European Scrutiny Committee - Data Protection - Minutes of EvidenceHC 528-i

Back to Report

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

European Scrutiny Committee

data protection directive

Wednesday 11 July 2012

MR Crispin Blunt MP

Evidence heard in Public Questions 1 - 38

Oral Evidence

Taken before the European Scrutiny Committee

on Wednesday 11 July 2012

Members present:

Mr William Cash (Chair)

Mr James Clappison

Michael Connarty

Nia Griffith

Kelvin Hopkins

Chris Kelly

Stephen Phillips

Jacob Rees-Mogg

________________

Examination of Witness

Witness: Mr Crispin Blunt MP, Parliamentary Under-Secretary, Ministry of Justice, gave evidence.

Q1 Chair: Minister, thank you for agreeing to give evidence to us on the second time of asking. I make the point. We will ask you questions on the lapse in the enhanced scrutiny procedures on the draft Directive on data processing in the area of police and justice cooperation, on which you represented the Government in the debate on the Floor of the House on 24 April. We will then ask you a limited number of policy questions on the proposal. We are not dwelling at length on this because we have asked the Justice Committee for an opinion.

Let me say at the outset: it is deeply regrettable that the first Lidington debate took place on this proposal with the barest minimum of notice given to this Committee or to the House. We are not pleased. Lidington debates form part of a package of measures that are intended to "significantly strengthen Parliament’s oversight of EU Justice and Home Affairs matters and make the Government more accountable for the decisions it makes in the EU". As you well know, these words are taken from the Minister for Europe’s written ministerial statement to the House on 20 January last year.

We have been offered two Lidington debates so far, and the arrangements for both have fallen far short of the spirit in which we understood the Lidington commitments to have been made. A mere 24 or 48 hours’ notice of the Government’s recommended approach is a totally inadequate basis for a debate that is meant to influence the Government’s decision. This is not in the spirit in which it was intended. The Government should undertake in future to inform the Committee of its recommended approach in time for the Committee to publish a report the week before the debate. In this way, we could ensure that a more meaningful and betterattended debate takes place. A day’s notice is also an inadequate basis for ensuring full accountability to Parliament for optin decisions, which attract "particularly strong Parliamentary interest", which is the trigger for a Lidington debate according to the Minister for Europe’s written ministerial statement.

I shall now move on to my question. The Government gave as a reason for this debacle that the categorisation of this proposal as a "Schengenbuilding measure" was legally "complex". We cannot see why. Three of its Recitals-76, 77 and 78-explicitly state that it is exactly such a measure. In addition, the Framework Decision that it replaces is stated to be a Schengen building measure for the UK. This is in Recital 43. Where does the legal complexity lie? Will you please answer?

Mr Blunt: Mr Cash, thank you. Given your strictures at the beginning, which I fully accept, I wonder if I could answer those, and then come on to the question of the Schengen complexity. I hope I can begin this by way of getting some credit for an early guilty plea in response to the statement you made. Let me start by apologising to the Committee for two things: first of all, that in February the Government’s explanatory memoranda did not make mention of the Schengen Protocol or the possibility of a debate on the possibility of an optout; secondly, there were problems with the timing of the debate, which, as you have made clear, caused serious inconvenience. I hope it will help the Committee if I explain the background to both those issues.

