Select Committee on European Union Minutes of Evidence

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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