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1 Apr 2003 : Column 817—continued
1.55 pm
Mr. Mark Francois (Rayleigh): I am pleased to be called to contribute to this afternoon's important debate. I begin by echoing the tribute paid by my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) to the right hon. Member for Southampton, Itchen (Mr. Denham). I did not agree with the reasons underlying the right hon. Gentleman's resignation, but he conducted himself honourably in the way that he left the Government. I should like to take this opportunity to acknowledge that, and to place on record my admiration for the right hon. Gentleman.
I want to concentrate my remarks on part 4 of the Bill, which deals with miscellaneous provisions. Clauses 80 and 81 deal with data protection—a subject that may appear arcane to many observers. In all honesty, I cannot say that it is the talk of all the pubs in Rayleigh on a Friday night, but some potentially important questions still need to be asked on the matter, and I shall focus on them this afternoon.
Ministers will be aware already that the law relating to data protection is fiendishly complicated. The framework domestic legislation is the Data Protection Act 1998, which is based on the EU data protection directive of 1995.
It may assist Ministers if I explain that my own interest in this admittedly rarefied subject had its genesis when I introduced a ten-minute Bill last year on the effect on Members of Parliament of the Data Protection Act 1998. I looked at the effect of that legislation on MPs' pursuance of their duties, not least in respect of constituency casework that involved public bodies or private companies.
I am pleased to say that the then Leader of the House, the right hon. Member for Livingston (Mr. Cook), subsequently brought forward a statutory instrument
rather snappily entitled the Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2003. The order clarified the position of elected representatives, including Members of Parliament, who seek personal data at the request of constituents so as to carry out casework inquiries on those constituents' behalf. I shall refer to that order again later in my remarks.The experience of researching and preparing for my ten-minute Bill taught me just how complicated is the domestic and wider European law in this area, not least because of the potential interaction between any data protection legislation and the Human Rights Act 1998. That is why I am interested in how that potential interaction will affect this Bill.
That is the background, so I shall now move to the details as to why I think that the interaction that I have described is important, and why I consider this Bill to have important implications for data protection law.
Clause 81 offers potential access to the UK sections of the Schengen information system, the so-called SIS; the Europol information system, the so-called EIS; and the Customs information system, the so-called CIS. Those were all subsequently defined under clause 81(7) of the Bill. In that regard, the Bill specifically inserts a new provision after clause 54 of the Data Protection Act 1998 giving the Information Commissioner the power to inspect any personal data that is recorded in the UK element of those three systems. In order to do that, the Information Commissioner must provide written notice of the intention to inspect such personal data, unless, under clause 81(5),
- "the case is one of urgency."
- "unprecedented powers to monitor and challenge"
I wish to raise a number of specific points with the Minister about the practical applicability of that measure. First, can he confirm that all the information covered under clauses 80 and 81 will be classified as sensitive personal data for the purposes of the Data Protection Act? Under clause 2 of that Act, "sensitive personal data" specifically includes information concerning
- "the commission or alleged commission"—
- "any proceedings for any offence committed or alleged to have been committed"—
- "the disposal of such proceedings or the sentence of any court in such proceedings."
Mr. Cash: My hon. Friend is pursuing an extremely important series of points. Is he aware that two years
ago the Schengen information system had 49,000 terminals? Given that, how does he think that it might be possible to guarantee total security, and does he agree that the Minister should address that when responding?
Mr. Francois: My hon. Friend raises an interesting point. Under the Bill, the Information Commissioner—previously referred to as the data protection commissioner—has the right not only to inspect data that is stored on the UK elements of the three systems, but, at least theoretically, to inspect the physical systems on which the data is stored. In response to my hon. Friend's apposite point, the Information Commissioner will theoretically have the right, if he or she has the necessary resources, to physically inspect every one of those 49,000 terminals, because they form part of the system on which that data is held.
