Leaving our opt-outs behind

It’s one of my fears over Brexit that the loonies will take us into a transition period without an agreement on anything other than the withdrawal terms, about which they are still haggling, and that should we change our minds, we’ll have to reapply and lose our opt-outs, which include Schengen (common borders), the stability & growth pact’s enforcement regime, a promise to join the Euro (we don’t have to) and our famous rebate on contributions. In transition, we lose our Council seat with its veto, our Commission seat, our MEPs and our Judges on the Court. We definitely become rule takers. …

Pointlessness or catastrophe

I don’t always agree with Seb Dance MEP, but his categorisation of Brexit  as having a choice between pointlessness and catastrophe he’s bang on.


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Crime & Brexit

As I said, earlier this week I attended a session of the House of Commons Home Affairs Committee. This was called to take evidence on the impact of Brexit as it impacted Europol and the European Arrest Warrant.

I have published a link to the video recording of the event but I took some notes and wanted to share them with you. They interviewed Sir Robert Wainright, a former Head of Europol and Claude Moraes MEP, Chair of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) and Camino Mortera-Martinez, Research Fellow and Brussels Representative, Centre for European Reform. If we leave, we are unlikely to get a better agreement than Denmark which has withdrawn from Europol and unless we accept the Court of Justice of the European Union, we will be excluded from the European Arrest Warrant. Moraes made the point that the UK’s Investigatory Powers Act may inhibit a data sharing adequacy finding which may lead to a restrivtion on access to Europol’s databases. …  …

On Adequacy after Brexit

I attended the Home Affairs Committee on Europol and the European Arrest Warrant yesterday. Don’t say I don’t know how to have a good time. One of the members, suggested that since we have passed a new Data Protection Law, we will be compliant from Day 1, or Day 0 as we engineers call it. I think  not and here’s why. In short, the Government say they’ve implemented the GDPR into British Law, but once we’re a third country, it’s the Commission that has the last word, and they have questions we need to answer. …

Firstly, I don’t think the Commission would act that quickly and they’d need to issue an adequacy decision and there are four questions of substance that the Commission would need to consider.

  1. The European Data Protection Supervisory Board’s predecessor, the Article 29 Working Party and the Commission had outstanding issues with the UK’s implementation of 95 Directive, to the extent that it seems the Commission had started infraction proceedings. (I find it very hard to get explicit data on this, and much of what is available reads like conspiracy theories, but the most vocal campaigner published his views in the Register, here. The author argues that the infraction process proposes to carry forward to the 2018 DPA. ) The author checkpointed his findings in a 2011 blog article, called “European Commission explains why UK’s Data Protection Act is deficient”, he also points to an Out-law Article, “Europe claims UK botched one third of Data Protection Directive” 17 Sep 2007.
  2. The House of Lords Committee on Data Protection found that as a 3rd Country we may be required to meet a higher standard than as a member state. (This is because we will lose the powers granted to member states under Article 23 Restrictions of the GDPR. These powers relate to the exemption of national security organisations and the courts (and others) from some aspects of the GDPR). This is why there is concern with the Investigatory Powers Act, already declared deficient by the UK Courts and the DPA immigration service exception will jeopardise any attempt to obtain an adequacy finding. i.e. a member state might be able to have these laws but a 3rd country may not.
  3. The loss of member state status and privilege means that our intelligence sharing arrangements with the US, a country which still has the death penalty, and operates under a different military legal doctrine may be deemed to be a critical problem in granting adequacy. (We should note that Tom Watson MP, obtained a barrister’s opinion on the legality of sharing intelligence and wrote to the Prime Minister at the time on the legality of this activity; it was taken up by Rights Watch who are pursuing this through the courts.)
  4. Depending on the withdrawal agreement, and it seems that no-one is thinking about this, we may cease to be covered by the US Privacy Shield agreement, and thus will be prohibited from transferring EU citizens personal data to the USA, and they to us. (Actually prohibited is a bit strong, participants in cross border data transfer would need to be covered by model clauses, or binding corporate rules and both of these are under judicial review (Schrems II) and create a barrier to entry because of cost to SMEs).

