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EU: Personal Data

Volume 737: debated on Wednesday 20 June 2012

Motion to Take Note

Moved by

That this House takes note of European Union Document No 5833/12 and Addenda 1 and 2, relating to a draft directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data; and takes note of the Government’s recommendation not to exercise their right to opt out of this draft directive under Protocol 19 of the Treaty on the Functioning of the European Union (The Schengen Protocol).

My Lords, the noble Lord, Lord Pearson of Rannoch, who I am glad to see in his place, has put down an amendment that will, I suspect, structure our debate. The noble Lord’s amendment is in two parts. First, he did not want us to exercise our right to opt in to this regulation and secondly, he regrets that this House had no opportunity to debate that decision before the deadline on it of 14 May.

Perhaps I may deal with that last point first. I wrote to the noble Lord, Lord Boswell, the new chairman of this House’s European Union Committee, on that matter. I wrote:

“I apologise to the Committee that the Government did not draw the Committee’s attention to the opt-out sooner. The issue of whether the Directive should be considered as triggering the possibility of a Schengen opt-out or not is a complicated one and I do recognise that the Government reached its conclusion on this matter later than was ideal … I would like to reassure the Committee that lessons have been learned by the Ministry of Justice in relation to the important issue of informing the Parliamentary Scrutiny Committees of opt-in or opt-out decisions and I thank you for your patience and understanding on this occasion”.

To that, the noble Lord, Lord Boswell, replied with his usual kindness and courtesy:

“We are grateful for your letter and will look forward to considering the Directive further in the debate which is scheduled to take place in the House on 20 June 2012. We will continue to hold this proposal under scrutiny and will look forward to receiving updates on the progress made in negotiations in due course”.

I hope that that apology to the committee, and now to the House, will be sufficient to deal with the quite legitimate complaint of the noble Lord, Lord Pearson, on this matter. As I said, it was partly because of the timing of Prorogation and the difficulty of deciding the technical issues, but we have learnt lessons and I sincerely hope that it will not happen again.

The debate also gives an opportunity to debate the proposed data protection directive, which the European Commission published on 25 January. That directive will cover the handling of personal data by public authorities for police and criminal justice purposes. It is therefore an important instrument that affects security as well as freedom and it is right that the House is given the opportunity to consider the proposals.

Negotiations on this instrument are at an early stage, so this debate is timely as there is still much to be discussed in the Council of the European Union and in the European Parliament during the months and possibly years ahead. I understand that the European Commission is looking to conclude negotiations on this directive during the Irish presidency of the Council of the European Union in the first half of 2013. However, it remains to be seen how realistic that timescale is. That puts into context the fact that we missed this one issue. It is not that the House will not have time and opportunity to return to these measures during the next months, and perhaps even years.

In the case of the proposed data protection directive, it is the view of the Government that this directive can be classified as a Schengen-building measure and therefore, under Protocol 19 of the Treaty on the Functioning of the European Union, the UK had the option of opting out of the directive. The deadline for notifying the Council of the European Union of that decision to use the opt-out was, as I said, 14 May. On this occasion, the Government decided that we would not exercise the opt-out. The decision followed a full debate in another place held on 24 April 2012.

I should say that we had also wanted to hold a debate in this House ahead of the decision on whether to opt out, but were regrettably unable to find time, partly because of Prorogation, and partly because of delays in deciding whether to accept that the directive was Schengen-building. However, the critical issue for discussion is our position on the detail and how we go about engaging with our European partners in ensuring that the directive works in the British national interest. On this, there remains ample opportunity for this House to influence the Government’s strategy.

Let me begin, however, by setting out the background to the directive, and the Government’s approach in considering it. Currently there are two pieces of European legislation governing data protection: first, a 1995 directive that relates to the use of data by businesses, public bodies and other organisations; secondly, what is known as the 2008 framework decision on data protection, which governs use of data by police and criminal justice bodies. The Commission is bringing forward a package of measures that replace the directive with a regulation, and the framework decision with a directive.

The Government’s approach on the regulation is a matter for another day—although broadly speaking we recognise a case for updating the law, but have concerns on the detail. On the directive, we have approached it on the basis of a clear position: that the continued ability to share information on crime and justice matters across borders is of fundamental importance. In an increasingly globalised world, crime does not stop at the port or the airport but happens across jurisdictions or involves people of many different nationalities.

The Government support proportionate, clear and coherent data protection rules that keep personal data safe and protect the rights of citizens. We also support the free transfer of data across borders and between organisations where it is necessary to prevent crime, increase security and help to keep our citizens safe. We believe that appropriate data protection rules and security go hand in hand and are not mutually exclusive. Our first priority in considering the directive has been to protect arrangements that allow information to be shared within the EU for the benefit of the public and the protection of their safety and freedom.

The challenge with this measure is that, although parts of it are welcome and will help in the fight against crime, some of its provisions are excessively bureaucratic and unwieldy. As our impact assessment shows, as currently drafted we have concerns about the costs it would impose on UK law enforcement agencies—for example, a requirement to appoint compulsory data protection officers and a bureaucratic requirement on keeping documents and records.

There is also a point of principle at stake. We are very concerned that, despite the fact that Europe’s focus should properly be on cross-border sharing of data, the directive has been drafted so as to apply to domestic processing of data. That is, unlamented, it would affect rules on information being shared by police forces within the borders of one country. We think that that is impractical and a matter best left to national governments.

Our approach in thinking about our position on the directive has been to work out what is the best way of securing the benefits of continued data-sharing while minimising the costs of a measure that, in some respects, goes further than we are comfortable with. Our judgment has been that, despite our concerns about the current text, the best approach is engagement to ensure that it works for Britain.

