Documents considered by the Committee on 14th October 2015 - European Scrutiny Contents

5 Data Protection in the EU

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested; drawn to the attention of the Justice Committee and the Joint Committee on Human Rights
Document details(a) Proposal for a General Data Protection Regulation;

(b) Proposal for a Police and Criminal Justice Data Protection Directive (PCJ Directive);

(c) Commission Communication on EU-US data flows; (d) Commission Communication on the Safe Harbour.

Legal base (a) Article 16(2) and 114(1)TFEU; ordinary legislative procedure; QMV (b) Article 16(2) TFEU; ordinary legislative procedure; QMV (c) and (d) —
DepartmentCulture, Media and Sport
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

Summary and Committee's conclusions

5.1 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 (PCJ 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.

5.2 In the course of our predecessors' scrutiny, they endorsed the Opinion they received from the Justice Committee:[ 45] that the proposed Regulation in its original prescriptive form, would not produce a proportionate, practicable, affordable or effective system of data protection. The Justice Committee considered that PCJ Directive provides a weaker level of data protection to the data subject compared with the proposed Regulation. They recognised the significant differences in the handling of sensitive personal data by law enforcement authorities, but considered that in a number of respects this lower level of protection does not appear justifiable. The Committee urged the then Government to seek to amend the draft Directive, during negotiations, so that data protection principles are as consistent as possible across both EU instruments. They also noted the then Government's position is that the Directive will have limited application to the UK, due to Article 6a of Protocol 21 of the TFEU. The Committee thought that this would be beneficial to the UK as law enforcement authorities will not be bound by over-prescriptive measures contained within the Directive. This, they said, also means that EU law will not apply to the domestic processing of data, such as between police forces, which would continue to be covered by the Data Protection Act 1998.

5.3 After the agreement of many Partial General Approaches on the proposed Regulation, we reported on 21 July, the agreement of a General Approach at the 15 June JHA Council which the UK Government supported despite "serious reservations". Given the general nature of the update provided, we asked the Secretary of State for Justice (Michael Gove) to deposit the General Approach text with us and in his next update on the progress of trilogues, to explain in detail with reference to that text, the "serious reservations" that still persist, particularly in relation to the Right to be Forgotten, the One-Stop-Shop Mechanism and the nature of liability of data controllers and processors and sanctions. We also said that we remained unconvinced that the unusual approach of supporting an unacceptable text (as opposed to abstention or opposition) would lead to greater negotiating influence over the text in trilogues. We therefore requested the Minister to provide us with evidence, as trilogues progressed, of the influence that the UK has been able to exert through supporting the General Approach.

5.4 Following a reallocation of departmental responsibility for data protection policy from the Ministry of Justice to the Department for Culture, Media and Sport announced by Written Ministerial Statement of 17 September, the Government now writes to inform us of the anticipated agreement of a General Approach on the PCJ Directive at the 8-9 JHA Council and of the position that the Government will be taking. It requests clearance of the document from scrutiny in time for the JHA Council (though we have informed officials this is not possible given the intervention of the Conference recess), to enable the Government to support a text favourable to its negotiating outcomes.

5.5 A Council Press Release of 9 October now confirms that a General Approach was indeed reached on the proposed PCJ Directive (reproduced in the annex to this chapter). That Press Release also attaches the General Approach text.[ 46] In a further development, on 6 October the Court of Justice (CJEU) struck down the Commission's "Safe Harbour" Decision[ 47] which is the basis on which EU data to be exported to the US without further restriction. As both documents (a) and (b) address the transfer of the personal data of EU citizens to third countries and since the Commission, Council and the European Parliament (EP) have taken different positions on this question, the judgment of the CJEU is highly pertinent.

5.6 We thank the Minister for his letter, informing us of the impending General Approach. However, his officials will now be aware that, even had we been minded, we could not have cleared document (b) from scrutiny, nor granted a scrutiny waiver because the 8-9 October JHA Council preceded the date of our next meeting ( the date of this Report, 14 October). We now understand that a General Approach was agreed on document (b) on 9 October. We look forward to hearing from the Minister on whether the UK supported the text. We expect a detailed explanation from the Minister, with reference to the General Approach text (which is now in the public domain) as to why such an override was justified. We request that this explanation includes how and to what extent the text:

a)  met UK's negotiating objectives set out in the Minister's letter;

b)   addressed the concerns highlighted by the Justice Committee's opinion (referred to paragraph 5.2 of this chapter); and

c)  respects the need to protect the fundamental rights of EU citizens, particularly in relation to the transfer of their data to third countries, in light of the requirements articulated by the Court of Justice in its judgment of 7 October in the case of Schrems.

