Examination of Witnesses (Questions 60-79)
Professor Elspeth Guild and Mr Tony Bunyan
21 MARCH 2007
Q60 Lord Teverson: They would probably
have been for speeding somewhere.
Mr Bunyan: In other words, he would also say,
"This was a one-off. Let us catch up together. Let us match
the two data sets and see what we can solve", so we should
accept the fact that it is true but we should not necessarily
take it as indicative of what we are going to get out in the future.
Q61 Lord Teverson: Do you think that
is a good result?
Mr Bunyan: Obviously, it is good if you can
solve murders, but that is not to say that with proper full co-operation
they could not have got there anyway.
Q62 Lord Harrison: You may have answered
this question but I will ask it anyway. Is it satisfactory that,
as happened with Schengen, the United Kingdom and other Member
States should be presented with a fixed text which the Presidency
is seeking to incorporate into EU law unamended? I think, Professor
Guild, you partly tackled this and, unless I am confused, I think
your point was that once an agreement has been made in a certain
area where Member States might come together that should be respected.
However, is it still not the case that, even if it is a fixed
text that is provided and suggested should be incorporated into
EU law, at any point any one of those other than the 15 states
already signed up to Prüm, the other 12, can stop it and
seek to amend it? It is all very well that it is a fixed text
but it is not fixed into European Union law, is it, until it is
agreed by all 27?
Professor Guild: It is very encouraging to see
that the proposal of the Presidency for a Council decision transposing
Prüm into an EU measure has already been very substantially
changed from the Prüm Treaty itself. The immigration provisions
have been taken out. We have got rid of the sky marshal provisions
and hot pursuit across borders. There have been a number of amendments
already in response to concerns by non-Prüm states that do
not want, for instance, hot pursuit by French police officers
in the UK. Therefore, we see that in the process of making EU
law the proper mechanism of negotiation and compromise is taking
place, meeting the requirements of different Member States, and
I think that is a very good sign. It is infinitely better than
what happened with Schengen where by a protocol to the EU Treaty,
all of Schengen was lumped in and then we had to try and deal
with it and turn it into proper EU law. I think it is part of
the very early recognition by a number of the supporters of the
Prüm Treaty that perhaps this was not going to be a positive
experience for the European Union. The problem that we now have
is that we are going to have the Prüm Treaty with however
many partners—we are not entirely sure; at the moment there
are only three that have ratified—and we are going to have
a Council decision that takes parts of the Prüm Treaty and
turns them into EU law. How are these two going to work together?
There we still have a very substantial problem and one that is
raising a lot of questions in the LIBE Committee in the European
Parliament at the moment.
Q63 Lord Harrison: Yes, and again
perhaps it is my failure to understand, but will not the Prüm
Treaty in essence be superseded once the appropriate directive
is agreed amongst all the 27?
Mr Bunyan: Only part of it.
Professor Guild: It can only be superseded in
the sense that the states that are parties to it need to denounce
it. For instance, the Schengen implementing agreement has not
been denounced by the Member States, even though it was all lumped
into the EU, because it still applies with, for instance, Norway
and Iceland, and it applies for Switzerland, so we still have
the Schengen implementing agreement swirling along in its own
world as well as EU law which applies. So it is not self-evident,
unless the states that are parties to the agreement denounce it,
that it will not continue to have some kind of half-life.
Q64 Lord Teverson: Are you saying
that the participation of Norway is not within an EU context?
Professor Guild: No. Norway is not an EU Member
State.
Q65 Lord Teverson: No, I know that.
Professor Guild: But it participates in the
Schengen information system, in the whole of Schengen. It participates
in Schengen because it has acceded to the Schengen implementing
agreement. Therefore, the Schengen implementing agreement continues
to have a life for the EU and it is the mechanism by which Norway
can participate in Schengen.
