European Union (Withdrawal) Bill

Lord Stevenson of Balmacara Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

88: Clause 7, page 6, line 18, at end insert—
“( ) amend, repeal or revoke the General Data Protection Regulation, the Data Protection Act 2018 or any subordinate legislation made under that Act,”

[Lord Stevenson of Balmacara (Lab)]

My Lords, in moving Amendment 88, which is in my name and those of the noble Lords, Lord Warner and Lord Clement-Jones, I will speak to the related Amendments 129, 157 and 338. These amendments are probing in nature, and I look forward to hearing the Minister’s response. Their purpose is to add a prohibition to the Bill equivalent to the one found on page 6, line 19, for the Human Rights Act so that it is not possible for Ministers to amend or revoke the GDPR, the Data Protection Bill when it comes into force, or subordinate secondary legislation arising from it. In that sense, it follows the discussions that we have been having in Committee on recent amendments.

One of the first Brexit Bills to reach Parliament was the Data Protection Bill, which completed its Lords stages earlier this year and has just had its Second Reading in the other place. It is a Brexit Bill in two senses: it brings in the legislation needed to give effect to the EU’s general data protection regulation, the GDPR, which will be in force here before and after Brexit; and it aspires to ensure that the rules governing personal data in the UK will satisfy the European Commission that our legislative framework gives a level of protection of fundamental rights and freedoms that is essentially equivalent to that guaranteed in the EU, or the Union, as it is called. This is what is called an adequacy agreement.

The importance of getting an adequacy agreement from the European Commission cannot be overstated. Without it, it would be illegal to continue to exchange personal data with other EU countries after we leave. As well as being worried about whether the DP Bill will be enacted in time before 25 May 2018, this is the biggest issue raised by the industry—investment, location of its businesses and future growth are intimately tied into what happens to our EU adequacy agreement.

To be clear on the timing issue, as an EU regulation, the GDPR will be directly applicable in the UK without the need for an Act of Parliament from 25 May 2018, but how we transition into the post-Brexit world is key to the question of adequacy. One of the judgments we will face is the extent to which our data protection regime has varied from the EU since 25 May 2018. As things stand, this can be done by secondary legislation under the powers outlined in the Bill. To the extent that this is foreshadowed within the Data Protection Bill there can be no objection, provided that these changes are within the scope of the Bill once it is given Royal Assent. Clearly, it is crucial that the powers exist to correct any deficiencies that arise as a result of the current text being retained post exit, since much of it relates to EU structures and organisations that have to be translated. It is also right that there is a power to replace specific articles of the GDPR and, dare I also mention, the recitals that would be deficient and possibly confusing in a UK-only context. But corrections and adjustments in a Bill that has been approved by Parliament are not the same as wholesale changes made by Ministers, which, although there are safeguards, are not prevented under Clause 7 of the Bill before us.

My first argument is that, as with the Human Rights Act, the Data Protection Bill, dealing as it does with important rights of individuals over their personal data, should be protected against changes to that regime made through secondary legislation. It might be argued that similar kinds of changes will need to be made to a wide range of EU-derived legislation to ensure a smooth exit and that there is nothing particularly special about data protection in this regard. But is that right?

I want secondly to argue that there is something special, something extra, about data protection which warrants it being given the additional treatment outlined in the amendments. Remarkable though it may seem, I believe that I have the support of the Prime Minister on this. In her statement on our future economic partnership, she said,

“I am proposing the broadest and deepest possible future economic partnership, covering more sectors and involving fuller co-operation than any previous free trade agreement. There are five foundations that must underpin our trading relationship”—

the fourth of which was—

“an arrangement for data protection that goes beyond an adequacy agreement”.—[Official Report, Commons, 5/3/18; col. 26.]

There is not much detail on what she means by going beyond an adequacy agreement, other than when she said in her Mansion House speech that she wanted to see,

“an appropriate ongoing role for the UK’s Information Commissioner’s Office. This will ensure UK businesses are effectively represented under the EU’s new ‘one stop shop’ mechanism for resolving data protection disputes”—

a modest, though not unimportant, request.

It is not hard to see why data protection is being treated as a special case. Forty-three per cent of EU tech companies are based in the UK and 75% of the UK’s data transfers are with the EU member states. They need us as much as we need them, and everybody wants early certainty. It is an important part of our economy and it would be mad not to do whatever it takes to allow those companies to thrive and grow within the United Kingdom.

