EU: Personal Data

Lord McNally Excerpts

Wednesday 20th June 2012 Lords Chamber

Moved by

[Lord McNally]

That this House takes note of European Union Document No 5833/12 and Addenda 1 and 2, relating to a draft directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data; and takes note of the Government’s recommendation not to exercise their right to opt out of this draft directive under Protocol 19 of the Treaty on the Functioning of the European Union (The Schengen Protocol).

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the noble Lord, Lord Pearson of Rannoch, who I am glad to see in his place, has put down an amendment that will, I suspect, structure our debate. The noble Lord’s amendment is in two parts. First, he did not want us to exercise our right to opt in to this regulation and secondly, he regrets that this House had no opportunity to debate that decision before the deadline on it of 14 May.

Perhaps I may deal with that last point first. I wrote to the noble Lord, Lord Boswell, the new chairman of this House’s European Union Committee, on that matter. I wrote:

“I apologise to the Committee that the Government did not draw the Committee’s attention to the opt-out sooner. The issue of whether the Directive should be considered as triggering the possibility of a Schengen opt-out or not is a complicated one and I do recognise that the Government reached its conclusion on this matter later than was ideal … I would like to reassure the Committee that lessons have been learned by the Ministry of Justice in relation to the important issue of informing the Parliamentary Scrutiny Committees of opt-in or opt-out decisions and I thank you for your patience and understanding on this occasion”.

To that, the noble Lord, Lord Boswell, replied with his usual kindness and courtesy:

“We are grateful for your letter and will look forward to considering the Directive further in the debate which is scheduled to take place in the House on 20 June 2012. We will continue to hold this proposal under scrutiny and will look forward to receiving updates on the progress made in negotiations in due course”.

I hope that that apology to the committee, and now to the House, will be sufficient to deal with the quite legitimate complaint of the noble Lord, Lord Pearson, on this matter. As I said, it was partly because of the timing of Prorogation and the difficulty of deciding the technical issues, but we have learnt lessons and I sincerely hope that it will not happen again.

The debate also gives an opportunity to debate the proposed data protection directive, which the European Commission published on 25 January. That directive will cover the handling of personal data by public authorities for police and criminal justice purposes. It is therefore an important instrument that affects security as well as freedom and it is right that the House is given the opportunity to consider the proposals.

Negotiations on this instrument are at an early stage, so this debate is timely as there is still much to be discussed in the Council of the European Union and in the European Parliament during the months and possibly years ahead. I understand that the European Commission is looking to conclude negotiations on this directive during the Irish presidency of the Council of the European Union in the first half of 2013. However, it remains to be seen how realistic that timescale is. That puts into context the fact that we missed this one issue. It is not that the House will not have time and opportunity to return to these measures during the next months, and perhaps even years.

In the case of the proposed data protection directive, it is the view of the Government that this directive can be classified as a Schengen-building measure and therefore, under Protocol 19 of the Treaty on the Functioning of the European Union, the UK had the option of opting out of the directive. The deadline for notifying the Council of the European Union of that decision to use the opt-out was, as I said, 14 May. On this occasion, the Government decided that we would not exercise the opt-out. The decision followed a full debate in another place held on 24 April 2012.

I should say that we had also wanted to hold a debate in this House ahead of the decision on whether to opt out, but were regrettably unable to find time, partly because of Prorogation, and partly because of delays in deciding whether to accept that the directive was Schengen-building. However, the critical issue for discussion is our position on the detail and how we go about engaging with our European partners in ensuring that the directive works in the British national interest. On this, there remains ample opportunity for this House to influence the Government’s strategy.

Let me begin, however, by setting out the background to the directive, and the Government’s approach in considering it. Currently there are two pieces of European legislation governing data protection: first, a 1995 directive that relates to the use of data by businesses, public bodies and other organisations; secondly, what is known as the 2008 framework decision on data protection, which governs use of data by police and criminal justice bodies. The Commission is bringing forward a package of measures that replace the directive with a regulation, and the framework decision with a directive.

The Government’s approach on the regulation is a matter for another day—although broadly speaking we recognise a case for updating the law, but have concerns on the detail. On the directive, we have approached it on the basis of a clear position: that the continued ability to share information on crime and justice matters across borders is of fundamental importance. In an increasingly globalised world, crime does not stop at the port or the airport but happens across jurisdictions or involves people of many different nationalities.

