From: THE LORD GRENFELL Chairman of the Select Committee on the European Union
COMMITTEE OFFICE HOUSE OF LORDS LONDON SW1A 0PW
Tel: 020 7219 6083 Fax: 020 7219 6715
13 June 2005
White Paper on exchanges of information on convictions and the effect of such convictions in the European Union (COM (2005) 10, doc. 6584/05) The White Paper was considered by Sub-Committee E (Law and Institutions) at its meeting on 8 June. The Committee noted that the White Paper could lead to potentially far-reaching proposals which might have a substantial impact on the rights of the individual as well as on the allocation of competence between the Union and Member States to act in criminal matters. Data protection and the rights of the individual The Commission’s system is based on data included in national criminal records. As is noted in the White Paper, and indicated in the accompanying Staff Working Paper, there is considerable diversity as to the form and content of criminal records in different Member States. The proposed European Index would disregard these disparities and would include only the names of individuals that have been convicted in Member States. As the scheme would apply to any offence, there might be cases where there is no dual criminality. This may lead to situations where the name of an individual is transmitted to the police authority of another Member State for an act that is not an offence in that State. As the Committee has noted in its scrutiny of the draft Decision on the bilateral exchange of criminal records, problems may also arise in cases of individuals who have been rehabilitated/ pardoned, as it is not standard practice in Member States for these developments (a) to be recorded in the criminal record and (b) to be transmitted in other Member States. The extension of the scheme to cover disqualifications may also be problematic, as the Committee has noted in its scrutiny of the proposal for exchange of information on disqualifications resulting from convictions on sexual offences. The issue of EU competence The White Paper contains ambitious proposals for the establishment of common EU definitions of convictions and for a ‘dictionary’ of legal terms of criminal law in Member States. It also advocates a common EU approach on the consequences of a previous ‘foreign’ conviction in sentencing in EU Member States. These initiatives have, at first sight, the potential seriously to curtail national sovereignty in criminal procedure and sentencing and would appear to fall outside EU competence in criminal matters.
The Government acknowledge that there are limits to EU competence in this area, but support the extension of the application of the Commission proposals to crime prevention. However, EU competence on crime prevention is limited, if not questionable. An express legal basis for EU action on crime prevention would be introduced by the Constitutional Treaty (Article III-272). Even this provision calls for supporting EU action which excludes harmonisation. We would welcome your comments on these points. In the meantime, the Committee decided to retain the White Paper under scrutiny. I am copying this letter to Jimmy Hood MP, Chairman of the Commons European Scrutiny Committee; and to Dorian Gerhold, Clerk to the Commons Committee; Michael Carpenter, Legal Adviser to the Commons Committee; Les Saunders (Cabinet Office); and Stuart Young, Departmental Scrutiny Co-ordinator.
Andy Burnham MP Parliamentary Under Secretary of State Home Office 50 Queen Anne’s Gate London SW1H 9AT