However, we now know that the EU takes a fundamentally different stance. In the draft negotiating guidelines circulated only last week, the text reads:

“In the light of the importance of data flows in several components of the future relationship, personal data protection should be governed by Union rules on adequacy with a view to ensuring a level of protection essentially equivalent to that of the Union”.


Like the words of the Prime Minister that I quoted earlier, this is obviously preparatory to a negotiation and it may be possible in time to reach a satisfactory compromise, but that passage reads to me like a setback to the UK position. We are being told that there has to be an adequacy agreement of the type offered to any and every third country—as we will become—which is all that is on offer. Surely the sting is in the final section, where the message is: EU rules apply. Of course, initially they will apply because of the GDPR as implemented on 25 May 2018, but, as time goes on, there will be changes not just in the text but through court judgments and other mechanisms.

An EU adequacy agreement is in effect the granting of a general permission to move data across national borders where the Commission has recognised the data protection standards of the third country as being adequate, but it is by all accounts quite a formidable exercise and it takes time. At the end of the process, there is no graduation. If you pass, there are no distinctions, merits or first-class honours; it is just pass or fail, and you are judged adequate or not adequate. Not adequate means the end of any UK-based data processing industry—financial services comes to mind—as far as intercountry personal data transfers are concerned.

We also know that an adequacy assessment of the UK by the EU will not only evaluate our data protection and privacy laws but examine the totality of UK domestic law, including UK security law and the UK’s international commitments, to determine whether there is a level of protection of fundamental rights and freedoms that is “essentially equivalent” to that guaranteed within the EU. This does not require identical law but laws which offer substantially the same level of protection. Despite the welcome changes made in the Bill, we know that there will be some issues of concern in the area of national security and defence.

The Prime Minister says that she wants an arrangement for data protection that goes “beyond an adequacy agreement”. So what could we do to help here? What would “adequacy-plus” look like? In some senses, the solution is not adequacy agreements but a treaty—however, we can only guess, given where we are in the process. Given that the DP Bill will contain substantial amounts of EU retained law, it surely follows that the regime that it establishes needs to be properly safeguarded and not subject to vicarious amendment if we are to be able to trade data as at present.

If we want to be helpful to the Prime Minister, and I am sure that the noble Baroness, Lady Goldie, would want that, we should make sure that the Government accept these modest amendments. After all, what would strengthen more our chances of an adequacy-plus ruling or provide a basis for a treaty that reassures all those working in this area than ensuring that the DP Bill when it is an Act can be amended only by primary legislation after full scrutiny by Parliament? I beg to move.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, I thank the noble Lords, Lord Warner and Lord Clement-Jones, for their contributions. The interesting exchange we have had here went a bit wider than we perhaps needed to do on this Bill. But I am afraid that it reflects our concern on two, or perhaps now three, sides of the House that we may have missed something quite important in relation to the Data Protection Bill and its assurance of the fundamental rights involved in it.

The Minister said that she felt that the Government had fully implemented the GDPR through the Data Protection Act—but I do not think that is right. This is for another time, but the amendment to Clause 2 that was made on Report, which we welcomed and signed up to, flagged up that the Government had not quite yet got to the bottom of the argument. The rights deficit that arises with the failure to ensure that Article 8 of the Charter of Fundamental Rights is in place as a back-stop or underfloor element to the Data Protection Act means that there may be dangers going forward. That was the starting point for this amendment. If it is possible to see it more fully worked in the way that was suggested creatively by the noble Lord, Lord Warner, building on an earlier suggestion from the noble and learned Lord, Lord Mackay, with the Bill picking out high-risk areas in our public life which need to be given extra protection, that might be a solution to one of the issues raised.

[Lord Faulks (Con)]

I know that the noble Lord is coming back to an issue which was much discussed during the course of the Data Protection Bill. The charter, in particular, was raised in that context. But one of the difficulties pointed out during those debates was that the charter is expressed in generalities, as opposed to the Data Protection Act we now have, which is far more specific. The noble Lord once again invokes the charter. He will not have forgotten that the Human Rights Act and Article 8 are expressly preserved by Clause 7(7). Does he not agree that we are trying to have as clear a position as possible? The Minister explained that Clause 7 is of a limited but important purpose: to enable that clarity to be achieved.

[Lord Stevenson of Balmacara]

I am grateful to the noble Lord for his intervention, because it allows me to refer back to the recently received JCHR report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. I am sure he is familiar with it. It says, if I can find the paragraph—I will talk quickly until I do—that there is still some doubt as to whether the treatment accorded to Article 8 of the Charter of Fundamental Rights is covered in the Data Protection Act. The report says:

“The Government … relies heavily in its analysis”,


on the GDPR,

“as a means of incorporating Article 8 of the Charter into domestic law. The GDPR and the Data Protection Bill contain numerous rights for data subjects. However, the Bill does not explicitly incorporate Article 8 … Given the vast number of exemptions and derogations from these rights provided for in the Bill, there is a question as to whether the Bill offers protection that is equivalent to Article 8 of the Charter”.

