Passenger Name Records

The Committee consisted of the following Members:

Chair: Annette Brooke 

† Brake, Tom (Carshalton and Wallington) (LD) 

† Connarty, Michael (Linlithgow and East Falkirk) (Lab) 

† Duddridge, James (Lord Commissioner of Her Majesty's Treasury)  

† Fullbrook, Lorraine (South Ribble) (Con) 

† Grant, Mrs Helen (Maidstone and The Weald) (Con) 

† Green, Damian (Minister for Immigration)  

† Hamilton, Mr David (Midlothian) (Lab) 

† McCabe, Steve (Birmingham, Selly Oak) (Lab) 

† Mahmood, Shabana (Birmingham, Ladywood) (Lab) 

† Rees-Mogg, Jacob (North East Somerset) (Con) 

† Rutley, David (Macclesfield) (Con) 

† Shannon, Jim (Strangford) (DUP) 

Stringer, Graham (Blackley and Broughton) (Lab) 

Alison Groves, Committee Clerk

† attended the Committee

European Committee B 

Wednesday 30 March 2011  

[Annette Brooke in the Chair] 

Passenger Name Records 

[Relevant Document: European Scrutiny Committee, 21st report of Session 2010-11, HC 428-xiv, chapter 1.]  

8.55 am 

The Chair:  Does a member of the European Scrutiny Committee wish to make a brief explanatory statement about the decision to refer the document to this Committee? You have no more than five minutes. 

Jacob Rees-Mogg (North East Somerset) (Con):  It might help if I take a few minutes to explain the background to the draft directive and the reasons why the European Scrutiny Committee recommended a debate on the UK’s opt-in. 

The draft directive would establish an EU-wide framework for the collection and use of passenger name record—PNR—data. That information is provided by passengers when booking a flight and checking in, and it is held in air carriers’ flight reservation and departure control systems. This is the second attempt to establish an EU framework, the first having been abandoned because of concern in some quarters that it provided insufficient data protection safeguards. 

The draft directive proposes harmonised EU rules on the collection and transmission of PNR data, the amount of time for which they can be held, the purposes for which they may be used, and the exchange of PNR data between member states. The UK has its own PNR system, called e-Borders, which provides for the use of PNR data for immigration, customs or police purposes. The Government consider the use of PNR data to be 

“a proven and vital tool for the prevention and detection of serious crime and terrorism”, 

and express strong support for the development of an EU-wide PNR system, but they would like the draft directive to go further. For example, it provides for the collection and use of PNR data for flights to and from the EU only, not for flights within the EU. 

The Commission also believes that the systematic collection and use of PNR data would help law enforcement authorities to tackle terrorism and serious crime more effectively. It says that a number of member states are developing their own PNR systems, and that an EU framework is needed to prevent a patchwork of national laws that would result in security gaps, as well as increased costs and legal uncertainty for air passengers and carriers. 

When the European Scrutiny Committee considered the draft directive on 9 March, it raised a number of questions on the substance of the Commission’s proposal, which it expects the Government to respond to as part of the usual process of scrutiny. Today’s debate concerns the narrower but no less important matter of UK participation in the draft directive. 

The draft directive is subject to the UK’s opt-in, and the Government have until 2 May to decide whether they wish to opt in, and to notify the presidency of the Council of Ministers accordingly. In his explanatory

memorandum on the draft directive, the Minister for Immigration highlighted a number of factors that would influence the Government’s opt-in decision. These included the likelihood of securing amendments to the draft directive that would meet the following UK policy objectives: the inclusion in the directive of intra-EU flights between EU member states; an ability to process and use PNR data for all terrorist or serious criminal offences, regardless of the presence of a transnational element; and an extension of the time for which PNR data could be held, so that member states would be able to use it 

“pro-actively to establish travel and behaviour patterns”. 

The draft directive contemplates an initial retention period of 30 days, followed by a further five years during which the data may be held in an anonymised form to mask the identity of the passenger. The last objective is an ability, in exceptional circumstances, to use sensitive data that reveal a passenger’s race or ethnic origin, religious or philosophical belief, political opinion, trade union membership, health or sexual life. 

The European Scrutiny Committee considered that the Government’s opt-in decision would have potentially important implications for the UK’s e-Borders system, not least because e-Borders enables the UK to collect and use PNR data for all flights, including flights between the UK and other member states, and for a wider range of purposes that includes immigration. 

In a recent debate in the House of Lords on the UK’s opt-in to the draft directive, Baroness Neville-Jones indicated on behalf of the Government that the proposal would be discussed at the Justice and Home Affairs Council on 11 April. She said that the Government are hopeful that they may be able to secure a statement by the council that the draft directive should also cover intra-EU flights. If they succeed, she thought it very likely that they would decide to opt in. 

Today’s debate gives us the opportunity to explore the issues that I have briefly outlined and to consider whether the interests of the UK are likely to be best served by opting into the draft directive at the outset, waiting for the conclusion of negotiations before deciding whether or not to opt in, or ruling out opting in at any stage. 

In conclusion, I express my appreciation to her Majesty’s Government for making time available to hold this debate before the Government reach a definitive decision on whether or not to opt into the draft directive. 

The Chair:  Thank you. I call the Minister to make the opening statement. 

9 am 

The Minister for Immigration (Damian Green):  Thank you, Mrs Brooke, and I am grateful to my hon. Friend for that clear exposition of the issues underpinning this important debate. 

As my hon. Friend said, the Government note in their explanatory memorandum that although we strongly support the principle of an EU-wide system on passenger name records, we have consistently argued that such a system should cover intra-EU travel. As drafted, the text creates a regime for the collection of PNR on travel into the EU from outside only, and does not extend to travel inside the EU. A key opt-in consideration for the

Government will be the likelihood of achieving intra-EU provision within the final text. Although the UK’s lobbying efforts on this issue are beginning to bear fruit with member states, I would not wish to underestimate the amount of work involved in achieving qualified majority support. 

