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Lord Dholakia: My Lords, I thought that we were being rather helpful to the Minister by identifying the treatment received by people suspected of being terrorists. However, I am grateful that the Minister said that she would look at that matter and come back to us at some stage, at least before Third Reading. That would be helpful and, meanwhile, I beg leave to withdraw the amendment.
"(1A) Information may only be disclosed under subsection (1)(d)
(a) for police purposes;
(b) with the consent of the Secretary of State.
(1B) The Secretary of State shall give his consent only if satisfied that the information can be shared without breaching Convention rights."
The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 28 and 29 grouped with it. The three amendments tighten up the loose and sloppy drafting of the Bill. They are a definite improvement on my earlier attempt in Grand Committee. They provide the important safeguards that information may be disclosed outside the United Kingdom only for police purposes and with the consent of the Secretary of State.
Amendment No. 29, which is consequential, precisely defines "police purposes". Amendment No. 28 provides for accountability and transparency by requiring the Secretary of State to specify the external agencies by means of an order.
This brings Clause 39 into line with Clauses 32 and 33. I hope that my approach will be acceptable to your Lordships' Select Committees on human rights and on the constitution. I trust that it will commend itself to the Government on grounds of both principle and drafting. I beg to move.
Lord Avebury: My Lords, the noble Lord, Lord Hylton, has brought us back to the question of what limitations there should be on the purposes for which information obtained under the new powers in Clauses 32 and 33 should be disclosed to foreign law enforcement agencies, how we can ensure in the Bill that none of these disclosures would lead to a breach of human rights, and whether the definition of "foreign law enforcement agencies" should be restricted so that only responsible agencies in countries that respect human rights would be included.
When we looked at these problems in Grand Committee, the Minister argued that in deciding whether to disclose a particular item of information, the 44 chief police officers in England and Wales and
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Northern Ireland, plus the eight chief constables in Scotland, who should also be considered in this context, had the knowledge and expertise to assess whether it could result in a breach of human rights. I am sure that every one of those 52 chief officers would do his best to make an assessment of whether, as the noble Lord, Lord Hylton, put it during the debate on this clause in Grand Committee,
"States with excellent democracies and very good track records are still asked, in the context of sharing information, whether their systems can be relied on to ensure that the information is used appropriately and stored effectively".[Official Report, 17/1/06; col. GC 221.]
If I may digress for a moment, there is no general framework for data protection in Pillar 3 of the European Union, but there are individual sets of rules and supervisory arrangements covering particular areas such as Europol and Eurojust, the customs information system, the Schengen information system and so on. Your Lordships' European Union Committee recommended, in its report, After Madrid: The EU's response to terrorism, that,
That was nearly a year ago, and it would be useful to know whether any progress was made towards that framework during our presidency and, meanwhile, what data protection regime would cover disclosure under Clause 39 to any agency in another EU state. Would information acquired under Clauses 32 and 33 be covered by the draft framework decision tabled by the Swedish Government in June 2004, which would give police authorities of one member state access to information and intelligence held by authorities in other member states under conditions no stricter than those applicable at national level, and has any progress been made on the principle of "equivalent access"?
The fact that law enforcement agencies in EU member states exchange information only on the basis of agreements that safeguard data protection means that we could simplify the task imposed on police officers in deciding whether to transfer information under this clause. If one of the amendments were adopted, the Minister could give an undertaking that no order will be made in respect of any person mentioned, unless there is an agreement with the state under whose jurisdiction the person operates on data protection covering the information in question. There would be a list of the countries with which an agreement exists and the extent of the information that it covers. If the country is not on the list or the agreement does not cover information of the kind specified in Clauses 32 and 33, the chief officer would
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not have to consider whether, notwithstanding the existence of satisfactory data protection arrangements, there was any reason to suppose that an individual's human rights could be at risk from the act of transferring the information.
Obviously, we do not have data protection agreements with states that we discussed in Grand Committee, such as Burma and Zimbabwe, and it would be useful if the Minister could tell us what countries outside Europe we have agreements with that would permit transfers under Clause 39. If it is a fairly short list, as I suppose, and she confirms that chief officers would have to consider transfers only where the receiving country is on the list, the task of chief officers may not be quite as onerous as we feared.
Baroness Ashton of Upholland: My Lords, I am grateful to the explanations given by the noble Lords, Lord Hylton and Lord Avebury. Sadly, I will resist the amendments because, apart from anything else, one has to be clear about the amount of effort and energy that would be appropriate, particularly because it would place a particularly burdensome requirement on the Secretary of State and the police.
However, I seek to reassure the noble Lord, Lord Avebury, on some of the issues he raised. First, it is right and proper that human rights issues are taken forward under Article 8 of ECHR and we expect chief police officers to take this seriously. The Human Rights Act is a backdrop to all public service. We expect people to take it seriously and I believe that they do. In all of these issues it is important that that is noted and that people recognise the importance of doing so.
"Personal data shall not be transferred to a country outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data".
It is a principle that would be followed. The noble Lord, Lord Avebury, asked me how we would deal with the framework decision in terms our presidency and the work on data protection. The noble Lord knows that I am responsible for data protection in government and I spent a huge amount of time during the presidency dealing with many issues relating to data retention and data protection. He will also know that the European Parliament has started its deliberations on the work proposed by the Commission and the Council has not yet reached conclusionsnot least, because there is a huge number of issues to take forward. I am happy to keep the noble Lord informed of how we get on. It is expected that we will make significant progress under the Austrian presidency. My own view is that we will not finish this until the Finnish presidency, because there is much to do.
There is a great deal of commitment, particularly in the European Parliament, to ensure that the balance between how we share data and how we protect them is recognised. The Justice and Home Affairs
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Commissioner Franco Fettini has often talked about the scales of making sure that alongside security you protect people's rights, and the Council of 25 nation states have approached that from different viewpoints, but I find a general recognition within the Council that this is an important aspect of what we do.
Noble Lords will also know that at Vienna we discussed issues concerning Europol and data, ensuring that we had a consistent approach. I took that forward for the Home Office. As regards European Union work, we have to ensure that data protection issues are correctly understood and undertaken. There are issues about sharing data between nation states. We need to be clear with whom we are sharing information, on what basis and in what the circumstances and, broader than that, we have to recognise the importance of this.
On the data protection principle, the exceptions that are applied concern substantial public interest. We need to think very carefully about what we are seeking to achieve. Essentially this concerns enabling the appropriate level within our police services to share information and give information appropriately. We believe that the safeguards are there. We accept the role of the Human Rights Act, as do the police. We accept the data protection principles, particularly the eighth principle. We accept that in the European Union much work still needs to be done on data protection but people need to be willing to adhere to how far we have gone. Our information commissioner meets regularly with his counterparts in Europe to discuss these issues. He and I are considering how best we can work together to deal with data protection issues across Europe. I am not sure whether that fully reassures the noble Lord, but I am very clear about the way in which we are seeking to approach the issue.
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