EU: Personal Data

Lord Wills Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Wills]

My Lords, I find myself in the happy position of agreeing with much of what the two previous speakers said—even with much of what the noble Lord, Lord Pearson, said in the first 10 minutes of his speech. I welcome this debate, whatever its genesis. It shows that the Government are adopting an open approach to what may be a technical measure, and which may excite little attention in the media, despite, I am sure, the best endeavours of the noble Lord, Lord Pearson. Nevertheless, it will have significant consequences for the people of this country. The Commission’s proposals have complex ramifications, as the noble Lord, Lord McNally, has already said. At this point, I want to make only a few general points.

Unusually, I agree with at least the part of the Motion in the name of the noble Lord, Lord Pearson, that deals with process. He is surely right to say that the complex process of deciding whether to opt into or out of this crucial area of public policy must be as transparent as possible. However, the apology of the noble Lord, Lord McNally, was handsome and should conclude this matter. As I remember only too well, these things happen in government and I am sure that the appropriate lessons will have been learnt by the Government in this case.

Turning to the substantive issues, the proposal for the directive alongside the data protection regulation seems to owe more to an administrative prism in Brussels than to common sense, which suggests a single instrument. Requiring the police and other organisations such as local authorities to follow one set of rules for the law enforcement data that they hold and another for all other data is surely a recipe for confusion and breach. Individuals will be unclear about what rights they have and in what circumstances they might apply.

The directive also appears to be weaker than the regulation in certain key aspects for no apparent reason. For example, why does the directive not include provision for privacy impact assessments, as the regulation does? I understand that British police forces already carry them out, so why can this not be included in the directive? However, as the noble Lord, Lord McNally, said at some length, the fact that there is clearly room for improvement in the directive surely cannot mean that the UK should have opted out. On the contrary, as the noble Lord, Lord McNally, has again said—I want only to support what he said—this would only damage British law enforcement. Other European states are going to proceed anyway, whatever we do. If the UK had opted out, that would surely have led to different regimes, and if elements of British data protection were seen to be weaker than the EU regime, it would inhibit data transfers and law enforcement co-operation.

I am not as sanguine as the noble Lord, Lord Pearson, about our ability to negotiate agreement effortlessly with other states on this. A whole succession of bilateral agreements would be complex, protracted and add layers of bureaucracy to law enforcement processes that often, by their very nature, have to be conducted speedily across many borders, as the noble Lord, Lord McNally, has said. Negotiating such a set of bilateral treaties would surely complicate and damage law enforcement.

Finally, I will briefly take the opportunity to nudge the Minister on another data protection issue—the introduction of the sentencing option of custodial terms for breaches of Section 55 of the Data Protection Act. This has been a long time coming. It was a long time coming under the previous Government and there has still been no real progress. However, surely it is now time to do what the Information Commissioner urged the previous Government and this one to do. This does not depend on the outcome of the Leveson inquiry; its main relevance is to breaches by those other than the media. Fines simply do not deter breaches of Section 55. For example, I understand that the going rate for a Section 55 offence in magistrates’ courts is £130, whereas a claims management company will pay £500 for a lead. Therefore, I hope that, amid all the other questions that he has to deal with in responding to this debate, the Minister might be able to give some words of comfort about the Government’s commitment in this area.