European Union (Withdrawal Agreement) Bill

Baroness Ludford Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

Moved by

[Baroness Ludford]

24: Clause 27, page 32, line 35, leave out paragraph (c)
Member’s explanatory statement
This amendment, coupled with another, prevents a widening of the definition of “deficiency” in relation to retained EU law which would allow the Government to make additional changes by delegated legislation.

[Baroness Ludford (LD)]

My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26.

When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with

“any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law”

arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like “deficiency” made the reach of the provision potentially open-ended.

In the Explanatory Notes, the Government had said that

“a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.”

That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018.

Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that

“clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act. Neither the Explanatory Notes nor the Delegated Powers Memorandum make clear why such provisions are required.”

It reminds us that

“Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill”,


as I earlier cited. It concludes:

“Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill.”


That is the challenge to the Government: to explain why they need this further widening of the powers under Section 8 to correct so-called deficiencies.

The delegated powers memorandum says about the justification for taking the power:

“These amendments are necessary to allow the power to function in the revised context of the implementation period.”


We were always going to have an implementation period. I simply do not understand this next sentence:

“It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of a withdrawal agreement.”


We knew that there had to be a withdrawal agreement; Theresa May had reached a draft withdrawal agreement. I cannot now remember the date on which the 2018 Act became law—I have it here somewhere, but someone will remind me—but of course we knew there was going to be a withdrawal Act, so I do not understand that bit in the explanatory documents at all.

I remind noble Lords that Amendment 24 concerns the insertion proposed by Clause 27(2)(c) of the present Bill, where the Government would have power to correct deficiencies where the retained EU law is not clear in its effect as a result of the operation of any provision of Section 8 of the 2018 Act. The phrase

“not clear in its effect as a result of the operation”

gives the Government quite a wide scope for making regulations. As I say, that is on top of the already pretty wide powers under Section 8 of the 2018 Act. Amendment 26—I need to remind myself of its exact wording as I have too many papers in my hands—also addresses provisions to widen the scope for correcting deficiencies in a way that certainly worried the Constitution Committee and therefore worries me and colleagues, including the noble Baroness, Lady Hayter, if I may speak for her on this, who have signed the amendment. I would be grateful if the Minister could explain very clearly why this power is justified.

[Lord Tunnicliffe (Lab)]

My Lords, Clauses 27(2)(c) and 27(6) of the Bill amend Section 8 of the European Union (Withdrawal) Act 2018 to expand the definition of deficiencies in retained EU law and to include deficiencies arising from the end of the implementation period. In its interim report on the first version of the WAB, your Lordships’ House’s Constitution Committee expressed concern that the power to expand the definition of deficiency was “vague” and could insert “potentially important new categories” without any real justification.

During the passage of the 2018 Act, we were repeatedly assured that there was nothing to worry about in relation to these powers, as they would cease to operate on exit day. However, we are now told that the power needs to be extended to address deficiencies arising from the implementation period. Given that we had an estimate of the total number of SIs to be made under the 2018 Act, can the Minister provide an estimate of how many would arise as a result of extending this power?

The Hansard Society and others very helpfully tracked the Government’s use of Section 8 powers during the withdrawal negotiations and the results were not promising, with many SIs tabled late in the process and some even having to be withdrawn and retabled as they contained their very own deficiencies. In the light of the Government’s record, is the proposed extension of the Section 8 powers simply a case of Ministers trying to buy more time for work that should have been done already? What guarantee is there that extending the Section 8 powers will not occur every other year?

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[Lord Callanan]

We certainly have no current plans to extend it any further.

[Baroness Ludford]

The Minister gave an example of telecoms legislation, which will change. Why can such deficiencies not be dealt with under the existing text of Section 8—namely

“any failure of retained EU law to operate effectively … or any other deficiency in retained EU law.”?

Why, in the example he gave, is Section 8, as it exists now in the 2018 Act, not adequate?

[Lord Callanan]

Of course it may be possible to continue to use that power but until we see how the legislation works out—how it is introduced during the implementation period—we will not know that exactly. We therefore think it appropriate to extend the sunset period, et cetera, to give us the new powers to correct upcoming or future legislation that may be introduced during the implementation period.

