Examination of Witnesses (Questions 260-271)
Baroness Ashton of Upholland
22 NOVEMBER 2006
Q260 Baroness Henig: So cautious
support for the process?
Baroness Ashton of Upholland: I think the Prüm
Convention has so much to offer; there is a lot, in terms of looking
at areas, for example, like serious and organised crime and the
ability to work more speedily, but that brings with it other issues
as well. I am sure the Home Secretary will want to do that but
is interested in talking to them, which is the right way.
Q261 Lord Teverson: Minister, I am
interested to know whether the Government welcomed the fact that
six other Member States went off and tried to move ahead of the
rest of the EU, and does the Government see this as coercion to
the rest to move forward, or does it work in diversity within
the EU?
Baroness Ashton of Upholland: It may be a Government
view; it is actually a personal Government view, in the sense
that within the 25 Member States there were groupings of Member
States who had worked collaboratively in different ways. I think
the example I gave last time, from my own area, is that we have
a small group of countries—Malta, Cyprus, Ireland and ourselves—who
have formed the Common Law Club, and our purposes, led by the
Lord Chancellor, are specifically to look at proposals which come
out of the European Union from a common law viewpoint, which is,
as you know, in a minority. Although we may disagree on policy
and it in no way binds anybody, we do find it useful to be able
to think about issues, because the common law brings with it challenges
when you are trying to develop across 25 nations. It is a very
different kind of example, but nonetheless it is an example where
working together collaboratively as a particular group is of benefit.
I am not at all surprised that, within a group of 25 nations,
who work, I think, remarkably well together within the Justice
and Home Affairs Council, groupings which are facing particular
issues or which traditionally work together in particular ways
want to come together. I do not see anything difficult about that.
I think it is interesting that the German Presidency, and I have
not seen any information on this, but if it is correct that they
are looking at what this might mean I am sure that the Justice
Minister will bring that forward and discuss it at the informal
and with colleagues, as appropriate. I see nothing wrong with
that at all; far from it. It may be a way of actually testing
out and looking at ideas before they are put across the 25 nations.
Q262 Lord Avebury: We understood
that your officials were content with the rules governing access
by Europol and Eurojust to SIS II data, but I wonder if you could
tell us how you think those rules could be enforced, bearing in
mind that they are not justiciable in the courts of either the
Member States or the ECJ?
Baroness Ashton of Upholland: I was quite taken
with this question because it is not an area that personally I
have looked at in great detail, so if I can just express gratitude,
because it is always useful to have the opportunity to look again.
I know that obviously the supervisory bodies are very important,
and you heard from the Information Commissioner's office, and
David Smith's role within Europol is very important in that. Having
looked at it, I think I am reasonably satisfied that there is
a way forward, because the way that the supervisory bodies operate
is that they are receiving information on a regular basis about
what is happening within the bodies themselves, they are able
to call to account and ask for information and demand it within
reasonable timescales. Although you always hope that the bodies
will work collaboratively within supervising the work of an agency,
I think they have got quite a lot of informal clout, I would not
say that it is so much formal powers, to be able to hold to account.
That feels all right to me but I am grateful for having had the
chance to look at it, and in fact I was going to talk to David
Smith about it separately, because this is something that, I think,
in his evidence to you, is an area that is obviously of particular
interest to him.
Q263 Earl of Caithness: Minister,
you said they could be called to account; who can call them to
account?
Baroness Ashton of Upholland: The supervisory
bodies are able to say to the Director of either agency that they
wish to have information within a timescale and require them to
do it. They would then report on that, either back to their Member
States or to the Commission or to the Council. It is not a power
in the sense that we would traditionally describe it; however,
it does seem to give them the right kind of leverage to be able
to ask the question and to expect to be given the information,
and to be able to push that forward if that were necessary. That
feels, for these particular organisations, at the moment all right,
but, as I say, I am grateful because I had not looked in detail
at what the powers were until the Committee asked me the question.