There are a few reasons for that. First, the directive is the opening position in what will be a lengthy and ongoing process of negotiation. The UK is far from the only member state to have concerns about the text. We believe we can secure a much better deal by working with our partners rather than by trying to isolate ourselves. Secondly, the legal base of this measure gives the UK an effective exemption on the issue that we have been most concerned about: domestic processing of data.

The directive is based on Article 16 of the Treaty on the Functioning of the European Union, the new data protection provision included in that treaty by the Lisbon treaty. Under Article 6a of the UK and Ireland’s protocol applying to justice and home affairs—Protocol 21—the UK has what we believe to be firm protection ensuring that the provisions of the proposed directive on internal processing will not apply to us.

Despite the fact that we have that exemption, the Government are none the less keen to try to defend the point of principle and ensure that the directive does not apply to domestic processing for any of the member states, as we consider that there is no justification for extending EU regulation to this area. We will be supporting other member states in pressing this in negotiations.

Before 14 May, it was of course open to us to exercise the opt-out on the directive and I had better say a word about why we decided not to do so. Our judgment was that opting out would be a very bad idea because it would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive. The reason for that was that even if we did opt out, other member states would have continued to be bound by the terms of the new directive, which would have been negotiated in our absence. The status of existing rules governing the sharing of data would have been thrown into disarray, with a high probability that the UK would have had to negotiate new bilateral arrangements with each of the member states.

Other member states would not have wanted to share data with a country that they consider might not protect it to the same extent as the regime they operated. Rather, they would have pressed the UK to adopt similar requirements to the directive so that they would be able to operate within the same regime. All told then, opting out would not have stopped us being subject to the obligations of the directive. More likely, it would have meant being bound, albeit indirectly, by a measure that we would not have participated in negotiating and shaping. Furthermore, an opt-out would have reduced our ability to negotiate essential data-sharing agreements, such as the passenger name records directive and the EU-third country agreements, and thrown into doubt other, broad Schengen measures. This would be a serious problem for our law enforcement agencies, which benefit from the sharing of criminal data under Schengen.

All told, we have judged that the national interest is best served by participating in this directive so that we are party to the framework governing data-sharing for policing and criminal justice across the EU. The priority now is to build trust across member states for the necessary sharing of data to protect our citizens and make the strongest case possible for this to be done within a framework of appropriate and proportionate rules. Let me be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom and to take steps that imperil those agreements would put us all at risk.

We want to see a system that allows police and criminal authorities to continue to protect and serve the public effectively, and which also allows individuals to be confident that their privacy, safety and freedom will be safeguarded. The Government believe that these two objectives are not contradictory but can be achieved in tandem by creating a data protection framework founded on the principles of necessity and proportionality. We would, naturally, already expect robust data protection governance as a matter of course in public authorities. However, we would question the necessity of having the European Union telling us how to create, organise and run these arrangements. The more prescriptive and burdensome aspects of the directive are opposed by the Government and we will seek to remove or mitigate them during the negotiations in the Council of the European Union.

I repeat: this is the beginning of a lengthy process of negotiating. The UK will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objective, which is to end up with an effective but proportionate framework. We expect that other member states will share the same outlook. We believe that an opt-out decision was a possibility for the Government but would have been the wrong choice. It is not possible to have data-sharing without data protection. We want to be part of a European data protection framework that protects both security and freedoms and we believe that the limited application of the directive means that we should be content to be part of it. While there are areas of the proposal that the Government will seek to alter so that they provide an appropriate level of flexibility for law enforcement bodies, we are clear that UK participation in this data protection directive is in the UK’s best national interests. I beg to move.

My Lords, I am grateful to the noble Lord, Lord McNally, for his apology to the Select Committee and to the House for the way that this draft directive has been handled but it might still be helpful if I put on the record the story so far. I trust it will be in order if I start by addressing the second or procedural part of my Motion and then deal with the draft directive itself and the question of our opt-outs.

Noble Lords will be aware that, under the European treaties, the British Government have a block opt-out in the field of justice and home affairs. Until the end of May 2014, the Government can opt out of all EU legislation affecting police and judicial co-operation in criminal matters. They have to opt out of all of it but would then be free to opt back in to any individual directives, et cetera, by which they wished us to be bound. However, if in the mean time they had agreed to amend any of them or had said that they will not opt out, they lose their right to opt out in those cases and will have opted in to them.

I am most grateful to the noble Lord for giving way. I wish that I could call him my noble friend because he is a close friend. I wish that he was still in the Conservative Party and hope that he comes back soon. Is he aware that, to my recollection at least, three Prime Ministers in the past 10 years have given a firm assurance that we would not tangle with corpus juris, which is one way of defining the European criminal legal system? As I am sure he is going on to say, is the true context in which this matter should be discussed not on a narrow issue of data protection?

My Lords, I agree with my noble friend, if I may refer to him as such. Of course, corpus juris is just one of the many important examples of how the octopus in Brussels slowly puts its tentacles around our sovereignty and democracy. I remember it first being raised at an academic conference, I think in Spain, in about 1990 and someone who was there got very excited about it and said that this corpus juris—the Roman words for the body of Roman law—was going to come into the EU and that we were going to do it. We were of course told by the then Conservative Government that that was complete nonsense and that it was only an academic idea. We went through all the usual stages of the advance of the octopus. Then we were told that it was in fact a sort of proposal but that no one else agreed with it: “Don’t worry, the British Government are going to see this one off”. Then of course we move further on and what we are looking at is certainly an example of the advance towards corpus juris.

