Examination of Witnesses (Questions 100-115)
Professor Kees Groenendijk, Ms Evelien Brouwer, Professor
Theo de Roos and Professor Elspeth Guild
18 OCTOBER 2006
Q100 Baroness Henig: Do you think there
are any exceptional circumstances in which data collected for
one purpose for SIS should be used for another purpose?
Professor Groenendijk: Yes, but then they should
be very clearly described and formulated in the Regulation. I
think purpose limitation should be the guiding principle first,
only immigration data for immigration authorities, only police
data for criminal prosecution purposes. Of course, you could imagine
that for very grave acts there would be an exception made, but
now what they are proposing is to store more data on more people
and give more institutional access without any real limitation.
I think the relatively limited number of occasions where we would
all agree that there was a need to use any data possible could
very well be described. If that was really what we wanted that
could be described and those crimes could be mentioned in the
Regulation. That would then be the exception to the rule, but
now the rule has become that purpose limitation is not enforced
any more.
Q101 Baroness Henig: So in fact you can
cater for exceptional situations by much clearer and tighter definitions
is what you are arguing?
Professor Groenendijk: Yes, but we have done
away with the principle so you do not need to specify or justify
anything any more because everything is allowed.
Q102 Lord Corbett of Castle Vale: You
may well see this as special pleading, but here goes. Do you believe
that the UK should have any access to SIS immigration data, at
least for purposes related to asylum determination, responsibility
or security? In turn, of course, that would mean we could share
what information we have with other EU states.
Professor Groenendijk: The way the question
is formulated, "should", means it can be interpreted
as a political question: is it desirable, as a legal question:
is it lawful right now, or as a practical question: is there any
use for it?
Q103 Lord Corbett of Castle Vale: Does
it make common sense, is what I mean.
Professor Groenendijk: On the legal question,
the Legal Service of the Council has given a clear answer to that
question, No under the present rules, but it has added as a kind
of footnote that of course there can be bilateral contacts between
Member States, which would, I think, solve most of the British
worries. If there is real need there is a bilateral solution.
If you take this as a political question I think the question
can be seen on two levels of the relationship between the Member
States. Is this a kind of free rider behaviour of one Member State
who just wants to use systems developed collectively if it is
urgent or if it is useful? Should that be honoured or stimulated?
You can also look at it on the question of individuals. The Schengen
Information System originally was designed as a compensatory measure
because of the free movement of all persons living in the Schengen
area, so what would happen if you allowed one Member State not
part of the Schengen group to use SIS against third country nationals?
For them this free movement is a real, very important advantage,
that they are not checked at all the internal borders because
of their origin or because of the colour of their skin. So doing
away with the internal border controls was a great advantage for
third country nationals. What Britain says is, "We want to
use the system against certain third country nationals without
giving the large group of third country nationals the advantage".
I think that is a question of fairness and on that level I would
have my doubts.
Q104 Lord Corbett of Castle Vale: You
are aware that all this was suspended for the World Football Cup
and internal border controls were reintroduced?
Professor Groenendijk: Yes, for a few weeks.
Q105 Lord Corbett of Castle Vale: It
does not matter for how long, does it?
Professor Guild: On behalf of ILPA I have to
make a comment on this particular question. On the one hand you
have the perspective from inside Schengen. From the perspective
of an association in the UK we would say that if there is not
the right of free movement without a border control there is no
justification for access to a flanking measure to limit free movement
and therefore the UK should not have access to the SIS unless
or until it is willing to lift its internal border controls with
the other Member States.
Q106 Earl of Caithness: If I can go back
to Baroness Henig's question, can I ask whether you have suggested
a redraft of Article 17A to the Commission which, as you state
in your evidence, says, "Users may only search data which
they require for the performance of their task"? If you do
not think that is strong enough have you suggested a redraft?
Professor Groenendijk: I am afraid that we are
unable to answer the question right now but the Lord Chairman
has already given us the possibility to have second thoughts on
our way back, so maybe we should use the opportunity.
Q107 Lord Corbett of Castle Vale: Phone
a friend!
Professor Guild: The key is in the question,
of "users". It is the definition of who are those users
and I would wish to see a very narrow definition of the users
and then we would not need to redraft 17A because the users would
be specified by their function and their function would determine
what the performance of their tasks would be.
