Brexit – Theresa May wants “more than just an adequacy agreement” for EU data sharing


The Prime Minister has given her much anticipated speech at London’s Mansion House, setting out the ‘hard facts’ on Brexit.

Theresa May has stated that she wants “more than just an adequacy agreement” when it comes to data sharing with the EU, as Brexit negotiations continue. The Prime Minister delivered her much anticipated speech on the future trading relationship with the EU at London’s Mansion House this afternoon.

May laid out the “hard facts” on Brexit and outlines her hopes for the UK’s future relationship with the European Union, as it prepares to leave the trading bloc in March of next year.

She said that the UK will be “leaving the single market” and that “life is going to be different”, whilst acknowledging that everyone would “not get everything they want”.

The mainstream press are likely to focus on the fact that Theresa May is calling for a free trade agreement for most sectors of the British economy that goes further than the one the EU has with Canada, but not quite as extensive as the relationship Norway has with the trading block, which is part of the European Economic Area.

However, there were also some clear commitments from the Prime Minister regarding a future data sharing deal with the EU, which has been a top priority for businesses on both sides of the channel. If one isn’t agreed before March 2019, the UK could potentially face a cliff edge on data sharing with the EU.

Previously it has been said that the UK is hoping for data adequacy status upon leaving the European Union, which should mitigate the risks. Data adequacy is granted when the European Commission feels that a territory that is not part of the EU has data protection laws and practices that are aligned to the EU’s high standards.

Currently ten countries have been granted the status, including Israel and New Zealand. The USA and Canada have only been deemed to be partially adequate, and the data sharing with the USA is governed by the 2016 Privacy Shield agreement.

However, today Theresa May said she would be pushing for an agreement that goes beyond data adequacy and implied there would be a future role for the Information Commissioner’s Office at the table of the EU’s data decisions. She said:

We will need an arrangement for data protection.

I made this point in Munich in relation to our security relationship. But the free flow of data is also critical for both sides in any modern trading relationship too. The UK has exceptionally high standards of data protection. And we want to secure an agreement with the EU that provides the stability and confidence for EU and UK business and individuals to achieve our aims in maintaining and developing the UK’s strong trading and economic links with the EU.

That is why we will be seeking more than just an adequacy arrangement and want to see an appropriate ongoing role for the UK’s Information Commissioner’s Office. This will ensure UK businesses are effectively represented under the EU’s new ‘one stop shop’ mechanism for resolving data protection disputes.

She also acknowledged the “hard fact” that even after the UK leaves the jurisdiction of the European Court of Justice, EU law and the decisions of the ECJ will continue to have an impact. In this case, the Prime Minister cited how the ECJ determines whether agreements the EU has struck are legal under the EU’s own law – as the US found when the ECJ declared the Safe Harbor Framework for data sharing invalid.

However, the Prime Minister did confirm the UK will not be part of the EU Digital Single Market post-Brexit. She said:

On digital, the UK will not be part of the EU’s Digital Single Market, which will continue to develop after our withdrawal from the EU. This is a fast evolving, innovative sector, in which the UK is a world leader. So it will be particularly important to have domestic flexibility, to ensure the regulatory environment can always respond nimbly and ambitiously to new developments.

The response

For what it’s worth, the EU’s chief negotiator, Michel Barnier, gave a positive response (pretty much the first one) to the Prime Minister’s speech on Twitter. He said:

Trade lobby group techUK, welcomed the Prime Minister’s “pragmatic approach”. CEO Julian David responded by saying:

We strongly welcome the Prime Minister’s crystal clear commitment on data protection- ensuring the UK maintains our strong level of data protection and goes beyond an adequacy agreement to allow our Information Commissioner to continue to play a role at EU level at developing and shaping future data protection rules. That is the right approach to support the UK’s place as a leading tech economy.

The Prime Minister is also right to say that for the UK to maintain its place at the cutting edge of digital innovation our own regulators must be nimble and creative. By close alignment on key issues like data flows coupled with world-beating regulation here at home, the UK tech sector can thrive. However, it will be critical that mechanisms are in place to support maximum access to the EU and markets around the world for tech developed here in the UK.

There are of course still questions to answer and further detail that is needed, for example around the kind of technologies the Government wants to deliver for the border. techUK looks forward to working through this detail to help Government deliver on this plan.

The Prime Minister’s speech set out a pragmatic approach to developing the kind of UK/EU relationship everyone wants to see post-Brexit. She was honest about the challenges and that trade-offs will need to be made. This should draw a line under the political wrangling that has previously has gotten in the way of progressing the negotiations. This speech marks a real step forward and techUK hopes that the EU will respond in the same constructive manner.

However, others were less pleased about the UK’s commitment to leave the Digital Single Market. For example, one CEO of a technology stated the following on Twitter:

My take

To be honest, it’s so hard to know at the moment what this means in reality. Effectively Theresa May is trying to state what she wants, whilst also appeasing politicians on all sides of the debate. We can’t yet be sure that the EU will play ball, as negotiations continue. They will have their own demands and requirements for a free trade agreement. The one point May is right about is that not everyone will end up with what they want.

Image credit - Image sourced via government website

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