Mr Bunyan: If I might add by way of explanation,
when you get many meetings in the EU, including the ministry meetings,
part one is the EU and part two is called the mixed committee,
so any measure related to Schengen is discussed in another committee
where Norway, Iceland and Switzerland walk in the door and join
in, and substantial decisions are made in that area.
Lord Teverson: I understand that, but it is
something I will pursue another time.
Q66 Lord Harrison: I do not see that
the template is the same because your example of Schengen includes
Norway, which indeed is not a member of the EU, but am I right
that in the case of Prüm we are talking about a contiguous
group; they are all within the European Union? The only way I
can interpret your answer is that there may be elements of Prüm
which stand outside what was proposed by the Commission. There
may be an agreement by those 15 Member States within the European
Union so to collude and work together, but the viability of what
is agreed by the 27 Member States under EU law cannot be contaminated,
can it?
Professor Guild: Then we are in the realm of
EU law, as you rightly point out. The question is what happens
to a multilateral agreement among a number of Member States. Unless
they denounce it it continues to have existence. There is no provision
in the Prüm Treaty itself to provide for its automatic extinguishment.
It does not have a set lifetime by a provision within the treaty
itself.
Q67 Lord Harrison: But if this were
to be a clash is that not something that the ECJ would have to
resolve?
Professor Guild: Indeed.
Q68 Baroness Bonham-Carter of Yarnbury:
I think my question is slightly parallel to where Lord Harrison
was going. Baroness Ashton, in evidence to us, said that under
the Prüm Treaty there would be stronger and tighter data
protection requirements than in the proposed framework decision.
What is your view about how close the two are?
Mr Bunyan: We are all in some difficulty on
this one, and I will tell you what the difficulty is in terms
of Prüm and the framework decision. We know what Prüm
says now and we know indeed what Prüm in the EU on policing
was going to say. The draft framework decision was proposed by
the Commission in October 2005 and the opinion of Mr Hustinx was
given in December 2005. The Parliament drafted its opinion and
agreed it in May 2006, but through the whole of 2006 the Multidisciplinary
Group on Organised Crime, which I think your Committee has discussed
at some level of this before, was meeting effectively in secret
although that information came out, but there were major differences,
primarily, I think, because you had a committee I think comprised
people who were law enforcement officials and were talking about
data protection issues. The problem was how do you get law enforcement
people agreeing on what the rights of the data subject should
be? The minute it went up to the Article 36 Committee it started
to bump into problems, and in fact by mid November it was sitting
there; there were no more meetings, no more discussions on it.
In January the German Presidency came in and said that the Commission
should be asked to redraft the proposal and set out a limited
number of principles. Then last week on Friday we got hold of
a new draft from the German Presidency, which was a complete new
draft. I do not know what is going on, first they asked the Commission
to come up with a new draft because there were so many differences
in the Council, so I can only talk in a sense of their new draft
as it is and compare it to what Prüm says. The difference
between Prüm and the new draft as of 13 March—and that
new version is on our website—is that the core of it is
what are the rights of the data subject? In the new draft framework
decision on data protection first of all it loses the distinction,
which was an important distinction in the Commission proposal,
between data gathered that then was going to be passed on, where
the individual knew the data had been gathered, ie, he had been
arrested and the information obtained, and where the individual
did not know the data was being gathered, but in both cases the
individual, under the original Commission proposal, would have
had the right to be informed if that data had been passed on to
another Member State. That distinction is not in this new draft
of 13 March. What it now says in the 13 March draft under the
rights of the data subject to be informed is that they can be
informed unless—and I must admit it needs a lawyer to interpret
this—it is incompatible with the permissible purpose of
the processing. The reason I was concerned about this was that
the reason why the Multidisciplinary Group knocked out the right
of the individual to be informed, and I am quoting here from their
minutes, was that there were so many exceptions that it would
be meaningless, so I do not know what the new right to be informed
means because I do not know what the caveats are and I
do not know how it would be interpreted.
