The House of Lords EU Home Affairs Sub-Committee today publishes its report Brexit: the EU data protection package. The Committee warns that greater friction around data transfers between the UK and the EU after Brexit could present a non-tariff trade barrier and could hinder police and security cooperation.
The Government has said that it wishes to secure "unhindered" and "uninterrupted" flows of data between the UK and the EU post-Brexit, to facilitate both trade and cooperation in law enforcement - both of which rely on shared standards of data protection. If the Government’s objectives are not achieved, the UK could be put at a competitive disadvantage and the police could lose access to information and intelligence mechanisms. These are currently sourced through our membership of Eurojust and Europol and are vital for UK law enforcement.
The Committee recommends that the most effective way to achieve unhindered and uninterrupted flows of data would be to secure an ‘adequacy decision’, which would confirm that the UK’s data protection rules offered an equivalent standard of protection as the EU’s. This would provide the least burdensome and most comprehensive platform for sharing data with the EU, and offer stability and certainty for businesses. Alternative mechanisms to allow data to flow out of the EU for commercial purposes are less effective than an adequacy decision.
If an adequacy decision is not agreed, the Committee warns that there are no apparent fall-back options for law enforcement purposes that would enable data to be shared with the EU. This raises concerns about the UK's ability to maintain deep police and security cooperation with the EU post-Brexit. The Committee therefore urges the Government to ensure that a transitional arrangement is agreed, to avoid a cliff-edge for data transfers when the UK leaves the EU.
Chairman of the Committee, Lord Jay said:
“The volume of data stored electronically and moving across borders has grown hugely over the last 20 years. Between 2005 and 2012 alone, internet traffic across borders increased 18-fold. The maintenance of unhindered data flows is therefore crucial, both for business and for effective police cooperation.
“The Committee was concerned by the lack of detail on how the Government plans to maintain unhindered data flows post-Brexit. It was concerned, too, by the risk that EU and UK data protection rules could diverge over time when the UK has left the EU. To avoid this, the Committee urges the Government to secure a continuing role for the Information Commissioner’s Office on the European Data Protection Board”.