The Government support proportionate, clear and coherent data protection rules that keep personal data safe and protect the rights of citizens. We also support the free transfer of data across borders and between organisations where it is necessary to prevent crime, increase security and help to keep our citizens safe. We believe that appropriate data protection rules and security go hand in hand and are not mutually exclusive. Our first priority in considering the directive has been to protect arrangements that allow information to be shared within the EU for the benefit of the public and the protection of their safety and freedom.

The challenge with this measure is that, although parts of it are welcome and will help in the fight against crime, some of its provisions are excessively bureaucratic and unwieldy. As our impact assessment shows, as currently drafted we have concerns about the costs it would impose on UK law enforcement agencies—for example, a requirement to appoint compulsory data protection officers and a bureaucratic requirement on keeping documents and records.

There is also a point of principle at stake. We are very concerned that, despite the fact that Europe’s focus should properly be on cross-border sharing of data, the directive has been drafted so as to apply to domestic processing of data. That is, unlamented, it would affect rules on information being shared by police forces within the borders of one country. We think that that is impractical and a matter best left to national governments.

Our approach in thinking about our position on the directive has been to work out what is the best way of securing the benefits of continued data-sharing while minimising the costs of a measure that, in some respects, goes further than we are comfortable with. Our judgment has been that, despite our concerns about the current text, the best approach is engagement to ensure that it works for Britain.

There are a few reasons for that. First, the directive is the opening position in what will be a lengthy and ongoing process of negotiation. The UK is far from the only member state to have concerns about the text. We believe we can secure a much better deal by working with our partners rather than by trying to isolate ourselves. Secondly, the legal base of this measure gives the UK an effective exemption on the issue that we have been most concerned about: domestic processing of data.

The directive is based on Article 16 of the Treaty on the Functioning of the European Union, the new data protection provision included in that treaty by the Lisbon treaty. Under Article 6a of the UK and Ireland’s protocol applying to justice and home affairs—Protocol 21—the UK has what we believe to be firm protection ensuring that the provisions of the proposed directive on internal processing will not apply to us.

Despite the fact that we have that exemption, the Government are none the less keen to try to defend the point of principle and ensure that the directive does not apply to domestic processing for any of the member states, as we consider that there is no justification for extending EU regulation to this area. We will be supporting other member states in pressing this in negotiations.

Before 14 May, it was of course open to us to exercise the opt-out on the directive and I had better say a word about why we decided not to do so. Our judgment was that opting out would be a very bad idea because it would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive. The reason for that was that even if we did opt out, other member states would have continued to be bound by the terms of the new directive, which would have been negotiated in our absence. The status of existing rules governing the sharing of data would have been thrown into disarray, with a high probability that the UK would have had to negotiate new bilateral arrangements with each of the member states.

Other member states would not have wanted to share data with a country that they consider might not protect it to the same extent as the regime they operated. Rather, they would have pressed the UK to adopt similar requirements to the directive so that they would be able to operate within the same regime. All told then, opting out would not have stopped us being subject to the obligations of the directive. More likely, it would have meant being bound, albeit indirectly, by a measure that we would not have participated in negotiating and shaping. Furthermore, an opt-out would have reduced our ability to negotiate essential data-sharing agreements, such as the passenger name records directive and the EU-third country agreements, and thrown into doubt other, broad Schengen measures. This would be a serious problem for our law enforcement agencies, which benefit from the sharing of criminal data under Schengen.

All told, we have judged that the national interest is best served by participating in this directive so that we are party to the framework governing data-sharing for policing and criminal justice across the EU. The priority now is to build trust across member states for the necessary sharing of data to protect our citizens and make the strongest case possible for this to be done within a framework of appropriate and proportionate rules. Let me be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom and to take steps that imperil those agreements would put us all at risk.

We want to see a system that allows police and criminal authorities to continue to protect and serve the public effectively, and which also allows individuals to be confident that their privacy, safety and freedom will be safeguarded. The Government believe that these two objectives are not contradictory but can be achieved in tandem by creating a data protection framework founded on the principles of necessity and proportionality. We would, naturally, already expect robust data protection governance as a matter of course in public authorities. However, we would question the necessity of having the European Union telling us how to create, organise and run these arrangements. The more prescriptive and burdensome aspects of the directive are opposed by the Government and we will seek to remove or mitigate them during the negotiations in the Council of the European Union.

