EU: Personal Data

Lord Hannay of Chiswick Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Hannay of Chiswick]

My Lords, I am participating in this debate in my capacity as chair of the European Union Committee’s Sub-Committee on Home Affairs, Health and Education, which has scrutinised the measure now before your Lordships. As to the substance covered by the draft EU directive in question, the committee supports the Government’s decision not to opt out for reasons with which I will not weary the House because the noble Lord, Lord Lester of Herne Hill, has just most eloquently described them.

The directive covers the processing of personal data for the purposes of police and judicial co-operation in criminal matters and forms part of a package, together with a data protection regulation covering the general and commercial processing of personal data by public and private bodies. The directive is intended to replace the 2008 framework decision, which was adopted under the old third pillar procedures established under the Maastricht treaty before these were superseded by the treaty of Lisbon. In plain language, that is to say that the UK had agreed to that earlier decision, which required unanimity to agree to it in order to be adopted, and is covered by it whether or not we opt out of the new directive.

When adopted, the new directive will apply significantly stricter rules on data protection, which we welcomed in my committee, in contrast to the relatively weak provisions in the framework decision. There is, of course, a down-side risk about which the Minister spoke. This enhanced protection could place an additional burden on businesses and public authorities. Therefore, like the Government we attach importance to an appropriate balance being struck in this matter. With that in mind, we would urge the Government to focus on, and to play an active role in, achieving that balance during the negotiations which are now to take place.

We have noted that in addition to this package a variety of different EU measures remain in force under Title V of the treaty, which contain distinct and separate data protection provisions. Perhaps the noble Lord would agree that to enact the directive in its current form, which would not bring these existing measures within its scope, would be to miss an opportunity of achieving a more coherent, overall approach. Perhaps he could say a word about that. That sort of opportunity might not recur for many years. It would be interesting to know whether the Government will be addressing this matter in the negotiations.

The directive is currently in the form proposed by the Commission and is likely to be the subject of prolonged negotiations in the Council, which was confirmed by the noble Lord in his introductory remarks. Those negotiations are already under way. We endorse the Government’s view that the best way for the UK to shape and improve the directive is by playing a full part in the negotiations, which the decision not to opt out allows us to do. The committee I chair is keeping the directive under scrutiny and we expect to receive updates of the negotiations from the Government in due course. When appropriate, we will intervene with our views on those updates.

Having addressed the substance of the directive, I would now like to turn to the procedural concerns that have been raised regarding the handling of the directive by the Government in this House. I agree with the noble Lord, Lord Pearson, about the handling and welcome what the noble Lord, Lord McNally, said about it himself. It has not been ideal, as the Minister frankly conceded in his letter of 28 May to the chair of the EU Select Committee in response to our warning that the Ashton and Lidington undertakings were not in this case being properly implemented. It is a bit more serious than the noble Lord, Lord McNally, suggested in his opening remarks, because it was an absolutely integral part of the votes in this House to ratify the Lisbon treaty, so it is a fairly important point. But I welcome the fact that the Minister has recognised that mistakes were made on this occasion.

The Motion refers to the Schengen protocol, the effect of which is that the UK is deemed to be participating in any measures which build on those parts of the Schengen acquis in which it already takes part unless, within three months of the measure’s publication, it notifies the Council that it wishes to opt out. If it does not do so then, it becomes automatically bound by the measure, if adopted, and will participate in its negotiations.

During debates in this House on the ratification on the Lisbon treaty, the noble Baroness, Lady Ashton of Upholland, gave an undertaking to take the views of this House into account on reaching a final decision on whether the United Kingdom should opt in to justice and home affairs measures. On behalf of the coalition Government, David Lidington, the Minister for Europe, reaffirmed the undertaking and extended it to cover opt-out decisions under the Schengen protocol, which is the one that we are talking about tonight. Since then, the latter circumstance has not arisen until now and the Motion before your Lordships' House is thus the first of its kind.

While we have already welcomed the Government’s intention to participate in the directive, given their view that the potential for an opt-out applied, it was regrettable that they did not raise the issue in the Explanatory Memorandum of 13 February. Indeed, we have yet to receive an satisfactory explanation as to why they actually considered that the Schengen opt-out applied in this instance at all, but that is a fairly abstruse legal point and I do not wish to labour it now, because the Government have decided that it applies and have gone through the decision-making process in the way described.

It was also regrettable that time was not found to debate the draft directive before prorogation, as it was in the Commons on 24 April. As a result, the Ashton and Lidington undertakings have not been fully respected since the three-month period for an opt-out decision expired on 14 May. I understand that discussions are under way between the Government and both Houses to ensure that circumstances such as this do not arise again. In those circumstances, my committee would consider that the Motion to Regret tabled by the noble Lord, Lord Pearson, is disproportionate and we would frankly not support it.

As your Lordships will already be aware, following the response of the noble Lord, Lord Henley, to the noble Lord, Lord Vinson, who asked an Oral Question this afternoon, before June 2014 the House will need to return to this complex area in a significant way when the question arises of whether the UK should exercise its right to opt out of approximately 130 measures relating to police and judicial co-operation in criminal matters under Protocol 36 of the Lisbon treaty. I would be delighted to respond to the interest shown by the noble Lord, Lord Pearson, in the activities of the EU Select Committee, about which he is not always that polite. On this occasion, he seems to be interested in how we do our work. I can enlighten him, although it is all on the EU Select Committee’s website, including the Home Secretary’s reply on the list of 133 measures. It is all there and, if the noble Lord wishes to look on the website, he will find it.

The list of those measures that will be covered by Protocol 36 was provided as a result of an initiative taken by the noble Lord, Lord Bowness, who chairs the twin committee to the one that I chair, which deals with justice. He raised the issue through the noble Lord, Lord Roper, and we got the answer with the list, which was helpful. When the noble Lord, Lord Vinson, asked his Question this afternoon, we got a little further, because we got a useful Answer from the noble Lord, Lord Henley, as well as a confirmation of the complex arrangements for consulting the European scrutiny committees and various other committees of both Houses before the Government came to any conclusion about the block opt-in or opt-out of 2014. That was extremely helpful, and I welcome the fact that that enlightenment has been given. I add only that we are still not very far down the road to understanding how procedures will work. These are completely unprecedented procedures, with votes in both Houses and the consultation of the various committees, and I hope that the Minister and his colleague the noble Lord, Lord Henley, will at some stage—although we are not very close to that yet—throw some light on how that process will be covered.

I add, for the noble Lord, Lord Pearson, that as soon as we got the letter from the Home Secretary with the 133 measures, the noble Lord, Lord Bowness, and I put our heads together with the then chairman of the EU Select Committee, the noble Lord, Lord Roper, and concluded that it would be necessary for the committee to write a report to the House before the block opt-out came before the House. That has been decided; it is on our forward programme, and I think that we will start taking evidence on it early in 2013 after we have concluded, in my committee, the report that we are doing at the moment on migration and mobility. That should give us plenty of time, and I hope that we will get the report out before the end of this Session—that is, mid-2013. That should give us plenty of time to provide the House with the kind of evidentiary basis that it ought to have before it has to take a decision on this matter. It will of course include the Government’s views on the matter, but they will give evidence in that inquiry.

I hope that that is useful to the noble Lord, Lord Pearson. It may even convince him that the EU Select Committee occasionally serves a useful purpose. Anyway, I do not want to go on any longer. It is late as it is and I have gone on rather too long. I hope very much that the noble Lord will not persist in his Motion of Regret. For my part, on behalf of my committee, I support the Government’s decision in substance.