Select Committee on European Scrutiny Tenth Report




Draft Resolution on the principles of personal data protection in the field of judicial co-operation in criminal matters as well as police and customs co-operation.

Draft Resolution on the principles of personal data protection in the fields of police and judicial co-operation in criminal matters.

Legal base:
Deposited in Parliament (b) 22 March 2001
Department: Home Office
Basis of consideration: EMs of 14 February and 26 March 2001
Previous Committee Report: (a) HC 28-i (2000-01), paragraph 3 (13 December 2000) and HC 28-viii (2000-01), paragraph 6 (14 March 2001)

(b) None

To be discussed in Council: 28-29 May 2001
Committee's assessment: (Both) Legally and politically important
Committee's decision: (Both) Cleared


  9.1  We considered this draft Resolution on 13 December 2000 and 14 March 2001. On our first consideration of this text, we recalled our support for improved data protection provisions and supervision under Third Pillar instruments, but we found the Resolution disappointing and inadequate in a number of respects. In particular, the prohibition on processing sensitive data did not seem to us to be expressed with sufficient force, and we found the provisions on judicial remedies to be inadequate.

  9.2  On our second consideration of this Resolution we examined a revised text. We welcomed the Government's indication that it would propose the addition to the Resolution of a principle that data processing should be fair and lawful, as well as the addition of criteria governing the use of derogations. We considered that both additions would align the Resolution more closely with Directive 95/46/EC (the Data Protection Directive), and would constitute improvements. We remained concerned that the Resolution did not appear to contain even the most general of minimum standards, but merely described a number of principles which might or might not be included and which in turn could be made subject to exceptions or amendments. We noted that the processing of sensitive data was to be made subject to "appropriate guarantees" under Article 7 of the Resolution, but that the text still contained no express prohibition. We also expressed the concern that Article 15 of the Resolution appeared merely to preserve any existing competences of national judicial authorities, without providing for judicial remedies to be made available. We cleared the original text of the Resolution (21571) on the grounds that it had been superseded, but held the revised text (22064 — document (a)) under scrutiny.

Document (b)

  9.3  Document (b) is a further revision of the draft Resolution following discussion in the Council working party on information systems and data protection. It follows the same pattern as that of document (a), but some material amendments have been made. Article 7 now provides that the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, and the processing of personal data concerning health or sex life, may be authorised only where adequate safeguards are laid down.

The Government's views

  9.4  In her Explanatory Memorandum of 26 March 2001 the Minister of State at the Home Office (Mrs Barbara Roche) addresses our concerns about the general nature of the draft Resolution as follows:

"The Committee have said that they remain disappointed with the instrument since the principles it describes may or may not be included in future Third Pillar instruments, and, if included, may be made subject to exceptions or amendments. They ask the Government what purpose the Resolution serves, if it does not contain even the most general of minimum standards.

"The Government notes the Committee's concern. However, as the previous Explanatory Memorandum noted, the nature of the instrument reflects the diversity of views about the establishment of common data protection principles for the Third Pillar. According to the Information Commissioners' memorandum on the Resolution, views about the practicability of having a unified set of data protection rules in the Third Pillar are mixed, even among data protection authorities. That is also true of the Member States. It is clear that a non-binding instrument along the lines of the present Resolution has every chance of being acceptable to all Member States. However, it seems equally clear that some Member States would, at this stage, be unable to support an instrument which included binding provisions. The nature of Third Pillar activities is seen as being so sensitive as to require great flexibility. In the Government's view, it is better to accept an instrument of this kind, which, while not of legal effect, will carry moral or political weight, than to have no instrument at all.

"As to the exceptions and amendments, the Government would point out that both the principal data protection instruments affecting EU Member States (Directive 95/46/EC and Council of Europe Convention 108) contain provisions allowing Member States to derogate from the principles established by the instruments. In this connection the Government would draw attention to Article 2.2 of the present version of the Resolution which now contains criteria limiting the scope for derogations along the lines of those found in Article 9 of Convention 108."

  9.5  On the treatment of sensitive personal data, the Minister draws attention to the revised form of Article 7 and comments as follows:

"The Committee have asked the Government to explain why it believes that the provision on sensitive data is adequate, when it does no more than require 'appropriate guarantees' if such data are processed. The Government would point out that Article 8 of Council of Europe Convention 108 only requires 'appropriate safeguards' for the processing of sensitive data. However, it would draw attention to the revised wording of Article 7 of the Resolution which has been strengthened. It now says that the processing of sensitive data '...may be authorised only where adequate safeguards are laid down'."

  9.6  On the question of judicial remedies, the Minister comments as follows:

"The Committee have repeated their concern about the lack of a provision requiring judicial remedies to be available. They compare the provision in the Resolution unfavourably with that in Directive 95/46/EC.

"In the Government's view, the enforcement provisions of the Resolution need to be considered as a whole, taking into account the powers of the data protection supervisory authority as well as those of the courts. Two of the key elements of the enforcement arrangements found in Directive 95/46/EC (provision for compensation, and for a supervisory body with powers of investigation and enforcement) are provided for in Articles 14 and 15 of the Resolution. Article 15 also makes clear that these provisions are without prejudice to the exercise by Member States' national judicial authorities' of their powers to enforce the provisions of the Resolution.

"However, as the Committee have noted, the Resolution contains no express provision requiring judicial remedies to be available. The Government will draw the Committee's concern on this point to the attention of the Presidency."


  9.7  We are grateful to the Minister for her helpful Explanatory Memorandum which addresses the concerns we have expressed on this draft Resolution. Whilst we regret the absence of more extensive minimum standards in the Resolution, we can see the force of the argument that it is better to have an instrument of this kind, carrying moral or political weight even if not of legal effect, than to have no instrument at all.

  9.8  We are grateful for the Minister's comments on the way the processing of sensitive personal data has been dealt with in the revised text of Article 7. We agree with her that the text has been strengthened so as to make clear that such data may not be processed, unless adequate safeguards are provided.

  9.9  On the question of judicial remedies, we note that the Resolution does provide for the right to compensation for damage suffered because of unlawful processing of personal data and for the monitoring and enforcement of the data protection principles by an independent supervisory body. Whilst there is as yet no express requirement for judicial remedies to be available, we are grateful to the Minister for the indication that the Government will draw the Committee's concern on this point to the attention of the Presidency.

  9.10  In the light of the further information from the Minister, we are content to clear both documents.

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