41 Data Protection in the EU
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested; drawn to the attention of the Justice Committee.
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| Document details | (a) Proposal for a General Data Protection Regulation, (b) Proposal for a Police and Criminal Justice Data Protection Directive, (c) Commission Communication on EU-US data flows, (d) Commission Communication on the Safe Harbour
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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
(c) and (d) —
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| Department | Ministry of Justice
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| Document numbers | (a) (33649), 5853/12 + ADDs 1-2, COM(12) 11
(b) (33646), 5833/12 + ADDs 1-2, COM(12) 10
(c) (35608), 17067/13, COM(13) 846
(d) (35609), 17069/13, COM(13) 847
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Summary and Committee's conclusions
41.1 The Commission initially proposed the Data Protection package,
comprised of the General Data Protection Regulation (document
(a)) and the Police and Criminal Justice Data Protection Directive
(document (b)), in January 2012. This was to update the EU's 1995
data protection rules in line with technological developments
in the use of personal data and to strengthen online privacy rights,
increase consumer confidence, boost growth and address divergent
national implementation of the existing rules.
41.2 In the course of our predecessors' scrutiny,
they endorsed the opinion they received from the Justice Committee
that the proposal, in its original prescriptive form, would not
produce a proportionate, practicable, affordable or effective
system of data protection. They agreed with that Committee that
there needs to be a selective approach to harmonisation, embracing
the co-operation and co-ordination elements of the proposal but
leaving implementation of compliance issues to the Member States.
They also encouraged the Government to press the Commission to
review its own costs' estimates in the light of impact assessment
evidence from the UK and other Member States and to marshal their
support in the negotiations.
41.3 Since then, despite the failure of a partial
general approach (PGA) in June 2013 and the Snowden disclosures
concerning the surveillance of the communications of EU citizens
(to which documents (c) and (d) relate), four PGAs have been agreed.
The latest was at the 12-13 March JHA Council. The Government
opposed the first two PGAs "in principle" (on third
country transfers of data, extraterritoriality and on obligations
on data controllers when processing data). However, it departed
from this approach, without warning and without requesting a scrutiny
waiver, in supporting the third (on Chapter IX provisions—research
and freedom of speech). It has since acknowledged this amounted
to a scrutiny override.
41.4 At the March JHA Council on a PGA relating to
Chapter II (general principles) and Chapters VI and VII (the one-stop
shop mechanism), the UK abstained. We now report on the letter
of 18 March in which the previous Government sets out the outcome
of that Council, but which was not received in sufficient time
before dissolution for our predecessor Committee to consider.
41.5 We also report on the letter of 15 July of the
new Secretary of State for Justice (Michael Gove). This updates
the Committee on the outcome of the June JHA Council. This letter
was preceded by two Written Ministerial Statements on the same
topic: one from the Home Secretary (Mrs Theresa May)[ 335]
and the other from Parliamentary Under-Secretary of State for
Justice (Dominic Raab)[ 336].
The latter also informs the House of the scrutiny override which
occurred at that Council.
41.6 We note the update from the previous Government
on the outcome of the March JHA Council and thank the new Secretary
of State for Justice for his letter of 15 July updating us on
the outcome of the June JHA Council. We would appreciate early
receipt of updates in future to enable us to consider them more
fully.
41.7 We consider that the Minister's update on
the agreement of the General Approach is of a very general nature
and does not refer in any detail to the text of the General Approach.
We ask that the text be deposited with us and that, in his next
update on the progress of trilogues the Minister explain in detail,
with reference to that text, the nature of the "serious reservations"
that persist. We have in mind, in particular, concerns relating
to the Right to be Forgotten, the One-Stop Shop Mechanism and
the nature of the liability of data controllers and processors
and sanctions.
41.8 We understand that the Government was not
in a position to seek a scrutiny waiver for the June JHA Council
from the preceding Committee prior to dissolution and could not
do so nearer the time of the Council, before our Committee was
formed. But in this instance we question, given the seriousness
of the Government's concerns about the General Approach text whether
supporting it was the right approach, even if it represents the
lesser of two evils compared with the European Parliament's position.
We remain to be convinced that this unusual approach of supporting
an unacceptable text will lead to greater negotiating influence
over that text in trilogues than would follow from abstention
or opposition. We would not want to see such an approach emulated
more widely in Government. We therefore request that the Minister
provide us with evidence, as the trilogues progress, of the influence
that the UK has been able to exert through supporting the General
Approach.
41.9 We note that the Minister is silent on the
matter of document (b), the proposal for a Police
and Criminal Justice Data Protection Directive. We request an
update, in due course, on progress on that proposal under the
Luxembourg Presidency.
