Exchanging Data with non-EU Countries

Darren Jones Excerpts

Tuesday 23rd October 2018 General Committees

[Darren Jones (Bristol North West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Evans. I declare my interest, which is in the Register of Members’ Financial Interests. I am a member of the European Scrutiny Committee and of the Select Committee on Science and Technology, which both have an interest in this area. I apologise on behalf of my many colleagues who were not able to join us today.

The exchange of personal data between the UK and the EU is vital for current business, the functioning of public services, security and policing, and future trade. Whether it is used by innovative, cutting-edge new businesses or modernising old industries, data is at the heart of revolutionising the way we work and the way we live our daily lives. Data is becoming so pervasive that this issue affects both our constituents and the organisations we often refer to in such debates. The General Data Protection Regulation has brought data protection to the minds of many people who may not previously have spent much time thinking about it, and data breaches by big-name companies, digital or otherwise, keep the issue in the headlines. That is why we are having this important debate.

Although the European Scrutiny Committee thanks the Government for agreeing to schedule the debate, we are disappointed that it is not on the Floor of the House as we requested, particularly as a wide range of Select Committee Members, who unfortunately could not be here, have an interest in the topic. I hope the debate sheds light on the Government’s position on personal data flows in three different Brexit scenarios and in the post-Brexit world—if, as I keep saying, Brexit actually happens.

First, how will personal data transferred from the EU to the UK during a transition period be treated after that period? I understand that is one of the so-called separation issues to be dealt with under the withdrawal agreement—specifically article 67 of that agreement, which states that personal data needs to be processed in accordance with European Union law during any transition period, and thereafter in respect of what happens in the agreement. Will the Minister for Digital and the Creative Industries update us on the negotiations with the European Union about how safeguards will be put in place during a transition period and, in respect of data flows within such a period, under a new regime when it comes to an end? We were reassured by the Brexit Secretary both on the Floor of the House and in the Select Committee that there has been real progress in that area, so a general update would be welcome.

Secondly, what happens if a withdrawal agreement is not ratified before the UK’s exit on 29 March 2019? The Government recognise in their no deal guidance that there is not yet an agreed timetable for putting an adequacy decision in place in the event of no deal. Leaving with no deal would mean leaving with no data-sharing agreement. Without an adequacy decision, data could continue to be transferred only on the basis of alternative safeguards set out under GDPR—namely, standard contractual clauses for businesses and organisations. Will the Minister therefore set out what assessment her Department has made of the feasibility and cost to business of having to comply with such alternative safeguards in the case of a no deal Brexit? What is her view of the pending European Court of Justice case on the validity of standard contractual clauses, Data Protection Commissioner v. Facebook Ireland Ltd and others—the Schrems II case—in respect of the Government’s no deal advice?

Thirdly, for the post-Brexit world, the Government have repeatedly said on the Floor of the House that they seek to achieve a data-sharing agreement that goes beyond adequacy. There was some debate about whether that might be the basis of an agreement between the UK and the EU or reliant on the adequacy decision, which is of course unilaterally made by the European Commission. While we have debated that on a few occasions, I am still not clear about the Government’s preferred method, although I note that in the motion the adequacy unilateral decision is the “starting point”. Will the Minister set out today whether any enhanced arrangement beyond adequacy is realistic given the state of the Brexit negotiations, and what the position is on the UK’s proposal for a beyond adequacy agreement? Will she comment on the Government’s response to the Exiting the European Union Committee’s report on data, which suggests that enhanced adequacy involves some form of participation of the UK in EU data bodies and/or in a one-stop shop, which would involve an agreement to allow the relevant European Court jurisdiction and/or jurisprudence?

Finally, on future trade, does the Minister for Trade Policy envisage future trade deals including constituent or adjacent horizontal clauses on data sharing, to align with European standards in third-country trade deals? Will he confirm whether the clauses try simply to tackle data-sharing non-tariff barriers, or if they are envisaged to have an additional effect that could assist the UK in maintaining data-sharing safeguards with the European Union? Lastly, if possible, will he update the Committee as to the status of any proposed EU-UK agreement at treaty level, and what if any lessons have been learned from, for example, the EU-Japan free trade agreement?

I add on behalf of the European Scrutiny Committee that we still await a response to the questions posed on this topic in our report of 12 September. I am sure that the Ministers will take the opportunity today to answer any more general questions but, if not, I look forward to a commitment that we will receive that response in due course.