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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