Select Committee on European Union Fortieth Report


Letter from the Chairman to Rt Hon Baroness Ashton of Upholland, Parliamentary Under-Secretary of State, Department for Constitutional Affairs

  Sub-Committee F (Home Affairs) of the European Union Select Committee considered this Communication at a meeting on 19 July 2006.

  We understand that, in the light of the Court's judgment, the Council had no alternative but to accept the proposal from the Commission to denounce the agreement, and to do so without delay. Your Explanatory Memorandum states that "it is necessary for the European Council [sic] to terminate the Agreement", though by the date of the Memorandum (6 July) this had presumably already been done. We understand the need for this, and accordingly we formally clear the document from scrutiny.

  We are nevertheless very interested to know how this matter will be taken forward, and would be grateful if you would enlighten us on the following points.

  We would like to know how, if at all, the undertakings given by the US Bureau of Customs and Border Protection (CBP) in the agreement to be signed before the end of September are likely to differ from those in the existing agreement.

  At a seminar in Brussels on 22 June Mr Lambriadis (Vice-president of the LIBE Committee of the Parliament), Mr Peter Hustinx (EDPS) and Mr Jonathan Faull (Commission) all argued that the new agreement would only be a stop-gap, that an entirely new agreement had to be negotiated by October 2007, and that this would be their opportunity for inserting adequate data protection provisions. They also favoured activating the Article 42 passerelle to transfer this from the third pillar back to the first pillar, since only in this way could the Parliament have any influence on the agreement. We would be interested to know whether, and if so why, it is the case that an entirely new agreement will be needed before October 2007. What attempts will the Government be making to ensure that the data protection undertakings offered by the CBP are more realistic than those in the existing agreement? Does the Government believe that there is a case for activating the passerelle for this purpose?

  There is a parallel agreement between the EC and Canada. Although its provisions are less unsatisfactory than the agreement with the US, its legal base is the same. It was not the subject of the proceedings, and so has not been annulled, but plainly will need to be replaced by an agreement with the correct legal base. We would be glad to know what is being done about this.

19 July 2006

Letter from Rt Hon Baroness Ashton of Upholland to the Chairman

  Thank you for your comments of 19 July concerning the Explanatory Memorandum of 6 July about the termination of the Agreement with the United States (US) to transfer passenger name records (PNR) data. I am pleased to provide greater detail on the three areas you have drawn attention to.

  You have asked for further explanation regarding the legal necessity for an EU instrument to make lawful the transfer of PNR data by UK-based carriers. An EU instrument is not required to make the transfer of PNR data lawful under UK law; indeed, it would not automatically have that effect, although it could be a relevant consideration when assessing compliance with the Data Protection Act. The Explanatory Memorandum which has given rise to your questions did not claim that the proposed EU-US Agreement was a legal necessity to make the transfer of data lawful, but I am sorry if this was not made sufficiently clear.

  An Air Navigation Order (or amendments to the existing Air Navigation Order) still appears to be the most appropriate way to provide a clearly identified legal base for the transfer of the data under UK law. Making such an Order would not, in itself, secure specific data protection measures for transferred PNR data. However, in considering whether to make an Order requiring carriers to transfer PNR data to the US authorities, we regard US commitments on the protection of that data as a very relevant consideration. It would therefore be highly desirable to secure adequate data protection arrangements by placing binding obligations on the US via an Agreement. The question therefore is whether these binding obligations would best be served by an EU-level instrument or a series of bilateral Agreements.

  The question above leads me to your second point of how an EU-US instrument would comply with the principle of subsidiarity if the necessary authorisations could be dealt with under UK law. As I have explained above, the purpose of EU-US Agreement would not be to provide authority for PNR transfers under UK law. However, given the advantages of having an instrument to place binding obligations on the US, an EU level Agreement would appear to be a more sensible option than a number of bilateral arrangements between the US and those Member States operating transatlantic flights. The EU has the advantage of collective bargaining and is likely to secure the best outcome for EU passengers when negotiating the terms of an Agreement with the US. The EU also has the benefit of experience and expertise in this area following the 2003-04 negotiations resulting in the current Agreement. Furthermore, an EU level Agreement has the advantage of providing standard levels of protection for passengers across the EU. It would appear to be unhelpful and confusing to passengers wishing to fly to the US if their personal data was treated in one way should they fly direct from, say, Heathrow, and in another should they fly via a non-UK airport such as Paris, Frankfurt or Amsterdam, as is commonly the case. Additionally, from an efficiency point of view, it would also seem to be a better use of resources to negotiate one single treaty than have a number of Member States working through a very similar but separate process.

  You have asked for an account of the views of transatlantic carriers on this matter. My Department was present at a meeting with the carriers, along with the Department for Transport and the Home Office, shortly before the ruling by the European Court of Justice was handed down, and the Department for Transport has kept my Department and the Home Office advised of the carriers' views, following further and ongoing consultation. The Department for Transport continues to keep transatlantic carriers (both UK and foreign carriers flying to the US from UK airports) informed about its legislative proposals. The carriers are supportive of the proposals and recognise the need to have a clearly identified legal base, conditions, procedures and protection for the transfer of their passengers' data.

  I hope this reply is helpful and provides the further details you require. As ever, I am very happy to discuss any aspect of this matter further.

Undated July 2006

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