4 Protection of personal data processed
in the course of police and judicial cooperation
| (26911)
13019/05
+ ADD 1
COM(05) 475
| Draft Council 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 17 July 2006
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| Previous Committee Report | HC 34-xiv (2005-06), para 2 (11 January 2006), HC 34-x (2005-06), para 5 (16 November 2005)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
4.1 This proposal is made by the Commission in response to the
invitation by the Council to bring forward proposals for adequate
safeguards and effective legal remedies for the transfer of personal
data for the purposes of police and judicial co-operation in criminal
matters. We considered the proposed draft Framework Decision on
16 November 2005 and 11 January 2006. We noted that it closely
followed the terms of Directive 95/46/EC of the European Parliament
and the Council (the Data Protection Directive)[14]
and had as its object the determination of common standards for
the processing of data in the framework of police and judicial
co-operation in criminal matters, as provided for under Title
VI of the EU Treaty.
4.2 We noted that the draft Framework Decision used
the same definitions of key terms such as "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 EU Convention on the use of information technology for
customs purposes.[15]
4.3 In reply to our question about the effect of
the proposal on the transfer of data to third countries (such
as the United States or Commonwealth countries) or international
bodies, the Minister informed us that the exemption proposed in
Article 15(6) of the draft Framework Provision[16]
appeared to be narrower in scope than that provided for in domestic
law under Schedule 4 to the Data Protection Act 1998, and that
the Government would be considering whether existing arrangements
would need to be amended in the light of this narrower exemption.
The Minister confirmed that the rules in Article 15 of the proposal
applied only to data which had been transferred from one Member
State to another before being transferred to a third country.
We asked the Minister for a further account of the Government's
assessment of this exception.
4.4 In response to our question as whether it was
appropriate to transpose the "comitology"[17]
arrangements to police and judicial co-operation in criminal matters,
whereby it would be for a Committee, chaired by the Commission,
to make determinations of the adequacy of data protection in third
countries, the Minister stated that the Government's position
was one of rigorous assessment, on a case-by-case basis, of the
appropriateness of such arrangements. The Government was also
considering whether it was necessary for the proposal to provide
for criminal sanctions in the event of intentional infringements
relating to the security and confidentiality of processing. We
asked the Minister for a further account as to how these concerns
were being addressed.
The Minister's reply
4.5 In her letter of 17 July 2006 the Parliamentary
Under-Secretary of State at the Department for Constitutional
Affairs (Baroness Ashton of Upholland) provides further information
on the negotiation of this proposal. The Minister explains that
the Council working group has not yet begun its first reading
of the provisions to which we drew attention, and that she is
therefore not yet able to expand on the comments made in her earlier
letter of 30 November 2005.
4.6 The Minister informs us that the first Council
working group on the proposal under the Finnish presidency took
place on 7 July 2006, and was mainly concerned with a discussion
of those parts of the proposal which dealt with the further processing
of data received from a Member State. The Minister adds that the
United Kingdom has submitted a paper to the working group addressing
the question of further processing, and inviting agreement that
this question should be considered as a whole. ("Further
processing" in this context is intended to refer to processing
for a new purpose or processing by a new data controller.)
4.7 The United Kingdom paper raises the issue of
sharing data for the purposes of regulatory work, child protection
and victim support as being cases where processing might be for
purposes other than crime prevention, but which should not be
prevented by the Framework Decision. The paper also seeks confirmation
from the Commission that domestic "further processing"
by competent authorities for purposes other than the prevention,
investigation, detection or prosecution of crime would be outside
the scope of the proposal. The paper argues that such further
processing should be outside the scope of the proposal also where
there is an international exchange of data. The paper suggests
that, for example, the further processing of data by Member State
A of data received from Member State B and originally collected
for the purposes of crime prevention, should not be subject to
the Framework Decision unless the data was supplied by Member
State B for the purposes of crime prevention.
4.8 The Minister adds that the UK received support
from many Member States for its paper, and for the proposition
that the parts of the proposal dealing with further processing
should be considered as whole, but that the time available for
discussion was considerably reduced. However, a further meeting
has been convened for 25 July and the Minister hopes that sufficient
progress will be made to allow her to comment in more detail on
the three main issues we have raised in relation to Articles 15
and 18.
Conclusion
4.9 We thank the Minister for this further information
on the proposal, and we note that discussions are still at an
early stage. We shall look forward to a further account of the
consideration of the issues raised by the United Kingdom's paper
and to the reply by the Minister to the issues of principle raised
in our previous report. Since it appears likely that a further
new text of the proposal will be forthcoming after the meeting
on 25 July, it would be helpful if the Minister were to deposit
that text with an EM.
4.10 We shall hold the document under scrutiny
pending the Minister's reply.
14 OJ No. L 281 of 23.11.1995, p.31 Back
15
OJ No. C 316 of 27.11.1995. Back
16
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
17
I.e. arrangements under Council Decisions under the EC Treaty
whereby certain implementing powers are delegated to the Commission. Back
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