Delegated Legislation Committee
Draft Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019
The Committee consisted of the following Members:
Chair: Ian Austin
† Beckett, Margaret (Derby South) (Lab)
† Black, Mhairi (Paisley and Renfrewshire South) (SNP)
† Cartlidge, James (South Suffolk) (Con)
† Coffey, Dr Thérèse (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
† Cooper, Rosie (West Lancashire) (Lab)
† Debbonaire, Thangam (Bristol West) (Lab)
† Fysh, Mr Marcus (Yeovil) (Con)
† Grant, Mrs Helen (Maidstone and The Weald) (Con)
† Hollinrake, Kevin (Thirsk and Malton) (Con)
† McCarthy, Kerry (Bristol East) (Lab)
† Mackinlay, Craig (South Thanet) (Con)
† Martin, Sandy (Ipswich) (Lab)
† Menzies, Mark (Fylde) (Con)
† Morris, Grahame (Easington) (Lab)
† Nandy, Lisa (Wigan) (Lab)
† Stewart, Iain (Milton Keynes South) (Con)
† Wragg, Mr William (Hazel Grove) (Con)
Yohanna Sallberg, Elektra Garvie-Adams, Committee Clerks
† attended the Committee
Fifteenth Delegated Legislation Committee
Thursday 14 February 2019
[Ian Austin in the Chair]
Draft Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019
I beg to move,
That the Committee has considered the draft Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019.
It is a pleasure to serve under your chairmanship, Mr Austin.
The draft regulations are an affirmative statutory instrument on the environment, for consideration in respect of the United Kingdom leaving the European Union in accordance with the result of the 2016 referendum and subsequent agreement by Parliament. Their purpose, under the European Union (Withdrawal) Act 2018, is to provide for public authorities in the United Kingdom to exercise a series of limited legislative functions that under EU legislation are currently conferred on the European Commission.
In each case, the legislative function was conferred on the Commission so that it could sort out the technical details of a specific EU regime and adapt to changes without the frequent need to refer back to the European Council and Parliament. The powers are vital to the functioning and development of the legislation, but they are strictly limited to specific technical and administrative matters. The functions are not the kind for which, in the domestic context, we would generally require primary legislation; rather, they are suitable to be dealt with by secondary legislation, or administratively.
Examples of the functions include specifying what forms are to be used; amending technical annexes to reflect advances in scientific and technical knowledge; and updating annexes to reflect changing requirements under international agreements. A good example would be a change under the multilateral convention on international trade in endangered species, known as CITES. In 2016, at the last conference of the parties, which I had the joy of attending, we adopted a decision to change the listing status of more than 500 species of wild animals and plants. The Commission subsequently amended the basic EU CITES regulation by a 2017 regulation. After we leave the EU, the UK authorities need to be able to continue updating such technical details for domestic purposes, to ensure that the legislation keeps pace with change, including technological developments and our international commitments, without the need for primary legislation every time that a change in such matters is required.
This coming May I hope to attend the CITES conference of the parties. It is highly likely to make further technical changes to the convention, and we will need to reflect those in our national legislation within the 90 days allowed under the convention. As I have suggested, it would be difficult, if not nigh impossible, to comply through primary legislation.
Until now, Parliaments and Assemblies in the United Kingdom have had little input into how such powers are exercised. With two minor exceptions, the draft regulations provide that the legislative functions coming to the UK will be exercised through secondary legislation, which is subject to scrutiny by our Parliaments. The exercise of the functions in specified cases also requires consultation with interested parties and expert bodies—for example, regulation 9 on industrial emissions or regulation 12 on CITES.
In other cases, the principles of good public administration and the Government’s own 2018 consultation principles will ensure that relevant expert advice is sought where appropriate, and that those affected by any policy developments are properly consulted. The regimes will otherwise continue to function similarly to how they do now.
I am glad that the Minister mentioned the need for expert advice. The Department for Environment, Food and Rural Affairs, however, is incredibly stretched at the moment, so what assurances will she give on sufficient expert scientific or technical input before statutory instruments are brought before the House? It is one thing to say that Parliament gets to scrutinise, but we are not experts, and experts need to be involved.
To use the example of CITES, such bodies will often input into consideration of changes to species to be protected in future. At the moment, Parliament gets no say on that whatever; it just gets done through international agreement, with the EU just changing it so it is there. There is an element of the different sorts of science experts that we have in the United Kingdom, but we will not necessarily need to limit ourselves to the United Kingdom alone in consideration of scientific expertise in the future. A key differential is that now Parliament will have a say on bringing such things into UK law. That is a step change from what we have today.