Dealing first with the question of the explanatory memorandum, determining whether or not a proposed instrument builds upon the Schengen acquis is not always a simple procedure. As the Committee is aware, there were questions as to whether or not the Directive builds on the Schengen acquis. Mr Cash, if I may, I will then come back to your question that relates to that at the end, as far as the United Kingdom is concerned. The points you have just raised in your question you did mention in the debate, but I have been advised that the question is even more complex than the application of the recitals from the Framework Decision that the Directive proposes replacing, because regarding the Framework Decision that would be replaced by the Directive, the recitals you refer to in the Framework Decision do apply to the United Kingdom directly, but the recital to the Directive only applies for the nonEuropean Union member states. That is where there was an issue of complexity in terms of whether or not the Schengen acquis would apply. That is then before consideration of the interplay between the Justice and Home Affairs optin and of course the Schengen optout protocols. In the minds of the officials putting up the explanatory memorandum, within ten days of the publication of the proposal, as was recommitted to in the Lidington statement, those questions were still being considered and no conclusions had been reached, which was why they are not referenced in the explanatory memorandum. However, I am quite clear that in those circumstances the Department ought to have been much clearer with the Committee about the issues that were outstanding. Lessons have been learnt and future explanatory memoranda will be handled better.

Turning to the debate, I am only too well aware that honourable Members were unhappy about the handling and the scheduling of the debate, and the notice given to Parliament. My colleague, the Minister of State, Lord McNally has, as you know, written to both this Committee and to the equivalent Committee in the House of Lords. In those letters, we recognise that the Government reached its conclusions on this topic later in the process than was ideal. We also noted that we thought it right to take steps to ensure this House in particular had an opportunity to debate the question of a possible optout before the deadline of 14 May and we entirely accept the criticism that was levelled at the Government during the debate on 24 April that this was not handled as well as it should have been and, Mr Chairman, of course I accept the further strictures with which you opened this evidencetaking session.

As with our desire to learn the lessons for future explanatory memoranda, we are looking at ways of better handling what will always be a challenging process. My officials, together with Home Office and Foreign Office counterparts, have already commenced discussions with your Clerks and with the business managers about this. I know there is a potential code of practice that should be informed by our experience here and I note, Mr Cash, your suggestion about the timetable that would enable the Committee to make a report to the House before these debates, and I think that suggestion should inform those discussions. What I can say is that we intend in future to fix the date of debates of this kind much earlier, so that the whole timetable is clear from the start.

Just on the detail that is happening now, I would like to give the Committee an undertaking that the regulation is being considered today and tomorrow at a working group of member states and the Commission-the data protection and information exchange committee. Before the recess, we will update this Committee and Lord Boswell’s equivalent Committee on the proceedings there. I can inform you that this Directive is expected to be considered by that same Committee in September and again, of course, my officials will then give this Committee an update in the immediate wake of those discussions. I think, actually, in the course of that statement I have answered your point about the complexity of the Schengen issues and the interplay between the recitals in the Directive and the recitals in the Framework Decision that then led to that initial doubt about its classification.

Q2 Stephen Phillips: Minister, that is a very full explanation you have given for what amounts to what is I think, in the mind of this Committee, a serious mistake that appears to have taken place in relation to the explanatory memorandum. Let’s just assume that you are right and this is an area of complexity, although I have to say I cannot see it from my own part. Let’s just assume that is right. How came there to be no reference at all either to that complexity or indeed to the decision that had to be taken as to whether or not this was within the ambit of the Schengen acquis in the explanatory memorandum? How did that happen?

Mr Blunt: All I can do is apologise for the fact that, as I said in my opening statement, consideration of whether or not it was governed by the Schengen acquis had not concluded by the time that there was the obligation on the Government then to provide an explanatory memorandum following the publication of the Directive. It was a shortfall, for which I will happily continue to apologise, that the Committee was not then updated once the Government had come to a view.

Q3 Stephen Phillips: What happened happened, and you have given the apology. No doubt I can speak for the entire Committee when I say it is gratefully accepted, but were you aware yourself, when the explanatory memorandum was published, that there existed this potential area of complexity that it did not discuss at all?

Mr Blunt: No, because as Mr Cash and, I am sure, the rest of you are aware, I am not the responsible Minister in this area. I do not own this policy; it is owned by my colleague, Lord McNally.

Q4 Stephen Phillips: Do you know if Lord McNally was aware of this lacuna in the explanatory memorandum and what appears to have been a deliberate decision, notwithstanding the obligation to discuss Schengen, that Schengen was not mentioned at all?