Of course, our work does not end in the Council, as a significant number of Members of the European Parliament remain to be convinced that the proposed measure is proportionate on data protection grounds. I want to be clear that the Government are intent on defending security and civil liberties, so that we infringe less on people’s freedoms while still providing the public with effective protection from terrorism and crime. The Government believe this measure to be proportionate and that it will continue to be proportionate if extended to provide for the collection of PNR data on intra-EU routes. 

The UK has already tabled an amendment to the draft directive. Under it, each member state could extend the regime created by the directive to intra-EU travel. In addition, a member state could select the routes on which it required PNR data, according to its own national risk assessment, whether these routes were inside or outside the EU. 

It is our view that other features of the directive as published are unhelpful and retrograde in comparison with an earlier proposal, and would undermine the whole utility of this data. We will also be seeking changes to the text on these issues. Specifically, it is our view that the directive should provide for PNR processing for serious crime and terrorism purposes and not be limited to serious crimes which are transnational in nature, where proactive risk assessment and trend analysis are concerned. 

We also feel that data need to be kept for a necessary retention period. We are still looking at the Commission’s new proposal, which provides that data should be retained for five years but be anonymised after 30 days. Our view on the appropriate retention period for the draft directive will be informed by the review of retention periods for e-Borders, and vice versa, of course. Our concern is that data that are anonymised as early as 30 days are likely to be of less use operationally. The Government agreed to a period of three years in an active database and three years in an archive when the UK decided to opt into the negotiating mandates for the EU PNR agreements with the US, Australia and Canada. We think this is necessary and proportionate. It would be perverse if those agreements with third countries provided for longer periods of data retention than the EU PNR directive allowed. 

A further consideration is the use of sensitive personal data, as my hon. Friend the Member for North East Somerset mentioned. I wholeheartedly agree with the viewpoint that such data should not be used in any way to profile people, but we should not rule out the use of sensitive personal data completely. The UK’s experience has shown that such data can be operationally beneficial when deciding whether and how it is appropriate to mount an intervention. 

The Chair:  Thank you. We now have until 9.55 for questions to the Minister. May I remind hon. Members that these should be brief? It is open to a Member,

subject to my discretion, to ask related supplementary questions, and we will of course be having the debate after the questions. 

Shabana Mahmood (Birmingham, Ladywood) (Lab):  It is a pleasure to serve under your chairmanship, Mrs Brooke, and I am grateful to the hon. Member for North East Somerset for his thorough introduction, on behalf of the European Scrutiny Committee, to the issues raised by the draft directive. I also thank the Minister for his opening statement. 

I have a number of questions for the Minister, which I have separated into different topics of interest under the draft directive. I hope that that is an acceptable way to proceed, Mrs Brooke, as I have not done this before. 

The Chair:  Would you like to start with your first set of questions? We can see if anyone else wants to ask anything, then come back and go round. 

Shabana Mahmood:  Thank you. I will start with offences for which PNR data can be collected and shared. In particular, will all offences under the Terrorism Acts 2000 and 2006 be covered by the provisions in the draft directive? Will any offences be excluded from the draft directive by the UK? I have in mind paragraph 12 of the preamble to the draft directive. 

In addition, why do the Government want to negotiate to dispense with the transitional element in relation to the offences that are the subject of the draft directive? How workable would it be in practice if that element were dispensed with? How likely is it that the European Parliament will agree to that proposal, and what are the views of other member states of his negotiations? 

Damian Green:  I will answer the questions in reverse order, starting with the last one. 

As I mentioned in my opening statement, the European Parliament has particular concerns, and many Members have an active concern. I have spoken to some of the lead members of the various groups, and they are concerned in particular about data protection—they are right to be so. The hon. Lady asked me to predict their eventual verdict but, genuinely, it is much too early to say. However, under the new Lisbon arrangements, it will now be as important for the Parliament to support the directive as for the Council to do so. That will be another issue. 

The hon. Lady asked about the Terrorism Act offences. Rather than go through them in detail and get something wrong, I would be grateful if she allowed me to write to her with the details. 

Tom Brake (Carshalton and Wallington) (LD):  It is a pleasure to serve under your chairmanship this morning, Mrs Brooke. I have one simple—short, at least—question for the Minister on the issue of sensitive personal data. The hon. Member for North East Somerset, who opened the debate, referred to a list of what I think Members would agree were highly sensitive data. In what circumstances is such information used? Is it only in relation, for instance, to counter-terrorism or serious organised crime that sensitive data of that nature may be captured? 

Damian Green:  It is wider than simply for terrorism; it is for serious crime, the nature of which we are still discussing. The current proposal is that only transnational activities should be covered but, clearly, there would be something slightly perverse about a crime that was to happen entirely in this country which the authorities might wish to prevent but were hamstrung from doing so by not having access to all the relevant information. In the specific example of some of the sensitive personal information to which my hon. Friend the Member for North East Somerset referred in his introduction, it might well be that if we were deprived of it, preventing some serious crimes that could have serious effect on people might be made more difficult. 

I should point out that the draft directive does not require the collection of any more data than is already being collected by carriers. They will be required only to collect such information as they do in the course of their normal business. Therefore the draft directive is not asking for anything different. 

One of the advantages in the draft directive is the clear data protection safeguards, an area that is slightly muddled at the moment. Clearly, there is a reasonable and sensible debate to be had on the level and types of data that may be collected. At least we can be sure that there will be rules in place for all countries. Our view is that sensitive data should not be used for profiling purposes, but they can be critical operationally in deciding whether and how best to make an intervention. In many cases, it involves ruling out a particular person from an investigation, and therefore not intruding on that person, which is clearly welcome. But it also means that the security services and the police can concentrate their efforts better. 