[Baroness Ludford]

I was not talking about the length of the time of the powers but about extending the scope. Amendments 24 and 26 are relevant to the provisions that would insert new subsections (2)(ea) and (9), which widen the criteria for finding a deficiency. If there were a change in telecoms legislation, the existing Section 8 in the 2018 Act seems perfectly adequate because the Government could say that there is a failure of retained EU law to operate effectively, because telecoms legislation has changed. That is enough. We do not need the new, widened scope to find a deficiency.

[Lord Callanan]

It is certainly the view of our legal advisers that we would potentially need the new, widened powers to be able to do that, but I can write to the noble Baroness with further details of why it is necessary.

[Baroness Ludford]

I have probably made it fairly clear that I do not find the Minister’s assurances terribly convincing, and I look forward to his letter. Perhaps the legal advisers can explain to him why it would be necessary in my example. Our Constitution Committee has consistently warned us against wide powers in this area—things where there could be mission creep outside technical corrections to policy changes. I think its alarm bells are flashing on this, which is pretty convincing to me. The Government giving themselves a power to correct deficiencies because something

“is not clear in its effect”

and has something to do with

“any aspect of that withdrawal”

is pretty wide in scope.

I have to confess that I have not been reassured or convinced by this short exchange, but that is probably all I will get until we see further information. I beg leave to withdraw Amendment 24.

Amendment 24 withdrawn.

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I have listed rather a lot of questions, probably too many for this time of night, and I am quite happy to have a letter from the Minister if she would feel more comfortable with that, but I would like some general shape to her response before we let her go this evening. I have outlined a range of important issues which will impact on an important sector of our economy. If the Minister accepts the broad drift of this argument, will she also agree that there is substantial interest in the sector about this? It therefore follows that my amendment, probing as it is and calling for formal Statements and reports, would be of value to all concerned. I beg to move.

[Baroness Ludford]

My Lords, I support this amendment, of which I am a co-signatory. I very much agree with what the noble Lord, Lord Stevenson, said, though I fear I might add a few questions for the Minister. As he said, free data flows across borders are an essential foundation of many key sectors of our economy, not just the tech industry as such but manufacturing, retail, health, information technology and financial services. It is vital that the free flow of data between the UK and the rest of the EU continues post Brexit with minimum disruption.

The European Union Select Committee, in its recent report on the revised withdrawal agreement and political declaration, pointed out that there was a lowering of ambition in the political declaration compared to what we have now as part of the EU’s digital single market. We have free flows, whereas the political declaration talks only about the “facilitation” of data flows. That is not the same as “freedom” of data flows. A host of organisations and the Information Commissioner have all persuasively argued that we need to ensure that our data protection legislation and practices are ruled as adequate. That is why it is so important that we get these regular reports and, as the amendment says, that we discover what the policy of HMG is if we do not have a data adequacy agreement after the end of transition.

We cannot take such a decision for granted merely because the GDPR more or less forms part of UK law. A major obstacle to an adequacy ruling is, of course, the bulk data provisions in the Investigatory Powers Act 2016, particularly in the light of the European Court of Justice decision in Tele2/Watson, the case brought by David Davis and Tom Watson over the legality of GCHQ’s retention and bulk interception of call records and online messages. That judgment ruled that UK mass surveillance laws breach the Charter of Fundamental Rights.

Just today there has been an opinion from the Advocate-General, the court’s legal adviser, who tends to get followed in 80% of ECJ cases, on a case which involves Privacy International, and a reference from the Investigatory Powers Tribunal. The Advocate-General has reinforced EU privacy law against mass retention and access to customer data by GCHQ, MI5 and MI6. I think this concerns provisions in Section 94 of the Telecommunications Act 1984. So we may get a second CJEU ruling, which will be problematic for any adequacy ruling given the very explicit requirements of Article 45(2)(a) of the GDPR, requiring the commission to consider

“respect for human rights and fundamental freedoms”,

as well as

“national security … and the access of public authorities to personal data … and … international commitments”.

They will probably want to look at any potential transatlantic transfers agreed with President Trump.