Mr Blunt: I cannot answer for him as to what he knew when, I am afraid.

Q5 Chair: Is Mr Lidington fully aware, and have you been in discussions with him and communicated to him, about the manner in which this has been going on in this particular instance? After all, he is the Minister responsible for the Lidington proposals. Have you actually referred this matter to him for further discussion?

Mr Blunt: I personally have not had a bilateral meeting with David Lidington on this. What I do know is that my officials, Foreign Office officials and Home Office officials have been considering this with a degree of urgency, given the unsatisfactory state of affairs that preceded the debate and surrounded the preparation of the explanatory memorandum and the acknowledged failure to properly inform the Committee of the ongoing assessments as to the classifications.

Q6 Chair: Could you make sure that he gets a copy of these proceedings when they are completed, and make certain that Mr Lidington is fully apprised of this because it is a question of principle as well as a matter of practice.

Mr Blunt: I would be happy to do so.

Q7 Kelvin Hopkins: Minister, you have already apologised for the short notice for the debate, but I thought I would explore that a little further because the ministerial statement in Parliament was laid on 15 March, and this draft Directive was listed as one of the JHA measures on which it would offer a Lidington debate, but the debate was not tabled until the business statement of 19 April shortly before Prorogation. Why was that?

Mr Blunt: Because the Government was coming to its view about whether or not to exercise the optout. I am precluded by the Ministerial Code from giving you chapter and verse on the internal considerations of the Government as to exactly how the decision was reached. What I can say is that the time at which it was reached was plainly unsatisfactory and did not give the House sufficient notice before the debate. Of course, our anxiety was to make sure that the House of Commons had actually had a chance to come to a view on the position of the Government, rather than simply a takenote debate, which would have been the alternative. That would not have given the House the opportunity to come to a view on the Government’s actual position.

As the Chairman made clear in the course of the debate, he identified the fact that we did have the issue of Prorogation, which telescoped the time in which a debate would be available before we had to meet the threemonth deadline to either exercise the optout or not under our Treaty obligations. And so, there was the issue about Parliamentary timetabling and our anxiety to make sure that the Commons had the opportunity to debate it, and, of course, the proper process of government, in what is a very complex area, for collective discussions to take place and for the Government to come to a view on the merits.

Q8 Kelvin Hopkins: You may not be permitted to say what discussions went on in private between Ministers, officials and so on, but was any communication made to perhaps the Chairman or the Committee, saying that there was a problem and there would be some delay because there was a difficulty in determining the Government’s position. If perhaps the Chairman or the Committee had been alerted in some way, this might have helped a little.

Mr Blunt: Frankly, I could not agree more. I have acknowledged the fact that the passage of information about the consideration of this and keeping the Committee up to speed right from the beginning with the explanatory memorandum was unsatisfactory; as far as I understand there was not any communication, and that was plainly a mistake.

Q9 Kelvin Hopkins: I have a very simple question: why was the Government only able to indicate its recommended approach in the form of a motion 24 hours before the debate. It was even shorter for the notice of the motion. Obviously we wanted to debate these things and put our view, but 24 hours for a motion, to consider arguments and prepare speeches, was very, very short notice indeed.

Mr Blunt: I agree with that. It was unsatisfactory, but it was as soon as could be done by the time the Government had come to a collective view.

Q10 Chair: The whole point is that the Committee simply did not have time to consider the Government’s policy. That is fundamental to the whole question of scrutiny and to its debating in the House of Commons.

Mr Blunt: I fully accept that. There were a number of circumstances that meant the Government’s consideration was not as expeditious as it should be. Some of those are related to the complexity of the issues engaged and some of those are then related to the telescoping of the available timetable, because of Prorogation and our need to actually have the debate before the threemonth deadline on 14 May. All of those factors were, to one degree or another, responsible for what was an unsatisfactory state of affairs.

