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EU JHA Opt-in: Cyber-crime

Volume 660: debated on Thursday 16 May 2019

The Government have decided not to opt into (under the UK’s JHA opt-in protocol) either the proposed EU Council decision to participate in the negotiations of the second additional protocol to the cyber-crime (“Budapest”) convention or the proposed EU Council decision to authorise EU-US negotiations on a cross-border data access agreement.

The first proposed Council decision enables the EU Commission to participate in negotiations relating to the second additional protocol to the Council of Europe cyber-crime (“Budapest”) convention, on behalf of the European Union.

The second proposed Council decision authorises the EU Commission to commence negotiations with the US on an EU-US international data access agreement, with the aim of ensuring compliance by US-established service providers to requests from EU member states for stored electronic content. The US’s Clarifying Lawful Overseas Use of Data (CLOUD) Act provides that only an international agreement between the US and a foreign Government can allow for such compliance by US established service providers.

I have decided not to opt into the EU Council decision on participating in the second additional protocol to the Council of Europe Budapest convention to ensure that the UK is able to negotiate its own position and interests, without being limited or bound by the EU negotiation policy. This includes enabling the UK to ensure that a flexible approach is taken in negotiating the protocol to accommodate the different systems and processes of a wide range of participant states (beyond the participating EU member states).

The UK is already in the process of negotiating its own reciprocal UK-US data access agreement, a bilateral treaty (as required under the CLOUD Act) that enables US companies to comply with lawful orders from UK authorities for the production of electronic communications without any conflict of law. As such my right hon. Friend the Minister of State for Policing and the Fire Service has decided not to opt into the Council decision on opening EU-US negotiations on cross-border data access. This is in line with the UK’s decision not to opt into the draft EU e-evidence regulation, which sets internal EU rules relating to the production of electronic communications.

Until the UK leaves the EU we remain a full member, and the Government will continue to consider the application of the UK’s opt-in to EU legislation on a case by case basis, with a view to maximising our ability to protect the public.