18 July 2017

Lord Jay says maintaining clear data flows is vital for both business and effective police cooperation.

Greater friction around data transfers between the UK and EU following Brexit could present a non-tariff trade barrier and hinder police and security cooperation, warns a House of Lords committee.

The government has said that it wants to secure “unhindered” and “uninterrupted” data flows between the UK and the EU post-Brexit. It believes this will facilitate trade and cooperation in law enforcement, both of which rely on shared standards of data protection. 

But a House of Lords EU Home Affairs sub-committee is warning that if the government’s objectives are not achieved, the UK could be put at a “competitive disadvantage”. 

It adds that the police could also lose access to information and intelligence mechanisms which are vital for UK law enforcement, and are currently sourced through membership of Eurojust and Europol.

In its just published Brexit: the EU data protection package report, the committee recommends that the most effective way to achieve unhindered and uninterrupted flows of data would be to secure an ‘adequacy decision’. It says this would confirm that the UK’s data protection rules offered an equivalent standard of protection as the EU’s. 

According to the committee, such a decisions would provide the “least burdensome” and “most comprehensive” platform for sharing data with the EU, and offer stability and certainty for businesses. It adds that alternative mechanisms to allow data to flow out of the EU for commercial purposes are less effective than an adequacy decision.

If an adequacy decision is not agreed, the committee warns that there are no apparent fallback options for law enforcement purposes that would enable data to be shared with the EU. 

It therefore urges the government to ensure that a transitional arrangement is agreed in order to avoid a “cliff-edge” for data transfers when the UK leaves the EU.

“The committee was concerned by the lack of detail on how the government plans to maintain unhindered data flows post-Brexit,” says committee chairman Lord Jay. “It was concerned, too, by the risk that EU and UK data protection rules could diverge over time when the UK has left the EU. 

“To avoid this, the committee urges the government to secure a continuing role for the Information Commissioner’s Office on the European Data Protection Board.”

Jay adds that the volume of data stored electronically and moving across borders has “grown hugely” over the last 20 years. “Between 2005 and 2012 alone, internet traffic across borders increased 18-fold. The maintenance of unhindered data flows is therefore crucial, both for business and for effective police cooperation.”

The House of Lords EU committee and its six sub-committees are conducting a coordinated series of short inquiries looking at the key issues that will arise in the negotiations over Brexit.

Taken as a whole, it’s claimed this programme of work will be the most extensive and thoroughgoing parliamentary scrutiny of Brexit.