Q11 Michael Connarty: I am very puzzled by what the Minister is trying to say here. Can I clarify one thing: were there any administrative omissions? Did this decision at any time lie fallow and unattended to in the processes or was it always under discussion? We need to know this. We need to know if in fact it is a ministerial and Government procedure that took so long, or whether it was something that went wrong within the Administration with the discussions. Did these discussions cease at some time and then by some alert suddenly started up again? In other words, did you cut time off your own procedures that resulted in us as a Committee and Parliament being denied its right timetable for such discussions and debates? We need to know this and I do not think this is a matter of Government secret.

Mr Blunt: I am precluded; you understand I have taken advice on this. I want to be as candid as I can be about the process, but I have discovered that I cannot be candid about the whole process. I can assure though the complexity of this meant that as far as the machinery of government is concerned and communications between the Departments, they were constantly under discussion. Some of the things being engaged here were both novel and complex.

Q12 Michael Connarty: You have repeated yourself a number of times. We have heard about the complexity a number of times. You said it was constantly under discussion. That is what you said in your statement. Where was it constantly under discussion? In your Department, within your team, or in another Department?

Mr Blunt: It would have engaged Government collectively.

Q13 Michael Connarty: In your team or elsewhere?

Mr Blunt: It obviously engages other Government Departments, not least the Foreign Office and the Home Office. I regret the fact that the Ministerial Code prevents me from explaining precisely what happens inside the interstices of Government consideration, obviously, in order to enable people to conduct discussions and everything else without threat of their colleagues then giving a commentary on it. That is about it. I regret I am prevented from answering your question precisely.

Q14 Michael Connarty: Do you take responsibility for the fact that it was quite clear that the sections that should have been looked at would have indicated that this was a Schengenrelated matter, but this was not realised to be so when the explanatory memorandum went out? Do you take responsibility for that?

Mr Blunt: To this Committee, of course I take responsibility. I and my Department are responsible.

Q15 Michael Connarty: So you signed off this explanatory memorandum without anyone indicating this?

Mr Blunt: As you understand, this area is not directly my junior ministerial responsibility. It belongs to Lord McNally reporting to the Secretary of State, so it is not my signature that appears on the impact assessment, for example; it is my colleague, Lord McNally’s. But this is a departmental matter, I am here in front of you as a departmental Minister and I have apologised for this. I am the House of Commons Minister in that sense and I will take responsibility for the fact that this was not satisfactory.

Q16 Jacob Rees-Mogg: You have said you are limited in the answers you can give us by the Ministerial Code. The Ministerial Code is there for the Prime Minister’s benefit. Will you ask the Prime Minister’s permission to give us a full explanation?

Mr Blunt: I have already sought guidance.

Q17 Jacob Rees-Mogg: So the Prime Minister is refusing to allow you to give us a full explanation.

Mr Blunt: I rather doubt it has personally been to the Prime Minister, Jacob, but the format will be that when it was pointed out to me that I was precluded from giving the detail of the explanation I might have liked to have given, I then took advice as to how far I could explore that.

Q18 Chair: Are you really saying, despite your complete apology and the statements you have made, "Yes, I appeared in the House of Commons on this. Yes, I’m appearing in front of this Committee on this. Yes, I’m accepting responsibility for this, but actually it’s not me really. It’s Lord McNally"? Is that what you’re saying?

Mr Blunt: No, I am not saying that. I am a Minister in the Department; I am trying to give you a proper, clear explanation, as far as I can, to give the Committee the candour that it properly deserves, as far as I am able to do so, and the explanation as to why the timetable was so unsatisfactory. I accept that it is unsatisfactory. We want to learn the lessons from this and, by fixing debates in future on a particular date, that ought to then ensure that everyone is focused on the need to give the Committee proper time then to come to its own view and to report to the House.

Q19 Jacob Rees-Mogg: So you are saying to us that there is somebody between you and the Prime Minister who has prohibited you from giving the full explanation to Parliament as to what went wrong.

