be to start with non-indigenous terrorism.

For the future, I wonder whether it would make sense for that body to begin looking into specifically European Union crimes. I have in mind European agricultural fraud, which costs our taxpayers huge sums of money. It is a matter which the Commission is meant to look into but it does so rather inefficiently, without proper attention or despatch. If one has, for better or worse, a European Union police body, could it not tackle the very costly question of European Community fraud? Already, the Commission in Brussels has operational powers. It has the ability to launch dawn raids on enterprises or individuals in order to acquire documents and can impose arbitrarily severe fines on enterprises and individuals. Would it make sense eventually, if we are reaching a stage at which an operational role for Europol could be considered, to consider European fraud? I believe that that is an aspect of the European Union's work which will be broadly welcomed by the people of the United Kingdom, and even by those who are sceptical about many other aspects of the European Union's work.

The sub-committee is to be congratulated on having produced this document. It is an admirable analysis of the problems raised and the opportunities presented to us. I give it my unqualified support.

7.17 p.m.

Lord Hacking

My Lords, one of the pleasures of serving on your Lordships' committees is witnessing the continuity of our work. There has been no greater pleasure for me than serving on the Law and Institutions Sub-Committee of your Lordships' European Communities Committee.

So we can witness the continuity of our work, as we did in our report, at paragraph 78, when we referred back to our border control report of some five or five-and-a-half years ago. In noting that from 1992 onwards there was likely to be a much greater movement of people of all kinds across borders, we stated that, Co-operation and common action against those who break the law must indeed be carried forward". There is another continuity, which is now a poignant one. Our report on the protection of personal data was the first report to be chaired by the noble and learned Lord, Lord Slynn, when he became chairman of the sub-committee. Regrettably, the report that your Lordships are now considering is one of the last that will be delivered to this House from the sub-committee by the noble and learned Lord under his present tenure as chairman.

When we took evidence in our inquiry on the data protection directive, we received some very disturbing evidence from Liberty. We were told of a number of serious incidents of deprivation of human liberty. I suppose that up to a dozen examples were given to us. I shall recount three to the best of my ability.

First, there was the account of a lady from Germany who used to enjoy taking holidays in Italy—that is, until she went through the experience I am about to relate to your Lordships. On starting one of her holidays she booked into a modest hotel or hostel. In the middle of the night her hotel bedroom was stormed by armed Italian police who seized her and took her off for a long period of interrogation. When she returned to Germany she protested to the authorities there and established with them, as was correct, that she was not a member of the Baader-Meinhof gang. She asked for that information to be corrected and, as I understand it, the German authorities were obliging and said that it would be corrected.

The lady then took a second holiday in Italy and this time, as she was getting in or out of her car, she was again surrounded by armed Italian police, again mistaking her for a member of the Baader-Meinhof gang, who took her off for interrogation. Even though she protested once more when she returned to Germany, and waited for four or five years, another similar incident occurred. I understand that the lady no longer takes her holidays in Italy.

The second example that was given to us when we were conducting the inquiry concerned a family from the Midlands who were taking a holiday in Portugal. As I recall it, there was a husband and wife—a mother and father—and two young sons. Outside their hotel, shortly after their arrival for this holiday in Portugal, they were surrounded by Portuguese police. They were all thrust into a police van and driven at high speed to a nearby police station. They were then subjected to considerable inquiries and the husband of the family was locked in gaol for 48 hours. He did not speak a word of Portuguese and the proceedings were conducted in that language. It was only through the assistance of the British Consul that he was released. It transpired that the family had been arrested on the incorrect information that the husband had been indulging in criminal or terrorist activities. Presumably that information was supplied from some source in this country.

The third example concerns an employee at Stansted Airport on the eve—or perhaps I should say the morning—of the Queen opening the airport. On that morning the employee opened his front door to the British police who were standing there. They instantly arrested him and with a search warrant gained access to his house. They took possession of a number of documents and video tapes from his home. It transpired that three or four years earlier that employee had been taking a holiday in Europe. During the course of the holiday he and his wife had given a lift to a hitch-hiker over the French-Spanish border in the Pyrenees. It transpired also that photographs were taken of the hitch-hiker, some of which were retained in the hitch-hiker's camera. The hitch-hiker was later arrested as a suspected IRA terrorist. Based upon the photographs, which also recorded the car registration number, the employee of Stansted Airport had a wholly humiliating and distressing experience for himself and his family.

