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

Peter Bottomley Excerpts

Tuesday 24th April 2012 Commons Chamber

[Mr Blunt]

Our priority in negotiations will be to resist the application of the directive to all domestic processing—that is, data sent between two United Kingdom agencies. Although article 6a of protocol 21 means that this will not apply to us, we feel that it is important to remove this expansion as such data processing should not be the subject of European Union rules. We will seek to remove that for all European Union countries.

As further examples, the proposal lays down new obligations for data controllers regarding the documentation and records that they must keep and the consultations that they must hold with the Information Commissioner’s Office in order for the processing to be considered compliant with the rules. We also have reservations about the compulsory appointment of data protection officers, a role that will need to be filled ostensibly to ensure that data controllers fulfil the various obligations presented to them, including those that I just outlined.

We already expect robust data protection governance as a matter of course in public authorities. However, we question the necessity of having the European Union telling us how to create, organise and run these arrangements. The more prescriptive and burdensome aspects of the directive are opposed by the Government and we will seek to remove or mitigate them during negotiations in the Council of the European Union. This is the beginning of a lengthy process of negotiating new data protection legislation, not the end. The UK will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objectives, which is to end up with an effective but proportionate framework.

[Sir Peter Bottomley (Worthing West) (Con)]

Will the Minister give way?

[Mr Blunt]

I will.

[Sir Peter Bottomley]

I think that my hon. Friend the Member for Dover (Charlie Elphicke) could put the question on costs better than I could.

[Charlie Elphicke]

rose—

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[Madam Deputy Speaker (Dawn Primarolo)]

Order. Minister, please resume your seat for a moment. Sir Peter, I thought that you wanted to intervene. You have been in the House a long time and know that you cannot stand up and then ask someone else to speak for you, unless you have lost your voice, which you have not.

[Sir Peter Bottomley]

You are right to correct me, Madam Deputy Speaker, and I think that I am also right in saying that every word in “Erskine May” may create a new precedent. My question, which I think my hon. Friend the Member for Dover would have put better, is this: will my hon. Friend the Minister start talking about costs at some stage during his very good speech?

[Mr Blunt]

I will not. I am unable to, because work is still ongoing on the impact assessment to try better to identify the precise costs of each measure. If my hon. Friend has had a chance to read the impact assessment, he will have noted that much of the assessment in this area is based on fairly tentative criteria. What are not included in the impact assessment are the benefits of a successful negotiation or the costs that would be inflicted on us if we chose to opt out and had to live with the consequences.

As I was saying, this is the beginning of a lengthy process of negotiating new data protection legislation, not the end. We will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objective, which is to end up with an effective but proportionate framework. I note that every other member of the European Union faces that same challenge of finding the right balance between the two principal objectives: the privacy of our citizens and the protection of their data; and the protection of their interests through the operation of our police and criminal justice agencies. However, it is worth noting that the proposed directive is one part of a two-part package of revised data protection instruments that the Commission proposed in January; it also proposed a regulation that would cover general and commercial data processing by public and private bodies. The regulation is neither the trigger, nor the subject of this debate.

To return to the directive, which is the subject of today’s debate, let me summarise our position. We believe that an opt-out decision is a possibility for the Government but that it would be the wrong choice for the United Kingdom. We would need to replace the directive with bilateral agreements with each member state, which would be a time-consuming and tortuous process, and it is likely that in those negotiations we would find ourselves bound by aspects of the directive that we feel confident we can remove in negotiations.

The Government’s position, therefore, is clear: we want to be part of a European data protection framework that enables practical, common-sense sharing of data between member states’ law enforcement agencies engaged in the fight against international crime. We believe that the limiting effect of article 6a on the aspects of the directive that relate to data exchanges within the United Kingdom means that we should be content to be part of it, which will of course substantially reduce the costs identified in the impact assessment. Although there are areas of the proposal that the Government will seek to alter, I can unhesitatingly commend the motion to the House.

[Mr Andy Slaughter (Hammersmith) (Lab)]

I will begin by saying that it is not the Opposition’s wish to divide the House on this resolution—

[Sir Peter Bottomley]

Look behind you.

[Mr Slaughter]

I think I will take interventions a little later in my speech.

It is not my wish to speak for long. These debates, a number of which it has been my privilege to speak in over the past few months, are always animated, if only on the Government side of the House—indeed, sometimes I think mine is the last friendly voice the Minister hears.

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[Mr Slaughter]

I am happy to do that, and I am even happier to note the support from my Back Benchers—the almost unanimous support—[Interruption.] No, 50% might be a better figure.

The key to the balance that I have talked about is the drafting of the directive within very prescribed bounds to restrain the opportunities for data sharing, thus the controls for in-country transfer, to which the Minister has referred, are restricted—if one accepts what the draft directive says. As currently drafted, it covers data transferred between two UK regional police forces with no cross-border elements, but that will apply to the UK only when such processing is pursuant to an EU measure on police or judicial co-operation, and that is indeed what the draft directive states.

