Passenger Name Records: EUC Report — Motion to Agree

– in the House of Lords at 4:33 pm on 17th March 2011.

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Moved By Lord Hannay of Chiswick

That this House agrees the recommendation of the European Union Committee that Her Majesty's Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to take part in the adoption and application of the Proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (Document 6007/11) (11th Report, HL Paper 113).

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Chair, EU Sub-Committee F - Home Affairs 4:35 pm, 17th March 2011

My Lords, the Motion is in my name because I have the honour to chair the European Union Sub-Committee on Home Affairs, which prepared the report now before your Lordships' House. In the normal course of events, when this House considers reports of the European Union Committee, almost invariably the terms of the Motion are that the House should "take note" of the report. Let me explain why this Motion invites your Lordships not to take note of the report but to agree with the recommendation made by the committee in its report.

The Motion refers to the,

"Area of Freedom, Security and Justice", which is treaty language for what are invariably in British parlance known as justice and home affairs. JHA matters first came within the purview of the European Union in 1999 and quite a lot of-perhaps most-JHA regulation at that stage required unanimity. For the JHA legislation which required only a qualified majority of member states' votes, the Government at that time negotiated a protocol to give the United Kingdom the necessary flexibility. The effect of the protocol is that the United Kingdom does not take part in the negotiation and adoption of such measures and is not bound by them unless, within three months of a proposal for legislation being presented to the Council, the Government notify the president of the Council that they wish to take part in the negotiation, adoption and application of the proposed measure. That is what is known in the jargon as the UK opt-in.

The entry into force of the treaty of Lisbon in December 2009 has made a quantum difference in the number of matters that fall to be covered by the opt-in procedure, because it expands greatly the application of qualified majority voting in the JHA area. Now, virtually all JHA matters are adopted by qualified majority under what is called "the ordinary legislative procedure". The United Kingdom opt-in therefore now extends to all these. In particular, the opt-in now applies to all provisions on police and judicial co-operation and law enforcement.

In anticipation of this important change, the European Union Select Committee negotiated with the previous Government an undertaking that, where the committee concludes that the question of whether or not to opt into a measure is important and should be debated, the Government would make time for the debate well before the end of the three-month period to enable them to take the views of the House into account when reaching a final decision on whether the UK should opt in. In January, the coalition Government renewed this undertaking. Together with all the committee I express my welcome for their decision to do so and my gratitude to them for having made time for this debate at a very timely and opportune moment when we are only just over half way through the three-month period for opting in on the directive that we are going to debate. In the first full year during which this procedure operated-we are now about 15 months into the operation of Lisbon-23 matters required the Government to decide whether the United Kingdom should opt in. Only one pair of proposals on two asylum directives was thought to be so important that a report and a debate were needed, so the report that is before your Lordships' House today is thus only the second of its kind and the first since the House approved the procedure for such debates a year ago. This demonstrates the importance that the committee attaches to the directive and to the issue of whether the Government should opt in to it.

I come to the substance of what we are talking about. The report put forward by my committee and supported by the EU Select Committee explains that passenger name record data, otherwise known as PNR, are data about passengers collected by airlines which include information not on the machine-readable part of the ticket. They include such matters as the travel agent, form of payment, contact details, billing address, complete travel itinerary and baggage information, to mention the most prominent. These data, especially when taken in conjunction with the data contained on the machine-readable part of the ticket, are particularly valuable in identifying persons potentially involved in terrorist or other criminal activities who were not previously known to the authorities.

I think one has to recognise that the collection of such data involves a considerable invasion of privacy, and it is sometimes doubted whether this is justified by the benefits flowing from its collection. The committee, I have to say, has no such doubts, although when considering earlier EU proposals on PNR we did express some doubts. However, we do not any longer have those doubts. In fact, this is our third inquiry into PNR in five years, and basically we agree with the view of the Home Office that is summed up admirably succinctly by the following phrase,

"the use of PNR data is 'a proven and vital tool for the protection and detection of serious crime and terrorism'".

We are convinced that the Government are right in that respect.

We also agree with the Government about the case for action at the EU level-this is the vexed issue of subsidiarity which is now covered in all explanatory memorandums produced by the Government when a Commission proposal is tabled. The United Kingdom, at the moment alone among member states, already collects PNR data. If member states were to act unilaterally and have different PNR data systems, this could lead to differing requirements being imposed on carriers and there would be no clear basis for the data to be transferred from a carrier in one member state to the authorities of another member state. So we are quite clear that the Government themselves have made a strong case for having an EU directive in this area, given the conjunction of the view about the need to have a single system with the view that PNR data are clearly an effective tool to deal with serious crime and terrorism.

