Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2020

Lord McNally Excerpts

Monday 16th November 2020 Grand Committee

[Lord McNally (LD) [V]]

My Lords, the late Lord Jenkins—Roy Jenkins—once said that joining the EU was like climbing aboard a moving train. Clearly, getting off a moving train is even more perilous. I thank the noble Baroness, Lady Barran, for introducing this SI. I do not want to worry her, but I note that those who follow us may be small in number but strong in expertise.

My interest in this matter goes back to the coalition Government in which I served, along with the noble Lord, Lord Vaizey. Data protection then rested with the Ministry of Justice and I was involved in the early stages of the negotiations of what eventually became the GDPR. I will make two points about that experience. First, I saw first-hand as a Minister the respect for the expertise of our civil servants, who had a profound impact on the shape of EU legislation—influence which is now lost by our departure from the EU. Likewise, I was able to engage the help of British parliamentarians in the European Parliament to ensure that the outcomes reflected our needs. The EU is already planning a review of the GDPR. It would be interesting to know what machinery the Government intend to employ to replace the seat at the table and voice in the Parliament that were lost at Brexit.

My second interest comes from my ongoing membership of the EU Services Sub-Committee, on which I serve with the noble Baroness, Lady Neville-Rolfe, who will speak later. Over the last year we have received evidence from a range of sectors, from financial services to intellectual property, from creative industries to research and higher education. All have expressed concern about the lack of certainty about data transfers post 31 December.

In our committee, we have become used to “It’ll be all right on the night” answers from Ministers giving evidence to us. My concerns were not assuaged by the Secondary Legislation Scrutiny Committee report, which said that

“DCMS told us that the Commission was currently assessing the UK for adequacy under both the General Data Protection Regulation and the LED”—

the law enforcement directive. Would failure to obtain adequacy arrangements with the EU have a knock-on effect with other third countries and on how third-country agreements interact with each other?

These are matters that will impact data flow in every area, from clinical trials to law enforcement. Is the DCMS giving the sectors any advice about contingency plans if data adequacy does not prove to be the shoo-in that the Government initially implied? We could well end up with a kind of smorgasbord of overlapping and interlocking agreements, to be interpreted from one FTA to another.

My final reason for intervening today was witnessing the look of incredulity on the face of the former Home Secretary and Prime Minister, the right honourable Theresa May MP, as she sat listening to Mr Michael Gove giving assurances on where we are on law enforcement and national security matters. I am sure my noble friend Lord Wallace of Saltaire will cover these matters in more detail, but until I hear that Mrs May is satisfied with the arrangements made I will continue to remain concerned. It will be interesting to know if the Minister shares Mrs May’s concerns.

We have come to talk about data as the new oil. How we protect it, use it and exchange it will have a great impact on our future prosperity, our national security and our personal freedoms. It is incumbent on the Government to put arrangements in place that are at least as secure and beneficial as we enjoyed within the EU. This SI is only part of a Rubik’s cube of measures needed to carry out those objectives, and I am not convinced that the Government are anywhere near solving it.