6 Use of Passenger Name Records for law
enforcement purposes
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6007/11
COM(11) 32
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+ ADD 2
| Draft Directive on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime
Commission staff working paper: Impact Assessment
Commission staff working paper: Summary of Impact Assessment
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| Legal base | Articles 82(1)(d) and 87(2)(a) TFEU; co-decision; QMV
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| Document originated | 2 February 2011
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| Deposited in Parliament | 4 February 2011
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| Department | Home Office
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| Basis of consideration | Minister's letter of 23 March 2011
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| Previous Committee Report | HC 428-xix (2010-11), chapter 1 (9 March 2011)
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
6.1 At our meeting on 9 March,[27]
we considered the Commission's proposal for a draft Directive
which would establish harmonised rules on the collection, transmission
and use of Passenger Name Record (PNR) data to help combat terrorism
and other serious crime. PNR data is the term used to describe
passenger information collected by air carriers which is held
in their reservation and departure control systems. It includes
personal information, such as name, contact details and means
of payment used, as well as travel dates and itinerary, when and
where the flight was booked, the seat number and baggage information.
6.2 The draft Directive would require air carriers
flying into and out of (but not between) EU Member States to transfer
the PNR data they have collected to a Passenger Information Unit
in the Member State of arrival or departure. The data would be
processed and assessed with a view to identifying individuals
who may be involved in terrorism or serious transnational crime.
The Commission believes that the lack of common EU rules creates
a risk of fragmentation if, as seems likely, an increasing number
of EU Member States adopt their own national measures which may
diverge on such matters as the scope and purpose of the PNR system,
the length of time for retaining PNR data, the modes of transport
covered and the standards of data protection and security. These
differences, the Commission suggests, are likely to result in
"security gaps, increased costs and legal uncertainty for
air carriers and passengers alike."[28]
6.3 The Government is a keen advocate of EU-wide
rules on PNR but would like the draft Directive to go further.
The Minister of State for Immigration (Damian Green) told us in
his Explanatory Memorandum of 16 February that extending the scope
of the draft Directive to include the collection and processing
of PNR data for flights within the EU (intra-EU flights) was "vital
to improving security and fighting crime within the EU and beyond."[29]
He noted that the draft Directive was subject to the UK's opt-in
and that the Government had until 2 May to decide whether or not
to opt in. He set out the factors which the Government would take
into account in reaching its decision. These included an assessment
of the likelihood of securing amendments to the draft Directive
during negotiations which would:
- extend the scope of the Directive
to include intra-EU flights;
- allow the processing of PNR data for all terrorist
or serious criminal offences, not just those with a transnational
dimension;
- extend the period during which PNR data could
be retained; and
- allow the use of sensitive data (that is, data
revealing an individual's race or ethnic origin, religious of
philosophical belief, political opinion, trade union membership,
health or sexual life) in exceptional circumstances.
6.4 We noted that the draft Directive would interfere
with individuals' right to privacy and to protection of their
personal data and that the issue, therefore, was whether such
interference was justified in light of the objective of the proposal
to enhance internal security within the European Union. We asked
for the Minister's views on a number of issues, including:
- whether he considered that
the blanket obligation which the draft Directive would impose
on air carriers to collect and transmit PNR data on all international
flights to and from EU Member States was necessary and proportionate;
- whether the UK's own PNR system — eBorders
— imposed a similar obligation;
- whether the Government, by advocating the use
of PNR data regardless of any transnational dimension, risked
diminishing the justification for action at EU level while also
increasing the degree of encroachment on individuals' privacy;
- whether he had consulted the Information Commissioner
on the content of the draft Directive, as well as the Government's
proposed changes, and to inform us of his views; and
- what implications a decision to opt into the
draft Directive would have for the UK's eBorders system and, in
particular, whether the UK would be able to collect and use PNR
data for intra-EU flights flying into or out of the UK, and whether
the data could continue to be used for immigration purposes.[30]
6.5 We decided to hold the draft Directive under
scrutiny but also recommended a debate in European Committee B
on the Government's opt-in decision.
