Legally and politically important
(a) Cleared from scrutiny; (b) Not cleared from scrutiny; conditional scrutiny waiver granted; further information requested; drawn to the attention of the Culture, Media, and Sport Committee, Justice Committee, Home Affairs Committee and the Joint Committee on Human Rights
Proposed Council Decisions on (a) the signing and (b) the conclusion of an Agreement between the US and the EU on the protection of personal information relating to the prevention, investigation, detection and prosecution of criminal offences (the Umbrella Agreement)
(a) Articles 16 and 218(5) TFEU;—; QMV (b) Articles 16 and 218(6)(a) TFEU; EP consent; QMV
Culture, Media and Sport
(a) (37724), 8245/16 + ADD 1, COM(16) 238;
(b) (37726), 8491/16 + ADD 1, COM(16) 237
4.1The EU-US Umbrella Agreement (the Agreement) was initialled by EU and US representatives in September 2015. It aims to provide a data protection framework and safeguards for the transfer of EU citizens’ data to the US for law enforcement purposes, to ensure data transmitted to the US is handled with an equivalent level of protection to the EU’s.
4.2The Council Decision in document (a) allowed the EU to sign the agreement, which it did on 2 June. The proposed Council Decision in (b) allows the EU to conclude the Agreement, if the European Parliament (EP) consents. These documents are politically important in the fight against crime and terrorism in the EU and US. Legally, they are significant because they implement an Agreement which itself engages EU law on data protection and fundamental rights, a field in which there have been several high-profile CJEU judgments.
4.3There was a scrutiny override on document (a) on 20 May (prior to the submission of the Explanatory Memorandum) which we do not accept was outside the Government’s control for the reasons set out in paragraph 2.9 of our last Report and asked the Minister to provide a Written Ministerial Statement to the House explaining how this serious scrutiny override occurred. We also said in that Report that in the interests of avoiding another scrutiny override on document (b), “we would like confirmation of when [it] will be agreed in Council and a response to the questions we have raised in this Report well in advance of that date”.
4.4The questions we raised in our last Report on 8 June were:
a)The consequences of the EP withholding consent to the conclusion of the agreement, or an opinion being sought from the CJEU;
b)A better, more detailed explanation of some of the provisions of the Agreement;
c)On competence and JHA issues:
i)For the Government’s assessment of the extent to which the Agreement will affect the UK, taking into account Article 6(a) of the UK’s JHA Protocol.
ii)How the Government could formalise its defence of the UK position that Article 6(a) of the JHA Protocol should be taken into account by the Commission in its view of how the Agreement relates to Member States’ relevant bilateral agreements with the US.
iii)Whether the deletion of recital (5) on the EU’s exclusive competence for the Agreement in document (a) had also been made to the equivalent recital in document (b) (recital 3) and clarification of the extent to which the EU will be exercising shared competence?
4.5Some four months after we asked these questions, the Government now responds to our questions and asked for the documents to be cleared from scrutiny as it anticipates that the EU will want to conclude document (b) in Council shortly.
4.6On the question of competence, we would be grateful if the Minister could reconcile the following two statements on the question of the EU’s exclusive competence to sign and conclude the Agreement:
a)In the Government’s Explanatory Memorandum, it states at paragraph 7:
“On competence, the Commission asserted in its explanatory memorandum that the Umbrella Agreement fell under the exclusive competence of the EU and included a corresponding recital (5). First, the Government is clear that because of Article 6a, any exercise of competence is limited in relation to the UK given the limited nature by which it is bound by EU legislation in the JHA area. For example, the UK does not participate in the EU-US extradition and mutual legal assistance agreements and therefore cannot be bound by any EU exercise of external competence on the basis of those agreements. Second, we have been successful in securing the deletion of recital 5, which means that there is nothing in the measure indicating that the EU has exclusive external competence in this area”; and
b)In the Minister’s letter of 1 November 2016:
“The Committee asks about the issue of competence. As this is an EU-only agreement, this means that the Council has authorised the EU to exercise shared competence in relation to this agreement.”