Q108 Lord Avebury: Returning to the question
of the data protection rules in the SIS II legislation, and in
particular to the discussion in your paper on whether the Data
Protection Framework Decision should be made applicable to SIS
II instead of having specific to SIS II data protection rules,
you entered a caveat that the Data Protection Framework
Decision should conform to the highest data protection standards
which are to be used for this purpose. I want particularly to
ask you whether you have had a look at the document presented
by the Council to the Multidisciplinary Group on Organised Crime
that was published on 19 September, document 12924/06, in which
they address ten questions to the Multidisciplinary Group, all
of which appear to be directed towards watering down the standards
of data protection. This document was not presented transparently
in the first instance, although it is now on the Council's website.
Have you any comments to make, first of all on the process by
which this fairly far-reaching change in the Data Protection Framework
Decision has breached the decision-making process through the
Multidisciplinary Group, and, if you think that were it to be
implemented, the Data Protection Framework Decision would maintain
the highest standards that you call for in your paper?
Ms Brouwer: If I may start with your question
on the Framework Data Protection Decision, first I have to admit
that the Meijers Committee did not comment on it, although I think
it is a very important draft, and I discovered like you the latest
draft now being considered of the Framework Decision. I agree
with what you said at the European Parliament a few weeks ago,
that we should not rush into accepting the text as it is now laid
down. It is a very important issue for national parliaments and
the European Parliament because we are considering the level of
protection which is included in this draft. As SIS II is now to
be postponed, we should take more time to further rethink and
redraft this text. You put it rightly: you should not expect the
Multidisciplinary Group on Organised Crime to present a data protection
text. Our general concern, when we were referring recently to
other documents, is that it gives the impression that it is dealing
more with broadening the use of personal information and allowing
national authorities to exchange this information within the EU
territories. It also enables the transfer of data to third parties,
which covers a very large part of the current proposals. We think
that the proposal is more concerned with providing national authorities
with the ability to communicate information rather than enforcing
the rights of individuals. Therefore, with regard to applying
this immediately to the Schengen Information System, we do not
think at the moment that this is giving adequate protection to
persons on this database. I refer to what has already been said
by the European Data Protection Supervisor and the European Commission,
that the level of data protection to be applied to the Third Pillar
and to SIS, should be in accordance with the EC directive 95/46.
Although this EC directive is also not ideal, it should be at
least the minimum level and we should not go below it. What I
have understood from the negotiations, is that some Member States
even want to consider the protection of this Framework Decision
as a maximum, so Member States should be prohibited from giving
more protection in their own national legislation. I am very much
concerned about that and I very much hope that in the national
parliaments and also in the European Parliament there will be
opposition against this principle of a maximum level. I agree
with the Commission and with the Data Protection Supervisor, and
it is also has been underlined by the European Court of Justice,
that the EC Directive is a minimum level. As we have recognized
data protection as a human right in the EU charter, I think we
should not do away with the rights individuals have in these texts.
Q109 Lord Avebury: So you agree that
if you have a grievance case you could get this right theoretically
because of postponing the SIS II until 2008, which removes the
urgency from getting European data protection programme as you
would like to see it? If that is so, is there any way in which
we can detach the job of looking at data protection for SIS II
from a group described as the Multidisciplinary Group on Organised
Crime, which is clearly an incongruous body to consider data protection
and which we do not even know has any data protection experts
serving on it. How does one go about removing the responsibility
from that group and allocating it to some sort of body which would
have data protection expertise?
Professor Groenendijk: Maybe we could learn
from the experience of the negotiations on the Schengen Implementing
Agreement when it was a group of national data protection authorities
which sat together and were able to influence the negotiations
at that time to insert the provisions on data protection in the
Agreement that we have right now. It was these people who took
the initiative to get attention for data protection, and I think
with reasonably good results for the time, considering that it
was 1989-90.
Professor Guild: I would just add that, of course,
this problem is one of the constitutional structure of the European
Union. It is because we have these pillars. We have been trying
to get rid of them for a number of years now, not very successfully.
The Commission suggested using the passerelle and the Finnish
Presidency kicked off Tampere II saying, "Let's do it".
This makes me wonder whether perhaps by 2008 we will. If we have,
that means that instead of these two documents everything is going
to be collapsed into one, and the key is going to be to ensure
that the Data Protection Directive is the model and that will
apply to everything. If they do not manage to finalise all of
this and then try and bring it into a one-Pillar collapsed structure
there will be unsatisfactory standards applying to certain areas.
The difficulty is that managing an EU with the current structure
is extremely difficult.
Q110 Baroness Henig: Do you have any
comment on the future use of SIS II for police and criminal law
purposes, including the operation of the European arrest warrant,
and what problems in practice have there been to date with the
use of SIS I for law enforcement purposes?
