Manifestos leave questions over post-Brexit data transfers

Cross-border issues cannot be dealt with by Britain alone, Rob Bratby writes

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Jun 01, 2017
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The Conservative manifesto confirms the party’s commitment to the Great Repeal Bill white paper, which was published in March before the prime minister fired the starting gun on the current general election campaign. In her foreword to the white paper, Theresa May said: “The same rules and laws will apply on the day after exit as on the day before.”

But the white paper ignores the fundamental problem that cross-border issues cannot be dealt with by UK-only legislation – they will require agreement with the EU. Regardless of what the UK does to “convert” or “correct” domestic legislation, the EU legislation applicable in other member states will treat the UK as being outside the EU post-Brexit.

The Labour manifesto proposes to replace the Great Repeal Bill with an EU Rights and Protections Bill. However, it has the same core problem as the Tories’ proposed legislation – cross-border issues cannot be addressed by means of domestic legislation.

All of this raises the crucial issue of the impact Brexit will have on cross-border data transfers. Currently, EU businesses can send personal data to the UK freely. But unless, after Brexit, UK law ensures an adequate level of protection of personal data, companies based in the bloc will need to have alternative safeguards and processes to enable them to transfer data to Britain.

The Labour manifesto is silent on post-Brexit data protection law. However, the Conservative manifesto proposes legislation that will enable “safe, flexible and dynamic use of data” and “ethical and proportionate regulation of data”. While details remain unclear, this proposed change will require a substantive equivalency review by the EU to enable continued free transfer of personal data.

What are the possible solutions? First there is a “soft Brexit”, as proposed by the Scottish National, Liberal Democrat and Green parties. This would allow cross-border issues to be addressed as part of the terms to remain in the single market, with the status quo serving as transitional arrangements.

In contrast, the “hard” Brexit of the Conservative Party and Ukip will make it much harder for these cross-border issues to be dealt with except by means of a comprehensive free-trade agreement, which is highly unlikely to be negotiated and agreed within the remaining period before the UK leaves the EU. It could take as long as seven to ten years.

The Tories propose negotiating transitional arrangements to avoid a “cliff-edge”; the Labour Party is unclear, and leaves open the options of both a hard and soft Brexit.

Rob Bratby is a partner at the City of London office of US law firm Arnold & Porter Kaye Scholer

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