Q264 Lord Avebury: I suppose there
is a remote possibility that the supervisory body could ask Europol
or Eurojust to do something and there would be disagreement on
it, which would then be irresolvable because there would be no
court to which the supervisory body could apply either. Do you
not think that there should be some sort of last resort procedure
for dealing with any difference of opinion which may occur between
the supervisory bodies and Europol or Eurojust respectively?
Baroness Ashton of Upholland: I do not see it
as a relationship which, in a sense, brings in the court. The
way that they operate is that they can call it to the attention
of the management board, they can ask for information, it is accepted
that the information would be available; if it were not available
the supervisory body could go to the management board and through
them to the Member States, to the Commission, to the Council,
wherever they wanted to go. I do not think that you need to have
the power of the courts behind it per se, because I think
the way that it is established as an entity the supervisory body
actually is able to make requests, because that is what it is
there for, and this is expected, that they will respond. In other
words, it is part of the management contract, in a sense, between
them. That is not unusual in lots and lots of organisations and
institutions. I do not think necessarily you need the management
board to be able to go to court if it does not get it, because
the management board can simply go to the Member States or to
the Council. I think it is all right. It is an interesting area,
but I think, the way that they have done it and the way in which
the opportunity to question is established, that it feels as if
they do have the right kind of inquiring power without needing
to have that in a legal framework.
Q265 Chairman: Minister, it is good
of you to say that you welcomed, I think you said you were taken
by, these questions. If later, and this applies of course to any
of our other questions, having looked into this further, you wanted
to send us any supplementary note, we would of course be very
happy to receive it?
Baroness Ashton of Upholland: I would be delighted
to do that. I am genuinely grateful for that.
Q266 Lord Marlesford: Minister, there
has been some concern expressed, not least by the Commission,
that there are not sufficient resources to implement the data
protection provision properly. Would you like to comment on that
both from a UK perspective and perhaps as far as that of other
countries in the system?
Baroness Ashton of Upholland: I think David
Smith said in his oral evidence to you, on behalf of the Commission,
that there was an issue in other parts of Europe. I am afraid
that is beyond my competence to know. Certainly he would have
and the Information Commissioner, Richard Thomas, would have a
greater understanding of the resource implications for the States.
As far as we are concerned, domestically, and again I always make
sure that I check the latest position, the Information Commissioner
has been very clear that in the domestic sense what he has is
adequate for his purposes, and to my knowledge that is the position
as it stands currently. Again, what was interesting, I think,
about the evidence that Mr Smith gave to you was him talking about
the role that he is playing now within Europe and the implications
of that, and certainly, as he will know, if there are issues that
he wants to raise with me around that I would be more than happy
to discuss them with him; but there are none so far, so, so far,
so good.
Q267 Baroness Bonham-Carter of Yarnbury:
We heard from the Deputy Information Commissioner, in evidence
which he gave to us, that his office, and he put it rather discreetly,
I think, was excluded to some extent from the negotiation on third
pillar data protection measures. Considering the experience of
that office, why do you think this is happening, and would it
not be better to include them more?
Baroness Ashton of Upholland: I think he said
also that I was very clear that I wanted to work very closely
with the Information Commissioner's office in developing that.
I do not think we have got that quite right yet, would be my response.
There are a number of constraints under which we operate. The
first is, we cannot release documentation which gives the position
of Member States, it is forbidden, because the negotiations are
confidential, so we cannot send anything, and that means, if you
like, we have to doctor the documents in order to be able to give
a full account. We need to think about how we do that more effectively
to give more information. When we ask some for information we
do not get it, quite often, and I think we have got some work
to do on establishing the most appropriate way in which we involve
them. For my part, I agree with you, it is absolutely essential
that we involve them appropriately in this, because (a) they have
expertise, and (b) what they feel and think about this will be
very important in the future, and I do not want to lose that experience
or expertise by accident. My response is I have asked officials
to have a think with them about how we make this work better than
it does now, because clearly it is not working as well as it might,
from either end, and hopefully they will resolve that to our satisfaction.
I am more than happy to come back and explain what we did. It
is not anything other than trying to get the administrative side
of that to work effectively; it is not other than the desire to
make it work well.
