7 Information management in the area
of freedom, security and justice
| (31838)
12579/10
COM(10) 385
| Commission Communication: Overview of information management in the area of freedom, security and justice
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| Legal base | —
|
| Document originated | 20 July 2010
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| Deposited in Parliament | 27 July 2010
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| Department | Home Office
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| Basis of consideration | Minister's letter of 13 October 2010
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| Previous Committee Report | HC 428-ii (2010-11), chapter 12 (15 September 2010)
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| To be discussed in Council | October 2010
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
7.1 The removal of internal border controls through the creation
of an EU internal market and the establishment of the Schengen
free movement area has been accompanied by a range of measures
to strengthen external border controls and enhance police, judicial
and customs co-operation to tackle cross-border crime within the
EU. Many of these measures depend on the cross-border exchange
of data.
7.2 Since 2001, growing awareness of the terrorist
threat within the EU has accelerated co-operation between national
law enforcement authorities. The Justice and Home Affairs Council
concluded in November 2009 that "effective and secure cross-border
exchange of information is a pre-condition to achieve the goals
of internal security in the European Union".[56]
7.3 A multiplicity of systems for the cross-border
exchange of information, however, carries risks in terms of personal
data protection, invasion of privacy, lack of coherence and duplication.
As a result, the Stockholm Programme, which the European Council
approved last December and which establishes the EU's priorities
in the area of freedom, security and justice[57]
for the period 2010-14, recognised "the need for coherence
and consolidation in developing information management and exchange"
systems and invited the Commission and Council to implement an
EU Information Management Strategy based on a strong data protection
regime.[58] The European
Council also invited the Commission to evaluate existing instruments
for the exchange of information with a view to determining whether
there was a need to develop a European Information Exchange Model.
The Commission Communication
7.4 The Communication provides, for the first time,
a comprehensive overview of EU instruments in the area of freedom,
security and justice which regulate the collection, storage and
exchange of personal data for law enforcement or migration purposes.
The Commission's analysis leads it to make a number of observations
about the features common to most EU information management systems
and to suggest a "core set of principles" which should
serve as a benchmark for evaluating existing systems and for considering
future policy proposals. The need to safeguard the right to privacy
and to ensure effective protection of personal data features prominently
in the core principles.
The Government's view
7.5 In his Explanatory Memorandum of 9 August, the
Minister for Immigration at the Home Office (Damian Green) welcomed
the Communication but noted that "information exchange is
not an end itself but a means of working towards providing greater
public good — in combating crime, in facilitating legitimate
travel, in doing business abroad, and in managing identity".
He emphasised the need for effective data protection and transparency
about the collection, retention and use of personal information
in order to "strike the correct balance between private and
public interests".[59]
7.6 The Minister indicated that the UK would be unlikely
to participate in a number of the new information management systems
foreseen in the Communication, but would continue to advocate
the introduction of a system for sharing Passenger Name Record
data within the EU. He considered the Commission's core set of
principles to be uncontentious but also provided a useful additional
list of factors which the Government would take into account when
evaluating existing EU information management systems or future
initiatives.
The Committee's view
7.7 The Committee also welcomed the Communication
and the Commission's elaboration of a set of core principles for
future policy development, noting in particular the emphasis placed
on the right to privacy and personal data protection as well as
respect for the principles of subsidiarity and proportionality.
The Committee invited further comment from the Minister on the
following issues:
- whether he considered that
existing EU instruments described in the Communication provided
an effective standard of data protection;
- what implications adverse Constitutional Court
rulings in Germany and Romania on the Data Retention Directive
might have for the retention of communications data in the UK;
- whether he agreed with the Commission that continued
piecemeal development of EU information systems could provide
adequate and effective data protection and privacy safeguards;
and
- whether he also agreed with the Commission's
assertion that EU solutions (such as the Commission's s-TESTA
or Europol's SIENA applications) for exchanging information provided
the best guarantee for data security.
The Minister's letter of 13 October
7.8 The Parliamentary Under Secretary of State for
Crime Prevention (James Brokenshire) says he believes that the
measures referred to in
the Communication generally provide an effective level of data
protection, but that there are disparities between them, for example,
as regards data security and retention, as well as some overlap
of functions. He adds:
"The Commission's plans for a new data protection
instrument are likely to provide the opportunity to ensure the
principles set out in the Communication can be embedded in the
legal framework where appropriate. We believe that this will also
be an opportunity to review the standards in the existing instruments
to consider whether they could be updated and improved."
7.9 The Minister notes that the German Constitutional
Court considered that the way in which Germany had transposed
the Data Retention Directive 2006/24/EC into national law was
unconstitutional, but adds that "the court also ruled that
there was sufficient latitude within the Directive to enable it
to be re-transposed in a way that was consistent with the German
Constitution." He says that, in the UK, communications data
is accessed through the Regulation of Investigatory Powers Act
2000 (RIPA) and that the Government is satisfied that "we
have the necessary structures in place to ensure that communications
data retained under the Directive is accessed in accordance with
the law and only when it is necessary and proportionate to do
so."
7.10 The Minister understands the Committee's concern
about the piecemeal development of EU information systems and
expresses the view that
"future developments in this field should take
place within an agreed strategic framework such as that being
implemented currently under the EU's Information Management Strategy.
This should help ensure a more consistent approach is taken towards
future developments. It should also ensure that appropriate data
protection is taken into account, that information exchange is
governed by principles of proportionality and necessity, and that
any proposed schemes are appropriate and cost effective."
7.11 On ensuring the security of data exchanged across
borders, the Minister explains that the Commission's s-TESTA is
the base network for the UK's connection to many EU information
sharing systems (including the second generation Schengen Information
System — SIS II — once it becomes operational). The
Government is continuing to discuss issues of security and accreditation
of S-TESTA with the Commission, "but in the meantime the
Cabinet Office has issued guidance to all relevant Government
Departments requiring them to conduct individual risk assessments
before using s-TESTA, taking account of issues such as the volume
and sensitivity of the data being exchanged" . The Minister
adds that the SIENA data communications network is not used as
an EU system platform outside of Europol, but that "the UK
would want to assess SIENA fully if it is presented as a platform
option for any reviewed system or new initiative".
Conclusion
7.12 We thank the Minister for his response. We
note that there is a possibility that the Commission will introduce
a new data protection instrument. We believe that this provides
the Government with an important opportunity to press for the
inclusion of clear and transparent standards of data protection
which adequately safeguard individuals' right to privacy.
7.13 We note that the Minister does not comment
on the judgment of the Romanian Constitutional Court which went
further than the German Court in ruling that the generic obligation
created by the EU Data Retention Directive[60]
to retain communications data for a minimum of six months was
unconstitutional because it violated rights protected by the European
Convention on Human Rights, notably the right to respect for private
and family life and correspondence, and the right to freedom of
expression. We should be grateful if the Minister would tell us
what, if any, implications that judgment is likely to have on
the legality of the EU data retention regime established by the
Directive. Meanwhile, the Communication remains under scrutiny.
56 Conclusions of the Justice and Home Affairs Council,
30 November 2009, Council document 16637/09. Back
57
The area of freedom, security and justice covers EU policies on
visas, asylum and immigration, judicial co-operation in civil
and criminal matters, and police co-operation. See Articles 67-89
in Title V of Part Three of the Treaty on the Functioning of the
European Union. Back
58
See the Stockholm Programme, paragraph 4.2.2, Council document
17024/09. Back
59
Minister's Explanatory Memorandum, paragraph 36. Back
60
Directive 2006/24/EC, OJ L 105, 13.4.2006, p.54. Back
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