The Government have promised that any decisions to opt in to any of this legislation will be debated and subject to a vote in both Houses of Parliament. A deadline for the Government’s opt-out on this draft directive had been set for 14 May this year. As the noble Lord, Lord McNally, mentioned, the House of Commons debated and voted on it on 24 April, with the Minister confirming that the Government were thus fulfilling their promise to Parliament—that we should debate and vote on each of these opt-ins. Yet even in the Commons there was considerable dissatisfaction with the way that the Government handled the matter. The Motion was tabled on the day of the debate, without the Commons EU Select Committee being given an opportunity of scrutiny. The chairman of that committee, Mr Bill Cash, described it as a “disgrace” and the whole debate is a powerful indictment of the directive and of the Government's behaviour. I recommend the debate to your Lordships.

However, when we come to your Lordships’ House the Government’s behaviour is, alas, even less excusable. The Government were aware of the deadline for their opt-out of 14 May many months ago. Indeed, the Home Secretary wrote on 21 December 2011 to the noble Lord, Lord Roper, who was then the chairman of our EU Select Committee, revealing the 133 measures that were still subject to our opt-out. I will come back to their substance later. I am not aware of what our Select Committee did then but I understand that the noble Lord, Lord Hannay, may be going to enlighten us. The Government failed to table their proposed Motion for debate here until 21 May, a week after the deadline for their opt-out on this measure, so that we were already signed up to the thing by the time we came to debate it—let alone to vote on it. The noble Lord, Lord McNally, mentioned Prorogation, but I remind him that we took a week’s extra holiday before that, and I cannot help feeling that this Motion could have been squeezed in.

Your Lordships might think it worse that the Government tabled their Motion in the Moses Room, where we cannot vote, so they broke their promise to give your Lordships a vote on this directive and pretended that we were not entitled to one by putting the Motion into the Moses Room.

The only thing one can say in favour of the Government’s Motion on 21 May is that it was slightly more honest than the one in front of us this evening. It asked your Lordships to take note of the Government’s decision not to exercise their right to opt out, which at least confirmed that they had already taken the decision not to opt out because the 14 May deadline had passed. Tonight, we are asked to approve the Government’s recommendation that they should not exercise their right to opt out. Will the Minister explain? Are the Government recommending for our approval that they opt in or will he confirm, as I think he has, that we have already opted in? If so, what is the point of the word “recommendation”?

I was so annoyed by the Government’s behaviour that I tabled a Motion of Regret in the Moses Room, on which I said I would vote, so the Government had to move their Motion to your Lordships’ main Chamber, which is why we are here now. I hope that at least I have raised the profile of our 2014 opt-out and the way the Government are handling it. There is widespread suspicion that the Government intend to opt in to the measures in question one by one, preferably when we are not looking too closely, so there will not be much left to opt out of in 2014. If this is wrong, will the noble Lord, Lord McNally, tell us this evening what the Government’s intentions are? It may help if I remind him that I asked him this as an Oral Question on 8 February 2011 at col. 121. He answered with, I have to say, unusual coyness that it was all very difficult and the Government had not made up their mind. Have they done so now? The noble Lord, Lord Henley, indicated at Oral Questions today that the Government are still in a muddle. Can the noble Lord elucidate?

I look forward to his reply because the Written Answer from the noble Lord, Lord Henley, on 28 May, col. WA 102, was less than helpful. I asked what measures were still subject to the UK’s opt-out, which we had already agreed, which the Government did not intend to opt in to and so what would be the position on 1 June 2014. The Minister replied that the list of all measures subject to the 2014 decision had been annexed. I referred earlier to the letter from the Home Secretary to the noble Lord, Lord Roper, on 21 December 2011 that the Minister said he would put in the Library of your Lordships’ House. The Written Answer also gave me a link to the letter and the enclosure. I suppose it is hardly worth mentioning that the letter and enclosure were not put in the Library and that the link did not work. However, the Library was good enough to extract the documents for me from the Home Office on Monday, so they are now in the Library of your Lordships’ House. They reveal that last December there were 133 measures that were subject to our opt-out. I say that the Minister’s Written Answer of 28 May was unhelpful because he concluded:

“Given that the Government cannot say with certainty what proposals the Commission will bring forward, it is not possible to say what the position will be in 2014”.—[Official Report, 28/5/12; col. WA 103.]

The Home Secretary listed all 133 measures as at 21 December last, and it was revealed on 28 May that we have already opted in to eight, including the one before us tonight. Why can the Government not tell us what they are doing about the remaining 102? Surely they must already know their position on them? Or are they telling us that Brussels has a whole lot more up its sleeve that have not yet been revealed, even reluctantly? For instance, the Home Secretary said in her letter of 21 December that the Government are aware that the Commission is planning proposals for next year involving revisions to Europol, CEPOL—the European police college—Eurojust, the framework for co-operation on confiscation of assets and criminal measures to tackle counterfeiting the euro, all of which are on the current list. The noble Lord, Lord Spicer, has a point; we are moving towards corpus juris. Is the Minister aware of any more?

I now move to the substance of the directive which we have already opted in to and related matters. A number of technical objections to it were raised in the Commons, which I will not waste time by repeating now. They include the Ministry of Justice’s impact assessment, which apparently found that the overall impact is likely to be substantially negative. I think the noble Lord, Lord McNally, has already commented that the Government will try to reduce its cost.

The Government’s Motion before us states that the data processing will be conducted by competent authorities. Can the Minister tell us exactly who these competent authorities will be? He will forgive me if I say that I am not aware of any authority in the European Union that is vaguely competent, but I look forward to the answer. The Government’s Motion refers to,

“the protection of the individuals with regard to the … free movement of”,

personal data. What does that mean? What is the present and anticipated state of the free movement of our data?