The Minister's letter of 23 March 2011
6.6 The Minister (Damian Green) tells us that the
draft Directive would require blanket coverage of all international
flights to and from the EU, but adds:
"[...] our experience from eBorders and also
from manually utilising PNR data over a number of years has shown
that certain routes pose a higher risk than others. We advocate
that the Directive, rather than providing for blanket coverage
on extra-EU routes, should provide for operational flexibility
so that Member States only collect PNR on their highest risk routes,
be they intra- or extra-EU routes. This enhances the proportionality
of collecting PNR. The Government is actively lobbying other Member
States on this point."
6.7 The Minister says that the Government intends
to consult the Information Commissioner and will provide us with
details of his views.
6.8 The Minister explains why he believes that limiting
the processing of PNR data, in certain circumstances, to serious
crime which is transnational in nature may be unworkable:
"The draft Directive proposes that PNR can be
used for watchlisting and post-incident investigation of serious
crime (be it within a country or cross-border in nature) (art
4(b) and 4(c)). It also permits the use of this data to allow
real time risk assessment and trend analysis of serious transnational
crime (but not for purely domestic offences, such as rape or a
'crime passionel' murder) (art 4(a) and 4(d)). The Commission's
rationale for drawing such a distinction is that real time assessment
and trend analysis is only really of use for cross-border crimes,
such as smuggling or people trafficking, where Governments are
looking to screen passengers crossing the border to identify criminal
behaviour. Conversely, the Commission takes the view that this
is not useful in the investigation of a particular, wholly-domestic
offence. I think that this fine distinction is likely to be unworkable
in practice, and will lead to confusion. For example, a domestic
murder perpetrated by an organised crime group with international
links may have a strong cross-border dimension and there may be
circumstances where the investigation may require real time risk
assessment or trend analysis."
6.9 As regards the implications that a decision to
opt into the draft Directive would have for the UK's ability to
collect and use PNR data for intra-EU flights and for immigration
purposes, the Minister refers to Recital 28 of the draft Directive,
and adds:
"While this recital clearly envisages that collecting
data on flights internal to the EU is possible under EU law, we
are seeking to amend the Directive so that it provides a legal
basis for compelling carriers to provide intra-EU PNR according
to the planned risk-based rollout of eBorders. This would ensure
that the collection of this PNR data is both effective and enforceable.
"If the UK opted into the Directive as drafted,
then it can process PNR data for immigration purposes where these
were caught by the definitions of terrorism, transnational or
serious crime in Articles 2(g), (h) and (i) of the Directive.
"This would mean that immigration offences such
as people trafficking would be caught as these carry sentences
in excess of three years, but that immigration offences such as
illegal entry and overstaying would not. We interpret Articles
5(4) and (5) as meaning that where an offence which is not caught
by a definition in the Directive is uncovered whilst data is processed
for an offence which is caught, enforcement action may still be
taken. In addition, the UK could also rely on the reference in
recital 28 to 'purposes other than those specified in the Directive'
to collect PNR for immigration purposes but, as with the position
on intra-EU PNR, this recital does not provide a clear legal base
for compelling the collection of PNR data for these purposes which
would be enforceable."
6.10 The Minister concludes by telling us that he
will keep the Committee informed of progress made during negotiations.
Conclusion
6.11 We thank the Minister for his response. As
indicated in our earlier Report on the subject, we think that
balancing the public interest in preventing and detecting terrorism
and other serious crime, on the one hand, while avoiding any unjustified
and disproportionate encroachment on the privacy of individuals,
on the other, will be the key issue in further negotiations. We
therefore look forward to receiving details of the Information
Commissioner's views as soon as possible. We also ask the Minister
to inform us as soon as the Government has decided whether it
intends to opt in, and to keep us updated on the progress of negotiations.
In the meantime, the draft Directive remains under scrutiny.
27 Seeheadnote. Back
28
See p. 4 of the Commission's explanatory memorandum accompanying
the draft Directive. Back
29
See para 24 of the Minister's Explanatory Memorandum. Back
30
We referred specifically to recital 28 of the draft Directive
which provides: "this Directive does not affect the possibility
for Member States to provide, under their domestic law, for a
system of collection and handling of PNR data for purposes other
than those specified in this Directive, or from transportation
providers other than those specified in the Directive, regarding
internal flights subject to compliance with relevant data protection
provisions, provided that such domestic law respects the Union
acquis." Back
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