Examination of Witnesses (Quesitons 160-179)
Ms Cecilia Verkleij and Ms Despina Vassiliadou
2 APRIL 2008
Q160 Lord Marlesford: You can have a system which appears to operate very well and is quite resource intensive, and then you suddenly find a total gap. If I give you a recent example in the UK, we have a Commissioner for Interception of Communications who checks that the appropriate warrants signed by a secretary of state have been made. That Commissioner is normally, I think, a senior judge and he reports to Parliament and all the rest of it. The other day it was suddenly discovered that a Member of Parliament—it happened to be a Member of Parliament, which is really why it came out—was visiting one of his constituents in prison and his meetings with this prisoner were being bugged and it was found that this was perfectly legal. It was being done by the prison authority at the request of the police but it was perfectly legal and nobody suggested there was anything wrong, but of course it made a total nonsense first of all of the idea of secretaries of state having to give permission for interception of communications and, secondly, having a commissioner to check that it had all been done properly. You may have some difficulty in designing an oversight system which is anything like watertight.
Ms Verkleij: Let us be realistic about this and be ambitious in terms of working towards a functioning oversight. You will discover because of your oversight that there are gaps and there are problems, but that shows again the need for an oversight system.
Q161 Lord Teverson: Under Article 11, all processing of PNR data will be governed by the Data Protection Framework Decision, something that we have talked about within this sub-committee over the last couple of years. Given that the scope is limited to cross-border data exchanges, do you consider this data protection regime to be adequate? If you get rid of the Third Pillar and we move on to a post-Reform Treaty what happens then?
Ms Verkleij: When we worked on the European PNR proposal the discussions in Council on the Framework Decision and data protection were still ongoing, and it was not clear at that moment in time what the scope of application of the Framework Decision on Data Protection would be. We had hoped that we could come to an agreement that it would be applicable both to domestic and cross-border processing and with that in mind we included a reference to the Data Protection Framework Decision, hoping that it could cover these forms of processing and also because the aim of the Framework Decision is indeed to provide adequate privacy conditions and guarantees for the use of personal data by law enforcement activities, exactly what the PNR proposal is about. It turned out differently. The political agreement reached in Council in November limited the scope of application of the Framework Decision on Data Protection to cross-border and that, of course, has triggered some debate in Council about the application of data protection provisions. At this stage of the debate some Member States have raised this issue and have suggested not simply to have a reference to the Framework Decision on Data Protection but to include specific data protection provisions in the instrument so as to make sure that guarantees similar to the Framework Decision on Data Protection are also applied within the framework of the PNR Framework Decision. That is the strength of thinking for the time being.
Q162 Lord Teverson: It is an evolving area?
Ms Verkleij: Exactly.
Q163 Lord Teverson: The Data Protection Framework Decision applies only to data processed by public authorities responsible for law enforcement. What data protection provisions will apply to private sector bodies involved, such as airlines and their intermediaries, for example SITA, and all the multiple agencies that are involved in handling this data at some point?
Ms Verkleij: It is important to bear in mind again the scope of the proposal and its limits. The proposal starts at the moment that data are transferred by air carriers to law enforcement authorities in Member States. The collection of PNR data by air carriers as from the moment that you make a reservation for your trip, at the moment of check-in and the moment of boarding is done for commercial purposes. That means that that kind of processing remains entirely covered by the Data Protection Directive of 1995. There is no change in the data protection regime as far as that is concerned because the directive is meant to cover those issues. What we had to cover was first a change in purpose, so the use of the data by law enforcement means that it is no longer for commercial purposes but for law enforcement purposes, and that obliges us under our privacy rules to provide for a separate legal basis. It also means that you then have to look into specific data protection provisions which relate to law enforcement, so as from the moment of transferring the data to law enforcement authorities the law enforcement data protection provisions become applicable.
Lord Teverson: I am sure as normal citizens we will all understand that perfectly.
Q164 Chairman: Thank you very much. The very last question falls to me, which is to ask you how you are getting on with the fresh proposal which you will be presenting once the Treaty of Lisbon is put into effect. Is it nearly complete or have you still got quite a lot of work to do on it?
Ms Verkleij: We are all hoping, of course, that Lisbon will enter into force on 1 January 2009 because that gives us a very concrete timeline to work against. What we aim to do is discuss with Member States as much issues as possible, take stock when Lisbon enters into force and reformulate them in a new Commission proposal. We then have to see whether we have to go through a new impact assessment, whether we have to go again for wide consultation. We will have to see. These issues always trigger a lot of interest, for which we are very grateful, but it also means that you do need a bit of time for a proposal to go through this whole process, which means that the discussions in Council and all the work we have been doing is not lost. On the contrary: as you said earlier, with Lisbon and with the work done in the run-up to Lisbon, we may hopefully get a better result so let us work on that presumption.
Q165 Chairman: Thank you, both of you, for coming. You have answered our questions with a great deal of charm and a great deal of clarity. Thank you very much. I must say the face of the Commission this afternoon compared with the portrait that was painted of it this morning is somewhat different, but we much appreciate your presence. We are hoping that we shall agree on a report by the end of this month and publish it towards the end of May. We shall be glad to send you a copy of it and no doubt that will help you to prepare the next proposal I referred to next year. Thank you very much indeed.
Ms Verkleij: Thank you. We are looking forward to receiving your report and feeding that into the debate.
Chairman: Good.
Q166 Chairman: Mr Hustinx, welcome and welcome to your colleagues as well. I will ask you in a moment to introduce them for the benefit of the shorthand writer. As you may know, we are on the record. The Committee is doing a brief inquiry into the latest proposal for a PNR system in the European Union. We are hoping that we shall come to an agreed report by the end of this month and publish by the end of May. That is our intention at the moment. We have had evidence in the past from our Minister and we have had evidence this morning from the European Parliament and, as you know, just now from the Commission, and so we are particularly grateful to you for coming to, hopefully, dot all the i's and cross all the t's. Perhaps you would begin by introducing your colleagues.
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