Not cleared from scrutiny; scrutiny waiver granted; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union
Recommendation for a Council Decision authorising the opening of negotiations on an Agreement between the European Union and Canada for the transfer of Passenger Name Record (PNR) data to prevent and combat terrorism and other serious transnational crime
Articles 16(2), 87(2)(a) and 218(3) and (4) TFEU, QMV
(39151), 13490/17 + ADD 1, COM(17) 605
11.1The UK has been at the forefront of EU efforts to promote the sharing of Passenger Name Record (PNR) data both within the EU (a new EU PNR Directive will take effect next May) and externally through the negotiation of PNR Agreements with third countries. EU data protection law prohibits the transfer of personal data to third countries unless they ensure an adequate level of protection—in practice, protection “essentially equivalent” to that guaranteed within the European Union.122 In an Opinion issued in July, the Court of Justice accepted that the transfer of PNR data to third (non-EU) countries was justified to protect public safety, but said that some of the provisions of a draft PNR Agreement between the EU and Canada were incompatible with fundamental rights and contrary to EU law. The proposed Council Decision would authorise the Commission to re-open negotiations with Canada to the extent needed to make the Agreement compatible with EU law. It is subject to the UK’s Title V (justice and home affairs) opt-in Protocol (Protocol 21) and will only be binding on the UK if the Government decides to opt in.
11.2In his Explanatory Memorandum submitted on 1 November, the Immigration Minister (Brandon Lewis) was unable to tell us when the three-month deadline for opting into the proposed Council Decision would expire, adding:
“We will provide further advice to the Scrutiny Committees on when they will be expected to comment on the Decision and when the UK has to opt in to the measure in accordance with Protocol 21 once the deadlines have been published.”123
11.3In reaching a decision on UK participation in the proposed Council Decision, he indicated that the Government would have “particular regard” to two aspects of the Court’s Opinion: first, that the Canadian authorities should (in most cases) only retain PNR data on individuals for as long as they remain in Canada; and second, that the onward transfer or disclosure of PNR data should only be permitted to a third (non-EU) country which has concluded a PNR Agreement with the EU or has obtained a Commission adequacy decision.
11.4We asked the Minister to:
11.5We also asked the Minister to tell us at the earliest opportunity when the three-month opt-in deadline would expire so that we could consider whether to recommend an opt-in debate.
11.6In his letter of 30 November, the Minister says that the Estonian Presidency intend to agree the proposed Council Decision at the Justice and Home Affairs Council on 7–8 December. He continues:
“Given the UK’s acknowledged leadership on PNR matters I am minded to opt into the Council Decision and vote in favour of its adoption.”
He invites us to clear the proposal from scrutiny, adding that “future Council Decisions on signature and conclusion of the Agreement will be subject to scrutiny and the opt-in will apply in the usual way”.
11.7Turning to the questions we raised in our earlier Report, the Minister considers that the Government’s concerns with certain aspects of the Court’s Opinion could be met by applying a broad interpretation to some of the conditions set out in its ruling. To this end, he notes that the proposed Decision has been amended to give the Council greater oversight of the Commission’s conduct of the negotiations with Canada. He anticipates that changes will need to be made to the EU’s PNR Agreements with Australia and the US but says that the timing and substance of any renegotiation rests with the Commission. He also anticipates that the UK will need to negotiate its own PNR agreements with Australia, Canada and the US on exit, regardless of any transitional/implementation period. Whilst the EU’s PNR agreements with third countries provide a template, “the UK is not tied to replicate these” in the agreements it negotiates with third countries. He expects the UK to “maintain equivalency with the EU on data protection” once it leaves the EU and says that “maintaining respect for fundamental rights will remain an integral element” of any PNR agreements the UK concludes with third countries or with the EU post-exit. He adds that the Court’s Opinion will also be “an important consideration” in ensuring that PNR agreements are limited to what is strictly necessary to secure their public safety objectives.
11.8The Minister says that the Government is “minded to opt into” the proposed Council Decision and to vote for its adoption at the Justice and Home Affairs Council on 7/8 December, even though the three-month deadline for reaching an opt-in decision has not yet expired. He offers no explanation for the Presidency’s haste in bringing the proposal to the Council for decision nor indicates whether he considers that there are special circumstances that justify curtailing the time available to scrutinise the Government’s opt-in decision.
