Select Committee on European Union Thirteenth Report


Memorandum by the Home Office

  1.  The Government welcomes this report, which raises important questions about the development of European Union-wide databases.

  2.  This Memorandum of reply will deal first with a number of general conclusions contained in Part 3 of the Committee's report, and then with a number of specific conclusions endorsed by the Committee.

GENERAL CONCLUSIONS IN THE REPORT

  3.  The Committee concluded that there is insufficient evidence at this stage to come to a firm view on the extent and the desirability of potential overlap of information held on the various databases, and expressed a general note of caution, particularly on the question of the preservation of individual rights (paragraphs 49 and 50). The Government notes these conclusions. The Committee went on to emphasise the crucial role played by joint supervisory authorities in ensuring that agreements between the EU and third countries or bodies provided an adequate level of data protection and sufficient safeguards for individual rights of access (paragraph 51). The Government agrees that joint supervisory boards will have an important role to play in these areas.

  4.  The Committee was impressed by arguments put forward by JUSTICE that current data protection principles have not kept pace with modern methods of data storage and exchange, and also that individual rights of access to information held on databases were almost impossible to exercise (paragraph 56). Whilst current data protection principles have been in existence for about 20 years the Government is not convinced, on the basis of the evidence placed before the Committee, that they are outdated. The principles have always been intended to set a general framework, allowing for more detailed provisions to be made expressly where needed in particular cases. The arguments put forward to the Committee by JUSTICE appear to the Government to focus more on the view that greater detail and specificity is needed in the data protection regimes of particular databases, rather than to demonstrate that the underlying principles are themselves out of date. The Government notes, in this context, that the Committee concluded in paragraph 48 of the report that new databases should be designed in such a way as to ensure greater transparency and be subject to stricter data protection laws than have hitherto applied. The Government notes that any need for stricter rules implies a greater degree of case-specific provision, which the Government considers more likely to achieve the results supported by the Committee than general rules applying across the board as recommended in paragraph 55 of the report.

  5.  The Committee drew attention to potential problems of computer security in relation to large databases, noting that total security in very large networks seemed to be practically impossible, but that risks could be managed by various means to reduce them to "acceptable levels" (paragraph 59). The Government is committed to working for the maximum reduction of security risks in these areas by all possible means.

SPECIFIC CONCLUSIONS IN THE REPORT

  6.  The Committee agreed with the views expressed by JUSTICE that there is at present a lack of any consistent and transparent strategy on links between databases within the EU, and between EU and international databases. The Committee also supported JUSTICE'S proposal for an enquiry at EU level to examine proposed links between the databases, as well as existing practices on the exchange of information via informal networks, and urged the Government to press the case for such an enquiry (paragraph 52). In this connection, the Government notes also the Committee's opinion (paragraph 53) that, wherever possible, EU systems should be developed in ways that are compatible with wider international systems. The Government agrees that databases have tended to develop separagraphtely and that issues of compatibility and links are likely to be addressed only where an operational need arises. However, the Government is not yet persuaded that there is a need to embark upon an over-arching enquiry into the possible inter-relationships between current EU databases, which are established under separagraphte specific authorities and with separagraphte functions, or between EU and other databases. The Government does not consider that, given the difficult negotiation which has often preceded agreement on individual measures, there would be advantage in reopening debate in order to try to achieve greater compatibility. It might, indeed, be argued that such debate would cause unacceptable uncertainty for the operation of the systems that currently have separagraphte authorities and functions. The Government does, however, recognise that this is a growing area of concern, which it will take into account in negotiations of any new instruments and the development of existing systems.

  7.  The Committee expressed concern over the diversity of data protection requirements applicable to the various EU databases and accordingly welcomed the proposal for an EC Regulation applying consistent rules and procedures to Community institutions and bodies (paragraph 54). The Committee also regretted that little progress appeared to have been made on an Italian proposal to look at the question of harmonising data protection rules and supervision in Third Pillar instruments. It considered that a single supervisory body to oversee the development of all these databases would have greater visibility and authority (paragraph 55).

  8.  Like the Committee, the Government welcomes the bringing forward of a draft EC Regulation applying consistent data protection rules to EC institutions and bodies. Without a fresh legal instrument, however, those rules, and the European Data Protection Supervisor which the draft Regulation would establish, cannot deal with Third Pillar bodies. In this connection, the Government believes that the issues raised by the Italian proposal are important and merit consideration. Work is continuing to identify some common elements on which a corpus of general data protection provisions might be based, to be incorporated in future instruments.

  Work carried out to date has revealed that there is a variation as between the data protection provisions in the various EU instruments concerned, but these often reflect their distinctive nature and the varying practical function which the instruments serve.

  9.  The Government agrees with the Committee that there is a good case for a common data protection supervisory body, but given the differing provisions in existing instruments the definition of the functions, powers and composition of such a single body would not be an easy task and would require re-negotiation of the existing instruments which might reopen what were settled issues in the data protection field. However the creation of a single common Secretariat to service whatever future supervisory arrangements might be appropriate appears to be more straightforward and possible options are currently under consideration. Consideration of all these issues is being carried forward under the Portuguese Presidency, who regard this work as a priority.

  10.  As well as endorsing a single supervisory authority, the Committee came to the view that effective judicial control was required to ensure compliance with common minimum standards, consistency of interpretation, and the enforcement of individual data protection rights. The Committee therefore concluded that the supervisory role of the European Court of Justice should be a fully comprehensive one. The Committee found it difficulty to reconcile the Government's reluctance to accept the Court's jurisdiction over Third Pillar instruments with the need to ensure meaningful safeguards for individual rights at an EU as well as at a national level. The Committee considered that the Government had not proposed an effective alternative to the European Court of Justice capable of commanding confidence, and accordingly urged the Government to reconsider its stance on the Court of Justice (paragraphs 57 and 58). The Government has consistently taken the view that it would not be right for the United Kingdom to agree to a preliminary reference jurisdiction for the European Court of Justice in the very sensitive areas covered by Title VI of the Treaty on European Union. These raise issues relating to national sovereignty in respect of the maintenance of law and order and the criminal justice process. It is of particular significance that such acceptance must be on a "once and for all" basis and therefore such decisions cannot be taken in a way which reflects the particular content and purpose of the instrument concerned. It is relevant in this context that the Treaty is deliberately permissive on this point and that the United Kingdom is not alone in not having made a Declaration under Article 35(2) of the Treaty on European Union.

  11.  It is also relevant to note that there are other provisions in the Treaty on European Union, especially Article 35(6) and (7) which do give the Court jurisdiction in the Third Pillar area and which may well be relevant to the protection of individual rights.

20 March 2000


 
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