I put it to the noble Lord that this is an open question.

I know that I am straying into territory that we do not need to, but I started doing that because I was aware that my noble friend the Leader of the Opposition had not yet arrived to take the Statement. I have now been caught going a bit further than I should have, and I apologise to your Lordships’ House. I will sum up quickly. I accept the good intentions from the Minister. May I suggest to her that it might be worth one further discussion on this issue before we finalise our consideration of this Bill and the Data Protection Act? With that, I beg leave to withdraw the amendment.

Amendment 88 withdrawn.

European Union (Withdrawal) Bill

Lord Stevenson of Balmacara Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, Amendment 146 is an amendment to the one just moved by the noble Lord, Lord Monks, which I support. I speak on behalf of and will use the words of my noble friend Lord Puttnam, who cannot be here today as he is suffering from flu. I am sure your Lordships will want to send him good wishes for a speedy recovery.

I know that my noble friend is very grateful to the noble Earl, Lord Clancarty, the noble Baroness, Lady Bonham-Carter, and my noble friend Lord Judd for signing his amendment, and I look forward to their speeches.

Our creative industries have emerged as one of UK plc’s great success stories of recent decades. According to the latest figures, the UK’s creative industries represented nearly 4% of the UK’s gross value added in 1997. In the past 10 years this has increased by a massive 44.8% to the point where they now contribute £91.8 billion to the UK economy. But, just as importantly, the creative industries have become one of the instruments of soft power through which the UK has helped to shape ideas and thinking across Europe and the world.

Many of the policies developed by the EU, and warmly supported by the UK, have helped to grow our creative industries. I will leave it to others to talk about intellectual property, which is the basis of the creative sector, but I will give one example from the EU framework. It allows UK designers to register their designs and trademarks once in a single application that covers the entire EU and, like the recently established Unified Patent Court, provides an effective and efficient way of defending their IP.

Our creative industries cover a fairly wide range of subsectors, so let us take the example of cross-border broadcasters based in this country. The UK is Europe’s leading international hub for global media groups. It is home to more television channels than any other EU country. According to the Commercial Broadcasters Association, around 1,400 channels are based here, representing more than a third of all EU broadcasting. Over half the channels licensed in the UK broadcast direct to overseas countries. These channels employ thousands of people in this country and one in 10 jobs in the television sector is related, wholly or in part, to the presence of channels that broadcast outwith the UK.

They currently invest more than £1 billion a year in wages, overheads and technology, helping to ensure that the UK broadcasting sector has the critical mass to compete on the global stage. But the reason this works as well as it does—and it does work well—is that when the UK regulator Ofcom grants a company based in the UK a broadcasting licence, that licence, under EU law, has to be recognised by every other EU member state without further checks or review.

So, what happens when we leave? Unless we can reach a reciprocal agreement with the EU, this privileged position will be lost forever, along with the investment and jobs that go with it. It is not just the jobs at the broadcasters themselves—we should think of the value chain and the production hubs that have sprung up around them, helping to make the UK the leading centre for the audio-visual industry in Europe and, by a country mile, the most significant outside the US.

The scenario I describe and the economic minefield it represents are not a far-off prospect. There is a clear and present danger. Last week, as reported in the press today, a group of senior officials from Ireland’s audio-visual regulator was in London, pitching to the major broadcasters the advantages of moving to Dublin. Two weeks from now the President of Estonia, together with her Minister of Culture, will be in London on a similar mission. Others, from Holland, Luxembourg and elsewhere are planning to follow. Without some form of reciprocal agreement with the remaining EU member states, our creative and cultural sectors will undoubtedly suffer irreversible economic and cultural damage.

There is more. Research undertaken by Oxera for the British Film Institute indicates that the proposed diminution of freedom of movement will erode our available pool of talent. This could lead to a decrease of 5% to 6% in the volume of screen sector content made in the UK, along with the loss of some 5,000 jobs. The same research shows that the no deal scenario, under which we fall back on WTO rules, would lead to 14,000 job losses.