Michael Connarty (Linlithgow and East Falkirk) (Lab):  I am happy to serve under your chairmanship, Mrs Brooke. The motion is rather strange and we do not have a Government position—we just recognise that the Government are trying to reach a position. The Minister said that there is a difficulty in getting a qualified majority vote. If the directive is unamended, is a qualified majority vote for that likely to come about? I know there is a difficulty in giving away the negotiating position, but where does the UK stand if it goes to Council unamended? 

Damian Green:  On the hon. Gentleman’s first point, I hope he welcomes the fact that we are having this debate before the Government come to a formal position. Too often in the past, the Committee has complained that it is after the fact. This is a very timely debate, because the next point at which this can be debated is at the Justice and Home Affairs Council on 11 April, although with events elsewhere in the world it is conceivable that the council may be overtaken and the decisions put back. The hon. Gentleman very acutely noted the difficulty and I am sure he would not wish me to discuss the details of the UK negotiating position, because this debate will be scrutinised very carefully by other member states. 

On the issue of whether there will be a qualified majority, we have tabled our amendment. A number of states have indicated that they support that, but, as I said in my introductory statement, not enough to form a qualified majority at the moment. However, we are

still working on it and the hon. Gentleman will know that these negotiations always go on up to and often beyond the last minute. The negotiations therefore are still at a fairly early stage, so we cannot predict the outcome on the text as a whole. 

The hon. Gentleman asked a pertinent question: what if nothing changes? We are not at that stage yet. We are still working hard to make changes that are satisfactory and we hope to achieve them. To help him, I should make the further point that I suspect that the position of other member states will be affected not only by our point about the intra-EU collection of data, but by wider issues. The whole text is obviously being debated and therefore it is genuinely impossible to predict where we will end up. 

Shabana Mahmood:  I want briefly to take the Minister back to the issue of sensitive personal data. Is it possible for him to give some examples of the UK national experience, where sensitive personal data have proved useful in the prevention or detection of crime? It might help the Committee to try to understand the circumstances in which that might be used in future. 

Damian Green:  As I explained in answer to the question from my hon. Friend the Member for Carshalton and Wallington, we found that the use of personal information can often mean that interventions are much more targeted and that therefore people can quite often be excluded from investigations. I hope that the hon. Lady and the Committee will excuse me for not going into the details of individual criminal investigations, because clearly we will not be talking about personal details and, equally importantly, one would not wish to discuss the way in which the police go about such things in too much detail, for the obvious reason that some of that has to remain private. Experience in this country has shown how much more effective the police can be if they have access to that kind of data. I cannot go into individual detail, but I shall give one practical example. One of the things that PNR allows us to know is how someone booked their ticket. There are clear patterns of behaviour that are characteristic of certain types of criminal, such as buying a last-minute single ticket with cash. However, such behaviour is also characteristic of, say, a merchant seaman who suddenly finds himself able to go home. If we have the data to check people’s professions, it may be easy to eliminate them from an investigation at an early stage. That is a practical example, I hope, of how PNR data can be useful. 

Jacob Rees-Mogg:  Can the Minister say whether there are any red lines in the negotiation? 

Damian Green:  My hon. Friend is enticing me down the path of discussing our negotiating strategy. I am sure that he will recognise that doing so would be unhelpful at this stage. I have said clearly—and I am happy to emphasise—that to make the directive effective, we need to have information on intra-EU travel, which is three times as much as extra-EU travel. With the directive as it currently stands, the danger is that it will collect useful information for crime prevention and prevention of terrorist activities, but will do so for

approximately only 25% of the journeys that might affect this country. That is why we feel strongly on that issue. 

Michael Connarty:  As the hon. Member for North East Somerset has said, the Committee recognises that this is the second attempt to establish such a system. The previous directive foundered on insufficient safeguards for data protection. The Minister has had some vague exchanges with the Opposition spokesperson in response to her questions. Can he provide a specific example of how that concern has been addressed, so that we might have some sense that there has been progress in answering the questions on data protection? 

Damian Green:  Sorry, I did not understand that question. Is the hon. Gentleman referring specifically to the sensitive data, or to the matter more generally? I do not understand what he is getting at. 

Michael Connarty:  The Minister has referred to the discussion in the European Parliament, for example, and the animosity towards the system because of the fear of lack of sufficient safeguards for data protection. How has that been addressed since the previous proposal foundered? We can ask all the questions we like, but the system might founder on the same issues, so may we hear some specific examples of how that has been addressed? 

Damian Green:  I do not understand, because the hon. Gentleman’s proposition is not accurate. The original proposal did not founder; it was abandoned when the Lisbon treaty came into force, which completely changed the legal base. It had not hit a rock in negotiations, but had to start again, because under the Lisbon treaty new rules had to be enforced. 

The first proposal had a legal base—the old third pillar, which has disappeared. As the hon. Gentleman will know, that has become part of title V of the Lisbon treaty. We did not hit a practical rock and have to stop; we simply had to start again because we were operating under new laws. 

Shabana Mahmood:  May I move the Minister on to whether we have blanket or selective coverage of the collection and sharing of PNR data? He stated in his letter dated 23 March, which is in the document bundle, that the UK might favour a position of selective coverage, which looks at only high-risk routes when collecting PNR data, rather than every international flight. Will the Minister give the Committee his view of the viability of limiting the directive to cover only high-risk groups? Is there a risk that that will displace the problem rather than dealing with it? Is the purpose of the measure one of data protection—to prevent lots of PNR data being collected—or of targeting and increasing efficiency? Finally, what are the high-risk groups for the UK, and how does that relate to other member states? 