The noble Lord, Lord McNally, told us of the Government’s present position, but I cannot agree with the decision to opt in to this directive, if only for the fact that this and all our opt-ins remove yet more of the sovereignty of our Parliament and courts to the jurisdiction of the European Commission and the Luxembourg court. The Government’s action should have been obvious. They should already have exercised their block opt-out so they would now be free to opt in to any measures that they felt were useful, subject, of course, to a vote in both Houses. Interestingly, the Prime Minister agreed with this on 4 November 2009 when he said:

“We must be sure that the measures included in the Lisbon treaty will not bring creeping control over our criminal justice system by EU judges. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law”.

The arrangement is right there, staring him in the face. He does not have to negotiate anything. He just has to use the opt-out that existed when he made that speech.

I have one other question for the Minister which comes from a debate in the Commons. Mr George Eustice told us that Denmark has opted in to some of these measures, but has managed to do so excluding the jurisdiction of the Luxembourg court. I do not know whether the Government feel like imitating that.

The sad fact is that the Prime Minister’s Government have already opted in to eight of the more significant measures according to their Written Answer on 28 May, as I have mentioned. They include the one before us and directives on the European investigation order, combating sexual abuse, the exploitation of children and child pornography, attacks on information systems and minimum standards for the rights, support and protection of victims of crime.

Whatever noble and Europhile Lords may say about the desirability of these initiatives and the need for action at a European level, those should not outweigh the protection of what is left of our national sovereignty. Where we want to collaborate with foreign Governments, we can do so. We do not need the incompetent and well known judicial activism of Brussels and Luxembourg to take over. Of course, we Eurosceptics know that we would be better off out of the whole thing anyway, but we object strongly to such initiatives as Europol, CEPOL, Eurojust, the European investigation order and, perhaps above all, the European arrest warrant. It is heartening that a growing majority of the British people agree with us.

I have one final question for the Minister. Will he tell us why the directive before us, the seven others that we have already opted into and the 125 that await their turn do not amount to a substantial transfer of sovereignty to the European Union and therefore trigger a referendum? I will be most interested in the noble Lord’s reply. I beg to move.

My Lords, I find myself in the happy position of agreeing with much of what the two previous speakers said—even with much of what the noble Lord, Lord Pearson, said in the first 10 minutes of his speech. I welcome this debate, whatever its genesis. It shows that the Government are adopting an open approach to what may be a technical measure, and which may excite little attention in the media, despite, I am sure, the best endeavours of the noble Lord, Lord Pearson. Nevertheless, it will have significant consequences for the people of this country. The Commission’s proposals have complex ramifications, as the noble Lord, Lord McNally, has already said. At this point, I want to make only a few general points.

Unusually, I agree with at least the part of the Motion in the name of the noble Lord, Lord Pearson, that deals with process. He is surely right to say that the complex process of deciding whether to opt into or out of this crucial area of public policy must be as transparent as possible. However, the apology of the noble Lord, Lord McNally, was handsome and should conclude this matter. As I remember only too well, these things happen in government and I am sure that the appropriate lessons will have been learnt by the Government in this case.

Turning to the substantive issues, the proposal for the directive alongside the data protection regulation seems to owe more to an administrative prism in Brussels than to common sense, which suggests a single instrument. Requiring the police and other organisations such as local authorities to follow one set of rules for the law enforcement data that they hold and another for all other data is surely a recipe for confusion and breach. Individuals will be unclear about what rights they have and in what circumstances they might apply.

The directive also appears to be weaker than the regulation in certain key aspects for no apparent reason. For example, why does the directive not include provision for privacy impact assessments, as the regulation does? I understand that British police forces already carry them out, so why can this not be included in the directive? However, as the noble Lord, Lord McNally, said at some length, the fact that there is clearly room for improvement in the directive surely cannot mean that the UK should have opted out. On the contrary, as the noble Lord, Lord McNally, has again said—I want only to support what he said—this would only damage British law enforcement. Other European states are going to proceed anyway, whatever we do. If the UK had opted out, that would surely have led to different regimes, and if elements of British data protection were seen to be weaker than the EU regime, it would inhibit data transfers and law enforcement co-operation.

I am not as sanguine as the noble Lord, Lord Pearson, about our ability to negotiate agreement effortlessly with other states on this. A whole succession of bilateral agreements would be complex, protracted and add layers of bureaucracy to law enforcement processes that often, by their very nature, have to be conducted speedily across many borders, as the noble Lord, Lord McNally, has said. Negotiating such a set of bilateral treaties would surely complicate and damage law enforcement.

Finally, I will briefly take the opportunity to nudge the Minister on another data protection issue—the introduction of the sentencing option of custodial terms for breaches of Section 55 of the Data Protection Act. This has been a long time coming. It was a long time coming under the previous Government and there has still been no real progress. However, surely it is now time to do what the Information Commissioner urged the previous Government and this one to do. This does not depend on the outcome of the Leveson inquiry; its main relevance is to breaches by those other than the media. Fines simply do not deter breaches of Section 55. For example, I understand that the going rate for a Section 55 offence in magistrates’ courts is £130, whereas a claims management company will pay £500 for a lead. Therefore, I hope that, amid all the other questions that he has to deal with in responding to this debate, the Minister might be able to give some words of comfort about the Government’s commitment in this area.

My Lords, the Minister has made a handsome apology and I agree with the noble Lord, Lord Wills, that that should be an end to this. My noble friend does not suggest that the process has been well conducted or that it will happen again. It is not helpful for noble Lords to accuse the Government of bad faith or dishonesty, as the noble Lord, Lord Pearson, has. That is unworthy of him and of this debate.

