3 Protection of personal data processed
in the course of police and judicial cooperation
| (28476)
7315/07
—
| Draft Council Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters
|
| Legal base | Articles 30, 31 and 34(2)(b)EU; consultation; unanimity
|
| Department | Ministry of Justice
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| Basis of consideration | Minister's letter of 13 June 2007
|
| Previous Committee Report | HC 41-xviii (2006-07), para 4 (25 April 2007) and see (26911) 13019/05: HC 41-i (2006-07), para 3 (22 November 2006)
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| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
3.1 We considered an earlier version of this proposal on 22 November
2006 and 28 February 2007, noting that it closely followed the
terms of Directive 95/46/EC of the European Parliament and the
Council (the Data Protection Directive)[13]
and provided for common standards for the processing of data in
the framework of police and judicial cooperation in criminal matters
under Title VI of the EU Treaty.
3.2 We noted that the question of whether the scope
of the proposal should be confined to the transfer of data between
Member States, or whether it should cover data which is processed
in a purely domestic context, remained unresolved. In this regard,
we agreed with the Minister that no suitable legal base appeared
to exist under the EU Treaty for a proposal which would apply
to the purely domestic processing of data. The other unresolved
question concerned the transfer of data to third countries, where
we noted the Minister's explanation that the Government did not
wish the proposal to apply to transfers of "home grown"
data (i.e. data generated in the UK and not supplied by another
Member State).
3.3 We considered a revised draft on 25 April which
in some instances addressed our concerns, but in others created
a number of difficulties. We identified a number of respects in
which the revised proposal was ambiguous on the question of scope.
Since the key concept of "processing" was defined in
such broad terms (i.e. "any operation..…performed upon
personal information") the proposal appeared capable of applying
to purely domestic processing. We repeated our concern that it
should be made entirely clear on the face of the proposal that
it did not apply to such domestic processing, and asked the Minister
if the Government would press for this ambiguity to be resolved
as a condition for giving agreement.
3.4 We noted that the proposal contained a new rule
for the transfer of transmitted data to third countries. Under
the previous proposal, such transfers could take place if there
had been a decision that the data protection standards were adequate
in the country concerned, but this had been replaced by a requirement
that the consent of the transmitting Member State should be obtained
before the data is transferred. This appeared to us to be a simpler
and more straightforward solution, and we asked the Minister to
explain if the Government supported this approach, or whether
it had any disadvantages.
3.5 We noted that the Government welcomes, in principle,
the establishment of a single data protection supervisory body
at EU level, and we looked forward to a more detailed assessment
of its advantages and disadvantages. We also asked the Minister
to provide us with an account of the views of the Information
Commissioner on the proposal.
The Minister's reply
3.6 In her letter of 13 June the Parliamentary Under-Secretary
of State at the Department for Constitutional Affairs (Baroness
Ashton of Upholland) replies to our report of 25 April and provides
further information on the negotiations.
3.7 The Minister reports that, following discussions
in the Council working group, the German Presidency produced a
revised text on 24 April, with a further revision produced on
6 June and that the question of scope remains "the main obstacle
to agreement".
3.8 In reply to our question on the ambiguity over
the scope of the proposal, the Minister states that the Government
agrees with our view that the proposal should not apply to domestic
processing and that the Government is also keen to remove any
ambiguity on this point from the text. The Minister reports that
recital 6a (which provided that Member States would also apply
the rules of the proposal to national data processing) has now
been amended to read "to facilitate data exchanges in the
European Union, Member States intend to ensure that the standard
of data protection achieved in national data processing matches
that provided for in this Framework Decision". The Minister
informs us that the Government will continue to discuss this issue
with the Presidency, the Commission and other Member States to
ensure that a common approach is achieved which is acceptable
to the UK.
3.9 The Minister informs us that, as part of its
efforts to find a compromise on the question of scope, the Presidency
has suggested a new Article 27a, which would provide for a review
by the Commission after five years to consider whether there were
any cases of data not being shared by Member States because national
data-processing did not comply with the proposed Framework Decision.
The Minister adds that the Government is considering the wording
of this proposal.
3.10 In reply to our question on the new provision
on the transfer of data to third countries, the Minister states
that the Government's view is that any such provision should consist
of "general principles rather than prescriptive rules"
and that it would be important to secure a derogation, in the
event of "serious and immediate threats to public interests",
from the requirement to obtain the consent of the originating
Member State prior to the transfer of data. The Minister explains
that the Government did not wish to have a situation where it
was in possession of information which could be useful to a third
country to prevent such a threat, but was unable to send it because
of difficulties in contacting the appropriate authority in the
originating Member State. The Minister informs us that the Presidency
has redrafted the relevant provision to include both a requirement
for a prior decision on the adequacy of data protection in the
third country concerned and a derogation from the requirement
to seek the prior consent of the originating Member State under
"very limited circumstances". The Minister comments
that it is not yet clear whether the revised version fully addresses
the Government's concerns.
3.11 As for our request for a more detailed assessment
of the advantages and disadvantages of a single supervisory authority
for data protection, the Minister explains that the Government
is still waiting for a detailed proposal from the Presidency.
3.12 On the question of consultation, the Minister
states that those consulted are "largely satisfied that the
new text is an improvement for the UK", the main concerns
being over the implications of the proposal for their business
operations. The Information Commissioner also agrees that the
revised draft is an improvement for the UK, the issues raised
by his office being the definition of adequacy (in relation to
arrangements for data protection), access by the data subject,
the roles of national supervisory authorities and the joint supervisory
authority.
Conclusion
3.13 We thank the Minister for her helpful letter.
3.14 We note that the Minister is continuing to
discuss the question of the scope of the proposal with the Presidency,
the Commission and other Member States. For our part, we consider
that an ambiguity remains, despite the revisions which have been
suggested. The requirement (in recital 6a) to ensure that national
data processing "matches" the requirements of the Framework
Decision, and (in Article 27a) that the Commission should review
whether cases have occurred where data has not been shared because
national provisions did not comply with the Framework Decision,
appear to us to introduce rules that are intended to have at least
some effect on national data-processing and accordingly raise
the issue of EU competence to prescribe rules for purely domestic
issues.
3.15 We note the current state of negotiations
on the question of the transfer of data to third countries, which
appears to include the re-introduction of the concept of the 'adequacy'
decision, which we have found problematic. We ask the Minister
to inform us in more detail of the text which is being proposed
and of the Government's attitude to it.
3.16 We shall hold the document under scrutiny
pending further information from the Minister.
13 OJ No. L 281, 23.11.95, p. 31. Back
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