Damian Green:  I will start with a firm no to the hon. Lady’s last question: it would not be helpful to inform the world’s terrorists and criminals which groups we regard as the most high-risk. On the general issue, which is a valid one to raise, the simple answer is that

the measure is about practicality. The directive requires airlines to collect information only on the routes on which they already collect it. We spend a lot of time collecting intelligence on the behaviour patterns of potential terrorists and criminals, so basing the information collection on specific routes will be most effective. 

The hon. Lady makes a perfectly reasonable point about displacement activity, and if it is known that particular routes are being targeted, potential criminals and terrorists will likely move to other routes. We devote much time and effort to intelligence activities to spot behaviour patterns, and the collection of such information enables us to observe which behaviour patterns are related to serious criminality or terrorism, allowing us to target our response more carefully. In a world where everyone is dealing with resource limitations, the better focused our intelligence, the more effective our law enforcement operations will be. 

Jim Shannon (Strangford) (DUP):  My apologies for arriving a wee bit late. 

As an MP for Northern Ireland, which has had a violent, vicious campaign for 30-plus years, I know that the Royal Ulster Constabulary and the Police Service of Northern Ireland have been able to effect a strategy that is relevant to the directive under discussion. What discussion has taken place with the PSNI, and directly with the Northern Ireland Office, to take advantage of their expertise of some 30-plus years in order to perfect the directive and legislation, and to use the lessons that have been learned elsewhere for the benefit of all? 

Damian Green:  I am grateful for that question, because we do draw on the expertise in those parts of the United kingdom such as Northern Ireland, where, for reasons we know and regret, expertise has been built up over time. In this case, we are discussing air travel, so a large part of that expertise is not directly relevant, but we do seek to draw on it, and will continue to do so in future, when the national crime agency and its border arm bring together immigration control and anti-terrorism more effectively. The National Border Targeting Centre, where such information is gathered, collated and analysed currently, includes officers from all police forces across the UK, including Northern Ireland, so we do draw on their expertise. There are regular meetings at ministerial level—I met the Northern Ireland Minister this week—at which all the relevant issues are discussed. 

Jacob Rees-Mogg:  Can the Minister explain in what ways the proposals from the European Union are better than the system that the United Kingdom already has, other than the advancement of the European project? It seems to me that we have a good system already, and that the new system could put some of our benefits from that, including those in relation to immigration, at risk. 

Damian Green:  My hon. Friend is suggesting that this is part of some wider plot to advance what he calls the European project. The protection of passengers on airlines should not be seen in that way. This is an important practical issue, particularly in an era where all air travel is a target for al-Qaeda. We know that it is a central part of their strategy to try to blow planes out of the air. Therefore it is worth doing everything we can, in a sensible and proportionate way, to try to stop that

from happening. My hon. Friend asks what would be better under this directive. Essentially, it will ensure that a legal regime is created for the collection and processing of the data at EU level. By its nature, air travel is international, so although we can do and already do useful things at a national level, the protection of air travellers is important and has to be done on a transnational basis. Otherwise, we are not going to achieve as much as we should. That is precisely what the directive is meant to achieve—to ensure that the collection of PNR is effective and enforceable across the EU. It binds all member states into the same regime, and collating this huge amount of data means that it can be done in the most efficient way. We can be sure about other people’s systems—both in terms of the data that they are collecting and the important data protection measures that they will have. 

I would take my hon. Friend’s point if we thought that in the interests of security we were going to start collecting information on British citizens that would then go into an unsatisfactory data retention regime somewhere else. It is important that we all know that we are operating to the same rules and that those rules are satisfactory. The potential for this directive is to take a practical step forward. Because we have to work on a transnational basis, the EU can play a useful role. Something between two thirds and three-quarters of our air travel takes place within it. If we want to make our air travel as safe as possible, having an effective EU-wide set of rules will be of significant benefit to individual citizens of this country. 

Shabana Mahmood:  I will focus the next line of questioning on data protection issues, which will be very important not just to the Committee, but to the wider public, given the amount of data it is proposed to collect across the European Union. First, has the Information Commissioner been consulted? I cannot remember whether the Home Office memorandum or the Minister’s letter of 23 March indicates that he has, but that is in the bundle. If he has been consulted, what are his views? If he has not been consulted, when will that take place, given that the deadline for the opt-in is 2 May? 

Who else will have access in the United Kingdom to the log of PNR data usage that must be kept under the draft directive’s provisions? Which other groups have been consulted about the UK opt-in? Is much more consultation still to take place? Is the proposal compliant with UK data protection law, or does the Minister expect that amendments to the law will be required if the draft directive is passed? 

On the types of data collected by the various air carriers, do most of them require the same sort of information? Is there an industry code of practice? If there is such a code and the draft directive becomes law, will a legally binding code be proposed for the air carriers, given the amount of data that we could be talking about? Finally, are there enough safeguards in the system envisaged in the draft directive to prevent mission creep? 

The Chair:  Just a few questions for you, Minister. 

Damian Green:  Right, I will attempt to address as many as I can. Perhaps the proposal is best put in the framework of what we already do in terms of e-Borders. We have been working with the Information Commissioner on not just the directive, as the hon. Lady says, but more generally about PNR. We have been working with his office to draft a statutory code of practice—to answer another of her questions—to ensure that tight controls apply to the use and storage of passenger data. 

The log of PNR data processing would be held by the passenger information unit, which is required to be established under the directive, and which would in the UK be based at the national border targeting centre. To explain what we do at the moment, all access is monitored and audited in line with the code of practice, and only staff members with the need and authorisation to access the data can do so. Fewer than 1% of UKBA staff have direct access to the information collected by e-Borders, which obviously includes PNR. 