I cite those three examples to your Lordships because when we came to consider the implications of them during our deliberations on the protection of personal data, we came to the conclusion, at paragraph 116, that: There is little benefit to the individual in being protected from an unwanted charitable appeal from unfair loading of his insurance premiums or denial of credit if he is not also protected from conviction abroad on the basis of suspect police evidence or from mistaken arrest as a supposed terrorist". The difficulty that we found when writing the report was that police and counter-terrorism co-operation lay outside the competence of the European Community and therefore we could not make recommendations of changes of text in the draft directive. The best that we could recommend was that member states should agree a Resolution to deal with what we considered to be a serious problem. As far as I know—this is somewhat regrettable—the Resolution has not been agreed.

I do not know whether Interpol was involved in the dissemination of any of the information relating to the three incidents. But I can say to the noble Lord, Lord Bruce of Donington, that under Interpol there was and is no protection to any of the individuals involved. None of the individuals had right of access to the data information nor the right to have it corrected. So it was, when we came to consider this matter in our deliberations on the Europol Convention, that we looked with close scrutiny, as described by the noble and learned Lord, Lord Slynn, at Articles 17 and 18. I believe that this is an important matter and perhaps your Lordships will forgive me if I read in full part of the text to which the noble and learned Lord referred. The paragraph states, as an exception to the right to have access to information, that: If the personal data are stored in documents, information shall be provided only if the effort involved in providing it is not disproportionate to the interest in the information stated by the data subject". As the noble and learned Lord, Lord Slynn, said, those words caused us considerable worry. We were also concerned in Article 17, as he said, about another exception to the right of access to data when there was conflict with, the proper performance of the European task". We believe that there should be a much closer definition in those words if protection is to be provided to individuals.

I am grateful to my noble friend for sending me a copy of the Government's response to our report. I was glad to note at the beginning of the response that it stated that the Government entirely agree that: Europol, like all organisations operating within the criminal justice system, must be clearly accountable for its policies and actions. Our approach to the present negotiations and to the organisation's establishment and operation has been based on that important principle". I felt on reading those words that we were getting off on the right foot—and, indeed, I think we were. But what was worrying, as the noble and learned Lord, Lord Slynn, said, is that we learnt later in the report that that area was still subject to negotiation and that the Government can go only so far in saying that they agree, that effective subject access provisions are essential and that exceptions should be no wider than strictly necessary". I should be grateful if my noble friend could help us more about that. It is a matter of concern shared by all members of our sub-committee.

I do not want to get deeply involved in the debate over the European Court of Justice because, as the noble and learned Lord, Lord Slynn, and my noble friend Lord Aldington have said, in the greater part of our deliberations all members of the committee were agreed. However, we did part company over the role of the European Court of Justice. It was very nice to be refreshed again with the arguments of my noble friend Lord Aldington which he so cogently presented to the committee. We have read the Government's response. I need not read it to your Lordships, although I have some difficulty in understanding why the Government are still showing reluctance.

I certainly have a better understanding during our debates of what my noble friend Lord Aldington was saying. There is a strong case to keep out the European Court of Justice, and other institutions of the European Community, of the two new pillars based on government co-operation. We wholly understand that. The difficulty is that it is not in the area of government co-operation that the concern lies, but in the interpretation of the convention in different national courts. There is also the problem to which the noble and learned Lord has drawn our attention of disputes between one member state and another as regards the convention.

My noble friend Lord Aldington expressed, as he did earlier, a worry that the issue of the European Court could be a cause for delay of the ratification. I certainly hope that my noble friend will assure us that this will not be the case. It is very comforting to read the final words of the response where it states: However, the Government will consider the Committee's recommendations further in the context of continuing discussion". May that be so.

7.32 p.m.

Lord Hooson

My Lords, from these Benches I should like to add my congratulations to the noble and learned Lord, Lord Slynn of Hadley, Sub-Committee E and the Select Committee, on a very important report. It has already been adverted to that this convention still has blanks within it. I hope that they will be filled with an appreciation of the thrust of this report with which I very much agree.

The need for Europol itself is not in issue. Following the collapse of the Soviet Union, for example, the German police authorities have reported a six-fold increase in the number of cases suspected of involving nuclear material. Spain and the Netherlands in particular have been concerned about the increase in drug-related crime, all internationally organised. We in this country have been in the forefront of international action to control money laundering because of London's leading position as a financial market.

The idea of Europol was launched years ago. It had particular publicity in 1991, but nevertheless, despite the need for Europol being beyond dispute, we still lack any formal international agreement. Organised crime is not dragging its feet even if governments are. Organised crime is taking full advantage of the greater freedom of movement across borders, while Europe cannot agree over a regulatory framework for Europol. It is a matter of urgency.

