EU: Personal Data

Lord Pearson of Rannoch Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Pearson of Rannoch]

My Lords, I am grateful to the noble Lord, Lord McNally, for his apology to the Select Committee and to the House for the way that this draft directive has been handled but it might still be helpful if I put on the record the story so far. I trust it will be in order if I start by addressing the second or procedural part of my Motion and then deal with the draft directive itself and the question of our opt-outs.

Noble Lords will be aware that, under the European treaties, the British Government have a block opt-out in the field of justice and home affairs. Until the end of May 2014, the Government can opt out of all EU legislation affecting police and judicial co-operation in criminal matters. They have to opt out of all of it but would then be free to opt back in to any individual directives, et cetera, by which they wished us to be bound. However, if in the mean time they had agreed to amend any of them or had said that they will not opt out, they lose their right to opt out in those cases and will have opted in to them.

[Lord Spicer]

I am most grateful to the noble Lord for giving way. I wish that I could call him my noble friend because he is a close friend. I wish that he was still in the Conservative Party and hope that he comes back soon. Is he aware that, to my recollection at least, three Prime Ministers in the past 10 years have given a firm assurance that we would not tangle with corpus juris, which is one way of defining the European criminal legal system? As I am sure he is going on to say, is the true context in which this matter should be discussed not on a narrow issue of data protection?

[Lord Pearson of Rannoch]

My Lords, I agree with my noble friend, if I may refer to him as such. Of course, corpus juris is just one of the many important examples of how the octopus in Brussels slowly puts its tentacles around our sovereignty and democracy. I remember it first being raised at an academic conference, I think in Spain, in about 1990 and someone who was there got very excited about it and said that this corpus juris—the Roman words for the body of Roman law—was going to come into the EU and that we were going to do it. We were of course told by the then Conservative Government that that was complete nonsense and that it was only an academic idea. We went through all the usual stages of the advance of the octopus. Then we were told that it was in fact a sort of proposal but that no one else agreed with it: “Don’t worry, the British Government are going to see this one off”. Then of course we move further on and what we are looking at is certainly an example of the advance towards corpus juris.

The Government have promised that any decisions to opt in to any of this legislation will be debated and subject to a vote in both Houses of Parliament. A deadline for the Government’s opt-out on this draft directive had been set for 14 May this year. As the noble Lord, Lord McNally, mentioned, the House of Commons debated and voted on it on 24 April, with the Minister confirming that the Government were thus fulfilling their promise to Parliament—that we should debate and vote on each of these opt-ins. Yet even in the Commons there was considerable dissatisfaction with the way that the Government handled the matter. The Motion was tabled on the day of the debate, without the Commons EU Select Committee being given an opportunity of scrutiny. The chairman of that committee, Mr Bill Cash, described it as a “disgrace” and the whole debate is a powerful indictment of the directive and of the Government's behaviour. I recommend the debate to your Lordships.

However, when we come to your Lordships’ House the Government’s behaviour is, alas, even less excusable. The Government were aware of the deadline for their opt-out of 14 May many months ago. Indeed, the Home Secretary wrote on 21 December 2011 to the noble Lord, Lord Roper, who was then the chairman of our EU Select Committee, revealing the 133 measures that were still subject to our opt-out. I will come back to their substance later. I am not aware of what our Select Committee did then but I understand that the noble Lord, Lord Hannay, may be going to enlighten us. The Government failed to table their proposed Motion for debate here until 21 May, a week after the deadline for their opt-out on this measure, so that we were already signed up to the thing by the time we came to debate it—let alone to vote on it. The noble Lord, Lord McNally, mentioned Prorogation, but I remind him that we took a week’s extra holiday before that, and I cannot help feeling that this Motion could have been squeezed in.

Your Lordships might think it worse that the Government tabled their Motion in the Moses Room, where we cannot vote, so they broke their promise to give your Lordships a vote on this directive and pretended that we were not entitled to one by putting the Motion into the Moses Room.

The only thing one can say in favour of the Government’s Motion on 21 May is that it was slightly more honest than the one in front of us this evening. It asked your Lordships to take note of the Government’s decision not to exercise their right to opt out, which at least confirmed that they had already taken the decision not to opt out because the 14 May deadline had passed. Tonight, we are asked to approve the Government’s recommendation that they should not exercise their right to opt out. Will the Minister explain? Are the Government recommending for our approval that they opt in or will he confirm, as I think he has, that we have already opted in? If so, what is the point of the word “recommendation”?

I was so annoyed by the Government’s behaviour that I tabled a Motion of Regret in the Moses Room, on which I said I would vote, so the Government had to move their Motion to your Lordships’ main Chamber, which is why we are here now. I hope that at least I have raised the profile of our 2014 opt-out and the way the Government are handling it. There is widespread suspicion that the Government intend to opt in to the measures in question one by one, preferably when we are not looking too closely, so there will not be much left to opt out of in 2014. If this is wrong, will the noble Lord, Lord McNally, tell us this evening what the Government’s intentions are? It may help if I remind him that I asked him this as an Oral Question on 8 February 2011 at col. 121. He answered with, I have to say, unusual coyness that it was all very difficult and the Government had not made up their mind. Have they done so now? The noble Lord, Lord Henley, indicated at Oral Questions today that the Government are still in a muddle. Can the noble Lord elucidate?