The directive we are looking at is currently in the form proposed by the Commission, and negotiations in Brussels have not really started yet. It is quite clear that there will be prolonged negotiations because these are complex matters, and they are just beginning. Currently, the directive covers only flights between member states and countries outside the EU, not flights from one member state to another. The Government regard this as a major defect which they will do their best to remedy in the course of the negotiations, and we agree with them. The volume of journeys between member states is admittedly three times greater than those of flights between member states on the one hand and third countries on the other, but to limit the directive in the way proposed by the Commission would in our view-I think that it is the view also of the Government, but the Minister will no doubt confirm that when she speaks in reply-seriously and unnecessarily limit the value of the directive.

I should explain at this point that we are not asking the House to take a view on the details of the directive-that would be premature; we have not ourselves conducted full scrutiny of it. We will continue to keep the directive under scrutiny because there are many features of it which still need serious examination, in particular the purposes for which the data can be used, the length of time for which they can be kept and the adequacy of the data protection provisions. I therefore emphasise to your Lordships that, at this early stage, there is only one matter for consideration by the House. That matter was identified in what is known as the Ashton undertakings, which were accepted by the Government at the time that Lisbon was ratified and which relate to whether the UK should opt in or not, and whether it should therefore participate actively in negotiating, make its influence felt and have its views taken fully into account or whether it should walk away and leave the directive to be applied to other member states but not to the UK.

I therefore emphasise that what we are debating is whether the Government should exercise the United Kingdom's opt-in. For the reasons that I have given, the committee is firmly of the opinion that the Government should opt in. I would hope to hear from the Minister at the conclusion of the debate that this is their intention.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative 4:46 pm, 17th March 2011

My Lords, I have the honour of being a member of Sub-Committee F, the home affairs sub-committee of the European Union Select Committee of your Lordships' House. We are, as your Lordships have heard, chaired by the noble Lord, Lord Hannay, who marshals us so efficiently and delicately that most of the time we are not really aware that we are being marshalled at all. He has laid out the case made and the conclusions reached in our report with the skill that I have come to expect. I do not want to repeat all the comments that he made, but there are a couple of issues that I should like to raise. However, I should first say that I firmly support the conclusions that our committee reached in the report, and I shall urge my noble friend on the Front Bench to tell us that the Government intend to opt into the proposal.

I should begin by underlining, as did the noble Lord, Lord Hannay, the issue of principle. It is excellent that we are taking the first steps in creating an established procedure for enhanced scrutiny of opt-in decisions, for, whether we like it or not, there is concern in the country at large about what is often seen as encroachment by European institutions on areas of our national life. I make no judgment on whether that is right or wrong, but enhanced scrutiny, which brings with it greater transparency, gives the opportunity for more searching debate, and so to set the issue in context is an important way of defusing, for better or worse, public concern. Thereafter, the cards of public opinion must fall where they may. I add my thanks to those offered by our chairman to the Government for having made time for us to have this debate today.

Perhaps I may raise a couple of issues about the proposed directive. The first is the information that it is proposed will be collected under the PNR agreement, which is listed in Appendix 2. There are there nine categories of API data and 19 further categories of PNR data. Some of them are duplicates; for example, the name is required under both sets. The noble Lord, Lord Hannay, mentioned some of them and quite rightly picked out those that are most salient and important: the address and contact information, the billing address, the baggage information, and the number and other names of travellers on the PNR. My concern about the list, as it is printed in our report, is that it looks like a shopping list drawn up by a committee, with everyone adding their own bits, with more and more marginal ideas and marginal pieces of data being requested. Why do I worry about that? I worry about it because I think it means that there is a lack of focus. The key data get lost. We are looking for needles in haystacks and the less the amount of background information we have to sift through, the more we shall be able to focus on the intensive and important points that we need to collect about people who are travelling. I hope that my noble friend's officials will make an effort to try to keep the data to the minimum so as to achieve the maximum effect.