I very much appreciated the speech of the noble Lord, Lord Knights, on this particular point. He rightly drew the distinction between Interpol and Europol. They are totally different organisations. Europol is going to be an accountable organisation, but Interpol is not. I am surprised that the noble Lord, Lord Bruce of Donington, was not concerned about the democratic deficit in Interpol.

Meanwhile, member states have pressed ahead with the Europol Drugs Unit because they had to. Its activities have been extended under ministerial agreements but, as the noble and learned Lord, Lord Slynn, pointed out, they apparently have no legal force. Moreover, its activities are not subject to common rules on data protection. It is unclear what remedy, if any, would be available to any individual who suffered damage as a result of its actions.

I merely point out these matters because they underline the importance of seeking an agreement on a regulatory framework as soon as possible. Furthermore, the very successes of the Europol Drugs Unit illustrate the benefits that would flow from the institution of a wider Europol. For example, in his evidence to the Select Committee the Home Secretary outlined the matter of the large consignment of drugs which were found on a ship in Greece. Intelligence from Belgium, France and the United Kingdom was brought together with the Europol Drugs Unit within one hour and was passed on to the Greek Europol liaison officer. That led to three crew members being arrested within 24 hours. That is one example of what international co-operation entails.

Perhaps I may say as one who was engaged in practice at the Bar until very recently, that the great British public are taking a very long time to appreciate how very well organised and sophisticated international crime syndicates are. Apart from the areas which come within the remit of the EDU, the methods of communication available to the police forces of Europe are relatively primitive. In the common struggle against organised crime a modern intelligence super-highway is required, with a central body which has the capacity to analyse intelligence.

I very much appreciate the point that one does not want Europol to become operational. It should not be investigating farm subsidy frauds, which are matters for the national authorities. Europol wants to be a central data-collecting body capable of passing on intelligence at speed because undoubtedly the gangs with which it is dealing are doing so at speed and using all possible modern communications. The increased mobility that people enjoy nowadays means that criminals have more opportunities to exploit any gaps in law enforcement structures. It is vital that those gaps are closed.

Drug-trafficking cartels target Europe as a single target. They decide which is the advantageous point at which to enter, whether by sea into the United Kingdom; whether by air into somewhere else; or whether to use the eastern European borders and so on. They target Europe as a single market. Links between the member states need to be formalised so that intelligence over a broad range of crimes can be pooled. Only in that way can the increasingly sophisticated activities of organised criminals be countered effectively.

It seems to me that one of the mistakes of the Euro-sceptics is that they criticise, for example, the disappearance of national boundaries. They are also very reluctant to support effective measures to bring into being new organisations which deal with the problems that arise when national boundaries disappear. The noble Lord, Lord Bethell, referred to the fact that the noble Lord, Lord Bruce of Donington, regarded the European Parliament as being pretty useless or ineffective. Perhaps I may say to the noble Lord, Lord Bruce of Donington, that I am sure that he would be much more worried if he thought that the European Parliament was effective, and one would have much more criticism of it.

Lord Bruce of Donington

My Lords, the noble Lord must not misrepresent me in this matter. I said at the beginning and at the conclusion of my speech, which I now reiterate, that I entirely support the proposal of the convention. I would have thought that that would have been assimilated by the noble Lord through both his ears.

Lord Hooson

My Lords, I am grateful. I appreciate the knowledge that I gain about the noble Lord's attitude over the years, but I find it difficult to distinguish between one contribution and the generality.

I turn to the final issue of jurisdiction over disputes. In order to ensure a coherent structure and uniformity in the standards of control, it is obvious that the European Court should determine all issues of interpretation. Perhaps I may quote from the evidence given to the committee by the Home Secretary, which I thought was highly unsatisfactory. I quote from page 94, paragraph 507, of the report. The noble and learned chairman asked the Home Secretary: Do you not find it unsatisfactory that the Convention should be interpreted in completely different ways by different national courts?". Mr. Howard replied: I do not think it is … It does not seem to me terribly likely that you would get wildly different interpretations". Perhaps we may stop there for one moment. If one had not wildly different interpretations but interpretations which were sufficiently serious to cause great problems—a different interpretation in Greece from that in the UK and a different interpretation in Portugal—why on earth should we set up a new convention and not provide for that?

At the end of his answer the Home Secretary said: If it is suggested that the desirability of uniformity should outweigh other considerations then it would be possible to set up some kind of ad hoc tribunal that might deal with these matters on a more consistent basis". There he is resiling on the issue. He is objecting to the European Court and then saying, "Oh, well, if there is a dispute we will have an ad hoc tribunal". What kind of decision shall we have from an ad hoc tribunal?

