European Union (Amendment) Bill

I am very grateful to the noble Baroness for explaining extremely well the position in that regard. Perhaps I can reassure the noble Lord, Lord Hunt of Wirral, on what this proposal in the treaty seeks to do. We recognise in the 21st century that in good administration it is important to find ways in which to deal with the protection and proper handling of data that affect individuals. That is widely recognised as an essential part of what is needed to ensure that data protection is covered efficiently—when I was a Minister responsible for data protection I spend a huge amount of my time dealing with this—and that appropriate data sharing takes place. Those two—data sharing and data protection—go hand in hand. The purpose of Article 39 is to set out the specific rules for how we deal with data processing by member states in the issue of common foreign and security policy. A measure that we might be looking at would be, for example, personal data on individuals serving in EU crisis management missions, which would be agreed through the common foreign and security policy, to make sure that when dealing with their data we are suitably thinking about issues to do with data, processing and data protection. It is absolutely right and proper that these issues are covered in the Lisbon treaty, but in so doing we should recognise the distinctive character of CFSP by having a separate provision for the processing of data by member states in that context, and making it subject to the distinct rules and procedures, including adoption by unanimity. This new article provides that for the first time. Before the treaty in the second pillar there was no capacity to deal with data in the same way as, for example, we had sought to do in the third pillar for justice and home affairs. The amendment asks the Secretary of State to give an undertaking that he will not vote in favour of any decision that has different standards and penalties for reckless loss of data from those set out in the UK law, or Parliament agrees otherwise to adopt the decision. The amendment is unnecessary because any proposal would be subject to scrutiny by Parliament in the usual way, and of course it would require unanimity. We believe that the treaty makes sure that there are adequate safeguards to ensure that where provision is shared it should be subject to independent scrutiny. It says that—the noble Lord has already quoted it—compliance with these rules shall be subject to the control of independent authorities. Indeed, the noble Baroness, Lady Ludford, is absolutely right that although the authorities will vary from member state to member state, as noble Lords know in our case this will be the Information Commissioner Richard Thomas, which of itself should bring some comfort to the noble Lord. The Information Commissioner and his office is a tried and tested source of information, support, guidance, advice and making sure there is compliance around issues to do with data, as well as the other issues he deals with. This is an important step forward. It is the first time that there has been expressed provision for data protection in relation to CFSP. Therefore, it is an improvement on the current position, particularly where I have indicated where the independent authority is. The scope for processing such data is likely to be limited. For example, in relation to people in missions, whether to take sanctions against individuals, or in relation to crisis management decisions. But the purpose of the new provision is to recognise that data protection also applies to the processing of personal data by member states when they carry out their CFSP activities and to enable the Union to set rules to ensure that that data are presented. The European Union Committee conclusions were focused mainly on the repercussions on justice and home affairs issues in particular, as the noble Baroness, indicated, to try to clarify the scope and purpose of Article 39. I reassure the noble Baroness on passenger name records, which has been an important issue. That would not be covered under Article 39 as my honourable friend Jim Murphy indicated, but will be covered under Article 16, and therefore would remain appropriately as the noble Baroness would wish it to be. The noble Lord, Lord Hunt, raised the issue of the coverage for intelligence agencies. These are not covered. The UK secured in the Lisbon treaty explicit confirmation that national security remains the sole competence of member states. We believe that that is a very important objective. It is important that intelligence agencies remain outside the scope of the treaties, as indeed they do. As the noble Lord indicated, discussions have been going on in another piece of legislation about the reckless loss of data. I understand that in the other place they are—or may already have done so—debating the question in the Criminal Justice and Immigration Bill to look at a civil monetary penalty, which I believe is supported by the Information Commissioner. It will be a government amendment and I think that there has been a great deal of support in your Lordships’ House for the proposals that have gone forward. Whether terrorism is covered within Article 39 depends, as the noble Baroness indicated, on the nature of the activity. It can also fall within justice and home affairs issues, depending on whether one is dealing with law enforcement, and can also be connected to security. The individual case that is before us raises a specific issue. I hope that the noble Lord will feel reassured that the independent authority is where it should be and that this covers very specific issues of CFSP for the first time. Therefore, it is a significant and important addition. Those issues to do with, for example, data sharing with the United States are covered under Article 16, as they would have been in the previous three-pillar structure that existed before this treaty was proposed or comes into force. On that basis, I hope that the noble Lord can withdraw his amendment.