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We were promised a push system three years ago instead of the law enforcement authorities being able to pull the data. Now we are told that January—next

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month—is the target. We are told that the US unilateral undertakings are binding. Do they take us for fools? How can “unilateral undertakings” be binding? As the noble Lord, Lord Wright, says, they tell us that the data elements have been reduced from 34 to 19. This is just a merge of categories—there has been no material reduction in the scope of the information. All we have to do is look at it and read it—we are not illiterate.

We were told that the US federal Privacy Act would apply, not by right, but by grace and favour, to the processing of data of EU citizens. Then, the automated targeting system which would process the PNR data was taken outside the scope of the Privacy Act, thereby totally pulling the rug from under that particular promise.

My favourite one is the whole basis for the use of PNR for profiling. We could have a good argument—which I do not intend to have now—about whether profiling is useful, what are the civil liberties implications and what safeguards we need. The Government accept that, because they state that the system is,

So it is a profiling system. Two weeks ago, Commissioner Frattini came to the civil liberties committee and gave a very similar description of the system to be used under the EU PNR system—I do not have time to explain. Until he was blue in the face, he would not accept that it is a profiling system. So we cannot even have a discussion about whether profiling is useful or dangerous because there is no agreement. Member states and the Commission do not have their ducks in a row as to whether we are using a profiling system.

I am running out of time, so I really must wind up. I wanted to draw the attention of the House to the dangers of where we are going. Mixing my metaphors, I think that we also have a problem of policy laundering, where one measure is used as a pretext for another. An EU measure is used as the justification for having to do things at national level, such as setting up DNA databases, which PrĂ1/4m will require. EU-US PNR is the pretext and model for an EU PNR system. We must end the democracy and data protection deficits, and end this out-of-control system. I hope that it will not take a catastrophe such as disk gate or the rendition of Maher Arar, who also testified to the European Parliament Temporary Committee on Extraordinary Rendition, of which I was vice-chair, giving his harrowing tale, to make us realise that we are going in the wrong direction.

5.12 pm

Lord Jopling: My Lords, the noble Lord, Lord Wright, referred to the fact that a few weeks ago I succeeded him as chairman of Sub-Committee F. I was delighted to be able to do that. I am also delighted to be able to take this opportunity to thank him most warmly on behalf of all previous and present members of the committee for everything that

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he did to make the committee run smoothly and efficiently during the years when he was the chairman. Concerning PrĂ1/4m and PNR, I echo his thanks to Michael Collon and his team of Clerks and our advisers for all the hard work that they have done to help us with these two reports.

I have considerable doubt and misgivings, as well as the ones, which I support, which have already been drawn to the attention of your Lordships’ House by both the noble Lord, Lord Wright, and the noble Baroness, Lady Ludford. I am especially concerned about how DNA profiles are to be handled. The PrĂ1/4m treaty made arrangements for reciprocal access to national databases containing DNA profiles.

The German presidency was extremely enthusiastic about that arrangement, but the truth is that there is no harmonisation on either the collection or the retention of DNA profiles. Most countries use those profiles and databases for serious crime only. That is not the case in the United Kingdom, where our DNA database is half as big again as the combined databases of all the other countries in the Union. In the UK new entries end up on the DNA database with all offences, whether serious or minor. If people are arrested, but subsequently not charged, their DNA details go on the database. I see a problem. If other states use the UK evidence, they are in danger of assuming that the people on the database could have been involved in serious crime; they have different national standards.

I must ask the Minister some important questions. Is he happy that the UK will be divulging more DNA data than it receives? What does he believe the United Kingdom’s share of the traffic between states of DNA details from national databases will be? What grounds does he have for believing that other member states will accept not being given full details, if we choose not to provide them? Will the implementing decision set that out fully, or will there be guidelines about how the information should be transferred? Has the Minister explained to other member states the basis on which we collect DNA information?

The noble Lord, Lord Wright, explained that there was no consultation, no Explanatory Memorandum, no impact assessment, and no cost-benefit analysis on the PrĂ1/4m treaty. The Germans have claimed a great deal of success with the passage of this information. They have told us that information exchanged under the PrĂ1/4m treaty has, in only two months, resulted in 1,510 hits by Germany against the Austrian DNA database. That included 41 hits on homicide or murder cases, 885 hits on theft cases and 85 on robbery or extortion cases. The German Government have suggested that figures will increase. Surely, that will not happen. Those rather dramatic figures are the result of clearing up a backlog of crimes committed before the means of transferring information was created. Once those backlogs are cleared, a decline in the figures is likely.

