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UK European Scrutiny Committee - letter from the Minister

01 May 2002

The saga of the secret negotiations over the critical Article 15.1 on data retention in the proposed revision of the 1997 EU Directive on privacy in telecommunications deepened today following a report from the UK's European Scrutiny Committee in the House of Commons.

The Committee had asked to be kept informed of the developments on this issue and on 13 May the government Minister for E-Commerce and Competitiveness (Mr Douglas Alexander) wrote to them saying that:

"Data Retention for Law Enforcement Purposes

"The common position text incorporates an amendment to Article 15 of the Directive which would explicitly allow Member States to provide for the retention of data for law enforcement purposes, subject to the wider framework of community law. The UK pressed for this because we believe that it is crucial that the Directive includes no unintended restrictions on Member States' ability to act in this area: traffic data can be of critical importance to criminal investigations and we argued successfully at Council that Members States should be able to provide for the compulsory or voluntary retention of data by operators beyond their own business requirements. At their vote on 18 April, the lead committee in the European Parliament rejected this new wording and instead voted for amendments which would strictly curtail, if not rule out, the scope for data retention for law enforcement purposes.

However, negotiations with MEPs since [the Committee vote on 18 April] have indicated that the Parliament may be prepared to support the inclusion of the common position wording in Article 15, provided that the Article and the accompanying recital incorporate stronger safeguards against potential misuse, including a stronger link to the need to comply with the relevant provisions of the European Convention on Human Rights, and controls on the conditions of access to data retained under national provisions (for example, a requirement that access to such data must be subject to authorisation by judicial or other competent authorities). We would be prepared to support these amendments as part of an overall agreement." (Twenty Seventh report of the European Scrutiny Committee, agreed on 15 May)

The Minister's letter is interesting because there is no mention, either in the Council's common position (adopted on 28 January) or in the Report from the EU Presidency on the Council's reaction to the parliament's position (dated 16 May) or in the Ana Palacio (EPP, conservative group)/Elena Paciotti ( PSE, Socialist group) so-called "compromise" amendment (dated 23 May) of: "controls on the conditions of access to data retained under national provisions (for example, a requirement that access to such data must be subject to authorisation by judicial or other competent authorities)"

The Minister's letter is also interesting for another reason: the letter was sent to the UK parliament setting out that a deal had been done with MEPs on Article 15.1 on Monday 13 May. This was the same day that the the Council's Telecommunications Working Party examined "a number of compromise texts" including that for Article 15.1.

However, the first that most MEPs on the European Parliaments's negotiating team knew that a "deal" had been done was on Wednesday 15 May, when a new amendment to Article 15.1. was circulated on behalf of Ana Palacio, chair of the Committee for Citizens' Freedoms and Rights (and later signed by Elena Paciotti for the PSE) to them as the basis of a "compromise" agreement.