The noble Lord, Lord Hacking, then asked Mr. Howard: What is the objection to the European Court of Justice being involved in the adjudication?". Mr. Howard replied: If there is no need for the European Court of Justice to be involved then it is undesirable for it to be involved". Why is it undesirable for the European Court of Justice to be involved? It is the supreme judicial body in the Europe that has been formed, and whatever form Europe eventually takes it will be the supreme judicial body. If there is to be a problem of interpretation, it should be decided by the European Court.

The noble and learned Lord, Lord Wilberforce, intervened at paragraph 517 with an interesting qualification. In the second part of his question in paragraph 518 he asked: Would it be so strong that is, the Home Secretary's objection— if the European Court of Justice were limited simply to interpretation and nothing else, simply this is what the Convention means?". Mr. Howard replied: It would be just as strong because the question is what kind of interpretation would the Court of Justice adopt. Would the European Court of Justice tend to adopt an expansive interpretation in most cases or not?". That is asking a question by way of reply.

What is happening is quite clear. The Government are taking the view through the Home Secretary that it is better to have an ad hoc tribunal than to leave the question of interpretations to the European Court of Justice. He obviously believes that there is a possibility of different interpretations in different countries, which would obviously be undesirable. I believe that common sense, pragmatism and everything else points in the direction of the majority recommendation of the committee. I hope the Government pay close heed to that.

7.45 p.m.

Baroness Hilton of Eggardon

My Lords, I too congratulate the committee on this interesting report and its sensible conclusions. As was said by the noble and learned Lord, Lord Slynn, it is essential to have cross-border arrangements in Europe to deal with crime. Even my noble friend Lord Bruce applauded the purpose of the convention. However, the proposal has already been under discussion for several years and, despite the urgency mentioned by several noble Lords, it will probably be several more years before Europol is up and running effectively. Clearly frustration at the lack of progress led to the setting up of the Europol Drugs Unit at the beginning of last year. I understand that there is no formal international agreement or legal basis for the Europol Drugs Unit. It appears that Europol as a whole may continue of necessity to evolve in that way.

The apparently successful first year, which was mentioned by the noble and learned Lord, Lord Slynn, inevitably occurs when one sets up what in the police service we used to call a "squad". To begin with information is floating about and there are various loose ends to which one applies new resources. To begin with there are always great successes. However, I wonder whether there is a danger that in future not only the drugs unit but Europol as a whole will run into the kinds of problems experienced by other squads. Those problems are that one becomes overburdened with information and needs increasing resources and increasingly elaborate data systems. The noble Lord, Lord Hooson, referred to the need for an information super-highway to underpin its activities. More analysis is needed and tight controls must be placed on what could develop into a monster without any legal basis. My noble friend Lord Bruce referred to the possible costs. They will need to be kept under strict control.

A further anxiety is the lack of public debate not only about the setting up of the Europol Drugs Unit but about the draft convention on Europol. I do not believe that the issue of accountability has been fully resolved. Quite clearly, the question of data protection for individuals is an essential aspect of the setting up of Europol.

It is extremely important that there is transparency in anything to do with crime. Some of the stories related by the noble Lord, Lord Hacking, could apply also to the activities of Europol unless it is set up under strict regulations and the terms under which information is passed between police forces is very clear. Mistakes easily occur even within local policing, but they occur more so on an international scene when one is dealing with different systems of crime, policing and judicial systems. There may be mistakes in translation and so forth.

Often the police service is secretive about what it is doing and there is confusion between the need for secrecy in relation to operational intelligence and secrecy about structures, methods, systems and so on. It is essential that the public are able to scrutinise structures, methods, systems and powers even though for security reasons they may not have access to crime intelligence.

That problem would be even more compounded if terrorism became part of the remit of Europol. The secrecy that tends to surround anything to do with the security services could then apply to more mundane types of police matters and crime and could create problems in that way. The whole matter might become shrouded in secrecy. Therefore, the assumption that two years after the setting up of Europol terrorism will become part of its remit could be extremely dangerous. There appears to me to be a clear link between the responsibility for dealing with crime relating to nuclear and radioactive substances and terrorism. I wonder why those crimes were included in the initial suggested remit for Europol. I suggest also that there is another international crime—the smuggling and stealing of arts and antiques—which might more properly be included in Europol's remit. That has not so far been mentioned.

Therefore, there are a number of problems which I feel are unresolved in relation to Europol. There is the lack of accountability, which was mentioned throughout the report; all the problems of definitions of crime in different judicial systems, and problems of interpretation which have been referred to already in relation to the European Court of Justice.

