DATA PROTECTION IN THE FIELD OF JUDICIAL
CO-OPERATION IN CRIMINAL MATTERS AND POLICE AND CUSTOMS CO-OPERATION
|Draft Resolution on the principles of personal
data protection in the field of judicial co-operation in criminal
matters as well as police and customs co-operation.|
Draft Resolution on the principles of personal data protection
in the fields of police and judicial co-operation in criminal
|Deposited in Parliament
||(b) 22 March 2001
|Basis of consideration:
||EMs of 14 February and 26 March 2001
|Previous Committee Report:
||(a) HC 28-i (2000-01), paragraph 3 (13 December 2000) and HC 28-viii (2000-01), paragraph 6 (14 March 2001)
|To be discussed in Council:
||28-29 May 2001|
||(Both) Legally and politically important
9.1 We considered this draft Resolution
on 13 December 2000 and 14 March 2001. On our first consideration
of this text, we recalled our support for improved data protection
provisions and supervision under Third Pillar instruments, but
we found the Resolution disappointing and inadequate in a number
of respects. In particular, the prohibition on processing sensitive
data did not seem to us to be expressed with sufficient force,
and we found the provisions on judicial remedies to be inadequate.
9.2 On our second consideration of this
Resolution we examined a revised text. We welcomed the Government's
indication that it would propose the addition to the Resolution
of a principle that data processing should be fair and lawful,
as well as the addition of criteria governing the use of derogations.
We considered that both additions would align the Resolution more
closely with Directive 95/46/EC (the Data Protection Directive),
and would constitute improvements. We remained concerned that
the Resolution did not appear to contain even the most general
of minimum standards, but merely described a number of principles
which might or might not be included and which in turn could be
made subject to exceptions or amendments. We noted that the processing
of sensitive data was to be made subject to "appropriate
guarantees" under Article 7 of the Resolution, but that the
text still contained no express prohibition. We also expressed
the concern that Article 15 of the Resolution appeared merely
to preserve any existing competences of national judicial authorities,
without providing for judicial remedies to be made available.
We cleared the original text of the Resolution (21571) on the
grounds that it had been superseded, but held the revised text
(22064 document (a)) under scrutiny.
9.3 Document (b) is a further revision of
the draft Resolution following discussion in the Council working
party on information systems and data protection. It follows the
same pattern as that of document (a), but some material amendments
have been made. Article 7 now provides that the processing of
personal data revealing racial or ethnic origin, political opinions,
religious or philosophical beliefs or trade union membership,
and the processing of personal data concerning health or sex life,
may be authorised only where adequate safeguards are laid down.
The Government's views
9.4 In her Explanatory Memorandum of 26
March 2001 the Minister of State at the Home Office (Mrs Barbara
Roche) addresses our concerns about the general nature of the
draft Resolution as follows:
"The Committee have said that they remain disappointed
with the instrument since the principles it describes may or may
not be included in future Third Pillar instruments, and, if included,
may be made subject to exceptions or amendments. They ask the
Government what purpose the Resolution serves, if it does not
contain even the most general of minimum standards.
"The Government notes the Committee's concern.
However, as the previous Explanatory Memorandum noted, the nature
of the instrument reflects the diversity of views about the establishment
of common data protection principles for the Third Pillar. According
to the Information Commissioners' memorandum on the Resolution,
views about the practicability of having a unified set of data
protection rules in the Third Pillar are mixed, even among data
protection authorities. That is also true of the Member States.
It is clear that a non-binding instrument along the lines of the
present Resolution has every chance of being acceptable to all
Member States. However, it seems equally clear that some Member
States would, at this stage, be unable to support an instrument
which included binding provisions. The nature of Third Pillar
activities is seen as being so sensitive as to require great flexibility.
In the Government's view, it is better to accept an instrument
of this kind, which, while not of legal effect, will carry moral
or political weight, than to have no instrument at all.
"As to the exceptions and amendments, the Government
would point out that both the principal data protection instruments
affecting EU Member States (Directive 95/46/EC and Council of
Europe Convention 108) contain provisions allowing Member States
to derogate from the principles established by the instruments.
In this connection the Government would draw attention to Article
2.2 of the present version of the Resolution which now contains
criteria limiting the scope for derogations along the lines of
those found in Article 9 of Convention 108."
9.5 On the treatment of sensitive personal
data, the Minister draws attention to the revised form of Article
7 and comments as follows:
"The Committee have asked the Government to
explain why it believes that the provision on sensitive data is
adequate, when it does no more than require 'appropriate guarantees'
if such data are processed. The Government would point out that
Article 8 of Council of Europe Convention 108 only requires 'appropriate
safeguards' for the processing of sensitive data. However, it
would draw attention to the revised wording of Article 7 of the
Resolution which has been strengthened. It now says that the processing
of sensitive data '...may be authorised only where adequate safeguards
are laid down'."
9.6 On the question of judicial remedies,
the Minister comments as follows:
"The Committee have repeated their concern about
the lack of a provision requiring judicial remedies to be available.
They compare the provision in the Resolution unfavourably with
that in Directive 95/46/EC.
"In the Government's view, the enforcement provisions
of the Resolution need to be considered as a whole, taking into
account the powers of the data protection supervisory authority
as well as those of the courts. Two of the key elements of the
enforcement arrangements found in Directive 95/46/EC (provision
for compensation, and for a supervisory body with powers of investigation
and enforcement) are provided for in Articles 14 and 15 of the
Resolution. Article 15 also makes clear that these provisions
are without prejudice to the exercise by Member States' national
judicial authorities' of their powers to enforce the provisions
of the Resolution.
"However, as the Committee have noted, the Resolution
contains no express provision requiring judicial remedies to be
available. The Government will draw the Committee's concern on
this point to the attention of the Presidency."
9.7 We are grateful to the Minister for
her helpful Explanatory Memorandum which addresses the concerns
we have expressed on this draft Resolution. Whilst we regret the
absence of more extensive minimum standards in the Resolution,
we can see the force of the argument that it is better to have
an instrument of this kind, carrying moral or political weight
even if not of legal effect, than to have no instrument at all.
9.8 We are grateful for the Minister's
comments on the way the processing of sensitive personal data
has been dealt with in the revised text of Article 7. We agree
with her that the text has been strengthened so as to make clear
that such data may not be processed, unless adequate safeguards
9.9 On the question of judicial remedies,
we note that the Resolution does provide for the right to compensation
for damage suffered because of unlawful processing of personal
data and for the monitoring and enforcement of the data protection
principles by an independent supervisory body. Whilst there is
as yet no express requirement for judicial remedies to be available,
we are grateful to the Minister for the indication that the Government
will draw the Committee's concern on this point to the attention
of the Presidency.
9.10 In the light of the further information
from the Minister, we are content to clear both documents.