Does the Minister not believe that the figures that the Germans have been peddling are highly misleading? Why were Ministers prepared to agree with the decision without any realistic assessment of

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its benefits for combating serious crime, let alone the cost, which must be enormous? Has he made any estimate of the likely number of serious crimes that may be solved as the result of the PrĂ1/4m treaty that would not otherwise have been solved?

The noble Lord, Lord Wright, told us in his opening remarks that the PNR data quite correctly were allegedly to be used only to combat terrorism and organised crime. However, the notorious letter from the United States Department of Homeland Security that we have been hearing about tells us that the US will use PNR to protect the data subject or others from dangerous communicable diseases. It may be very worth while to use this sort of information to deal with dangerous communicable diseases, but does the Minister not think that, if we are to have an agreement of that sort, it should be done through an agreement negotiated for that purpose and not through an agreement to combat serious crime?

On the negotiating mandate, the present Leader of the House told the committee in her evidence that she was not prepared to disclose the Commission’s negotiating mandate while negotiations were going on. However, they are now over, and I wonder whether the Minister can disclose to us now what that mandate was and say to what extent he believes the negotiators achieved their objective. I discussed the PrĂ1/4m treaty and the PNR arrangements at the European Parliament last week, and I said that I remembered my role many years ago as president of the Agriculture and Fisheries Council, when I quite often became exasperated at the lack of negotiating skills of some people in the Commission. I caused some amusement when I said that I would not send some of them to market to sell a cow on my behalf. I stick by that, because many of them do not have the first idea of how to negotiate.

Finally, on the European Union’s PNR initiative, Jonathan Faull, the director-general at the Commission’s Directorate-General for Justice, Freedom and Security, has said that the EU should have its own common approach to the PNR system. The Commission has now published a proposal. Sub-Committee F is still awaiting an Explanatory Memorandum before it can scrutinise that document. In order to help the committee, I ask the Minister to say whether the Government support this initiative and will seek to have a system as wide ranging as the United States system, or whether they will look for a system with guarantees for a purpose limitation, with full data protection provisions. I ask this because, when Sub-Committee F comes to examine this document, we may well consider making it the subject of a further short PNR inquiry.

I have asked the Minister a good many questions. I hope that he will be able to answer all of them, but if he cannot answer some of them, I hope that he will write to me.

5.24 pm

Lord Harrison: My Lords, I thank Michael Collon and Anneliese Baldaccini, the ever helpful amanuenses of Sub-Committee F, for their help in preparing these reports. I have not had the opportunity to enjoy the chairmanship of that committee by the noble Baroness,

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Lady Harris of Richmond, but I have enjoyed the chairmanship of the noble Lord, Lord Wright of Richmond, and now the noble Lord, Lord Jopling, not quite of Richmond. I can say that they are both wonderful rapporteurs and raconteurs. They have both, on behalf of the committee, explained the issues before us in the case of PNR and PrĂ1/4m, and illustrated them well from their own experiences. We are grateful for that.

I will not repeat the exegeses that have been presented, most notably by the noble Lord, Lord Wright, as the former chairman, of PrĂ1/4m and PNR. In turning to the PrĂ1/4m treaty, I ask my noble friend why we so hastily agreed to these matters. Indeed, it seemed that we were bounced into agreeing to PrĂ1/4m when there was no proper consultation, impact assessment or costing of what it might mean for us and other member states. We resisted the German presidency ganging up, as it were, with others to present a fait accompli to us all at the end of the story. In many ways I accept PrĂ1/4m and would like to know why the British Government have been so reluctant to accept the treaty, lock, stock and barrel. I understand that this was under very serious consideration for 12 months and I invite my noble friend to say a few more words about why, in the end, we did not take the plunge.

With respect to passenger name records, there is concern that we have so readily capitulated to the Americans in the area of disclosure of personal data. My particular concern is not only that the agreement is so one-sided, but that another element of this was the American demand that any data received under these institutions should be capable of being farmed out to any institution within the United States that the Americans so choose. Indeed, they told us that this is what they were going to do. That really is reprehensible, and I wonder whether we could have exercised our influence under the special relationship to advise them that this was quite unacceptable.

