15 Data Protection in the EU
| (a)
(33649)
5853/12
+ ADDs 1-2
COM(12) 11
(b)
(33646)
5833/12
+ ADDs 1-2
COM(12) 10
|
Draft Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)
Draft Directive on the Protection of Individuals with regard to the Processing of Personal Data by Competent Authorities for the purposes of Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal Penalties, and the Free Movement of such Data
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| Legal base | (a) Article 16(2) and 114(1)TFEU; co-decision; QMV
(b) Article 16(2) TFEU; co-decision; QMV
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| Department | Justice
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| Basis of consideration | Minister's letter of 2 May 2013
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| Previous Committee Reports | HC 428-liv (2010-12), chapters 7 and 8 (14 March 2012), HC 86-viii (2012-13) chapter 5 (11 July 2012), HC 86-xxvi (2012-13) chapter 11 (9 January 2013), HC 86-xxxi (2012-13) chapter 7 (6 February 2013)
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| Discussion in Council | Document (a) 6-7 June 2013; document (b) not known
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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 scrutiny history
15.1 We have set out details of the two proposals and their
overall scrutiny history in our previous Reports.[66]
Both proposals have been kept under scrutiny since we first reported
in March 2012.
15.2 In our most recent Report in February,[67]
we considered the Government's response to questions we posed
following the publication in November 2012 of its Impact Assessment
and an Opinion of the Justice Committee (which we had requested).
Those questions were aimed at ensuring that the Government's approach
to negotiations on the proposals would be appropriately informed
by both those documents.
15.3 As part of that response the Minister of
State at the Ministry of Justice (Lord McNally) confirmed that
it was the Irish Presidency's intention to aim for a timetable
of general political agreement on the main aspects of the proposals
by July 2013 with adoption planned by June 2014.
Minister's Letter of 2 May 2013
15.4 The Minister now updates the Committee on
that proposed timetable and on the UK's view on the progress of
the negotiations. He says that the negotiations have focussed
primarily on the draft Regulation. These have progressed quickly
under the Irish Presidency. The Council working group completed
a first read-through of the proposal at the end of January and
since then the Council has been considering proposed redrafts
and "broader thematic issues". He informs us that the
Presidency intends to seek a partial general approach on the first
four chapters of the Regulation at the JHA Council on 6-7 June.
He explains that these chapters cover key aspects of the proposed
Regulation including the principles of processing, the rights
of the data subject and the obligations on the data controller.
15.5 Commenting further, the Minister says that
the UK and other Member States are opposed to agreeing a partial
general approach on the draft Regulation in June. He does not
think the text in question is ready to be agreed and says that
"the quality of the whole instrument is vital". The
Presidency has conceded that the agreement should not be forced
in the Council for "political purposes" and the Minister
agrees, saying that rushed negotiations:
"risk a highly prescriptive instrument that
could damage business growth and employment prospects and which
could leave the EU uncompetitive in the global digital economy
for years to come."
15.6 Turning to the draft Directive, the Minister
says that it is still being negotiated "article by article"
and the Presidency is not expected to seek agreement on any part
of the text by the end of its Presidency in June.
15.7 Both proposals are also due to be voted
on in June in the Civil Liberties, Justice and Home Affairs Committee
of the European Parliament.
15.8 The Minister also responds to two points
raised with him recently by the House of Lords' European Union
Committee. Firstly, an article published in early April in The
Guardian[68] on the
"Right to be Forgotten" (included in the proposed Regulation)[69]
inaccurately reported that the Government would opt out of this
provision. The Minister corrects this, saying that although no
opt-in applies to the proposed Regulation, he is, nevertheless,
opposed to the particular provision, as:
- it raises false expectations
for data subjects since it is not technically possible to erase
all of their data on the internet; and
- there is a need to clarify what is expected of
a controller in the requirement to notify third parties of a data
subject's request for deletion.
15.9 Secondly, the Minister says that the Ministry
of Justice will continue to work with the Home Office to ensure
that any future legislation on communications data[70]
does not conflict with the EU data protection framework being
negotiated.
Conclusion
15.10 We are grateful to the
Minister for updating us on progress in the negotiation of both
proposals. We note that recent progress on the draft Regulation
has been brisk, with:
i) "redrafts" of the
proposal being considered by the Council; and
ii) the Presidency pressing
for agreement of a partial general approach in JHA Council on
6-7 June.
15.11 In relation to (i), we
ask the Minister to consider whether the latest redraft is sufficiently
different to the original proposal to warrant it being deposited
with us for fresh scrutiny.
15.12 In respect of (ii), we
share the Minister's concern that there should be no
premature agreement of a partial general approach in June on the
Regulation which would jeopardise the quality and nature of the
overall instrument. We would put the case even more strongly.
Given the overlap between the proposed Regulation and Directive,
agreement should be based on the coherence of the overall proposed
package of measures.
15.13 In addition, we have objected in principle
to the use of the partial general approach as a negotiating tactic
in the past, on the grounds that it is nearly always artificial
to close negotiations on one section of a proposal in the absence
of agreement on the remaining sections; it also makes effective
scrutiny harder.
15.14 We therefore request that the Minister
let us know the outcome of the JHA Council meeting in June as
soon as possible thereafter. The letter should also address whether,
and to what extent, the Government has been successful in its
opposition to the "Right to be Forgotten" provision,
which, presumably, would be included in the proposed partial general
approach as a Chapter 3 measure.
15.15 In the meantime, both
proposals remain under scrutiny.
66 See headnote. Back
67
See headnote; HC 86-xxxi (2012-13 ) chapter 7 (6 February 2013). Back
68
http://www.guardian.co.uk/technology/2013/apr/04/britain-opt-out-right-to-be-forgotten-law. Back
69
Article 17 of the Draft Regulation on the protection of individuals
with regard to the processing of personal data and on the free
movement of such data (General Data Protection Regulation), COM(12)
11, document (a) in the headnote. Back
70
Referred to in the Queen's Speech as follows:
"In relation to the problem of
matching internet protocol addresses, my Government will bring
forward proposals to enable the protection of the public and the
investigation of crime in cyberspace": http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/130508-0001.htm#13050834000162.
The Communications Data Bill of the previous session was not
carried over. Back
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