However, the freedom of movement challenge is even greater than that. Let us reflect for a moment on the difficulties that orchestras, rock bands, actors and every kind of creative person, whether from the UK or the EU, may have in crossing borders after we become a third country. Then add in the issue of moving equipment between two very different jurisdictions. Lorries queueing at Dover, Harwich and Holyhead will be stuffed not just with food and electrical goods but with musical instruments, sophisticated camera equipment and the physical goods that even in this digital age enable people across the UK and Europe to enjoy the very best of our common European culture.

We do not want to return to the era of the carnet, when an enormous amount of paperwork was required simply to move a film camera from London to Paris or Rome. Unless we can wrap a reciprocal agreement around our creative industries, we risk returning to those dark days of zero growth, little confidence and minimal opportunity.

The people who will suffer as a consequence are not just those who work in the creative industries; audiences across the UK will no longer be able to enjoy to anything like the same extent performances by orchestras, theatre companies, dancers, musicians and poets from across Europe. They will not be able freely to access the fruits of a common European culture—a culture that every person in this country under the age of 40 has taken entirely for granted.

The case for remaining in the EU is economic, but it is also cultural and historical. More than 50 years of peace, prosperity and culture exist and must not be forgotten. This is why we need to secure an agreement with the EU that underpins the future of our cultural industries, to the benefit of both our citizens and our economy.

[Lord Rooker (Lab)]

My Lords, I am pleased to announce that this is the last speech I shall make in Committee on the Bill.

European Union (Withdrawal) Bill

Lord Stevenson of Balmacara Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Griffiths of Burry Port]

While I will have a word to say in a moment about the use of the word veto, I will not claim to know the detail relating to the Council of Europe, to which reference has been made.

[Lord Stevenson of Balmacara (Lab)]

It was the Council of Ministers.

[Lord Griffiths of Burry Port]

I beg your pardon. I think the mistake is evidence of the fact that I am not qualified to answer that particular part of the noble Lord’s question.

--- Later in debate ---

[The Earl of Kinnoull]

I am very grateful to the noble Lord for making a jolly good point very well. At the lunch, that was hinted at, with rather less force. I wholly accept his reasoning and agree with what he said.

[Lord Stevenson of Balmacara]

I join many noble Lords in congratulating the Government on the way they have handled this issue and reinforce what was said by the noble Lord, Lord Forsyth: I have not seen any such movement from any Government in my time here in terms of trying to reach out to the points being made and accommodate them. That is terrific; long may it last. The test will be whether the noble and learned Lord in fact withdraws his amendment before the end of tonight—but I trust him in this case.

I also think that the idea of a probing government amendment is pretty good. It is nice to know that there is an open mind on the other side, and no better way of showing it than saying: “We haven’t got the faintest idea here, but here’s something you might want to consider and discuss and we will listen hard and take away the best bits”. It is good in the sense that it builds trust and engages debate. We have had a terrific debate—possibly a little overlong, but it has been very interesting—and I am sure that many points will take us forward. I recognise that the idea of probing your own ideas may not work unless we can actually come up with some ideas, so it behoves us all to think very hard about the advice that we want to give to the noble and learned Lord and his colleagues.

What do we want? There are five things that I would like to see in revised amendments. We should be looking for an agreed amendment among the various interests around the House as much as possible. There has been enough evidence about where the central points are—we may differ on the nuances, but there is enough there. It would be really good if we could have some informal discussions and meetings before Report—and Third Reading, if it goes that far. By that stage, I hope that we will have a firmer view of what we are going to do in Northern Ireland. I agree that the situation is beyond the power of this House to do anything about, but it is a real gap when we are trying to address our longer-term constitutional position. If we have nothing to say, that says more about us than about the situation in Northern Ireland. I hope that that will be taken into account.

My first point is a negative. The Bill has raised debates, ideas and thoughts that are really important, but they are far too time-rich and need more discussion before they go into the Bill. The Bill is at heart limited to ensuring that we have a legal framework if and when we leave the EU—as the noble and learned Lord said, a fully functioning statute book. We are wrong to try to overload it with too much. I hope that, in offering our advice either privately or in meetings, we will focus on the minimum necessary to get the Bill on the statute book in a way that will be effective and efficient, and will achieve what we are trying to do.

On the other hand, the debate should not be curtailed by the question of what is and what is not in the Bill. We must accept—some noble Lords were ahead of me on this point—that transfers of this amount of responsibility to admittedly mature Parliaments and Assemblies will start a new chapter in the devolution story, and it would be remiss of this House if we did not think through some of the implications of that.

