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

Lord Stevenson of Balmacara Excerpts

Monday 16th November 2020 Grand Committee

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I am grateful to the Minister for her very clear introduction of this SI. The main thrust of it is obvious: it is an amending sequence to make sure that we are ready for the end of the transition period when it comes. Like the other speakers so far, I have no particular concerns about the issues.

I will make two points, which have been touched on already. There is a rather coy comment in the statutory instrument Explanatory Memorandum about the impact of the Privacy Shield and, in turn, its impact on the Schrems II decision. Put simply, it says that revoking would have no real effect—but I wonder whether the Minister could take us a little further down that route when she comes to respond. It seems to me that the issues here are important. If I am right in saying that the decision we are all waiting for, on the transfer of personal data under the data adequacy agreement, will take into account both the GDPR as it was translated in the Data Protection Act and the LED—including the legal consequences of the directive that deal with that aspect of the work—do we not need to have in our mind the considerations that Schrems brought on the Privacy Shield and related issues? If it is true—and I think it is—that both of these issues will be examined by the EU when it comes to make a decision about data adequacy, we need to have a better response than simply ignoring how the Privacy Shield would have operated, and now cannot operate, and whether or not it impacts on the way in which we do things. I look forward to the Minister’s response on that.

It was good to hear the noble Lord, Lord Vaizey, display both his concern about the dullness of data and his enthusiasm for some of these issues—in particular policy around data, on which his fingerprints are very evident. I welcome him to the unfortunately very small number of Members of your Lordships’ House who take an interest in this; I hope that his interest will also span across into intellectual property, which we have not heard enough about recently. Those who are interested tend to be gathered around this table and need a transfusion of new blood every now and then. I hope that he will be able to provide that—not literally, of course.

The noble Lord mentioned the curious case of the Japan free trade agreement, which is referred to in paragraph 7.6 of the Explanatory Memorandum. I have a slightly different take on that. It is interesting that Japan has accepted the accolade of being found to be data adequate, particularly as its relationship with the GDPR is not the same as ours. It certainly approaches data in a slightly different way. As I understand it, the Japan free trade agreement—we have yet to debate it in your Lordships’ House but hopefully will do so shortly, and I gather that a date has now been found for such a debate in the Commons—has in it a section to do with digital trade. That may not be in the Minister’s main portfolio, but it is important.

The memorandum says that digital trade between the UK and Japan after the transition period has ended will be based on the “free flow” of data. I find that slightly odd and I wonder whether the Minister can comment on it. Surely it is not free flow; it is flow based on the considerations in the GDPR and the LED, transposed into our legislation. A judgment will be made on whether it is a constrained flow, precisely because we have concerns about the free flow of data not being in the best interests of our citizens—a point made by the noble Baroness, Lady Fox.

We need to be a little more certain when we come to this decision because it seems that if we are to make deals with data as part of those functions, we must be secure about what we are actually doing when we sign off these documents. This is an important part of our economy and a crucial part of our relationships with the EU. It would surely not be in the best interests of UK plc to have an agreement with Japan, however important that is, which threw further doubt on our ability to meet the data adequacy concerns.