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

William Cash Excerpts

Tuesday 24th April 2012 Commons Chamber

[Mr Blunt]

If the hon. Lady will forgive me, let me get our position on the measure on the record, then I will be able to respond to interventions and points made in a more disciplined way.

It is the Government’s view that the proposed data protection directive can be classified as a Schengen building measure; therefore, under protocol 19 of the treaty on the functioning of the European Union, which governs how the Schengen acquis are integrated into the UK framework, the UK does have the option of opting-out of the directive. The deadline for notifying the Council of the European Union of an opt-out decision is 14 May.

The Government's position is that the continued ability to share information on crime and justice matters between nations is of fundamental importance. In an increasingly globalised world, crime does not stop at national borders, but reaches across jurisdictions and involves people of many different nationalities. The Government therefore support proportionate, clear and coherent data protection rules that keep personal data safe, protect the rights of citizens and enable our police to pursue criminals to protect the lives and interests of our citizens.

[Mr William Cash (Stone) (Con)]

Will the Minister give way to the Chair of the Scrutiny Committee?

[Mr Blunt]

Given my hon. Friend’s position, I will give way.

[Mr Cash]

Does the Minister accept that the Government’s explanatory memorandum of 13 February did not mention the Schengen protocol, or the offer of an opt-in debate; nor was any formal correspondence to that end received by the European Scrutiny Committee?

[Mr Blunt]

I am grateful to the Chair of the Scrutiny Committee for that point, but I will have to take advice on what was received and when before replying to him. I am trying to explain that, in this area, there is considerable confusion between opt-ins and opt-outs, so if he will forgive me, I shall try to explain this complicated matter and its consequences in as simple terms as I can, as much for my own benefit as for anyone else’s.

To address specifically the subject of debate this evening, we support the transfer of data across borders and between organisations where it improves our ability to prevent crime, increase security and keep our citizens safe. We must therefore protect the arrangements that have allowed EU member states to share information about suspected criminal activity in a regulated and proportionate manner. The challenge of the directive is that, although parts of it are welcome and will help in the fight against crime, some of the provisions are excessively bureaucratic and unwieldy. As it is drafted, we have concerns about the costs it would impose on UK law enforcement agencies. We are particularly concerned about the fact that it has been drafted so as to apply to internal processing of data—that is, information being shared by police forces or other criminal justice authorities within the borders of one country.

The Government's approach to the directive has been to establish the best way of securing the benefits of continued data sharing with EU member states, while minimising any resultant costs. Having gone through this analysis, our judgment is that, despite concerns about the current text, we should not opt out of the directive. There are three main reasons for this. First, the directive is at a very early stage of negotiation. There is substantial room for improvement, and it is clear that the UK has significant allies within the Council of Ministers who share our concerns. We believe that we can secure a more effective deal by working with our partners than by going it alone.

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[Mr Slaughter]

He is in a pretty desperate situation if that is true.

The animation in these debates often comes from what I might call the meta-issue of why we are discussing European law expansion at all, rather than the precise statutory powers being considered, or at least that is my observation. I intend neither to engage in that debate, nor—other than briefly—to discuss the matter of principle that the draft directive raises. In dealing with the matter of processing personal data for the purposes of preventing, detecting and prosecuting crime, there will always be a balancing act. On the one hand, the prevalence of cross-border crime, including serious and organised crime, crimes of violence, sexual crime and terrorism, is growing, and criminals and criminal gangs are becoming more organised and sophisticated and making better use of technology and information systems, so the police and prosecuting authorities must have the means to match them. On the other hand, the issue of data protection and privacy from the prying eyes of the state in particular is important, contentious and topical, from data storage to the Leveson inquiry.

In opposition, both Government parties set themselves up as opponents of data collection where it could be seen as intrusive, yet I read the following in today’s edition of The Guardian:

“Ministers are planning a shakeup of the law on the use of confidential personal data to make it far easier for government and public-sector organisations to share confidential information supplied by the public. Proposals to be published next month by the Cabinet Office Minister, Francis Maude, are expected to include fast-track procedures for ministers to license the sharing of data in areas where it is currently prohibited.”

The Cabinet Office Minister said:

“In May we will publish the proposals that will make data sharing easier”.

The home affairs editor of The Guardian notes that

“databases continue to proliferate across Whitehall, even before the extension of data-sharing powers. Now the Cabinet Office minister…says government must be ‘smarter and more effective’ at sharing such sensitive data.”

It is not only the EU that has to undertake this tricky balancing of civil liberties with security and the pursuit of crime.

The issue before us is not one of principle, but whether the proposals achieve that balance. That question may be answered only in the further examination of the directive. As I have indicated, we do not oppose the Government’s decision today not to opt out, and I hope that that is clear.

