UK Government Position Paper on International Transfers of Data – key points

The post below was first published on our Employment blog

Last week the UK Government released its negotiating position paper on international transfers of personal data within the EEA (The Exchange and Protection of Personal Data). Once the UK leaves the EEA it will no longer be subject to the General Data Protection Regulation (the “GDPR”) and would no longer form part of the EU “safe data” zone throughout which personal data may be freely transferred. The GDPR will however continue to apply to UK businesses who provide goods or services to individuals in the EEA.

In line with previous declarations, the position paper outlines the Government’s desire to maintain the “frictionless” movement of data to and from other countries within the EEA. It cites the economic benefits for the UK and EU as well as cooperation in respect of law enforcement matters (such as serious crime and terrorism).

The position paper sets out the Government’s preferred outcome in three key areas:

  • An EU adequacy decision in relation to the UK’s post-Brexit data protection legislation;
  • The continued input of the UK data regulator (the Information Commissioner’s Office (the “ICO”)) in the EU’s regulatory dialogue; and
  • Interim arrangements, from the point of Brexit to the time when more permanent measures  have been put in place, to maintain stability and consistency.

Adequacy Decision

An adequacy decision would be made by the European Commission. It would effectively state that the UK’s data protection regime offered a standard of protection equivalent to that in other EU member states. This would be the most efficient method of ensuring that personal data can continue to flow between the UK and the rest of the EU. The position paper highlights the fact that the UK will have in place, at the point of departure from the EU, a data protection regime which is at an “unprecedented point of alignment with the EU” (by virtue of the GDPR, which will have applied up to that point).

If an adequacy decision, or something similar, is not forthcoming, then data controllers within the EEA would only be able to export personal data to the UK under the terms of the Standard Contractual Clauses, or by following approved Codes of Conduct, or, in intra-group situations, after they have implemented Binding Corporate Rules.  These are the alternative legal bases for transfers of personal data outside the EEA as set out in the GDPR. As we have seen (in the context of data transfers with other non-EEA countries), these inevitably lead to additional cost and administrative hassle for organisations, especially for small to medium sized companies.

There are nonetheless some obstacles to the adequacy model, not all of which are mentioned in the Government’s position paper. One (somewhat glaring) omission is the fact that the UK’s controversial surveillance regime may affect its ability to meet the standards. In particular, there are ongoing concerns about the extent of the surveillance, interception and retention powers in the Investigatory Powers Act 2016, which run counter to the EU’s approach to data protection. Surveillance legislation in the US has to date precluded an adequacy decision, forcing it to rely instead on measures such as the US Privacy Shield, Standard Contractual Clauses and Binding Corporate Rules.

ICO input into European Data Protection

The paper outlines the UK’s intention to remain “fully involved in future EU regulatory dialogue” around data protection in a post-Brexit world. It states that the ICO would want to continue working closely with other authorities and proposes that the UK explores mechanisms to this effect.

This position is not surprising. If the UK were to lose influence at the European table, this could lead to divergence in the interpretation of relevant legislation between the UK and the rest of the EU. This could, in turn, impact any adequacy decision applying to the UK.

Interim Arrangements

Throughout, the paper advocates the need for stability and certainty in respect of the many existing data transfer arrangements between the UK and other EU member states. In order to tackle this issue, it proposes that the EU at least find in favour of an interim adequacy decision for the mutual benefit of all parties. It argues that this is acceptable on two grounds, namely:

  • The UK’s data protection regime will necessarily be fully compliant with the GDPR at the point of its departure from the EU (as it will be subject to the GDPR immediately beforehand); and
  • At least in the short term, the GDPR will continue to apply under UK domestic law through the EU Withdrawal Bill.

The paper suggests that this interim arrangement should hold until a more permanent agreement is put in place (which, in an ideal scenario, would simply be a more long term version of the same thing).

For more information, please contact Marcus Turle, Consultant, Duc Tran, Senior Associate or your usual Herbert Smith Freehills contact.

UK Government Publishes Technical Notes, including relating to “Privileges and Immunities”

 

The post below was first published on our Public International Law blog

On 28 August, in advance of the next round of EU-UK talks, the UK Government published three Technical Notes, one of which “provides further information to support the UK’s position published on 13 July in the UK’s position paper on Privileges and Immunities” (the Technical Note). The 13 July Position Paper is discussed in our blog post here. The Technical Note requests clarification from the EU on a number of issues, in particular as regards the EU’s position on the implications of the UK’s withdrawal from Protocol (No 7) on the privileges and immunities of the European Union of the Treaty on the Functioning of the EU (Protocol 7).

As a general premise, the Government asks whether the EU’s position on the extent of the privileges and immunities to be granted under the Withdrawal Agreement (the Agreement) should differ depending upon whether or not the Agreement confers, or continues to confer, upon the EU functions in, or in respect of, the UK.