The matter is fiendishly complicated, but I hope that Ministers will appreciate the tack that I am trying to take. For the safeguard to be effective, it is important that Ministers are fully reassured that there is no contradiction between clauses 80 and 81, the Data Protection Act 1998, the European convention on human rights and the Human Rights Act 1998, which flowed from the convention. If there were to be such a contradiction, we could end up in the absurd situation whereby when the Information Commissioner seeks access to sensitive personal data, as a safeguard, the European convention on human rights could be turned against the commissioner to prevent them from carrying out the safeguard power of which the Government made so much in their advocacy of the Bill. It might seem a complicated point, but anyone who has had any experience of data protection legislation and its practical implications will recognise that it is a matter that the Government need to double-check. We as a House would not want to end up in a situation whereby we passed the Bill into law, then found that subsequent jurisprudence meant that the safeguard that of which the Government have made so much was ineffective because the European convention on human rights was being used against it.
Related to that point, will the Minister spell out what constitutes a case of urgency as outlined in clause 81(5)? How will a case of urgency be defined in practice? Can the Minister give some practical examples of the circumstances where such a provision might apply and where the Information Commissioner would therefore be able to gain access to personal data without first having to provide written notice in advance to the data controllers concerned?
I promised the Minister that I would return to the statutory instrument of late last year that I mentioned in my initial remarks. To keep my word, may I ask him to outline how the Bill would be affected by it? For example, if a Member of Parliament were to be approached by a constituent who believed that they had been wrongly included on the UK element of one, or perhaps all three, of the databases, would the statutory instrument give the Member sufficient authority to pursue the matter on their constituent's behalf? My reading of the situation is that it would, but I should be grateful if the Minister, who may need to seek a little advice, could confirm that.
Some of the most controversial elements of the Bill, at least to date, have centred on issues such as the hot pursuit of criminal and terrorist suspects across
international borders, and I do not resile from that proposition. However, on the well-established parliamentary principle that the devil is in the detail, I have sought to highlight what is admittedly a very particular aspect of the Bill where specific questions remain unanswered. Because the law is so fiendishly complicated in this area, I hope in all good faith that the Minister will take on board the points that I have striven to make and that he will address them in his response. If that is not possible today, I should be grateful if he could take the trouble to write to me. Then, perhaps, some of these matters will bear further examination by my colleagues when the Bill progresses into Committee.2.9 pm
Mr. Robert Syms (Poole): It is a pleasure to follow my hon. Friend the Member for Rayleigh (Mr. Francois), who made some good points on data protection. My points will be more general. On the Conservative Benches, we broadly welcome this Bill, as, I think, do most other hon. Members. We all know that criminals have become extremely nimble, that a lot of their crime is offshore, and that they are good at playing jurisdiction against jurisdiction. Law enforcement agencies and Governments have to collaborate and co-operate a lot more to crack down on such people.
A number of problems that affect our constituents have their genesis in international crime. On occasion, my constituency suffers from robberies from people's homes. Two thirds of persistent criminals have a drug habit. Drugs are trafficked internationally and we have never been good at cracking down on gangs and the proceeds of their crimes. The issue therefore affects our ordinary constituents, who have to put up with having their homes trashed by criminals. We have to take the battle to the gangs at an international as well as a national level.
The migration of asylum seekers is a major problem. Many criminal gangs take advantage of people who are, unfortunately, in that situation. In 1975, the world had 75 million people who were migrating; in 1990, the figure was 120 million; and in 2000, the figure was 150 million. Many gangs that traffic in people go through a number of jurisdictions. We have had a number of horrible cases where people have been shut in the back of vehicles and have suffered an awful death. If we are to crack down on the migration of people, our measures have to have effect across jurisdictions.
The world has become very difficult after the events of 9/11. The impact of terrorism reinforces the broad thrust and principles of the Bill. However, as my hon. Friend the Member for Rayleigh said, the devil is in the detail. I suspect that this is one of those Bills that the experts will have to go through line by line in Committee to work out the snags. Treasury Ministers are probably happy that a Bill such as this one should start in the House of Lords, because many of the experts at that end of the Palace can improve it—and no doubt they have improved it—to make Ministers' jobs somewhat easier.
For this Bill to work, we have to be confident in the judicial and police systems of other countries. I hope that we can be confident in most of them, but events such as the planespotters incident in Greece undermine public confidence in reciprocal agreements. My hon. Friend the Member for South-East Cambridgeshire
(Mr. Paice) raised a number of important issues, touching on the list of countries that will be included and that will join in future. As the European Union expands to bring in countries from the former Soviet Union and perhaps Turkey, major difficulties will arise in reciprocal arrangements. The path will be difficult. As well as convincing ourselves of the benefits, we will have to convince many of our constituents.My hon. Friend the Member for Rayleigh mentioned the Schengen information system. If we are to opt into that system, we will have to be confident in it. We will also have to be confident in the quality of the inputs. In the other place, it was said that the Netherlands SIS can be accessed by 7,000 people, 500 of whom can alter data. If that were replicated throughout the EU—and in his intervention my hon. Friend the Member for Stone (Mr. Cash) mentioned 49,000 terminals—there would be a vast amount of information that would have to be controlled sensibly.