On an industry-wide code of practice, airlines differ quite widely in what information they collect. I repeat that PNR data are collected by airlines in the course of their business, not at the Government’s behest, so they view such information as a commercial product. Indeed, when the airline industry is asked to do something that it does not already do for commercial reasons, it objects, so a negotiation is to be had there. 

I shall go through some of the most important points of the code of practice to address the hon. Lady’s underlying concerns. Individuals have the right to know what information is held about them. If those data are inaccurate, they can ask for them to be corrected. In addition to the data protection safeguards built into our domestic legislation, we have taken significant practical measures to strengthen our information handling, including training for all Government officials and introducing a requirement to produce privacy impact assessments for new data-sharing proposals in Government. 

The draft directive is compliant with the principles established by the UK’s Data Protection Act. Implementing the directive, if we end up opting in, might require specific amendments to UK legislation. We need to consider that as part of the implementation process, but again, until we have a directive and until we have opted into it, it is obviously impossible to answer that question in detail. 

Tom Brake:  To return briefly to high-risk routes, if the UK is successful in putting the focus on those, there will be flexibility? Presumably, if those patterns change, the UK Government can then focus on the new high-risk routes without undertaking any further process? Is that correct? 

Damian Green:  Yes. The draft amendment that we have tabled will enable precisely each national Government to decide which are the high-risk routes and where they want to concentrate their efforts. Obviously implicit in that is the ability to change those routes. I cannot remember whether I have made this clear, but I will do so now: our draft amendment will cover routes for extra-EU as well as intra-EU travel. We want to provide ourselves and, indeed, other national Governments with maximum practical flexibility to make our enforcement efforts as effective as possible. 

Jacob Rees-Mogg:  I am sorry to trouble the Minister once again, but I want to return to his previous answer. First, Governments often fall back on the argument of terrorism when they want to push something for which there is not a good argument, but I want to push him further on what advantages there are in this system compared with a purely intergovernmental one. When South Korea, Canada and Australia can run their own systems without the European Union, why do we need to sign up to the European Union one, which is less effective than what we already have? 

Damian Green:  The short answer is that the European Union is attempting to sign agreements with three other countries—the negotiations are happening—but it is a question of practicality. If we can come to a Europe-wide deal, that is 27 countries and more than two thirds of our air travel covered in one agreement. The alternative would be to sign 26 bilateral agreements, which, I gently suggest to my hon. Friend, would take a lot longer and may not be possible. In addition, some of those agreements would be less satisfactory than what we could achieve at the European level. 

I am not praying in aid terrorism in some abstract way, because I have every sympathy with my hon. Friend about Governments praying in aid security when what they are trying to do is damage civil liberties. One of the things I seek to do in government is to avoid that happening. In this case, however, we are not talking about theoretical possibilities. We do not need to go back a long time to see what terrorists around the world want to do on airlines: the freight plot was last year. Terrorists are still absolutely concentrating on air travel as means through which they can commit horrendous crimes that kill hundreds of people. There is a practical urgency in the need to use these means of intelligence to make air travel safer than it would otherwise be. 

Shabana Mahmood:  One of the point that still need to be teased out, both in terms of the Government’s position and the negotiations on the directive, is the interplay between API, PNR and our e-Borders programme in the UK. To begin with, will the Minister say a little more about the draft directive and the API directive that is already in force? The Minister will know that in the UK we use both API and PNR for both law enforcement and border control purposes. What will the Government be seeking to achieve in negotiations on API and PNR crossover? I am concerned that the UK maintains its ability to continue to use PNR for immigration control purposes. Does he think that paragraph 28 of the preamble to the draft directive goes far enough in that respect? Finally, what does he think the impact of the draft directive on e-Borders might be, given that we know that the full benefits of e-Borders are realised when API and PNR data are used together? 

Damian Green:  The hon. Lady is right on her last point. One reason why we want to bring in an effective PNR directive is precisely that the greatest benefits of PNR are realised when it is processed in conjunction with API. The reason for that is that it enriches the watch-list alerts from API data by linking the identity and the travel history of the person travelling and makes it possible to screen individuals against risk profiles. When a known terrorist subject is identified, as

can happen through the watch-listing of the API data, and is identified as intending to travel, PNR data are checked to identify whether there are unknown associates also intending to travel. Thus, there are helpful dynamic possibilities in the linking of API and PNR, simply because using the two datasets in parallel enables the e-Borders system—to answer that part of her question—to identify a greater proportion of those individuals who pose a risk to the UK and other nations. It gives us a handle on identifying people who are not on our watch lists already. That is a huge prize. 

We have, quite reasonably, discussed the data protection aspects of the retention of the data. Retention enables investigators to identify the movements and associates of suspects in terrorist and crime investigations, which enables us to prove the links and other factors that are relevant to active cases. The other advantage, which is often forgotten, is that the vast majority of passengers who are bona fide travellers can be dealt with more quickly if we have more information about the people we are looking for. 

On the European aspect of API and PNR, an API directive is already in force; it is due for review this year and, obviously, we will engage with that. The PNR directive does not in any way limit our ability to capture API data. Some of data are the same—basic name, for example—and are collected by both API and PNR. Largely, however, they are different datasets that are better used together than separately. 

Shabana Mahmood:  May I take the Minister back to paragraph 28 of the preamble? Is he happy with the current drafting? Does he think it is wide enough to allow the UK to continue to do what we currently do with PNR data while fulfilling our possible obligations under the draft directive? 

Damian Green:  We are still negotiating on a number of areas, one of which is nailing down the ability to use our existing PNR data as well as possible. The hon. Lady has observed that we may have questions about certain parts of the text. Obviously, the whole aspect will be part of our negotiations in the coming weeks. 