Q69 Chairman: Can I just cut you
short here and ask you to explain what is the relevance of this
to the Prüm Treaty? I am not suggesting there is not a relevance
but I think it would be useful to have an explanation.
Mr Bunyan: If we look at Prüm on the other
hand, what are the rights of the data subject under Prüm,
both in the Prüm Treaty and what is coming forward there
is no right to be informed.
Q70 Baroness Bonham-Carter of Yarnbury:
So they are moving towards Prüm?
Mr Bunyan: There is no right to be informed.
You have a right to information if you request it and prove your
identity but there is no right to be informed, so Prüm is
deficient in that sense. I am also suspicious of the new draft
of the German Presidency; we do not know what that actually means
and its effect. There is another feature which is not agreed effectively
by Prüm, which is that the data protection one does not set
any limits on the exchange of data with third countries. It leaves
all the bilateral agreements in place, although Prüm, of
course, does not deal with exchanges externally. The other point
with Prüm, which is true of both of these, and I made this
point earlier, is that there is no distinction between hard data
and intelligence and supposition. In law enforcement terms there
is a grading of the historical reliability and known reliability
of the source. In other words, has this person proved to be, on
a scale of one to five, reliable or unreliable, and they have
to do this in order to know internally whether they have reliance
in place or not. There is no distinction here which says that
this intelligence can be literally passed over to another Member
State for further processing, so one has a lot of concerns. We
are in great confusion because we have only just got this latest
draft. I do not think the Prüm data protection provisions
are sufficient, the key thing being the right of an individual
to know what is happening to their data. Remember that Prüm
concerns the exchange of data between Member States, and not just
within Member States. It concerns national exchange and exchange
between.
Q71 Baroness Bonham-Carter of Yarnbury:
Do you think the framework decision is going to be concluded before
the end of the German Presidency?
Mr Bunyan: I am not sure we are going to get
a decision on this one. One of the reasons why it is going to
be a problem is that the new data protection draft is sticking
to what was the problem before and saying that because we are
deciding on the exchange of data between the Member States this
must also define the data protection in national laws on national
processing, and that is a bone of contention with a number of
countries, so they have not pulled back from what is a potential
conflict: is the purpose just to cover exchanges or is it also
to define police and judicial co-operation at the national level
which would require changes to our law and everybody's law? I
do not think this is going to go away for a little while.
Q72 Earl of Listowel: Professor Guild,
you have suggested that the Prüm data protection provisions
are not adequate to ensure the exclusion of data mining or data
profiling. Is this a real danger?
Professor Guild: I think the question of whether
it is a real danger depends on the national law of the Member
States because if the provisions within the agreement itself do
not clearly exclude certain practices then you are left with national
law and national practices. We had in 2006 the decision of the
German Constitutional Court finding that practices of the German
police in the use of data in the fight against terrorism was in
fact contrary to the constitution because they considered it to
be effectively data profiling; the rest are filed in judgment,
so we see that the German law enforcement authorities believed
that certain practices that they were carrying out were lawful
and have only recently been advised that under the German constitution
they are in fact not lawful and therefore they are having to change
their practices. Is the judgment of the German Constitutional
Court one which will be followed in all of its detail in the other
26 Member States? That is very unclear. It seems to me that we
need a measure in the framework decision itself to ensure the
constitutionality of the use of data.
Q73 Lord Jopling: If you both had
the ear of ministers what would you be advising them to do with
regard to the forthcoming negotiations over Prüm?
Professor Guild: I would say that at the heart
of the question of co-operation among law enforcement agencies
in the European Union is the question of how we make our criminal
justice systems work effectively with the guarantees we want for
defendants across 27 Member States. If you are going to start
with the exchange of information among law enforcement agencies
you are going to have a huge series of problems when you get to
court because the information has been exchanged with a view to
turning it into evidence which is then admissible in the courts
of the Member States and can be used in trials to find defendants
guilty or not guilty. If you do not have mechanisms of confidence
and equivalence in your criminal justice systems you can exchange
all the information you like; you are never going to get to the
end result, which is that you are putting in jail the right people
and you are acquitting the people who ought to be acquitted.