Mr Blunt: Very properly, you are now going to invite me to defend the Ministerial Code, which I will do. The Ministerial Code exists for a purpose. On these particular requirements, it is obviously there to protect the collective discussion of Government Ministers and the collective discussions of Government Departments, and Government comes to a collective view. I am here as the responsible Commons Minister and I take responsibility, but it is idle to-

Q20 Jacob Rees-Mogg: But this is about failures in process, not failures of policy. It is where the process has failed that we would like you to tell us about, and you are being prohibited from telling us about the process failures.

Mr Blunt: I have said as much as I can here. My anxiety is to be as frank as possible.

Q21 Michael Connarty: You are interpreting the Ministerial Code. The Ministerial Code is there to protect the guilty. If there is a Minister who has made the mistake everyone therefore gathers round, uses the Ministerial Code to not say honestly who made the mistake or failed to carry out the process properly. That is what you seem to be saying.

Mr Blunt: As members of the Government we are collectively responsible for our successes and our failures. I am accepting responsibility and obviously in that sense I am responding collectively on behalf of the Government to say that this was not satisfactory. I accept that.

Q22 Chair: Have you been sufficiently in contact with Lord McNally on this for us to be able to assume that everything that you have uttered in this respect today is shared by him, so that, for practical purposes, we have his apology as well as yours?

Mr Blunt: Yes, you do, and obviously Lord McNally wrote to the Committee and said perhaps it would be appropriate if he came and gave evidence to you, as he was the responsible Minister. You have perfectly properly replied that I was the Minister who took the measure through the House of Commons, and there was a problem of process and I should be the one to come and account to you.

Q23 Kelvin Hopkins: We understand there are things you cannot say and cannot explain, but it seems to me that there are three possibilities: one possibility is that officials and Ministers were working feverishly from 15 March until 24 April on the issue and it was so complex it took every bit of energy to get through; another possibility is that it was left on someone’s desk and it was forgotten about until at the last minute somebody said, "Oh my gosh. We haven’t dealt with this. We’d better do it quickly".

Mr Blunt: Perhaps I can assure you that was not the case.

Q24 Kelvin Hopkins: Then the third possibility is that it was deliberately delayed because it was a bit of an uncomfortable issue and, I may say, the previous Government were past masters of leaving uncomfortable statements until the day of Prorogation. Of course, there would be less flak coming back because we would all be away on our hols. One of those three is obviously the explanation, but you cannot say which.

Mr Blunt: I can tell you of those three, it is the former. It is the first. The discussions required obviously engaged a significant number of people and the issues at stake are complex and difficult. The understanding of the precise application of both the Directive and the regulation that was published at the same time, and the interplay between Schengen and Title V of the Lisbon Treaty are not straightforward matters. I would suspect that, of all people in the House, Members of this Committee will be only too aware of that.

Mr Clappison: I think the Minister has actually covered the points I was going to raise. In the Minister’s own words, he has accepted the situation that has arisen was unsatisfactory, where we had four days’ notice of the debate and 24 hours’ notice of the Government’s policy. I think the Minister in fact used the word "unsatisfactory" to describe this. You have given us a very fulsome apology today and we note that you are not the Minister who is principally responsible for this-

Mr Blunt: I had led-

Q25 Mr Clappison: We appreciate that you have come along and given a very fulsome apology, but you would agree that the arrangements for this Lidington debate were unsatisfactory and that Parliament has been frustrated in discharging its duty.

Mr Blunt: So also was the House of Lords. I understand there were then discussions between Ministry of Justice officials and the Clerks of your sister Committee in the House of Lords. I understand they were rather more content to have the debate after 14 May, faced with a telescoping of available times because of the need for the Government to come to a view on 14 May. Our anxiety was to make sure that the House of Commons actually had that opportunity to debate this before Prorogation and, of course, had Prorogation not been happening then of course there would have been proper time for the debate to happen in good order, in the way that it should have done.

