Data Protection in the Areas of Police and Criminal Justice (EU Directive)
Debate between Andy Slaughter and William Cash(12 years ago)
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Mr Slaughter
He is in a pretty desperate situation if that is true.
The animation in these debates often comes from what I might call the meta-issue of why we are discussing European law expansion at all, rather than the precise statutory powers being considered, or at least that is my observation. I intend neither to engage in that debate, nor—other than briefly—to discuss the matter of principle that the draft directive raises. In dealing with the matter of processing personal data for the purposes of preventing, detecting and prosecuting crime, there will always be a balancing act. On the one hand, the prevalence of cross-border crime, including serious and organised crime, crimes of violence, sexual crime and terrorism, is growing, and criminals and criminal gangs are becoming more organised and sophisticated and making better use of technology and information systems, so the police and prosecuting authorities must have the means to match them. On the other hand, the issue of data protection and privacy from the prying eyes of the state in particular is important, contentious and topical, from data storage to the Leveson inquiry.
In opposition, both Government parties set themselves up as opponents of data collection where it could be seen as intrusive, yet I read the following in today’s edition of The Guardian:
“Ministers are planning a shakeup of the law on the use of confidential personal data to make it far easier for government and public-sector organisations to share confidential information supplied by the public. Proposals to be published next month by the Cabinet Office Minister, Francis Maude, are expected to include fast-track procedures for ministers to license the sharing of data in areas where it is currently prohibited.”
The Cabinet Office Minister said:
“In May we will publish the proposals that will make data sharing easier”.
The home affairs editor of The Guardian notes that
“databases continue to proliferate across Whitehall, even before the extension of data-sharing powers. Now the Cabinet Office minister…says government must be ‘smarter and more effective’ at sharing such sensitive data.”
It is not only the EU that has to undertake this tricky balancing of civil liberties with security and the pursuit of crime.
The issue before us is not one of principle, but whether the proposals achieve that balance. That question may be answered only in the further examination of the directive. As I have indicated, we do not oppose the Government’s decision today not to opt out, and I hope that that is clear.
Mr Slaughter
I do, and I was going to deal with that matter after raising a number of specific points of concern.
I am grateful to the European Scrutiny Committee for its report, which states that
“there is now the possibility of establishing a comprehensive data protection framework ensuring both a high level of protection of individuals’ data in the area of police and judicial cooperation in criminal matters and a smoother exchange of personal data between Member States’ police and judicial authorities, fully respecting the principle of subsidiarity.”
The report then adds:
“The Commission concludes that the practical difficulties encountered by a number of Member States in distinguishing between rules for domestic and cross-border data processing could be solved through a single set of rules covering data processing both at national level and in a cross-border context”.
The aim might be laudable, but the solution appears to say that, in order to avoid confusion, principles of subsidiarity should in fact give way to an overarching system controlled centrally. One consequence of that that the Minister has already alluded to is an extension of the scope of data processing to include domestic processing for the purpose of policing and judicial co-operation. In other words, the directive will regulate the passing of data between purely domestic organisations, such as neighbouring county police forces, and I share the Minister’s concern in raising that.
In the area of data protection, the draft directive is stronger and, I think, should be broadly welcomed. It includes: new rights of access and information for data subjects, such as the identity of the data controller, the purpose of the data processing and the period for which the data will be stored; a right for data subjects directly to demand the erasure of their personal data by the data controller; an obligation on data controllers to inform supervisory authorities and data subjects of data breaches, informing the former within 24 hours of discovery and the latter without undue delay; and an obligation for data controllers or processors to appoint data protection officers. The incorporation of human rights legislation—the Human Rights Act 1998—into UK law by the previous Labour Government has improved the right to privacy and to protection from intrusion into family life, but we still have some way to go.
Access to a Lawyer
Debate between Andy Slaughter and William Cash(12 years, 8 months ago)
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Mr Andy Slaughter (Hammersmith) (Lab)
As the Minister says, the directive forms part of a defence rights road map agreed by the European Council in 2009 that aims for greater harmonisation of fundamental tenets of the criminal law. We have opted in and supported the previous two limbs of that. The current proposals concern principally the right to access to a lawyer on arrest, the right to have someone notified on arrest, and the right to communicate with a third party on arrest. As such—I do not think the Minister resiled from this—it articulates what most British people would consider not only uncontroversial but essential civil liberties. Since 2009 the EC has sought to harmonise these rights across Europe. I think the Government welcome that.
Notwithstanding the points the Minister made, which I shall come to in a moment, it is difficult to see why the Government oppose the proposal as far as this country alone is concerned, at least for the present. If introduced, it would give us confidence that members of the British public would be subject to due process when overseas. According to the Foreign and Commonwealth Office website, more than 19 million British nationals travel to France every year, 13 million to Spain, 4 million to Italy and 2 million to Greece. Hundreds of them will, sadly, end up being arrested for a criminal offence. In Spain more than 2,000 Britons a year are arrested for criminal offences.
As the Minister said, Europe is not a homogenous legal environment and not all justice systems operate in the same way or to the same standards. I am grateful for the briefing that Fair Trials International provided for the debate. The organisation helps to ensure a fair trial for anyone facing charges in a country not their own. In its research it highlights some notable examples. I shall not spend a great deal of time on that, as it would take up the time of other Members who wish to speak.