The draft statutory instrument makes a number of adjustments, but I assure the Committee that there is no change of policy, and there will be no impact on businesses or the public. Regulation 2 confers functions under the EU regulation on persistent organic pollutants, often known as POPs. That includes, for example, a power to amend POPs waste concentration limits, for the purpose of adapting to scientific and technical progress; and to ban, restrict or modify the use of POPs in accordance with international agreements.
Regulations 3 and 6 confer functions under the EU regulations on illegal timber and timber products. The functions include a power to recognise licensing schemes in partner countries to form the basis of licensing, and to amend the list of timber products to which the licensing scheme applies.
Regulation 4 confers functions under the EU regulation establishing a European pollutant release and transfer register. The functions include a power to take measures to initiate reporting on releases of relevant pollutants from diffuse sources where no data exist, and to adopt guidelines for the monitoring and reporting of emissions.
Regulation 5 confers functions under the EU regulation on trans-frontier shipments of waste. The functions include a power to establish and amend technical and organisational requirements for the practical implementation of electronic data interchange for the submission of documents and information.
Regulation 7 confers functions under the EU regulation on the Nagoya protocol on access to genetic resources, and the fair and equitable sharing of benefits. The functions include a power to establish and amend procedures for monitoring user compliance and for recognising best practice.
Regulation 8 confers functions under the EU regulation on mercury. The functions include a power to specify the forms to be used for export and import restrictions, and to set out technical requirements for the environmentally sound interim storage of mercury, mercury compounds and mixtures of mercury.
Regulation 9 confers one legislative function contained in an EU directive. That directive relates to industrial emissions, and the power relates to determining best available techniques for preventing or minimising emissions from activities covered by the directive.
Regulations 10 and 11 confer functions under the EU regulations governing the use of leghold traps and the import of pelts and goods. The functions include a power to grant derogations from the ban on the import of pelts and other products, and to determine the appropriate forms for certification of imported goods incorporating pelts of listed species.
Regulation 12 confers functions under the EU regulation implementing CITES. The functions include a power to establish restrictions on the introduction into the UK of listed species, and to provide for derogations from certain provisions.
Will the Minister give way?
Might I suggest that the hon. Lady makes a contribution to the debate so that I will be able to answer her questions fully?
I have explained that we will exercise those powers by laying statutory instruments before Parliament, which is not what happens today, as I have pointed out. For the sake of completeness, I draw the Committee’s attention to the two minor cases in which administrative procedures will be used, rather than secondary legislation. They relate to aspects of the POPs and leghold traps regimes. In the first case, the administrative function being conferred concerns the determination of the format for the provision of information by the competent authority; in the second case, it concerns the publication of model forms for use by importers. To be clear, the draft regulations concern administrative elements, rather than a change in policy.
In addition to the above measures, the draft regulations amend the retained direct EU legislation, where that is necessary to make it function properly after exit. An example of such an amendment is changing references from “Community legislation” to “retained EU law”.
All the legislative functions covered by the draft regulations fall within the environment and wildlife policy areas of DEFRA. We have decided to deal with them in a single instrument that is subject to the affirmative procedure. The draft regulations allow the nine so-called “home” instruments, which would otherwise separately confer each legislative function, to be subject to the negative procedure. In each case, the conferral of legislative functions was the only element in the “home” SI that required the affirmative resolution procedure. The structure of the regulations will allow the exercise of legislative functions by UK bodies in those areas of the environment to be considered together.
The draft regulations extend and apply to the whole of the United Kingdom. They deal with both reserved and devolved matters. In the case of reserved matters, the legislative function will be conferred on the Secretary of State to exercise on behalf of the whole UK. We have consulted extensively with the devolved Administrations about legislative functions that relate to devolved matters and, where appropriate, they have consented to our proceeding by means of the regulations. Where matters are devolved, functions are conferred on the Secretary of State and Ministers for the devolved Administrations. The default position is that each Administration will exercise a function separately. Where devolved Administrations consent on a case-by-case basis, however, the Secretary of State will be able to exercise functions on their behalf.
I point out that we are making technical amendments, in effect to allow us to continue to undertake our international obligations on such matters in a way that would not be possible if we did not have the powers. I hope that I have explained to the Committee how the European Commission does that now.