To complete the chronology of what happened, as we know, the Commission published its proposals on 25 January. Very quickly, on 7 February, the Ministry of Justice called for evidence by 6 March. On 14 March, a report was published by the House of Commons European Scrutiny Committee, which analyses this matter in depth on pages 42 to 63. There was then a debate on 24 April, which was referred to by the noble Lord, Lord Pearson. What he did not say is that in the vote on whether to take note, those who agreed with him were defeated by 267 to 24. No one can say that what happened in the other place was in any sense an absence of parliamentary scrutiny. I have had the privilege of serving on the EU Sub-Committee on Justice and Institutions three or four times during my time in this House. I take great pride in the fact that scrutiny is conducted better in our Parliament than in any other throughout the European Union.

I have listened very carefully to the Minister and read—as has the noble Lord, Lord Pearson, apparently—the Government’s explanation in the other place of why they took the course that they did. In his speech, the noble Lord, Lord Pearson, did not reply at all to any of the arguments that were put forward in the other place and here on the Government’s course of conduct. In the other place, the Minister, Mr Blunt, said that there were three main reasons for deciding not to opt out. The first was that,

“the directive is at a very early stage of negotiation”.

The second was that,

“the legal base of the measure gives the UK an effective exemption on the issue about which we are most concerned: internal processing of data”.

He went on to say:

“Thirdly, and most important, exercising the opt-out would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive”.

He continued:

“If we were outside the directive, our ability to negotiate essential data-sharing agreements”—

of which there are many examples—

“could be significantly undermined”.—[Official Report, Commons, 24/4/12; cols. 886-87.]

The Minister in the other place said:

“Let us be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom, and we take steps that imperil them at our risk and at risk to our citizens. Let me give an example, which concerned a 32-year-old Romanian national who was arrested in the United Kingdom on suspicion of raping two women within the Metropolitan area. A request for conviction data identified that the suspect had a previous conviction for rape in Romania. Just prior to the trial, the individual disputed the Romanian conviction, but through close liaison with the central authority and the police liaison officer at the Romanian embassy in London, a set of fingerprints relating to the Romanian rape conviction was obtained and proved the conviction beyond doubt when they matched against the suspect.

An application to use the previous conviction as bad character evidence was made by the prosecuting counsel and was granted by the judge, allowing the Romanian rape conviction to be put before the jury. The defendant was convicted of four counts of rape and other offences … in July 2010. The defendant was given an indeterminate prison sentence, with a recommendation that he serve at least 11 years in jail”.—[Official Report, Commons, 24/4/12; col. 888.]

And so it goes on.

What the Minister explained in the other place was that the information was obtained exactly under the regime which the noble Lord, Lord Pearson of Rannoch, regards as an encroachment on our criminal law and our domestic legal system. To the contrary, the ability across frontiers to share data of this kind is entirely in the interests of protecting our citizens against crime and their public safety.

As regards the other interests at stake—

The noble Lord of course is right that I think what he has just said. But far superior to that is the continuing cession of our sovereignty and the supremacy of our courts to the European courts and the Commission. That is the overriding objection that I have. I have read the debate in the Commons and I cannot believe that the Romanian could not have been convicted under similar arrangements without the continuing cession of our sovereignty.

I do not think that your Lordships would need a full debate on the value of the two European courts in protecting the rights and freedoms of our citizens. But, as I was about to say, the other rights and interests at stake are those of personal privacy, freedom of expression, protecting the security of the state, protecting us against crime and, in one aspect of what we have before us, ethnic profiling data-taking being prohibitive but with a necessary exception for equality where it becomes necessary in the interests of equality to do so. All those rights and freedoms, which are also part of our domestic law, are protected not only by our own courts but by both European courts. If a European bureaucracy or a European piece of legislation violates our basic rights and freedoms, the Luxembourg Court and the Strasbourg Court have the capacity, and they exercise it, to protect us against the abuse of power by European institutions. That is why the dislike of the noble Lord, Lord Pearson, of supranational or European jurisdictions is entirely misconceived. We need cross-border legislation and measures but we also need safeguards, which we get from those two European courts.

I therefore warmly welcome the pragmatic and careful approach taken by the Government over these measures. I very much hope that we will continue in exactly this direction.

Will the noble Lord tell us whether these protections which we enjoy from the European Union apply to British subjects extradited under the European arrest warrant? Is he happy with the way in which that initiative has developed?

The Joint Committee on Human Rights on which I serve has expressed some concerns, as has one of our members, Dominic Raab QC MP. I share some of those concerns but I do not think that this is an occasion for us to debate whether we think all European measures might be improved.

My Lords, I am participating in this debate in my capacity as chair of the European Union Committee’s Sub-Committee on Home Affairs, Health and Education, which has scrutinised the measure now before your Lordships. As to the substance covered by the draft EU directive in question, the committee supports the Government’s decision not to opt out for reasons with which I will not weary the House because the noble Lord, Lord Lester of Herne Hill, has just most eloquently described them.

The directive covers the processing of personal data for the purposes of police and judicial co-operation in criminal matters and forms part of a package, together with a data protection regulation covering the general and commercial processing of personal data by public and private bodies. The directive is intended to replace the 2008 framework decision, which was adopted under the old third pillar procedures established under the Maastricht treaty before these were superseded by the treaty of Lisbon. In plain language, that is to say that the UK had agreed to that earlier decision, which required unanimity to agree to it in order to be adopted, and is covered by it whether or not we opt out of the new directive.

When adopted, the new directive will apply significantly stricter rules on data protection, which we welcomed in my committee, in contrast to the relatively weak provisions in the framework decision. There is, of course, a down-side risk about which the Minister spoke. This enhanced protection could place an additional burden on businesses and public authorities. Therefore, like the Government we attach importance to an appropriate balance being struck in this matter. With that in mind, we would urge the Government to focus on, and to play an active role in, achieving that balance during the negotiations which are now to take place.