Q268 Chairman: Minister, I quite
understand the problems, but I think I should record, throughout
this scrutiny, a very strong feeling in this Committee that the
closer your Department can work, and indeed the Home Office can
work, with the Information Commissioner the happier we will be.
Baroness Ashton of Upholland: I accept that.
Q269 Chairman: I am sorry, that is
perhaps a statement of the blindingly obvious?
Baroness Ashton of Upholland: No. I accept that.
I have lots of responsibilities myself, including for the Information
Commission, and I do work very closely with a range of different
things. Getting the processes right, as you will know, Chairman,
is sometimes more difficult than at first it looks; and clearly
we have not quite managed this, but that is not lack of desire,
it is just trying to get it set up properly.
Chairman: I quite understand.
Q270 Lord Harrison: Minister, I am
a new member of this Committee but I am speed-reading, very quickly,
all that is presented to me. Because the Government has absented
itself from the Schengen system, as I understand it, therefore,
in terms of the Information System, both the current one and the
one which is proposed, again we absent ourselves from access to
information which might be very useful indeed to the United Kingdom.
I understand some of the practical questions that you raise and
political questions, concerns about the data protection, but has
anyone, either in the DCA or indeed in the Home Office, done an
analysis of what we would lose by being absent; in other words,
turned it on its head and said, "Well, these are the areas
that might be very useful to us"? Indeed, there may have
been practical examples of where we would have liked to have access
to important information for the purposes of the defence and security
of the United Kingdom?
Baroness Ashton of Upholland: As I think I was
partly explaining, in answer to Lord Marlesford's question, these
are issues obviously to pick up with the Home Office directly.
I do not know if they have done a detailed analysis but certainly
I know that they have considered areas where greater access could
be of benefit. I think, as I was indicating, during our Presidency
there were discussions about whether we might be able to access
more information. As I have said already, membership of Schengen
carries with it certain things; if you are not Schengen then you
do not automatically get the right to participate in that. That
is a bigger and more political and strategic issue, and definitely
for the Home Office and certainly not for me, but I think I can
say that they are very alive to the issues and concerns there
will be. Of course, you are absolutely right that the critical
factor in all this is what we need to do to make sure that we
keep people as safe as possible and tackle issues of serious and
organised crime.
Q271 Lord Avebury: Do you not think
it is incongruous for the Commission to have delegated work on
the Data Protection Framework Decision to a body which is called
the Multidisciplinary Group on Organised Crime? It is not simply
the Information Commissioner who is excluded from knowledge of
what is happening in this black hole but the whole of the public
in the European Union. Do you not consider that it is unsatisfactory
that we should know so little about the processes by which agreement
is reached on the DPFD?
Baroness Ashton of Upholland: The Multidisciplinary
Working Group is the same as any other working group, it has just
got this name, because it is when they are tackling issues to
do with serious and organised crime they come together under that
name. When they are discussing data protection, it is the DCA
officials who attend it, so it changes, under its name, into all
of the officials from across the European Union dealing with data
protection. There is always a difficulty, when the working groups
are meeting and the detailed negotiations are going on, about
confidentiality, it is one of the things which on occasion are
of great benefit, because the quality of the discussion occasionally
can be enhanced, if you are actually being able to talk in the
right kind of detail. That is one of the issues about the documentation
which comes out of the working group not being spread around,
so people are not seeing precisely where nations are sitting at
any one particular moment. Certainly from the UK perspective,
in detailed negotiations, we have found that very valuable. I
am in the privileged position that I do get reports of what is
happening and my officials are deeply involved in what is occurring,
so that I can be happy in thinking that we are making good progress.
Just to say that, of course, this was an area which I undertook
that the UK would participate in very, very fully during our Presidency,
in order to make sure that these safeguards were done as well
as possibly they could be, and we have supported the Finnish Presidency
and we will support the German Presidency in doing that.
Chairman: Minister, thank you very much
indeed for coming today, and particularly warm thanks for your
very helpful and frank replies to our questions, even to our big
questions.
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