The second point is the extent. The noble Lord, Lord Hannay, has pointed out the advantages of the directive applying to flights within, as well as into, the EU. I share the view of the committee that we should support the Government's proposal to extend this, but I am less convinced about the arguments for it. I regard this as a nice-to-have, not a must-have, principle. Why do I think like that? I think that as we are going to collect yet more data, which may or may not be analysed properly, we run the danger of failing to see the wood for the trees. On the issue of cost, as the noble Lord, Lord Hannay said, there are three times as many flights within the EU as there are coming into the EU. There may also be inconvenience for travellers, although I am not sure how the procedure will work. Finally, potential criminals and terrorists are not foolish; they will merely shift their travel patterns to reflect the way that the PNR data are collected. That is not to say that we should not try to impede them-we should-and undoubtedly the Government are right that, if this is extended to internal flights, it will make their work more difficult. However, Europe is sufficiently small and the road and rail transport networks sufficiently good that you can drive from one end of Europe to the other in 36 or 48 hours and, therefore, I am not sure that the capture of airline data will add enormously to what we are trying to achieve. Therefore, I regard it as a nice-to-have principle, not a must-have principle, and the advantages probably do not outweigh the various costs.

On costs, my major concern is the civil liberties aspect. I instinctively dislike Governments collecting information about their citizens for unspecific reasons. I refer to central government, local government or governments of whatever colour. I have a principled dislike of it. When we negotiate the details of this I hope that we shall be looking very carefully at the rules for data collection, retention and disposal. They need to be carefully prescribed and carefully enforced.

In the earlier report that we produced on the EU/US passenger name record, which applied to the US, paragraphs 160 and 161 draw attention to some of the dangers. Paragraph 160 states:

"The principal risk of error in using PNR data seems to us to arise, not from the quality of the data, but from the erroneous interpretation of the data".

One of the problems is that we have considerable concerns about how that might be interpreted and whether individuals about whom data has been collected are able to be assured about its accuracy. Paragraph 161 states:

"It is important that intending passengers should be aware of who will receive their personal data, and subject to what conditions".

Those two recommendations of an earlier report need to be reflected when we come to the final directive on this occasion. Nevertheless, I believe that the Government should opt in, despite those tactical reservations.

Last summer I was rather disobliging to my noble friend when we were discussing the European investigations order. I was extremely concerned about it then because I felt there were no agreed standards on evidence gathering and handling, no minimum basic procedural safeguards, no coherent data protection regime and no agreement on important areas of proportionality, extra-territoriality and double jeopardy. I suggested to my noble friend that we might have done better to stay outside until the shape of the final directive became a bit clearer. She told me very firmly then that we were going to opt in because we could better influence events and shape it if we were inside having opted in than from the outside. On this occasion we have a much better structured directive, with a final shape in place-although not the final details as the noble Lord, Lord Hannay, made clear. If she felt that we should have opted in to the much looser investigations order last summer, I cannot see the logic of why we should not opt in to this one now.

Photo of Lord Dykes Lord Dykes Liberal Democrat 4:56 pm, 17th March 2011

My Lords, I am sure that the whole House is very grateful to the noble Lord, Lord Hannay, as chairman of Sub-Committee F, for presenting its report today and accompanying it with his recommendations, which also meet the Government's own inclinations in this matter, and for his characteristic clarity and thoroughness in explaining the main issues. He is quite right to remind the House that there is further work to be done on the actual scrutiny process of the directive details themselves and that this is really just about the main issues that are encapsulated in the Motion that he has tabled today.

I welcome very much what I hope the Minister will be able to say in reply. This is an occasion, as has already been said, when the opt-in procedure is, prima facie, proceeding on a smooth basis and is one of a growing number now. The system appears to be settling in on the basis of the original Ashton procedure, set out two years ago. I welcome that too because it means that the United Kingdom can make more progress in the JHA field working with our partners than we would do on our own and overcome some of those anxieties from some years ago about this pillar and whether we were conceding too much. For those of us who may sound old-fashioned nowadays in being enthusiastic Europeans, it seems to me that as the UK is a country renowned for having more opt-outs, exclusions, exceptions, derogations and "would you mind if we don't" clauses in the whole system than the other member states, it does occasionally create a better impression when we do opt in with some enthusiasm, particularly in this growing field, which is becoming a major area of Community policy formation.