[Mr Cash]

Does the shadow Minister accept that it is a prerequisite that the European Scrutiny Committee should have the opportunity to examine matters of this kind?

[Mr Slaughter]

I do, and I was going to deal with that matter after raising a number of specific points of concern.

I am grateful to the European Scrutiny Committee for its report, which states that

“there is now the possibility of establishing a comprehensive data protection framework ensuring both a high level of protection of individuals’ data in the area of police and judicial cooperation in criminal matters and a smoother exchange of personal data between Member States’ police and judicial authorities, fully respecting the principle of subsidiarity.”

The report then adds:

“The Commission concludes that the practical difficulties encountered by a number of Member States in distinguishing between rules for domestic and cross-border data processing could be solved through a single set of rules covering data processing both at national level and in a cross-border context”.

The aim might be laudable, but the solution appears to say that, in order to avoid confusion, principles of subsidiarity should in fact give way to an overarching system controlled centrally. One consequence of that that the Minister has already alluded to is an extension of the scope of data processing to include domestic processing for the purpose of policing and judicial co-operation. In other words, the directive will regulate the passing of data between purely domestic organisations, such as neighbouring county police forces, and I share the Minister’s concern in raising that.

In the area of data protection, the draft directive is stronger and, I think, should be broadly welcomed. It includes: new rights of access and information for data subjects, such as the identity of the data controller, the purpose of the data processing and the period for which the data will be stored; a right for data subjects directly to demand the erasure of their personal data by the data controller; an obligation on data controllers to inform supervisory authorities and data subjects of data breaches, informing the former within 24 hours of discovery and the latter without undue delay; and an obligation for data controllers or processors to appoint data protection officers. The incorporation of human rights legislation—the Human Rights Act 1998—into UK law by the previous Labour Government has improved the right to privacy and to protection from intrusion into family life, but we still have some way to go.

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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.

[Jacob Rees-Mogg]

I wonder whether the real reason why this is being done in this appalling way, completely ignoring the proper forms of scrutiny, is that the Government know they have an absolutely rotten argument and thought they would push this through quickly while people were thinking about Prorogation and the Queen’s Speech and what will be in the next programme. It is little more than prestidigitation.

[Mr Cash]

I concur. Other hon. Members wish to speak, so all I can say is that this matter will not to be allowed to rest. We will look into it further. The Committee will expect the Minister to give an explanation in person to us. I shall leave my remarks at that for the time being.

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[Mr Blunt]

After that contribution, it is clear that I owe my hon. Friend the Member for Dover (Charlie Elphicke) an apology for not having taken his intervention, not least because he welcomed the Government’s general objectives and the balances we are seeking to strike. However, he did then say that this was another villain’s charter from the EU—an argument that some in the press have also made.

The rights of United Kingdom citizens under our existing laws under the Data Protection Act—their rights to access information and for information to be erased—are pretty much the same as what is being proposed in this directive. The same rights of the authorities not to have to erase data that are important for criminal investigations will also continue to exist in the future.

Let me turn to the important question of process, and address the concerns of my hon. Friend the Member for Stone (Mr Cash), the Chairman of the European Scrutiny Committee. I am perfectly happy to concede that these matters could have been handled better. One of the constraints we have placed on ourselves in the so-called Lidington debates is to bring the measures relating to opt-ins or opt-outs under the Schengen protocol to the House and give Members the opportunity to debate them. My hon. Friend pointed out that there is the small matter of prorogation. The decision on the opt-out must be taken on 14 May. [Interruption.] Well, that is what is in the treaties of the EU. The Government have to decide whether to opt-out by 14 May, and we are also committed to coming to the House and giving Members the opportunity to debate.

The information given to my hon. Friend—which was given within 10 days of the directive being published—made no reference to Schengen. I will examine why that was the case, but I am advised that whether or not the matter fell within Schengen was still under examination at the time. There is also an element of legal opinion as to whether or not the Schengen acquis can be correctly claimed by the Commission when it comes forward with these measures. There is an element of process to be applied, therefore, rather than our just taking at face value Commission statements on regulations and directives and whether measures are compliant with Schengen.

[Mr Cash]

When the Minister reads the transcript, he will see that the matter is specifically referred to in the framework decision recitals. I do not think there is any debate about this point, therefore. What I would like to know is whether the Minister for Europe consulted the Minister on this matter; after all, the Lidington debates are based on an assumption in the context of decisions taken by this House in the light of what the Minister himself specified.

[Mr Blunt]

No, I did not speak directly to my right hon. Friend the Minister for Europe. Yes, it is in the recitals, but the regulation published by the European Commission in parallel with this also asserts some involvement with Schengen, which we dispute. These issues are not always very straightforward. On the timetable we have placed on ourselves to have this debate in time for the Government’s decision on the opt-out, which has to be taken, and on parliamentary arrangements, I accept that things could always have been done better—