It is already clear that many aspects of the Investigatory Powers Act fall short of satisfying the CJEU criteria. The purposes of retention are not limited to fighting serious crime, data retention is not targeted to what is strictly necessary, prior independent review or judicial authorisation is not required in all cases, and there is no provision for informing individuals.

What are the Government going to do in the area of the powers of intelligence agencies to satisfy the European Commission—and the European Parliament, where I had some experience of this, particularly in the era of the Edward Snowden revelations, when many in the Parliament were jumping up and down about GCHQ but there was nothing they could do about it while we were in the EU? Once outside, we actually get much stricter scrutiny about our interception practices than when we are inside; it is something of an irony, really. Then there is the problem about the exception for immigration data in the Data Protection Act 2018. The EU will no doubt closely monitor how the Home Office reviews settled status applications and whether data subjects can obtain full access to their personal data if there are disputes or problems about their status.

In addition, we discussed earlier today the accusation —it seems stronger than that—that the UK has illegally copied, and therefore misused, the Schengen Information System database by copying it into a national database and even sharing it with private companies. The commission report says that UK practices

“constitute serious and immediate risks to the integrity and security of SIS data as well as for the data subjects”.

That is another area where we are going to be under strict review. There is the trust issue, which we also discussed earlier today about the criminal records fiasco—I think one would have to use that word.

There are lots of questions and challenging reviews that the Government will have to answer in seeking data adequacy decisions. We need to know what steps they have taken so far to achieve this decision. Will they apply to continue to participate in the European Data Protection Board? What will they do if we get turned down for a data adequacy agreement? Anything else is second best. Have the Government thought through what their strategy will be if they do get refused? Will they change the legislation on handling personal data for national security purposes? Those are a lot of questions, but it is a very significant area of the negotiations with the EU 27. From past experience, I know that the European Commission will be very much on the ball— not least because of the eagle eye that the European Parliament will have on this area—so the Government have to be as well.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)]

I thank the noble Lord, Lord Stevenson, and the noble Baroness, Lady Ludford, for this amendment, which seeks to add additional scrutiny to the data adequacy assessment process by introducing a bespoke statutory reporting requirement. It has certainly been very useful in drawing attention to the importance for both the UK and the EU of the UK pursuing and obtaining positive data adequacy decisions to enable the free flow of personal data after we exit the EU. It is also helpful that the noble Lord highlighted the success of our tech sector, which I thoroughly echo. I am sure that my noble friend the Secretary of State shares that view.

The free flow of personal data is an important feature underpinning the UK and the EU’s future relationship for economic and security purposes. The UK is currently a global leader in strong data protection standards, and protecting the privacy of individuals will continue to be a priority. The noble Baroness, Lady Ludford, referred to a lack of ambition. I do not think there is any lack of ambition on the part of the Government in this area. The Data Protection Act 2018 strengthened UK standards in line with the EU GDPR and law enforcement directive, providing a unique starting point for these discussions. The UK is ready to begin the adequacy assessment process and we are pleased that the EU has committed, in the political declaration, to the Commission beginning its assessment of the UK as soon as possible after our withdrawal, endeavouring to adopt adequacy decisions by the end of December 2020.

Before I try to answer some of the questions posed, I hope it will be helpful to touch briefly on some of the preparation that has been going on in government for the last two years for this eventuality. The Government established a data adequacy negotiation hub which sits within the Department for Digital, Culture, Media and Sport. It was set up early in 2018 and includes experienced experts in both data protection and negotiation. They are ready and waiting and keen to start negotiations with the Commission now.

This amendment would introduce a bespoke statutory reporting requirement, as we heard, covering the assessment period. However, as we heard very eloquently from my noble friend Lord Callanan earlier, there is a need for flexibility of reporting during what will be at times, I am sure, sensitive negotiations. While the Government are absolutely clear in our responsibilities to keep Parliament updated on that progress, and that obviously includes your Lordships’ House, we do not believe that such a rigid regime is appropriate. Obviously, both Houses have an array of tools at their disposal to scrutinise the Government, including through their Select Committees: I refer to the recent report of the Lords EU Committee, which scrutinised the revised withdrawal agreement and political declaration and concluded that the provisions on data protection were to be welcomed.

