Greetings from London!
I am delighted to have the opportunity to write the “Notes” from Europe this week, after having the pleasure of attending the IAPP Europe Data Protection Congress last week in Brussels. It was great to catch up with friends and colleagues from across the globe — I understand it was the biggest data-protection conference ever held on the continent!
The conference demonstrated to me that regulators, policymakers and practitioners still have a strong appetite to learn about privacy compliance following GDPR go-live. Indeed, there was a broad range of topics under discussion, such as digital ethics, new privacy laws in California and China, and a smorgasbord — or should that be a full British breakfast? — of sessions on Brexit.
The highlight for me was Sir Ivan Rogers, who delivered an absorbing keynote speech on the state of play of Brexit. The speaker and the timing could not have been better. As the U.K.’s former permanent representative to the EU in Brussels, Sir Ivan helped negotiate the GDPR at the ambassadorial level. His speech came days after the European Council signed off on a draft withdrawal agreement for the U.K. to exit the EU. As I write this article, the British Parliament has commenced five days of debate on this agreement. In effect, the U.K. government needs the consent of the House of Commons in order to pass legislation to ratify the withdrawal agreement.
However, as Sir Ivan predicted, this is already proving tricky. On Tuesday, the U.K. government lost a vote in the Commons that now effectively allows MPs to determine next steps, should Parliament vote against the negotiated agreement. Furthermore, for the first time in history, the government was found to be in contempt of Parliament for refusing to publish the attorney general’s advice on the agreement.
We will have a better understanding of what will happen after the so-called “meaningful vote” on the agreement takes place on Tuesday, 11 Dec. As Sir Ivan said, if the agreement is ratified, then the U.K. and the EU will move into a status quo transition period, which will preserve the free flow of data between them until at least the end of 2020. This will give the EU some time to determine the adequacy of the U.K.’s data protection regime, although Sir Ivan warned that the effort required to reach such a decision should not be underestimated.
On 4 Dec., Advocate General Campos Sánchez-Bordona of the Court of Justice of the European Union proposed that the U.K. could unilaterally revoke its intention to withdraw from the EU under Article 50 of the Treaty on the European Union. Today, the CJEU signaled its intention to deliver a ruling on this matter 10 Dec. under an expedited procedure. This will no doubt be a significant additional factor for U.K. MPs to consider just one day before they cast their meaningful votes.
As a Brit who is generally interested by the comings and goings of Brexit, I thought the wider world might consider these developments somewhat parochial in nature. However, at the conference, this proved not to be the case, as I was asked many questions about what Brexit meant for privacy pros during every coffee break. Indeed, the “Ask the Brexperts!” session — expertly chaired by Ruth Boardman from Bird & Bird and featuring Hazel Cameron from the U.K. Permanent Representation to the EU, Eduardo Ustaran from Hogan Lovells, Bruno Gencarelli from the European Commission, and me — was very well attended.
It was clear from the panel discussions that an orderly status quo transition followed by a positive adequacy determination for the U.K. was the preferred option for policymakers and practitioners. However, as Sir Ivan stated, if the withdrawal agreement is voted down in the House of Commons, then there could be a period of paralysis and turmoil.
What, therefore, should privacy pros do apart from watching the drama unfold from behind the sofa? The key message for all in attendance was clear: Monitor developments closely, and plan for all contingencies. In particular, watch what happens in the House of Commons on 11 Dec. We will have a clearer view of the path ahead once MPs cast their meaningful votes on the withdrawal agreement.
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