There is also a major practical problem in the setting up of Europol, which is that at present only Britain and Holland have national crime bureaux of the type envisaged by the draft convention. Indeed, it may be many years before such effective crime databases are set up within the other countries of Europe. Therefore, that will be an additional complication in addition to the need for national ratification, even if the convention is approved in Paris this year. As I understand it, it must be ratified by the individual countries thereafter. If each country has to set up on a national basis a crime intelligence bureau on the scale which we have in this country, which has over 100 staff, it seems to me that it will take several years rather than weeks or months for Europol to be up and running and to be really effective. Several noble Lords have spoken about the urgency of setting up Europol, but I wonder whether that sense of urgency is shared by the other member countries of Europe.

My noble friend Lord Bruce raised the question of Interpol and has asked the Minister to explain the relationship between Europol and Interpol. I apologise for not having given to the Minister notice of this question, but I wonder what is the relationship between the United Nations drugs unit in Vienna and Europol. As I understand it, that is also an arena for the exchange of information about drug smuggling throughout the world, and I wonder whether there is a possibility of duplication and overlap.

Like the noble Lord, Lord Knights, and other noble Lords, I too oppose giving operational powers to Europol. I should certainly oppose the suggestion of the noble Lord, Lord Bethell, that it should be immersed in the quagmire of European agricultural fraud. That could become a totally all-consuming task. That would deflect it from more proper aspects of crime intelligence. Like all those who have spoken, I welcome this interesting report and its sound conclusions.

7.52 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I very much welcome this debate and the report of the European Communities Committee which underpins it. It really is testimony to the effectiveness of the scrutiny arrangements that we have put in place for third pillar business. The report represents diligent and painstaking work on the part of the committee under the impressive chairmanship of the noble and learned Lord, Lord Slynn. I know from what has been said already this evening that the House will wish to record its deepest appreciation for that important report.

I am glad to recognise the consensus, not only within the committee but in this House tonight, as to the importance of concerted action to combat the threat of organised crime. Criminal activity is not constrained by national boundaries. Sophisticated techniques and effective joint action are needed to deal with it. That is the opportunity which Europol provides.

But I am equally glad to record and to share emphatically the view that the benefits which can come of those forms of co-operation in tackling serious transnational crime must be balanced by real protection of the rights of the individual and proper democratic accountability. We have sought to emphasise throughout the negotiations the need to have avenues for effective redress through national courts where the innocent individual has suffered injury.

Maintaining that balance between operational effectiveness and the protection of the individual is a proud tradition of our British criminal justice system. I very much welcome this debate as a contribution this evening to maintaining and promoting that tradition in the important work that we are undertaking, with our European colleagues, to promote more effective police co-operation to defeat international crime.

The Government will take full account of the views of the committee and of this House in pursuing that work, both in negotiations to finalise the Europol convention and in subsequent supervision and regulation of the activities and development of Europol itself. My colleagues and I will answer to this House for the activities of Europol as we do for our own national criminal intelligence and police services.

The committee undertook a great deal of detailed work in a very short time and we have had a very full debate this evening. The issues addressed were wide ranging and complex. I should like to address points in the order in which they were raised in the committee's report. I shall do my best to ensure that in doing so, I also respond to specific points that have been raised in the course of this debate.

The committee began—and the noble and learned Lord, Lord Slynn, referred to this—by expressing concern that the Europol Drugs Unit (the EDU) had been permitted to begin and extend its activities without a legally binding agreement as to the regulatory framework. That point was made by the noble Baroness, Lady Hilton. I am therefore able to confirm the Government's response to that by providing a reassurance, not only that the Government took full account of that dimension in agreeing to extend the unit's activities in the Justice and Home Affairs Council but that we shall continue to do so in scrutinising the unit's activities.

The Europol drug unit's activities are strictly limited by the joint action adopted by the Justice and Home Affairs Ministers on 10th March. Like the ministerial agreement it superseded, the text of the joint action regulating the operation of the EDU is clear as to the commitment which member states have made and the rules that will apply. The Government are satisfied that the EDU and member states are acting strictly in accordance with its provisions.

The EDU's activities are limited compared with those envisaged for Europol. The unit acts mainly as an information exchange. Data is only exchanged in accordance with national data protection legislation. But the EDU is also the precursor to Europol itself. It is important to prepare the way for the new organisation as we near agreement on the convention. The types of crime included in the limited expansion of the unit's remit mirror the initial remit of Europol.