At the same time, I understand my noble friend's apprehensions about some of these aspects of giving personal data in this way. This is a growing scenario in many fields of commerce as well as for many government departments and local authorities-not only in this country but all over the world and between countries. People are right to be apprehensive about what happens. Therefore, Governments and the international institutions involved need to reassure their own local and international publics that these data will be treated with the appropriate operational reverence to make sure that they do not get into the wrong hands and that there is some kind of lapsing period for the retention of data from people who are manifestly not even putative terrorists or dangerous criminals, according to the evidence.

My noble friend was also apprehensive about the list of things that can be included in the PNR list. I assume that the way in which the technology works is that people have the correct codes to feed in to the computer on the basis of the information they may have received from the security services, so that is a way in which they can do it in a tabulated process. It does not mean that they have literally to comb through every single item of data. I hasten to add that I am not an expert, but I assume that to be the case.

When the Minister comes to reply, I hope she will have time today to deal with a number of points, which I will mention quickly now, on the need for the EU-wide approach. That has already been dealt with and it does inevitably meet the Government's ambition to make this apply to intra-EU journeys as well. It seems manifestly illogical for them not to be included and I think that the committee and the European Union Committee-the chairman is present and listening to the debate-would presumably support that wholeheartedly, as does Sub-Committee F.

A further detail that we will need to concentrate on in future is whether the committee is right to express a certain hesitation about a reply from the Under-Secretary of State at the Home Office. When it asked what he would think about opting in, he politely and rather commendably replied that the Government might want to wait for the committee to have time to give its own views and that the Government would pay attention to those. I refer here to paragraph 20 of the report. However, the chairman is quite right to add at the end of that paragraph:

"While this is a proper line for the Government to take in the light of the Ashton undertakings, it would have been helpful to have some indication of the Minister's own views".

I hope that habit will develop more and that the Government are not too shy of indicating even a preliminary position on that. I do not think that would be misused by members of the Select Committee or the sub-committees in their further investigation of particular subjects.

I move quickly, if I may, to paragraph 5.4.1 of the Commission's own report to the Council of Ministers. Again, I am only speculating for the future, because it is not of course a matter for today's debate, but there is that question of similar security procedures and the data collection of PNR in non-air travel as well as in the preliminary ticketing before PNR is collected. Paragraph 5.4.1 deals with that at some considerable length and there is something to be said for it.

Finally, I return to the other comments of my noble friend Lord Hodgson of Astley Abbots, when he referred, with some nervousness, to the encroachment of the European Union on some aspects of our domestic life. That is not a phrase I would use because if you are a keen member of the European Union as well as a patriotic Briton-the two go hand in hand, as far as I can see-you do not regard it as an encroachment. You consider the whole organisation to be a club of like-minded sovereign members, with their own intrinsic national sovereignty but working through agreed and integrated institutions. With more and more agreed majority voting in the future, as I hope, we will sometimes be doing what other members want as well as what we want. That is in the nature of a club. The European Union is therefore one of the finest clubs in the world in that sense. I hope that my noble friend will get reassurance from my words because he, too, can change his mind on that in future.

Photo of The Earl of Erroll The Earl of Erroll Crossbench 5:03 pm, 17th March 2011

My Lords, I should have put my name down to speak and I am sorry that I did not. Briefly, first, I want to make it clear that I support fully all efforts to catch criminals, especially terrorists, so my objective here is not about that. However, we must not lose sight of the dangers that may sometimes be contained within well meaning measures. In the real world, an EU directive does not protect you if there is a failure in the implementation of security measures, electronic or physical. That is the bottom line.

We have a database being built up here of sensitive information. You can easily have unintended connections made, as the noble Lord, Lord Hodgson, said, such as guilt by association. What happens if, by chance, you travelled a few times and coincidence came into effect and someone who might have the wrong associations travelled on a seat not far away from you? The next danger is with the credit cards. Criminals use stolen credit card details; it could be yours on someone else's ticket. The actions with these data are therefore dangerous. There is also a danger to you. Critical financial information is kept in here, not just the billing address but your credit card details. It has everything you need to get someone's credit card details in order to commit a fraud. If you used a debit card, they can empty your bank account so these data have to be kept extremely securely- at least to a standard such as the PCI-DSS, I hope, if not higher.

Another question is: who will have access to this information abroad and in the future? Will it be in European countries or worldwide? I can think of certain foreign countries which I would not like to have my information under any circumstances whatever. I can think of a couple of European countries where I would not be too happy with that, particularly considering things such as the European arrest warrant and the way that different crimes are created to have a different sense of gravity in different countries. The data are supposed to be retained for serious crimes, but what is a serious crime? Look at the mission creep that was behind RIPA and where we ended up with that. We have to start worrying about this. We all treat crimes in different ways, and this measure will soon creep elsewhere.