It is a pleasure to serve under your chairmanship, Mr Austin. Once again, we are discussing a statutory instrument that tries to make provision for a workable regulatory framework after Brexit in the event of our crashing out without a deal. Each time, Labour Members have spelled out our objections to the Government’s approach to secondary legislation, but I make no apology for doing so again because the volume of EU exit secondary legislation undermines accountability and proper scrutiny.
The Government claim that no policy decisions are being taken, but establishing a regulatory framework necessarily involves matters of judgment and raises questions about resourcing and capacity. The potential cumulative impact of all this secondary legislation will be immense, especially in some sectors. Because of the limited accountability that it allows, secondary legislation ought to be used only for technical, non-partisan, uncontroversial changes. Instead, the Government continue to push through contentious legislation without the opportunity for proper in-depth scrutiny. In that light, the Opposition put on record our deep concern that the processes regarding the draft regulations are not as accessible and transparent as they should be.
The draft regulations need to be seen in the context of the withdrawal agreement and the draft Environment (Principles and Governance) Bill. The draft Bill is not capable of maintaining current EU protections because it does not create an effective body that can make judgments binding on public bodies or Departments, or impose meaningful sanctions. The public can have no confidence in the Government’s proposed environmental watchdog if it is appointed by and reports to DEFRA. In any case, there will be an environmental governance gap from leaving the EU until the date when the proposed watchdog starts to function, even if the proposed Bill is not delayed.
It is essential not to allow Brexit to be used as an excuse to reduce or weaken our environmental protections. If we are to keep in step with any environmental improvements, the Government must ensure that the UK commits to non-regression on environmental standards with the EU, and they must give that commitment legal clout in the environment Bill.
The explanatory memorandum to the draft regulations states:
“This instrument does not make changes to substantive policy content.”
It will, however, allow UK authorities, particularly the Secretary of State, to make changes that could have a significant environmental impact. The powers of the EU Commission under the persistent organic pollutants regulation will be transferred to the Secretary of State, who will be empowered to amend the draft regulations by statutory instrument subject to the negative procedure. There is nothing in the draft regulations to prevent the present Secretary of State or any subsequent incumbent from watering down the regulation of POPs. If they did so, the negative procedure would give Parliament precious little control over their decision.
The aim of the European Parliament in passing the POPs regulation was to phase out their use as soon as possible or restrict their production and use, minimise POP releases and establish provisions regarding POP waste. The Commission currently has the power to amend POP waste concentration limits and ban or restrict their use in accordance with international agreements, but where is the provision in this SI to ensure that the Secretary of State will only tighten the regulation, or that he will do so in step with other countries? The devolved nations will have their own arrangements, which may afford more democratic control, but in England, Parliament is not taking back control of the regulation; it is passing it to the Secretary of State.
The European pollutant release and transfer register is a publicly accessible electronic database that implements a protocol of the United Nations Economic Commission for Europe to facilitate public participation in environmental decision making, as well as contributing to the prevention and reduction of environmental pollution. But where is the breadth and depth of expertise available throughout Europe—let alone the resources—to inform a British version of the register? How can we possibly do anything other than take our cue from Europe on these matters, without any longer having the power to influence them? Surely the same is true of the Nagoya protocol. The Commission has the power and duty to establish and monitor the use of a register of genetic resources collections. Transferring them to the Secretary of State will take away the valuable shared knowledge and practice that we currently enjoy.
Again, with the shipment of waste regulation, the Commission has the power to establish the technical and organisational requirements for the practical implementation of electronic data interchange; to establish procedures governing the export of wastes; to maintain a correlation table to support enforcement; and to amend to reflect international agreements and changes in other EU legislation. Those functions are to be transferred to the Secretary of State, but what possible sense does it make to replicate all that activity at a national level? How much additional cost will be involved? How will the UK keep in step with any changes in EU legislation? If we do not, how will we be able to maintain our shipments of waste to EU countries for treatment? It is all very well for the Secretary of State to talk about developing our own recycling facilities, but we cannot do that for all our waste by December 2020, let alone by 29 March.
In the regulations regarding wildlife and trade, the powers to amend, for example, to add a country to the list of approved countries from which we will be allowed to import animal pelts, will transfer to the Secretary of State. However, whether he or any subsequent Secretary of State decides to stiffen or relax such regulations will be a matter for further regulation and not easily challengeable by this Parliament or anyone else.