We have noted that in addition to this package a variety of different EU measures remain in force under Title V of the treaty, which contain distinct and separate data protection provisions. Perhaps the noble Lord would agree that to enact the directive in its current form, which would not bring these existing measures within its scope, would be to miss an opportunity of achieving a more coherent, overall approach. Perhaps he could say a word about that. That sort of opportunity might not recur for many years. It would be interesting to know whether the Government will be addressing this matter in the negotiations.

The directive is currently in the form proposed by the Commission and is likely to be the subject of prolonged negotiations in the Council, which was confirmed by the noble Lord in his introductory remarks. Those negotiations are already under way. We endorse the Government’s view that the best way for the UK to shape and improve the directive is by playing a full part in the negotiations, which the decision not to opt out allows us to do. The committee I chair is keeping the directive under scrutiny and we expect to receive updates of the negotiations from the Government in due course. When appropriate, we will intervene with our views on those updates.

Having addressed the substance of the directive, I would now like to turn to the procedural concerns that have been raised regarding the handling of the directive by the Government in this House. I agree with the noble Lord, Lord Pearson, about the handling and welcome what the noble Lord, Lord McNally, said about it himself. It has not been ideal, as the Minister frankly conceded in his letter of 28 May to the chair of the EU Select Committee in response to our warning that the Ashton and Lidington undertakings were not in this case being properly implemented. It is a bit more serious than the noble Lord, Lord McNally, suggested in his opening remarks, because it was an absolutely integral part of the votes in this House to ratify the Lisbon treaty, so it is a fairly important point. But I welcome the fact that the Minister has recognised that mistakes were made on this occasion.

The Motion refers to the Schengen protocol, the effect of which is that the UK is deemed to be participating in any measures which build on those parts of the Schengen acquis in which it already takes part unless, within three months of the measure’s publication, it notifies the Council that it wishes to opt out. If it does not do so then, it becomes automatically bound by the measure, if adopted, and will participate in its negotiations.

During debates in this House on the ratification on the Lisbon treaty, the noble Baroness, Lady Ashton of Upholland, gave an undertaking to take the views of this House into account on reaching a final decision on whether the United Kingdom should opt in to justice and home affairs measures. On behalf of the coalition Government, David Lidington, the Minister for Europe, reaffirmed the undertaking and extended it to cover opt-out decisions under the Schengen protocol, which is the one that we are talking about tonight. Since then, the latter circumstance has not arisen until now and the Motion before your Lordships' House is thus the first of its kind.

While we have already welcomed the Government’s intention to participate in the directive, given their view that the potential for an opt-out applied, it was regrettable that they did not raise the issue in the Explanatory Memorandum of 13 February. Indeed, we have yet to receive an satisfactory explanation as to why they actually considered that the Schengen opt-out applied in this instance at all, but that is a fairly abstruse legal point and I do not wish to labour it now, because the Government have decided that it applies and have gone through the decision-making process in the way described.

It was also regrettable that time was not found to debate the draft directive before prorogation, as it was in the Commons on 24 April. As a result, the Ashton and Lidington undertakings have not been fully respected since the three-month period for an opt-out decision expired on 14 May. I understand that discussions are under way between the Government and both Houses to ensure that circumstances such as this do not arise again. In those circumstances, my committee would consider that the Motion to Regret tabled by the noble Lord, Lord Pearson, is disproportionate and we would frankly not support it.

As your Lordships will already be aware, following the response of the noble Lord, Lord Henley, to the noble Lord, Lord Vinson, who asked an Oral Question this afternoon, before June 2014 the House will need to return to this complex area in a significant way when the question arises of whether the UK should exercise its right to opt out of approximately 130 measures relating to police and judicial co-operation in criminal matters under Protocol 36 of the Lisbon treaty. I would be delighted to respond to the interest shown by the noble Lord, Lord Pearson, in the activities of the EU Select Committee, about which he is not always that polite. On this occasion, he seems to be interested in how we do our work. I can enlighten him, although it is all on the EU Select Committee’s website, including the Home Secretary’s reply on the list of 133 measures. It is all there and, if the noble Lord wishes to look on the website, he will find it.

The list of those measures that will be covered by Protocol 36 was provided as a result of an initiative taken by the noble Lord, Lord Bowness, who chairs the twin committee to the one that I chair, which deals with justice. He raised the issue through the noble Lord, Lord Roper, and we got the answer with the list, which was helpful. When the noble Lord, Lord Vinson, asked his Question this afternoon, we got a little further, because we got a useful Answer from the noble Lord, Lord Henley, as well as a confirmation of the complex arrangements for consulting the European scrutiny committees and various other committees of both Houses before the Government came to any conclusion about the block opt-in or opt-out of 2014. That was extremely helpful, and I welcome the fact that that enlightenment has been given. I add only that we are still not very far down the road to understanding how procedures will work. These are completely unprecedented procedures, with votes in both Houses and the consultation of the various committees, and I hope that the Minister and his colleague the noble Lord, Lord Henley, will at some stage—although we are not very close to that yet—throw some light on how that process will be covered.

I add, for the noble Lord, Lord Pearson, that as soon as we got the letter from the Home Secretary with the 133 measures, the noble Lord, Lord Bowness, and I put our heads together with the then chairman of the EU Select Committee, the noble Lord, Lord Roper, and concluded that it would be necessary for the committee to write a report to the House before the block opt-out came before the House. That has been decided; it is on our forward programme, and I think that we will start taking evidence on it early in 2013 after we have concluded, in my committee, the report that we are doing at the moment on migration and mobility. That should give us plenty of time, and I hope that we will get the report out before the end of this Session—that is, mid-2013. That should give us plenty of time to provide the House with the kind of evidentiary basis that it ought to have before it has to take a decision on this matter. It will of course include the Government’s views on the matter, but they will give evidence in that inquiry.