The bottom line is that if we were worried by the national identity register, why on earth are we not worried about this? This contains almost more information about you. There is a huge privacy issue here about the state looking at who you are travelling with, when and in what circumstances. Should it be snooping into some people's private lives in that way? I have nothing to fear on that score, which is why I can stand up and say that, but some people would be very uncomfortable if they knew that conclusions were being made that could be brought up to silence them if things got awkward, particularly if foreign Governments had access to those data. I can see huge dangers here. There is also the question of business intelligence for foreign purposes. We should tread much more cautiously. You can write what you like on a bit of paper, but it is not worth anything in the real world.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Cabinet Office), Shadow Spokesperson (Home Affairs), Shadow Deputy Leader of the House of Lords 5:05 pm, 17th March 2011

My Lords, I congratulate the committee, and indeed the sub-committee on home affairs, on producing this important report. I am grateful to the noble Lord, Lord Hannay, for the historical context in which he placed the debate today. The report was published on 11 March and here we are debating it on 17 March. This is in remarkably quick time and I commend this opportunity to have an early debate and, by the terms of the Motion, come to a considered view on the question of whether or not to have the opt-in. I note from paragraph 23 that the sub-committee hopes that this will allow the Government to be fully aware of the views of the committee and of the House itself. The Opposition certainly support that aim.

One should be in no doubt about the importance of this decision. As the Home Office memorandum makes clear-I am grateful for the clarity provided in that memorandum-passenger name record data are an essential supply of data for the security, intelligence and law enforcement agencies for investigations and operations, and are a proven and vital tool for the prevention and detection of serious crime and terrorism. As the committee points out, the collection of PNR data, their transfer to border and enforcement agencies and their retention for a number of years constitute a substantial invasion of privacy with major data protection implications. It is therefore right, as the committee states, that such collection is justified only if the benefits in combating terrorism and serious crime are as great as is stated.

I note the points raised by the noble Lord, Lord Hodgson, and the noble Earl, Lord Erroll, about the broader implications behind the collection, holding and security of such data. It is interesting to look back to 2007 when the original proposal was put to the European Parliament. Criticism was expressed at the time in that Parliament's resolution about the need for the actions proposed to be fully justified. The European Parliament also questioned whether the proposal met the standard required for justifying interference with the right to data protection. With regard to data protection, the European Parliament called for a clear purpose limitation and emphasised that only specific authorities should have access to PNR data.

A lot of progress has been made subsequently. In the Explanatory Memorandum produced for the European Parliament and Council in February 2011, the Commission is now able to argue that the proposal is fully in line with the overall objectives of creating a European area of freedom, security and justice; that, because of the nature of the proposed provision, the proposal is subject to in-depth scrutiny to ensure that its provisions are compatible with the fundamental rights, especially the right to the protection of personal data enshrined in Article 8 of the Charter of Fundamental Rights of the EU; and that the proposal is in line with Article 16 of the TFEU, which guarantees everyone the right to the protection of personal data. Overall, it concludes that, in addition to being in line with existing data protection rules and principles, the proposal contains a number of safeguards to ensure full compliance with the proportionality principle and guarantee a high level of fundamental rights protection.

I note the committee's conclusion that it has no hesitation in accepting the Home Office's assessment of the value of PNR data for the prevention and detection of serious crime and terrorism. The committee agrees that the case for EU-wide legislation is compelling. I note, too, support for the directive to be extended to intra-EU flights. This seems to me a sensible approach, as explained in the committee's memorandum.

The committee's support for opt-in is entirely consistent with the thrust of its support generally. I would be interested to hear the Minister's response on that point. Her ministerial colleague was reluctant to give a view when he gave evidence to the committee, and I hope that the noble Baroness will be able to clarify that point and reassure the House on it.

This is a very telling report. We are in a sense setting a new pattern for the House to consider these matters, in that the committee is inviting the House to express a view. I very much support that proposition and commend the report to the House.

Photo of Baroness Neville-Jones Baroness Neville-Jones Minister of State (Home Office) (Security) 5:11 pm, 17th March 2011

My Lords, I join noble Lords in expressing my gratitude to the European Union Select Committee for organising this debate. I am also grateful to the noble Lord, Lord Hannay, for acknowledging the Government's willingness to give practical effect to the procedural undertakings that they have given. As a result, we have had a discussion on the Floor of the House at an early stage of consideration. The Government will take very serious account of what has been said today.