Mr Clappison: We stand up for the House of Commons, but on this day of all days we must not lose sight of the good job that the House of Lords does.

Chair: And that sometimes members of the House of Lords can get it wrong as well.

Q26 Nia Griffith: If we could look to the future now, Minister, we have had assurances in correspondence from the Government that things will be put right and that lessons will be learnt. Can you tell us how you would interpret "lessons will be learnt" and what you are doing in your Department to make sure that we do not have a similar situation again? Prorogation was there, but we have a gap in the autumn of four weeks; we come back for two weeks and we go off again for four weeks. Can we be certain that the procedures you are now putting in place will make sure that that is taken account of.

Mr Blunt: I would hope that fixing a date for these debates will achieve that, and that is the undertaking I have given to the Committee.

Q27 Nia Griffith: Do you have ways that you have actually changed the procedures in the Department? Are people alerting people sooner? Are there ways that you have made sure that this is going to work properly in the future?

Mr Blunt: Behind the undertaking to fix a date for the debate-in that sense there is then a backstop position to which everybody then has to work to make sure that this Committee has a satisfactory amount of time in order to consider the Government’s position and then make its own report to the House-there is also the issue of the discussion of the code of practice, which informs the discussion that is going on between my officials, Home Office officials and Foreign Office officials, who I know have been discussing with your Committee’s Clerks and the business managers the ways of minimising the likelihood of this recurring. I know those discussions are continuing; Mr Cash has made his own suggestion about how we might address these things and we have of course taken that on board.

Q28 Nia Griffith: A number of Members have raised the issue of actually needing to know about what the recommendation is in time to prepare for the debate. Can we have some assurance from you that we will have that in good time? We would like to have at least a week’s notice of whether the Government’s recommendation is for optin or optout, in order to allow proper discussion and proper preparation for debate. This is, of course, bearing in mind that we are back for two weeks, off for four weeks, and so forth. We have to programme it in within the Parliamentary sitting time.

Mr Blunt: I cannot give an absolute guarantee because I do not have complete control of the calendar of everything that happens. I can assure you, though, the desire to learn lessons and avoid a recurrence of this, and your need to take evidence on the process from me in this way, have been noted. What occurs to me, and it is a suggestion you have made, is that a week’s notice seems eminently sensible. I am quite sure that suggestion is going to inform the ongoing discussions between officials from the Ministry of Justice, other Government Departments, the business managers and the Clerks of this Committee to come forward with a code of practice that is acceptable to everyone and practical.

Q29 Nia Griffith: Quite clearly you are responsible for what happens in your part of your Department. Is there any co-ordination with other Departments across Government so that similar things are happening there? Obviously you mentioned the talks that you have been having, and if it is not working across all the Departments then obviously we are going to run into problems again.

Mr Blunt: Yes is the answer to that, of course, which is why I am aware it is not only this particular debate; the Confiscation Directive could have been improved upon, I understand, which is why this matter is getting urgent consideration to make sure we get to what I hope will be an agreed position about the procedure.

Chair: Before we move on to policy, could I just add that the European Scrutiny Committee is in the course of preparing for an inquiry into European scrutiny. Obviously, this will be part of the process because, having heard what you have said and the apology that you have given, but also some of the suggestions that you have made, which indicate the fact that things can be improved, that will all be part and parcel of our assessment of the process of European scrutiny in general, particularly having regard to the important points Nia Griffith has just made with respect to the whole question of interdepartmental consultation as well. We will look forward now to moving on to the question of policy.

Q30 Stephen Phillips: Obviously, Minister, you will be giving evidence to the Justice Select Committee, so we do not want to tread on their toes too much. Certainly, the thing I wanted to ask you is, as I understand the Government’s view, the proposed provisions relating to domestic process will not apply to the United Kingdom, because of Article 6(a) and Protocol 21 of the TFEU. Can I ask two things? Firstly, how confident are you and your officials that that interpretation is correct? Secondly, and more importantly, is that view shared by the institutions of the European Union, so that it is not capable of being challenged?

