Data Protection in the Areas of Police and Criminal Justice (EU Directive)

George Eustice Excerpts

Tuesday 24th April 2012 Commons Chamber

[George Eustice (Camborne and Redruth) (Con)]

I have a number of concerns about the motion. First, it is not just about introducing a directive, because it undermines existing British opt-outs in justice and home affairs; secondly, the Government’s own impact assessment raises serious concerns about the administration costs of the directive; and, finally, on a point to which the Minister alluded, the Government are themselves still undertaking consultation and work in this area. I shall put forward the novel proposal that we make a decision on this matter after that work is complete, not before it has been done.

On our opt-out, under a very unusual quirk of the Lisbon treaty, Britain has what is sometimes described as an opt-in protocol, meaning that by 1 June 2014 we have to make a very big decision. There are about 130 justice and home affairs measures, and we have a right to opt out of each and every one should we want to. We have to opt out of all of them en bloc, and we have to make our mind up within the next 18 months.

We should make that decision now. Let us look at all 130 powers, and let us be very clear that we are going to opt out of all of them en bloc. If we do so, we will have three options: abandon the whole lot but do some bilateral work in the area; agree with some and opt back into them but on our own terms; or do something similar to Denmark by opting into some or all of them but doing so outside the jurisdiction of the European Court of Justice.

The problem with the directives, as they emerge, is that they subject us to the jurisdiction of the ECJ in a way that we are not subject at the moment. Every time we accept one of the new directives that are put before us, we replace an existing framework decision and lose the power to opt out of that area. The opt-out falls by default, so we should not take such decisions lightly, because the decision tonight is a decision to scrap a British opt-out, not just a decision to wave through an amendment.

One or two Members have touched on the explanatory memorandum, and it is quite damning. Paragraph 25, which relates to domestic processing, states:

“We…consider the impact of this on law enforcement agencies, in particular regarding the administrative burdens it places on them”

could be significant. It continues:

“The Data Protection Framework”—

which went before—

“does not cover domestic processing. We are considering the implications of this.”

Paragraph 28, which relates to data protection and design, states:

“The DPFD did not impose obligations to protect personal data by design and default and their inclusion in the Directive could prove to be a disproportionate cost and burden on the functionality of law enforcement bodies.”

Paragraph 30, on the data breach notifications requirement, states:

“This could add a resource burden on low enforcement agencies and be count-productive if it distracts data controllers from mitigating the adverse effects of the breach.”

Finally, the impact assessment refers to financial implications, and paragraph 33 states:

“The Directive, if adopted as is, poses a number of financial implications. In particular, police and law enforcement authorities would need to comply with specific obligations, such as the requirement to employ Data Protection Officers. We are examining the implications of these requirements further to determine how significant they would be”.

The memorandum is dated 13 February. When I contacted the Ministry of Justice today, it said that it had launched its consultation, but that it had not yet been concluded.

We should have gathered all the evidence together before making this decision. We must question why we are being asked to make this decision tonight, when all the information is not before us. The answer is that there is an arbitrary EU timetable that says that we have to make the decision by the middle of May. This is exactly what is wrong with the European Union: we are presented with these matters, but we are not given time to gather the evidence that we need before we are bounced into making a decision. That is a complete mistake.

I want to return to my first point about our opt-outs. People sometimes say that it is impossible to do anything in the European Union because it is too difficult to renegotiate matters and because treaty changes are needed. This area is the one exception to that: we do not need to renegotiate anything and we do not need a new treaty. Our opt-outs are already provided for. We must not allow the 130 British opt-outs to wither on the vine. We must decide now to opt out of all those provisions and adopt a more strategic approach to the ones that we will accept in future.