In particular, the Technical Note seeks confirmation from the EU that it agrees that the privileges and immunities granted to EU institutions, agencies and officials in the UK should reduce after exit so as to be linked solely to any function that may be conferred, or continue to be conferred, by the Withdrawal Agreement. To the extent that any wider application of privileges and immunities of the EU in the UK is envisaged, the EU is asked to clarify why this is necessary.  Specifically, the Government requests an indication from the EU as to the rationale for any continued protections in the UK for MEPs, and how such protections would operate.

The Technical Note foresees the continued presence of an EU delegation to the UK after the UK’s exit, and asks for clarification regarding how provision could be made to allow for this. It also asks for confirmation and assurances that the UK’s representation to the EU should continue to enjoy the same diplomatic privileges and immunities as a permanent mission of a Member State after Brexit. A reciprocal recognition is also acknowledged of ongoing privileges and immunities for representatives of Member States taking part in the work of institutions, agencies or bodies based in the UK, and of the UK taking part in the work of the EU within Member States’ territory, where such continued work is envisaged in the Agreement.

COMMENT

The questions posed in the Technical Note provide an interesting indication of the nature of the discussions taking place between the EU and the UK on the issue of ongoing privileges and immunities. This issue is fundamentally bound into the nature of the future relationship between the UK and the EU under the Agreement (and any further relationship agreements). As such, the Technical Note centres its requests on the continuing functions to be carried out by each side, and seeks clarification in respect of privileges and immunities that may be sought outside such functions. Central to these questions, therefore, will be the continuing role of the EU in the UK, and vice versa, under the Agreement.

For more information, please contact Andrew Cannon, Partner, Hannah Ambrose, Professional Support Consultant, Vanessa Naish, Professional Support Consultant or your usual Herbert Smith Freehills contact.

UK Government releases three technical notes in relation to some of its Brexit position papers

On Monday 28 August 2017 the UK Government published three technical notes which expand on some of its Brexit position papers.  The first two notes relate to the Government’s position paper on Nuclear materials and safeguards issues, which was published on 13 July 2017. A technical note on existing contracts for the supply of nuclear material highlights the need for clarity in respect of nuclear supply contracts entered into prior to the UK’s withdrawal (and as required under the Euratom Treaty approved by the Euratom Supply Agency) but where the supply period extends beyond the withdrawal date. A technical note on spent fuel and radioactive waste highlights the need for reciprocal assurances from the UK and the EU27 in relation to continued legal responsibilities for spent fuel and radioactive waste and the importance of a dispute resolution mechanism.

A  third technical note relates to the ‘Privileges and Immunities’ position paper released on 13 July 2017 (see our blog post here).  This technical note asks the EU to clarify its position in respect of a range of issues such as the scope of certain continued protections, how and why continued protection for MEPs after Brexit is justified, or what assurances it can offer the UK that the UK’s representation to the EU will continue to enjoy these privileges and immunities as long as the Withdrawal Agreement confers on the EU any functions in or in respect of the UK.

UK GOVERNMENT RELEASES NEW DATA PROTECTION POSITION PAPER

A paper outlining the UK Government’s position on data protection post-Brexit has been released. A new Data Protection Bill was announced in the Queen’s Speech in June which will implement the EU’s new data protection framework into UK law. The UK Government is planning to use this alignment with EU law to explore a UK-EU model for exchanging and protecting personal data, building upon the existing adequacy model. This will provide the necessary stability for businesses, public authorities and individuals and should ensure that the UK’s Information Commissioner’s Office and the equivalent EU regulators are able to maintain effective regulatory cooperation and dialogue post Brexit.

We will publish a more detailed analysis of the paper here shortly.

Enforcement and dispute resolution under the Withdrawal Agreement and any future relationship agreement: no role for the CJEU….or is there?

The post below was first published on our Arbitration blog.

On its face, the thrust of the UK Government’s Future Partnership Paper on Enforcement and Dispute Resolution (the Paper), published on 23 August, is to rule out the jurisdiction of the Court of Justice of the European Union (CJEU) to determine the enforcement of rights and obligations by individuals and businesses derived under the Withdrawal Agreement (and any future relationship agreement) and disputes between the EU and the UK.  Since the Paper was published, the Prime Minister has again reiterated the Government’s position that “the UK will be able to make its own laws – Parliament will make our laws – it is British judges that will interpret those laws, and it will be the British Supreme Court that will be the ultimate arbiter of those laws.”

However, as discussed below, whilst perhaps consistent with the stage of negotiations, the Paper is drafted to leave considerable room for manoeuvre, and it leaves many questions unanswered regarding enforcement of rights and obligations under the Withdrawal Agreement and any future relationship agreements and dispute resolution between the UK and the EU after Brexit.

