Examination of Witnesses (Question Numbers
40-50)
LORD BACH,
EDWIN KILBY
AND EMMA
GIBBONS
3 NOVEMBER 2009
Q40 Chairman: Is that not a pretty
serious problem, and are you going raise it in the Stockholm discussions,
bearing in mind that most of our constituents are not very happy
at the thought that disqualified drivers from other countries
are driving on our roads?
Emma Gibbons: We had discussions
on the Stockholm programme that actually said that we would like
work pursued on a range of disqualifications, and mention is made
of that in the Stockholm programme. It would be one that I can
take back and explore with my colleagues. Our focus to date on
disqualifications has actually been around disqualifications from
working with children. That is another particularly important
area where the EU has yet to act and which we think is very important
given free movement arrangements.
Chairman: I think most people would be
surprised that in all the words that surround this, those two
issues are so far from being implemented yet.
Q41 Dr Palmer: One more point on
that issue. When I moved from living in Switzerland to living
in Britain, I changed over my driving licence from a Swiss one
to a British one and I noticed that, firstly, I was not required
to give up my Swiss driving licence and, secondly, the information
on that (that it was conditional on my wearing glasses) was not
transferred, probably because they could not read the German.
If I was unscrupulous, I could avoid the condition and, if I had
points on one licence, I could use the other licence. Would you
consider taking these points into account?
Lord Bach: We certainly will do
that—and more. I am going to offer, if I may, to write in
due course to the Committee. This is, without of course wanting
to opt out of our responsibility, a Department for Transport issue
primarily, but we accept the significant points that are made
about driving.
Q42 Dr Palmer: Changing the subject,
the Information Commissioner's Office calls for a comprehensive
EU data protection law when the Lisbon Treaty is fully ratified
and for a merger of all data protection supervisory systems at
European level. The UK Government also proposes a cross-pillar
justice and home affairs information management and data protection
strategy. How do you see the way forward on that?
Lord Bach: I am going to ask Ms
Gibbons to reply to this one. It is within her expertise.
Emma Gibbons: The Commissioner
did, indeed—I read his evidence—call for common data
protection arrangements. We would argue there are already some
common data protection arrangements in place. There is a Directive
covering the first pillar business, there is a framework decision
which is due to come into force which will cover the police and
criminal aspects. So we think there are extensive arrangements
in place which do protect individuals and data subjects in relation
to EU sharing. We think there is more the EU can do on all of
this. As you mentioned, we are pushing within the new work programme
for a more strategic approach to both data sharing and data protection.
What we would like to see is a programme, a strategy, setting
out what it is we want to share and, more importantly, how we
should go about it, and within that we are pushing for a very
strong data protection regime to apply. That said, we do not necessarily
see new legislation as the solution to that. What we are arguing
for as a first stage is some practical measures, one or two which
I think the Information Commissioner raises in his evidence: the
idea of privacy impact assessments, for example, to accompany
new proposals, which we see as tied in very tightly with other
arguments we are making in relation to the Stockholm programme
about better regulation, ensuring new proposals are properly prepared,
accompanied by regulatory impact assessments. We have also flagged
the idea of privacy by design, where new proposals incorporate
from the start the idea of data protection, what the data will
be used for and why. Finally, because we have all of this legislation
in place, what we are saying is that we need to review it, we
need to see what works. Once that evaluation has been done, we
can then make an assessment about whether there should be new
legislation to create a single instrument reflecting what will
be a single chapter in justice and home affairs, but we see that
as further down the line. It is not necessarily the first and
only solution.
Q43 Dr Palmer: So the reason that
you favour that incremental approach is that you feel that if
one went straight for legislation, one might not get it all right,
that we are exploring the best approaches, or why do you not like
the idea of a single data protection law?
Lord Bach: I have not said we
do not like a single data protection law. The approach we are
taking across the new work programme can basically be summarised
within the phrase "look before you legislate".
Q44 Chairman: A new concept in government,
I think!
Lord Bach: The argument we have
said is that, where you have arrangements in place, let us see
if they are working before we rush ahead with new legislation.
There is legislation in place; there is a Directive in place;
there is a framework decision; individual instruments have their
own data protection regimes. We want to sit down and make sure
that we know what works and where the gaps are. The Commission
is undertaking an investigation into the challenges to be posed
by data protection over the coming years with technological developments,
new IT. Once we have that evidence, I think it would be far better
to sit down and get this right rather than rush ahead and do something
quickly and get it wrong.
Dr Whitehead: Can I enquire about victims
in both the UK system and also victims of crime in other Member
States? The framework decision on the standing of victims in criminal
proceedings was adopted in 2001 by the UK, but how does the Government
ensure that where there are victims in other Member States they
are properly supported? Is it the UK Government's assumption that
they will normally be supported by agencies in other Member States
or is it the assumption that they will be, on the basis of UK
standards, outreached by the UK Government?
Q45 Chairman: A mystified silence!
Emma Gibbons: There are pieces
of European legislation in place to protect victims. As the Minister
has already referred to, as a starting point we do have consular
services to support UK citizens overseas anyway, whether they
be suspects in proceedings or, indeed, victims. In addition to
that, the EU has legislated in relation to two instruments. The
first was in 2001, which was on the criminal law side, creating
some rights on how victims should be treated in criminal proceedings—rights
to information, for support, that sort of thing. The second was
in 2004, which was about compensation for victims, ensuring that
where somebody was a victim of crime in another Member State they
could apply for their own country's compensation scheme and be
compensated for the injury. So there is work that is already taking
place, reflecting the point made earlier that we do take seriously
the fact that there are UK citizens living and working in other
Member States, and we think, on the whole, those measures are
good things.