11.9This is not an isolated incident. There is a depressing history of EU PNR Agreements being pushed through scrutiny with undue haste. We recall that a similar situation arose on a proposed Council Decision to sign a PNR Agreement with Australia in 2011. The Home Secretary at the time (Mrs Theresa May) told our predecessors on that occasion that “the UK was very clear that, under the Treaty, we should be allowed to exercise our option to allow Parliament to scrutinise the Agreement within our three-month window for opting in”.124 Later that year, she informed the Committee that the Government had decided to “waive its Treaty rights to three months’ opt-in consideration” on a proposed Council Decision to sign a PNR Agreement with the United States of America, but only after the Home Secretary had made representations “at the highest level about our entitlement to a three month opt-in period”.125
11.10We recognise that the circumstances are different in this case. The proposed Council Decision is the first of several steps towards securing a revised PNR Agreement. Further Council Decisions—and separate opt-in decisions—will be needed to authorise the EU to sign and conclude the agreement that emerges from the negotiations with Canada, meaning that the UK will only be bound by the eventual outcome of negotiations if the Government chooses to opt in. We consider that the UK will be in a better position to influence the outcome of negotiations, which may well serve as a model for a future EU/UK PNR agreement, if it participates in the negotiations. Given these factors, we agree to grant a scrutiny waiver to enable the Government to support the adoption of the proposed Council Decision. We do so with some reluctance and ask the Minister to explain:
11.11Turning to the implications of the UK’s exit from the EU, the Minister appears to rule out the possibility of “grandfathering” existing EU PNR agreements with third countries during a transitional period, so that these would continue to apply while the UK negotiates new agreements to take effect at the end of a transitional/implementation period. The effect would seem to be the same as a “no deal” or a deal without a transitional/implementation period, with a gap arising between existing EU/third country PNR agreements ceasing to apply to the UK and the UK being in a position to conclude new bilateral PNR agreements. Does the Minister accept that there is likely to be a gap and that this would create risk and uncertainty for carriers? How does the Government intend to mitigate this risk?
11.12The Minister says that the EU’s PNR agreement with third countries provide a “template” for future negotiations, but that “the UK is not tied to replicate these in any future UK-third country PNR Agreement”. Given that the Government also says it intends to “maintain equivalency with the EU on data protection”, we ask him whether he agrees that the scope for divergence from the EU “template” will be extremely limited and that, the greater the degree of divergence, the higher the risk that the UK will be unable to conclude its own PNR agreement with the EU.
11.13Whilst we have agreed to grant a scrutiny waiver so that the Government can support the adoption of the proposed Council Decision at the forthcoming Justice and Home Affairs Council, we remind the Minister that the proposal remains under scrutiny. We ask him to report back to us promptly on the outcome of the Council and to provide us with the information we have requested as well as updates on the progress of negotiations. We draw this chapter to the attention of the Home Affairs Committee and the Committee on Exiting the European Union.
Recommendation for a Council Decision authorising the opening of negotiations on an Agreement between the European Union and Canada for the transfer of Passenger Name Record (PNR) data to prevent and combat terrorism and other serious transnational crime: (39151), 13490/17 + ADD 1, COM(17) 605.
11.14Our earlier Report listed at the end of this chapter describes the current framework for the transfer of PNR data to Canada and the reasons why the Commission is seeking a mandate from the Council to re-open negotiations with Canada.
11.15We noted in our earlier Report that the UK had participated fully in the negotiation of EU PNR Agreements with third countries (including, most recently, Mexico in June 2015). As the proposed Council Decision would instruct the Commission to negotiate a new Agreement with Canada containing all the safeguards specified in the Court’s Opinion, we questioned how much scope this would leave to negotiate out any elements of the Court’s Opinion that the Government disliked. We asked the Minister to clarify the Government’s concerns about the safeguards envisaged on the retention of PNR data and their onward transfer to third (non-EU) countries and explain whether he believed they could be resolved whilst still complying with the Court’s Opinion.
11.16The Minister responds:
“On data retention, in its Opinion the Court said that the Canadian authorities should only retain PNR data for as long as the passenger is in Canada and that the data should be deleted once the passenger leaves Canada, unless there is objective evidence from which it can be inferred that the data might make an effective contribution to combatting terrorist offences or serious transnational crime.
“The Government assess that it is possible to resolve this issue in line with the Court’s Opinion, if this condition is applied broadly e.g. setting a minimum data retention period where data can be used to build an intelligence picture to enable the Canadian authorities to identify the transit of foreign terrorist fighters through Canada or to identify the trafficking of people through Canada. If this condition is applied in a strict way e.g. deleted once a passenger leaves Canada this would seriously impede the Canadian authorities use of the PNR data for the purpose it was acquired as some subjects of interest, including victims of trafficking, would become undetectable after their onward departure from Canada.”
11.17Turning to the conditions for onward transfer of PNR data to third (non-EU) countries, the Minister explains:
“[…] in its Opinion the Court said that the Canadian authorities may only transfer EU PNR to a third country with an equivalent Agreement with the EU or an adequacy decision of the Commission covering the authority to which the data is to be disclosed.
