Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 116-119)

Mr Peter Thompson and Ms Harriet Nowell-Smith

25 OCTOBER 2006

  Q116  Chairman: Good morning, everybody. Thank you very much for coming to give evidence to us. I will later, more formally, welcome those who are coming for the second session of our evidence; nevertheless, you are all very welcome and we look forward to hearing from you as well. I should first of all say that this is on the record. It is being broadcast by radio, not by television. For the record, I should say that this is part of an inquiry which this sub-committee is doing into SIS II, Schengen Information System II. I would like to start by asking you the first question. Before I do so, may I, through you, thank Baroness Ashton for her written evidence of 4 October? It was very helpful, and we look forward to seeing Baroness Ashton at a later stage in our inquiry. The Government refer to the power of the European Data Protection Supervisor to supervise the Commission's management of SIS II. Are the Government content—is your department content—with the inability of the European Data Protection Supervisor to bring proceedings within the Third Pillar, or proceedings against Member States which will be operating the system, or against a European Union agency as regards SIS II? I am sorry, it is a rather complicated question but I think that you have had notice of it.

  Mr Thompson: We have indeed.

  Q117  Chairman: Can I say that if you would like to make any opening statement, you are very welcome?

  Mr Thompson: I do not have any opening statement in mind, but I wonder whether it would be helpful if we said a little about who we are and what we do, because I think that may help you in terms of the questioning. My name is Peter Thompson and I am Head of the European and International Division in the Department of Constitutional Affairs. My division is responsible for the strategic co-ordination and oversight of all of the department's EU business. So I am familiar with EU work across the piece here.

  Ms Nowell-Smith: I am Harriet Nowell-Smith. I am a legal adviser in the DCA, advising principally on the negotiations of the Data Protection Framework Decision, and obviously we work on SIS II as well.

  Mr Thompson: The question you raise, as you say, is quite a complicated question. The simple answer is that we are content with the arrangements that the EDPS cannot bring proceedings under the Third Pillar and, indeed, the EDPS itself has never had powers where it could actually initiate proceedings against Member States. We say we are content because we think that there are adequate provisions for the kinds of issues that might arise here in the instrument as a whole. Perhaps the best way I can illustrate that is briefly to go back to the structure of the database itself and the supervisory arrangements. As I am sure you are all aware, the SIS II database consists of a central database, which is actually located at Strasbourg but it could be anywhere, and a series of national databases in the participating Member States. The data in those databases is the same. They are all real-time copy updates. The national supervisory authorities—the Information Commissioner, for example—have Third Pillar powers and can of course initiate proceedings. Because the national supervisory authorities like the ICO can initiate proceedings, we are therefore happy with that kind of system because we think that proceedings are much more likely to be initiated at a Member State national level than they are against the central database, which is really just the hub of this system but containing the same information. The last point I would want to make is that the Council decision provides for mechanisms whereby the national supervisory authorities like the ICO and the central supervisory authority, the EDPS, can co-ordinate their activities and address cross-border issues. From memory, it talks of meetings between them twice a year. For all those reasons, therefore, we think that the arrangement, though perhaps complicated, is satisfactory.

  Q118  Chairman: We of course are not Schengen members. Are you satisfied with the extent of co-operation and consultation that we are involved in over the process of SIS II?

  Mr Thompson: We are rather complicated here, as we are not Schengen members for the immigration data but we are members for the police and judicial co-operation element of the data. That is clearly a complicated situation. Certainly we have no evidence to suggest, in the discussions that there have been about SIS II—though we have an interest in the data protection element of SIS II, the lead department is very much the Home Office, with whom we work very closely on this—we have no reason to believe that those discussions have been anything other than satisfactory.

  Q119  Chairman: What about judicial control over the agencies? The rules governing the access of Europol and Eurojust to SIS II data—is there adequate judicial control, do you think?

  Mr Thompson: We think so. Here again, from memory, Articles 37A and 37B—I may have to correct that as we go along—set out the rules governing Europol and Eurojust, in terms of how they can access the database and what they can do with the data. We think that those are appropriately rigorous rules. So that gives us comfort. It is also worth saying that both of those bodies are well-established, well-respected bodies, set up under their own detailed legal instruments. As I said, the Council decision sets out a wide range of rules that they have to abide by when dealing with data. Equally, Europol and Eurojust—although again this is very much a Home Office lead and I am not an expert on the bodies themselves—as I understand them, are very much information hubs. They would not be acting on the SIS II data themselves; they would merely be making the connections to bodies that would act on that data. I hope that is not too round-the-houses, but we think that the rules governing Europol and Eurojust are appropriate and sufficiently rigorous.

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