The Paper follows the publication on 22 August of the UK Government’s Future Partnership Paper on Providing a Cross-border Civil Judicial Cooperation Framework, considered in our blog post here, which presented the UK’s position on the extent to which current EU rules on choice of law, jurisdiction and enforcement of judgments should continue to apply as between the UK and the EU Member States post-Brexit. Continue reading

UK clarifies negotiating position on choice of law, jurisdiction and enforcement of judgments post-Brexit

Yesterday (22 August) the UK Government published a paper which outlines its position on the extent to which current EU rules on choice of law, jurisdiction and enforcement of judgments should continue to apply as between the UK and the EU27 post-Brexit. The paper, Providing a cross-border civil judicial cooperation framework, responds to the Position Paper on Judicial Cooperation in Civil and Commercial Matters published by the European Commission on 29 June (see our post).

Broadly, other than seeking wider enforcement of judgments, the Government agrees with the Commission’s proposals on the terms of separation, if no agreement on a future relationship can be reached. More interesting, however, are the comments on what that future relationship might look like.

Commercial parties will be pleased to see the Government has taken on board the importance of agreeing reciprocal rules, closely mirroring the current EU system, which will support cross-border trade after Brexit.

Continue reading

UK Government releases Brexit Enforcement and Dispute Resolution paper

Another paper has been released by the UK Government. This latest paper looks at possible future options for enforcement and dispute resolution mechanisms in relation to the Withdrawal Agreement, and the arrangements to be agreed for the future relationship between the UK and the EU. This is on the basis that the ‘direct’ jurisdiction of the Court of Justice of the European Union (CJEU) in the UK comes to an end at the point of the UK’s withdrawal from the EU.

We examine this paper in detail in a blog post here.

UK Government releases new papers ahead of third round negotiations

Today the UK Government released two new position papers. The first paper outlines the UK’s proposals for the regulation of goods to ensure the availability of goods at the date of withdrawal, to avoid a potential cliff edge situation. This paper focuses on four key principles:

  1. Goods placed on the Single Market before exit should continue to circulate freely in the UK and the EU, without additional requirements or restrictions;
  2. Where businesses have undertaken compliance activities prior to exit, they should not be required to duplicate these activities;
  3. The agreement should facilitate the continued oversight of goods; and
  4. Where the goods are supplied with services, there should be no restriction to the provision of these services that could undermine the agreement on goods.

The UK Government hopes negotiations on this topic will assist in moving towards a future trade agreement with the EU.

The second paper released today addresses issues of confidentiality, particularly the confidentiality of documents and information obtained by the UK and the EU pre-withdrawal.

A third round of negotiations between the EU and UK are due to commence next week. The Government also released a news story on the two position papers, which can be viewed here.

Frictionless Trade? UK-EU Customs Relations Post-Brexit

On 15 and 16 August 2017 the UK Government published two papers setting out its proposals for UK-EU customs relations post-Brexit.  The papers represent an important step forward as they set out the greatest detail to date as to the Government’s thinking in this area.

Next Steps for Businesses

As we explain in our briefing, the Government papers indicate the possible direction of travel but not the final destination, as the proposals are partial and raise significant questions in practice.  There remains ample opportunity for businesses to seek to influence the debate and it would be prudent for businesses to study carefully the proposals in light of their own particular circumstances. Submissions should be made to stakeholder.engagement@dexeu.gov.uk.

The Government Papers and the Ongoing UK-EU Brexit Negotiations

The first of the two papers is a “future partnership paper” on UK-EU future customs arrangements, which sets out the Government’s proposals for UK-EU customs relations and calls for stakeholder input.  The second paper is a “position paper” specifically in relation to Northern Ireland-Ireland border arrangements, which covers a number of aspects, including the movement of goods across the Northern Ireland-Ireland border, and which overlaps and builds upon the groundwork in the UK-EU future customs arrangements paper.

The different status of the two papers is linked to the phasing of the ongoing UK-EU Brexit negotiations that remain currently at the first phase of discussing “exit issues”, of which the Northern Ireland-Ireland border arrangements is one.  The EU has required that sufficient progress is made in relation to these exit issues before the Brexit negotiations can move on to discussing the framework for a future relationship, including UK-EU customs arrangements.  In publishing these two papers essentially together, the UK is attempting to move the debate forward by demonstrating that these issues are to an extent interlinked – the Northern Ireland-Ireland border arrangements exit issue may depend on the future UK-EU trade relationship.

In addition and importantly, the focus for the discussion in both papers concerns those elements of customs controls that relate to customs duties and their administration.  With the exception of sanitary and phytosanitary measures (SPS) for agri-food products, which are mentioned in the Northern Ireland-Ireland border arrangements paper, these papers do not address in any detail the compliance of products with technical standards.  While this issue arises in relation to all sorts of different product sectors, it is particularly sensitive for agri-food products, where checks take place primarily at the border.

In this briefing, we explain the practical implications of the proposals put forward by the Government and the challenges that these pose.

You can read our full briefing here.