2 PROTECTION OF PERSONAL DATA PROCESSED
IN THE COURSE OF POLICE AND JUDICIAL COOPERATION
(26911)
13019/05
COM(05) 475
| Draft Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters
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| Legal base | Articles 30, 31 and 34(2)(b)EU; consultation; unanimity
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| Department | Constitutional Affairs
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| Basis of consideration |
Minister's letter of 30 November 2005 |
| Previous Committee Report |
HC 34-x (2005-06), para 5 (16 November 2005) |
| To be discussed in Council
| No date set |
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
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Background
2.1 The Hague Programme of November 2004 and its subsequent action
plan of June 2005 invited the Commission to bring forward proposals
for adequate safeguards and effective legal remedies for the transfer
of personal data for the purposes of police and judicial cooperation
in criminal matters.
2.2 On 16 November 2005 we considered the draft Framework
Decision proposed by the Commission. We noted that it closely
followed the terms of Directive 95/46/EC of the European Parliament
and the Council (the Data Protection Directive)[5]
and had as its object the determination of common standards for
the processing of data in the framework of police and judicial
cooperation in criminal matters, as provided for under Title VI
of the EU Treaty. We noted that the draft Framework Decision used
the same definitions of key terms such "personal data",
"processing of personal data", "controller"
and "processor" as are used in the Data Protection Directive
and that it would not apply to the processing of personal data
by Europol, Eurojust or the Customs Information System set up
by the Convention on the use of information technology for customs
purposes.
2.3 As this was a long and complex proposal at an
early stage of negotiation, we confined ourselves to making a
number of general and institutional comments. We noted that the
proposal would restrict the further transfer of data to third-countries
or international bodies and asked the Minister if she was satisfied
that the proposal was consistent with the existing arrangements
between the United Kingdom and third-countries, such as the United
States or Commonwealth countries, for the exchange of data or
whether it would necessitate a change to those arrangements. We
also invited the Minister to comment further on the proposed arrangement
for a Committee, chaired by the Commission, to make determinations
of the adequacy of data protection in third-countries and, in
particular, if the Minister was content with the pre-eminent role
given to the Commission, and if it was appropriate to transpose
the 'comitology'[6] arrangements
to police and judicial cooperation in criminal matters. We also
noted that the proposal required Member States to provide for
criminal sanctions in the event of intentional infringements relating
to the security and confidentiality of processing and asked the
Minister if such provisions were necessary.
The Minister's reply
2.4 In her letter of 30 November 2005 the Parliamentary
Under-Secretary of State at the Department for Constitutional
Affairs (Baroness Ashton of Upholland) addresses these three general
points. First, in relation to the consistency of the proposal
with existing arrangements with third-countries, the Minister
recalls that such arrangements must be in accordance with the
Data Protection Act 1998, in particular with the Eighth Data Protection
Principle and the provisions of Schedule 4 to the 1998 Act. The
Minister notes that the exemption proposed in Article 15(6) of
the draft Framework Provision[7]
appears to be narrower in scope than that provided for in Schedule
4 to the 1998 Act, and that the Government is considering whether
existing arrangements would need to be amended in the light of
this narrower exemption. The Minister also notes that the rules
in Article 15 of the proposal apply only to data which has been
transferred from one Member State to another and is subsequently
transferred to a third-country or international body, and do not
apply to data which is only processed domestically.
2.5 Secondly, in relation to the proposed 'comitology'
arrangements, the Minister states that the Government's position
is that the appropriateness of such arrangements needs to be assessed
rigorously, on a case-by-case basis. The Minister comments that
comitology-type arrangements have been provided for in other instruments
under Title VI of the EU Treaty and states that the Government
is considering the position in relation to the present proposal.
The Minister notes that the main function proposed for the committee
under the present proposal is to assess the adequacy of data protection
in third-countries and international bodies and that this function
is very similar to that performed by the committee established
under the Data Protection Directive.
2.6 Finally, the Minister states that the Government
is carefully reviewing whether criminal provisions of the sort
envisaged are appropriate in the context of this proposal.
Conclusion
2.7 We thank the Minister for her letter. We note
that the restrictions on the transfer of data apply to data which
has been transferred by one Member State to another, and would
therefore not extend to data which is processed only domestically
and then transferred to a third-country or body. However, we note
that the Government is considering the effect on arrangements
with third-countries of the narrow exemption in Article 15(6)
of the proposal, and we shall look forward to a further account
in due course of the Government's assessment.
2.8 We note that the Government is still considering
its position in relation to the proposed 'comitology' arrangements
and the provision of criminal sanctions and we shall look forward
to a further account from the Minister of how these issues will
be addressed.
2.9 We shall hold the document under scrutiny
pending the Minister's reply.
5 OJ No L281 of 23.11.1995, p.31. Back
6
I.e. arrangements under Council Decisions under the EC Treaty
whereby certain implementing powers are delegated to the Commission. Back
7
This provides that data may be transferred to a third-country
notwithstanding the absence of an adequate level of data protection
where this is "absolutely necessary in order to safeguard
the essential interests of a Member State, or for the prevention
of imminent serious danger threatening public security or a specific
person or persons." Back
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