3 Use of Passenger Name Records for law
enforcement purposes
| (a) (30385) 5618/09 —
(b) (30651) 5618/1/09 —
| Draft Council Framework Decision on the use of Passenger Name Records (PNR) for law enforcement purposes
Draft Council Framework Decision on the use of Passenger Name Records (PNR) for law enforcement purposes (Articles 1-10)
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| Legal base | (a) Articles 29, 30(1)(b) and 34(2)(b) EU; consultation; unanimity
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| Deposited in Parliament | 27 January 2009
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| Department | Home Office |
| Basis of consideration | Minister's letter of 8 May 2009 and EM of 12 May 2009
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| Previous Committee Report | (a) HC 19-xiii (2008-09), chapter 4 (1 April 2009)
(b) None
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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 | (a) Not cleared; (b) Not cleared; further information requested
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Background
3.1 Passenger Name Record (PNR) data is booking information held
by airlines about their passengers which can be useful to law
enforcement authorities in identifying potential risks. (This
is different from Advanced Passenger Information (API) which is
data derived from passports.) The proposed draft Framework Decision
suggests a system for PNR data to be provided by carriers on flights
into and out of the EU, for this data to be held by Passenger
Information Units, and for its use relation to terrorist offences
and serious crime.
Previous scrutiny of the document
3.2 When we last reviewed this draft Framework Decision on 1 April
(document a), we noted that the Presidency had significantly amended
the text largely in line with findings made by the multi-disciplinary
group on organised crime (MDG) under the French Presidency (and
reported by the Committee on 28 January 2009).[19]
The Presidency had also incorporated some proposals on which no
consensus had been agreed, including the retention period for
PNR data and the use of sensitive personal information.
3.3 In her Explanatory Memorandum of 6 February 2009,
the Parliamentary Under-Secretary of State at the Home Office
(Meg Hillier) welcomed the re-draft of the Framework Decision.
It had taken into account many of the Member States' preferences
and concerns relating to an EU PNR system which "brings with
it the advantage of EU wide cooperation on issues such as combating
terrorism and serious crime, minimising the burden on industry,
and enabling the EU to set appropriate data protection standards
on the use of PNR data". She commented that the re-draft
allowed for PNR data to be processed in relation to a wider remit
of crimes as defined in the Framework Decision on the European
Arrest Warrant; for Member States to process PNR data in relation
to intra-EU flights as well as other modes of transport if they
chose; for Member States to process PNR data for other purposes
such as combating illegal immigration if they chose; and for sensitive
personal information contained within PNR to be processed. But
the re-draft also obliged Member States to process PNR data for
all international flights into and out of the EU within 6 years
of the Framework Decision coming into force, which the Government
opposed.
3.4 We took stock of these amendments but refrained
from a full review until the negotiation positions of Member States
on the new text had become apparent. We did, however, express
considerable concern that the obligation to process PNR data for
all flights into and out of the EU — i.e. collection of
100% of PNR data — greatly extended the scope of the Framework
Decision; was in consequence a greater intrusion into passengers'
rights to privacy and data protection; and went against the evidence
provided that speculative searches of all such flights was both
impractical and unnecessary. We also expressed concern over the
role given to the Commission in the Framework Decision in recommending
protocols for the transmission of PNR data through comitology.
The Minister's letter of 8 May
3.5 On 8 May the then Parliamentary Under Secretary
of State at the Home Office, (Shahid Malik), wrote in response
to our Report of 1 April. He informed us that there were "significantly
differing opinions" among Member States on the need for 100%
collection of PNR data and that it was "unlikely that this
Article will remain as it is currently drafted". As regards
the Commission's role in making recommendations regarding common
protocols for the transmission of PNR data, he commented that
the awaited redraft of Articles 11-20 "will hopefully include
positive redrafting in this respect". The Minister promised
to keep us informed of developments in these two areas as negotiations
progress.
The Minister's Explanatory Memorandum of 12 May
3.6 A further revision of Articles 1-10 of the draft
Framework Decision (document b) was deposited in Parliament in
May. In his Explanatory Memorandum the Minister states that the
revised draft introduces further changes to Articles 1-10, but
draws our attention to only two as being significant.
3.7 Firstly, the definition of "serious crime"
in Article 2 has been expanded to cover organised criminal offences
as referred to in Article 2 of Council Framework Decision on the
fight against organised crime (2008/841/JHA). Previously, "serious
crime" had been defined by the crimes listed in Article 2
of the Framework Decision on the European Arrest Warrant. He comments
that the "Government welcomes this reference to 2008/841/JHA,
as it represents a step forward in ensuring that both serious
and organised crime are covered within the scope of the draft
Framework Decision on the use of PNR for law enforcement purposes".