Your Lordships have underlined the importance of ensuring that Parliament can make a proper input to the work we undertake under the justice and home affairs pillar of the treaty. That includes ensuring that an input can be made at a time when there is a real opportunity to influence the outcome of discussions. The Government wholeheartedly agree. That is why, as your Lordships know, we have made arrangements to table the texts of documents and to provide memoranda of evidence in advance of the meetings of the Justice and Home Affairs Council. There are, however, occasions when the pace of negotiations is such that documents are issued very shortly before the meetings at which they will be considered. Some presidencies prefer to conduct negotiations by way of separate discussion documents and working papers. They do not provide a full revised text until very late in the day.

Therefore, there are difficulties to be overcome. But I hope that your Lordships will agree that the committee's report and this evening's debate both illustrate ways in which Parliament can and does exercise influence over matters being considered under the third pillar.

I shall now turn to the provisions of the draft convention itself, beginning with Europol's remit. I am given to understand that at one stage there were proposals for a sort of European FBI. But that was not what we, or the majority of member states, wanted. These proposals have not been returned to in negotiations. These have confirmed that Europol staff will have no operational powers.

The organisation will provide, through intelligence exchange and analysis, a sophisticated means of aiding law enforcement throughout Europe and thus an invaluable aid to action to tackle serious, transnational crime. In saying that, I note the exhortation of the noble Lord, Lord Hooson, when he talked about state of the art technology to underpin the speedy exchange of that kind of information and providing it when it is necessary. The list of crimes for which Europol may be given competence is sufficiently comprehensive to ensure there is scope to meet developments in crime patterns. This is important. So are provisions which allow the Council of Ministers to control and manage the expansion of the organisation's remit and the priorities chosen for it.

There is, very rightly, a great deal of emphasis on data protection in your Lordships' report as stressed by the noble and learned Lord, Lord Slynn. The committee stressed the need for rapid but controlled access to sensitive analysis data; effective protection of individuals by application of national legislation and the Council of Europe Convention as well as suitable arrangements for subject access. Reference was also made to the exchange of data with third parties such as non-member states and the role of the national as well as the Joint Supervisory Body.

National legislation in the United Kingdom already meets the requirements of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. The Government are determined to ensure that United Kingdom citizens will have adequate rights and protection in relation to data held by Europol. Adequate training and procedures must and will be adopted. The "need to know" principle must and will be rigorously applied in respect of dissemination of analysis and other data both within Europol and between Europol and national units.

Noble Lords will be aware that many of the provisions of the draft convention relating to data protection are still to be settled. These are also amongst the most difficult aspects of the convention to agree, not least because of the variation that exists in the detail of legislative arrangements and traditions as between member states. However, progress is being made.

There will be arrangements for providing adequate safeguards where the dissemination and use of sensitive data is concerned. Access to sensitive data will be strictly controlled on a "need to know" basis.

Difficult negotiations over subject access are now favouring a position which would base an individual's access to data held by Europol on the national law of the country in which the request for subject access is made. Therefore, our citizens would continue to benefit from the provisions of our own data protection law. There will be national data authorities responsible for checking exchanges of data between the national unit and Europol. In the United Kingdom the data protection registrar will probably carry out that task.

We shall continue to take account of the committee's recommendations in the course of negotiations as well as in settling subsequent arrangements for handling such matters as the exchange of data with third parties. This evening's debate has provided a further invaluable opportunity to explore, in a balanced way, the important issues which arise as regards both the rights of the individual and the importance of effective law enforcement. The final issue which both the committee's report and your Lordships have raised is the involvement of the European institutions. Again, this is an aspect of the convention which remains to be settled.

The Government believe that a very strong practical justification would be needed to override their basic presumption against involving the community institutions in an intergovernmental agreement such as this. The Government of the United Kingdom are not alone in taking that view. The current presidency proposals envisage no role for the European Court of Justice. There is substantial support for those proposals amongst the 15 member states.

Reference has been made to disputes between member states. The Government note the views that have been expressed by the committee but see no role for the European Court of Justice. We consider that the Council is the right place for handling any interstate and state Europol disputes. It is common in treaties in other international agreements for there to be no final settlement procedure and for obligations not to be accompanied by any means of enforcement. The good faith of the contracting parties is generally considered sufficient and the member states would resolve among themselves any problem which arose. We see no need for individual grievances against Europol to be taken beyond national courts.

With regard to the national supervisory body, our concerns are with the detailed drafting of this article, rather than its substance. We entirely agree that national supervisory bodies acting under national law will have an important part to play in overseeing the work of national units and liaison officers. It is not necessary to give new formal powers to national supervisory bodies. We wish to ensure that the convention does not give any contrary impression.