That was going to be my question to the Minister. There is keen public interest in ensuring that we do not promote the fur trade in any way, shape or form. It is one thing to say that discussion at the European level does not have direct democratic oversight, but it is a big discussion, involving lots of countries and with a big political debate around it; if we are talking about a Committee such as this one, or perhaps the Secretary of State or an official exercising functions in an office somewhere in Whitehall, I worry that the policy agenda will move on without our realising that something we would not have accepted is happening.
I totally agree with my hon. Friend. We would much prefer provision in every single regulation to make it clear that the Secretary of State cannot relax or move backwards on any current EU regulations under a statutory instrument subject to the negative procedure. That is the major flaw of a large number of such instruments. With most of the transferred powers, the functions can be exercised by the Secretary of State without a requirement to obtain expert or technical input or the need for consultation with those likely to be affected. That is a recurring theme.
Despite the reassurances of the Secretary of State—I mean, of the Minister—sorry, an instant promotion there.
In my dreams!
Despite the reassurances of the Minister, the draft regulations do not contain a requirement for future changes to be agreed with the devolved Administrations. It is hard to see how the regulations will operate effectively.
It is a pleasure to serve under you, Mr Austin. Is the hon. Gentleman saying that he prefers any strengthening or reduction of environmental matters to be done remotely from the UK in the corridors of Brussels by a Commission of people whose names he does not even know and over whom we have little influence? The UK has almost no decision-making powers. To have them domestically, open and transparent to all, is surely a way forwards in strengthening or changing legislation in accordance with what the UK wants, rather than the rather remote practice now. I find it surprising that he denigrates domestic Ministers but seems to praise greatly those he does not even know the names of. Is that a correct summary?
The hon. Gentleman’s intervention goes to the very heart of whether it is sensible for this country to be a member of the European Union. I could answer him in the course of a two-hour speech, but I will limit myself to the basic point that most of the provisions in the draft regulations, if not all, cover things that can only be done effectively if all countries agree to do them together. That is the whole point of the European Union: it is a way to ensure that all European countries agree to do things together. What will most likely happen is that we will continue to have to follow the same sorts of regulations that the European Union follows; the only difference will be that we have no say over what they are.
Despite all that, however, the amendments proposed in the draft statutory instrument do not alter the operation of existing EU regulations, so we do not intend to oppose them.
I will keep my comments very brief. Given that no real policy change is being proposed, we will not be opposing the draft regulations. However, I echo some of the concerns raised by the hon. Member for Ipswich. A lot of promises have been made by the Secretary of State and the Prime Minister about the maintenance of environmental standards, but they are just verbal guarantees. We need to see them enacted in law as, given the last couple of months, I am sure no one could blame us for being hesitant to take the Government at their word.
If any policy alterations are to be made in the future, all the relevant powers and authorities must respect the devolved settlement. I put that on the record so that the Government can heed our concerns.
As there is no actual policy change, and some work has been conducted with devolved officials, we do not oppose the regulations.
It is a pleasure to respond to the points raised. I saw the hon. Member for Ipswich last Friday in his constituency, when we had the great joy to be together for the opening of the Ipswich flood barrier, which was a great occasion. The hon. Gentleman said that the draft regulations need to be seen in connection with the draft Bill, but the whole point is that this is about the EU (Withdrawal) Act. I can only bring forward regulations that are connected to the operability of regulations in the UK in the future once we have left the European Union. This is not a change of policy, nor is it about raising concerns about putting non-regression clauses into the regulation. That would be a policy change—it would be something else to do—and the draft regulations are simply about operability.
The hon. Gentleman refers to the POPs regulation being passed by the European Parliament. He will know that it was also passed by the European Council, so we have been involved in several of the regulations, and I believe we have the competence to continue to do that. The key point, which my hon. Friend the Member for South Thanet made, is that at the moment this Parliament has no say, and the European Parliament has no say, and the Council has no say, on the regulatory changes that the European Commission undertakes in order to keep pace with the changes required by international agreements or other scientific changes. That power is rightly being brought back here, to the Secretary of State, or to devolved Ministers where the matter has been devolved. We have pointed out very clearly that we will bring those powers forward through statutory instruments, apart from in the case of two issues that are about what the form looks like. I do not think it would be a good use of parliamentary time to have regulations on how a new form is composed. We are considering those simple, straightforward issues today.
I recognise the hon. Gentleman’s point about countries agreeing to do things together, and he will be aware that most of the points that we are discussing are in international agreements, such as aspects of the Nagoya protocol. Once the United Kingdom is no longer part of the European Union, we will attend those discussions in our own right and will then need to find ways to bring changes into our legislation.