5.7 We also request the Minister to respond promptly to the outstanding requests for information that we requested in our Report on 21 July on:

a)   the renegotiation of the EU-US "Safe Harbour" Agreement (which has been long outstanding and now particularly pressing given the Schrems judgment); and

b)  whether the Government support for the General Approach on the proposed Regulation, despite "serious reservations" will translate into concrete examples of how the Government has been able to influence trilogue negotiations.

5.8 Overall, we are deeply dissatisfied at how little opportunity we have had to scrutinise the Government's position in relation to the agreement of both General Approaches on these proposals, notwithstanding the complication of the intervening dissolution and recess periods. This has not been helped by the sudden departmental change in responsibility. We therefore ask the Minister to make up for this lost ground by ensuring that the information we have requested is sufficiently detailed, targeted, reasoned and promptly provided.

5.9 We continue to retain all documents (a) — (d) under scrutiny. We draw these documents and this chapter to the attention of the Justice Committee and the Joint Committee on Human Rights.

Full details of the documents: (a) Proposal for a 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) Proposal for a 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), 5833/12ADDs 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.


5.10 The background to documents (a) and (b), a detailed account of their provisions and the Government view of them is provided principally in the Fifty-ninth Report of 2010-12.[ 48] The Twenty-sixth Report of 2012-13[ 49] 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.[ 50]

The Minister's letter of 25 September 2015

5.11 The Secretary of State for Culture, Media and Sport (Mr John Whittingdale) provides an update on the negotiation of document (b). Given the significance of the document, the prolonged lull in negotiations and the sudden imminence of the proposed General Approach and the change in departmental responsibility, we reproduce the Minister's response in full:

    "Following the agreement of a General Approach on the General Data Protection Regulation, the Luxembourg Presidency have refocused attention on the draft Directive. You will recall that under previous Presidencies the Directive had been almost entirely overlooked in favour of reaching progress on the Regulation. The Luxembourgers, who are intent on concluding the whole data protection package by December, have reversed that position.

    "The Presidency initially looked to make quick progress on the Directive with the ambition of reaching a General Approach during their Presidency, with a preference for the October Justice and Home Affairs (JHA) Council, which we and many other Member States considered optimistic. However, their ambition has solidified during September and negotiations have accelerated so intensely that it is now certain that the Directive will be on the agenda for a General Approach at the October JHA Council.

    "Although I welcome progress on this important dossier, we must nevertheless ensure that the pace does not inadvertently result in a text which undermines our ability to protect the public. It is imperative that law enforcement agencies are not hindered in the carrying out of their daily activities to prevent and tackle crime. My officials have been working hard to ensure that we achieve this overriding objective in the ongoing negotiations ahead of October JHA Council. I consider that the following are important points:

·  To maintain the existing language on the scope of the Directive, this represents a significant improvement on the previous text. The existing language on scope, coupled with the exemption for the processing of personal data "in the course of an activity which falls outside the scope of Union law", and the UK's Protocol 21 (opt-in) arrangements (which ensure that the Directive only applies in the case of the UK to relevant processing carried out pursuant to an EU Justice and Home Affairs measure in which we participate) is a significant achievement for the UK. We will be working to ensure that it remains.

·  To ensure that the text contains sufficient flexibility for international transfers. I want to ensure that the threshold for transfers does not act to unacceptably limit our ability to share law enforcement data internationally.

·  To press for clarity that private companies carrying out public duties or exercising public powers covered by the Directive would fall within scope of the Directive rather than the Regulation as this will create a simpler, more consistent framework.

    "As it is now certain that this dossier will be on the agenda for agreement at the October JHA Council, I wish to request that your Committee clear this dossier from scrutiny. If we are successful in achieving our priorities I intend to consider supporting the General Approach so that the UK will be in a stronger position to influence the Council's stance when they subsequently enter into trilogue negotiations with the European Parliament."

Previous Committee Reports

(a) and (b): First Report HC 342-i (2015-16), chapter 41 (21 July 2015); 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): First Report HC 342-i (2015-16), chapter 41 (21 July 2015); 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).

45   Third Report, Justice Committee (2012-13), 24 October 2012. Back

46 Back

47   The "Safe Harbour" agreement is currently being renegotiated (see documents (c) and (d)). Back

48   Fifty-ninth Report HC 428-liv (2010-12), chapters 7 and 8 (14 March 2012). Back

49   Twenty-sixth Report HC 86-xxvi (2012-13), chapter 11 (9 January 2013). Back

50   Thirty-sixth Report HC 83-xxxiii (2013-14), chapter 9 (12 February 2014). Back

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Prepared 14 October 2015