Some of the cases are familiar, such as that of Garry Mann, a 51-year-old fireman and football fan who was arrested in Portugal, allowed to leave the country, subsequently arrested on an arrest warrant and imprisoned for two years. It was a case of mistaken identity and on arrest he did not have the benefit of a knowledge of Portuguese law, which would have allowed him a stay.
Another case is that of Edmond Arapi, who was convicted in absentia of committing a murder in Italy at a time when he was working in the UK. It got to the point where he was about to be extradited and imprisoned for a term of 16 years. Had legal advice been available to him at the time of his arrest, it would have become apparent much earlier that this was a clear case of mistaken identity.
Mr Cash
I am reasonably familiar with the Arapi case because it took place in Staffordshire, not far from my constituency. Of course, the real mischief was the arrest warrant itself. There was no reason whatsoever why that man was dealt with in that way. I think that it is absolutely futile to attempt to argue the case on access to lawyers on the basis of the complete failure of the arrest warrant system.
Mr Slaughter
The hon. Gentleman makes part of my point for me. There are concerns about the operation of the European arrest warrant, but that is one of the reasons we wish to see the provision of good-quality legal advice and access to lawyers throughout the European Union. He might have his own solution on our relations with Europe, probably a rather more fundamental one than mine or the Minister’s, but we are where we are and it is therefore important that these safeguards exist.
I was going to mention a third case, that of John Packwood. There are unfortunately a large number of such cases, but those are the three famous ones that have featured heavily in the UK press, particularly the Daily Mail, which has championed many of the cases in which the most perverse decisions have been made in foreign jurisdictions. For the people involved and their families, the experience was a nightmare. They were in a foreign country trying to communicate with officials who spoke an unfamiliar language and subject to procedures that were often summary and perverse, and yet they had no knowledge or advice with which to challenge them. It should be a matter of concern to the Government to protect our citizens overseas and ensure that they are given the same consideration as we would grant citizens of other countries visiting Britain, and that they are given the opportunity to do so and, at least for the present, decline.
We should not be slow to see the high standards of justice that British people expect of our criminal justice system applied to other countries. The directive would assist that process. After all, it was the previous Conservative Government who enacted the Police and Criminal Evidence Act 1984, which provided a suspect in police custody with a statutory right to legal advice. Section 58 of the Act states that a person arrested and held in police custody is entitled to consult a solicitor privately at any time. The detention code provides that the consultation may be in person, in writing or by telephone and that free and independent legal advice is available. Therefore, the decision not to opt in to a directive that has the same intention as those provisions seems strange, and I will move on to what the Minister says are the differences.
First, the directive’s requirements are broadly in line with current UK legislation. Where there are divergences—the Minister mentioned one or two—they are negotiable. This is a process of ongoing negotiation, and in some cases they are subject to the requirements of national law. The example of searches, which the Minister gave, is one of those.
Secondly, the negotiations are continuing. As the Minister said, many other countries are concerned that there is inadequate room for derogation and are questioning aspects of the directive. It is therefore unlikely that it will remain in its current form. It seems pointless to send negotiating teams, as the Minister proposes, when we are the only country that intends to opt out at this stage, which fatally undermines the authority and leverage that this country will have. We appear to be throwing away an advantage to British citizens for reasons that are at best unconvincing and at worst spurious. Why have the Government taken this position? The Minister might have seen the briefing from JUSTICE, which takes the Government’s points of objection and states that they are either points that can be negotiated, or points that the Government have got wrong. It looks as though the Government are looking for reasons to opt out at this stage.
Tomorrow, the Minister and I will meet again for the next Committee sitting of the Legal Aid, Sentencing and Punishment of Offenders Bill, and I look forward to that in Committee Room 12 at 9 o’clock. One of the first clauses that we will consider is clause 12, which gives the new director of legal aid casework and, by extension, the Lord Chancellor the power to decide who does and who does not get access to a lawyer in a police station—and to do so on the basis of an interests of justice test.
There has already been an outcry throughout the criminal justice system at that attack on a basic right, which was introduced to avoid the risk of a miscarriage of justice. PACE itself was in part a response to the appalling miscarriages of justice of the 1970s, but, in answer to the criticism that the Minister is taking on a power that will allow the state to regulate who does and who does not get advice in a police station, he says that he has absolutely no intention of taking away legal help from police stations, so why is he then arrogating to himself the power to do so?
Taken together with the premature decision tonight to opt out of the directive while negotiations continue and before any decision needs to be taken, clause 12 of that Bill suggests that the lessons that led to PACE are being forgotten by this Government.
May I ask the Minister three questions, which, if he replies at the end of the debate, he may wish to answer? First, why are the Government not going to do what they did with the earlier stages of the road map and continue negotiations before making a decision on opting out? Secondly, why are they opting out now when there is further time to negotiate? And, thirdly, can the Minister confirm that the Government are committed to the current system of access to counsel in a police station and do not intend to erode that right, and if so explain why they are pursuing clause 12?
The objections that the Government have raised are nugatory and susceptible to change, if there is any merit in them, whereas the advantages to British citizens abroad are clear and substantial. It is not good enough for the Minister to say that we can get all the benefits of the directive if it is enacted in 26 other countries, but that we do not need to bother with it ourselves. That sounds like a clear Eurosceptic “have your cake and eat it” voice from the Minister, and I am not sure that that is what he is saying, but it is a—[Interruption.] I am not sure that Government Members think that that is what he is saying, either, but it is a knee-jerk reaction to opt out at this stage.