4.7In responding to our question in 4.6, we ask the Minister to address:
a)whether recital (5) “The EU has exclusive competence to the extent that the Agreement may affect common Union rules or alter their scope” has also been deleted from document (b);
b)if so, what this deletion has achieved if, as the Minister says this is an “EU-only agreement”; and
c)how the documents reflect the Government’s stated policy that where competence is shared between the EU and Member States it should normally be exercised by Member States.
4.8Although we are mindful that the present Agreement applies to the UK only to the extent of its participation in JHA measures because of Article 6a of the JHA Protocol, we would be grateful for an indication of the Government’s policy on data-sharing for the purposes of law enforcement with the EU post-Brexit. We note that this policy may fall within the remit of the Home Secretary and we are happy to receive a direct response from her department if that is easier.
4.9We note that the Minister has corresponded with the House of Lords European Union Committee on how the proposed Agreement relates to the Investigatory Powers Bill. The intense interest in the Bill in the House was one of the reasons we asked the Government to submit a Written Ministerial Statement to the House on the scrutiny override on document (a). We therefore draw to the attention of the House what the Minister says to the Lords in his letter of 21 September and ask the Minister to confirm that he is satisfied that the arrangements set out in the Agreement are satisfactory in the light of what he says:
“both the Regulation of the Investigatory Powers Act and the Investigatory Powers Bill provide a legislative framework for the use of key investigatory powers. They make clear the safeguards that must apply when relevant material is disclosed to other countries. The Secretary of State must be satisfied that satisfactory and equivalent handling arrangements are in place before sharing data with an overseas authority.”
4.10Whilst we clear document (a) from scrutiny, we grant a scrutiny waiver in relation to document (b) on the condition that the Minister responds to our questions in paragraphs 4.6 and 4.7 of this chapter, preferably before the vote in Council on the document but in any event before Thursday 1 December.
4.11We also expect as prompt a response as possible to our other questions on document (b). In this respect, we note the Minister’s aspiration that his department “can better serve your Committee on complex issues such as the Umbrella Agreement”, despite the fact that we have had to wait some four months for this response to our latest report
4.12We draw these documents and this chapter to the attention of the Culture, Media and Sport Committee who scrutinises the responsible department, the Home Affairs Committee, given that the Agreement is relevant to the international fight against crime and terrorism and the Joint Committee on Human Rights, particularly in the light of their current inquiry: “What are the human rights implications of Brexit?”
(a) Proposal for a Council Decision on the signing, on behalf of the European Union, of an Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection and prosecution of criminal offences: (37724), + ADD 1, COM(16) 238; (b) Proposal for a Council Decision on the conclusion, on behalf of the European Union, of an Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection and prosecution of criminal offences: (37726), + ADD 1, COM(16) 237.
4.13The Minister of State for Digital and Culture (Matthew Hancock) writes in response to our Report of 8 June.
4.14He first rehearses the background to his letter: that the Umbrella Agreement was signed by the EU and the UK at a joint Ministerial meeting of 1–2 June and the Commission’s announcement that signature “strengthens legal certainty and enhances the rights of citizens which in turn will facilitate EU-US cooperation to combat crime, including terrorism”.
4.15He turns to the question of the conclusion of the Agreement. He says:
4.16He then addresses the various questions that we raised in our last Report, saying:
4.17On the question of the compatibility of the Agreement with EU fundamental rights, the Minister says:
“It is clear that the European Commission have negotiated this Agreement on the basis that it is in compliance with the EU Charter of Fundamental Rights, and specifically Article 8 and Article 47 as was noted in the Explanatory Memorandum (EM) of the 20th May. Article 8 of the Charter (right to the protection of personal data) is provided for through a number of provisions of the Umbrella Agreement including Article 6 (purpose and use limitations), Article 16 (access), Article 17 (rectification) and Article 21 (effective oversight). Article 47 of the Charter (right to an effective remedy and to a fair trial) is provided for in Article 18 (administrative redress) and Article 19 (judicial redress) of the Umbrella Agreement.”