41.10 We also ask that the Minister update us
on the progress of negotiations of the "Safe Harbor"
Agreement (see documents (c) and (d)) which regulates the transfer
of data from EU citizens to US companies. We note that the European
Commissioner for Justice, Vìra
Jourová, had hoped negotiations would
conclude by 28 May 2015. Does the Minister anticipate that the
substance and timing of any negotiations will now need to take
account of:
i) the anticipated decision of the CJEU in
the case of Schrems (C-362/14 ) in which it is
being argued that the current "Safe Harbor" Agreement
violates Articles 7 and 8 of the EU Charter of Fundamental Rights
(right to private and family life and the protection of personal
data); and
ii) the replacement of the scheme for the
collection of metadata by US intelligence agencies, including
that of EU citizens transferred under Safe Harbor,
under Section 215 of the U.S. Patriot Act 2001 with corresponding
provisions of the new U.S. Freedom Act 2015?
41.11 Pending the Minister's response, we are
drawing this Report to the attention of the Justice Committee
and retaining all documents (a)-(d) under scrutiny.
Full
details of the documents: (a)
Draft Regulation on the protection of individuals with regard
to the processing of personal data and on the free movement of
such data: (33649), 5853/12 + ADDs 1-2, COM(12) 11; (b)
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: (33646), 5833/12 + ADDs 1-2, COM(12)
10; (c) Commission Communication: Rebuilding Trust in EU-US
Data Flows: (35608), 17067/13, COM(13) 846; (d) Commission
Communication on the Functioning of the Safe Harbour from the
perspective of EU Citizens and Companies Established in the EU:
(35609), 17069/13, COM(13) 847.
Background and previous scrutiny
41.12 The background to documents (a) and (b), a
detailed account of their provisions and the Government view of
them is provided principally in the previous Committee's Fifty-ninth
Report of 2010-12.[ 337]
The Twenty-sixth Report of 2012-13[ 338]
sets out our predecessors' summary and conclusions on the opinion
obtained from the Justice Committee. An account of the background
and contents of documents (c) and (d) and the Government view
of them was set out in the Thirty-sixth Report of 2013-14.[ 339]
Previous Minister's letter of 18 March 2015
41.13 In this letter, the previous Minister of State
for Justice and Civil Liberties (Simon Hughes) says that he writes
to provide an update on the outcome of the March JHA and to anticipate
the June JHA.
MARCH JHA COUNCIL
41.14 The former Minister says that the primary focus
of discussions was Chapter II (general principles) and Chapters
VI and VII (the one-stop shop mechanism).
41.15 Addressing Chapter II, he says:
"On Chapter II, a caveated partial general
approach was agreed at JHA Council albeit with some serious reservations
from a number of Member States that placed heavy conditions on
their willingness to compromise, including the ability to return
to the text if need be. The UK abstained in this vote on the basis
that the Government had not been given a scrutiny waiver from
either Committee."
41.16 Turning to Chapters VI and VII on the one-stop
shop mechanism, he reminds the preceding Committee that previously
the then Government had been able to marshal support from other
Member States to both a quantitative filter (a percentage of national
data protection authorities would have to agree to a referral
to the European Data Protection Board (EDPB) and a qualitative
filter (only reasoned concerns would trigger referral). But at
this JHA Council there was only support for a qualitative filter:
a data protection authority would have to make a 'relevant and
reasoned objection' before referral. He adds that the UK, supported
by Ireland and Poland, expressed disappointment at the lack of
the quantitative filter because it would lead to "an overly
complex arrangement that will slow things down and complicate
decision making". He hopes that an Irish proposal that the
one-stop shop be reviewed two years after implementation, although
not accepted at the meeting, might gain the future support of
Member States, "given our substantial reservations about
the current one-stop shop model".
JUNE JHA COUNCIL
41.17 He then anticipates the possibility of a General
Approach supported by the majority of Member States at the June
JHA Council, despite "growing concern that there remains
a lot of work to do on the text before such an agreement can take
place". However he adds:
"Overall, I feel as if the current Council
text is moving in the right direction. There is now a much more
proportionate and risk-based approach as compared to the original
Commission proposals and consequently I believe that the burdens
will be less onerous than we originally feared. In addition, this
Council text is much more balanced in its approach than the text
which was agreed by the European Parliament last year, and it
will remain a negotiating priority for the UK to preserve that
balance in the text that goes forward for trilogue discussions
later in the year. However, there still remains much to be worked
upon in the coming weeks, including sections on the 'right to
be forgotten' and on sanctions in addition to the possibility
of returning to some of the other areas on which a partial general
approach has been achieved in that past few months.
"The UK, in common with most Member States
believes that much more work needs to be done on the text. We
are mindful also of the fact that the dossier remains under scrutiny
in both Houses. At this time, because of the amount of outstanding
work, it is not clear what the text that we will be asked to agree
will look like and I would not wish to speculate. I am therefore
not in a position to seek either a waiver or to lift the file
from scrutiny, but I have asked my officials to keep your clerk
updated during the election and post-election period. I will of
course update your successor committee on progress of the file
as soon as it is formed."
