Brexit: the EU data protection package report debated in the Lords
11 October 2017
On Tuesday 10 October, the House of Lords debates the Committee’s report on the options available to the Government for securing uninterrupted data flows between the UK and EU after the UK leaves the EU.
The Committee found that maintaining unhindered and uninterrupted data flows between the UK and EU after Brexit is an important aim, as any arrangement that results in greater friction could present a non-tariff trade barrier that puts the UK at a competitive disadvantage and hinders police and security cooperation. Although the Government has said it wants to ensure unhindered and uninterrupted data flows post-Brexit, little detail has so far been offered on how the Government plans to deliver this outcome.
The debate follows the publication of a report by the EU Home Affairs Sub-Committee which, by looking at four elements of the EU's data protection package, examines the options available to the Government for securing uninterrupted data flows between the UK and EU after the UK leaves the EU.
The Committee's main conclusions included:
- There was consensus among our witnesses that the most effective way to achieve unhindered flows of data would be to secure adequacy decisions from the European Commission under Article 45 of the General Data Protection Regulation and Article 36 of the Police and Criminal Justice Directive, thereby confirming that the UK's data protection rules would offer an equivalent standard of protection to that available within the EU.
- EU adequacy decisions can only be taken in respect of third countries – i.e. countries that are not EU Member States – and there will therefore be legal impediments to having such decisions in place at the moment of exit. If there is no transitional arrangement on data protection post-Brexit, this could put at risk the Government's objective of securing uninterrupted flows of data, thereby creating a cliff-edge.
- Without a transitional arrangement, the lack of tried and tested fall-back options for data-sharing in the area of law enforcement would raise concerns about the UK's ability to maintain deep police and security cooperation with the EU and its Member States in the immediate aftermath of Brexit.
- Even if the UK's data protection rules were aligned with the EU regime to the maximum extent possible at the point of Brexit, there remains the prospect that over time, the EU would amend or update its rules. Maintaining unhindered data flows with the EU post-Brexit could therefore require the UK to continue to align domestic data protection rules with EU rules that it no longer participates in setting.
- It is imperative that the Government consider how best to replace those structures and platforms that have allowed it to influence EU rules on data protection and retention. It should start by seeking to secure a continuing role for the Information Commissioner's Office on the European Data Protection Board.
Speakers in the Debate
Other members of the House of Lords who are due to speak in the debate can be viewed on the Speakers' List.
Image credit: iStockphoto
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