I look forward to his reply because the Written Answer from the noble Lord, Lord Henley, on 28 May, col. WA 102, was less than helpful. I asked what measures were still subject to the UK’s opt-out, which we had already agreed, which the Government did not intend to opt in to and so what would be the position on 1 June 2014. The Minister replied that the list of all measures subject to the 2014 decision had been annexed. I referred earlier to the letter from the Home Secretary to the noble Lord, Lord Roper, on 21 December 2011 that the Minister said he would put in the Library of your Lordships’ House. The Written Answer also gave me a link to the letter and the enclosure. I suppose it is hardly worth mentioning that the letter and enclosure were not put in the Library and that the link did not work. However, the Library was good enough to extract the documents for me from the Home Office on Monday, so they are now in the Library of your Lordships’ House. They reveal that last December there were 133 measures that were subject to our opt-out. I say that the Minister’s Written Answer of 28 May was unhelpful because he concluded:

“Given that the Government cannot say with certainty what proposals the Commission will bring forward, it is not possible to say what the position will be in 2014”.—[Official Report, 28/5/12; col. WA 103.]

The Home Secretary listed all 133 measures as at 21 December last, and it was revealed on 28 May that we have already opted in to eight, including the one before us tonight. Why can the Government not tell us what they are doing about the remaining 102? Surely they must already know their position on them? Or are they telling us that Brussels has a whole lot more up its sleeve that have not yet been revealed, even reluctantly? For instance, the Home Secretary said in her letter of 21 December that the Government are aware that the Commission is planning proposals for next year involving revisions to Europol, CEPOL—the European police college—Eurojust, the framework for co-operation on confiscation of assets and criminal measures to tackle counterfeiting the euro, all of which are on the current list. The noble Lord, Lord Spicer, has a point; we are moving towards corpus juris. Is the Minister aware of any more?

I now move to the substance of the directive which we have already opted in to and related matters. A number of technical objections to it were raised in the Commons, which I will not waste time by repeating now. They include the Ministry of Justice’s impact assessment, which apparently found that the overall impact is likely to be substantially negative. I think the noble Lord, Lord McNally, has already commented that the Government will try to reduce its cost.

The Government’s Motion before us states that the data processing will be conducted by competent authorities. Can the Minister tell us exactly who these competent authorities will be? He will forgive me if I say that I am not aware of any authority in the European Union that is vaguely competent, but I look forward to the answer. The Government’s Motion refers to,

“the protection of the individuals with regard to the … free movement of”,

personal data. What does that mean? What is the present and anticipated state of the free movement of our data?

The noble Lord, Lord McNally, told us of the Government’s present position, but I cannot agree with the decision to opt in to this directive, if only for the fact that this and all our opt-ins remove yet more of the sovereignty of our Parliament and courts to the jurisdiction of the European Commission and the Luxembourg court. The Government’s action should have been obvious. They should already have exercised their block opt-out so they would now be free to opt in to any measures that they felt were useful, subject, of course, to a vote in both Houses. Interestingly, the Prime Minister agreed with this on 4 November 2009 when he said:

“We must be sure that the measures included in the Lisbon treaty will not bring creeping control over our criminal justice system by EU judges. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law”.

The arrangement is right there, staring him in the face. He does not have to negotiate anything. He just has to use the opt-out that existed when he made that speech.

I have one other question for the Minister which comes from a debate in the Commons. Mr George Eustice told us that Denmark has opted in to some of these measures, but has managed to do so excluding the jurisdiction of the Luxembourg court. I do not know whether the Government feel like imitating that.

The sad fact is that the Prime Minister’s Government have already opted in to eight of the more significant measures according to their Written Answer on 28 May, as I have mentioned. They include the one before us and directives on the European investigation order, combating sexual abuse, the exploitation of children and child pornography, attacks on information systems and minimum standards for the rights, support and protection of victims of crime.

Whatever noble and Europhile Lords may say about the desirability of these initiatives and the need for action at a European level, those should not outweigh the protection of what is left of our national sovereignty. Where we want to collaborate with foreign Governments, we can do so. We do not need the incompetent and well known judicial activism of Brussels and Luxembourg to take over. Of course, we Eurosceptics know that we would be better off out of the whole thing anyway, but we object strongly to such initiatives as Europol, CEPOL, Eurojust, the European investigation order and, perhaps above all, the European arrest warrant. It is heartening that a growing majority of the British people agree with us.

I have one final question for the Minister. Will he tell us why the directive before us, the seven others that we have already opted into and the 125 that await their turn do not amount to a substantial transfer of sovereignty to the European Union and therefore trigger a referendum? I will be most interested in the noble Lord’s reply. I beg to move.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, the Minister has made a handsome apology and I agree with the noble Lord, Lord Wills, that that should be an end to this. My noble friend does not suggest that the process has been well conducted or that it will happen again. It is not helpful for noble Lords to accuse the Government of bad faith or dishonesty, as the noble Lord, Lord Pearson, has. That is unworthy of him and of this debate.