Minister's letter of 15 July 2015
41.18 The new Lord Chancellor and Secretary of State
for Justice (Michael Gove) writes to update us on the outcome
of the 15 June JHA Council. He explains that Lord Faulks, attending
on his behalf, voted in favour of the General Approach which he
recognises to be a breach of the scrutiny reserve resolution,
occurring before our new Committee had been formed. In addition
the Minister acknowledges that this was done despite the Government's
"serious reservations". In this context, the Minister
provides detailed reasons for the Government's actions which we
reproduce in full:
"Voting in favour of the General Approach,
despite our serious reservations, will seek to maximise our influence
during trilogue negotiations with the European Parliament. That
means a greater chance of clarifying the exclusion of national
security from the scope of this Regulation; continuing to resist
attempts by the European Parliament to insert clauses that could
damage intelligence and law enforcement co-operation with the
US; minimise the burden on businesses; and ensuring the text does
not damage growth or freedom of expression. Given this override
of scrutiny, and in line with the Cabinet Office guidance, a statement
will be issued to the House.
"There have been some improvements to the
Council text in terms of reducing the overall level of burden
on business, although there are still areas of concern. I am also
concerned about 'the right to be forgotten' where, even though
the text purports to give assurances that freedom of expression
is not restricted, the UK has strong reservations that, in practice,
freedom of expression may be undermined. Spain also support our
concern that the title is misleading. I also fear the One Stop
Shop model is likely to lead to costly, protracted decision-making
that is neither in the interests of individuals, nor businesses,
which are also the concerns of Ireland and Poland.
"During the Justice and Home Affairs Council
meeting, Austria and Slovenia were the only two member states
who voted against the Regulation. They believe that the Council
text is a compromise too far and the changes are at the expense
of individuals and prefer the European Parliament text. The European
Parliament version of the text, which was agreed in March 2014,
was heavily influenced by the fallout from Snowden and is widely
perceived as anti-business as well as undermining vital processing
that is legitimately possible at present.
"Going forward the trilogue discussions
will take into consideration the European Parliament text, which
is significantly worse than the draft text agreed at Council.
It introduces a higher burden ("explicit") for consent
in all cases where this is the lawful ground for processing. Explicit
consent also places additional restrictions on the processing
of scientific and medical research that is likely, at best, to
make vital processing in this sector, very difficult and at worse
illegal. In addition, the European Parliament text has included
a clause (the "anti-FISA clause") that will further
restrict third country data transfers. Under this clause, if a
business is ordered by a foreign court or authority to hand over
personal data, the European Parliament text will prevent this,
unless there is an existing Mutual Legal Assistance Treaty or
similar international agreement in place, or unless the business
has the permission of a European data protection authority. I
oppose this, as I regard it as unworkable in practice and also
because attempts to use it would put businesses in a difficult
position having to decide which law to break.
"It is the Government's overall aim to minimise
the negative effects of the new Regulation on business and freedom
of expression. The Regulation must promote rather than hinder
the Digital Single Market and the competitiveness of the EU in
a global digital market. The UK does not have an opt-out from
the Regulation and agreement will be reached by Qualified Majority
Voting (QMV), on which our position remains reserved."
Previous Committee Reports
(a) and (b): Thirty-six Report HC 219-xxxv (2014-15),
chapter 11 (11 March 2015); Thirty-first Report HC 219-xxx (2014-15),
chapter 5 (28 January 2015); Twenty-second Report HC 219-xxi (2014-15),
chapter 9 (26 November 2014); Twelfth Report HC 219-xii (2014-15),
chapter 8 (10 September 2014); Forty-seventh Report HC 83-xlii
(2013-14), chapter 14 (30 April 2014); Thirteenth Report HC 83-xiii
(2013-14), chapter 24 (4 September 2013); Eighth Report HC 83-viii
(2013-14), chapter 11 (3 July 2013); Third Report HC 83-iii (2013-14),
chapter 15 (21 May 2013); Thirty-first Report HC 86-xxxi (2012-13),
chapter 7 (6 February 2013); Twenty-sixth Report HC 86-xxvi (2012-13),
chapter 11 (9 January 2013); Eighth Report HC 86-viii (2012-13),
chapter 5 (11 July 2012); Fifty-ninth Report HC 428-liv (2010-12),
chapters 7 and 8 (14 March 2012); (c) and (d): Thirty-sixth Report
HC 219-xxxv (2014-15), chapter 11 (11 March 2015); Thirty-first
Report HC 219-xxx (2014-15), chapter 5 (28 January 2015); Twenty-second
Report HC 219-xxi (2014-15), chapter 9 (26 November 2014); Twelfth
Report HC 219-xii (2014-15), chapter 8 (10 September 2014) Forty-seventh
Report HC 83-xlii (2013-14), chapter 14 (30 April 2014); Thirty-sixth
Report HC 83-xxxiii (2013-14), chapter 9 (12 February 2014).
335 HC Deb, 23 June 2015, col 19WS. Back
336 HC Deb, 16 July 2015, col 65WS. Back
337 Fifty-ninth Report HC 428-liv (2010-12), chapters 7 and 8 (14
March 2012). Back
338 Twenty-sixth Report HC 86-xxvi (2012-13), chapter 11 (9 January
2013). Back
339 Thirty-sixth Report HC 83-xxxiii (2013-14), chapter 9 (12 February
2014). Back
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