Inaccurate information in systems can cause awful and difficult problems. Very recently, a British citizen in South Africa was, because of information given by the FBI, arrested by the South African authorities and put in jail. Systems have to have integrity because problems can be caused not only for an innocent citizen in one jurisdiction, but for people across a range of jurisdictions.
Of course, there are restrictions in the information that can go on the SIS. One cannot include information about someone's racial origin, political opinions, beliefs, health or sexual life. To some extent, those restrictions have been put in as protections, but we know that there is a coincidence of terrorism and crime in the world today as many terrorist organisations use the proceeds of crime to support their activities. I therefore wonder about the benefits of the SIS in the crackdown on terrorism. If one cannot put down that someone is an Arab or a member of the Ba'ath party or whatever, even if they are engaged in smuggling or drug trafficking or whatever, the effectiveness of the system in attacking terrorism will be reduced.
I welcome the general thrust of the argument on cracking down on fraud involving plastic cards. More could be done to look into the banking system and the amounts of cash balances there. However, I agree with my hon. Friend the Member for South-East Cambridgeshire that we have to be wary of fishing operations. It would be fairly easy for the Inland Revenue to fish through Spanish or French bank accounts looking for money belonging to people who may have worked in the middle east and repatriated the money to Spain or France rather than Britain. Issues arise here that we have to explore. I hope that the Committee will explore them.
Hon. Members have rightly discussed the controversial issue of foreign police or customs officials being able to follow a potential suspect into UK jurisdiction for up to five hours. Legitimate questions have been asked about when the five hours start. As we heard earlier, the noble Lords heard from Lord Filkin that the time of entry at the port or airport, or when Eurostar comes out of the tunnel, is the time at which the
five hours start. There have been occasions when it has taken five hours to get off the train, so I am not sure that that is the best way to measure it.I am concerned about the civil liability of foreign police officers. If, when getting off a train from Europe, one was followed by a potentially shady person, one might wish to confront that person. If somebody from a law enforcement agency follows a British or foreign citizen into British territory, there is a risk of confrontation. I know that police officers try to keep surveillance at a distance, but I suspect that, if somebody was, in an emergency, trying to keep close to somebody who they believed was going to perpetrate a crime, there would be a risk of confrontation. If that confrontation takes place on British soil, and the unfortunate individual being followed is innocent and has been wrongly identified, there is a case for some kind of civil redress or liability. When there is a confrontation between a member of a foreign police force or agency that affects a citizen in the United Kingdom, there ought to be some means of compensation. That is only right and proper.
We have heard about the problem of armed police officers in Europe. In an emergency, if such an officer—for whom it was normal to carry arms—was following somebody into this country, how do we check them? At airports and ports, will we have a designated officer who can, when somebody turns up with their warrant card or equivalent, secure the weapon so that the officer does not come armed into the British jurisdiction if the normal security systems have not picked up on the issue?
The general issue of security at our ports and airports has arisen. The port of Poole in my constituency used to have a lot of full-time customs officers who knew the movements of people in and out of the port. Customs and Excise has now put many of those officers into mobile units because the focus of operations is to crack down on the smuggling of cigarettes and alcohol from the continent of Europe. Many officers therefore find themselves in Dover. We now hear that the few remaining officers in Poole are being pulled out. If we are serious about cracking down on international crime, we have to be serious about protecting the borders and boundaries of the United Kingdom.
Many ports are unmanned and we need to reconsider that. Before his principled resignation, the right hon. Member for Southampton, Itchen (Mr. Denham) was the Minister with responsibility for homeland security. That important issue relates to the work of the transport police and Customs and immigration officials in many of our smaller ports. They cannot all be manned but there is no point in setting up all these international arrangements if we do not keep track of the people entering our ports, including Poole which is, after Bristol, the second biggest port in the south-west.
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