I hope that that is useful to the noble Lord, Lord Pearson. It may even convince him that the EU Select Committee occasionally serves a useful purpose. Anyway, I do not want to go on any longer. It is late as it is and I have gone on rather too long. I hope very much that the noble Lord will not persist in his Motion of Regret. For my part, on behalf of my committee, I support the Government’s decision in substance.

My Lords, having yesterday disavowed the Minister’s generous description of me as a distinguished lawyer, it will come as no surprise to him to hear me say that I lay absolutely no claim to any expertise in matters of information technology, data protection or the work of the European Union and, indeed, European law. However, it is 50 years since I achieved some sort of qualification in Latin, when I managed a B grade in my A-levels. Having had reference to a corpus juris tonight in the debate, it is perhaps appropriate to congratulate the Minister on his ministerial mea culpa for the not uncharacteristic failure—not on his part but that of the Government’s business managers generally—to see that the proper procedures were followed. I have, to that extent, some sympathy with the critique of the noble Lord, Lord Pearson, which was echoed in part by the noble Lord, Lord Hannay. It is unfortunate that those matters occur.

As regards the report of the European Scrutiny Committee, will the Minister confirm that the Government have complied with the committee’s request to be kept informed of progress in negotiations on the points of concern for government, as outlined in the Explanatory Memorandum? Little progress may well have been made but it would be good to have that assurance on the record tonight. Will the Minister indicate whether, as requested by the scrutiny committee, the Government will in due course share with the committee the response to the call for evidence, and explain whether the responses change their approach to negotiations? That is a straightforward request which I would expect the Government to honour. I do not know whether the Justice Committee has yet given its opinion on the draft directive. Perhaps the Minister can enlighten me on that. That, of course, is not a matter for the Government but I assume that they would wish to take that issue into account.

The Opposition are broadly supportive of the Government although we share some of the reservations around the potential cost and bureaucracy, to which the Minister referred. However, on reading the debate on this matter in the House of Commons, it struck me that the event was rather like a works outing for Eurosceptics and concentrated on process rather than on substance.

The noble Lord, Lord Lester, has forcefully and clearly outlined the important issues which the directive addresses. I draw the House’s attention to elements of the scrutiny committee’s report, which make it very clear that many of the key changes which the directive introduces are supportive of the rights of individuals. That is as it should be. I wish to refer to some of them, such as,

“new rights of access and information for data subjects, such as the identity of the data controller, the purpose of the data processing and the period for which the data will be stored; an obligation for data controllers to implement ‘appropriate technical and organisational measures’ to ensure an appropriate level of security; a right for data subjects to directly demand”—

I note the split infinitive—

“the erasure of their personal data by the data controller; an obligation on data controllers to inform supervisory authorities and data subjects of data breaches, informing the former within 24 hours of discovery and the latter ‘without undue delay’”.

These are significant protections for the citizen and we should welcome them. I hope that they can be implemented. Frankly, it seems to me that that is more important than the perennial debate about where our sovereignty lies because, as the noble Lord, Lord Lester, indicated, and as the Minister made clear, we are dealing here with matters of considerable importance: namely, the safety and security of British citizens and the protection of citizens from criminal depredation. In these days of international crime, not least through the auspices of modern technology, it is essential that we co-operate fully with law enforcement agencies among our European allies and partners.

In these circumstances, I think that the Government are on the right lines. I very much hope that the procedural hiccups that we have seen in this case will not be repeated. We look forward to the Government negotiating successfully and, more importantly perhaps, reinforcing the rights of citizens which this directive will promote.

My Lords, the concluding remarks of the noble Lord, Lord Beecham, brought to mind a saying much loved by my old mentor, the late Lord Callaghan—that a lie was half way round the world before truth could put its boots on. These days, it is more than a lie that can get half way round the world before the police can put their bicycle clips on. We have to approach these issues with the benefits of modern technology but balance that with some of the threats that modern technology brings to individual privacy and such matters. It is that which we have been debating.

I am grateful to the noble Lord, Lord Beecham, for his support from the opposition Front Bench. We will keep committees informed on the matter. I am not quite sure whether the Justice Select Committee has asked for a formal meeting, but I will write. A large number of questions were asked. If I miss any out in my reply, I will make sure that I cover them in a written response to noble Lords who have taken part in the debate. As the noble Lord, Lord Beecham, reminded us, these are important issues in terms of individual rights as well as in terms of security, crime detection and related matters.

The noble Lord, Lord Hannay, implied that I had taken matters lightly in our application of, or approach to, the Ashton-Lidington promises. That is not true. I take them very seriously indeed, and that is why I have been forthcoming in my apology. I know the noble Lord, Lord Pearson, well enough—indeed, I have a certain affection for him—but if you offer him an olive branch on matters European, he is most likely to grab it and hit you over the head with it. Nevertheless, the apologies were sincerely given. Accidents happen. It is cock-up, not conspiracy. As I said in my opening remarks, we are trying to learn the lessons and, as the noble Lord, Lord Hannay, said, this is one of the first times that we have discussed Schengen under these proposals. If there are lessons to be learnt, we will learn them.

To get things into proportion, we are in June 2012. The Lisbon treaty specifically gave us until June 2014 to make up our minds on these issues. Therefore, to imply that we do not have every answer to every matter two years before that deadline suggests that we have a liking for conspiracy that simply is not there. At Question Time today, my noble friend Lord Henley gave absolutely crystal-clear assurances on how the Government will approach this. The idea that somehow we were going surreptitiously to slip through, one by one, the 133 measures covered in this area of the Lisbon treaty is laughable. Of course the world has not come to a dead stop and things come through. When measures are brought forward, as they necessarily will be, what happens—although it did not happen perfectly in this case—is that we bring them to Parliament, which has the opportunity to debate and approve them. The fact that this House did not get that opportunity in this case is regretted, but the other place, as my noble friend Lord Lester pointed out, approved the measure by 267 votes to 24.

