Leaving the EU: Data Protection

Robert Neill Excerpts

Thursday 12th October 2017 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

I will not stray on to the issue of authors, living or dead, but I do want to address three issues in this important debate.

The first picks up from where the shadow Minister left off. As a London MP, one cannot but be aware of the significance of tech companies and the digital industry to our economy. That is part of what makes London the world’s financial capital, and getting our position right on these issues and maintaining it is absolutely critical to our arrangements going forward.

As hon. Members know, I come at this debate as someone who rather wishes we were not in this situation, but given that we are, getting the detail right is absolutely vital. I understand and support the thrust behind the Bill and what the Minister very fairly said in his opening speech, but the detail is terribly important.

Only this week, I was at a meeting of the all-party parliamentary group on wholesale financial markets and services, where a number of representatives of the financial services sector, including Citi UK and UK Finance, raised the real issue that while we talk a great deal about the need to preserve regulatory equivalence and other means of achieving access to the single market once we have left it, data sharing is, to some degree, the elephant in the room and is often not spoken about. The director of one of London’s leading accountancy and consultancy firms described it to me as a huge issue that needs to be tackled.

The Minister is right to recognise the issue, and the Bill, of itself, is right and proper, but getting the detail right will go well beyond that. When he replies, I hope he will be able to assure us that his Department and the other relevant Departments are keeping in close contact with our financial sector. There are people with massive expertise out there, and they are willing to help the Government on this, and it is critical that we get it right for the future health of the UK.

None of us wants to see London’s position as the world’s financial capital diminished, and that is not in the EU’s interests either, because, in many respects, London, as a financial and digital capital, has been a gateway into European markets for many third-country investors. We want that to remain the case, so getting these issues right is terribly important.

My second point was highlighted by the right hon. Member for Carshalton and Wallington (Tom Brake). I agree with him about Gibraltar, and I declare an interest as the chair of the all-party parliamentary group on Gibraltar. I recently returned from Gibraltar’s national day celebrations, and you are fondly remembered there as an active former member of the group and as a good friend to Gibraltar, Madam Deputy Speaker.

Cross party, members of the all-party group were struck by the importance of this issue to Gibraltar. Gibraltar has revived its economy in recent years, moving away from what was essentially a garrison-type economy to an economy that is strongly based on financial services and online digital operations of a number of kinds—they are now the most important part of the economy. As the Minister says, Gibraltar is a successful part of the British family—a self-governing British overseas territory that is entirely financially self-supporting. It is to Gibraltar’s credit that it has been at pains throughout this period closely to mirror United Kingdom and European Union regulatory arrangements, and it ticks all the boxes in regulatory terms.

[Robert Courts (Witney) (Con)]

I think I am right in saying that the UK has the largest digital economy in the G20. If that is the case—it is obviously imperative that we are able to continue that in the years ahead—the impact of these issues will be just as great on Gibraltar, if not larger.

[Robert Neill]

My hon. Friend is absolutely right. The two key messages that one gets on this topic from Gibraltarians across the political spectrum and from all parts of Gibraltarian society are, first, that they do not want to be left behind in any arrangements that the UK makes with the EU27—they do not want to be collateral damage in any sense—and they want to maintain the arrangements and access that we have. Secondly, they want above all to maintain the closest possible friction-free trading arrangements with the UK, where a great deal of their service business is already conducted. Getting that right is terribly important for Gibraltar. It is a small economy with little other resilience, and it really needs our support in getting the data issues right to protect what is a very successful story for the British family.

My third point relates to legal matters. I take the liberty of referring to the Justice Committee’s ninth report from the 2016-17 Session of the last Parliament. As hon. Members will know, I have the honour to chair that Committee, and we issued a report on the implications of Brexit for the justice system. I hope we will soon have a response from the Government to that report; it is one of those that is in Ministers’ in-tray—or, I hope, out-tray—at the Ministry of Justice. Perhaps a gentle nudge might be delivered by those on the Treasury Bench to their right hon. Friends there.