I respect the devolved Administrations, which is why we talked extensively with them about how to take the legislation forward. Although I am sure that we want to have a common framework, and the four nations are working together on that, and we will have international obligations, there may be times when the Scottish Government, the Welsh Government or the Northern Ireland Administration may want to do things in a slightly different way to achieve the same outcomes. That is what devolution is all about.
I am pleased by the comments made my hon. Members recognising that this is simply a straightforward, technical, operability change. I look forward to future debates, such as when we come back from CITES in May 2019, when I hope we will have protected even more species around the world and we will be bringing forward a statutory instrument to discuss those changes, if that is necessary.
Question put and agreed to.
Draft Data Protection, Privacy and Electronic Communications (Amendments Etc.) (EU Exit) Regulations 2019
The Committee consisted of the following Members:
Chair: Mr Nigel Evans
† Afolami, Bim (Hitchin and Harpenden) (Con)
† Baker, Mr Steve (Wycombe) (Con)
† Byrne, Liam (Birmingham, Hodge Hill) (Lab)
† Docherty, Leo (Aldershot) (Con)
† Elmore, Chris (Ogmore) (Lab)
† Foster, Kevin (Torbay) (Con)
† Freer, Mike (Lord Commissioner of Her Majesty's Treasury)
Grogan, John (Keighley) (Lab)
† Hoare, Simon (North Dorset) (Con)
† James, Margot (Minister for Digital and the Creative Industries)
† Knight, Julian (Solihull) (Con)
† Latham, Mrs Pauline (Mid Derbyshire) (Con)
† Smeeth, Ruth (Stoke-on-Trent North) (Lab)
† Spellar, John (Warley) (Lab)
† Streeting, Wes (Ilford North) (Lab)
† Western, Matt (Warwick and Leamington) (Lab)
† Whitford, Dr Philippa (Central Ayrshire) (SNP)
Dominic Stockbridge, Committee Clerk
† attended the Committee
Sixteenth Delegated Legislation Committee
Thursday 14 February 2019
[Mr Nigel Evans in the Chair]
Draft Data Protection, Privacy and Electronic Communications (Amendments Etc.) (EU Exit) Regulations 2019
I beg to move,
That the Committee has considered the draft Data Protection, Privacy and Electronic Communications (Amendments Etc.) (EU Exit) Regulations 2019.
It is a pleasure to serve under your chairmanship, Mr Evans. Much of our current data protection framework derives from EU measures—namely the General Data Protection Regulation and the law enforcement directive—over which our Information Commissioner’s Office and UK civil servants have had considerable influence.
When the UK leaves the EU, the GDPR will no longer have direct effect on our law. It will however be retained in domestic law through the European Union (Withdrawal) Act 2018. A number of deficiencies will arise in this as a result of our leaving the Union. The purpose of the draft instrument is to ensure that UK data protection law continues to be operable after exit, and that the protections for data subjects and the obligations on data controllers and processors remain in place after we have left the European Union.
Does the Minister envisage the Government and, indeed, Parliament taking the opportunity to deal with some of the ludicrous interpretations of GDPR legislation, which lead to massive amounts of bureaucracy in both the public and private sectors?
The right hon. Gentleman makes a valid point. I do not think that it pertains to this particular statutory instrument, but I am sure that if he requested a debate on those important matters, he would find a ready audience of hon. Members to participate in it.
Many of the changes made to the GDPR by the draft regulations are minor or technical, and replace European Union-related terminology with UK equivalents. In my remarks, I will cover a number of more complex issues relating to international transfers of personal data, extraterritorial application of the UK GDPR, regulatory co-operation, and our approach to what is known as “applied GDPR”.
On international transfers, the GDPR and part 3 of the Data Protection Act 2018 restrict the transfer of personal data to third countries, unless certain safeguards are met. One of those safeguards is a third country, or a sector within the country, being deemed “adequate” by the European Commission. If deemed “adequate”, data can flow freely to that country or sector. In the absence of an adequacy decision, data can still be transferred, but the onus is on controllers to make sure that alternative safeguards are in place to provide sufficient levels of protection.
The Commission will not be able to make adequacy decisions on behalf of the UK post exit. The regulations transfer that function and the function of preparing model contractual clauses to the Secretary of State. To minimise any disruption to established data flows from the UK to the EU post exit, the regulations add a number of transitional provisions to the 2018 Act. That includes a provision to continue to treat EU member states, other European economic area countries and Gibraltar as adequate in relation to processing under the UK GDPR.