Mr Blunt: I can tell you, we believe our understanding to be shared by the Commission. In order to try and reinforce our belief and what we understand to be the Commission’s belief as to the correct interpretation of Article 6(a), we want to get that written on to the face of the Directive in the negotiations that are ongoing. That is really, then, to insure us against the possibility-the Council legal service has not indicated any position on this, but you will probably be aware there may be some history that they might take a different view and then of course it is down to the European Court of Justice, and they might take a different view. There is obviously a very small risk that if we did not get it written on to the face of the Directive, we could then find ourselves with different parts of European institutions, as you put it, attempting to apply it.

There is effectively a triple lock on this. First of all, we want to get the Article 6(a) position written into the Directive, and since we think the Commission agrees with us, we expect to achieve that through negotiation. There is then the whole issue of internal processing and the views of the other member states, and we know that we have a significant number of allies who do not want it to apply to internal processing, for a number of different reasons. I think we would anticipate that we could have those changes made there. Therefore, in terms of the cost-benefit analysis being applied to whether or not we should have opted out and had all of the costs that would have been associated with the optout, compared to what we think is a pretty small risk, in the end, once we have attempted to mitigate it, of the Council legal service and the European Court of Justice in due course coming to a different view, it is pretty narrow.

Q31 Stephen Phillips: Writing it onto the face of the Directive provides the United Kingdom with a castiron guarantee that the Government’s interpretation is correct. Is that right?

Mr Blunt: Yes-and I hesitate here because I am not a lawyer-because once it is on the face of the Directive that is what would be being justiciable by the European Court of Justice.

Q32 Stephen Phillips: What I am trying to get out of you, Minister, is an assurance that, assuming the Government succeeds in those negotiations-you are apparently confident that you will-then there would be no question at all of subsequent challenge in relation to internal process. You are providing this Committee with that guarantee; is that right?

Mr Blunt: You are the lawyer, Mr Phillips. Providing guarantees in the area of law is something I would embark on with some hesitation, but I am absolutely confident that if we achieved our negotiating objective of getting it written on to the face of the Directive, our position would then be legally fireproof in that sense from attempts to change that by the European Court of Justice. In addition to that, I know that a number of fellow member states are equally concerned about internal processing appearing subject to this Directive and will be joining with us to get it negotiated out.

Q33 Chair: Can you explain what the "right to be forgotten" is, why the Commission favours it and why the Government objects to it?

Mr Blunt: Of course, the right to be forgotten does not exist within the terms of the Directive. It is found only within the proposed regulation in Article 17. On the right in the regulation, the Government supports strong deletion rights for individuals where this is appropriate; however, we resist, as you said, a freestanding right to be forgotten and we have concerns about how it would work in practice-for example, with regard to the need to delete data and where it may have been copied online. The worst possible outcome here would be that data subjects overestimate the right to be forgotten by interpreting it literally, and they may give their personal data freely, confident that they can be erased at will, when in fact of course that would not be the case. The problems on the technicalities of implementing this provision, as well as it cost and its potential to infringe the right to freedom of expression, are therefore a concern.

However, it is important to note that derogations provided for in Article 17.3, which allow the controllers to refuse the requests in some circumstances, and much more generally in Article 21, where memberstate or Union law may lay down laws restricting the application of some measures, including the right to be forgotten. We will be looking at how we can best provide these derogations to ensure legitimate processing and freedom of expression are maintained. Obviously, if you look at Article 21, the proposed protections there are substantial.

Chair: I am glad that you have given it so careful consideration and that you have spelt out what is clearly the legal advice that you have received because, like you, we do not like it. As long as it is clear and understood and is something that can be dealt with by the Government, we will be extremely glad.