Shabana Mahmood:  Why are the Government arguing for a longer retention period than is envisaged in the draft directive? How does that fit in with the coalition Government’s policy more generally on data protection and retention in the UK, especially given the new measures on the DNA database under the Protection of Freedoms Bill? Have the Government assessed the consistency of their approach to the various ways that individuals’ data are collected? 

Damian Green:  Quite simply because, in practical terms, we believe that our proposals will provide protection, within the overall balance that the hon. Lady rightly says we are seeking to obtain, to ensure that we increase the security of the British people while maintaining and enhancing civil liberties. It is a difficult balance to strike on every aspect of policy that involves data collection and retention, but we are seeking the most practical solution. We want to ensure that the data protection limits are proportionate but do not undermine the usefulness of PNR. We always hold those two words,

necessity and proportionality, in mind when we make these negotiations. We believe that our proposals strike the right balance. 

The Chair:  If no more Members wish to ask questions, we will proceed to the debate on the motion. 

Motion made, and Question proposed,  

That the Committee takes note of European Union Document No. 6007/11, and the Addenda 1 and 2, relating to the draft Directive on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crimes; welcomes the opportunity to hold a Parliamentary debate on the criteria the Government will take into account when making its opt-in decision within the three month deadline under Protocol 21 to the Treaty on the Functioning of the European Union and the Treaty on the European Union; and endorses the Government’s aim of working with other Member States to strengthen the security of EU citizens whilst also protecting their data by developing an effective EU passenger name record system.—(Damian Green.)  

9.44 am 

Shabana Mahmood:  I am grateful for the opportunity to speak in this important debate and for the Minister to answer some detailed questions at length. Let me state at the outset that the Opposition support the use of PNR data in the fight against serious crime and especially in the fight against international terrorism. Indeed, many of the current provisions for the use of PNR data were either introduced or significantly expanded under the previous Labour Government, including the e-Borders programme. Whether to opt in to the draft directive is an important decision. We agree that PNR data is an essential supply of data for security and law enforcement agencies, and that PNR data is a proven tool for the prevention and detection of serious crime and terrorism. It goes without saying, however, that it is also a substantial invasion of privacy, so a robust system of safeguards needs to be maintained. The Commission argues that the draft directive is fully in line with the overall objectives of creating a European area of freedom, security and justice and that the proposal is compatible with the charter of fundamental rights. 

Subject to issues regarding intra-EU flights and the impact on e-Borders, we broadly support the opt-in to the draft directive. We agree that there is a strong and desirable case for EU-wide legislation on the collection and use of PNR data. It would be sensible and more effective if there was a similarity of methodology and approach to PNR data collection, usage and retention, rather than member states going their own way and making individual agreements with each other and with other countries, too. 

The suggested extension of the draft directive to cover intra-EU flights would also appear to be a sensible measure—as the European Union Committee of the other place has found—but negotiations are ongoing. If it is not possible to achieve agreement on intra-EU flights before the opt-in period is over or, indeed, after, if we do opt in and continue negotiations, I would press the Government to obtain clarification on the application of paragraph 28 of the preamble to the draft directive before proceeding. It is necessary for the UK to have clarity on the legal basis and the permissibility of PNR data collection and retention for intra-EU flights. Similarly,

it is necessary for the Government to seek clarity on the impact of the use in the UK of PNR data for border control purposes and the direct impact that the directive will have on e-Borders. The UK’s current arrangement and experience of using PNR and API together, for both crime fighting and border control, is an important tool, and we should not lose it as a result of the directive. 

I look forward to receiving assurances from the Minister about the Government’s commitment to the e-Borders programme and to our current arrangements. We would not want to see any unintended consequences that may prevent the UK from maintaining effective control of its border. 

9.47 am 

Jacob Rees-Mogg:  I am extremely concerned about what the Government are thinking of doing. I remind the Minister—although he probably does not need reminding—that the Conservative party manifesto said that it would bring powers back from Europe and that the coalition agreement promised no further transfer of powers to Europe. This is clearly in the latter category. 

On civil liberties, I have complete confidence in the Minister. There is no member of the Government who has discovered more directly how important civil liberties are, and therefore there is no better defender. In that respect, I am sure that he will safeguard the interests of the British people. 

On the European issue, I am not so entirely sure. It is essentially a power grab by the European Union and an attempt to establish itself further as a state. That is given away on page 67 of the bundle, where the issue of whether internal EU flights should be included is considered. The document states: 

“Making the instrument applicable to all travel, including internal travel, though favoured by some Member States, is however considered premature at this stage. Considering the large number of travellers on internal flights, which is three times more than the number of passengers on international flights, the costs for setting up and operating the system would be much higher.” 

That should be of great concern as to where the European Commission is starting from. It is not starting from an anti-terrorism point of view; it is starting from the point of view of how it can do something with Europe as a nation. If three times as many flights are within Europe as externally, the problem is likely to be on flights that are within Europe. That is where one ought to focus. One should focus on the volume of flights, not on those that may be coming from the United States, Australia or wherever. 

The European Union views itself as a state. It also gives that away in the reference to “international flights”, which is an odd turn of phrase, because flying from the United Kingdom to France, to Germany or to Spain is, in my view and, I would have thought, in those of most hon. Members here, an international flight. One does not have to fly outside the European Union to fly internationally. A flight to Northern Ireland would be a domestic flight as that is part of the United Kingdom, but a flight to Ireland would be an international flight, let alone one to France or Spain. 

The European Union, as always, is trying to get all the functions and capacities of a state. One can see in the document how it dismisses the status quo on page 79, “Comparing the options”, and that approach is taken by the Minister as well. It simply dismisses the option of

the status quo—the intergovernmental arrangements—in a paragraph for bureaucratic convenience. There is no more to it than that. It is not a serious, detailed argument about the disadvantages, but a paragraph that states that having anything otherwise would have negative impacts, but does not list what those impacts are. Isn’t it a great Sir Humphrey line to say, “It would be administratively difficult, Minister, so let’s hand the whole country over to our nice chums in Brussels”? 