In this context, we believe there is no need for further bespoke reporting requirements for data adequacy, particularly as setting these out in legislation may have unintended consequences, as was discussed earlier this afternoon. I shall now try to address some specific points, but I am very grateful to the noble Lord, Lord Stevenson, for his offer that I might write to cover some of them.

In a sense, both noble Lords asked about the spirit which would underpin our approach to moving forward in these negotiations. Our aim is to try to find the right way to safeguard privacy while both promoting trade and innovation and protecting citizens from crime and terrorism. All those things are crucial to fully realising the opportunities from the data economy.

Both noble Lords asked how the Investigatory Powers Act might impact on our ability to achieve adequacy. We are confident of the standards included in that piece of legislation. We believe it provides unprecedented privacy, redress and oversight arrangements which I know both noble Lords have scrutinised in detail and which strengthen previous safeguards governing investigatory powers. Given the level of existing knowledge between ourselves and the EU of each other’s high data protection standards, we are very well placed to demonstrate that we meet and often surpass those standards.

[Baroness Ludford]

I am sorry to interrupt the Minister, but the fact is that the CJU has condemned our regime under the Investigatory Powers Act. The European Commission will have to take account of that, so to say that we and the EU have common high standards is not entirely borne out by the facts. The CJU has criticised, in a full judgment, the Investigatory Powers Act. How will we cope with that in the search for data adequacy?

[Baroness Barran]

As the noble Baroness understands very well, the adequacy discussions will be broader than strictly personal data and data protection, and will cover these issues. It will be our role to explain to and convince the EU of that, which we are confident we can do.

Similarly in relation to immigration data, which the noble Baroness raised, we believe that there are some misunderstandings about how this provision works. Rather than going into that detail tonight, I can write to her on this. However, we are confident that the provisions included in the Act are fully compatible with EU law, although clearly we recognise that they will be closely scrutinised.

The noble Lord, Lord Stevenson, asked about the independence of the Information Commissioner’s Office. We believe that the ICO is a strong, independent and effective regulator and that its relationship with DCMS upholds that independence. We really do not have concerns that this will be an issue in relation to adequacy.

The noble Baroness referred to the opinion received today from the Advocate-General of the EU; as she said, the opinion is non-binding and the impact will happen only when we have the court’s judgment, although I note her comments on the probability of that. Since the opinion was published only a few hours ago, my officials are currently digesting it, so noble Lords will understand that our ability to comment on these proceedings is limited.

The noble Lord, Lord Stevenson, asked about recitals in the future UK GDPR which still include the EU terminology. Recitals are non-binding in both EU GDPR and future UK GDPR. They are there only as an aid to interpretation and we do not believe that the references to the EU will be confusing.

The noble Baroness, Lady Ludford, referred to the Schengen Information System. I understand that the House will discuss the UK’s access to several EU law enforcement databases on the next amendment. If she will permit it, I think it would be easier to return to that question then.

Both noble Lords asked what will happen if an adequacy decision has not been granted at the end of the implementation period. Obviously both sides have committed clearly, and it is an absolute priority, to make this work, but in the event that an agreement is not reached, the Government have already done a huge amount around no deal, working proactively to communicate companies’ responsibilities in this area—particularly in relation to smaller companies, which we know might find this more challenging. The Information Commissioner’s Office produced a portal to support organisations preparing the standard contractual clauses referred to by the noble Lord, Lord Stevenson.

I fear that time may not permit me to answer any more questions but I will endeavour to write and cover all the important points made. I hope that I have managed to reassure the noble Lord that, once adequacy discussions are under way, both Houses will continue to use all the available scrutiny tools at their disposal to ensure that they are absolutely appropriately informed on the Government’s data adequacy progress and policy. I hope that he will feel able to withdraw his amendment.