“The Government assess that it would be possible to resolve this issue in line with the Court’s Opinion, if the principles of Article 11 of the EU Directive on the use of PNR data (EU/2016/681) are followed. Article 11 allows the disclosure of PNR data to a third country only on a case by case basis when the transfer is necessary for the purposes of countering-terrorism and serious crime. If the Opinion of the Court were applied in a strict way, it would mean that the proposed Agreement would impose higher standards for protection of PNR data on third countries than those which EU Member States must meet under the Directive.”
11.18He says that changes have been made to the wording of the proposed Council Decision “as a direct result of concerns being expressed by the UK and some other Member States”. The revised text makes clear that the Commission must conduct the negotiations with Canada “in consultation with the relevant Council Working Party and in accordance with the directives contained in the addendum, subject to any directives which the Council may subsequently issue to the Commission”.
11.19We asked the Minister whether changes would need to be made to the EU’s PNR Agreements with Australia and the United States of America and to indicate how soon he expected the renegotiation process to be started. He responds:
“The timing and the substance of any renegotiation of the EU PNR Agreements with Australia and the United States are a matter for the European Commission. However, I anticipate that the Commission will wish to renegotiate those agreements.”
11.20We invited the Minister to comment on the consequences for the UK of not opting into the proposed Council Decision and any subsequent Decisions on the signature and conclusion of a new PNR Agreement with Canada (or other third countries). Would this mean that there would no longer be a lawful basis for air carriers operating from the UK to continue to transfer PNR data to the countries concerned? The Minister replies:
“The Government assess this transfer of PNR data will continue. Following the expiry of the EU-Canada PNR Agreement in 2009, the Canadian authorities provided assurances in a form of an official letter to Member States stating that they would continue to protect and use EU PNR data in accordance with the expired Agreement until a new Agreement had been ratified. In the event the UK decided to opt out of the Agreement(s), we anticipate similar assurances ahead of the UK entering into Agreement(s) with those countries.”
11.21We noted that the Minister had not explained how the UK’s exit from the EU would affect its ability to share PNR data with third countries and sought answers to a series of questions. We asked whether the Government intended that existing EU PNR Agreements in which the UK participates should continue to apply during any transitional or implementation period following the UK’s withdrawal and what mechanism was envisaged to ensure their continued application. The Minister draws our attention to the Government’s future partnership paper, The exchange and protection of personal data (published in August) which sets out the intention to “maintain data protection standards equivalent to those of the EU”.127 He continues:
“Given this position we anticipate that the UK will need to establish PNR Agreements with Australia, Canada and the United States in place of the current EU arrangements.”
11.22We asked what effect no deal or transitional/implementation period would have on transfers of PNR data to third countries currently covered by PNR Agreements with the EU. None, according to the Minister:
“We do not anticipate that a no deal/implementation period will have an effect on the transfer of PNR data by UK carriers to third countries covered by the EU’s PNR Agreements as the UK’s own agreements will be negotiated separately and there are no dependencies on our negotiations with the EU.”
11.23We questioned, in the longer term, how much scope the UK would have to depart from the data protection requirements set out in EU PNR Agreements when negotiating its own agreements with third countries. We asked:
11.24The Minister responds:
“Our aim with these agreements will be to ensure that third countries provide an adequate level of protection to UK PNR data and an effective operational capability to those countries to safeguard their national security. While the EU’s PNR Agreements provide a template, the UK is not tied to replicate these in any future UK-third country PNR Agreement.
“Given that the UK intends to maintain equivalency with the EU on data protection, I do not believe that the safeguards for these UK PNR Agreements will materially affect the UK’s prospects in seeking to negotiate its own PNR Agreement with the EU or securing a Commission adequacy decision in respect of the processing of EU PNR data by the UK. Maintaining respect for fundamental rights will remain an integral element of whatever form of agreement is reached. The Opinion of the Court is going to be an important consideration both within the Council as the negotiation proceeds with Canada and for the UK’s own negotiations, to secure agreements which are no more than is necessary for the purposes of the Agreement.”
First Report HC 301–i (2017–19), chapter 28 (13 November 2017).
122 See p.2 of the Commission’s Explanatory Memorandum accompanying the proposed Council Decision.
123 See para 10 of the Minister’s Explanatory Memorandum.
126 Under the so-called “Ashton undertakings” made to Parliament in 2008, where the Government considers that an early opt-in decision is “necessary” or “essential”, it will explain its reasons to the Scrutiny Committees “as soon as is possible”.
127 See the future partnership paper. The Exchange and Protection of Personal Data.
11 December 2017