I am further concerned that the proposal is less good than what we already have, and that the security of the nation would be undermined by the European effort. In what way is it weaker? There is the issue of profiling, which is currently specifically excluded in the European draft directive, but which Her Majesty’s Government currently use. I accept that no one wants mass profiling, or wants to be taken aside every time they go through airport security because they do not match the profile; in fact, I have suffered from that myself. I used to travel regularly in the United States, doing point-to-point flights rather than return journeys. That almost invariably led to me being taken aside for special measures and checked over by the security system. I accept that profiling is not perfect, but I think that the Government should have the right to maintain it. 

I have already mentioned the intra-EU matter, which is much more important because it is about a large number of flights. If someone goes to Greece from Turkey and then gets on a flight from Greece to Heathrow, we are not allowed to track them because that is not part of the EU agreement. I know that the Government want to get that in, but it is a sign of the disreputableness of the European Commission, which is trying to get us into a single state on the grounds of terrorism, without tackling the problem of passenger name recognition and looking at who the dangerous people are. 

The proposal would weaken our immigration protections. The Minister referred to that in his letter to the European Scrutiny Committee, which I would like to quote—inevitably—selectively from, but I am sure that he will be able to respond if he thinks that my quotations are too selective. It is about the choice of words. The letter uses the words, “We interpret”, which is what the Government have done over the decades of our membership of the European Union, thinking that something might happen when they sign up to it, only to discover that the European Court of Justice thinks otherwise. “We interpret” is not in any sense a guarantee of what would happen. The letter continues to use the words, “The UK could”, not “the UK will be able to”. It is that weak wording that puts us at risk on immigration. The Minister, with all his heavy responsibilities, knows what a great problem that is for our country, how we need to have secure borders and how we need to use the tools at hand to protect the nation from illegal immigration. To give them up, or give them away temporarily, thinking that Europe might allow us, a bit later, if it is feeling nice about it, to protect our own borders, is pretty scandalous. 

It is always gratifying that when we are debating Europe in this room we do so under a picture of Alfred inciting the Saxons to prevent the landing of the Danes. I urge the Minister to model himself on King Alfred in that splendid picture, with sword in hand, prodding away the invading hordes coming over from the continent, and not on Ethelred the Unready. 

The Chair:  I thank the hon. Gentleman for his contribution. Mr Michael Connarty, I am looking to call the Minister shortly. 

9.55 am 

Michael Connarty:  I always admire the erudite way in which the hon. Member for North East Somerset makes his point, but it is interesting that he should refer to a painting involving the Danes when in fact, at the moment, Denmark is the last country to refuse to sign the directive on human trafficking on which we have been campaigning for some time. The Danes are now probably the most reluctant Europeans because of personal internal politics in their country, although they were, in fact, very pro-European when receiving substantial largesse from the common agricultural policy, which helped them greatly. They received massive concessions on the common fisheries policy. In fact, they were allowed to do things that they would not be allowed to do under the regulations by having derogations on all sorts of things. It is interesting that the Danes should be used as a point of reference. 

There is a parallel with the directive on human trafficking. I commend the Minister for sending to the Committee details of the latest position whereby the Government will opt in, and we will be the second last country in Europe to do so. Let us consider what is reported regularly: children travelling unaccompanied in and around Europe, and ending up in this country. A report published by the Commissioner for Children and Young People in Scotland last week identified 80 children who had been trafficked into Scotland. 

The Chair:  Can the hon. Gentleman direct his comments to the motion on the Order Paper? 

Michael Connarty:  My comments are directed entirely at the proposal. We have before us a two-part proposal from the Government, one of which is to take into account the criteria that they will use when making their opt-in decision. We are talking about a system affecting anyone who is travelling throughout Europe, not just for terrorist reasons—not just in and out Europe. As the hon. Member for North East Somerset said, someone could travel to Greece from Turkey and then to other countries. We are interested in travel from Greece to other countries within the European Union as much as cross-border travel from Turkey into the European Union. 

I do not want to draw attention to the issues relating to terrorism, which have been stressed, but to the massive trafficking problem throughout Europe. It is the second biggest way in the world of making money for organised criminal gangs, after drugs. The Government are right to identify in their correspondence with the European Scrutiny Committee such important criteria and to lay open for discussion today the fact that they want to do the right thing by having intra-European data held as well as extra-European data. 

The document states that we want to endorse the Government’s aim of working with other member states. I am a member of a committee on the West Lothian question, and I apologise as I missed most of what the hon. Member for North East Somerset said. However, I know that he urged the Government to continue to work with other countries. Sadly, the idea of having 26 bilateral arrangements does not attract me because the complexity of the administration would be flawed. 

The Minister explained where we hold the information, and who analyses it under the system. However, who would have access elsewhere in the European Union? Would individual countries have access to all the information? Would it be held at a central point? Would it be accessible through a centralised monitored and controlled system? Where would it be stored? How would it be transmitted? Would it be transmitted in digital form? Would it be hackable? Would it be accessible to people who want to use that information for commercial purposes, as well as for the promotion of criminality or terrorism? 

There are many other questions to be answered that are not listed in the Government’s criteria. I hope one of those criteria is that the information must be secured in a central point, by a secure method, and transmitted only in a deeply and solidly encrypted system, which could not be accessed by other outside persons. Quite frankly, that means that it would have to be done on an EU basis, and I do not think we could get a system in 26 countries that would match the systems we have for data held within the UK. Having said that, I hope that the Government will be urged to get the best arrangement they can, because although the Minister said that it all fell on a technicality in the Lisbon treaty, I also know that there was massive controversy about the concept in the debates in the European Parliament, where civil liberties and the rights of the citizen are often held in higher regard than in countries that feel under pressure because of immigration or the threat of terrorism. We must get the best deal that we can to start the system working across the EU. 