Q34 Michael Connarty: I see an absolute contradiction in some of the Government’s statements on its wish to pass laws to allow access to and intrusion into people’s use of the internet and other media, and the Government’s statement that, I understand, although they are opposed to this concept of the right to be forgotten, they reaffirm their commitment for individuals to delete their personal data "where this is appropriate". It would appear that the Government’s view is that if they think it is a security issue, whether it is or not, it is not appropriate at any time for people to have their data removed. We hold DNA on people for much longer than the human rights laws and conventions say we should, even on people who are innocent or wrongly accused. I just wonder how the Government defines "where it is appropriate". If people do not wish their data to be held then it should be deleted.

Mr Blunt: This administration has made some progress, not least around the holding of DNA of the innocent. There is a very careful balance that is going on here between protecting freedom and enhancing our national security and, obviously, individual security and the fight against crime. That is what informs all of the background to this of trying to get the balance of those two imperatives correct.

Q35 Michael Connarty: The "right to be forgotten" and "where it is appropriate" to have your data deleted-where does the Government draw the line? Is it going to be a casebycase basis? Do citizens have to apply individually? How is this going to operate? If you have the principle of the right to be forgotten then people, I would say, then have the automatic right to say, "I don’t wish you to hold this data on me that you have come across".

Mr Blunt: That is why we have concerns, frankly, about the practicalities of the right to be forgotten. If you turn to Article 21 of the regulation, you will then find that the restrictions to the right to be forgotten are frankly pretty substantial for the nation state. They obviously include there the issues of public security and the prevention, investigation, detection and prosecution of criminal offences. The balance that would sit upon any Administration when actually trying to make sure that you can deliver the security of your citizens whilst enhancing their freedom is obviously the factor that underpins the consideration of this.

Q36 Michael Connarty: If the UK gets its amendment that it is looking for, I am concerned about how the Government will make the citizens aware of exactly how these judgments and applications will be made. It does seem in the one case the assumption, should the Commission have its way, is that people could at any time ask for their data to be removed. If the UK has its way, how would the UK citizen know the rules: when they could apply for their data to be removed and what the criteria for the judgments would be?

Mr Blunt: Mr Connarty, I am pleased to say that is going to be a matter for Parliament. It is for member states to then decide, so it would be within the gift of Parliament. Obviously, once the negotiations on all these have been concluded and we actually have regulation and a Directive in place, then there will be the process of implementation and obviously making sure that our citizens are properly informed of the rights that they can exercise under the Directive and the regulation, and under our own domestic arrangements. That would then be appropriate; that would be part of the implementation.

Michael Connarty: That is a good answer.

Q37 Chair: Finally, Mr Blunt, like the Government, we are concerned by the proposed delegation of powers to the Commission to initiate new data protection principles. Do you believe that the UK will be successful in getting these provisions removed or amended?

Mr Blunt: In a word, yes, because I understand that to be the view of a very substantial number of other member states. I think in the regulation there are over 40 examples of the Commission proposing to take these delegated and implementing powers to themselves. I think there are at least three, if not four, in the Directive and I know that other member states share our concerns in this area. We would anticipate a proper analysis with member states that have the same view, with a view to significantly reducing these.

Q38 Chair: So in a nutshell you think the right to be forgotten could also be applied to these provisions?

Mr Blunt: I think we will have to wait and see how the negotiations go, but I am confident on this: the United Kingdom has rather more allies than we sometimes have in European negotiations. My understanding is we are reasonably confident of significantly improving the position, at the very least.

Chair: Thank you very much for coming. Thank you also for the very direct way in which you have apologised for the debacle. If you could transmit to Lord McNally our concerns and also take the matter up with Mr Lidington so we do not have a repeat of this and we can improve the scrutiny process as part of the general question of improvement of scrutiny as a whole, we would be very satisfied. Thank you very much.

Prepared 13th September 2012