Before coming into this debate today, I had the pleasure of hosting Charlie McCreevy, European Commissioner for the Internal Market and Services, who talked about financial services issues and the regulatory framework that we are building up in the European Union and with the USA. It did not surprise me that the first question posed to the commissioner was why the USA and the European Union cannot trust each other more on these issues. Again, I invite the Minister to think about the relationship that we have had with the USA over so many years, which has been so fruitful and is often called the “special relationship”.

The noble Baroness, Lady Ludford, made some very interesting comments about both of these issues. I am a little more uncertain about the question of profiling. We require a definition of what profiling is done, which is advantageous, right and proper for the defence of the people of the United Kingdom and the European Union, and what profiling oversteps the limits? I am very interested to hear my noble friend’s views on what is legitimate or illegitimate profiling.

Last week, I, too, was with the noble Lord, Lord Jopling, in Brussels. The gathering together of the

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appropriate committees of national parliaments with our friends and colleagues in the European Parliament is very worth while. On this occasion, we discussed justice, freedom and security matters. As the noble Lord said, the third session, which he addressed in his inimitable way, concentrated on and gave opportunities for us to discuss the PrĂ1/4m treaty and the PNR reports, which I understand are so valued in Brussels by our colleagues. It would be true to say that the tenor of the debate as it developed was one of trying to find a balance between personal data and the personal safety of the citizen. I do not think that the issue was resolved, but it was well aired, to the benefit of all.

I shall conclude with further information from that session in Brussels. Jonathan Faull, the director-general of the directorate concerned with justice, freedom and security, reported on the success of the European arrest warrant. Noble Lords may recall that it was the subject of high controversy in this country. He told us that the 7,000 arrests made in the 12 months since it came into practice is double the number of arrests of persons who were examined for nefarious activities of one kind or another relating to terror. That is an example of the member states of the European Union acting together and swapping information, thus easing our ability to bring to justice those who need to be brought to justice.

I say that because I return in particular to the PrĂ1/4m treaty. Sometimes there is a dislocation between the ambitions of our Government to alert us and the rest of the European Union to the very real threats of terror that beset us in the modern world and our reluctance from time to time to engage more closely with our European Union colleagues to put into practice those measures which would aid and abet us in that task. I have long thought that I should add my enthusiastic support for Labour Governments to my record in the hobbies section of Dods. It is a hobby that I have practised over many years. I invite my noble friend to say a little more on the very real opportunities that from time to time we neglect, particularly these two very difficult subjects.

5.33 pm

Lord Marlesford: My Lords, I too congratulate the noble Lord, Lord Wright, on his skilful chairmanship of Sub-Committee F. He was very good at dealing with people, however difficult they were and whether they were members of the committee or witnesses. I was lucky enough to be a member while it was inquiring into the PrĂ1/4m convention and the EU-US Passenger Name Record agreement. I should also like to congratulate the noble Lord on his excellent introduction to this debate, which set out so clearly the nature and importance of the somewhat esoteric subjects of our two reports. I hope that his speech will be widely read in Brussels and, of course, in both the Home Office and the Foreign and Commonwealth Office. Our reports, which owe much to the perceptive intellect of our Clerk Michael Collon, brought out several important and general points that the noble Lord, Lord Wright, highlighted. In my short contribution, I want to focus on those aspects.



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First, the way in which PrĂ1/4m was handled demonstrates some serious shortcomings in how the EU operates, and the extent to which Parliament is able to scrutinise effectively what the Commission gets up to. I should say straight away that when we are dealing with urgent and serious challenges such as terrorism and crime, I have no objection to some countries in the EU getting together to make faster progress than might be possible if the Commission is left to initiate action on the basis of discussions with all 27 member states. However, that cannot and must not be a reason, let alone an excuse, for any agreement reached by that self-selecting group of EU member states being converted into EU law without the fullest consultation and discussion by all 27 members. That consultation takes time and may throw up problems. But rushing into legislation that has not been properly discussed will not only risk bad legislation but can irritate and even alienate individual member states and thus reduce the reputation of the EU among the populations.

As the noble Lord, Lord Wright, has illustrated, the way in which PrĂ1/4m was handled failed to ensure that UK concerns were fully taken into account, especially on costs to the taxpayer. More serious still is that the Home Office appeared to us to have scant regard for the importance of parliamentary scrutiny, for which your Lordships’ House not only has a special responsibility but a high reputation in Brussels. For the Government to have agreed on the incorporation by other states of aspects of PrĂ1/4m at the Justice and Home Affairs Council before our concerns were met and for the Home Office then to suggest that that did not amount to scrutiny override is, frankly, as deplorable as it is unacceptable.