I hope that the Minister gets all his wishes granted, and the Government obtain all the additional criteria relating to access and use of information on intra-European flights. However, I think that we are on the road to better co-operation in getting this directive through. I know that the European Scrutiny Committee still has a number of questions about the substance, about which it is in correspondence with the Minister. I hope that the Government will be minded to opt in to any new system, however it is structured, rather than being left out, and that we do not end up being left behind, as the UK can be and always was on a directive such as human trafficking. 

10.2 am 

Damian Green:  May I thank the Committee for a hugely wide-ranging and informative debate? I am grateful to the hon. Member for Birmingham, Ladywood for her support for our general approach. She is right to seek assurance about the need for clarity. In common with the Government, everyone on the Committee is aware that there are problems with the current draft. That is why we tabled an amendment to it. We will continue to press that amendment in the negotiations. 

The hon. Lady also asked about e-Borders, and I am happy to reassure her that, as we set out in the coalition agreement, we are fully committed to that and to the objective of achieving a PNR directive that supports the effective operation of the e-Borders programme, because that is a great prize for which we are searching.  

As for the more general points raised, our stance is that all EU proposals will be assessed case by case, and the Government put the national interest at the heart of

our assessment of that. The Government consider each new measure in this area on the grounds of security, civil liberties, the integrity of the UK common law system and the control of immigration. Any proposal from the Commission needs to be studied carefully in respect of those criteria. 

It may surprise my hon. Friend the Member for North East Somerset to know that I completely agreed with one part of his analysis where he said that the Commission is not taking internal borders seriously enough by saying that there are flights within the EU and that there are international flights. I agree with him that that betrays a cast of mind that believes that Europe is a country and the rest of the world is full of other countries. The Government do not agree with the Commission on that, and that is precisely why we are so insistent that flights across borders between EU countries are as important to include in the directive as flights between Britain and the USA. We are at one on that. 

Jacob Rees-Mogg:  I wonder whether I can tempt the Minister to set a red line on that basis. 

Damian Green:  My hon. Friend is determined to make me reveal our negotiating position in public and I am equally—if not more—determined not to do so. If he will excuse me, I shall refuse to go down that route at the moment. His other point was that the document is a Sir Humphreyesque piece of bureaucratic convenience. That is simply not true; there is an urgent practical need to have this type of proper agreement. 

I very much take the view of the hon. Member for Linlithgow and East Falkirk on the idea of having 26 bilateral agreements, which might well all be slightly different. With them, it would be less easy to ensure that we had the appropriate levels of data protection and all the other civil liberties aspects that we value. If we can achieve a successful directive, we will have done more for both civil liberties and security than we would do with those bilateral agreements. In the current negotiations, Canada, the US and Australia recognise that they need EU agreement. Without the EU agreement, we would be dependent on the domestic legislation of other EU member states for carriers based in those countries. In practice, that would be much less satisfactory. 

My hon. Friend the Member for North East Somerset mentioned profiling. One should draw a distinction between indiscriminate mass profiling and what we actually do in this country, which is intelligence-based targeting of individuals against patterns of behaviour. Particularly for civil liberties—there is nothing between us there, as we both care passionately about them—the use of such intelligence for what is loosely termed profiling is entirely okay. The sort of mass profiling that recognises that someone is travelling on their own or is of a particular ethnic or religious origin has always struck me as intrusive, and it leads to less effective law enforcement because it alienates sections of the population from law enforcement activity. In the long term, all law enforcement activity is better if it is based on the consent of the people whom the law is designed to protect. 

The hon. Member for Linlithgow and East Falkirk criticised the Danes for not opting in to the trafficking directive. Of course, the terms of their opt-out means

that they cannot opt in to it; they have a complete opt-out from any justice and home affairs activity. Frankly, that is where our system is better: the fact that the British Government can choose whether to opt in gives us a significant degree of protection against directives that we think are actively unhelpful to the national interest, but it allows us to opt in—as the Government recommend that we do on the trafficking directive—which is a flexibility the Danes do not have. I should point out, and this is directly relevant to the debate, that we use the PNR information that we already collect specifically to combat human trafficking, which is an extremely important area. 

The hon. Gentleman also asked about the practicalities of the data exchange. I am happy to assure him and other hon. Members that there will not be any sort of European data centre for personal information. Such a thing will not be set up, and we would be very uneasy if it was. Each country must establish its own passenger information unit to gather the PNR from flights into the country. There is permission for the data to be shared between member states where the criteria in the directive are met, and those data would be sent electronically by carriers to the member states using a push method of data transmission. I hope the hon. Gentleman is reassured by that. 

We have not yet taken the final decision on whether we should opt in to the directive from the outset. Obviously, we will reflect carefully on the points made today. Ministers will attend the Justice and Home Affairs Council in April to express the Government’s view. Following that council, we will reflect further and subsequently make a decision on whether we should opt in to the directive. As soon as we have made that decision, we will communicate it to Parliament in an oral ministerial statement, so that there can be proper parliamentary scrutiny of it. 

I end with a thought about King Alfred, who has suddenly become topical in this debate. My hon. Friend the Member for North East Somerset is right to point to an era in which European countries fought wars against each other and people had to stand on the shores of Britain attempting to fight other European countries. I delight in the fact that, if we have a dispute today with the Danes, we have a friendly discussion with them within European institutions, and those disputes are settled peacefully and amicably between two friendly peoples whose countries are run by democratic Governments. That seems to me to be a significant step forward in European history. 

Question put and agreed to.  

10.11 am 

Committee rose.