4.18Turning to the application of the Agreement to the UK, the Minister comments:
“The Committee asked about the application of the Umbrella Agreement to the UK. This is limited by virtue of Article 6a of Protocol 21, which clarifies the special status of data protection rules agreed under Article 16 TFEU relating to Chapters 4 and 5 of Title V TFEU for the UK (and Ireland). It states: “The United Kingdom and Ireland shall not be bound by the rules laid down on the basis of Article 16 of the Treaty on the Functioning of the European Union which relate to the processing of personal data by the Member States when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three of that Treaty where the United Kingdom and Ireland are not bound by the rules governing the forms of judicial cooperation in criminal matters or police cooperation which require compliance with the provisions laid down on the basis of Article 16.”
“The UK does not participate in the EU-US Mutual Legal Assistance and Extradition Agreements, and so would not be bound by the terms of the Umbrella Agreement in relation to them. The UK would, however, be bound in relation to Agreements which we have opted-in to, such as the EU-US PNR Agreement. The Council Decision includes a recital setting out the special position of the UK (and Ireland) by virtue of Article 6a of Protocol 21.”
4.20Finally in relation to the Agreement itself, the Minister turns to our question about competence. He says that the agreement is EU-only and so the Council “has authorised the EU to exercise the shared competence in relation to this agreement”.
4.21The Minister then addresses the question of the scrutiny override in relation to the signature of the Agreement, for which he apologises:
“I understand that there was a delay in submitting this EM, and I believe that the reasons for the delay were mainly due to the negotiations of the Umbrella Agreement being brought forward at the last minute, thus leaving Member States with very little time to assess the text of the signature in a comprehensive manner. The scrutiny coordinators at the Department for Culture, Media & Sport (DCMS) notified the clerks of both parliamentary committees immediately that there would most probably be a scrutiny override on the signature of the Umbrella Agreement, because there were no committee meetings before the vote on the signature, during which the document could be discussed and cleared from scrutiny. This matter is further explained in the letter written by the Permanent Secretary to the Committee on 30 June 2016 (attached as Annex A to this correspondence). I would like to apologise again for the scrutiny override on the signature of the Umbrella Agreement
“Your Committee has asked for a Written Ministerial Statement (WMS) to the House explaining this scrutiny override. We will contact you again once we have issued the WMS.”
4.22The Minister next considers his scrutiny obligations in relation to the forthcoming conclusion of the Agreement. He asks us for scrutiny clearance:
“As I have stated above, the vote on the conclusion could take place soon, and I would like to avoid the mistakes that were made in relation to the signature document, by asking for scrutiny clearance on the conclusion in advance.”
4.23He concludes his letter by saying that while he is in office, he hopes to have “strong relations with the parliamentary committees”. He adds that: “DCMS are consequently making a range of changes to their scrutiny arrangements so that we can better serve your Committee on complex issues such as the Umbrella Agreement”.
Fourth Report HC 71-iii (2016–17),(8 June 2016).
31 Case C-362/14: Schrems and Cases C-293/12 and C-594/12 Digital Rights Ireland.
32 Shared competence may be exercised either by the EU or the Member States. It is Government policy that normally the EU should not exercise shared competence in respect of external agreements.
33 We also note what is said about data transfers for national security purposes given that the Umbrella Agreement does not apply to those (Letter from the Minister for Digital and Culture to Lord Boswell, Chair of the European Committee in the House of Lords, 21 September 2016.
34 See (37724), (37726): Fourth Report HC 71-iii (2016–17), (8 June 2016).
35 We note that the Minister says in his letter to the House of Lords EU Select Committee that as the EP has consented to the EU signature of the Umbrella Agreement, it is also likely to consent to its conclusion. See footnote 33.
21 November 2016