The report is constructive and stresses the importance of information-sharing arrangements for the legal system and the justice system. Part of that relates to the UK’s legal services, and that links in to what I said earlier about the financial services sector in London. The legal service sector underpins a great deal of that financial services work, so getting this issue right is critical for UK firms contracting with parties in the EU or with third parties. At the moment, a great deal of work is written in English law, and that is a great advantage to us, so getting the data sharing right around all those matters is terribly important to the firms involved.

However, the other issue in our report, which is perhaps even more strikingly important, relates to information sharing on policing and critical justice co-operation. In many respects, we have led the field in this regard, and it will certainly not be the intention of the Government or of the Prime Minister, who both as Prime Minister and as Home Secretary has stressed the importance of this issue, to lose any of that information sharing. However, again, the devil is always in the detail in these matters, and perhaps I can highlight what the Committee found.

We took a considerable amount of evidence, and it is clear that the EU offers a number of information-sharing tools. I particularly want to highlight the importance of the European criminal records information system. We are in that at the moment, and it was clear from the professionals in the field who gave evidence to us that we must do all we can to maintain access to that system. It provides access to accurate records of EU citizens’ offending histories.

It is perhaps worth putting on the record a quote from the National Crime Agency. Its evidence was:

“Through ECRIS, the UK is able to exchange tens of thousands of pieces of information about criminal convictions each year that help police and other law enforcement agencies to investigate crime, protect the public and manage violent and sexual offenders.”

[Tom Brake]

Is the hon. Gentleman able to clarify for me whether that is one of the data exchanges that are subject to the European Court of Justice rulings to ensure safeguards for those exchanges of data? If I am correct, how does he see that relationship continuing with the UK post Brexit?

[Robert Neill]

My understanding is that it is likely to be subject to the ECJ, and we concluded that while we might seek to remove the direct jurisdiction of the ECJ in some matters, the idea that we will not have an ongoing relationship with the ECJ on such matters is unrealistic. That will be important.

We want to stay in ECRIS, but we noted that there are no previous examples of a non-EU member having access to it. We will have to seek a bespoke arrangement to achieve that, and I hope that Ministers regard that as a high priority.

[Vicky Ford]

On the subject of valuable data exchanges, does my hon. Friend agree that we also need to continue to exchange passenger name records, because that is vital for our safety? The exchange of passenger name records was, of course, led through the European Parliament by a British MEP, championed by the Prime Minister and helps to keep us safe when flying.

[Robert Neill]

My hon. Friend is right and I pay tribute to the work that she did on this and several other issues for the United Kingdom during her time as a Member of the European Parliament.

The evidence given to the Justice Committee was clear that these are interlocking parts of a criminal justice co-operation system and we cannot cherry-pick some bits and not others. It is important that we find ways of maintaining equivalent means of access across the board on these criminal justice co-operation measures. I have mentioned ECRIS and I hope that the Minister will reassure us that finding a way to stay in it is a high priority for the Government.

We should also wish to remain in the second-generation Schengen information system as it gives the UK real-time access to all European arrest warrants. The European arrest warrant is a valuable tool and it is a great help to British law enforcement agencies. I say that as someone who worked as a barrister in criminal law for 25 years before I came to the House. That was at a time when we did not have that means of getting back from abroad villains who had committed crimes in this country. It is a great advantage that we do now have that ability, and since certain amendments were made to the way in which it operates, there are many more safeguards for UK citizens when an EAW is issued than was previously the case. It is a tool that has been refined and improved, and it would be a great advantage for us to stay in it.

SIS II—I apologise for all the acronyms—is also important because it contains, for example, alerts on missing persons. In all, it gives us access to 66 million pieces of data, which helps our justice system, and it is important that we continue to have access to it. The National Crime Agency said:

“Loss of access to SIS II would seriously inhibit the UK’s ability to identify and arrest people who pose a threat to public safety and security and make sure that they are brought to justice.”

I hope that the Minister will confirm that that, too, is a high priority for the Government.

[Darren Jones]

I stress my agreement with the hon. Gentleman’s remarks about these sharing systems. An example given to me by the Avon and Somerset constabulary involved the awful case of a member of the public viewing child pornography live in this country. Through data-sharing with the continent, the police services in Spain were able to raid the person delivering the data and bring to an end the crimes being committed here and in Europe. Such data sharing must continue, to protect our constituents and our friends on the continent.