Similar provision is made for personal data transferred to third countries for law enforcement purposes under part 3 of the Data Protection Act 2018. That permits transfers to third countries where the European Commission has found a country, territory or sector adequate under article 36 of the law enforcement directive. For law enforcement processing covered by part 3 of the 2018 Act, EU member states and Gibraltar will be treated as adequate to preserve the flow of critical law enforcement data to those places.
The provisions included in the regulations will allow UK businesses to continue to transfer data to their partners in the EU without any interruption. We propose to adopt a similar approach for countries that had been deemed adequate by the EU Commission by the time the draft regulations were laid before Parliament. That includes the EU’s decision on companies participating in the Privacy Shield scheme in the United States. Further regulations will shortly be introduced to clarify that personal data can be transferred only to those US companies that have updated their Privacy Shield commitment to include the UK.
The draft regulations do not refer specifically to the EU’s adequacy decision in relation to Japan, which was made after they were laid before Parliament, but we will work with the Japanese Government to consider what, if anything, is required in our domestic law to reflect that development. Where UK organisations rely on standard contractual clauses approved by the EU Commission as an adequate safeguard for transfers to other third countries, further transitional provisions will mean that they can continue to rely on those contracts.
Let me outline the draft regulations’ approach to the extraterritorial provisions in the GDPR. The GDPR applies not only to data controllers based in the EEA, but to data controllers based outside the EEA processing EEA data for the purpose of providing goods and services or monitoring individuals’ behaviour. Where a data controller outside the EEA is systematically processing data of EEA residents, it is required to appoint a representative in the EEA to act as a contact point for EEA supervisory authorities. To ensure that there will be no dilution in data protection standards when the UK leaves the EU, the draft regulations preserve the GDPR’s extraterritorial approach. In practice, that means that the UK GDPR will apply to certain data controllers based outside the UK that are processing data or monitoring the behaviour of data subjects in the UK. We have preserved article 27, which requires data controllers and processors based abroad who are systematically processing the data of people in the UK to appoint a representative in the UK.
Let me turn to regulatory co-operation. Articles 60 to 76 of the GDPR focus on how supervisory authorities in the EEA will work together to investigate data breaches that might affect people in more than one country. They also make provision about the supervisory authorities sharing guidance and best practice through the European Data Protection Board. If the UK leaves the EU without a deal, there will be no automatic right for the Information Commissioner to sit on the EDPB or participate in the GDPR’s one-stop-shop mechanism, so those provisions have been omitted from the UK GDPR. Even with a deal, the automatic right for the Information Commissioner’s Office to sit on the EDPB is not yet assured.
The draft political declaration makes it clear that the EU and the UK should continue to collaborate on data after we leave the EU. The draft regulations will retain article 50 of the GDPR in our law, ensuring that EU and UK data protection authorities will have a common basis for developing international co-operation mechanisms.
I will now outline what our exit from the EU might mean for “applied GDPR”, as provided for by the Data Protection Act. The Act creates a separate regime that provides for standards broadly equivalent to the GDPR to apply to processing activities that are outside the scope of EU law and not covered by parts 3 or 4 of the Act. As a matter of domestic law, the GDPR will not apply directly to any general processing activities when we leave the EU, so we can simplify matters by recreating a single regime for all general processing activities, including those that were previously covered by the applied GDPR. Provisions in the Data Protection Act that created or referred to the applied GDPR have therefore been removed from all relevant legislation. The draft regulations make it clear that the new single regime covers matters outside the scope of EU competence prior to the UK’s departure from the EU. The existing exemptions relating to national security and defence in the applied GDPR will be retained in the merged regime to ensure that the intelligence community can continue to carry out its vital work.
As I have set out, our approach is an appropriate way of addressing the deficiencies in data protection law resulting from the UK leaving the EU. I commend the draft regulations to the Committee.
It is a pleasure to serve under your chairmanship, Mr Evans. The draft regulations are a wise precaution, although it is slightly ironic that Her Majesty’s Government are presenting us with what is basically a foundation stone for the permanent customs union and free trade agreement on data that we have been advocating for the United Kingdom in the round. I look forward to Government Members, including the hon. Member for Wycombe, presenting a united front this morning on laying this important foundation stone for a critical part of our customs union with our nearest neighbour.
