Passenger Name Records: EUC Report

Lord Hannay of Chiswick Excerpts

Thursday 17th March 2011 Lords Chamber

Moved By

[Lord Hannay of Chiswick]

That this House agrees the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to take part in the adoption and application of the Proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (Document 6007/11) (11th Report, HL Paper 113).

[Lord Hannay of Chiswick]

My Lords, the Motion is in my name because I have the honour to chair the European Union Sub-Committee on Home Affairs, which prepared the report now before your Lordships’ House. In the normal course of events, when this House considers reports of the European Union Committee, almost invariably the terms of the Motion are that the House should “take note” of the report. Let me explain why this Motion invites your Lordships not to take note of the report but to agree with the recommendation made by the committee in its report.

The Motion refers to the,

“Area of Freedom, Security and Justice”,

which is treaty language for what are invariably in British parlance known as justice and home affairs. JHA matters first came within the purview of the European Union in 1999 and quite a lot of—perhaps most—JHA regulation at that stage required unanimity. For the JHA legislation which required only a qualified majority of member states’ votes, the Government at that time negotiated a protocol to give the United Kingdom the necessary flexibility. The effect of the protocol is that the United Kingdom does not take part in the negotiation and adoption of such measures and is not bound by them unless, within three months of a proposal for legislation being presented to the Council, the Government notify the president of the Council that they wish to take part in the negotiation, adoption and application of the proposed measure. That is what is known in the jargon as the UK opt-in.

The entry into force of the treaty of Lisbon in December 2009 has made a quantum difference in the number of matters that fall to be covered by the opt-in procedure, because it expands greatly the application of qualified majority voting in the JHA area. Now, virtually all JHA matters are adopted by qualified majority under what is called “the ordinary legislative procedure”. The United Kingdom opt-in therefore now extends to all these. In particular, the opt-in now applies to all provisions on police and judicial co-operation and law enforcement.

In anticipation of this important change, the European Union Select Committee negotiated with the previous Government an undertaking that, where the committee concludes that the question of whether or not to opt into a measure is important and should be debated, the Government would make time for the debate well before the end of the three-month period to enable them to take the views of the House into account when reaching a final decision on whether the UK should opt in. In January, the coalition Government renewed this undertaking. Together with all the committee I express my welcome for their decision to do so and my gratitude to them for having made time for this debate at a very timely and opportune moment when we are only just over half way through the three-month period for opting in on the directive that we are going to debate. In the first full year during which this procedure operated—we are now about 15 months into the operation of Lisbon—23 matters required the Government to decide whether the United Kingdom should opt in. Only one pair of proposals on two asylum directives was thought to be so important that a report and a debate were needed, so the report that is before your Lordships’ House today is thus only the second of its kind and the first since the House approved the procedure for such debates a year ago. This demonstrates the importance that the committee attaches to the directive and to the issue of whether the Government should opt in to it.

I come to the substance of what we are talking about. The report put forward by my committee and supported by the EU Select Committee explains that passenger name record data, otherwise known as PNR, are data about passengers collected by airlines which include information not on the machine-readable part of the ticket. They include such matters as the travel agent, form of payment, contact details, billing address, complete travel itinerary and baggage information, to mention the most prominent. These data, especially when taken in conjunction with the data contained on the machine-readable part of the ticket, are particularly valuable in identifying persons potentially involved in terrorist or other criminal activities who were not previously known to the authorities.

I think one has to recognise that the collection of such data involves a considerable invasion of privacy, and it is sometimes doubted whether this is justified by the benefits flowing from its collection. The committee, I have to say, has no such doubts, although when considering earlier EU proposals on PNR we did express some doubts. However, we do not any longer have those doubts. In fact, this is our third inquiry into PNR in five years, and basically we agree with the view of the Home Office that is summed up admirably succinctly by the following phrase,

“the use of PNR data is ‘a proven and vital tool for the protection and detection of serious crime and terrorism’”.

We are convinced that the Government are right in that respect.

We also agree with the Government about the case for action at the EU level—this is the vexed issue of subsidiarity which is now covered in all explanatory memorandums produced by the Government when a Commission proposal is tabled. The United Kingdom, at the moment alone among member states, already collects PNR data. If member states were to act unilaterally and have different PNR data systems, this could lead to differing requirements being imposed on carriers and there would be no clear basis for the data to be transferred from a carrier in one member state to the authorities of another member state. So we are quite clear that the Government themselves have made a strong case for having an EU directive in this area, given the conjunction of the view about the need to have a single system with the view that PNR data are clearly an effective tool to deal with serious crime and terrorism.

The directive we are looking at is currently in the form proposed by the Commission, and negotiations in Brussels have not really started yet. It is quite clear that there will be prolonged negotiations because these are complex matters, and they are just beginning. Currently, the directive covers only flights between member states and countries outside the EU, not flights from one member state to another. The Government regard this as a major defect which they will do their best to remedy in the course of the negotiations, and we agree with them. The volume of journeys between member states is admittedly three times greater than those of flights between member states on the one hand and third countries on the other, but to limit the directive in the way proposed by the Commission would in our view—I think that it is the view also of the Government, but the Minister will no doubt confirm that when she speaks in reply—seriously and unnecessarily limit the value of the directive.