I repeat: this is the beginning of a lengthy process of negotiating. The UK will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objective, which is to end up with an effective but proportionate framework. We expect that other member states will share the same outlook. We believe that an opt-out decision was a possibility for the Government but would have been the wrong choice. It is not possible to have data-sharing without data protection. We want to be part of a European data protection framework that protects both security and freedoms and we believe that the limited application of the directive means that we should be content to be part of it. While there are areas of the proposal that the Government will seek to alter so that they provide an appropriate level of flexibility for law enforcement bodies, we are clear that UK participation in this data protection directive is in the UK’s best national interests. I beg to move.

--- Later in debate ---

[Lord McNally]

My Lords, the concluding remarks of the noble Lord, Lord Beecham, brought to mind a saying much loved by my old mentor, the late Lord Callaghan—that a lie was half way round the world before truth could put its boots on. These days, it is more than a lie that can get half way round the world before the police can put their bicycle clips on. We have to approach these issues with the benefits of modern technology but balance that with some of the threats that modern technology brings to individual privacy and such matters. It is that which we have been debating.

I am grateful to the noble Lord, Lord Beecham, for his support from the opposition Front Bench. We will keep committees informed on the matter. I am not quite sure whether the Justice Select Committee has asked for a formal meeting, but I will write. A large number of questions were asked. If I miss any out in my reply, I will make sure that I cover them in a written response to noble Lords who have taken part in the debate. As the noble Lord, Lord Beecham, reminded us, these are important issues in terms of individual rights as well as in terms of security, crime detection and related matters.

The noble Lord, Lord Hannay, implied that I had taken matters lightly in our application of, or approach to, the Ashton-Lidington promises. That is not true. I take them very seriously indeed, and that is why I have been forthcoming in my apology. I know the noble Lord, Lord Pearson, well enough—indeed, I have a certain affection for him—but if you offer him an olive branch on matters European, he is most likely to grab it and hit you over the head with it. Nevertheless, the apologies were sincerely given. Accidents happen. It is cock-up, not conspiracy. As I said in my opening remarks, we are trying to learn the lessons and, as the noble Lord, Lord Hannay, said, this is one of the first times that we have discussed Schengen under these proposals. If there are lessons to be learnt, we will learn them.

To get things into proportion, we are in June 2012. The Lisbon treaty specifically gave us until June 2014 to make up our minds on these issues. Therefore, to imply that we do not have every answer to every matter two years before that deadline suggests that we have a liking for conspiracy that simply is not there. At Question Time today, my noble friend Lord Henley gave absolutely crystal-clear assurances on how the Government will approach this. The idea that somehow we were going surreptitiously to slip through, one by one, the 133 measures covered in this area of the Lisbon treaty is laughable. Of course the world has not come to a dead stop and things come through. When measures are brought forward, as they necessarily will be, what happens—although it did not happen perfectly in this case—is that we bring them to Parliament, which has the opportunity to debate and approve them. The fact that this House did not get that opportunity in this case is regretted, but the other place, as my noble friend Lord Lester pointed out, approved the measure by 267 votes to 24.

I would say only one other thing about the points raised by the noble Lord, Lord Pearson. I will come to his questions, but he read out a list of, I think, six measures that had gone through. I would be happy if he read them out again because, as an ordinary citizen, I am much reassured that we have that measure of European co-operation on those kinds of issues, although I know that we come from a different philosophical point on this. However, if the noble Lord is trying to convince the British people of his point of view, I am glad that he reminds them of the really positive measures concerning co-operation on criminal justice matters, as I think that that strengthens my approach rather than his.

I thank the noble Lords, Lord Hannay and Lord Lester, for their contributions. Concerning the point made by the noble Lord, Lord Hannay, about taking the opportunity for a coherent approach in these negotiations, I can give him an absolute assurance that we will look to his committee and other committees in both Houses. We will provide them with updates and look to them for comments and commentary on the progress of these negotiations. There will be no attempt by the Government to do anything other than that.

As I said, I shall not be able to cover all the issues that have been raised in the House today. However, the 133 measures—a nice, frighteningly large number—need analysis. I welcome the fact that there will be an opportunity for the committee to look at them. Some of them are dead or dying. It is not the case that the Beelzebub that the noble Lord, Lord Pearson, spends his nights afeared of is thinking up 133 new measures. This is a matter of taking stock in a calm, rational manner and then, one hopes, having a rational discussion based on analysis about what is in our national interest and allowing Parliament to take a decision following such a debate. There is certainly no attempt to pre-empt matters. The Government continue to approach each opt-in decision on a case-by-case basis, taking decisions based on the UK’s national interests. They will not be making any premature decisions on this, as my noble friend Lord Henley assured the House earlier today.

