Government to Gut UK GDPR?

September 1, 2021
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Oliver Dowden, the UK's Secretary of State for Digital, Culture, Media and Sport, has proclaimed that the government is interested in a root-and-branch reform of the provisions of the European Union's General Data Protection Regulation that it "onshored" as part of Brexit.

Oliver Dowden, the UK's Secretary of State for Digital, Culture, Media and Sport, has proclaimed that the government is interested in a root-and-branch reform of the provisions of the European Union's General Data Protection Regulation that it "onshored" as part of Brexit.

On the government website, Dowden said of his blueprint: "It means reforming our own data laws so that they’re based on common sense, not box-ticking."

He has also told the Daily Telegraph that the UK ought to replace its data rules with a “light touch” regime and trade personal data "like oil," a stance that many see as injurious to privacy.

He went on to say that ministers were trying to decide whether to oblige the Information Commissioner's Office (ICO) to carry out economic impact assessments before any new guidelines appear, thereby ensuring that “it understands what the cost is on business.”

Allied to this red tape is a governmental determination to strike "adequacy" deals with the United States, Australia, the Republic of Korea, Singapore, the Dubai International Finance Centre and Colombia. Next on the list are fast-growing economies India, Brazil, Kenya and Indonesia.

In the General Data Protection Regulation (GDPR), which the UK has enshrined in its own law, the EU must find a country's data protection regime to be "adequate" before allowing personal data to flow freely between it and that country. Other countries, including the UK, have now also taken up "adequacy" arrangements between each other.

The EU itself says: "The effect of such a decision is that personal data can flow from the EU (and Norway, Liechtenstein and Iceland) to [a] third country without any further safeguard being necessary. In others words, transfers to the country in question will be assimilated to intra-EU transmissions of data."

Dowden's talk of an "adequacy partnership" with the US may lead to a clash with the European Union, which recently proclaimed the UK to have an "adequate" data protection regime. The multi-governmental bloc reserves the right to withdraw its "adequacy" decision at any time, thereby ending the easy access that UK payments firms enjoy to the EU.

After GDPR, American firms no longer have easy access to European personal data or vice versa. A determination on the part of the UK to do a blanket deal with the unreformed US system is likely to result in a backlash from Brussels, although nobody yet knows the form that it will take.

Nevertheless, in its press release the government seems determined to press on.

"The UK government intervened in the Schrems II ruling last year. The Court of Justice of the European Union invalidated the Privacy Shield, which was a critically important framework for transatlantic data transfer. The UK government made clear it was disappointed in that ruling and it has heard from stakeholders how important it is that there is a solid and seamless mechanism for data transfers to the US."

This aside, the UK already has "adequacy arrangements" with Jersey, Guernsey, the Isle of Man, Japan, Canada and New Zealand. It is from this last nation that the UK has drawn John Edwards, the "preferred candidate" next Information Commissioner, according to the press release.

This development has been some time in preparation. As VIXIO reported, on June 16, 2021, the Taskforce on Innovation, Growth and Regulatory Reform, which consisted of Sir Iain Duncan Smith and two other Conservative Members of Parliament, published a report that urged Prime Minister Boris Johnson to reshape the way in which the UK approaches data protection regulation and seize new opportunities from Brexit.

The taskforce recommended a return to anti-red-tape policy: "With the full knowledge that each new regulation creates costs and burdens for businesses, we should return to the ‘one in, two out' regulatory offset principle...the government should undertake a complete audit of EU-derived law and look for further opportunities to deregulate and lower burdens on business."

In the coming weeks the government will publish concrete proposals and open a public consultation.

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