I should explain at this point that we are not asking the House to take a view on the details of the directive—that would be premature; we have not ourselves conducted full scrutiny of it. We will continue to keep the directive under scrutiny because there are many features of it which still need serious examination, in particular the purposes for which the data can be used, the length of time for which they can be kept and the adequacy of the data protection provisions. I therefore emphasise to your Lordships that, at this early stage, there is only one matter for consideration by the House. That matter was identified in what is known as the Ashton undertakings, which were accepted by the Government at the time that Lisbon was ratified and which relate to whether the UK should opt in or not, and whether it should therefore participate actively in negotiating, make its influence felt and have its views taken fully into account or whether it should walk away and leave the directive to be applied to other member states but not to the UK.

I therefore emphasise that what we are debating is whether the Government should exercise the United Kingdom’s opt-in. For the reasons that I have given, the committee is firmly of the opinion that the Government should opt in. I would hope to hear from the Minister at the conclusion of the debate that this is their intention.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I thank all those who participated in this brief debate, which has been extremely useful and has shown a wide measure of agreement. I thank the Minister for her response which, although it may have fallen a scintilla short of what I might have hoped for, nevertheless went quite a long way in the direction that your Lordships' committee wishes to go. I will add on a personal note that she and I, so many years ago that I would not dream of embarrassing anyone by saying how many, dealt with some of the more complex aspects of EU policy, mainly the EU budget. That budget pales into insignificance compared with this system of opt-outs and opt-ins.

Perhaps I may respond to one or two contributions. The noble Lord, Lord Hodgson of Astley Abbotts, raised the possibility that the directive asks for too much data. I do not have a strong view on that; we do not have to have a view to support the resolution. However, it is only by opting in that we can affect the amount of data that are collected. That is yet another reason to opt in. I and the committee agree with the noble Lord—and here I part company slightly with the Minister, although I accept absolutely her plea that we should help the Government in their negotiating position by standing firmly in favour of the inclusion of intra-EU flights—that this is not a make or break issue. It is not and should not be a sine qua non for opting in. That is a personal opinion. However, the committee does support, without ambiguity, the Government's desire to include intra-EU flights.

One problem that may come up—I hope it does not, and that the Minister is right in anticipating that real progress will be made at the April council to include intra-EU flights—is that it may not be possible by the time we have to take a decision on opting in to be quite sure one way or the other. However, on one thing we can be quite certain: if we opt out, intra-EU flights will not be included, although I do not want to go further into that. I certainly did not mean in the report to criticise the honourable Member in another place, Mr Brokenshire, who gave evidence to us. He gave excellent evidence on our internal security strategy report, for which we are extremely grateful. He was entirely courteous on this matter and there is no reproach. It is, I think, due to the parliamentary timetable that we have had to publish the report and bring this debate forward at a rather early stage in the three-month period. Therefore, it is not a criticism of him in any way.

My noble friend Lord Erroll seemed a little worried about all the details being taken of his credit cards and other things. Of course, the reality is that they are taken by the Government anyway. I think that his objection is mainly that some foreigners might read them. I am sorry—we are in the European Union. There are an awful lot of things that we share with members of the European Union and this will be one of them. In my view and in the view of my committee, it will strengthen the security of this country if we are able to do that. However, as I said, that information is already being collected here.

[The Earl of Erroll]

Perhaps I may make it clear that I am not worried about the information being shared with the European Union, as of course I give my credit card details on the internet to buy things in Europe. The challenge is in the number of times that it will be propagated around systems where we do not know what the security levels are, and the Government do not have a good track record of maintaining security databases. That is my concern.

[Lord Hannay of Chiswick]

That is a question to be directed firmly towards the Minister and not to me, so I shall not take it further.

The noble Lord, Lord Hunt of Kings Heath, was very helpful and supportive about the report and the recommendations. He rightly pointed out that there is considerable intrusion into personal data and personal security and so on. It is perhaps worth pointing out that one of the changes to which I did not refer at great length is that, as a result of the Lisbon treaty, the European Parliament has now become the co-legislator on this matter. The one thing we can be quite sure of is that the European Parliament is not going to let this bone go without giving it several bites and worrying at it a good deal. Therefore, I do not think that we are at the end of that story. I believe that the privacy aspects will get a very thorough airing in the negotiations between the Council on the one hand and the Parliament on the other. I am sorry to say it again but that is yet another reason why we need to be there, exercising some influence.

Finally, the Minister asked those of us who were involved in this matter whether we could take it up with the European Parliament. So far as I am concerned, I would willingly do so. I can see my chairman, my noble friend Lord Roper, nodding sagely to my left. We are going to Brussels next week to have our six-monthly meeting with British Members of the European Parliament, and we will certainly raise this issue with them. We will try to persuade them to fan out a bit and explain why the inclusion of intra-EU flights is going to help with security for all of us.

Motion agreed.