The draft regulations are a wise precaution because 43% of tech companies in Europe are based in our country and three quarters of our cross-border data flows are with our European neighbours. In introducing them, the Minister is dramatically constraining this country’s ability to strike free and unfettered trade agreements with other countries around the world, because on the critical issue of data, she is locking us into the European Union’s provisions. The Opposition fully support that approach, but we have five important questions for her to answer. The draft regulations are just one piece of the jigsaw, so it is difficult for us to sign them off without having due regard for the full picture of regulation required.
Regulation 8 will write into UK law a derogation from GDPR rules on age. As the Minister knows, the GDPR gives countries latitude to lower from 16 to 13 the age at which consent is deemed to have been given; she is now writing the 13 limit into UK law. During the passage of the Data Protection Act, the Opposition were not particularly comfortable with that approach, which she is asking the Committee to sign off before presenting her much anticipated White Paper on internet harm. Since she is asking us to sign off a derogation that will lower the age of consent to 13 before we know what legal provisions will safeguard our children against bad social media firms, perhaps she could say a little more about whether Her Majesty’s Government agree with the duty of care architecture that we proposed before Christmas.
Furthermore, the draft regulations will be meaningless unless the Information Commissioner has the resources to enforce them. The Minister managed to get through her speech without saying anything about the additional resources that the commissioner will enjoy in order to enforce such a critical part of our regulatory architecture. Nor did she say anything about whether the draft regulations will increase our chances of getting an adequacy agreement with the EU, about whether they will accelerate the timetable for getting such an agreement, or about her Department’s contingency plans in case there is no adequacy agreement.
The Opposition broadly support the draft regulations; indeed, we think that a permanent customs union for data should be replicated across the piece for UK trade with the European Union. However, the Minister has important questions to answer before we can give the draft regulations our consent.
It is a pleasure to serve under your chairmanship, Mr Evans. Obviously, we are rushing through hundreds of statutory instruments because of the threat of no deal and of exiting the EU in a rush in just over 40 days. Data flow is absolutely critical, not just for tech companies, but for how the public sector—or indeed, everything—functions. Getting it right is therefore critical.
I recognise that this has to be done, although it is disappointing that it is being done in a rush, because the public’s concern is about the flow of their personal data and whether it is maintained in a private fashion and protected. An issue that has been raised with me by EU citizens who have looked at applying for settled status is that in the small print at the end, it says that their data may be shared with public or private organisations in the UK or outside. It does not state who on this planet their data cannot be shared with—that might actually be a shorter list. That raises real concern because it is important data to do with their identity, background and HMRC records. It is important that people’s data is protected.
I recognise that the SI corrects paragraphs 76 and 201 of schedule 19 to the Data Protection Act 2018, but the key, as the Minister highlighted, is international transfer. The European Commission has carried out adequacy assessments on third countries, maintained ongoing monitoring and issued standard contractual clauses where protections are not sufficient. It has also monitored and supported that process on an ongoing basis. The Minister’s reference to Japan’s agreement, which was made after this draft instrument was laid, raises one of the key questions going forward: how will this be kept up to date as things change with the EU? We are talking about a massive recreation and duplication of that effort. Huge multinational companies transfer our data elsewhere in the world, and binding corporate rules and whether that data remains protected is another issue that concerns people.
All that will be put on the shoulders of the Secretary of State and the Information Commissioner. I echo the shadow Minister in querying the cost of this and how that cost will be covered, whether from businesses or from taxpayers. The explanatory memorandum mentions that the Government are looking to maintain data flows from the UK to the EU, but nothing in the draft instrument can compel data flows from the EU to the UK. Data flows are a two-way transfer. The loss of the commissioner’s position on the EDPB is significant.
Whether statutory instruments deal with drugs, blood products or medical devices, the sharing of information in both directions has been for the benefit of all our constituents. How will the new regime work going forward? How it will be funded? How will we ensure that we do not end up with gaps in data that expose us to dangers in the future?
It is an absolute joy to sit on the Committee, as I was the Minister on the European Union (Withdrawal) Bill Committee. I congratulate the Minister and officials on the excellent explanatory memorandum, particularly part 2, which sets out the appropriateness statement and so on, in compliance with the European Union (Withdrawal) Act 2018. It is therefore a real joy to have the opportunity to serve on the Committee and I am grateful to be able to make a few remarks.
