Anxiety over data-transfer accord clouds UK adoption of EU privacy law

28 December 2017 9:00am
Houses of Parliament

12 December 2017. By Vesela Gladicheva.

The question of whether Britain's implementation of EU privacy rules next May should create a new right to personal data protection is continuing to split the government and lawmakers.

Failing to enshrine this right could hurt the UK's chances in seeking a favorable commercial data-transfer accord with Brussels, Liberal Democrat lawmaker Sarah Ann Ludford told Parliament yesterday.

In proposing its bill in September, the UK government didn't include references made in the EU's General Data Protection Regulation to individuals' right to have their personal data protected as underpinned by the EU Charter of Fundamental Rights.

That prompted opposition Labour Party lawmakers in the House of Lords, the unelected upper chamber of Parliament, to submit an amendment to include the guarantee in the bill.

The government changed its proposal, but this still falls short of introducing a specific right to protection for personal data.

"We do believe that the rights under the charter in relation to data protection should be reflected in this bill, so as to have a general right to protection of personal data in UK law," Ludford told the House of Lords yesterday.

Failure to embed "a general right to data protection inspired by the charter" might compromise the UK's plan to win adequacy status for free data transfers to and from EU countries post-Brexit, she said.

"We can't wait until the UK is applying for an adequacy assessment and then we're told, 'well it's a pity that you didn't enshrine the principle and the essence of Article 8 of the charter.' We have a chance to do that now and ensure a solid platform for requesting an adequacy assessment [from the European Commission]."  

'Economic chaos'

Thomas Ashton, Parliamentary Undersecretary for Culture, Media and Sport, rejected that suggestion, saying a new, freestanding right to data protection was unnecessary. "It's like pouring diesel into a petrol engine," he said of the amendment initiated by Labour lawmaker Wilf Stevenson.

Ashton also said that national courts would struggle to interpret the new right. "What if the courts found part of the GDPR incompatible against this new super-right?" he said. "Rather than enabling the free flow of data, we could be crippling it."

"The consequences of any finding would be unclear, and that would create legal, regulatory and economic chaos," he said.

Ashton argued that the EU Charter of Fundamental Rights was only "intended to catalogue rights that already existed in EU law and case law," and that those substantive rights will be protected in domestic law by Britain's EU (Withdrawal) Bill. 

The government and lawmakers will continue discussing the issue in the new year.

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