I would say only one other thing about the points raised by the noble Lord, Lord Pearson. I will come to his questions, but he read out a list of, I think, six measures that had gone through. I would be happy if he read them out again because, as an ordinary citizen, I am much reassured that we have that measure of European co-operation on those kinds of issues, although I know that we come from a different philosophical point on this. However, if the noble Lord is trying to convince the British people of his point of view, I am glad that he reminds them of the really positive measures concerning co-operation on criminal justice matters, as I think that that strengthens my approach rather than his.

I thank the noble Lords, Lord Hannay and Lord Lester, for their contributions. Concerning the point made by the noble Lord, Lord Hannay, about taking the opportunity for a coherent approach in these negotiations, I can give him an absolute assurance that we will look to his committee and other committees in both Houses. We will provide them with updates and look to them for comments and commentary on the progress of these negotiations. There will be no attempt by the Government to do anything other than that.

As I said, I shall not be able to cover all the issues that have been raised in the House today. However, the 133 measures—a nice, frighteningly large number—need analysis. I welcome the fact that there will be an opportunity for the committee to look at them. Some of them are dead or dying. It is not the case that the Beelzebub that the noble Lord, Lord Pearson, spends his nights afeared of is thinking up 133 new measures. This is a matter of taking stock in a calm, rational manner and then, one hopes, having a rational discussion based on analysis about what is in our national interest and allowing Parliament to take a decision following such a debate. There is certainly no attempt to pre-empt matters. The Government continue to approach each opt-in decision on a case-by-case basis, taking decisions based on the UK’s national interests. They will not be making any premature decisions on this, as my noble friend Lord Henley assured the House earlier today.

I am told that the reference to competent authorities is from Article 3 of the proposed directive. A competent authority is any public authority which is competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. Therefore, a competent authority is not some branch of the Commission; we are referring here to the police.

Our impact assessment was also mentioned. It is true that we considered that there were both bureaucratic and cost implications, but we also said that being positioned outside the directive could involve costs too. Again, as we look at these matters and as the negotiations unfold, these things can be fully examined.

Oh dear! It looks as though we may have another apology to make in that the noble Lord, Lord Pearson, said that the Motion before the House is a recommendation and not a decision. This was not an attempt to mislead the House. Of course, by now it has become a decision and I am sorry for that drafting error.

I was asked why the title of the directive mentions free movement of data. The purpose of the directive is twofold: ensuring that personal data are protected and ensuring that they can be exchanged for the purposes of the prevention, investigation, detection or prosecution of criminal offences. I think that that covers the question asked by the noble Lord, Lord Wills, about why we had this twin-track approach. From the beginning, there has been legislation covering the broad area of data exchange and the very specific needs of the police and criminal detection authorities.

The noble Lord, Lord Wills, cunningly and quite outside the remit of this debate, asked me about Section 55. I am very willing to write to him. We have continued to be reluctant to put penal sanctions on Section 55, but we keep it under review and we continue to discuss the matter with the Information Commissioner.

I will shuffle through my notes and look at them very carefully because I think it will be easier to answer some of the specific questions in writing. I will write to noble Lords with a considered response to the specific questions and put copies in the Library of the House so that these matters are on the record.

I hope that the noble Lord, Lord Pearson, will agree to withdraw his amendment. This debate has been useful. Basically, he seems to argue from a very fundamentalist position, which I understand but do not agree with, about whether or not we should participate in these kinds of processes. Speaking for the Government, I take the position, as I stated at the beginning, that some of the things that the data protection issues cover are, by their very nature, matters that need international co-operation. We have been very frank in saying that we think that the approach of the Commission has been overprescriptive. There are burdens and costs that we do not like, but we are convinced that it is in Britain’s interest to opt in, to negotiate hard, to keep Parliament fully informed and to make decisions at the appropriate level and at the appropriate time on these matters.

Tonight’s debate has been chastening for my department but I give the assurance: “Please, Sir, we won’t do it again”. However, we will continue to engage positively on these matters because, in our view, that approach is in our national interest. I sincerely hope that the noble Lord will agree to withdraw his Motion so that the House can approve my Motion.

Before the noble Lord sits down and before I respond on my Motion, perhaps I could press him on two questions, as I did not quite understand his answers. First, is he saying that we are likely to have a number of individual opt-ins for debate and vote before the end of May 2014? I think he implied that that could well happen. Secondly, the most important question I put to him to which I would like an answer is this: as these opt-ins clearly amount to a transfer of sovereignty, or whatever you want to call it, from this Parliament and our courts to the Commission and to the Luxembourg Court of Justice, why are we not having a referendum? I understood that that was the point of the referendum Bill. If the Minister would be good enough to answer those two questions, I will reply briefly to my Motion.

Gladly so. I said that—and I do not know because I am not a clairvoyant on these matters—we will try to get notice from the Commission to see if things are coming down the track. As I said, things are not frozen, so we may well get another one like this. I do not know. But if we do, perhaps with better handling, we will do what we have done with this which is to bring it before both Houses for approval.

On the question of a referendum on these measures, this was clearly laid out in Lisbon. The process was clearly laid out. The Government have made their approach one of full consultation with the relevant committees of both Houses and the opportunity for both Houses of Parliament to take a decision. I do not think that the Government could have been any clearer tonight. That is the Government’s position.

I am told that the noble Lord’s Motion is not an amendment. It is a freestanding Motion. The House must decide on my Motion and then separately on that of the noble Lord, Lord Pearson. I am grateful to the Clerk for that guidance. I hope that that is a clear enough explanation of the noble Lord’s two questions. I beg to move.

Motion agreed.