We are all well aware that much of what is decided in Brussels is based on deals between Governments. It is usually called horse trading, or, as my noble friend Lord Jopling would say, cow trading. I recognise that it would be difficult to give training in those excellent arts to the majority of civil servants, whether in Brussels or home departments, but I was reflecting that I might suggest an alternative way of assessing their abilities—by assessing their prowess at playing the wonderful game of chess.

Obviously, the FCO plays a major part in such deal-making: that is one function of diplomacy. But that is precisely why parliamentary scrutiny of the merits of actual issues is so crucial. The deal-making aspects of the EU are among the things making it so unpopular at street level. Although we will never achieve it, we should at least strive for purity, objectivity and integrity in EU decision-making.

This Government, with their emasculation of the scrutiny of domestic legislation by the House of Commons through the hugely retrograde step of imposing a timetable, or guillotine, on every Bill immediately after Second Reading, have in that respect shown scant regard for Parliament. Frankly, the Home Office has been one of the worst culprits by rushing one law and order or justice Bill after another through Parliament, with the result that the inadequacies of ill-digested legislation instantly seem to make necessary further legislation, which is once

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again drafted at lightning speed. I am afraid that it is part of the cultural arrogance of the Home Office. It is an arrogance which has become more destructive as the quality, ethos and morale of civil servants in many departments have deteriorated over the 40 years that I have been a Whitehall watcher.

As an aside, I would like to tell the House how delighted I was to learn in a Written Answer last week from the noble Lord, Lord West of Spithead, that the National Firearms Licensing Management System has at last gone live. I say “at last” because it has taken 10 years from the time that the Government were required by Parliament to do so by Clause 39 of the Firearms (Amendment) Act 1997. It was originally my amendment, passed against Home Office wishes, with all-party support in this House. For years, the Home Office ignored it and then tried to sabotage it.

I owe a debt to several successive Home Office Ministers, including our late and much-lamented colleague Gareth Williams, the noble Lord, Lord Rooker, and the noble and learned Baroness, Lady Scotland, all of whom pressed the Home Office to introduce the gun register. Of course, I also owe a deep debt to my noble friend Lady Anelay, and the noble Lords, Lord McNally and Lord Corbett, for their constant support. But it was a shameful saga.

I now turn to the passenger name record. Here again, I support the concept of allowing the United States to have access to personal information about passengers to prevent terrorists or serious criminals flying. However, there were, as the noble Lord, Lord Wright, and others have described, all sorts of specific problems with the scheme proposed and then adopted. The greater the threat we face, the more discriminating we must be in the methods of defence that we use. PNR was eventually forced through, virtually unamended, by the American Government and I agree with the noble Lord, Lord Wright, that it is lamentable that HMG did not stand up a great deal more firmly for our national interests. I feel that the FCO should have brought this issue to the notice of the American Administration at a high level, together with the other problems that we are having with the United States, to make it clear that it is wholly unacceptable for the Americans to treat the EU as some sort of third world country to be patronised and ordered about.

It was only this week that the Times, on 2 December, reported the amazing claim by Mr Alun Jones QC, representing the American Government in a case being heard by the Court of Appeal, that it was acceptable under American law to kidnap people overseas if they were wanted for offences in the United States. Sadly, in all too many ways, the United States has in recent years been using its great power, which should be for the good of the world—as it has been historically—in ways that have reduced American international influence. From that we are all losers.

There are, as I have tried to show, important lessons to learn from these two reports and I hope very much that the noble Lord, Lord West, will indicate that the Government will take them to heart.



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5.43 pm

Baroness Harris of Richmond: My Lords, I, too, have found this a most interesting and important debate. As ever, I am disappointed by the number of noble Lords present, but anyone who has been involved in European Union Sub-Committee reports presented to the House will recognise that this is a similar turnout to most other reports that are read. It is a shame that more Members are not here to listen to what has been a fascinating and important debate.

Before I begin, I must declare an interest as a former chair of Sub-Committee F. I well recall the time when that excellent committee looked in horror at the proposals being put in place between the EU and the United States on the exchange of data, which I will address in a moment.


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