Under United Kingdom data protection law there is already provision to require the national criminal intelligence service as a data user to assist relevant inquiries, and therefore no new powers of access are necessary.

The power for the United Kingdom data protection registrar to enter Europol premises in the Hague would be unnecessary and impractical. It would be preferable to emphasise the duties of member states and Europol to assist relevant inquiries.

The noble Lord, Lord Bruce of Donington, raised the point about documents that are placed in the Library. I have the same understanding of that issue as the noble Lord, but he will forgive me if I take this matter back to my department and then correspond with him. If other noble Lords are interested in a reply I shall ensure that it is placed in the Library and that it can be accessed by everybody.

Several noble Lords raised the issue of costs. It is difficult to say what Europol will cost. The Europol Drugs Unit costs the United Kingdom approximately half a million pounds a year. We pay 15 per cent. of the total EDU budget which is a small sum for the added value that the EDU provides.

The noble Lord, Lord Bruce, and other noble Lords referred to Interpol. Full account will be taken of the role of the European branch of Interpol. The two organisations are already under discussion to minimise any duplication of effort but they are very different bodies: Interpol covers the whole of the world; Europol focuses on 15 states and allows a much more intensive pooling and analysis of the most sensitive intelligence.

My noble friend Lord Bethell asked a specific question of which he was kind enough to give me notice, in regard to the UK staff and their status in relation to their representative bodies. It is too early to say what the arrangements will be for centrally recruited Europol staff; that will be a matter for Europol's director and the management board, and will be covered by the staff regulations. All United Kingdom staff on secondment to Europol, both police and customs officers, will retain their existing rights to federation for union representation.

I can confirm that the assumption of the noble Lord, Lord Knights, is correct, that the budget for the United Kingdom contribution to Interpol is held by the criminal intelligence services. They also hold the budget for the United Kingdom contribution to the European Drugs Unit. We believe that they will be well placed to judge the value for money that we obtain from these different complementary organisations. I have noted the points made by the noble Baroness, Lady Hilton, and other noble Lords about the importance of keeping a downward pressure on what could be spiralling costs.

There are no plans to fuse the criminal intelligence service and the security service, as the noble Lord, Lord Knights, suggested. The diversity of responsibility for tackling terrorism in different member states was one of the reasons why the United Kingdom resisted the inclusion of terrorism in Europol's initial remit. We need time to ensure that satisfactory arrangements can be made with all the organisations concerned to ensure that sensitive intelligence can be handled properly without damaging existing channels.

As the noble Lord, Lord Knights, stated, the National Criminal Intelligence Service is accountable to the Home Secretary, and he is accountable to Parliament. However, the intelligence service is not a police force, as the noble Lord knows. Its purpose is to gather, to develop and to disseminate intelligence. It supports the activity of individual forces, and chief constables are fully involved in a user's committee which meets regularly to look at the services that the NCIS provides.

My noble friend Lord Hacking referred to individual data protection rights. Although the draft article that provides for individual access to data held by Europol is still under consideration, I am able to provide reassurance to all noble Lords on one point that has been raised by the noble and learned Lord, Lord Slynn, and my noble friend Lord Hacking. They referred to a provision by which Europol could refuse to provide data if disproportionate cost was entailed. That provision has been deleted from the latest working document.

This is not, as has been suggested by the noble Lord, Lord Hooson, a question of dragging feet. This is an important issue. Whilst I understand the need for a resolution, the process of getting agreement between member states and the reconciliation of sensible issues, for example, the protection of the right of the individual, is painstaking work. I agree with my noble friend Lord Aldington that the signing of the convention would be desirable sooner rather than later. We are working to that end. However, there is no wilful dragging of feet.

I have listened to the varied opinions that have been expressed this evening. I have also noted the points made in the report. We shall take the latter into account; as, indeed, we were exhorted to do by my noble friend Lord Hacking. However, I realise that I have missed one point regarding Interpol. It concerns its relationship with the United Nations and was a matter raised by the noble Baroness, Lady Hilton. The two organisations are different. The United Nations unit in Vienna does not look at specific drug offences; it looks at patterns of trafficking. There is no real overlap. However, the point made by the noble Baroness regarding possible duplication is something that we need to watch out for both with Interpol and as regards the relationship with United Nations' organisations.

Perhaps I may conclude by thanking your Lordships for the welcome and constructive contribution which both the report and this evening's debate have made to our work on the convention. We are fully committed to the task of defeating international organised crime. Europol can make an enormous contribution in regard to that task. The Government are equally committed to the protection of the rights of the individual. That aspect must not be ignored in such debates. However, those commitments are ones which we share with other member states, whatever the variations of our national laws and whatever the differences in our traditions. I therefore have every hope and expectation of a successful and fruitful outcome to the present negotiations. Once again, I should like to express our sincere thanks to the noble and learned Lord, Lord Slynn, and to his committee for their report, which has made a very important contribution to the subject.