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[Baroness Hayter of Kentish Town]

My Lords, the Minister—the noble Baroness, Lady Williams, who is now not in her place—spoke earlier about our seeking reciprocity with regard to children. I assume that the same is true as regards reciprocity for UK citizens abroad and EU citizens here. Thus far, the Government have singularly failed to negotiate successfully to secure the same rights for UK citizens as they have now to work, live and move across the EU. It is true that they can continue to live and work where they are at the moment at the end of the implementation period, but UK citizens will then lose their current right to move elsewhere across the EU—something that is, as we have just heard, at variance with the right of other EU citizens. Therefore, they will be disadvantaged compared with their fellow workers who are EU citizens already here, be they researchers, as referred to by the noble Lord, Lord Warner, artistes, mentioned by the noble Earl, translators, interpreters, freelancers or a number of other specialist staff who tend to move around because of the nature of their jobs. Under the agreement so far reached, they will only be able to live, stay and work in one of those 27 countries but will lose their freedom to move elsewhere.

Therefore, it is vital that we raise this matter higher up the Government’s negotiating aims. This is urgent as well as important. It is time that the Government did more to defend their own citizens’ interests rather more robustly than they have succeeded in doing thus far.

[Baroness Ludford]

My Lords, I just want to add briefly that the wording in the amendment reflects the wording in the White Paper of July 2018 on the future relationship. I do not know whether that White Paper has become “paper non grata” under the present Government but it talked about a framework for mobility providing reciprocal arrangements, which is broadly what the amendment refers to. That is what we want to hear about—a framework for mobility.

The noble Baroness, Lady Hayter, prompted me to think. To the extent that we have EU citizens with settled status, assuming that they do not feel that they have to seek British citizenship, they could be working on a research project based in the UK and, because they will retain their EU citizenship, they will be able to travel around 27 countries. However, the UK citizen may well not be able to do that, so will be second class compared to a work colleague who is an EU citizen and has a passport from one of the EU or EEA countries, unless a mobility framework with reciprocal arrangements and rights encompasses the ability of those UK citizens to work across the EU 27. Therefore, it is relevant to UK citizens living here but of course also highly relevant to UK citizens living in the EU 27. Many face difficulties in getting their residence finalised in an EU country but a lot are also very worried that they are losing their ability to work across borders. The fact is that nothing can be as good as EU free movement. The same applies to the security partnership —nothing is as good as EU membership. Therefore, we are trying to approximate as far as possible what we have at the moment, even though it falls short of that, but a key point is encapsulated in the final words of the amendment, which are:

“including the ability while resident in one state to work with ease across borders.”

My other point concerns pensions, pension uprating and healthcare arrangements, which are absolutely crucial to UK citizens in the EU 27. This is hugely important for the UK economy and for individuals—whether they are EU citizens or, perhaps even more, UK citizens resident here and resident in the EU 27 —who need to be able to move around where their work takes them.

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[Viscount Trenchard]

I believe that the policy which my right honourable friend the Prime Minister used to persuade his new supporters in the north of England and elsewhere to support is one that will produce more prosperity for the United Kingdom and a brighter future for all, and that those who voted for him in the north of England will see that it is in their interests to continue to vote for him and his successors, because his policy will have so clearly worked. Furthermore, since we will be free of the cash drain and the regulatory strictures of the EU, which have progressively stunted the United Kingdom’s voice in global fora—I speak as someone who has spent a large proportion of his working life outside the UK, looking in—the new supporters of the Conservative Party in the north will, I hope and trust, wish to continue to support it.

The noble Lord, Lord Fox, talked a lot about regression and standards. He is always trying to bind the Government not to resile or retreat from the high standards set by the EU. But standards are not about high and low; they are about what is proportionate, what properly balances the interests of the innovator with those of the consumer, and what sufficiently but properly protects the consumer against risk. EU regulation in many fields relies so much on the precautionary principle that it has a very negative effect on innovation. That places at risk the UK’s position as the best country in the world in which to conduct medical and scientific innovation, so for all those reasons I would resist the noble Lord’s amendment.

[Baroness Ludford]

Before the noble Viscount sits down, can I point out that the reputation he just mentioned, as the greatest country in the world in which to develop medical and other research, has been acquired while we have been in the European Union?

[Viscount Trenchard]

The noble Baroness is quite right—it is in spite of our being in the European Union. This precautionary principle regulation increasingly affects international pharmaceutical companies, which have said to me that it is important that we should not allow much more of that or we will be a less friendly place for innovation.