One of the things that has emerged from the debate is that the European Union Committee, the Government and a number of noble Lords are in agreement that there is concrete evidence of the utility and benefits to be derived from the analysis of PNR data in terms of passengers' security. Indeed, the noble Lord, Lord Hannay, put the case for the directive containing intra-EU PNR data as well as data on third-country flights as least as cogently as I could, if not more so. Therefore, I do not need to go over why the Government consider this to be an important part of the legislation, and why they wish to continue to strive to get it included. We have consistently argued that the directive should contain this information and that it should cover intra-EU routes.

I note what my noble friend Lord Hodgson said-that this is a "nice to have" rather than a "must have". However, I shall seek to explain why the Government take a different view for two reasons. First, the argument that it is possible to evade the information that this provision might yield by choosing another form of transport may be valid. However, that is not itself a compelling argument for not obtaining the information if you believe it to be necessary to inhibit terrorism. Secondly-this is the major point-we have had ample evidence since earlier drafts of this legislation that aviation is a major terrorist target. We cannot ignore that. Therefore, it is right, consistent with individuals' right to privacy-I entirely take the points that have been made about that and will return to them-to provide and maintain the maximum security that we can for passengers on aircraft, otherwise aircraft may well be blown up before they reach us.

Photo of Lord Dykes Lord Dykes Liberal Democrat

Further to that point, with which I agree, does the Minister agree that it is remarkable that, although the security procedures at airports are extremely irritating for most passengers and that we all suffer, there is a high degree of psychological support for those measures among passengers, who know how vulnerable air flights are?

Photo of Baroness Neville-Jones Baroness Neville-Jones Minister of State (Home Office) (Security)

The noble Lord's point is entirely well made. One of the things that the Government are nevertheless trying to do, with international co-operation, is to reduce as much as possible the burden of those procedures-a lot of them are physical. The more we have information that enables us to alleviate some of the other constraints and put them together in a package, the safer we will be and the less intrusive the security procedures will be.

The noble Earl, Lord Erroll, made various points. API information is already collected and it is possible to know with whom you are travelling. He is quite right to say that extra information will be collected. It is precisely because that information includes details of how the ticket was paid for, which is a major indicator of the kind of passenger with whom you are dealing, that it is thought wise and helpful to have it. This directive will go no further in the information that it asks for than that which is already contained in the agreements that the EU has negotiated with third countries, such as the United States, Australia, Canada and possibly others. I repeat that the Government's first duty is to ensure the security of their citizens.

The UK has tabled an amendment that it hopes may form part of the negotiations. Our view is that the directive should allow member states-not oblige them, if that is unachievable-to require carriers to provide PNR data. That will increase effectiveness and help us to ensure that our borders are adequately protected. The committee and the House will entirely understand that this is a key consideration regarding our decision on whether we opt in.

We have been lobbying hard on this issue for some considerable time. I am pleased that an increasing number of member states are being persuaded by the arguments involved. However, I have to say that we do not yet believe that we have reached where we need to be to ensure that such a requirement becomes part of the directive. A great deal of work remains to be done. Even if we obtain the support we need in the Council, the Government are also conscious that many Members of the European Parliament hold strong views on data protection and on whether the proposed measure is proportionate. I know that many noble Lords have connections with Members of the European Parliament, and the Government would be extremely grateful if noble Lords, if they had occasion to, were able to persuade those MEPs of the merits of our case and reassure them on any concerns they may have.

I say to the noble Earl, Lord Erroll and others that the Government will take the whole question of the safeguarding of this information extremely seriously. There is a whole section of the proposed directive that addresses that issue, and we will scrutinise that as carefully as anyone. We understand and believe in the necessity of allowing security and privacy to ride together, and not allowing them to be put in opposition to each other. We believe that the directive is proportionate, and that it would continue to be proportionate if it included intra-EU PNR.

The House wishes to know whether the Government will be able to opt in. As I said, further work must be done on the directive and we must do more lobbying in order to get to the place where we feel we need to be. There will be further discussion of the directive at an important home affairs Council on 11 April. We are striving to ensure that the Council, in its final statement, will send a strong signal that intra-EU PNR will be the common position. If we can get that signal, it is likely-and that is a very positive "likely"-that we shall want to opt in to the directive from the outset.