I just worry that sometimes the intention is not carried out in practice, and I cite—on a perhaps analogous subject—from the same Guardian article today this note of caution:

“Last week the European parliament ratified plans to allow airline passenger records, including credit card details, for all transatlantic flights between Europe and the US, including in and out of the UK, to be handed over to the US department of homeland security to be stored for 15 years.”

If these proposals are to go ahead, they need to do so in such a way that there are the tightest possible controls on the exchange of data.

[Sir Peter Bottomley]

First, does the hon. Gentleman, who is doing well, if I can say so without being patronising, think that when those data rules are breached the victim of the breach should be notified? Secondly, and separately, does he agree with my hon. Friend the Minister that the problems of cost and of value for money are a matter for another day?

[Mr Slaughter]

I accept what the Minister has said—that the matter is at an early stage and we should not press him on those points. I am very happy to be patronised by the hon. Member for Worthing West (Sir Peter Bottomley), and whether he is asking by himself or by proxy—

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[Mr William Cash (Stone) (Con)]

The issue here is one of process as well as substance. I am sorry that the Lord Chancellor has just left the Chamber. I was glad to note that he was here before I rose, but he seemed to depart rapidly. I can only assume it was because some of the remarks that I am about to make may not be entirely to his liking or that of the Under-Secretary.

This is a Lidington debate, and the significance of such debates is that Parliament has an opportunity to debate, and vote on, motions that clearly set out the Government’s recommended approach—that they wish to exercise their right either to opt into a title V proposal or to opt out of a Schengen-building title V measure.

I pay tribute to my hon. Friend the Member for Camborne and Redruth (George Eustice) for his remarks on the substance of the matter, but there is a very important question to be asked about scrutiny. I speak as Chairman of the European Scrutiny Committee, having just this afternoon come back from duties in relation to the Danish presidency.

I say to the Minister that the way in which this matter is being handled is a disgrace. I will of course refer to the Committee this quite blatant breach of the spirit of the proposals that we have agreed in the past, and I intend to ask the Committee whether it wants to bring him in front of us to explain himself and how this has been handled. It is that serious.

No mention of the Schengen protocol or offer of an opt-in debate was made in the Government’s explanatory memorandum of 13 February, as it should have been, nor was any formal correspondence to that end received by the European Scrutiny Committee. I also mention that the Schengen protocol gives the United Kingdom and Ireland three months to opt out of legislation that builds on the Schengen acquis. The Government’s omission is very significant and has meant that the Committee has not had the opportunity either to scrutinise the opt-in/opt-out decision or report to the House on it prior to a debate taking place.

It may be a matter of some interest to the House that there is no report before the House on the matter. Members can go to the Vote Office and get the Committee’s previous paperwork on the provision, based on our consideration of the explanatory memorandum of 13 February. In that document, we stated:

“It is regrettable that the Minister’s Explanatory Memorandum did not mention any of”

certain opt-in considerations, in blatant breach of Baroness Ashton’s undertaking to Parliament of 9 June 2008. We continued:

“We ask the Minister to keep us informed of progress in negotiations on the points of concern for the Government…We assume, therefore, that the negotiations are unlikely to be completed under the Danish Presidency, and would be grateful to be informed if and as soon as this assumption appears to be incorrect.”

On every single element of what I have just described, the Minister is completely in breach of undertakings and of the requirement to refer matters to the Committee appropriately.

The manner in which the decision has been explained is a disgrace. There has been no attempt to explain it, or its implications, to the House properly. I have to go further and say that Members will need an explanation for the Government’s omission, and I hope the Minister will find an opportunity to provide one before we conclude these proceedings. It must have been obvious to the Government that the draft directive was a Schengen-building measure, because several of the recitals state explicitly that it is and because the framework decision that it replaces was stated to be a Schengen-building measure. Recital 43 states that the UK is

“taking part in this Framework Decision, in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union.”

In order to have a meaningful and informed debate on the Floor of the House under the Lidington arrangements, the Committee should have had reasonable notice of the Government’s recommended approach. A mere 24 hours is clearly inadequate.

I could refer to many other matters, but the question on which I shall conclude is simply this: what negotiating strategy will the Government adopt to mitigate the negative impact of the proposal as drafted, and what is the Minister’s estimation of the likelihood that the Government’s strategy will succeed?

This is a very sorry day in the scrutiny of European legislation. I am only sorry the Lord Chancellor is not here, because if he were, I would invite him to go to the Dispatch Box instead of the Minister, who has let us down so woefully.

[Sir Peter Bottomley]

Were there to be a meeting of Ministers of European Union countries during the next few days, and were there to be either a satisfactory or an unsatisfactory outcome, how could it be reported to the House and how could we take a decision that supports or negates any decision that is taken this evening?

[Mr Cash]

I find it extraordinary that my hon. Friend should seek to defend the Government’s breach of a series of requirements as prescribed in the spirit of the orders before the House, but in addition, it is perfectly clear—to me at any rate—that these proceedings are happening because of the timetable of Prorogation.