5 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 and the Joint Committee on Human Rights
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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 (PCJ 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; ordinary legislative procedure; QMV (b) Article 16(2) TFEU; ordinary legislative procedure; QMV (c) and (d) —
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| Department | Culture, Media and Sport
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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
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.
Background
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 http://data.consilium.europa.eu/doc/document/ST-12555-2015-INIT/en/pdf 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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