Q46 Dr Whitehead: In the context
of new proposals and new framework decisions, one of those potential
new framework decisions might, for example, be to introduce protective
measures which protect victim anonymity but do not actually protect
the right of the defendant to challenge their evidence. Are you
happy that, as far as the impact of new framework decisions, indeed,
new Member States' initiatives are concerned, that there is public
consultation and impact assessment within the UK properly on those
proposals?
Lord Bach: On the way in which
we get public consultation on the both the issue you mention and
others, we do consider it important to consult the public and
practitioners, obviously, sometimes through formal consultations,
such as the current one on succession and wills. We often also
consult practitioners through a number of forums, such as the
Advisory Committee on Private International Law, a most distinguished
committee called the North Committee—Sir Peter North is
the Chairman at the moment and is retiring and I have actually
sat in on the North Committee which has fantastic expertise in
its field—in the criminal justice field, the Judicial Co-operation
Forum as well. So when civil and family law hurdles are pursued,
we always consult those who have an interest in the subject matter
from the judiciary, down through the legal profession, to court
user groups and advice providers. I think we consult sufficiently
and well on these issues. I do not know whether that helps on
the question you are posing about victims. There are some new
proposals that have come out about victims in the Council Conclusions
of October this year.
Q47 Dr Whitehead: I was rather using
the example of the possible development of framework decisions
which could balance the question of victim anonymity against the
right of a defendant to challenge their evidence in a way that
we might find uncongenial with how we have developed that particular
balance in the UK and, under those circumstances, how might consultation
properly be carried out and how might impact assessments be carried
out in order to ascertain what the UK's future position is on
those and, particularly, to what extent might the public be involved
in those proposals rather than the decisions of expert boards
and, indeed, those who are more closely involved with the process
perhaps at a European level?
Edwin Kilby: I think the best
way for me to answer this is simply to say that we do commit to
consult the public and practitioners wherever we can on whatever
the proposal was. So, if a proposal of the sort you describe were
to come forward, I have no doubt at all that not only would we
consult those who would be likely to come across this area of
business on a day-to-day basis, but I think also we would look
towards some sort of wider consultation too. Obviously, one of
the things that we would want to look at is whether a public consultation
was appropriate in relation to that kind of initiative, but I
am sure we would examine that idea very favourably.
Q48 Dr Whitehead: In terms of the
actual proposed areas of work, what areas of work do you particularly
have concerns about and in what areas do you think the case for
change may actually be somewhat lacking?
Lord Bach: This is in terms of
the roadmap and the Directives that may flow from it.
Q49 Dr Whitehead: Indeed. I have
raised the question rather more hypothetically about how consultation
and impact assessments may be undertaken, but I would assume that
somewhere in the department there are people thinking, "Hang
on a minute. Should we do something further about these particular
proposals that are coming forward?" How might those particular
concerns best be flagged up within the department?
Lord Bach: Some proposals concern
us more than other proposals. It is fair to say, I think, the
one we are consulting on at the moment, succession and wills,
is one of those that concern us, for obvious reasons which we
may have time to go into or not this evening. There are other
proposals. I mentioned the European public prosecutor, for example.
If that were to emerge as an issue in the course of the post Lisbon
era, alarm bells would be ringing and we would have strong views.
We think the work programme that we hope will be adopted pretty
soon now, by the end of the year—
Emma Gibbons: 30 November at the
JHA Council.
Lord Bach: —will set the
direction, and we will look carefully to see what it is that is
going to be proposed, but we like what we see, basically, in terms
of that list that I have already read out of proposed framework
directions which we think lead to better procedural rights.
Emma Gibbons: I think we see the
work programme as the way we can influence what emerges from the
Commission and, indeed, Member States over the next five years.
If we can get that work programme right, then the proposals that
come out in the form of new legislation or practical initiatives
we hope will support the delivery of UK objectives on a number
of the issues raised. That is under negotiation. Obviously there
are proposals in there that other Member States are pushing that
we are not so keen on, but we have done a lot of thinking over
the last year about what we want the EU to deliver. For example,
we are arguing very strongly that it should include work around,
as I mentioned, disqualifications and child protection so that
we can ensure that we have the information we need on previous
criminal convictions. Equally, we are resisting efforts to change
the nature of Eurojust from a co-ordination organisation into
something more of a prosecutor. As I say, the main aim for us
in all of this is to get that programme right so that we then
know that the work that will continue over the next five years
will be mandated by that programme and the Commission and Member
States will have to follow what is in that programme in bringing
forward new ideas and new initiatives.
Q50 Dr Whitehead: Are you using specific
research evidence, for example, to inform those sorts of positions
and to look at where gaps in legislation might be?
Lord Bach: Yes; there is no doubt
that we are at the forefront of those arguing for greater levels
of evidence and impact assessments of course to be built into
the European legislative process, and we feel, particularly at
the moment, that we are winning that argument. We think that what
appears in the roadmap are measures that will not go ahead unless
there is evidence for them that they will actually add value to
life for ordinary people in the EU, but we do employ academics
to advise on particular specialist issues—in contract law,
the common frame of reference, which the Committee will know about.
We had an extremely distinguished academic, Professor Simon Whittaker,
who prepared, I think, a leading document to analyse what was
being proposed. So we use various means, but always, for us, we
want the measure to be practical, rather than theoretical, and
based on evidence too. This has been, of course, something of
a struggle sometimes within the confines of the Council, but we
think at the moment the spirit is with us.
Chairman: Lord Bach, Ms Gibbons, Mr Kilby,
thank you very much indeed.
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