8.11 p.m.

Lord Slynn of Hadley

My Lords, I thank the Minister for her detailed reply and especially for her undertaking that the rights of British subjects in regard to data protection and the importance of maintaining the need-to-know principle will be persevered in by the Government. I should also like to thank noble Lords for participating in tonight's debate and for the very warm welcome which has been given to the report. However, in view of the hour, I hope that I will not be thought discourteous if I comment on only a small number of points.

The noble Lords, Lord Bruce of Donington and Lord Knights, rightly stressed the importance of the draft convention. I am only sorry that the noble Lord, Lord Bruce of Donington, apparently thought our report somewhat academic. He appeared to propound the extraordinary notion that lawyers are not practical people. I find that quite a remarkable attitude for any Member of this House to adopt. However, the noble Lord will take comfort from the fact that, in the Select Committee, those voting in favour of the sub-committee's report included only one obvious candidate in that respect, as the others were not lawyers. Therefore, the others must be tarred with the same impractical brush.

I was very sad to note that the noble Lord, Lord Aldington, was not able to concur with the majority in the recommendation made about seeking to achieve uniformity in the interpretation of the convention. But, as a result of his disagreement, I have learnt that the delights of disagreeing with the noble Lord and debating against him are almost as great as the delights of agreeing with him in the committee. The same goes for the noble Lord, Lord Bruce of Donington, outside the committee.

On the question of the European Court of Justice, I should like to make three brief points. If discussion about it and the acceptance of the majority's recommendation were to be the cause of delay, it would be highly regrettable. When we considered the draft convention, there was a provision that the European Court of Justice should have jurisdiction to decide matters of interpretation. Therefore, if there is any delay, it is those who seek to remove that provision who might be the cause of the delay.

There is already a division. I accept the Minister's statement that many states now go along with a proposal to exclude the European Court of Justice. I do not know about that; the Minister knows the details involved, whereas I do not. My information is that a substantial number of member states are still in favour of including a provision giving the European Court of Justice some jurisdiction. However, it is essential for noble Lords to bear in mind the fact that what is being proposed is very limited. In the first place, it is that national judges throughout the member states should have the opportunity—in rare cases, no doubt—to refer to a central court questions regarding the interpretation of the treaty. Like the noble Lord, Lord Hooson, I find it quite extraordinary that the Home Secretary should regard it as not in the least disturbing that the convention should be interpreted in various ways, especially in regard to British subjects, in different states which are party to the convention.

Of course, the intention is that that most of those disputes will be decided without any reference. It would also be hoped that disputes between states could be decided in the Council. But the Minister will not be offended if I say that, if that always happened in all treaties, there would be no need for the International Court of Justice or for the many international tribunals which, over the centuries, have been established. I find it very Utopian to suggest that all such disputes will be decided with equanimity and ease by member states in the Council.

I desire to say something that I did not stress before. I believe that all our witnesses, except those from the Home Office, were in favour of the European Court having jurisdiction. Certainly, Justice, Liberty and the Meijers Committee from the Netherlands, which gave evidence, and others, were in favour of it. It is not just a lawyer's paradise; it is something which people practically engage in in important spheres, especially those underlined by the noble Lord, Lord Hacking. They really need to be dealt with.

I, perhaps, made the mistake of saying that I was comforted by the final sentence in the reply of the Home Office stating that it would continue to have regard to the committee's opinion when negotiations were taking place on the question of jurisdiction either of the European Court or of an independent tribunal. From what the Minister said this afternoon, it sounded to me very much as if the door was very firmly closed against any such suggestion. However, I ask the Minister to bear in mind the fact that the primary question is not which tribunal; the primary question is whether there should be uniformity.

Finally, in relation to Interpol, I, too, would accept that the latter is very different from the proposed Europol. The kind of data that it considers and its involvement with data protection are very different; it does not engage in the same form of analysis; and, indeed, it is not accountable. I can tell the noble Lord, Lord Bruce of Donington, that we went into the matter but came to the view that the case for having a separate Europol was fully made out.

At the end of the day there is only one matter between us; namely, the question of a uniform interpretation. I hope that the Minister will stick to what was said in the Government's written response and that she will keep our paragraph 109 firmly in front of her when the discussions take place. I am most grateful to all speakers for tonight's most interesting and valuable debate.

On Question, Motion agreed to.