European Union (Withdrawal) Bill

Debate between Stephen Timms and Darren Jones

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Darren Jones]

Does my right hon. Friend recognise that if the European Commission makes a decision on equivalence, that recommendation has to go to a committee of information commissioners from the 27 EU member states, and it is for them to decide whether there is equivalence? As the Institute for Government says, when making their decision, they will check whether data adequacy is met by considering respect for fundamental rights and a scope for judicial redress. Both redress and respect are mentioned in the EU charter of fundamental rights, are they not?

[Stephen Timms]

My hon. Friend, who is a lawyer specialising in these matters, is absolutely right. I understand that the European Parliament also has a role in all this, and so there is a political dimension to it as well.

The position at the moment is that as an EU member state we can exchange personal data freely with others in the EU—Governments, businesses and individuals. The Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker), told the Select Committee that the Government would seek to include data flows in the wider negotiated agreement for a future deep and special partnership between the UK and the remaining member states of the EU. I welcome that confirmation. However, as we keep on being reminded, we might not get a deal, so what then? If we do not get a deal and an adequacy determination, it will be unlawful to send personal data from the European Union to the UK, and, at a stroke, there will be no lawful basis for the continued operation of a significant chunk of the UK economy. I hope we all agree that we must avoid that outcome at all costs. Already, we hear that hi-tech start-ups that need access to personal data are starting to look at Berlin in preference to London because of the possibility that that problem might, in due course, arise.

The Government have argued that because we are fully implementing the GDPR, the Commission will be unable to find fault with UK arrangements even if we lose article 8. I have to say to Ministers that the UK technology sector does not agree, and my judgment is that it is absolutely right to be worried. The danger is not a theoretical one, as we see in the case of Canada. A very long-running series of negotiations has led to a pretty ambitious agreement between Canada and the EU, but Canada has only got a partial adequacy determination.

If we ended up with only a partial adequacy determination on data, it would be extremely damaging for the UK economy. The US arrangements known as “safe harbour” were famously struck down as inadequate by the European Court of Justice in a case brought by an individual Austrian citizen in 2015. That caused an enormous upheaval and led to the very rapid introduction of new arrangements in US regulation called “privacy shield”, which I understand are being called into question in a new case at the European Court of Justice by the same Austrian citizen.

The European Court of Justice is particularly sensitive about UK bulk collection of personal data. That issue featured prominently in the Appeal Court case, which we have touched on several times in this debate, brought by the right hon. Member for Haltemprice and Howden. The Court considered whether the powers in the Data Retention and Investigatory Powers Act 2014 went too far, allowing the state to breach personal data privacy, and concluded that the powers introduced by the then Home Secretary went too far. Article 8 of the charter, specifically, was the basis for that conclusion. If article 8 is no longer in UK law, it may make life easier for future Home Secretaries who wish to do the kind of thing that the previous Home Secretary tried to do, because they are much less likely to be found in breach. That rather bruising experience at the hands of the right hon. Member for Haltemprice and Howden may well be one reason why the Prime Minister wants to keep the charter out of UK law.