I am told that the reference to competent authorities is from Article 3 of the proposed directive. A competent authority is any public authority which is competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. Therefore, a competent authority is not some branch of the Commission; we are referring here to the police.

Our impact assessment was also mentioned. It is true that we considered that there were both bureaucratic and cost implications, but we also said that being positioned outside the directive could involve costs too. Again, as we look at these matters and as the negotiations unfold, these things can be fully examined.

Oh dear! It looks as though we may have another apology to make in that the noble Lord, Lord Pearson, said that the Motion before the House is a recommendation and not a decision. This was not an attempt to mislead the House. Of course, by now it has become a decision and I am sorry for that drafting error.

I was asked why the title of the directive mentions free movement of data. The purpose of the directive is twofold: ensuring that personal data are protected and ensuring that they can be exchanged for the purposes of the prevention, investigation, detection or prosecution of criminal offences. I think that that covers the question asked by the noble Lord, Lord Wills, about why we had this twin-track approach. From the beginning, there has been legislation covering the broad area of data exchange and the very specific needs of the police and criminal detection authorities.

The noble Lord, Lord Wills, cunningly and quite outside the remit of this debate, asked me about Section 55. I am very willing to write to him. We have continued to be reluctant to put penal sanctions on Section 55, but we keep it under review and we continue to discuss the matter with the Information Commissioner.

I will shuffle through my notes and look at them very carefully because I think it will be easier to answer some of the specific questions in writing. I will write to noble Lords with a considered response to the specific questions and put copies in the Library of the House so that these matters are on the record.

I hope that the noble Lord, Lord Pearson, will agree to withdraw his amendment. This debate has been useful. Basically, he seems to argue from a very fundamentalist position, which I understand but do not agree with, about whether or not we should participate in these kinds of processes. Speaking for the Government, I take the position, as I stated at the beginning, that some of the things that the data protection issues cover are, by their very nature, matters that need international co-operation. We have been very frank in saying that we think that the approach of the Commission has been overprescriptive. There are burdens and costs that we do not like, but we are convinced that it is in Britain’s interest to opt in, to negotiate hard, to keep Parliament fully informed and to make decisions at the appropriate level and at the appropriate time on these matters.

Tonight’s debate has been chastening for my department but I give the assurance: “Please, Sir, we won’t do it again”. However, we will continue to engage positively on these matters because, in our view, that approach is in our national interest. I sincerely hope that the noble Lord will agree to withdraw his Motion so that the House can approve my Motion.

[Lord Pearson of Rannoch]

Before the noble Lord sits down and before I respond on my Motion, perhaps I could press him on two questions, as I did not quite understand his answers. First, is he saying that we are likely to have a number of individual opt-ins for debate and vote before the end of May 2014? I think he implied that that could well happen. Secondly, the most important question I put to him to which I would like an answer is this: as these opt-ins clearly amount to a transfer of sovereignty, or whatever you want to call it, from this Parliament and our courts to the Commission and to the Luxembourg Court of Justice, why are we not having a referendum? I understood that that was the point of the referendum Bill. If the Minister would be good enough to answer those two questions, I will reply briefly to my Motion.

[Lord McNally]

Gladly so. I said that—and I do not know because I am not a clairvoyant on these matters—we will try to get notice from the Commission to see if things are coming down the track. As I said, things are not frozen, so we may well get another one like this. I do not know. But if we do, perhaps with better handling, we will do what we have done with this which is to bring it before both Houses for approval.

On the question of a referendum on these measures, this was clearly laid out in Lisbon. The process was clearly laid out. The Government have made their approach one of full consultation with the relevant committees of both Houses and the opportunity for both Houses of Parliament to take a decision. I do not think that the Government could have been any clearer tonight. That is the Government’s position.

I am told that the noble Lord’s Motion is not an amendment. It is a freestanding Motion. The House must decide on my Motion and then separately on that of the noble Lord, Lord Pearson. I am grateful to the Clerk for that guidance. I hope that that is a clear enough explanation of the noble Lord’s two questions. I beg to move.

Motion agreed.