I was slightly amused by the Opposition spokesman’s remarks about a “data customs union”. I will not rise to that one, as much as he may wish me to—what an amusing hour we could spend. The principle of continuity is crucial and has underpinned all our work. Clearly, it is right that the country should be ready to leave the European Union with or without a deal. I should say “in the unwanted circumstances of leaving without a deal”; Conservative MPs of all persuasions are overwhelmingly united in wishing to leave the European Union with a deal, but it is quite right that we should be ready for all circumstances, which is what the draft instrument before the Committee addresses. I just heard somebody say, “made a change”. I can only think of one Member of Parliament who positively does not want a deal. We would all prefer to leave with an agreement.
It is in our mutual interests that data exchange continues after our exit. It would be absurd were it not to from the current point of alignment. Today is not the day for churlish criticism of the bureaucracy of how the GDPR works; it is a day to welcome the Government’s preparation for leaving, with or without a deal, and to say well done to a Minister who I suspect would have preferred not to leave the European Union. I pay tribute to her and to all Ministers right across Government, who, with great talent and determination, have risen to the challenges of preparing this country for our exit, whether they supported the referendum result or not. I say a huge “thank you” to the Government. It is a great privilege to serve on the Committee.
I thank hon. Members for their questions and comments. I will do my best to respond to them. I agree with the shadow Minister that the draft regulations are a wise precaution. He rightly mentioned that three quarters of our country’s international data flows are with other European Union member states. That is of course even more than the average for exports of other things, notably manufactured goods, which are almost 50% of our global trade.
I do not know whether the shadow Minister is concerned that, by locking into the GDPR, we will jeopardise our ability to strike trade deals with other countries. In previous debates, I have assured him that it is the Government’s intention that we continue to enjoy the benefits of the privacy and data rights that the GDPR has given British nationals, and we would not want to see those rights compromised by any trade deal in the future. The GDPR is becoming a gold standard for privacy and data rights globally—it is causing rising envy, certainly in the US.
The shadow Minister mentioned the age of consent, which is set at 13 in the Data Protection Act. That relates to the rights of young people to open accounts online. We have not reduced that age; we have set it. We set it within the band that the GDPR permits member states to set it. We were not alone in choosing 13; at least five other member states also set the age of digital consent at 13. He raised concerns, which I share, about some of the risks to young people online. We intend to address those through the White Paper we will publish shortly. I thank him and his team for the suggestions they have made to us over the past six months about what that White Paper should contain.
The shadow Minister asked about adequacy. He knows that we cannot guarantee adequacy, because it is in the EU’s gift rather than ours, but we have made it clear to the EU that we are ready to commence adequacy discussions just as soon as it is ready. We have had an indication from the Commission that, as long as we leave with a deal, it will be ready to start those discussions immediately. Given that we will be fully compliant at the moment of departure, it is highly likely that we will be able to conclude those discussions at the shorter end of the spectrum of times that adequacy discussions with third countries have taken in the past.
The shadow Minister asked about the contingencies we are making in the event of no deal. The ICO and officials in my Department have been working closely together, and the ICO has published approaches for both the public sector and industry in terms of the reach of the standard contractual clauses that will form a legal basis for transferring data in the event that we do not have an adequacy decision. Of course, if we left without a deal, we would not have an adequacy decision.
The hon. Member for Central Ayrshire asked whether EU citizens in her constituency and elsewhere in Scotland will continue to enjoy the same data rights and privacy. I can assure her that they will. They will have those rights as long as we leave with a deal. EU citizens’ rights are enshrined in the deal, and they will enjoy exactly the same provisions as citizens of this country, assuming we get that deal and implement these regulations. The regulations will preserve the GDPR’s extraterritorial approach in UK law.
Will the Minister therefore clarify—I understand that she might not be able to do so at this moment—why there is no reference to GDPR protection in the small print of the settled status scheme, other than a bald statement that people’s data can be shared pretty much with anybody?
I will write to the hon. Lady with any clarification I can provide to give her the comfort she seeks. I do not have that precise information to hand, and I was not aware of the issue, but of course I will write to her.
Both the hon. Lady and the shadow Minister raised the issue of resources. We took a statutory instrument through last year that provided the ICO with a substantial increase in its budget and its ability to hire people, including experts. The ICO has added considerably to its staff over the past 12 months, and we will ensure that it continues to have the resources it needs to provide the invaluable service that it has a remit to provide. I assure all hon. Members of that important fact.
I note the remarks of my hon. Friend the Member for Wycombe. I remain hopeful, as he says he does, that we will get a deal that continues to protect the data rights of people in this country and a great deal more besides. I commend the draft regulations to the Committee.
Question put and agreed to.