To complete the chronology of what happened, as we know, the Commission published its proposals on 25 January. Very quickly, on 7 February, the Ministry of Justice called for evidence by 6 March. On 14 March, a report was published by the House of Commons European Scrutiny Committee, which analyses this matter in depth on pages 42 to 63. There was then a debate on 24 April, which was referred to by the noble Lord, Lord Pearson. What he did not say is that in the vote on whether to take note, those who agreed with him were defeated by 267 to 24. No one can say that what happened in the other place was in any sense an absence of parliamentary scrutiny. I have had the privilege of serving on the EU Sub-Committee on Justice and Institutions three or four times during my time in this House. I take great pride in the fact that scrutiny is conducted better in our Parliament than in any other throughout the European Union.

I have listened very carefully to the Minister and read—as has the noble Lord, Lord Pearson, apparently—the Government’s explanation in the other place of why they took the course that they did. In his speech, the noble Lord, Lord Pearson, did not reply at all to any of the arguments that were put forward in the other place and here on the Government’s course of conduct. In the other place, the Minister, Mr Blunt, said that there were three main reasons for deciding not to opt out. The first was that,

“the directive is at a very early stage of negotiation”.

The second was that,

“the legal base of the measure gives the UK an effective exemption on the issue about which we are most concerned: internal processing of data”.

He went on to say:

“Thirdly, and most important, exercising the opt-out 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”.

He continued:

“If we were outside the directive, our ability to negotiate essential data-sharing agreements”—

of which there are many examples—

“could be significantly undermined”.—[Official Report, Commons, 24/4/12; cols. 886-87.]

The Minister in the other place said:

“Let us be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom, and we take steps that imperil them at our risk and at risk to our citizens. Let me give an example, which concerned a 32-year-old Romanian national who was arrested in the United Kingdom on suspicion of raping two women within the Metropolitan area. A request for conviction data identified that the suspect had a previous conviction for rape in Romania. Just prior to the trial, the individual disputed the Romanian conviction, but through close liaison with the central authority and the police liaison officer at the Romanian embassy in London, a set of fingerprints relating to the Romanian rape conviction was obtained and proved the conviction beyond doubt when they matched against the suspect.

An application to use the previous conviction as bad character evidence was made by the prosecuting counsel and was granted by the judge, allowing the Romanian rape conviction to be put before the jury. The defendant was convicted of four counts of rape and other offences … in July 2010. The defendant was given an indeterminate prison sentence, with a recommendation that he serve at least 11 years in jail”.—[Official Report, Commons, 24/4/12; col. 888.]

And so it goes on.

What the Minister explained in the other place was that the information was obtained exactly under the regime which the noble Lord, Lord Pearson of Rannoch, regards as an encroachment on our criminal law and our domestic legal system. To the contrary, the ability across frontiers to share data of this kind is entirely in the interests of protecting our citizens against crime and their public safety.

As regards the other interests at stake—

[Lord Pearson of Rannoch]

The noble Lord of course is right that I think what he has just said. But far superior to that is the continuing cession of our sovereignty and the supremacy of our courts to the European courts and the Commission. That is the overriding objection that I have. I have read the debate in the Commons and I cannot believe that the Romanian could not have been convicted under similar arrangements without the continuing cession of our sovereignty.

[Lord Lester of Herne Hill]

I do not think that your Lordships would need a full debate on the value of the two European courts in protecting the rights and freedoms of our citizens. But, as I was about to say, the other rights and interests at stake are those of personal privacy, freedom of expression, protecting the security of the state, protecting us against crime and, in one aspect of what we have before us, ethnic profiling data-taking being prohibitive but with a necessary exception for equality where it becomes necessary in the interests of equality to do so. All those rights and freedoms, which are also part of our domestic law, are protected not only by our own courts but by both European courts. If a European bureaucracy or a European piece of legislation violates our basic rights and freedoms, the Luxembourg Court and the Strasbourg Court have the capacity, and they exercise it, to protect us against the abuse of power by European institutions. That is why the dislike of the noble Lord, Lord Pearson, of supranational or European jurisdictions is entirely misconceived. We need cross-border legislation and measures but we also need safeguards, which we get from those two European courts.

I therefore warmly welcome the pragmatic and careful approach taken by the Government over these measures. I very much hope that we will continue in exactly this direction.

[Lord Pearson of Rannoch]

Will the noble Lord tell us whether these protections which we enjoy from the European Union apply to British subjects extradited under the European arrest warrant? Is he happy with the way in which that initiative has developed?

[Lord Lester of Herne Hill]

The Joint Committee on Human Rights on which I serve has expressed some concerns, as has one of our members, Dominic Raab QC MP. I share some of those concerns but I do not think that this is an occasion for us to debate whether we think all European measures might be improved.

--- 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.