It should be noted that the ECJ has required the US Safe Harbour agreement to be re-negotiated; its successor allows US corporate self assessment, but also requires EU citizen access to the US Court system. The important thing here is that the Commission consider protections of EU citizens’ personal data, and the establishment of rights against the State’s intelligence, security and police services to be part of an adequacy findings and since the EU is not frightened of a row with the US; it wont be with us. …

On the streets

Yesterday, over 100,00 people marched in London calling for a 2nd referendum, I popped in to show my solidarity earlier as I needed to be somewhere else but it looked big. I shouldn’t call it a 2nd referendum, its more a case of asking us if whatever they get, is what we meant and still want?

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Privacy & compliance, reprised

I have had a look at the changes in Law, and thus the potential changes in data protection strategy since I first wrote about the conflicts between privacy, compliance and law enforcement.

The US courts have been siding with citizens and their privacy rights, the ECJ has been doing the same. Parliament has been going in the opposite direction, although the Supreme Court has declared the Data Retention laws to be contrary to Human Rights Law and should we actually leave the EU we will find obtaining an “Adequacy” agreement harder than we’d hope as the EU Parliament, Commission and the EU Data Protection Supervisory board focus on the rights of privacy from Governments. This will be a significant problem if the ECJ strikes down the model clauses and binding corporate rules.

I briefly touch on the fact that the European Laws are meant to be implementing the globally agreed seven principles of Data Protection, of Notice, Purpose, Consent, Security, Disclosure, Access and Accountability and that in a rights based jurisdiction, these rights must be protected from the Government as well as from Corporates.

 

The language has developed since 1980 but these principles were agree by the OECD in 1980.

I conclude the article by saying,

Today, under EU law, the lawful purpose would seem to be more flexible, cross border transfers are more restricted, and may become more so, and the EU is more concerned about nation state compliance; it’s what you’d expect from a political entity consisting of states and the children of people surviving fascist or Stalinist rule.

This political heritage should be remembered by those that see these laws merely as a business burden, …

Deal or No Deal

I was reading my news feeds this morning and of course Brexit comes up. Richard Corbett, now the Leader of the European PLP writes that when Labour in the Commons considers the Lord’s amendments to the European Union Withdrawal Bill, while there is a lot of noise about remaining in the single market or the European Economic Area, a more important amendment might be the establishment of a parliamentary “meaningful vote”. At the moment the Government plan to offer Parliament a “Deal or No Deal” vote, the opportunity to tell them to think again or remain must be on the table.

Anthony Barnett, writes an open letter to Remainers, where the thrust of the article is to pose a new hope, probably arguing “Remain but Reform” which is something a Labour Government might realistically undertake but he points at a blog by Dominic Cummings, the former Director of “Vote Leave” who is more than a little disappointed with the progress made in negotiating Brexit. Cummings’ diatribe reflects in my mind the foolish simplicity, held by, it would seem, many Tory’s that Government’s decide and people follow.

In James Graham’s play, “This House”, possibly the central speech is between the two party deputy chief whips where they reflect on the growing split between both the Parties as butskellism ended and the growing dichotomy between the government and governed. Both Harrison and Wetherill had served in the wartime military, and both had worked outside politics; they became parliamentarians with a hinterland in the real economy and thus understood that people are complicated. The growth of the career politician has led to a fantasy understanding of how society and politics work.

During the Coalition, it seemed that they thought they could press policy buttons and it would have the effect they wanted. There was never any plan as to what would happen if the great unwashed masses misbehaved, as we always will. It’s the result of apprenticeships formed in the student movement and the advancement of sea lawyers with no experience of real life, and often little connection with their electorates.

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Brexit and Labour’s 2017 manifesto

Some Lexiters claim that the EU treaties will inhibit a Labour Government if it tried to implement its 2017 manifesto. It is argued that the single market would inhibit industrial policy and the stability and growth pact would inhibit macro-economic policy. I don’t think this is so and have written up my notes on my wiki.

The single market does not inhibit an industrial policy, and the stability and growth pact has no enforcement mechanism for the UK. (Another opt-out which we will lose if we leave and seek to rejoin). …

Soft-Brexit?

I had dinner with an old friend last night, and one of the topics of conversation was Brexit, he’s of the view that the Government will negotiate a transition period which will be like the EEA and close a deal during the transition either the same or maybe like Ukraine’s. In this case, we may well then decide we want to re-join once we know what the final deal is like and they reckon the EU will let us back in. We’d probably lose the rebate, immunity from the Euro and being outside Schengen. …