The deal with data after Brexit
On the 12th of July, the Government published a report detailing its proposals for the UK’s post-departure relationship with the EU. The paper put forward the Government's view of the current situation and set out proposals and suggestions for the future.
"Any disruption in data flows would be economically costly."
Free flow of data
From the wording, it seems that the Government wants the free flow of data to continue. The report states that the global economy is built on the ability to collect, share and process data, underpinning digital trade and all other trade flows. “Any disruption in cross-border data flows would be economically costly while unnecessary barriers such as the unjustified localisation of data, could have a serious impact on future prosperity,” it claims.
As such the Government proposes arrangements to ensure the continued free flows of personal data between the UK and the EU. The UK proposals would include ensuring cross-border data flows, providing for the removal and prevention of barriers to the flow of data across borders.
Data protection, the ICO and data protection authorities
Data protection arrangements are an area where co-operation with the EU supports the Government’s proposals for economic or security partnerships. As such the report states that the UK and EU should agree “specific arrangements that support ongoing co-operation.”
Those arrangements would provide for the continued exchange and protection of personal data between the UK and the EU, and allow for the ongoing co-operation between Data Protection Authorities.
"The UK and EU must maintain the ability to exchange data."
“Therefore it will be important that a future UK-EU agreement provides for the continued exchange of personal data with strong privacy protections for citizens and allows ongoing co-operation between Data Protection Authorities,” it stated. The report writers went to say: “The UK and EU must maintain the ability to exchange data in a way that keeps personal data protected.”
The government recognises that personal data can flow freely between Member States and EEA countries and also to third countries if European Commission judges deem there to be an ‘adequate’ level of data protection in that country. The EU have 12 Adequacy Decisions in places, and the Government said it believes that this framework would be the right starting point for data protection arrangements between the UK and the EU.
"The UK is ready to begin discussions on a [data protection] adequacy assessment."
However, the UK wants to go further than this framework in two ways; stability and transparency, and regulatory co-operation. The report states that the EU and UK are starting from a position of trust in each other’s standards and regulatory on data protection with the Data Protection Act 2018, the EU’s GDPR and the Law Enforcement Directive. Using confident language, the report states: “The UK is ready to begin preliminary discussions on an adequacy assessment so that a data protection agreement is in place by the end of the implementation period at the latest.”
Making use of new technologies
It also states that trade should promote the development of new technologies such as AI. Given that these new technologies pose “new and shared challenges,” the UK Government is proposes new models for regulatory co-operation between the UK and the EU to tackle these.
One example of this is the European AI Alliance, recently set up by the EU to develop draft ethics guidelines. Post-Brexit, the UK’s Centre for Data Ethics intends to participate in this Alliance alongside its European partners. The day after the publication of this report, the Department for Culture, Media and Sport launched a consultation seeking views on the way in which the Centre for Data Ethics should work.
Data sharing for security
The report states that data plays an increasingly important role in the global economy, and data helps keep people safe by maximising the effectiveness of law enforcement agencies and bringing more criminals to justice.
Many pages are dedicated to the need to share data for security purposes. The report states that it is necessary to have a single coherent security partnership between the UK and the EU to address, “the use of data in a range of contexts,” as well as other issues such as the identification of terrorists.
It states that the UK’s vision for the future security relationship is underpinned by five key principles, the fifth of which is appropriate safeguards including respect for human rights, comprehensive data protection arrangements and robust appropriate government arrangements.
"The security partnership should include the ability to share time-sensitive data."
To deliver on these principles, the security partnership should include the ability to share time-sensitive data and information and the government proposes an ambitious partnership with the EU that covers mechanisms for rapid and secure data exchange in the face of a proliferation of novel weapons and sophisticated data-driven technologies.
At some points in the repotr the Government's proposals read more like certainties. It states: “the UK will continue to have operational processes which closely align with EU tools and data sharing systems, which are uniquely compatible with the EU. This means it is possible for operational co-operation to continue, albeit on the basis of a different legal relationship.”
It states that the international nature of crime makes the swift, effective and efficient exchange of data essential in modern law enforcement. “Increasing volumes of data create a greater need to share and access different datasets quickly and securely.” It states that the UK’s participation in EU data exchange tools “is the only effective way to protect specific cross-border capabilities for UK and EU operational agencies.”
The report predicts that without the UK’s participation in and contribution to data exchange tools such as ECRIS, European Criminal Record Information Systems, there would be a reduction in the both the UK’s and the EU’s ability to protect citizens across Europe and so proposes continued participation in ECRIS. With regard to Europol, the EU law enforcement agency, the report concedes that the UK would not be able to maintain its current contribution to the agency after departure.
"The Government is committed to a new, deep and special relationship."
The UK proposes that its new economic partnership with the EU would allow the UK to negotiate new international trade agreements in line with its priorities and interests, covering data as well as goods, services, investment, government procure and intellectual property.
The report states that the Government is committed to “a new, deep and special relationship,” through UK and EU businesses and consumers can continue to trade freely with one another.