Third Report of Session 2013-14 - European Scrutiny Committee Contents


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

Legal base(a) Article 16(2) and 114(1)TFEU; co-decision; QMV

(b) Article 16(2) TFEU; co-decision; QMV

DepartmentJustice
Basis of considerationMinister's letter of 2 May 2013
Previous Committee ReportsHC 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)
Discussion in CouncilDocument (a) 6-7 June 2013; document (b) not known
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested.

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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