Professor de Roos: Let me say in the first place
that SIS I is not the answer on the whole line, of course. It
contains very useful elements and also protection for the individual,
for instance. On the prohibition on double jeopardy, we have now
this very important decision of the European Court of Justice
in the case of Van Straaten (a Dutchman) v Italy.
The Court ruled rather restrictively on this principle, or maybe
you should say extensively in favour of the individual, where
the formula was the identity of material facts, so not the legal
label of it but the material facts identity and then a set of
facts which are inextricably linked. If that is the case we have
to look at cases of drug trafficking between Italy and the Netherlands,
for instance. Then, even if the amounts of drugs were different
or the persons involved in the two countries were not the same,
also in those situations, if there is a restricted link between
the two criminal procedings, this could be the same case. It is
prohibited to prosecute the person again in Italy when the person,
Mr Van Straaten in this case, was already brought to trial and
acquitted for this in the Netherlands. Now our concern about the
future, if I may repeat what we have already said, is that if
the information is entered into SIS II with all those alerts on
rather vague grounds in a very extensive field, it will not be
reliable. Then you have a problem, not so much with the use of
evidence in criminal trials, but also with people who are under
secret surveillance or with other kinds of investigative methods
used by the police on grounds that are not very clear, or based
on sources which are not reliable. That is our main concern.
Q111 Chairman: May I thank all four of
you very much indeed for your extremely helpful answers to our
questions, and indeed I repeat our thanks for your written evidence.
I wonder if I can just ask a question, because Professor Groenendijk
was very kind earlier on in the meeting in saying that to his
knowledge we are the only Parliament that conducts inquiries of
this sort. Have you been invited to give any comparable evidence
to the Commission? Do the Commission consult you, any of you?
Perhaps that is an impertinent question.
Professor Guild: When there are consultations
the Commission normally sends us an invitation to submit to them
our position and they usually open some arcane website somewhere
and put all the evidence on it, and if anyone is interested they
can look at it, and one rarely gets anything other than a little
notice back thanking you for your participation. One certainly
does not have the sense of the careful scrutiny of witnesses specifically
chosen for their expertise on a particular aspect in a setting
like this with the assistance of experts which your Committee
does. Certainly I have not ever had the impression that the European
Commission has sought to ask me specific questions to seek specific
answers and in fact to test my answers and the evidence which
I have given them in the way in which your Committee does.
Q112 Chairman: How about the European
Parliament?
Professor Guild: In my experience of the European
Parliament it is developing a system of using external experts
on particular subjects. However, my experience so far, and I have
only given evidence once to a committee in this context and that
was only a couple of weeks ago in Brussels, is that it is very
much in development. It is not nearly as developed into a system
as you have here.
Professor de Roos: They are asking questions
now and then on important issues, of course that happens.
Q113 Chairman: In so far as you have
ever been asked questions by either the Commission or the Parliament,
are you aware of changes in the process of Green Paper to White
Paper that have taken account of your comments?
Professor Guild: It would be very difficult
to point specifically to one particular change which has happened.
A colleague of mine recently said in a public venue that the proposals
which she had put to the Commission for the production of the
Hague Programme had all been taken on board in the Hague Programme.
I listened to this with astonishment.
Q114 Lord Avebury: As a corollary to
that question I was going to ask whether you have been asked for
any advice by the Multidisciplinary Group on Organised Crime and
whether you know of any other civil society organisation that
might have been consulted by the MGOC.
Professor Guild: I think they may not be aware
of my existence, as I am only vaguely aware of theirs.
Q115 Chairman: Professor Guild, I think
it is extremely unlikely that anybody is unaware of your existence,
but I hope that if there are any gaps in public knowledge our
report will fill them.
Professor Groenendijk: I fully agree with everything
that Professor Guild has said on this issue. I think the European
Parliament is genuinely trying to develop methods of involving
civil society and, as for the Commission, the only external parties
that they systematically consult and discuss with when drafting
a proposal are the civil servants of the Member States. They are
involved in the drafting stage in a rather structured way, but
apart from opening up a website and giving the opportunity to
file notes before a certain date, I have no experience of it.
Chairman: Again, may I thank the four
of you very much indeed for coming. Your answers have been extremely
helpful to us. Professor de Roos, as I think I may have said before
you arrived, you will receive a transcript in due course and of
course you will wish to check that it is correct, but again I
repeat that if any or all of you, on reading the transcript, realise
that there are things that it would be helpful for us to have
as supplementary evidence, we would, of course, be very happy
to receive it. On which note may I thank you and wish you a safe
and rapid journey home.
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