3.8 Secondly, the Minister informs us that the re-draft
of Article 5 on PNR data collection retains the same ambitious
schedule for the 100% collection of PNR data within six years
of the entry into force of the Framework Decision. Member States
are, as before, required to ensure that the PNR data for 30% of
all international flights into and out of the EU is collected
within three years of the entry into force of the Framework Decision,
and for 60% of all international flights into and out of the EU
in the following three years. At the end of this six-year period,
Member States are expected to ensure 100% PNR data collection.
The Minister comments:
"… we do not believe it is necessary or
proportionate. We instead advocate a targeted approach to the
collection of PNR data on the basis of routes where there is the
greatest opportunity for operational benefit. By 2013, the UK
Government aims to collect PNR data on 100 million passenger movements
per year which will account for about one third of all passenger
movements.
"Based upon UK Government practical experience,
the UK Government strongly believes that the final draft instrument
should provide longer timeframes for Member States to increase
their collection of PNR data and include stricter review clauses
to ensure that the instrument can be easily amended if Member
States believe it will be difficult to achieve 100% collection
of PNR data.
"However it is important to note that at present
the proposed 100% collection of PNR data remains an issue on which
Member States opinions widely differ, and is therefore an issue
that has yet to be resolved for the purposes of this Framework
Decision."
3.9 We also note, although the Minister makes no
comment on them:
- that air carriers will be required
to use the push method to transfer data to national authorities
after two years, rather than three years, in revised Article 5(4)
in document (b);
- that in relation to the period of data retention
for PNR, the Presidency comments in a footnote to Article 9 in
document (b) that "it is highly unlikely that a consensus
can be reached among 27 delegations on an exact retention period".
(Document (b) obliges Member States to keep PNR data in an active
database for three years and an inactive database for not more
than seven years thereafter.);
- and that paragraph 5 of the Council's Note attached
to document (b) states that "AT [Austria] has also stressed
the need for a further examination of the legal basis for this
proposal in the light of the opinion of the Council Legal Service".
Conclusion
3.10 We thank the Minister for his letter and
Explanatory Memorandum setting out Presidency amendments to Article
1-10 of the Framework Decision, as contained in document (b).
3.11 The offences for which PNR can be used should
be set out as precisely as possible in the Framework Decision.
We therefore welcome the additional clarification that "serious
crime" also covers "conduct related to a criminal organisation"
as defined in Article 2(a) and (b) of the Framework Decision on
the fight against organised crime and, more specifically, as implemented
by Member States as specific criminal offences under national
law.
3.12 We note the Minister's comments both in his
letter of 8 May and Explanatory Memorandum of 12 May about the
differences between Member States on the Articles on 100% PNR
collection and the Commission's role in making recommendations
regarding common protocols for the transmission of PNR data. We
very much hope that these provisions will be diluted or positively
redrafted, as he suggests.
3.13 But we voice our concern again at the scope
of this Framework Decision being extended to 100% PNR data collection,
for the same reasons as set out in our last Report. It appears
from the Explanatory Memorandum, however, that the Government's
position (as quoted above) is that the Framework Decision should
allow for longer timeframes within which to reach 100% PNR data
collection, with a review clause to be used if this goal proves
impossible, as the Government predicts. We would be grateful for
an explanation from the Minister why 100% PNR data collection
should even be a goal of this instrument, given, as the Minister
says himself, that it is neither "necessary" nor "proportionate",
and in our view could thereby upset the balance between a legitimate
and illegitimate restriction on passengers' rights to privacy
and data protection.
3.14 We would be grateful if the Minister could
confirm whether there is strong support from Member States for
air carriers to be obliged to use the push method to transfer
PNR data to national authorities after two years from entry into
force of the Framework Decision, as appears from revised Article
5(4) of document (b).
3.15 We note the Presidency's comment that it
is highly unlikely that consensus will be achieved on the period
of retention of PNR data. In her Explanatory Memorandum of 6 February,
the Minister stated that the Government was "currently discussing
the impact of the proposed data retention periods with our technical
experts". We would be grateful to know the outcome of these
discussions, and the Government's view on what would be an appropriate
period of retention by national authorities both in the EU and
in third countries.
3.16 We would be grateful for clarification of
what issues have arisen over the legal basis of this Framework
Decision.
3.17 In the meantime, we keep both documents (a)
and (b) under scrutiny.
19 (29109) 14922/07, (30252) 16457/08; see HC 19-v
(2008-09), Chapter 11 (28 January 2009). Back
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