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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