Q74 Chairman: I think I am right
in saying that in terms of negotiation, and I am not sure to what
extent this relates to the British/German negotiation, one item
in the Prüm Treaty has already been dropped, namely, the
item on hot pursuit. Is that right?
Professor Guild: Yes, hot pursuit and sky marshals
have both been dropped, as have the immigration charges.
Mr Bunyan: Maybe I am an old-fashioned democrat,
but I would like to see in this report the obligation placed on
national agencies to produce annual reports as to the use of the
powers they are going to be given under the framework decision
or the Prüm Treaty. I would like to see annual reports, in
other words, on how many times have you got a hit and have you
been sent evidence as well? How many times has that been used
in cases to bring charges and how many times has that resulted
in conviction? How many times have the data protection authorities
had concerns about the use of the data? I think if we offer it
in the European Union, and we get some of the same things with
PNR, we are not being given what should be public information.
We are talking about aggregate information. Never mind about individual
cases; we are being given the overall figures of what is being
collected, how it is being used, the numbers where there are problems
with it and this should be a question for the data protection
authorities. That does not endanger any kind of policing operation.
Q75 Baroness D'Souza: It is called
evaluation, is it not?
Mr Bunyan: But there is nothing in this to say
annual reports should be produced, and I think that is fundamental.
Only on the basis of that can parliaments and people say, "We
gave you these extra powers. Are you using them properly? Do you
indeed need them?".
Q76 Baroness D'Souza: Are they yielding
useful data?
Mr Bunyan: With great disparity. When we did
work on the SIS about people under Article 96 it turned out that
Italy had put in 179,000 people, Germany about 80,000 people and
some other countries put about 10 or 15 on each. We need to know
is this being used by all Member States properly? Is this power
necessary? I think that is fundamental. The other thing one has
to say about it is that the UK sends out DNA data and, of course,
the UK has got the biggest DNA database in the world. This is
largely because we changed our law on this. The police were meant
to destroy the DNA of people who were not charged and were not
convicted, and they did not to delete them. Then from January
last year people arrested could have their DNA and fingerprints
compulsorily taken even if they were never charged, and I see
in a Home Office consultation paper which came out this month
that they have even proposed that people who are suspected, not
even arrested, can have their fingerprints and DNA taken which
can be kept for ever more, but when you look at other Member States,
and there was a study by the EU last year, which is not a public
study, of the criteria on which DNA and fingerprints are kept,
in most European Union states they are kept and held for serious
crimes, whereas in the UK we are keeping fingerprints and DNA
for all crimes, however minor. There is a very big difference
between the legal basis on which the UK is building up its DNA
data and nearly all the other Member States. I merely signal that
to you as the kind of issue which we should be concerned about
because that might mean all kinds of problems in harmonising that
law to have comparable data.
Q77 Chairman: Professor Guild, can
I go back to my remark about hot pursuit being omitted? The Clerk
has just suggested that the Germans and the initial signatories
of Prüm never asked for sky marshals to be included in it.
Is that your understanding?
Professor Guild: I am afraid I cannot illuminate
you on that question.
Q78 Lord Harrison: I have a very
quick follow-up for Mr Bunyan. Your suggestion about having annual
reports, national reports to national parliaments, is a useful
one but surely you would want to complement that with a report
at the European Union Commission level presumably presented to
the European Parliament?
Mr Bunyan: Of course. I am sorry if I did not
say that. I meant that. I mean national reports to the parliaments
and another by the European Commission and it should be a public
report so that we can see what is happening.
Q79 Chairman: You are talking about
individual reports?
Mr Bunyan: Yes, but the Commission would gather
them. It would be an obligation on the national level to produce
them and they would have the ability to do one report and we would
see the effect across the European.
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