I hope that the House will accept that at this stage the Government need to maximise their negotiating leverage. They will reflect very carefully on the points that have been made today before they reach a final decision; they take the points made by noble Lords extremely seriously. There may be points of detail between us, but not fundamental points. We will of course communicate our decision to the House as soon as it has been made.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Chair, EU Sub-Committee F - Home Affairs 5:21 pm, 17th March 2011

My Lords, I thank all those who participated in this brief debate, which has been extremely useful and has shown a wide measure of agreement. I thank the Minister for her response which, although it may have fallen a scintilla short of what I might have hoped for, nevertheless went quite a long way in the direction that your Lordships' committee wishes to go. I will add on a personal note that she and I, so many years ago that I would not dream of embarrassing anyone by saying how many, dealt with some of the more complex aspects of EU policy, mainly the EU budget. That budget pales into insignificance compared with this system of opt-outs and opt-ins.

Perhaps I may respond to one or two contributions. The noble Lord, Lord Hodgson of Astley Abbotts, raised the possibility that the directive asks for too much data. I do not have a strong view on that; we do not have to have a view to support the resolution. However, it is only by opting in that we can affect the amount of data that are collected. That is yet another reason to opt in. I and the committee agree with the noble Lord-and here I part company slightly with the Minister, although I accept absolutely her plea that we should help the Government in their negotiating position by standing firmly in favour of the inclusion of intra-EU flights-that this is not a make or break issue. It is not and should not be a sine qua non for opting in. That is a personal opinion. However, the committee does support, without ambiguity, the Government's desire to include intra-EU flights.

One problem that may come up-I hope it does not, and that the Minister is right in anticipating that real progress will be made at the April council to include intra-EU flights-is that it may not be possible by the time we have to take a decision on opting in to be quite sure one way or the other. However, on one thing we can be quite certain: if we opt out, intra-EU flights will not be included, although I do not want to go further into that. I certainly did not mean in the report to criticise the honourable Member in another place, Mr Brokenshire, who gave evidence to us. He gave excellent evidence on our internal security strategy report, for which we are extremely grateful. He was entirely courteous on this matter and there is no reproach. It is, I think, due to the parliamentary timetable that we have had to publish the report and bring this debate forward at a rather early stage in the three-month period. Therefore, it is not a criticism of him in any way.

My noble friend Lord Erroll seemed a little worried about all the details being taken of his credit cards and other things. Of course, the reality is that they are taken by the Government anyway. I think that his objection is mainly that some foreigners might read them. I am sorry-we are in the European Union. There are an awful lot of things that we share with members of the European Union and this will be one of them. In my view and in the view of my committee, it will strengthen the security of this country if we are able to do that. However, as I said, that information is already being collected here.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

Perhaps I may make it clear that I am not worried about the information being shared with the European Union, as of course I give my credit card details on the internet to buy things in Europe. The challenge is in the number of times that it will be propagated around systems where we do not know what the security levels are, and the Government do not have a good track record of maintaining security databases. That is my concern.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Chair, EU Sub-Committee F - Home Affairs

That is a question to be directed firmly towards the Minister and not to me, so I shall not take it further.

The noble Lord, Lord Hunt of Kings Heath, was very helpful and supportive about the report and the recommendations. He rightly pointed out that there is considerable intrusion into personal data and personal security and so on. It is perhaps worth pointing out that one of the changes to which I did not refer at great length is that, as a result of the Lisbon treaty, the European Parliament has now become the co-legislator on this matter. The one thing we can be quite sure of is that the European Parliament is not going to let this bone go without giving it several bites and worrying at it a good deal. Therefore, I do not think that we are at the end of that story. I believe that the privacy aspects will get a very thorough airing in the negotiations between the Council on the one hand and the Parliament on the other. I am sorry to say it again but that is yet another reason why we need to be there, exercising some influence.

Finally, the Minister asked those of us who were involved in this matter whether we could take it up with the European Parliament. So far as I am concerned, I would willingly do so. I can see my chairman, my noble friend Lord Roper, nodding sagely to my left. We are going to Brussels next week to have our six-monthly meeting with British Members of the European Parliament, and we will certainly raise this issue with them. We will try to persuade them to fan out a bit and explain why the inclusion of intra-EU flights is going to help with security for all of us.

Motion agreed.

House adjourned at 5.28 pm.