[Robert Neill]

The hon. Gentleman is right, and that was the tenor of the evidence that we heard from all the law enforcement agencies. The benefits of data have also meant that crime has been internationalised in a raft of ways, including of course classic cyber-crime, but also in international fraud, organised crime and, sadly, sexual offences through the internet. Having a full range of measures to deal with those issues is critical.

[Tom Brake]

I wonder whether the hon. Gentleman’s excellent Committee had an opportunity to look at the contingency plans that would be necessary for all the valuable databases he has set out, should the UK crash out of the EU in March 2019.

[Robert Neill]

The clear evidence given to us was that the only viable contingency plan would be a significant transitional period. It would not be possible to replicate those systems in the event of a supposed clean-break arrangement, and it would be necessary to have transitional measures. The evidence did suggest that those could vary from sector to sector, in terms of the length of time required and the amount of detailed work to be done, but it would be a serious setback for us to leave the European Union and the current data-sharing arrangements without something being put in place to bridge us over the leaving period for implementation or a clear end state for our ongoing relationship in the areas of data sharing and criminal justice co-operation. It is in everybody’s interests that we achieve that and it is an important issue to bear in mind.

We concluded that data sharing is not an area in which we can take a risk. Indeed, we concluded that these matters are so important that one would ideally wish to see them decoupled from the rest of the Brexit negotiations. Divorce bills or otherwise, public safety and security work for our interests and for every one of the citizens of the EU27, too. The right hon. Gentleman makes an important point and I agree with him.

I have talked about two key systems and I want to highlight their interrelated and technical nature because it is important to put that on the record. As well as those two systems, we also have access to Prüm, a regime for exchanging biometric information and vehicle registration data. It reduces the time taken to find matches from tens of days to 15 minutes when fully in place. We have recently gone into Prüm, and the chairman of the Criminal Bar Association, Francis FitzGibbon QC made the point to us that—and I shall quote his stark words in full to highlight their significance—

“if someone lets off a bomb in Berlin and makes his way to London, the police will be able to get hold of the fingerprints of the chap they arrest for double parking, or whatever it is, instantaneously.”

That gives us the swift ability to track down serious threats to our safety across the continent. We have not yet implemented Prüm, but we have signed up to do so and I hope that we will make it clear that we will implement it while we remain in the EU and we will seek to continue in it once we leave.

Our concern was that both Norway and Iceland—which are not members of the EU, although they are Council of Europe countries and have association arrangements with Interpol and others—have waited some years to have access to Prüm. We have started from a closer position and it would be a tragedy if we went back to the same place in the queue as them, giving away something that we are already moving into. I hope that the Minister will reassure us that the Government will attend closely to those specific points during the negotiations.

Our conclusion was that all these matters, extradition arrangements, the EAW, the data sharing that underpins prisoner exchange arrangements, together with our arrangements on judicial co-operation—on which British judges work closely with their counterparts—and of course our membership of Europol are all part of a system that comes together to protect us in criminal justice and security matters. They were described by our witness Professor Wilson as part of a system that

“you cannot disaggregate because, in my view, if you take out elements of the system, you have a less effective system for protecting British citizens on the streets.”

That was also the clear evidence from the Northumbria Centre for Evidence and Criminal Justice Studies. The evidence was overwhelming. Sometimes, as lawyers, we get cases in which the evidence all points one way, and that was very much our conclusion from the evidence to the Committee’s inquiry. These are all important matters. Of course, they are but one part of the data protection and sharing regime, but they are critical.

We received the clear message from practitioners that whatever we do and however we get to these arrangements —I hope that the Bill, when it is brought to the House, will help us to achieve this—the end state has to include a means of making sure that our data sharing and data protection regime are sufficiently close to those of the EU27. We shall, therefore, have to have a means of tracking changes and replicating them when it is likely to be to our mutual advantage to do so. Otherwise, with the very best will in the world, a law enforcement agency or police officer in the EU27 might not be able to share potentially critical information with his or her UK counterparts because he or she might find themselves in breach of the data regulations in his or her own EU27 country. That cannot be in anyone’s interest. I hope that the Minister will reassure us that creating such a system will be the centrepiece of our objectives on data sharing in relation to criminal justice and co-operation matters.