Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 180-185)

Mr David Smith and Mr Jonathan Bamford

25 OCTOBER 2006

  Q180  Earl of Caithness: That was going to be my follow-up question. Would you like to see the Framework Decision level increased?

  Mr Smith: We do not know what is there at the moment. The only official text that we have ever had is the draft Framework Decision which was issued in June last year, which I think we were reasonably happy with. There is no doubt that it took account of the opinion of the European data protection authorities which they developed at the Krakow conference. It was a well-thought through measure. Our fear is that it has been picked to pieces and bits have been discarded. We do not know what has been discarded or what is left so we cannot comment on how satisfactory it is, but we are worried.

  Q181  Earl of Listowel: In our earlier evidence this morning from the DCA we were hearing that the national authorities would be expected to be the enforcers and the European Data Protection Supervisor will have less stringent powers than the national authorities. In that context, will the national data protection authorities, particularly in the UK, have sufficient resources to carry out these supervisory responsibilities, particularly in the light of the lack of resources mentioned by the Commission in its report on the application of the Data Protection Directive? Can we really be confident that the new accession countries' national data supervisors will be sufficiently resourced to deal with these matters?

  Mr Smith: I think some of the Member States do have real difficulties. We have an advantage in the UK that we have recently moved from the data protection functions of our office being funded through grant in aid. We are funded through the notification fee income that we receive and at the moment we are managing to increase that year-on-year, so it would be entirely wrong of me to complain about lack of resources for our data protection work. Like all things, there is an element of uncertainty because we are vulnerable if the fee income does fall off and it gets eaten away by inflation over the years because it is a set fee of £35. Also there could be more exemptions introduced through legislation which would cut the income, and I think this Schengen area is quite resource-intensive. The proposal is to meet twice a year. They are meetings in Brussels—that takes time and expense—there is the audit work to be undertaken, it talks about an information campaign, quite rightly, but that has to be funded, and an information campaign leads to more queries from individuals that have to be answered, so there is work there. I wonder if I might, my Lord Chairman, take the opportunity to comment on Schengen evaluations which you touched on?

  Q182  Chairman: Yes, do, please.

  Mr Smith: This has always been something of a mystery area. It is a mystery area to us where the legal basis for the Schengen evaluation comes from, but we have been involved in some Schengen evaluation activities because they evaluate a range of aspects: sea border controls, land border controls and data protection arrangements in Member States which are joining the Schengen System. There is a regular review of those which are already members, and we have taken part in some of the data protection ones. We were asked to lead the evaluations when the UK had the Presidency of the EU, and we did that to the Nordic countries, but we had to fund all of that from our own office funds whereas it was not bringing any real benefit at all to our office other than, you might say, it improved my personal experience and I found it extremely interesting. It was quite an expensive exercise, but if it is part of a process should it not be funded centrally? There is an advantage in those data protection inspections having people from data protection supervisory authorities with the expertise on them. There is also a question about how that evaluation process feeds into data protection supervision. It does not do so at the moment, but when we were looking at the Nordic countries we came across some general issues which could usefully have been fed back into the data protection supervision, some lessons that could have been learnt for all data protection authorities. There is no ready mechanism to feed that back, so if Schengen evaluation is to continue, there should be some link created between the process of Schengen evaluation as far as data protection is concerned, and the joint supervisory arrangements and regular meetings with the EDPS and so on. We think this would be extremely valuable.

  Q183  Viscount Ullswater: I am sure the Information Commissioner's Office is directed to the protection of the individual and the individual's rights. Are you satisfied with the adequacy of the access rights for data subjects for the data held on them and whether some data perhaps is withheld on national security reasons?

  Mr Smith: It is something we will look at and may come back to you on. We have not looked specifically at the access provisions in preparation for today but I have no reason to suppose that the access provisions, as they would apply in the UK, would be a problem. Individuals in the UK would make their application to SOCA. There is an ability to withhold information but only where providing it would be likely to prejudice the prevention or detection of crime, which is a test which is regularly applied, and it is hard to see that with some of the articles like missing persons, how telling people that would cause prejudice. The danger is with the covert surveillance area which may well cause prejudice. We do not see, if you like, an obvious problem, it would be treated much like any police data would be treated in the UK at the moment.

  Q184  Chairman: Mr Bamford, do you want to add to that?

  Mr Bamford: No. I agree with my colleague there. I think at the moment the provisions of Article 50 are very much that the national law would apply in terms of the access rights so when we are going down these tiers of legislation yet again, we would be down at the UK Data Protection Act end of things, so the exceptions which are relevant there, potentially to the prevention and protection of crime, would kick in at that point. There is a relevant one to do with national security in particular instances, but it would be a situation which would be on all fours with general police information in the UK which we have managed with for many years.

  Q185  Chairman: Can I thank you both very much indeed for coming to give evidence to us, you have been extremely helpful and given us very clear answers to our questions. If there is anything you want to follow up, please do feel free to do so. Can I ask you to pass on my thanks and regards to Richard Thomas for his written evidence which was extremely helpful. He has had a long and, from our point of view, extremely helpful correspondence with this Committee on previous inquiries as well, so please send him our regards.

  Mr Smith: We will certainly do that. Thank you very much.

  Chairman: Thank you kindly.

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