I have no particular remedies here, but it is inconceivable that the current arrangements, under which we determine through a Board of Trade how we conduct trade policy, can accommodate the new arrangements. They will have to be expanded and thought through again. We will have to think about how we deal with treaties and how our ongoing relationship with the EU and its regulatory and other official operations will continue in a devolved situation where trade responsibility and policy is at a level other than national. There may well be a set of rules that will accommodate that. They will not fit into this Bill, but they need to be considered as we go forward.

We have to think also much wider—certainly much wider than this idea that somehow this paves the way to independence for any or all of the parts of the United Kingdom. We have to think about the opportunities that will exist as these things are devolved in terms of such matters as what happens to state aid rules when they are changed. This will raise a lot of concern and interest much more widely than in this House. We will do ourselves a disservice if we do not take that into account as we think this through. For the moment, though, let us think very narrowly about this Bill.

At the heart of it, we want an agreement that, on the face of the Bill, the underlying principle in play is that everything is devolved unless it is reserved. We also want a clear understanding of why certain things are reserved. The noble and learned Lord, Lord Mackay of Clashfern, gave a very good example of one way into this argument by saying that it was a question of when powers were in consideration which applied in more than one geographical area; however, I put it to him and to the Ministers who are working on this that this is not quite the full story. If you look at the note on the common frameworks that accompanied the full list of them, it goes much deeper than that. These are principles, as I understand it and as I think the noble and learned Lord confirmed, that were agreed by the UK, Scottish and Welsh Governments at a meeting of the Joint Ministerial Committee in October 2017, so they are not in dispute. The principles make clear that,

“common frameworks will be established where they are necessary in order to: … enable the functioning of the UK internal market, while acknowledging policy divergence;”

—the coda about “acknowledging policy divergence” is really important, and we need to know more about that—

“ensure compliance with international obligations;”

—I think that is fairly clear—

“ensure the UK can negotiate, enter into and implement new trade agreements and international treaties;”

—I have already said I do not know whether that will necessarily be the only way into that debate—

“enable the management of common resources;”

and then two rather important issues that we have not touched on but that surely have to lie at the heart of this:

“administer and provide access to justice in cases with a cross-border element;”

and,

“safeguard the security of the UK”.

It has always been the case that national security is the primary concern of all governments, but surely that plus the geographical “bite”, as indicated by the noble and learned Lord, give us—together with the other points I have raised—a much richer context within which the decision to reserve an item can be placed. It is important that this is on the face of the Bill. That is the key issue. There must not be a sense that something has been hidden or held back. We have to be open and trust those who are concerned about this that this will be the way forward. I hope that when the Minister comes to respond, he will be able to confirm that this is an issue that he might look at with some sympathy, because I think it will be the key to it.

I also think, as suggested by the noble and learned Lord, Lord Wallace of Tankerness, and others, that we should see the 24 policy areas included as a Schedule to the Bill. The point made by my noble friend Lord McConnell of Glenscorrodale is very important: we are talking about those things that will have to be reserved for a reason. We should list them, and we should also understand the reasons why they are reserved.

There are two smaller points—in the sense that they are less full of implications; they are still very important—that I will tag on to the end of this. The noble and learned Lord, Lord Hope, raised a number of points that will need to be picked up and that we must not forget, because the change to the existing Clause 11 will affect other aspects of the area. He made that point well. There have also been calls from all around the House for a sunset clause, which I absolutely support. That is the right thing to do. If that all comes together, however—and I think we are confident that it is possible—what we are signing up to is an agreement to agree on process, but that agreement will be able to get the consent of the devolved Administrations. That combination is vital to the way forward, and I recommend it very strongly to the Ministers.

Finally, if we are going to avoid the veto problem, which I think is a real issue that we have not really bottomed out, we are going to need a dispute resolution mechanism. There is no doubt about that. You cannot just go into this hoping that it will somehow be all right on the night. We need to know what happens when one area, for whatever reason—whether it is a political reason or truly an issue of conscience—wants to put down a veto and hold out. I do not think there has been any dispute, but we have not said it enough: at the end of the day the UK Parliament has to have a backstop power to legislate in cases that meet the criteria for why things are reserved. I think we should keep saying that until it has become part of the fabric of our lives. It is not said enough, as the noble Lord, Lord Lang of Monkton, mentioned.

But we also need to achieve the consent that is necessary to establish the agreements that will underpin trust and support for this in the long run. I absolutely think that the amendment proposed by the noble and learned Lord, Lord Mackay, has something in that regard. I am grateful that the Minister has said that he will take this away; we need to workshop it—what we should have is a hackathon—in order to work out together where we might go with it.

[Noble Lords]

Minister.